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KEVIN O'DOWD v. THE UNITED KINGDOM - 7390/07 [2010] ECHR 1324 (21 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1324.html
Cite as:
[2010] ECHR 1324,
[2011] Crim LR 148,
(2012) 54 EHRR 8
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FOURTH
SECTION
CASE OF
KEVIN O'DOWD v. THE UNITED KINGDOM
(Application
no. 7390/07)
JUDGMENT
STRASBOURG
21
September 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kevin O'Dowd v. the
United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 31 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 7390/07) against the
United Kingdom of Great Britain and Northern Ireland lodged with
the Court under Article 34 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (“the Convention”)
by a British national, Mr Kevin Kenneth O'Dowd (“the
applicant”), on 24 January 2007.
The
applicant was represented by Clarke Kiernan, a firm of solicitors
based in Tonbridge. The United Kingdom Government (“the
Government”) were represented by their Agent, Ms H. Upton, of
the Foreign and Commonwealth Office.
The
applicant alleged that his pre-trial detention was unlawful under
Article 5 § 3 of the Convention alone and taken together with
Article 14.
On
16 April 2009 the President of the Chamber decided to give notice of
the application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 1).
The
applicant requested an oral hearing but the Chamber decided not to
hold a hearing in the case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1946 and lives in London.
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 had raped a woman in her flat, imprisoned her in
his car and then indecently assaulted her in his flat. Nine months
later, the complainant 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 an 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 the proceedings 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. 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. The application made by the prosecution in the
applicant's case was refused because the court was not satisfied that
the prosecution had acted with all due diligence and expedition in
relation to disclosure.
However, under the 1987 Regulations, the right to bail
upon expiry of the custody time limit was subject to section 25 of
the 1994 Act (see paragraph 45 below). Accordingly, on 7 June
2002, a further application for bail was refused by Judge Norris in
the Crown Court because he 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 the basis that no exceptional
circumstances existed.
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, it was not
possible to deal with the issues of law, which were accordingly 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 complainant. 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 member 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 then 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 indicated 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. Outline
submissions as to the grant of bail were made and discussion was
adjourned until 9 December 2002 in order for skeleton arguments to be
prepared in writing.
A further application for bail was heard on 9 December
2002. The applicant's counsel made extensive submissions in
support of the application, with particular reference to the Court's
judgment in Caballero v. the United Kingdom [GC], no.
32819/96, ECHR 2000 II. She argued that once the time limit
under the 1987 Regulations had expired and was not extended, a
defendant should be admitted to bail. Accordingly, in her submission,
the applicant had been unlawfully detained since 7 June 2002.
Judge Sanders disagreed. He considered, first, that
the words “subject to Section 25” in the 1987 Regulations
meant “unless this is a case where Section 25 applies”.
He found that section 25 clearly did apply in the applicant's case
and continued:
“... it is lamentable that the prosecution have
been shown to be wanting as far as the custody time limits were
concerned and indeed had it also been shown that they were
deliberately defalcating [sic] on their duty and relying on Section
25 as a stop gap, believing that they could still persuade the Judge
to keep [the applicant] in custody come what may, that might in
itself and in certain circumstances amount to exceptional
circumstances for reconsidering his bail position.
But I am not satisfied from the chronology and the
history of this trial that that is at all the case. I am satisfied
however that no exceptional circumstances did arise at the time that
that application was made; that the regulations on custody time
limits do not out-weigh the serious considerations of Section 25 and
that I consider that it is a completely separate consideration and
that I have separate jurisdiction to deal with it and so
notwithstanding that the custody time limits did expire and that he
might have been entitled to his release in any other case, that is
not the case here and so he must, unless I am persuaded otherwise on
a straightforward application regarding Section 25, then he must find
himself bound by Section 25.”
