This was an application for bail pending an appeal against conviction and sentence. The applicant, the former director of Kleenmaid, argued inter alia that exceptional circumstances, namely the ongoing COVID-19 pandemic and his existing health issues, warranted the court granting him bail pursuant to ss 8, 9 and 16 of the Bail Act 1980. He was unsuccessful.
8 April 2020
Her Honour delivered the reasons ex tempore. At the outset, she cited R v Ogawa  QCA 201 as authority for the proposition that ordinarily, in order to establish exceptional circumstances, two prerequisites must be met:
1. It is necessary to demonstrate there are strong grounds for concluding that the appeal will be allowed; and
2. Usually the applicant is required to show that the custodial part of the sentence is likely to have been substantially served before the appeal is determined.
Further, courts are loathe to allow bail where a person has been sentenced to a considerable term of imprisonment in the absence of exceptional circumstances: see Hanson v Director of Public Prosecutions  QCA 409 and R v Fuller  QCA 303.
In addressing the merits of the application, her Honour noted that the applicant was aged 66 and had an unenviable history of coronary artery disease. That was particularly relevant in the context of the current environment of the COVID-19 pandemic, which, she noted, in itself amounted to an exceptional event. The decisive question however was whether those two matters combined constituted exceptional circumstances for the purpose of an application for bail pending appeal.
Regarding the strength of the foreshadowed appeal, her Honour observed that 13 grounds of appeal were identified in the notice of appeal. Upon reviewing the transcript, her Honour was unable to conclude that there would be strong grounds of appeal. She stated:
“Clearly there are grounds of appeal and important questions to be answered by the Court of Appeal, but it would not seem to me that it is clear cut. It would not appear to me that the prospects of success on appeal are so strong that it would justify granting an appeal in the current circumstances on that basis only.” (page 9)
Turning to whether the applicant’s medical condition together with the possibility of the circulation of COVID-19 in prison amounted to exceptional circumstances, such that the relevant principles would be satisfied, her Honour noted that:
1. The current evidence revealed that no COVID-19 prisoner was in any correctional facility;
2. Precautions in prison were extensive and included medical screening, heightened hygiene and the availability of isolation measures. An action plan was also in place;
3. The applicant was able to apply, because of his medical conditions, for a cell by himself.
In those circumstances, her Honour did not accept that he was in any particular danger so as to amount to special circumstances. Accordingly, bail was refused.
A de Jersey