England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE (DIVISIONAL) COURTS

		Royal Courts of Justice Strand, London, WC2A 2LL
		16th April 2003

Lord Justice Kennedy:

1. We have before us a claim for judicial review, and an application for Habeas Corpus, both of which relate to the decision of Judge Sanders, sitting in the Crown Court at Harrow on 9^th December 2002 that the claimant should not be released on bail despite the expiration of the custody time limit which had been applicable to his case.

Background Facts.

2. It is alleged that over a period of days in mid-September 2000 the claimant raped a woman in her flat in London, 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 6^th December 2001 the claimant was arrested, interviewed and charged with rape, false imprisonment and indecent assault. On 7^th December 2001 his case was sent for trial at the Central Criminal Court pursuant to section 51 of the Crime and Disorder Act 1998.
3. On 17^th December 2001 an application for bail was made to Judge Goldstein. The claimant had a previous conviction for rape, and for that offence and another offence of violence he had served 14 years imprisonment, so in accordance with section 25 of the Criminal Justice and Oublic Order Act 1994, as amended, the judge could only grant bail if he was satisfied that there were "exceptional circumstances" which justified that course. He was not so satisfied, and bail was refused.
4. The case was transferred to Woolwich Crown Court and there on 28^th January 2002 the claimant was arraigned on an indictment which contained three counts, alleging rape, false imprisonment and indecent assault. He pleaded not guilty to all counts and a trial date was fixed for 8^th April 2002. A further application for bail was refused.
5. On 22^nd March 2002 the claimant dispensed with the services of his counsel and solicitors, and served his own defence statement. The matter was mentioned before Judge Norris who, without altering the trial date, gave the claimant time to reconsider his position. On 3^rd April 2002 the claimant indicated that he would like to have the services of his former legal team, and the judge re-instated the representation order. Valuable time had been lost, so the trial date was vacated and re-fixed for Thursday 6^th June 2002. Once again there was an application for bail, and it was refused.
6. At the end of May 2002 the claimant again dispensed with the services of his lawyers, but on 6^th June 2002 when the case was called on he was represented, by leading and junior counsel. After the midday adjournment the claimant once again dispensed with the services of his lawyers. Next day he asked for his legal team to be re-instated. That was done. Defence counsel then said that because there had been delay in disclosure an application to stay would be made, and it was decided to hear that application on the next day.
7. Under the Prosecution of Offences (Custody Time Limits) Regulations 1987 S.I. 299, as amended, 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 sending for trial and the start of the trial shall be 182 days, subject to certain deductions which do not apply in this case. The regulations were made pursuant to section 22 of the Prosecution of Offences Act 1985, and subsection 11A of that section provides that the start of a trial on indictment shall be taken to occur when the jury is sworn. The period of 182 days from 7^th September 2001 was due to expire at midnight on 7^th June 2002, so the prosecution applied under section 22(3) of the 1985 Act to extend the custody time limit. That application was refused because the court was not satisfied that the prosecution had acted with all due diligence and expedition in relation to disclosure. A further application for bail was refused because, pursuant to section 25(1) of the Criminal Justice and Public Order Act 1994, in the light of the claimant's previous conviction, the judge was of the opinion that it could only be granted if the court was satisfied that there were exceptional circumstances to justify it, and the court was not so satisfied.
8. A defence request for access to hospital and telephone records, made for the first time on 8^th June 2002, resulted in the case being stood out of the list, and re-listed for mention on 21^st June 2002. It was then re-fixed for 4^th November, and a further application for bail was refused.
9. On 20^th August 2002 an application for bail was made to Keith J in the High Court and that application was refused.
10. The Crown Court continued to monitor disclosure, and on 10^th October 2002 the case was listed to consider two preliminary matters of law. The claimant once again dispensed with the services of his lawyers, and the representation order was revoked. In the circumstances it was not possible to deal with the issues of law, which had to be put over to be dealt with on the first day of the trial.
11. On 4^th November 2002 the claimant was acting in person, but Mr Nick Price QC was in attendance, having been appointed by the court to cross-examine the complainant. There were issues in relation to discovery, abuse of process, admissibility of photographs, and the use of screens, and the claimant from time to time absented himself from the court room. Eventually on Wednesday 6^th November 2002 the court began to empanel a jury, but one of the panel had been at school with the claimant, and another member of the panel, who was related to him, made an observation in public which made it necessary to release the entire panel. Subsequently the claimant once again applied for and was granted representation, and on 15^th November 2002, because he was considered to be well known in the Woolwich area, the case was transferred to the Harrow Crown Court. At that court on Thursday 5^th December 2002, before Judge Sanders, the trial was fixed for Monday 2^nd June 2003 in order to meet the needs of the defence in relation to preparation and availability of counsel. The court was prepared to hear the case in January 2003. It was given a time estimate of three to four weeks. An application for bail was commenced, and was concluded on Monday 9^th December when the application was refused. After bail was refused the claimant was given a further opportunity to opt for trial in January, but he declined to do so.

These Proceedings.

12. It is that decision of 9^th December 2002 which is challenged in these proceedings for judicial review, which were commenced on 30^th January 2003. The application for permission to seek judicial review was considered on paper by Collins J on 6^th February 2003. He referred it to an oral hearing, and permission was granted by Jackson J on 26^th February 2003. On 20^th March 2003 the solicitors now acting for the claimant indicated that at this hearing the claimant would also apply for a writ of Habeas Corpus, contending that since the expiration of the custody time limit on 7^th June 2002 his custody has been illegal.

Issues.

13. Five issues arise for consideration in this case, namely –

(1) the effect of section 29(3) of the Supreme Court Act 1981.

(2) Whether, bearing in mind that what the claimant is seeking is release from custody, the arguments addressed to us should be addressed to a High Court Judge.

(3) Whether the amendment to regulation 6(6) of the 1987 Regulations is, in terms of domestic legislation, ultra vires.

(4) What is the proper approach to the wording of section 25 of the 1994 Act, having regard to (a) the right to liberty enshrined in Article 5 of the European Convention on Human Rights, and (b) European and domestic jurisprudence as to the burden of proof.

(5) Whether, in the context of this case, the judge's reliance on section 25(1) of the 1994 Act, after the expiration of the custody time limit violated the claimant's right to trial within a reasonable time as laid down by Article 5(3) of the Convention.

Issues 1 and 2.

14. The first two issues I can deal with quickly because they are not in dispute. Section 29(3) of the 1981 Act excludes from the jurisdiction of this court the jurisdiction of the Crown Court "in matters relating to trial on indictment". At the heart of these proceedings there is the complaint by the claimant that from 7^th June 2002 onwards all of the judges who have considered his applications for bail have relied upon the amended wording of Regulation 6(6) of the 1987 Regulations when deciding to refuse bail after the expiration of the custody time limit. The Regulations were made, and amended, pursuant to power given to the Secretary of State in section 22(1) of the 1985 Act, and section 22(13) provides that for the purposes of section 29(3) of the 1981 Act "the jurisdiction conferred on the Crown Court by this section shall be taken to be part of its jurisdiction in matters other than those related to trial on indictment." That, as it seems to me, is clear statutory authority for the proposition that in dealing with the issues which arise in this case we are not inhibited by section 29(3) of the 1981 Act. Were it necessary to do so I would reach the same conclusion by another route, roughly as envisaged by Mr James Turner QC for the claimant in paragraphs 35 to 40 of his skeleton argument of 26^th March 2003, and, as he rightly points out in paragraph 42 of his skeleton argument, the claimant's application for a writ of Habeas Corpus, which is made on the same grounds, cannot be inhibited by reference to section 29(3), so I need say no more about the first issue.
15. The second issue was raised by Collins J, but, as Mr Turner points out, an application for bail having been made to Keith J in August 2002 the claimant is not entitled to make a fresh application for bail to any other High Court Judge or to a Divisional Court (see RSC Order 79, Rule 9 (12)). That does not inhibit the jurisdiction of the Crown Court (see R v Reading Crown Court ex parte Malik [1981] QB 451) and, as Mr Turner submits, it is desirable to have some of the issues he has raised considered by this court.

