22 April 2009

FOURTH SECTION
Application no. 7390/07
by Kevin Kenneth O’DOWD
against the United Kingdom
lodged on 24 January 2007

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Kevin Kenneth O’Dowd, is a British national who was born in 1946 and lives in London. He was represented before the Court by Clarke Kiernan, a firm of solicitors based in Tonbridge.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 6 December 2001, the applicant was arrested, interviewed and charged with rape, false imprisonment and indecent assault. It was alleged that over a period of days in mid-September 2000, the applicant raped a woman in her flat, imprisoned her in his car and then indecently assaulted her in his flat. Nine months later, the alleged victim gave birth to a baby boy and four months after that, in October 2001, she made her first complaint to the police.
On 7 December 2001, the applicant’s case was sent for trial at the Central Criminal Court pursuant to section 51 of the Crime and Disorder Act 1998.
On 17 December 2001, the applicant made an application for bail. As he had served 14 years’ imprisonment in respect of a previous conviction for rape and another offence of violence in 1989, under section 25 of the Criminal Justice and Public Order Act 1994 as amended (“the 1994 Act”) bail could only be granted if the judge was satisfied that there were “exceptional circumstances” which justified the grant of bail. The judge was not so satisfied and bail was refused.
On 28 January 2002, the applicant pleaded not guilty to all charges and a trial date was fixed for 8 April 2002. A further bail application was refused.
On 22 March 2002, the applicant dispensed with the services of his solicitors and counsel and served his own defence statement. The judge did not alter the trial date but gave the applicant time to reconsider his position. On 3 April 2002, the applicant indicated that he would like to have the services of his former legal team and the judge reinstated the representation order. As valuable time had been lost, the trial date was vacated and rearranged for 6 June 2002. A further bail application was refused.
At the end of May 2002, the applicant again dispensed with the services of his lawyers. When the case was called on 6 June 2002, however, he was represented by leading and junior counsel. After a midday adjournment, the applicant once again dispensed with the services of his lawyers. The next day, he asked for his legal team to be reinstated and this was done. Defence counsel then indicated that as there had been a delay in disclosure, an application to stay would be made. It was agreed to hear the application the next day.
Under the Prosecution of Offences (Custody Time Limits) Regulations 1987 (“the 1987 Regulations”) as amended, the maximum period of custody between the sending for trial and the start of the trial (taken to be the date on which the jury is sworn in) in a case such as the applicant’s was 182 days. That period was due to expire at midnight on 7 June 2002. The prosecution accordingly applied to extend the custody time limit. The application was refused because the court was not satisfied that the prosecution had acted with all due diligence and expedition in relation to disclosure. Under section 22(3) of the Prosecution of Offences Act 1985 (“the 1985 Act”), a request for extension of the custody time limit must be refused where the court is not satisfied that the prosecution has acted with all due diligence. However, under the 1987 Regulations, the right to bail upon expiry of the custody time limit was subject to the 1994 Act. Accordingly, a further application for bail was refused because the judge was not satisfied that “exceptional circumstances” justifying the grant of bail existed.
On 8 June 2002, the defence requested access to hospital and telephone records for the first time. As a result, the case was removed from the court agenda and relisted for mention on 21 June 2002. On that date, the trial was re-fixed for 4 November 2002 and a further application for bail was refused.
On 20 August 2002, an application for bail was made in the High Court and was refused.
On 10 October 2002, the case came before Woolwich Crown Court for the consideration of two preliminary matters of law. The applicant once again dispensed with the services of his lawyers and the representation order was revoked. As a result, the issues of law were not resolved but held over for consideration on the first day of trial.
On 4 November 2002, the trial began. The applicant was acting in person but counsel had been appointed by the court to cross-examine the alleged victim. Issues arose regarding discovery, abuse of process, admissibility of photographs and the use of screens. The applicant from time to time absented himself from the court room.