Judge Sanders recalled that he had recently been
persuaded to grant a “very long adjournment” to June
2003, at the request of the applicant. He indicated that he was
of the view that defendants should not be detained for excessively
long periods of time before their trials took place, but noted:
“On the other hand, everything that was done by me
on his behalf was for the defendant's assistance because it was
explained that he yet needed to get his independent DNA; that there
were papers missing that have not been properly served upon his
defence team and thirdly, since counsel have built up a rapport with
the defendant and counsel who have been briefed fairly late in this
matter ... had herself commitments that precluded her from safely
being able to undertake this work until June.”
He added:
“If your client, by my ruling on the bail matter
and Section 25, feels aggrieved then I would take up [counsel
for the prosecution's] suggestion and bring the case forward come
what may ...”
He continued:
“...two things strike me of interest. Bearing in
mind the sad chronology I also note that the defendant at the outset
had suggested that this was a fabricated tissue of lies by the
complainant for motives that he would explain to the jury in due
course.
A lot of the disclosure arose because of that and he was
offered the opportunity to have his own independent DNA as far back
as last June, an offer that he never took up ... he then spoke in
open court ... of automatism, which again left one ... curious as to
know whether there was a need for DNA and whether he was denying
intercourse took place, which of course to an alleged victim of rape
is an important issue, which of course she is entitled to be aware of
in order that she does not have to go through the ordeal of being
accused of being sexually promiscuous or a liar and such things, and
we still do not know the answer to that.
So what is going on? You have come up with another DNA
application.”
Counsel for the applicant responded that she did not
have full instructions and could therefore not speak on behalf of the
applicant. The judge again reiterated that the trial date for
the applicant might need to be reconsidered, a matter on which the
applicant's counsel undertook to seek instructions. The judge
expressly pointed out that the effect of his ruling on section 25 was
that, if the applicant persisted with his request for a June 2003
trial, he would have to remain in custody for another six months.
The applicant's counsel appeared before the judge
later that day to confirm that the applicant was content that his
trial be held on 2 June 2003, notwithstanding the section 25 ruling.
On 30 January 2003, the applicant issued a claim for
judicial review of the court's decision of 9 December 2002 to refuse
him bail, arguing that his continued detention following the expiry
of the custody time limits was in breach of Article 5 § 3 of the
Convention. The matter 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.
Accordingly, 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(3) of the 1985 Act (see paragraph 46 below) 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 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” (at
paragraph 27). However, as regards the operation of section 25 in
practice, he continued (at paragraphs 34-34):
“Importantly, however, both members of the
[divisional] court decided that section 25(1) (subject only to its
effect in cases where the custody time limit has expired, the
important second issue yet to be addressed) has no substantive effect
upon the way in which bail applications by section 25 defendants
would in any event fall to be determined under the Bail Act. It
serves merely to 'remind' the courts of the risks normally posed by
those to whom section 25 applies and 'will merely assist the court to
adopt a proper approach' in relation to bail in their cases. In my
judgment they were right in that conclusion and it seems to me
unsurprising that the Scots, placed in a similar position by the
Caballero judgment, decided against introducing an
'exceptional circumstances' test, believing that it would 'add
nothing to a clear common law position in Scotland' ...
Whether or not, strictly speaking, section 25 needs to
be read down to achieve the agreed result is a question of little
moment. I myself, however, have a mild preference for Hooper J's
approach. Like him I read the section as placing a burden on the
section 25 defendant. He has to rebut a presumption and if he fails
to do so is to be denied bail. True it is, as [counsel for the
defendant] himself accepted, that in the vast majority of cases the
court will reach a clear view one way or the other whether the
conditions for withholding bail specified by Schedule 1 to the Bail
Act are satisfied. But just occasionally the court will be left
unsure as to whether the defendant should be released on bail—the
only situation in which the burden of proof assumes any relevance—and
in my judgment bail would then have to be granted. That must be the
default position. Section 25 should in my judgment be read down to
make that plain.”
As to the lawfulness of the applicant's continued
detention after the expiry of the custody time limit, Lord Brown
reviewed the facts of the case, noting 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 had 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 was not in itself sufficient to establish the lack
of “special diligence” required for a breach of Article 5
§ 3. Lord Brown concluded (at paragraph 63) that:
“By the very nature of things, the Strasbourg
Court will be looking at the case in a different way from the
domestic court, in particular from a longer and wider perspective.