Ultra Vires.

16. The next issue which I propose to consider is the ultra vires issue which Mr Turner dealt with at the end of his submissions to us.
17. Section 4 of the Bail Act 1976, so far as material, reads as follows –

"(1) A person to whom this section applies shall be granted bail except as provided in Schedule I to this Act (Schedule I deals with exceptions to the right to bail).

(8) This section is subject to section 25 of the Criminal Justice and Public Order Act 1994 (exclusion of bail in cases of homicide and rape).

(8A) Where a custody time limit has expired this section shall have effect as if, in subsection (1) the words "except as provided in Schedule I to this Act" were omitted."

Mr Turner submits, rightly, that when subsections 1 and 8A are read together the result is that a defendant in respect of whom the custody time limit has expired must be granted bail, but both of those subsections are part of section 4, and by subsection 8 the whole of section 4 is made subject to section 25 of the 1994 Act. Mr Turner tried in vain to persuade us that subsection 8 is in tension with subsections 1 and 8A. It is not. It has priority.

18. That conclusion disposes of the ultra vires argument which Mr Turner also advanced by reference to the 1987 Regulations and the statutory power under which those regulations were made. That power is in section 22 of the 1985 Act which, so far is material, reads –

"(1) The Secretary of State may by regulations make provision, with respect to any specified preliminary stage of proceedings for an offence, as to the maximum period –

(a) to be allowed to the prosecution to complete that stage;

(b) during which the accused may, while awaiting completion of that stage, be –

(i) in the custody of a magistrates' court; or

(ii) in the custody of the Crown Court

in relation to that offence.

(2) Regulations may, in particular –

(a) be made so as to apply only in relation to proceedings instituted in specified areas; or proceedings of, or against persons of, specified classes or descriptions;

(b) make different provisions with respect to proceedings instituted in different areas or different provisions with respect to proceedings of, or against persons, of different classes or descriptions; …

(d) provide for the Magistrates' Courts Act 1980 and the Bail Act 1976 to apply in relation to cases to which custody or overall time limits apply subject to such modifications as may be specified (being modifications which the Secretary of State considers necessary in consequence of any provision made by the regulations) …"

Mr Turner submits that section 22(2)(d) confers power to frame regulations so as to apply the Bail Act, but not so as to exclude it, but, as I have demonstrated, the key provision in the Bail Act operates subject to section 25 of the 1994 Act and, as Mr Alan Newman QC for the Crown Prosecution Service submits in his skeleton argument, the amendment to regulation 6(6) which Mr Turner seeks to impugn does no more than reflect section 4(8) of the Bail Act. That regulation reads –

"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."

The words in italics were added by way of amendment, but, as Mr Newman submits, having regard to the clear provisions of the Bail Act the regulation would have operated in the same way even if it had not been amended. The general power to make regulations was set out in section 22(1) with indications in section 22(2) as to the particular ways in which the power to regulate might be used. Mr Turner submits that there is no specific power to frame the regulation so as to apply section 25 of the 1994 Act, and that such a power was necessary if the claimant was to be deprived of his right to liberty at the end of his custody time limit. In support of that proposition he invited our attention to the decision of Toulson J in General Mediterranean Holdings SA v Patel and another [2000] 1 WLR 272. In my judgment that decision is of no real assistance in the present case. It dealt with the question of whether Civil Procedure Rule 48.7(3) was ultra vires because it undermined legal professional privilege. Here we are dealing with clear statutory provisions which regulations have been amended to reflect, and in my judgment the enabling provisions of section 22 are wide enough to permit the Secretary of State to make the changes that were made.

19. Mr Turner also invited our attention to the wording of Regulation 5(6B) which provides –

"Where an accused is sent for trial under section 51 of the Crime and Disorder Act 1998 ("the 1998 Act"), the maximum period of custody between the accused being sent to the Crown Court by a magistrates' court for an offence and the start of the trial in relation to it, shall be 182 days less any period, or the aggregate of any periods, during which the accused has, since that first appearance for the offence, been in the custody of the magistrates' court."

As Mr Turner submits, that regulation read alone clearly prescribes a maximum period and he submits that there is tension between that regulation and Regulation 6(6) which is set out in paragraph 18 above. In my judgment the two regulations do have to be read together, and when read together, as a matter of domestic law it is clear that the provisions of section 25 of the 1994 Act will continue to have effect after the expiration of the custody time limit.

Section 25 and the Right to Liberty.

20. As noted in paragraph 17 above, section 4(1) of the Bail Act 1976 provides that a person to whom the section applies (and it applies to all accused brought before a magistrates' court or a Crown Court) shall be granted bail except as provided in schedule I to the Act.
21. So, as Lord Bingham CJ said in R v Manchester Crown Court ex parte McDonald [1991] 1 Cr App R 409 at 412 E "the general presumption in favour of liberty is reflected in section 4(1) of the Bail Act 1976".
22. Schedule I Part 1 relates to defendants accused or convicted of imprisonable offences, and paragraph 2 of that Part states –

"The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if granted bail (whether subject to conditions or not) would –

(a) fail to surrender to custody, or

(b) commit an offence while on bail, or

(c) interefere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person."

23. The next few paragraphs of that Part deal with other circumstances in which the defendant need not be granted bail. Paragraph 8 restricts the conditions which can be imposed if bail is granted, and paragraph 9 requires that when taking the decisions required by paragraph 2 or 2A –

"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) except in the case of a defendant whose case is adjourned for enquiries or a report, 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 5(2A) of the Act requires that when a court grants bail, after hearing representations from the prosecutor in favour of withholding bail then the court shall give reasons for granting bail.

24. Before us Mr Turner's only complaint about the provisions of the 1976 Act relates to the impact of section 4(8), which renders section 4 subject to section 25 of the 1994 Act. Otherwise it is accepted that the Bail Act does so far as is practicable safeguard the right to liberty enshrined in Article 5 of the European Convention, and has proper regard to the presumption of innocence, but also has regard to the public interest. In W v Switzerland [1993] 17 EHRR 60 the European Court said at 79 that –

"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."

That is precisely what, under the Bail Act, a court has to determine, and the provisions of the Act which I have cited direct the attention of the court to relevant matters.

25. When a court has to consider the question of bail any objection to it will usually be advanced by the prosecution, relying on paragraph 2 of schedule I. Normally the objection will be advanced without evidence being called, but information will be given to the court with the object of satisfying the court that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would, for example fail to surrender to custody. In Re Moles [1981] Criminal Law Review 170 it was recognised that strict rules of evidence are inherently inappropriate when a court has to decide whether there are substantial grounds for believing something. But it is worth observing that the statute does not require the prosecution to assume any burden of proof. All that matters is that the court should be satisfied, and that state of mind may result from, for example, something said by the defendant himself. He may, for example, make it clear that if granted his liberty he will not attend at his trial.
26. As to the standard of proof, it is not really appropriate to attempt to apply the criminal standard to the evaluation of risk, and the statutory words do not attempt to do so, but in R v Governor of Canterbury Prison ex parte Craig [1991] 2 QB 195 the Divisional Court considered the power to extend custody time limits if satisfied that there was good and sufficient cause. At 205 F Watkins LJ said –

"In our view the standard to be applied is that of the balance of probabilities. That is the standard for determining bail applications. It should apply equally, we think, to related interlocutory questions of the sort here in question."