On 6 November 2002 the court began to swear in the jury. However, one of the panel had been at school with the applicant and another, who was related to the applicant, made an observation in public which made it necessary to release the entire panel. The applicant subsequently applied for and was granted legal representation. On 15 November 2002, the applicant’s case was transferred to Harrow Crown Court as he was too well-known in the Woolwich area.
On 5 December 2002, the case came before Harrow Crown Court. The court indicted that it was prepared to hear the case in January 2003 but the applicant declined this date on the ground that it was unsuitable. The judge subsequently fixed the trial to begin on 2 June 2003 in order to accommodate the needs of the defence regarding preparation and availability of counsel.
A further application for bail was refused on 9 December 2002. Following this refusal, the applicant was once again offered the option of a trial in January 2003, which he declined.
The applicant subsequently sought judicial review of the court’s decision of 9 December 2002 to refuse him bail. The application for permission to seek judicial review was considered on the papers on 6 February 2003. It was referred for an oral hearing and permission was granted on 26 February 2003. On 20 March 2003, solicitors acting for the applicant indicated that he would also apply for a writ of habeas corpus contending that since the expiration of the custody time limit on 7 June 2002 his custody had been illegal.
On 16 April 2003, the applicant’s applications for habeas corpus and judicial review of the decision refusing bail were rejected by the Divisional Court. In dismissing the argument of the defence that the amendments to section 25 to allow the grant of bail in “exceptional circumstances” were insufficient to restore the judicial control required under the Convention, Kennedy LJ held (at paragraph 28) that:
“... there is nothing offensive or contrary to Convention law about Parliament reminding the courts of the risks normally attendant upon the grant of bail to those to whom section 25 applies. A reminder can properly be given by creating a statutory presumption against the grant of bail, but if judicial control is to be effective courts must be left free to examine all the relevant circumstances and, in an appropriate case, to override the presumption.”
Kennedy LJ considered the Convention authorities and accepted (at paragraph 32) that section 25 would not be compatible with the Convention if “exceptional circumstances” were too narrowly construed or if the court set too high a threshold at which it would be prepared to conclude that “exceptional circumstances” existed. In considering the application of section 25 in practice, Kennedy LJ explained that:
“[Section 25] establishes a norm. The norm is that those to whom it applies if granted bail are so likely to fail to surrender to custody, or offend, or interfere with witnesses or otherwise obstruct the course of justice that bail should not be granted. If in fact, taking into account all the circumstances relating to a particular alleged offence and offender he does not create an unacceptable risk of that kind he is an exception to the norm, and in accordance with his individual right to liberty he should be granted bail.”
As regards the expiration of the custody time limit, Kennedy LJ considered that the custody time limits set out in national law and the “reasonable time” requirement under Article 5 § 3 of the Convention were not one and the same. Thus in assessing whether the prosecution had acted with “special diligence” as required by the Convention, the finding of the lower court that it was not satisfied that the prosecution had acted with all due diligence as required by section 22 of the 1985 Act was not decisive. Although Kennedy LJ accepted that in a case where the prosecution had not demonstrated all due diligence, a court may well conclude that it had not displayed the necessary “special diligence” required under Article 5 § 3, he considered that this was not the case here.
Finally, in respect of the applicant’s argument under Article 14 of the Convention that section 25 operated in a discriminatory manner, Kennedy LJ considered that the applicant was not in a situation analogous to a person charged with a serious offence because he also had a previous conviction for a serious offence which was relevant to the risk attendant on a grant of bail. He further found that the distinction made was justified, was based on relevant factors, pursued a legitimate objective and was proportionate.
In conclusion, he stressed the importance of setting out reasons for refusing bail in order to show that careful and appropriate consideration had been given to the question of whether exceptional circumstances exist.
Hooper J agreed with Kennedy LJ in all respects, save that unlike Kennedy LJ he considered that section 25 did impose the burden on the defendant to show “exceptional circumstances” which, in light of Convention case-law, was inconsistent with Article 5 § 3. Accordingly, he considered that section 25 should be read down in accordance with the obligation in section 3 of the Human Rights Act 1998 to impose merely an evidential burden on the applicant to point to or produce material which supports the existence of “exceptional circumstances”, thereby ensuring compliance with the demands of Article 5 § 3.