Strasbourg will have the whole picture before it and will take an
overall view as to whether the reasonable time guarantee has been
exceeded. Grisez illustrates the point well: the ultimate
question addressed by the court was whether 'the total length of the
detention pending trial appear[ed] excessive'. So too in Contrada:
the court took account of the trial court's post-delay offer to
increase the rate of the hearings (akin perhaps to the offer of a
January 2003 trial date in the present case, similarly declined).
The domestic court, by contrast, is inevitably having to decide a
much narrower question and within a shorter time-frame. And it is
doing so within the strict confines of section 22(3) which, despite
the marked similarity between its language and that used in
Strasbourg, in fact imposes a more rigid formula for the extension of
custody time limits than Strasbourg does with regard to the
reasonable time guarantee under article 5(3). 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.
II. 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.”
In R (Quereshi and Others) v Leeds Crown Court
[1999] EWHC Admin 454, the High Court considered the scope for
extending custody time limits. Lord Bingham CJ noted:
“14. ... The court made plain in ex parte
McDonald, as indeed is plain on the face of the statute, that
when seeking an extension or a further extension of a custody time
limit the Crown must show that there is good and sufficient [cause]
for making the extension and that it has acted with all due
expedition. What, however, was not made plain in ex parte McDonald
(because the question did not arise) is that these two provisions are
in my judgment linked. It is not in doubt that the Crown must show
proper grounds for keeping a defendant in prison awaiting trial for a
period longer than the statutory maximum. But the Crown must also
show that such an extension is not sought because it has shown
insufficient vigour in preparing the case for trial. Put crudely, the
prosecution cannot prepare for trial in a dilatory and negligent
manner and then come to the court to seek an extension of the custody
time limit because the prosecution is not ready for trial. Nor, if
the effect of its dilatoriness is to put the defence in a position
where the defence is not ready for the trial can the Crown seek an
extension and show that it has acted with all due expedition. It is
in the ordinary way the business of the prosecution to be ready. If
therefore the Crown is seeking an extension of the time limit it must
show that the need for the extension does not arise from lack of due
expedition or due diligence on its part. It seems clear to me,
however, that the requirement of due expedition or due diligence or
both is not a disciplinary provision. It is not there to punish
prosecutors for administrative lapses; it is there to protect
defendants by ensuring that they are kept in prison awaiting trial no
longer than is justifiable. That is why due expedition is
called for. The court is not in my view obliged to refuse the
extension of a custody time limit because the prosecution is shown to
have been guilty of avoidable delay where that delay has had no
effect whatever on the ability of the prosecution and the defence to
be ready for trial on a predetermined trial date.”
4. “reading down” under the Human Rights Act 1998
50. 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that following the court's
refusal to extend the custody time limit on 7 June 2002 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
of the Convention, which reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
a. The applicant
The
applicant accepted that his detention prior to 7 June 2002 fell
within the respondent State's margin of appreciation. His complaint
related to the period after 7 June 2002, at which point, he
contended, the finding that the prosecution authorities had failed to
act with the requisite diligence entitled him to release pending
trial. In the applicant's view, at this point, the balancing exercise
between the public interest in continued detention and the
presumption of innocence tipped in favour of the latter. He did not
dispute that the charges against him were serious, but argued that
there were a number of flaws in the prosecution case including the
delay in the making of the complaint to the police and inconsistent
telephone record data. He further emphasised that he had no
previous convictions for failing to surrender, for interfering with
witnesses or for otherwise obstructing the course of justice and that
his previous convictions did not support the conclusion that he was
likely to commit further offences while on bail.
The
applicant contended that the requirement in section 22(3) of the 1985
Act (see paragraph 46 above) that the prosecution conduct itself with
“all due diligence” amounted to the same requirement as
“special diligence” in the context of Article 5 § 3.
