Law Report: Nadir surety forfeits recognisance: Regina v Central Criminal Court, ex parte Guney - Queen's Bench Divisional Court (Lord Justice Ralph Gibson and Mrs Justice Smith), 26 January 1994.

A defendant surrendered to the custody of the court when, in response to being told to do so, he surrendered or put himself at the direction of the court. But it was not necessary for a defendant so to surrender before being arraigned, and it was perfectly proper for counsel to agree that a defendant should not surrender into custody when being formally arraigned at a preparatory hearing in a complex fraud case.

The Queen's Bench Divisional Court refused an application by Ramadan Guney, who had stood surety in the sum of pounds 1m for Asil Nadir when the latter was granted bail on December 1990, for judicial review of the order of Mr Justice Tucker, on 30 July 1993, that, following Mr Nadir's abscondence on 4 May 1993, Mr Guney should forfeit pounds 650,000, to be paid within six months, with two years imprisonment in default of payment.

Mr Guney claimed the forfeiture order was made without jurisdiction because any obligation under the recognisance came to an end on 22 June 1992, when Mr Nadir, upon being arrainged before the trial judge and pleading not guilty to the charges of theft and false accounting against him, surrendered to the custody of the court.

Edmund Lawson QC and Russell Houston (Kaim Todner, Walworth) for Mr Guney; Robert Owen QC, David Calvert-Smith and Catherine McGahey (Serious Fraud Office) for the respondent.

LORD JUSTICE RALPH GIBSON said the hearing on 22 June was a preparatory hearing of the type held in complex fraud cases, under sections 7-9 of the Criminal Justice Act 1987, to identify the issues, expedite the proceedings and assist the judge's management of the case. By section 8(2) arraignment should take place at the start of the preparatory hearing.

The hearing took place in a courtroom where there was no dock. Mr Nadir and his co-defendant were sitting with their solicitors and counsel. The judge asked them to stand up for a moment. The counts in the indictment were then put to them by the clerk of the court and they each pleaded not guilty. They were then asked to sit down again, and the preparatory hearing proceeded.

Although the judge was not aware of it, counsel for the prosecution and defence had agreed on that occasion that it was not necessary for Mr Nadir to surrender to the custody of the court, since if he had done it would have been necessary to consider the terms of any further bail granted.

But in any event, the judge had not regarded Mr Nadir as having surrendered to custody. It was on this basis that he had made his decision ordering forfeiture by Mr Guney.

In his Lordship's judgment, the judge was right. Arraignment was an important step; but its purpose could be fully served without risk of injustice to the defendant if he pleaded to the indictment without being required to surrender to the custody of the court.

It was in the interest of convenience, and of saving court time and costs, if arraignment could take place without such surrender because, as in the present case, such a rule would permit a preparatory hearing to commence under the statute without the need to obtain a new order for bail. Nor would that give rise to any risk of injustice to sureties. It followed that there was nothing improper or contrary to law in the arrangement on 22 June 1992 that Mr Nadir should not be required to surrender into custody, though it would have been better if the judge had been told of the agreement at the time.

But the agreement was effective in the circumstances to make it plain there was no surrender by Mr Nadir to the custody of the court.

Surrender occurred when it was made known to the defendant that surrender was required and, in response to that requirement, he surrendered or put himself at the direction of the court or an officer of the court. The fact that Mr Nadir had been asked to stand up did not mean he had been required to put himself at the direction of the court.

MRS JUSTICE SMITH agreed.