Nadir surety need not pay : LAW REPORT

Regina v Central Criminal Court, ex parte Guney. Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Peter Gibson and Sir Michael Mann).

1 February 1995.

A defendant surrendered to the custody of the crown court when, in response to being told to do so, he attended a hearing and overtly subjected himself to the court's directions, for example by pleading to an arraignment.

The Court of Appeal by a majority allowed an appeal by Ramadan Guney against the decision of the Queen's Bench Divisional Court (Independent, 10 February 1994; [1994] 1 WLR 438) which refused his application for judicial review of the order of Mr JusticeTucker, on 30 July 1993, that Mr Guney, who had stood surety for Asil Nadir in the sum of £1m when the latter was granted bail in December 1990, should forfeit £650,000 or serve two years' imprisonment in default of payment within six months, following Mr Nadir's abscondence on 4 May 1993.

On 22 June 1992, Mr Nadir 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, under sections 7-9 of the Criminal Justice Act 1987. By section 8(2) 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.

The question (for which the SFO has been granted leave to appeal to the House of Lords) was whether Mr Nadir then surrendered to the custody of the crown court, so as to terminate Mr Guney's bail obligations.

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

LORD JUSTICE PETER GIBSON said physical restraint was not a requirement of "custody" and it was apparent from DPP v Richards [1988] QB 701 that a surrender to custody might occur in a very informal way (in that case by the defendant reporting to the inquiries counter upon arriving at court).

It was implicit in the judge's order directing the preparatory hearing on 22 June and thereby fixing the commencement date of the trial which would begin with the arraignment, that Mr Nadir's presence was required at the court. His trial began then in fact and not only "in theory", as the judge held. Following arraignment, the further detention in custody or granting of bail to a defendant lay solely within the power and discretion of the trial judge.

In his Lordship's judgment a surrender to the custody of the court occurred when a defendant on bail and under a duty so to surrender was required to attend court and responded by attending and overtly subjecting himself to the court's directions. This he did at the latest when he was arraigned at the commencement of the trial, but he might do so earlier, as shown by DPP v Richards.

Accordingly, Mr Nadir surrendered to the custody of the court on 22 June and Mr Guney's obligation as surety thereby ended.

SIR MICHAEL MANN concurred. SIR THOMAS BINGHAM MR dissented.

Paul Magrath, Barrister