He recalled the need to interpret the provisions of the Convention in
a manner which was practical and effective and not theoretical or
illusory. It was open to Judge Norris, on 7 June 2002, to find that
there had been prosecutorial delay but that this had not impacted on
the ability to try the applicant within a reasonable time. The
applicant pointed out that under the applicable domestic law at the
time, it was clear that not every finding of a lack of diligence
would result in the domestic courts refusing to extend the custody
time limits (citing R (Quereshi and Others) – see
paragraph 49 above). He submitted that in that case, Lord Bingham
CJ's reference to the requirement for due diligence operating as a
protection for defendants by ensuring that they were not kept in
custody pending trial for longer than was justifiable was identical
to the requirement in Article 5 § 3 that a defendant is entitled
to trial within a reasonable time or release pending trial. The
applicant argued that this must have been the approach adopted by
Judge Norris on 7 June 2002 and that his refusal to extend the
custody time limits must therefore have been due to his conclusion
that the lack of due diligence by the prosecution had adversely
impacted upon the possibility of his trial taking place within a
reasonable time.
The
applicant further argued that Article 5 § 3 should be
interpreted as conferring specific minimum guarantees, capable of
being invoked in the domestic courts. In this context, he noted that
it was of little practical consequence to an individual detained
contrary to Article 5 § 3 against whom the proceedings are
ultimately stayed as an abuse of process that he might eventually
gain financial compensation for excessive pre-trial detention. He
further pointed out that, as he had not been convicted of the offence
with which he was originally charged, this was not a case where his
pre-trial detention could be deducted from the sentence eventually
imposed. He considered that the wording of Article 5 § 3 was
mandatory and referred to the liberty of the individual pending
trial, and not to the ability of an individual to obtain compensation
for excessive pre-trial detention.
It
was further of relevance to note that, had the applicant not had a
previous conviction, he would have been entitled to automatic release
upon the expiry of the custody time limit. In this context, he
emphasised that his previous conviction was imposed in respect of
events which took place in 1988 and he concluded that the list of
“relevant” previous convictions in section 25 was
arbitrary.
The
applicant further contested that his case was not a marginal one as
regards the burden of proof and argued that the views expressed by
Lord Brown on the matter (see paragraph 37 above) were without
the benefit of arguments regarding the applicant's bail situation and
the specific weaknesses of the prosecution case.
The
applicant also disputed the relevance of the judgments cited by the
Government in support of their position (see paragraph 65 below), as
in none of those cases was there a finding that the prosecution had
failed to act with all due diligence and that this failure had
adversely impacted upon the ability to ensure that the trial could
commence within a reasonable time. In particular, he
distinguished the case of Wardle v. the United Kingdom (dec.),
no. 72219/01, 27 March 2003, as it had been decided domestically
prior to the clarifications provided by R (Quereshi and Others)
(see paragraph 49 above).
The
applicant concluded that notwithstanding the failure of the
prosecution authorities to conduct the case with “special
diligence”, the burden was placed on him to show “exceptional
circumstances” even after 7 June 2002. Relying on Ilijkov
v. Bulgaria, no. 33977/96, § 85, 26 July 2001, he
argued that this was not a legitimate approach. He argued that the
Government did not contest that the prosecution had not acted with
due diligence, nor did they seek to explain or detail the delay in
disclosure. They had also failed to explain why those to whom section
25 applied were considered to be at a greater risk of absconding,
committing further offences or otherwise obstructing the course of
justice. The applicant argued that there was no rational basis for
the difference in treatment.
b. The Government
The Government reiterated that the sole complaint made to the Court
by the applicant was that his detention following the refusal to
extend the custody time limits because of the prosecution's failure
to demonstrate due diligence was in violation of Article 5 § 3.
The applicant had not sought to argue before the domestic courts that
the bail decisions had failed to take into account all the facts of
his case or any other relevant considerations in refusing bail. It
was therefore not open to him to seek to go behind the unappealed
findings of the domestic courts that there were sufficient public
interest reasons to justify his continued detention after 7 June
2002.