In R (D.P.P.) v Havering Magistrates' Court [2001] 2 Cr App R 12 this court was concerned with the power of a justice of the peace under section 7(5) of the Bail Act to remand in custody a defendant arrested for breach of conditions of his bail "if of the opinion" that the person arrested is not likely to surrender to custody, or has broken or is likely to break a condition of his bail. Again the question arose as to the standard of proof required and at paragraph 40 Latham LJ said –

"It seems to me that the justice is simply required by the statute to come to an honest and rational opinion on the material put before him. In so doing he must bear in mind the consequences to the defendant, namely the fact that he is at risk of losing his liberty in the context of the presumption of innocence….. Article 5 does not in my judgment require any different approach."

Latham LJ referred to Re Moles (supra) and found nothing in Article 5, or in the authorities to which the court had been referred to suggest that in itself reliance on material other than evidence which would have been admissible at a criminal trial would be a breach of the protection required by Article 5. But he recognised that the justice, in forming his opinion, must take proper account of the quality of the material upon which he is asked to adjudicate. This, as it seems to me, is all of some significance when one turns to consider the impact of section 25 of the 1994 Act.

27. It was common ground before us that even before section 25 was enacted very few of those to whom that section applies would be likely to be granted bail. Those to whom the section applies are identified in subsections 2 and 3 which provide –

"(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; or

(e) attempted rape.

(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 or, if he was then a child or young person, to long-term detention under any of the relevant enactments."

In almost every case the circumstances would be such as to satisfy a court that one or more of the schedule I exceptions to the right to bail applied, but in some cases bail was granted with unfortunate results. Further offences were committed by those on bail, witnesses were interfered with or defendants did not surrender to custody, so Parliament enacted section 25 which, in its original form, simply forbade the courts to grant bail to those to whom this section applies. That complete removal of judicial discretion was challenged before the European Court in Caballero v United Kingdom [2000] 30 EHRR 643 and the government then conceded that as originally enacted section 25(1) violated Article 5(3). It was pointed out by the government that the purpose of section 25 was "to avoid the unacceptable risk of an error of judgment on the part of the courts in section 25 cases, with the serious consequences for the alleged victims or for the proper administration of justice that would entail" but the Commission observed, at page 651 paragraph 40 that –

"Judicial control of interference by the executive with the individual's right to liberty is an essential feature of the guarantee embodied in Article 5(3) the purpose being to minimise the risk of arbitrariness as regards the pre-trial detention of accused persons."

The court accepted the government concession which was reiterated in SBC v UK 19^th September 2001, and in that case the court examined the reasoning of the Commission in Cabellero, saying at paragraph 22 –

"It not being disputed that Mr Cabellero fell within the scope of section 25 of the 1994 Act, the Commission found that the possibility of any consideration by a Magistrate of his pre-trial release on bail had been excluded in advance by the legislature by section 25 of the 1994 Act. This removal of the judicial control of pre-trial detention required by section 5(3) of the Convention was found by the Commission to amount to a violation of that Article."

28. At paragraphs 23 and 24 that reasoning was endorsed, so section 25(1) was amended to restore judicial control. As amended it reads –

"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."

Mr Turner submits that the amendment is insufficient to restore effective judicial control. He points out, rightly, that the section overrides section 4 of the Bail Act in relation to a limited category of alleged offender (see section 4(8) of the 1976 Act), but 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 of the relevant circumstances and, in an appropriate case, to over ride the presumption.

29. In support of his submissions Mr Turner drew our attention to the decision of the European Court in Ilijkov v Bulgaria 10^th July, 2001 where the applicant was arrested in October 1993 on charges of forgery and fraud. Article 152 of the Bulgarian Code of Criminal Procedure provided that "detention on remand shall be imposed" in cases where charges concerned crimes punishable by ten years imprisonment or more, but Article 152(2) provided that in such cases detention on remand "shall not be imposed if there is no danger of the accused evading justice or committing further offences". Obviously there are similarities between Article 152 of the Code and section 25 of the 1994 Act but, as Mr Lewis for the Secretary of State points out, Article 152(1) selects the category of those to whom the Article applies by reference only to the gravity of the offence charged, whereas section 25 looks also at the proven record of the alleged offender, and the words in Article 152(2) do not mirror those added by way of amendment to section 25(1). In fact the Bulgarian Supreme Court adopted a strict approach to Article 152(2), holding that where the Article applied detention was mandatory "the only exception being where it was clear beyond doubt that there was no danger of the accused absconding or re-offending. In the Supreme Court's view such would only be the case where, for example, the accused was seriously ill, elderly or in any other condition which excluded the danger of his or her absconding or re-offending." The European Court pointed out that the gravity of the charges cannot by itself serve to justify long periods of detention, and went on to criticise the narrowness of the approach taken by the domestic courts in response to Article 152(2). The finding that there were no exceptional circumstances warranting release was, said the European Court at paragraph 83 of its judgment –

"Not based on an analysis of all pertinent facts. The authorities regarded the applicant's arguments that he had never been convicted, that he had a family and a stable way of life, and that after the passage of time any possible danger of collusion and absconding had receded, as irrelevant."

The court was critical of the burden of proof cast upon the detained person, and in paragraph 87 found that –

"By failing to address concrete relevant facts and by relying only on a statutory presumption based on the gravity of the charges and which shifted to the accused the burden of proving that there was not even a hypothetical danger of absconding, re-offending or collusion, the authorities prolonged the applicant's detention on grounds which cannot be regarded as sufficient."

Mr Turner submits that similar criticisms can be made of the decision of Judge Sanders which is under attack in the present case, but noticeably before us very little time was devoted to an analysis of what happened in the Crown Court.

30. Mr Turner also invited our attention to the recent decision of Elias J in R (Sim) v Secretary of State for the Home Department [2003] EWHC 152 (Admin). The claimant was given an extended sentence and after release, but during the period of licence, he was recalled by the Secretary of State and returned to prison. It then became the obligation of the Parole Board under section 44A(4) of the Criminal Justice Act 1991 to direct his release "if satisfied that it is no longer necessary for the protection of the public that he should be confined (but not otherwise)". On his behalf it was submitted that the section infringed Article 5(1) because it imposed a burden of proof on him to satisfy the Parole Board that it was no longer necessary to continue the detention, whereas it ought to be for the Parole Board to be satisfied that detention was necessary. In R v Lichniak [2002] 3 WLR 1834 Lord Bingham said at paragraph 16 –

"I doubt whether there is in truth a burden of proof on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the Board to consider all the available material and form a judgment."

Elias J cited that passage and continued at paragraph 50 of his judgment –

"I accept that the concept of burden of proof is an inappropriate term, but nevertheless it does seem to me that it is perfectly apposite to describe the position in terms of there being a presumption that the prisoner will be detained unless the Parole Board is satisfied to the contrary."

