LAW REPORT: Nadir surety need not forfeit recognisance

LAW REPORT: 6 June 1996; Regina v Central Criminal Court, ex parte Guney; HL (Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Slynn of Hadley, Lord Steyn and Lord Hoffmann) 9 May 1996

Regina v Central Criminal Court, ex parte Guney; HL (Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Slynn of Hadley, Lord Steyn and Lord Hoffmann) 9 May 1996

A defendant surrendered to the custody of the Crown Court when, in response to being told to do so, he attended a preparatory hearing and pleaded to an arraignment. From then on his detention or bail was a matter for the trial judge. Any earlier arrangements as to bail at that point ceased to apply and a recognisance entered into as a condition thereof could no longer be forfeited if the defendant later absconded.

The House of Lords dismissed an appeal by the Serious Fraud Office and affirmed the decision of the Court of Appeal (Law Report, 2 February 1995; [1995] 1 WLR 576) allowing an appeal by Ramadam Guney against the decision of the Queen's Bench Divisional Court (Law Report, 10 February 1994; [1994] 1 WLR 438) refusing judicial review of the order of Mr Justice Tuckey, on 30 July 1993, that Mr Guney, who had stood surety for Asil Nadir in the sum of pounds 1m when the latter was granted bail in December 1990, should forfeit pounds 650,000 or serve two years' imprisonment in default of payment, following Mr Nadir's abscondence on 4 May 1993.

On 22 June 1992, Mr Nadir, who was to be tried for a number of offences of theft and false accounting, appeared before the Central Criminal Court (sitting in a room at Chichester Rents) for a preparatory hearing of the type held in complex fraud cases, pursuant to sections 7 to 9 of the Criminal Justice Act 1987. Section 8(2) provided that arraignment should take place at such a hearing.

There was no dock in the room so Mr Nadir simply stood up. He was formally arraigned and pleaded not guilty to the charges put to him. At no stage during the hearing was any reference made to Mr Nadir's bail. The fact that Mr Guney was not present to agree to any extension of his recognisance caused counsel for both sides to agree that it was unnecessary for Mr Nadir to surrender to the custody of the court on this occasion. Both counsel believed their agreement effectively kept Mr Guney's recognisance in force. The judge was not informed of this arrangement.

Robert Owen QC, David Calvert-Smith and Simon Browne-Wilkinson (SFO) for the appellant; Edmund Lawson QC and Russell Houston (Kaim Todner) for Mr Guney.

Lord Steyn said the duty of a defendant who had been granted bail by the magistrates was to surrender to the custody of the court at the required time and place and, depending on arrangements at various trial centres, he might be required to report to a particular office or official: see DPP v Richards [1988] QB 701 at 711.

What happened when the defendant, although present at the court hearing, was not officially required to surrender but was formally arraigned? Did he remain on bail after arraignment until the judge ordered otherwise?

The arraignment of a defendant involved calling him to the bar by name, reading the indictment to him and asking him whether he pleaded guilty or not guilty. When a defendant who had not previously surrendered to custody was so arraigned, he surrendered to the custody of the court. His further detention was solely within the discretion and power of the judge. Therefore unless the judge granted bail the defendant remained in custody pending and during his trial.

Given the express provisions of section 8 of the 1987 Act, the trial began with a preparatory hearing and arraignment took place at the start of the hearing.

Since arraignment operated in law as a surrender to custody, the judge might not in law abdicate his responsibility in respect of the defendant's custody. He could not deprive an arraignment of its legal effect. Nor, a fortiori, could an agreement between the parties divest an arraignment of its effect on bail.

Whatever might mistakenly have been thought and done in the past, the rule was that, where a defendant had not previously surrendered to custody, his arraignment amounted in all cases as a matter of law to such surrender.

Paul Magrath, Barrister