The applicant appealed to the House of Lords, arguing that once the custody time limit had expired there was, by virtue of the expiry of the time limit itself, a breach of Article 5 § 3 by his continued detention under section 25; and, in the alternative, that the effect of section 25 was to place a burden on the applicant to establish exceptional circumstances required for the grant of bail, which was a breach of the applicant’s Convention rights.
In the meantime, the applicant’s trial commenced on 1 September 2003. However, on 25 September 2003, the prosecution was permanently stayed as an abuse of process, for reasons which are unclear, and the applicant was released from custody.
The House of Lords handed down its judgment in the judicial review and habeas corpus proceedings on 26 July 2006. Delivering the leading judgment, Lord Brown of Eaton-under-Heywood considered that an approach under section 25 which required the applicant to provide good and sufficient reason for bail would be “irreconcilable with the Strasbourg case law”. In the event, however, he concluded that whether section 25 imposed a burden on a defendant was of little importance, given the analysis of the Divisional Court and the similar conclusions reached by both judges. He was of the view, however, that section 25 did place a burden on the applicant and endorsed Hooper J’s approach, holding that section 25 should be read down to make it clear that where the arguments for and against bail were evenly balanced, bail should be granted.
As to the lawfulness of the applicant’s continued detention after the expiry of the custody time limit, Lord Brown made several observations. He noted that the applicant had a previous conviction for rape; indeed, he had 30 previous convictions for a wide variety of offences. He also observed that the applicant had dispensed with his lawyers and had them reinstated on no fewer than four occasions, two of which caused delay. A further five months’ delay was caused by the applicant’s decision to reject the offer of a January 2003 trial date in favour of a date in June 2003, to suit his counsel’s convenience. Lord Brown noted that it was unclear, in the absence of a transcript of the court’s decision of 7 June 2002 or any further information on the subject, why the lower court was not satisfied that the prosecution had acted with all due diligence and expedition in relation to disclosure. However, he concluded that even where there was a lack of due diligence under domestic law, this in itself was not sufficient to establish the lack of “special diligence” required for a breach of Article 5 § 3. Lord Brown concluded (at paragraph 63) that:
 “For my part I would not expect there to be many cases where, as here, bail is refused notwithstanding the court’s refusal to extend the custody time limit. But I conclude that there is no necessary inconsistency between the two and that Article 5(3) is not necessarily breached. Nor, in my judgment, is there any other reason for thinking that this appellant was wrongly refused bail: on the contrary, the case for his continued detention in custody appears to have been a strong one.”
The House of Lords found no violation of Article 5 § 3 and unanimously rejected the applicant’s appeal.
B.  Relevant domestic law and practice
1. Trial on indictment
Section 51 of the Crime and Disorder Act 1998 provides that where an adult appears before a magistrates’ court charged with an offence triable only on indictment, the court shall send him forthwith to the Crown Court for trial for that offence.
2. Bail
The Bail Act 1976 (“the 1976 Act”) regulates the grant of bail. Section 4 provides that defendants:
“shall be granted bail except as provided for in Schedule 1 to this Act”
Schedule 1 of the 1976 Act provides, under paragraph 2, that:
“The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would—
(a) fail to surrender to custody, or
(b) commit an offence while on bail, or
(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.”
Paragraph 9 of the Schedule provides that:
“In taking the decisions required by paragraph 2 ... the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say—
(a) the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it),
(b) the character, antecedents, associations and community ties of the defendant,
(c) the defendant’s record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings,
(d) ... the strength of the evidence of his having committed the offence or having defaulted,
as well as to any others which appear to be relevant.”
Section 4(8) of the 1976 Act provides that the right to bail under section 4 is subject to section 25 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”).