For my part I question the value of any reference to the burden of proof, because, as it seems to me, the situation is as indicated by Lord Bingham, but the issue in the case of Sim, identified by the judge at paragraph 51, was "whether it is a breach of the Convention to frame the presumption or default position in favour of detention rather than liberty." In Comerford v UK (Applic No 29193/95, 9^th April 1997) the European Commission, and in Lichniak, the House of Lords had found there to be no breach when the same issue was raised, in the first case by a claimant detained at Her Majesty's pleasure, and in the second case by one serving a mandatory life sentence, but Elias J distinguished those authorities on the basis that an extended sentence offender on licence "is not on licence as an alternative to prison, he is on licence as an alternative to liberty." That led the judge to conclude that the Parole Board needed to be satisfied that the risk to the public cannot be dealt with appropriately by leaving the prisoner in the community, and that section 44A should be read in such a way as to produce that result. In my judgment the situation of an accused who falls within the scope of section 25 of the 1994 Act is so far removed from that considered by the court in Sim that the decision is really of no assistance in the present case.

31. Hutchison-Reid v UK application No 50272/99, 9^th February 2003, was decided by the European Court a few days after judgment was delivered in Sim. In that case the applicant had been convicted of homicide in 1967, at the age of 17, and was detained in a hospital under a Hospital Order. He was also subject to a restriction order. Under section 64(1) of the Mental Health (Scotland) Act 1984 he was entitled to appeal to the Sheriff against his continued detention in hospital, and the section provided that –

"The Sheriff shall direct the absolute discharge of the patient if he is satisfied –

(a) that the patient is not, at the time of the hearing of the appeal, suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment."

The Sheriff found the applicant to be treatable, and therefore detainable, despite evidence to the contrary, and the applicant alleged a violation of Article 5(4) which provides-

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

The applicant complained that in proceedings for release under section 64 it was for him to satisfy the Sheriff that he was no longer suffering from a mental disorder requiring his detention in hospital for medical treatment whereas under Article 5 it was for the State to justify the deprivation of liberty. The European Court observed that there is no direct Convention case law governing the onus of proof in Article 5(4) proceedings "though the imposition of a strong burden of proof on applicants held in detention on remand to show that there was no risk of absconding has previously been taken into account in finding procedures for a review of that detention incompatible with the Article 5(4)." There was then a reference to two Bulgarian cases, one of which was Ilijkov. It was said that it is implicit in the case law that it is for the authorities to prove that an individual satisfies the conditions for compulsory detention rather than the converse. For the government it was pointed out that in practice "the authorities always led evidence in support of continued detention and that, once evidence was before the court, issues of the burden of proof were largely irrelevant for the Sheriff in reaching his findings on the material before him." In the instant case there was clear evidence of serious mental disorder and of the risk of re-offending in relation to which the European Court found that the conclusions of the Sheriff "were reached on an assessment of the evidence as a whole and the burden of proof does not appear to have played any role." But there remained the question of whether the illness was amenable to treatment, and as to that the medical experts differed, so, as the European Court noted at paragraph 72 of its judgment –

"In reaching his decision to reject his appeal, the Sheriff stated, in terms referring to the onus of proof placed on the applicant by section 64, that he had not been satisfied that the applicant was not now suffering from a mental disorder of a nature or degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment."

The court went on to say –

"In those circumstances the Court is not persuaded that the onus of proof placed on the applicant in the proceedings by the applicable legislation was irrelevant to the outcome."

In paragraph 73 the court found –

"That in so far as the burden of proof was placed on the applicant in his appeal to establish that his continued detention did not satisfy the conditions of lawfulness it was not compatible with Article 5(4) of the Convention."

So the critical factor was the structure of the statutory test in section 64, coupled with judicial reliance in relation to one issue on the onus of proof, and that seems to me to be of limited value in considering the impact of section 25 of the 1994 Act in relation to the present case.

32. I accept that the amendment to section 25(1) cannot be found to be compliant with Article 5(3) if the words exceptional circumstances" are too narrowly construed, or if the court sets too high a threshold at which it is prepared to declare itself satisfied that exceptional circumstances do exist. As to what can constitute exceptional circumstances assistance can be obtained from the decision of the Court of Appeal Criminal Division in R v Offen and others [2001] 2 All E R 154 where the court was considering the provisions of section 2 of the Crimes (Sentences) Act 1997 (now section 109 of the powers of Criminal Courts (Sentencing) Act 2000) which requires that if certain criteria are satisfied the court shall impose a life sentence "unless the court is of the opinion that there are exceptional circumstances … which justify its not doing so." In R v Kelly [2000] QB 198 Lord Bingham CJ had considered the use of the word exceptional in that context, and said at 208 –

"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

Lord Bingham went on to say that if the court is to be relieved of its duty to impose a life sentence the circumstances must not only be exceptional but such as in the opinion of the court, having regard to the Parliamentary purpose, would justify it in not imposing a life sentence. In Offen Lord Woolf CJ at paragraph 72 pointed out that the Parliamentary purpose also had to be borne in mind when deciding whether a situation is exceptional, and at paragraph 97 he said –

"Section 2 of the 1997 Act establishes a norm. The norm is that those who commit two serious offences are a danger or risk to the public. If in fact, taking into account all the circumstances relating to a particular offender, he does not create an unacceptable risk to the public, he is an exception to this norm."

Exactly the same approach, as it seems to me, can and should be adopted in relation to section 25(1) of the 1994 Act. It 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.

33. Any attempt to illustrate the sort of circumstances which might properly, for the purposes of section 25(1), be regarded as exceptional may do little to assist because the facts of individual cases are likely to differ so much, but, for example, a man arrested for the manslaughter of an intruder into his home who died in the course of an unarmed struggle would fall within the scope of section 25 if he had a conviction many years previously for an attempted rape. If he had otherwise a good record, was in steady employment, and had a secure home, the court might well find that the circumstances were such to justify bail. In accordance with the general approach to bail it would seek to explore issues raised without formality. In reality it would no doubt usually be the accused or his representative who would draw the attention of the court to circumstances which the court might regard as exceptional, because he would be likely to have most of the relevant information, but in such a context, as it seems to me, little is achieved by dwelling on who has the burden of proof. What matters is whether at the end of the day the court is satisfied that there are exceptional circumstances which justify the grant of bail. In R (McCann) v Manchester Crown Court [2002] 3 WLR 1313 the House of Lords considered section 1 of the Crime and Disorder Act 1998, which enables a court to make an anti-social behaviour order if it is proved (a) that a person has acted in a particular way, and (b) that such an order is necessary to protect persons in the area likely to be harassed. As Lord Steyn pointed out at paragraph 37, magistrates have to be sure as to (a), but –

"the inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation."

That was followed by this court in R (M) v Inner London Crown Court [2003] EWHC Admin 301 in relation to a parenting order, and it is perhaps a more accurate description of the judicial function in relation to an application for bail than to say, as Watkins LJ said in Craig that the balance of probability is the standard for determining bail applications, but the two approaches do seem to lead to the same conclusion. If when considering an application for bail in a case to which section 25 applies a court does approach the wording of section 25 in the way that I have suggested then, as it seems to me, the fact that section 25 over rides section 4 of the Bail Act will not be a matter of any great moment, because section 25 will merely assist the court to adopt a proper approach in relation to the question of bail, and the approach will be in conformity with the requirements of Article 5. That is the conclusion which commended itself to the Law Commission in Part VIII of its helpful report on Bail and the Human Rights Act 1998, and for which Mr Lewis for the Secretary of State and Mr Alan Newman QC contended when the matter was before us. Mr Newman submitted in the alternative that if on first reading we were to conclude that section 25(1) violates Article 5(3) because it requires an accused to establish exceptional circumstances, then we should consider whether it should be read as imposing no more than an evidential burden of proof. For the reasons I have given I do not find it necessary to follow that route. Nor do I find it necessary to consider those authorities which deal with situations where by statute a burden of proof is directly imposed upon a defendant if he is to escape criminal liability.