The
Government argued that there was sufficient judicial control of the
applicant's pre-trial detention. They distinguished the applicant's
case from the cases of Caballero v. the United Kingdom [GC],
no. 32819/96, ECHR 2000 II and S.B.C. v. the United Kingdom,
no. 39360/98, 19 June 2001 as those cases were concerned
with the previous version of section 25, which excluded the
possibility of any consideration by the judge of pre-trial release.
Under the amended section 25, the court had the possibility of
granting bail to any defendant where it was not satisfied that the
defendant would, if released on bail, fail to surrender to custody,
offend, interfere with witnesses or otherwise obstruct the course of
justice. The Government contrasted the case of Ilijkov,
cited above, where the domestic courts had refused to consider
relevant arguments.
The
Government relied on the assessment by the domestic courts as to the
effect of, and correct approach to the interpretation of, section 25.
In particular, they emphasised Lord Brown's explanation of the
burden of proof in bail applications where section 25 applies (see
paragraph 37 above). In this regard, the Government disputed that the
Crown Court had wrongly approached the question of the burden of
proof, arguing that it was clear that as regards each bail
application made by the applicant it was satisfied that, having
regard in particular to the nature of the charge against the
applicant together with his previous convictions for serious
offences, including rape, there were no exceptional circumstances
justifying his release. Accordingly, in the Government's submission,
the case was not a marginal one where the burden of proof was relied
upon by the court in refusing the bail applications.
As to whether there were specific indications of a
genuine requirement of public interest which justified the refusal to
grant bail in the applicant's case, the Government responded in the
affirmative. They pointed out that the applicant had been
charged with very serious offences, namely rape, false imprisonment
and assault, alleged to have occurred over a period of days (see
paragraph 7 above). Further, the applicant had previous convictions,
including for rape and for an offence of violence, and the
seriousness of those offences was reflected in the fourteen year
prison sentence imposed. He was now accused of another rape, alleged
to have been carried out in similar circumstances, where his defence
was unclear and changing. Although the applicant had originally
denied having sexual intercourse with the complainant, DNA evidence
obtained by the prosecution revealed that the child was his. He had
announced an intention to challenge this evidence but had failed to
take up the opportunity to arrange his own DNA test. At one stage he
had referred to a defence of “automatism” but at the
hearing of 9 December 2002, when questioned on the matter by Judge
Sanders, his counsel was unable to provide any further particulars
(see paragraphs 25-26above). In the Government's submission, the
domestic courts had reasonably taken the view that there was a risk
that the applicant would abscond, commit further offences, interfere
with witnesses or otherwise obstruct the course of justice if he were
released. The Government added that the applicant had not drawn
attention to any competing factors in his case which could lead to
the conclusion that the domestic courts had erred in their assessment
of the risk and that bail should have been granted, nor had he sought
to challenge their assessment in a straightforward application for
release under section 25, although he was invited to do so by Judge
Sanders (see paragraph 22 above).
As regards the question whether the domestic
authorities had demonstrated “special diligence”, the
Government submitted that they had, and disputed in particular the
applicant's assertion that the finding on 7 June 2002 that
the prosecution had failed to act with all due diligence and
expedition in relation to disclosure amounted to a general finding
that the authorities had failed to show “special diligence”
as required by Article 5 § 3. They further did not accept
that it could be inferred from the refusal to extend the custody time
limit that the judge had concluded that the applicant had not been,
or could not be, tried within a reasonable time. They noted in
particular that on 7 June 2002, the applicant had been detained for
only six months and that a first trial date set for April 2002 had
been vacated as a result of the applicant's conduct in dismissing and
then reinstating his legal team. A second trial date in June 2002 was
vacated for the same reason. The finding that the prosecution
had failed to act with all due diligence related to disclosure only,
and no other instances of delay were found. The applicant does
not allege that the prosecution caused delay after 7 June 2002
and it was clear that all such delay was caused by the conduct and
the decisions of the applicant. In this regard the Government
emphasised that in assessing whether there has been a breach of
Article 5 § 3, this Court takes into consideration the
whole period the accused has spent in detention and all the
circumstances and special features of his case (citing Punzelt v.
