It is a common assumption that a defendant will be granted bail when the prosecution does not oppose it. Freckleton v Kingston Crown Court [2025] EWHC 2569 (Admin) is a timely reminder that this is wrong in law. The decision underlines that the question of bail is for the court alone, and a prosecutor’s neutrality (or even support) does not remove the court’s duty to reach an independent conclusion.

The refusal of judicial review in this case provides important guidance on the scope of the Court’s discretion, the application of the Bail Act 1974, and the very limited circumstances in which higher courts will interfere with bail decisions.

Factual Background

The claimant, Courtney Freckleton (also known publicly as the rapper “Nines”), appeared at Kingston Crown Court in September 2025 and pleaded guilty to three offences. They were being concerned in the supply of Class B drugs, possession of cannabis, and breach of a Serious Crime Prevention Order. The Crown Court judge withdrew bail and remanded him in custody pending sentence.

The prosecution did not oppose bail, but the judge concluded that the statutory test for bail was not satisfied. Mr Freckleton challenged the decision by way of judicial review, arguing that the judge had acted unlawfully by withdrawing bail in circumstances where the prosecution had not asked for a remand into custody.

The Legal Framework: Bail After Conviction

Section 4 of the Bail Act 1974 creates a general right to bail. However, the presumption is qualified once a defendant has been convicted or pleads guilty. Where a defendant is convicted and awaits sentence, the court must consider whether there are substantial grounds for believing that the defendant would fail to surrender, commit further offences, or interfere with the administration of justice.

Prosecution submissions may assist the analysis, but they do not define it. The judge must independently assess the relevant risks by reference to the facts as they exist at the time.

The Claimant’s Argument

The claimant advanced several arguments. The most important for practitioners was this: that the absence of prosecution opposition materially undermined the lawfulness of the decision to remand in custody. In other words, the Crown Court judge had effectively overridden a concession by the Crown without proper justification, and the decision was irrational or legally flawed.

Arguments were also raised about whether the claimant had “surrendered to custody” within the meaning of the Bail Act and whether the judge’s reasoning was correctly stated during the course of the hearing.

The High Court’s Decision

The Administrative Court (Fordham J) rejected the claim. In doing so, several observations of importance for bail applications were made:

1. The Court emphasised that the prosecution’s stance is not determinative. Although the Crown’s view may be relevant, it does not create any form of legitimate expectation. The judge is the constitutional decision-maker entrusted with safeguarding the public interest, including public safety and confidence in the administration of justice.
2. There is nothing unusual or unlawful about a judge refusing bail where the prosecution does not oppose it, provided the judge applies the correct statutory test. The claimant’s guilty pleas, the seriousness of the offences, the likelihood of an immediate custodial sentence, and the history of non-compliance were all factors the Crown Court was entitled to weigh in the balance.
3. The Court reiterated the high threshold. Bail is a classic area of discretionary judgment. To justify a judicial review, the claimant must demonstrate an error of law, a failure to take into account relevant factors, or a plainly irrational decision. Otherwise, the Administrative Court will not intervene. It is not enough to simply disagree with the decision to remand.

Why the Prosecution’s Position Did Not Decide the Outcome

A neutral stance on bail does not remove the judge’s responsibility to ask: does justice require custody at this stage?

When a defendant enters a guilty plea, the question is most often answered by reference to the real prospect of immediate imprisonment. If so, the risk of absconding is self-evidently higher. In Freckleton, it was open to the judge to conclude that bail could not be justified, regardless of the CPS’s position.

Practical Lessons for Practitioners

Freckleton is a clear reminder for defence advocates that “no opposition” is not a substitute for a properly structured bail application. Advocates must still address the statutory criteria directly, particularly where the defendant stands convicted.

The case confirms for prosecutors that neutrality on bail does not entail responsibility for the outcome. The court makes the final decision.

The decision robustly confirms the independence of the judge in bail decisions and the legitimacy of refusing bail where the law and facts demand, even in the face of apparent consensus.

Conclusion

The case stands as a clear restatement of first principles. Bail is not granted by acquiescence. It is a judicial decision governed by statute, discretion, and public interest considerations.

For those advising clients at interim hearings, the point of plea or sentence, the message is simple but very important. Bail is never guaranteed, and the parties do not make the final decision. Be prepared to address the criteria, no matter what the prosecutor’s position may be.

Evan Wright is a partner and barrister in JMW’s business crime team.