Expiration of Custody Time Limit.

34. Although I have spent some time in considering the relationship between section 25, the Bail Act and Article 5 it was the expiration of the custody time limit which Mr Turner put at the forefront of his submissions. Plainly the object of the custody time limit regime is to ensure that anyone arrested and charged with an offence is brought to trial in a defined period. The prescribed time scale should be sufficient in most cases, but it can be extended, pursuant to section 22(3) of the Prosecution of Offences Act 1985. However, that subsection does not enable the time limit to be extended unless the court is satisfied that there is some good and sufficient cause, and the prosecution has acted with all due diligence and expedition. In R v Manchester Crown Court ex parte McDonald [1999] 1 Cr App R 409 Lord Bingham CJ said at 414 D that, in relation to the latter requirement –

"What the court must require is such diligence and expedition as would be shown by a competent prosecutor conscious of his duty to bring the case to trial as quickly as reasonably and fairly possible. In considering whether that standard is met, the court will of course have regard to the nature and complexity of the case, the extent of preparation necessary, the conduct (whether cooperative or obstructive) of the defence, the extent to which the prosecuter is dependent on the cooperation of others outside his control and other matters directly and genuinely bearing on the preparation of the case for trial."

Mr Turner reminds us that in this case on 7^th June 2002 the prosecution failed to obtain an extension of the custody time limit because it failed to satisfy Judge Norris that it had acted with all due diligence and expedition. Were the claimant not within the scope of section 25 of the 1994 Act he would at the expiration of the custody time limit have been entitled to bail, pursuant to regulation 6(6) of the 1987 Regulations (see paragraph 18 above). But it is in my judgment important to recognise what, prior to amendment, Regulation 6(6) did not do. It made no attempt to balance against the claimant's right to liberty the public interest in ensuring that those charged with serious offences are available to be tried, do not commit other offences whilst awaiting trial, and do not interfere with witnesses. If the time limit expired those considerations were simply swept aside. The alleged offender rightly held in custody on day 181 because there were substantial grounds for believing, for example, that he would fail to surrender to custody, did not a few hours later suddenly become less likely to abscond. So the requirement to grant bail was and is prescribed to safeguard the right to liberty of the alleged offender, but also to act as a sanction which will induce prosecuting authorities to meet custody time limits, and when enacting section 25 of the 1994 Act Parliament decided that where certain serious offences are alleged against those who have committed serious offences in the past the use of such a sanction without regard to the public interest is inappropriate. No one can really complain about that, especially as Article 5(3) safeguards every alleged offender's right "to trial within a reasonable time or to release pending trial". In Punzelt v Czech Republic [2001] 33 EHRR 1159 the European Court considered that part of Article 5(3), saying at paragraph 73 –

"… the reasonableness of the length of detention must be assessed in each case according to its special features. Continued detention may be justified in a given case only if there are clear indications of a genuine public interest which, notwithstanding the presumption of innocence, outweighs the right to liberty. It falls in the first place to the national judicial authorities to examine the circumstances for or against the existence of such an imperative interest, and to 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 facts established 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) of the Convention. The persistence of a 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 continue to justify the deprivation of liberty. Where such grounds were "relevant" and "sufficient" the court must also ascertain whether the competent national authorities displayed "special diligence" in the conduct of the proceedings."

It is the final sentence of that citation on which Mr Turner particularly relies. He submits that where a prosecuting authority has been unable, for the purposes of section 22(3) of the 1985 Act to establish that it has acted with all due diligence and expedition then, when the court turns it mind to the requirements of Article 5(3), it must find that the competent national authorities failed to display special diligence in the conduct of the proceedings. In my judgment the proposition is attractively simple but misleading, because everything depends on the circumstances of the case. The time span covered by Article 5(3) is different from that laid down for the purposes of custody time limits. It extends from the first remand into custody until the delivery of the judgment of the court (see paragraph 70 of the judgment in Punzelt), and all of the decisions of the European Court to which our attention was invited were made after the expiration of that period. In several cases, such as for example in Contrada v Italy 24^th August 1998 there were failures at times by the prosecuting authorities or by the courts, but the European Court did not find those failures to be such as to constitute a lack of special diligence amounting to a violation of Article 5(3). In Dyer v Watson [2002] 1 WLR 1488 the Privy Council considered two cases where delays awaiting trial were said to contravene Convention rights. At paragraph 30 Lord Bingham noted that the Article 6(1) right to trial within a reasonable time has its counterpart in the reasonable detention provision in Article 5(3). One of the areas calling for particular enquiry in relation to any alleged contravention of Article 6 is the conduct of the defendant. As Lord Bingham said at paragraph 54 –

"In almost any fair and developed legal system it is possible for a recalcitrant defendant to cause delay by making spurious applications and challenges, changing legal advisers, absenting himself, exploiting procedural technicalities, and so on. A defendant cannot properly complain of delay of which he is the author. But procedural time-wasting on his part does not entitle the prosecuting authorities themselves to waste time unnecessarily and excessively."

That must also apply in relation to an alleged contravention of Article 5(3). So far as I am aware neither Judge Norris nor Judge Sanders considered the effect of the claimant's behaviour upon the progress of the action, but in any proper evaluation for the purposes of Article 5(3) it would be necessary to do so. What that Article requires is that the court should look at the matter overall in the light of all of the relevant circumstances, and here it would in my judgment be quite wrong to suggest that in making an evaluation for the purposes of Article 5(3) Judge Sanders was bound by a decision reached by Judge Norris in relation to an application under section 22(3), especially when it is recognised that neither Judge Sanders nor we have any record of what transpired before Judge Norris other than his conclusion. It seems to me to be quite possible that in a case to which section 25 applies if a judge is asked to grant an extension of the custody time limit and refuses to do so on the basis that the prosecution has failed to show due diligence and expedition he may be persuaded that there has also been, for the purposes of Article 5(3), such a lack of special diligence in the conduct of the proceedings as would amount to a violation, with the result that, despite the absence of exceptional circumstances, the requirements of the Human Rights Act 1998 make it necessary, in order to comply with Article 5(3), that the alleged offender be released pending trial. But that is plainly not this case.

Other Issues.

35. Mr Turner also placed some reliance on Article 14, contending that the way in which section 25 operates is discriminatory. As Mr Lewis submitted, in order for there to be objectionable discrimination there must be (1) differential treatment of persons in an analogous or relevantly similar situation and (2) no reasonable or objective justification for the distinction (see Wandsworth LBC v Michalak [2003] 1 WLR 617 at 625, paragraph 20). In this case the position of the claimant is not analogous to that of someone else charged with similar offences, because he has a conviction which is plainly relevant to the risk attendant upon a grant of bail, and the distinction made by section 25 is objectively justified. It is made by reference to relevant factors, pursues a legitimate objective, and is proportionate. In my judgment Article 14 cannot assist the claimant in this case.

Conclusion.