the Czech Republic, no. 31315/96, § 73, 25 April 2000). By
contrast, in considering whether to extend the custody time limit the
domestic court considers only the position at the point at which the
application to extend is made. Accordingly, a failure on the part of
the prosecuting authorities which has led to some element of delay in
the proceedings could result in a refusal to extend the custody time
limit notwithstanding the fact that, if the period of detention were
examined in its entirety and all the facts of the case taken into
account, there would be no violation of Article 5 § 3 (citing
Contrada v. Italy, 24 August 1998, § 67, Reports of
Judgments and Decisions 1998 V; Grisez v. Belgium,
no. 35776/97, § 53, 26 September 2002; and Wardle,
cited above).
The
Government noted that the applicant spent a total of twenty-two
months in pre-trial custody and complained only on the ground that at
some point prior to 7 June 2002 the prosecution had failed to act
with all due diligence as regards disclosure. They emphasised the
seriousness of the charges and the issues raised in the proceedings –
including the reliability of DNA evidence – and noted that the
applicant had pointed to no default on the part of the authorities
other than the matter of disclosure prior to June 2002. The
Government further emphasised that it was apparent that the
prosecution and judicial authorities had on a number of occasions
sought to progress the proceedings both before and after the expiry
of the time limit. It was the applicant's own conduct in
dismissing his legal team on a number of occasions, in making late
applications for disclosure and in refusing the court's offer of a
trial in January 2003 which resulted in the extension of his
detention. The Government considered that in the circumstances of the
case, the authorities did not fail to act with special diligence and
invited the Court to find no violation of Article 5 § 3.
Finally,
the Government disputed that it was arbitrary to treat those who had
a previous conviction for a serious offence differently as regards
access to bail. They considered that the fact that the applicant had
a previous conviction for a serious offence was clearly relevant to
the question whether, when charged with a further serious offence, he
should be granted bail. They relied in this regard on the conclusions
of the Divisional Court (see paragraph 32 above), which were not
appealed to the House of Lords.
2. The Court's assessment
a. General principles
The
Court reiterates that the question whether or not a period of
detention is reasonable cannot be assessed in the abstract. Whether
it is reasonable for an accused to remain in detention must be
assessed in each case according to its special features. Continued
detention can be justified in a given case only if there are specific
indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty laid down in Article 5 of the
Convention (see, among other authorities, Kudła v. Poland
[GC], no. 30210/96, § 110, ECHR 2000 XI; and
Contrada, cited above, § 54).
It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must,
paying due regard to the principle of the presumption of innocence,
examine all the facts arguing for or against the existence of the
above-mentioned demand of public interest justifying a departure from
the rule in Article 5 and must set them out in their decisions on the
applications for release. It is essentially on the basis of the
reasons given in these decisions and of the well-documented facts
stated by the applicant in his appeals that the Court is called upon
to decide whether or not there has been a violation of Article 5 §
3 (see Kudła, cited above, § 110; and Contrada,
cited above, § 54).
The
persistence of reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the lawfulness
of the continued detention, but after a certain lapse of time it no
longer suffices. The Court must then establish whether the other
grounds given by the judicial authorities continued to justify the
deprivation of liberty. Where such grounds were “relevant”
and “sufficient”, the Court must also be satisfied that
the national authorities displayed “special diligence” in
the conduct of the proceedings (see Kudła, cited above, §
111; and Contrada, cited above, § 54). In assessing
whether the “special diligence” requirement has been met,
the Court will have regard to periods of unjustified delay, to the
overall complexity of the proceedings and to any steps taken by the
authorities to speed up proceedings to ensure that the overall length
of detention remains “reasonable” (see, for example,
Contrada, cited above, §§ 66-67; and Chraidi v.
