European Court of Human Rights

FOURTH SECTION

Application no. 18837/06
by Susan Anne ALLEN
against the United Kingdom
lodged on 2 May 2006

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Susan Anne Allen, is a British national who was born in 1970 and lives in Liverpool. She is represented before the Court by Mr D. Taylor, a lawyer practising in Liverpool.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 6 October 2005 the applicant was charged with two offences of conspiracy to supply Class A drugs.

On 7 October 2005 she was produced at Liverpool City Magistrates' Court. Following a contested bail application she was granted bail by the Deputy District Judge.

The Crown Prosecution Service gave notice that it wished to appeal against the grant of bail and the applicant therefore remained in detention. The appeal hearing was to take place at Liverpool Crown Court on 11 October 2005 and the applicant's solicitors arranged with the Prison Service for her to be present at the court building.

At the start of the hearing the applicant's counsel requested the judge to exercise his discretion to allow the applicant to be present while the appeal was heard. It was contended on her behalf that it would be in the interests of justice since it would allow the applicant to see that her case was being dealt with fairly and would permit the judge to gain a visual impression of her. The applicant's counsel submitted to the judge:

“You have considerable experience of looking at people and taking into account their demeanour. This woman is, on the defence case, a respectable woman of good background and a vulnerable person. I would like you to see her, frankly, because you will be able to tell and see that she does not fall into a category of so many of those who appear before you ... I was able to address the learned District Judge on precisely those terms. I believe that it had some impact on his decision to grant bail because he was able to see her and make an assessment of that person. She is here and you could make that assessment if she was brought before you.”

The judge refused to allow the applicant to attend the hearing because to do so would set an unfortunate precedent. Moreover, one of the applicant's co-accused had not been present at the hearing of the appeal against the grant of bail to him, and it would therefore be unfair to treat the applicant more favourably. The judge further remarked:

“.. I very clearly have the picture of your client. You describe her as 35, attractive, a young mother, a child aged four, child care responsibilities ... She has funds that you have described in savings accounts. You describe her as being on the fringe, effectively, of what is going on, the issue in her case being her knowledge of the conspiracy or of drugs.

... [W]hat beyond what you have been able to describe to me are you suggesting that I should gain from bringing her up from the cells into the dock at the moment? What do you want me to do if I were to ask her to come up into the dock, just look at her? Does that add anything to anything that you are suggesting? I have a very clear picture of the sort of person who is going to walk into the dock. No doubt she is going to be very worried. It must be a very intimidating experience for anybody of no previous convictions who has recently been taken into custody, to be brought into a court as large as this. I can imagine full well what is going to happen when she walks in. But given the fact that I can imagine that, and I have seen it happen many times, what else am I going to notice?”

The judge therefore proceeded with the hearing in the applicant's absence. He decided to allow the prosecution appeal and refuse bail, on the grounds that her brother, one of the co-accused, was at liberty, possibly overseas, and that there was a risk that she would abscond and join him or provide him with information about the prosecution case which would obstruct the course of justice.

The applicant applied for judicial review of the decision to refuse her permission to attend the hearing on the ground that her rights under the Convention had been breached. Her application was refused on 7 December 2005, on the grounds that:

“Rule 19.17(4) [of the Criminal Procedure Rules: see below] does not appear to have been referred to during the hearing [in the Crown Court] .... But it is Convention compliant in principle because a person is entitled to be present if in an exceptional case the interests of justice so require.

Judicial review should not be used to resolve academic disputes. The grounds do not explain why this was an exceptional case and/or why the interests of justice required the attendance of the Claimant, who was professionally represented.

[The Crown Court judge] stated that he would be prepared to reconsider his view (and allow the Claimant to be present) if there was anything that caused him to have to hear evidence from the Claimant or 'to have to do something different' ... Counsel representing the Claimant was not able to explain what would be gained by producing the Claimant ... .

There may well be an argument that if and insofar as Rule 19.17(4) imposes a dual requirement – that a case should be both 'of an exceptional nature' and that a Judge should be of the opinion that the interests of justice require a defendant's presence, it is not compliant with Article 5, but this is not a case where the Crown Court Judge concluded that it would be in the interests of justice for the Claimant to be present, but refused to order that she should be present because the case was not 'of an exceptional nature'. In the unlikely event that such a case arises, the argument will not be academic and it may then be appropriate to grant permission to apply for Judicial Review.”

B.  Relevant domestic law

Rule 19.17(4) of the Criminal Procedure Rules provides as follows:

“The person concerned [when the prosecution appeal against a decision to grant bail] shall not be entitled to be present at the hearing of the appeal unless he is acting in person or, in any other case of an exceptional nature, a judge of the Crown Court is of the opinion that the interests of justice require him to be present and gives him leave to be so.”

COMPLAINT

The applicant complains under Article 5 §§ 3 and 4 of the Convention that she was not allowed to be present during the hearing of the appeal against the grant of bail.

QUESTION TO THE PARTIES

Did the fact that the applicant was not permitted to attend in person the hearing of the prosecution appeal against the grant of bail give rise to a breach of her rights under Article 5 § 4 of the Convention?