36. I would therefore dismiss this claim. In my judgment Judge Sanders was entitled to find, as apparently he did, that for the purposes of section 25 of the 1994 Act there were no exceptional circumstances so, because of the gravity of the charge and the record of the claimant, the claimant should not be granted bail, and that, despite what had been decided by Judge Norris, no violation of Article 5(3) was proved. Clearly when dealing with applications for bail from an accused to whom section 25 applies it is important for judges briefly to set out their reasons, not only (as the Bail Act requires) if they grant bail, but also if they refuse it, so that the applicant, and if necessary another court, can see, for example, that careful and appropriate consideration has been given to the question of whether exceptional circumstances do exist (see paragraph 73 in Punzelt supra). If fresh information becomes available to the claimant or his advisers, or there is some other change in circumstances, it is of course always open to them to make a fresh application for bail, but so far as these proceedings are concerned I would not grant any of the relief sought.

Mr Justice Hooper:

37. Save in one respect I agree with the judgment of Kennedy LJ and with his conclusion that he would not grant any of the relief sought. My disagreement concerns only the interpretation of the word "satisfied" in section 25 of the Criminal Justice and Public Order Act 1994 ("section 25") and does not affect the outcome of the case. A refusal of bail was inevitable.
38. On behalf of the claimant Mr Turner submits that section 25, set out in paragraph 27 of the judgment of Kennedy LJ, is incompatible with Article 5(3) of the ECHR in that it imposes the burden of proof upon the defendant to show the court that there are exceptional circumstances which justify the grant of bail. Mr Lewis submits that section 25 is not concerned with burden of proof but merely with a judicial evaluation. Mr Newman, whilst not seeking to say that the submission made by Mr Lewis was wrong, did express doubt about whether the word "satisfied" can be interpreted in that way. He submitted that, if section 25 did impose a burden of proof, it imposed a legal burden on the defendant which was not incompatible with Article 5.3. He submitted that, if the imposition of such a burden would be incompatible, section 25 should be "read down" to impose an evidential burden only upon the defendant.
39. It was agreed by all three counsel that the imposition of an evidential burden upon the defendant after the prosecution has proved that section 25 applies to the defendant, would not be inconsistent with Article 5(3). That must be right. In a normal case where a defendant is charged with a very serious offence such as one of those in subsection (2) of section 25, the court is likely, as a matter of practice, to refuse bail unless the defendant is able to point to, or produce, material which favours the grant of bail. In an application for bail to which section 25 did not apply, the defendant's advocate will seek to show that the risks set out in paragraph 2 of Part 1 of Schedule 1 of the Bail Act could be met, by, for example, residence in a bail hostel, by a restriction on the movements of the defendant or by residence in a part of the country well removed from the area where the offence is alleged to have been committed.
40. In order to consider the competing submissions regarding the word "satisfied" in section 25, it is helpful to look at provisions of the Bail Act and the provisions regarding custody time limits.
41. Section 4(1) of the Bail Act provides that a person to whom the section applies shall be granted bail except as provided in Schedule 1 to the Act. In the words of Lord Bingham CJ in R v Manchester Crown Court ex parte McDonald [1991] 1 Cr App R 409, at 412:

"The general presumption in favour of liberty is reflected in section 4.1 of the Bail Act 1976 …".

42. The material upon which a court is entitled to base its conclusions are not restricted to "admissible evidence in the strict sense" but the court "must take proper account of the quality of the material upon which [it] is asked to adjudicate": R (on the application of the DPP) v. Havering Magistrates' Court [2001] 2 CR App R 12, [2001] 1 WLR 805, paragraphs 41-42.
43. The word "satisfied" appears in a number of the provisions in Schedule 1. Other expressions used include "need not be granted bail" with or without the word "satisfied" and the court is "of the opinion". For convenience I have italicised these words. Some of Part I which relates to imprisonable offences is repeated in Part II which relates to non-imprisonable offences. I shall concentrate on Part I. Paragraph 2 of Part I of Schedule 1 states:

"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."

44. In R v Governor of Canterbury Prison, ex parte Craig [1991] 2 QB 195 at 205 Watkins LJ, giving the judgment of the Court, said, in a passage which I set out below (para. 71), that the appropriate standard to be applied is that of the balance of probabilities.
45. In McDonald, having set out the various provisions of the Schedule, Lord Bingham went on to say (page 412):

"Thus the general right of any unconvicted person to remain at liberty until convicted may be curtailed if certain stringent conditions are shown to be satisfied."

46. The Law Commission in its Report on "Bail and the Human Rights Act 1998" (LAW COM No 269) stated that paragraph 2(b) of Part I of Schedule 1 (commit an offence while on bail) must be interpreted with care to conform with Article 5(3) (Part III of the Report).
47. Paragraph 3 of Part I provides that:

"The defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for his own protection or, if he is a child or young person, for his own welfare."

48. Paragraph 2A provides that:

"The defendant need not be granted bail if –

a) the offence is an indictable offence or an offence triable either way; and

b) it appears to the court that he was on bail in criminal proceedings on the date of the offence."

49. The Law Commission in its Report wrote of this provision (paragraph 4.12):

 "A straightforward reading of the provision, without the aid of the HRA, suggests that the fact that the defendant was on bail at the time of the alleged offence can itself be an independent ground for the refusal of bail."

50. A decision to refuse bail solely on these grounds would, in the view of the Law Commission, infringe Article 5 and therefore be unlawful under sections 3 and 6 of the Human Rights Act. This seems right, particularly in the light of paragraphs 39 and 48 of the decision in Havering Magistrates (see below). The section should, in my view, be construed as providing that the fact that the defendant was on bail at the time of the offence with which he is now charged should be taken into account in determining whether or not any of the grounds for refusing bail set out in paragraph 2 of Part I existed. The fact that the new offence appears to have been committed whilst on bail is likely to be a factor of considerable importance against the defendant when deciding whether there are substantial grounds for believing that, if released, he would commit a further offence whilst on bail.
51. Paragraph 5 of Part I provides:

"The defendant need not be granted bail where the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by this part of this schedule for want of time since the institution of the proceedings against him."

52. The Law Commission's views on this provision are set out in paragraph 6.13 of the Report.
53. Paragraph 6 of Part I provides that a defendant need not be granted bail if, "having been released on bail in or in connection with the proceedings for the offence", he has been arrested in pursuance of section 7 of the Act. In Havering Magistrates, the Court said that the language of this paragraph and the equivalent paragraph for non-imprisonable offences (paragraph 5 of Part 2 of Schedule 1) read literally would be incompatible with Article 5(3). The Court continued (paragraph 48):

"It our duty to construe the Act in accordance with the Convention, if we can. In our judgment, para 6 of Pt 1. and para 5 of Pt 2 to Sch 1 to the Act are to be construed as providing that such an arrest is capable of being taken into account in determining whether or not any of the grounds for refusing bail set out in para 2 of Pt 1 or 2 of Pt 2 exist."

54. Paragraph 8 of Part I deals with the conditions that may be imposed "where the defendant is granted bail". No such conditions may be imposed "unless it appears to the court that it is necessary to do so for the purposes of preventing the occurrence of any of the events mentioned in paragraph 2" namely failing to surrender, committing a further offence or interfering with witnesses etc.
55. In R v Mansfield Justices ex parte Sharkey 1985 [QB 613] the Court held that "when the defendant is going to be bailed" the court need only concern itself with paragraph 8.1 and not with paragraph 2.
56. Giving the judgment of the court Lord Lane CJ said (page 625):

"In the present circumstances [i.e. when the defendant is going to be bailed] the question the justices should ask themselves is a simple one: 'Is this condition necessary for the prevention of a commission of an offence by the defendant when on bail'. They are not obliged to have substantial grounds. It is enough if they perceive a real and not a fanciful risk of an offence being committed. Thus section 3(6) in paragraph 8 gives the court a wide discretion to inquire whether the condition is necessary."