The 1994 Act makes specific provision for bail in a case where a suspect is charged with a serious offence and has previously been convicted and imprisoned for a serious offence. Section 25 provides:
“(1) A person who in any proceedings has been charged with or convicted of an offence to which this section applies in circumstances to which it applies shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it.
(2) This section applies, subject to subsection (3) below, to the following offences, that is to say–
(a) murder;
(b) attempted murder;
(c) manslaughter;
(d) rape under the law of Scotland or Northern Ireland;
(e) an offence under section 1 of the Sexual Offences Act 1956 (rape);
(f) an offence under section 1 of the Sexual Offences Act 2003 (rape);
(g) an offence under section 2 of that Act (assault by penetration);
...
(3) This section applies to a person charged with or convicted of any such offence only if he has been previously convicted by or before a court in any part of the United Kingdom of any such offence or of culpable homicide and, in the case of a previous conviction of manslaughter or of culpable homicide, if he was then sentenced to imprisonment ...”
3. Custody time limits
The Prosecution of Offences Act 1985 allows the Secretary of State, under section 22(1), to make regulations setting custody time limits. Section 22 also provides the appropriate court with the power to extend the time limit in a given case:
“(3) The appropriate court may, at any time before the expiry of a time limit imposed by the regulations, extend, or further extend, that limit; but the court shall not do so unless it is satisfied–
(a) that the need for the extension is due to–
(i) the illness or absence of the accused, a necessary witness, a judge or a magistrate;
(ii) a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused or two or more offences; or
(iii) some other good and sufficient cause; and
(b) that the prosecution has acted with all due diligence and expedition.
The Prosecution of Offences (Custody Time Limits) Regulations 1987 as amended set out the custody time limits applicable. Regulation 5(6B) provides that where an accused is sent for trial under section 51 of the Crime and Disorder Act 1998, the maximum period of custody between the accused being sent to the Crown Court for an offence and the start of the trial shall be 182 days. Under section 22(11A) of the 1985 Act, the start of a trial on indictment shall be taken to occur when a jury is sworn in.
Under Regulation 6 of the 1987 Regulations, upon the expiry of the custody time limit, an accused in custody must be granted bail, subject to section 25 of the 1994 Act:
“(6) The Crown Court, on being notified that an accused who is in custody pending trial there has the benefit of a custody time limit under Regulation 5 above and that the time limit is about to expire, shall, subject to section 25 of the Criminal Justice and Public Order Act 1994 (exclusion of bail in cases of homicide and rape), grant him bail in accordance with the Bail Act 1976, as from the expiry of the time limit, subject to a duty to appear before the Crown Court for trial.”
4. “reading down” under the Human Rights Act 1998
Section 3(1) of the Human Rights Act provides that, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
COMPLAINT
The applicant complains under Article 5 § 3 of the Convention alone and together with Article 14 that following the court’s refusal to extend the custody time limit on the ground that it was not satisfied that the prosecution had acted with all due diligence, his detention was unlawful under Article 5 § 3; and that section 25 of the Criminal Justice and Public Order Act 1994 unfairly discriminated against those with previous convictions for certain offences.

QUESTIONS TO THE PARTIES

1.  Did the application of section 25 of the Criminal Justice and Public Order Act 1994 (as amended) in the applicant’s case allow sufficient judicial control of his pre-trial detention, as required by Article 5 § 3 of the Convention (Caballero v. the United Kingdom[GC], no. 32819/96, ECHR 2000‑II; S.B.C. v. the United Kingdom, no. 39360/98, § 23, 19 June 2001; Ilijkov v. Bulgaria, no. 33977/96, § 79-87 , 26 July 2001)?

2.  Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? In particular:

were there specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighed the rule of respect for individual liberty and were such reasons set out in the decisions of the domestic authorities dismissing the applications for release (Contrada v. Italy, 24 August 1998, § 54, Reports of Judgments and Decisions1998‑V; Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI; Labita v. Italy[GC], no. 26772/95, § 152, ECHR 2000‑IV; and McKay v. the United Kingdom [GC], no. 543/03, § 42-43, ECHR 2006‑...); and

did the competent national authorities display the required “special diligence” in the conduct of the proceedings (Labita, cited above, § 153; Kudła, cited above, § 111; and McKay, cited above, § 44)?