Germany, no. 65655/01, § 42-45, ECHR 2006 XII).
b. Application of the general principles to the facts
of the present case
The Court notes that the applicant's complaint in
these proceedings concerned his detention following the refusal of
the Crown Court on 7 June 2002 to extend the custody time
limit. He argued that the court's finding that the prosecution
authorities had not acted with “due diligence and expedition”
meant that they had not displayed the “special diligence”
required by the Court in the context of Article 5 § 3. He did
not contest that his pre-trial detention prior to 7 June 2002 was in
accordance with Article 5 § 3, nor did he complain that, before
or after 7 June 2002, there were in his case no specific indications
of a genuine requirement of public interest which, notwithstanding
the presumption of innocence, outweighed the rule of respect for
individual liberty laid down in Article 5 of the Convention.
Accordingly, the Court will proceed on the basis that there were
sufficient reasons for the applicant's continued detention and will
limit its examination to whether the national authorities displayed
“special diligence” in the conduct of the
proceedings.
The
period of detention falling to be examined lasted from 7 June 2002
until 25 September 2003, the date upon which the applicant was
released. The period in question thus amounted to one year,
three months and eighteen days. However, the Court will also
bear in mind that as at 7 June 2002, the applicant had already been
in detention for a period of six months (see, mutatis mutandis,
Jablonski v. Poland, no. 33492/96, § 66, 21 December
2000; Kalashnikov v. Russia, no. 47095/99, § 111,
ECHR 2002 VI; and Stašaitis v. Lithuania,
no. 47679/99, § 80, 21 March 2002).
As noted above, of particular significance in the
present case is that in June 2002, the court refused to extend the
custody time limit on the ground that the prosecution had failed to
show due diligence and expedition as regards disclosure (see
paragraphs 13 and 71 above). No further details of this failing have
been provided and no subsequent failing on the part of the
prosecuting authorities has been alleged by the applicant. Like the
Government, the Court does not consider that “due diligence”
in terms of section 22(3) of the 1985 Act (see paragraph 46 above)
can be equated to “special diligence” as required by
Article 5 § 3 of the Convention. Although in R (Quereshi and
Others) (see paragraph 49 above) Lord Bingham CJ explained that
there was in his view no obligation on domestic courts to refuse an
extension where the prosecution was guilty of avoidable delay,
provided that the delay had no effect on the ability of both parties
to be ready for trial on a predetermined date, there is no evidence
in the present case to suggest that the Crown Court on 7 June 2002
proceeded on the basis that the delay in disclosure by the
prosecution had affected the possibility of trial within a reasonable
time. It is to be noted in this regard that by the time of the
court's June 2002 ruling, the trial had already been vacated twice
due to the conduct of the applicant (see paragraphs 11-15 above). In
particular, in finding in June 2002 that the prosecution had not
acted with all due diligence, there is no evidence that the Crown
Court made its assessment by reference to the need for “special
diligence” under Article 5 § 3 or with regard to the
criteria established in the jurisprudence of this Court. Unlike the
approach of the domestic courts to compliance with the 1985 Act, in
assessing compliance with Article 5 § 3, this Court will examine
the proceedings as a whole and assess any particular periods of
inactivity or delay by the authorities within the context of the
overall period of pre-trial detention, with particular regard to any
recognition by the authorities of the length of time already spent in
detention and the need to take additional steps to bring about a more
speedy trial (Grisez, cited above, § 53; Contrada,
cited above, § 67; and Pantano v. Italy, no.
60851/00, §§ 72-74, 6 November 2003).
In
the present case, the failure to act with all due diligence and
expedition as regards disclosure occurred at some time prior to June
2002. At that point, the applicant had been in detention pending
trial for six months, a period of time which is not in itself
unreasonable given the seriousness of the charges. As noted above,
within that six month period, the trial had twice been vacated as a
result of the applicant's conduct (see paragraph 73 above).