57. Section 3 sets out the various conditions to which a person on bail is or may be made subject.
58. Section 7 of the Bail Act makes provision for the arrest and bringing before a justice of the peace of a defendant who has broken his conditions of bail. The justice of the peace "may remand him in custody" "if of the opinion that" the person "is not likely to surrender to custody" or "has broken or is likely to break any condition of his bail".
59. The compatibility of this section of the Bail Act with Article 5(3) was considered in Havering Magistrates, which itself was considered by the Law Commission in its Report, paragraphs 7.11 and following. Latham LJ, with whom Poole J agreed, interpreted the section in a manner which made it compatible with Article 5(3). Latham LJ said (paragraphs 39 and 40):

"Proceedings under s.7(5) are by their nature emergency proceedings to determine whether or not a person who was not considered to present the risks which would have justified remanding in custody in the first instance, nonetheless does now present one or other of those risks. It is true that a literal reading of s.7(5) could lead to the conclusion that the mere fact of a breach of condition could justify detention. But it should be noted that such a finding only gives the justice the power to detain, and not the duty to detain. It seems to me that in exercising that power, the justice would not be entitled to order detention by reason simply of the finding of breach; that in itself is not a justification for the refusal of bail under para 2 of Pt 1 to the Schedule to the Act. To hold that a breach of a condition, was, ipso facto, a ground for detention, would, it is agreed by all parties, be a decision taken on a ground outside the purposes which the European Court of Human Rights has determined justify detention under art 5. The fact of a breach of condition may be some evidence, even powerful evidence, of a relevant risk arising. But it is no more than one of the factors which a justice must consider in exercising his discretion under s.7(5).

It seems to me, that the justice is simply required by the statute to come to an honest and rational opinion on the material put before him. In doing so, he must bear in mind the consequences to the defendant, namely the fact that he is at risk of losing his liberty in the context of the presumption of innocence. This was the view of this court in R v Liverpool Justices. Article 5 does not, in my judgment require any different approach. None of the cases which have been cited to us suggest that the provisions of art 5 include a requirement that underlying facts relevant to detention are to be proved to the criminal standard of proof. This is not surprising, bearing in mind the delicate exercise on which the court is engaged in this type of jurisdiction, in seeking to provide fairness to the defendant on the one hand, but securing the objectives of justice and the protection of the public during the period up to and including trial on the other."

60. Paragraph 9 of Part I provides:

"In taking the decisions required by paragraph 2 or 2A of this Part of this Schedule, 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) except in the case of a defendant whose case is adjourned for inquiries or a report, 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."

61. Applying the various paragraphs of Part I of the Bail Act which relate to the decision whether to release on bail or not and in the light of Craig, Macdonald and Havering Magistrates, a court should, in my view, grant bail, subject to the appropriate conditions, to a person charged with an imprisonable offence not otherwise in custody (paragraph 4) and not subject to section 25, unless it is satisfied that bail should not be granted for all or any of the reasons set out in paragraphs 2 (a), (b) and (c), paragraph 3 and paragraph 5 of Part I. The fact that it appears that the defendant has apparently committed this offence whilst on bail (paragraph 2A) or has breached the conditions of his bail (paragraph 6) or has committed offences whilst on bail or whilst subject to some supervisory regime (paragraph 9) are all factors which may well militate against the grant of bail.
62. Under paragraphs 2 and 3 of Part I of Schedule 1 of the Bail Act it is for the prosecution to satisfy the court that bail should not be granted. The burden is on the prosecution. It is for the prosecution to place before the court the material on which it relies if it opposes bail. Under paragraph 5 it is for the prosecution to satisfy the court that it has not been practicable to obtain sufficient information for the purpose of taking the decisions.
63. Paragraphs 2A and 6 of Part I do not, in my view, alter that position. If on a literal reading of paragraphs 2A and 6, the burden is being shifted away from the prosecution, then I would read them down in the same manner as I believe section 25 should be read down.
64. According to Craig, the appropriate standard of proof is the balance of probabilities. It is however doubtful whether this is right in so far as it applies to the word "satisfied". A court is either satisfied or not satisfied that there are substantial ground for believing. Is the expression "substantial grounds for believing" equivalent to the balance of probabilities? In Fernandez v Government of Singapore [1971] 2 All ER 691 (HL), the appeal concerned the interpretation of s 4(1) of the Fugitive Offenders Act 1967 which provided, so far as material:

"A person shall not be returned under this Act to a designated Commonwealth country ... if it appears to the Secretary of State, to the court of committal or to the High Court or High Court of Justiciary on an application for habeas corpus … (c) that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.'

65. In the courts below reference had been made to the burden being on the fugitive to show on the balance of probabilities that he should not be returned for the reason in sub-paragraph (c). Lord Diplock, at 696-697, said:

"... the phrase [on the balance of probabilities] is inappropriate when applied not to ascertaining what has already happened but to prophesying what, if it happens at all, can only happen in the future. There is no general rule of English law that when a court is required, either by statute or at common law, to take account of what may happen in the future and to base legal consequences on the likelihood of its happening, it must ignore any possibility of something happening merely because the odds on its happening are fractionally less than evens. ...

Paragraph (c) of s 4(1) of the Act, ... , calls on the court to prophesy what will happen to the fugitive in the future if he is returned. The degree of confidence that the events specified in the paragraph will occur which the court should have in order to justify refusal to return the fugitive, is not determined by the mere use of the subjunctive mood of the auxiliary verb 'may'. It should, as a matter of commonsense and common humanity, depend on the gravity of the consequences contemplated by the section on the one hand of permitting, and on the other of refusing, the return of the fugitive if the court's expectation should be wrong.

...

My Lords, bearing in mind the relative gravity of the consequences of the court's expectation being falsified either in one way or in the other, I do not think that the test of the applicability of para (c) is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he is returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court (Page 24, ante, [1971] 1 WLR 459). 'A reasonable chance', 'substantial grounds for thinking', 'a serious possibility'—I see no significant difference between these various ways of describing the degree of likelihood of the detention or restriction of the fugitive on his return which justifies the court in giving effect to the provisions of s 4(1)(c). ... "

66. In R v Secretary of State for the Home Dept, ex p Sivakumaran (UN High Comr for Refugees intervening) [1988] AC 958, Lord Keith said at 994:

"In my opinion the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country"

67. He then cited the last paragraph of the passage from the speech of Lord Diplock which I have set out in paragraph 63 and continued:

"I consider that this passage appropriately expresses the degree of likelihood to be satisfied in order that a fear of persecution may be well-founded."

68. The approach in Sivakumaran is now also adopted when it is alleged that removal to another country would be in breach of Articles 2 and 3 of the ECHR. The expression used is "real risk". In the words of Lord Hutton in R (on the application of Yogathas) v Secretary of State for the Home Department and R (on the application of Thangarasa) v Secretary of State for the Home Department [2002] UKHL 36, paragraph 61:

"The United Kingdom will be in breach of its obligations under art 3 of the European Convention if it expels a person to a country where substantial grounds have been shown for believing that he would face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment contrary to art 3 of the Convention."