The
applicant does not complain about any period of delay following 7
June 2002. As to the reasonableness of the duration of the
applicant's detention as a whole, the Court observes that following
the hearing in June 2002 and the subsequent first request by the
defence for access to telephone and hospital records (see paragraph 15
above), the trial was fixed for November 2002, some five months
later. A hearing scheduled for October 2002 to consider preliminary
matters of law did not take place as the applicant had once again
dismissed his legal advisers (see paragraph 17 above). The trial in
November 2002 subsequently had to be vacated due to difficulties with
the jury (see paragraph 19 above), a matter in respect of which no
blame can be attributed to either party. When the case came before a
different court less than a month later, in December 2002, a trial
date of January 2003 was offered to the applicant. Despite the fact
that the judge made it clear that the applicant would remain in
detention until trial and suggested on several occasions that the
applicant consider the January trial date, the applicant insisted on
postponing the trial until June 2003, some five months after the date
offered, in order to ensure the availability of his preferred counsel
(see paragraphs 23-27 above). It is clear that even by this stage,
the applicant had failed to obtain the DNA evidence which he had
previously indicated he required for his defence and had not yet
clarified the nature of his defence to the charges (see paragraph 25
above). Neither the applicant nor the Government have explained why
the trial in fact commenced on 1 September 2003, and not in June as
previously agreed.
In
the circumstances, the Court is satisfied that the authorities in the
present case displayed special diligence in progressing the
applicant's case and that any delay attributable to them did not, in
the circumstances of the case, exceed what was reasonable (see
Pantano v. Italy, cited above, § 72). In particular, the
Court considers that the applicant substantially contributed to the
overall length of his pre-trial detention through his conduct of his
defence and his choices regarding his legal representation. On
several occasions, he dismissed his legal advisers shortly before
hearings, which resulted in the hearings being postponed. In
particular, his decision to refuse the January 2003 trial date had a
significant impact on the duration of his detention. While the
applicant was entitled to be represented by legal counsel of his own
choosing and no blame can be attributed to him for insisting on the
presence of his preferred counsel at trial, he must nonetheless bear
the reasonable consequences of his choices on the overall length of
his pre-trial detention (see, mutatis mutandis, W. v.
Switzerland, 26 January 1993, § 42, Series A no. 254 A).
The Court further observes that throughout this period, it was open
to the applicant to make a bail application on the traditional
grounds, namely to argue that the conditions for refusing bail were
no longer valid in his case. Indeed, a total of six bail applications
were made on this basis prior to December 2002 (see paragraphs
9-11 and 14-16 above).
In
conclusion, the Court finds that there has been no violation of
Article 5 § 3 of the Convention in the present case.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 TAKEN TOGETHER
WITH ARTICLE 14 OF THE CONVENTION
The
applicant complained under Article 5 § 3 of the Convention taken
together with Article 14 that section 25 of the Criminal Justice and
Public Order Act 1994 unfairly discriminated against those with
previous convictions for certain offences.
Article
14 provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The
Court observes that section 25 applies to those with serious previous
convictions for, inter alia, rape. In the event that a person
to whom the section applies is subsequently charged with another
serious offence, exceptional circumstances must exist to justify the
grant of bail, even when the custody time limit has expired (see
paragraphs 45 and 48 above).
In
the present case, the applicant, who had a previous conviction for
rape and violence for which he had been sentenced to fourteen years'
imprisonment, was charged with a second offence of rape and indecent
assault. The Court notes in particular that in the applicant's case,
the previous convictions arose from an incident which was factually
very similar to the alleged offences which took place in 2000 and can
therefore be considered comparable both in nature and degree of
seriousness to the offences charged in 2001 (see paragraph 64 above
and compare and contrast Clooth v. Belgium, 12 December 1991,
§ 40, Series A no. 225).
In
the circumstances, the Court does not consider that the applicant can
claim to be in an analogous position to a defendant charged with the
same offence who does not have a previous similar offence.
The
Court therefore concludes that the applicant's complaint under
Article 5 § 3 taken together with Article 14 is manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It must therefore be rejected pursuant to Article 35 §
4.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint under Article 5 § 3
admissible and the remainder of the application inadmissible;
Holds that there has been no violation of
Article 5 § 3 of the Convention.
Done in English, and notified in writing on 21 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