69. The burden is on the person seeking asylum or seeking to show that removal would be a breach of the ECHR. It is for him or her to satisfy the decision maker. Under the Bail Act the burden is on the prosecution. That should, in my view, make no difference as to the meaning of these similar phrases. It would follow that the prosecution does not have to show that it is more likely than not that, for example, the defendant will commit an offence. This approach would also have the benefit of matching the obligation of the state towards those individuals who might be killed or seriously injured by the defendant if released on bail (see, e.g. the paragraph 116 of the decision of the European Court of Human Rights in Osman v United Kingdom (87/1997/871/1083)).
70. I should add, that, in my view, there is no burden on the prosecution to prove the underlying facts to any particular standard. I find support for that proposition in Karanakaran v Secretary of State for the Home Department [2000] 4 All ER 409, at 477 e-j, per Sedley LJ.
71. The word "satisfied" also appears in the custody time limit provisions. By virtue of section 22(3) of the Prosecution of Offences Act 1985, as amended, the court shall not extend or further amend a time limit 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 or sufficient cause; and

b) that the prosecution has acted with all due diligence and expedition."

72. In Ex parte Craig [1991] 2 QB 195 at 205 Watkins LJ said (page 205):

"Second, what standard of proof is embodied in the requirements that the court be "satisfied" of various matters as a pre-condition of the exercise of its discretions respectively under section 22(3) of the Act of 1985 and regulation 7(4)? Is it necessary for the court to be satisfied beyond reasonable doubt or only upon the balance of probabilities? This point was touched on by the Divisional Court in White v. Director of Public Prosecutions [1989] Crim.L.R. 375. In its stated case, the Crown Court had there expressed the view that for section 22(3) purposes it had to be satisfied beyond reasonable doubt. Ian Kennedy J. observed that he "would not wish to be understood as necessarily agreeing that that is the correct standard." In our view, the standard to be applied is that of the balance of probabilities. That is the standard for determining bail applications. It should apply equally, we think, to related interlocutory questions of the sort here in question."

73. It seems to me that the balance of probabilities is the correct test under this section because the court is primarily concerned with the past and not the future.
74. Against the background of provisions of the Bail Act and of section 22(3) of the Prosecution of Offences Act 1985, I turn to the competing arguments as to the meaning of the word "satisfied" in section 25. Mr Lewis submits that it is not appropriate to characterise the word "satisfied" as "an issue relating to burden of proof". The word requires only an exercise in judgment or evaluation. He relies on the decision of the House of Lords in R (on the application of McCann and others) v. Crown Court at Manchester [2002] UKHL 39, [2002] 3 WLR 313 and on the decision of the Divisional Court in R (on the application of M) v Inner London Crown Court [2003] EWHC 301 (Admin) (Rose L.J. and Henriques J). McCann concerned anti-social behaviour orders under section 1 of the Crime and Disorder Act 1988 which provides:

"(1) An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely -

(a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and

(b) that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him; ..."

75. The House of Lords concluded that, before making such an order, a court had to be satisfied to the criminal standard of proof that the defendant had acted in an anti-social manner. As to whether an order was necessary, Lord Steyn stated (paragraph 37) in a passage which reflected the views of the Committee:

"The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation."

76. That passage was cited and applied in On the application of M to parenting orders under section 8 of the Crime and Disorder Act 1988. Such orders may be made if it "would be desirable to do so in the interests of preventing" certain specified acts. In paragraphs 43-44 Henriques J, with whom Rose LJ agreed, stated:

   "[43] I have no doubt that the decision as to whether or not to make a parenting order is an exercise of judgment or evaluation.    [44] Mr Crow's arguments successfully persuaded Lord Hope at para 83 that the condition in s 1(1)(b) raises a question which is a matter for evaluation and assessment; so too are many judicial functions. Granting injunctions, licences, custody, awarding damages, sentencing call for no burden of proof, but for evaluation and assessment. A court's task in making a parenting order is clearly and precisely defined by Parliament and it involves evaluation and assessment."

77. It seems to me that these cases do not assist. The decision whether "an order is necessary to protect" or whether an order "would be desirable in the interests of preventing" is a decision calling for the exercise of discretion balancing up competing considerations. Both the Bail Act, section 25 and section 22(3) of the Prosecution of Offences Act 1985 require the decision maker respectively to grant bail, not to grant bail or not to extend the custody time limits only if satisfied that the specified requirements are met. If so satisfied the order must be made. There is no discretion not to make it. It is not, in my view, a process of evaluation in the sense used in these two cases.
78. Mr Newman, as I have said, was doubtful about whether the word "satisfied" can be interpreted in that way for which Mr Lewis contends. If section 25 imposes the legal burden of proof on the defendant, he submitted that would be proportionate and justified, given the very limited circumstances in which section 25 applies and the risk which it is addressing. It would thus be compatible with Article 5. He refers to the line of English authorities which consider legislative provisions which impose a burden of proof on the defendant and their compatibility or incompatibility with the presumption of innocence in Article 6 (see e.g. Sheldrake v. DPP [2003] EWHC 273 (Admin)).
79. This approach receives support from the Law Commission in its Report. Paragraph 8.2 reads, in part:

"Whereas the other exceptions to the right to bail (contained in Schedule 1 to the Bail Act) merely provide that the defendant need not be granted bail, the effect of section 25 is that the defendant must not be granted bail unless there are exceptional circumstances."

80. The Law Commission concluded in paragraph 8.38:

"We believe that, provided that section 25 is interpreted so that the courts are not prevented from giving genuine consideration to whether the defendant poses a risk to the public, it is highly likely that the courts would find that the provision can be objectively justified and is not disproportionate. This is particularly so since a defendant is likely to be the person best able to bring to the attention of the court any exceptional circumstances militating in favour of bail. Thus, no injustice is caused to the defendant if he or she bears the burden of displacing a statutory presumption that those who have been once convicted of a very serious offence and are alleged to have committed a further very serious offence pose a substantial risk to the public and should therefore be detained. Furthermore, the burden can be characterised as a "discretionary" rather than a "mandatory" one. Where the court is satisfied that it is not necessary to detain the defendant, it is not obliged to detain the defendant simply because the defendant has not adduced evidence capable of displacing the presumption."

81. If section 25 does not impose the burden of proof upon the defendant then, so Mr Newman submits, it imposes only an evidential burden.
82. If section 25 is read literally, so Mr Turner submits, the presumption in favour of bail has been removed. Whereas under paragraph 2 of part 1 of Schedule 1 the court must be "satisfied that there are substantial grounds for believing that the defendant if released on bail" would (amongst other things) commit an offence while on bail, under section 25 the court must be satisfied that there are exceptional circumstances which justify bail. If the exceptional circumstance relied upon by the defendant is that he would, on release, not be a significant risk to the public, the court would have to be satisfied that there was no such significant risk before granting bail. Instead of: "The Court is satisfied that you should not be granted bail" under paragraph 2 of Part 1 of Schedule 1 to the Bail Act, on a literal reading of section 25, so Mr Turner submits, it would be: "I am not satisfied that you should be granted bail".
83. Mr Turner relies on the decision of the ECHR in Ilijkov v. Bulgaria (Application no. 33977/96) Judgment Strasbourg 26 July 2001, decided after the preparation of the Law Commission's Report. The applicant alleged violations of Article 5(3) and (4) in respect of the length of his pre-trial detention.
84. Paragraph 43 of the facts reads:

"In its decision of 21 February 1995 the Supreme Court stated that under Article 152 §§ 1 and 2 of the Code of Criminal Procedure detention on remand was mandatory for everyone accused of a crime punishable by ten or more years' imprisonment, the only exception being where it was clear beyond doubt that there was no danger of the accused's absconding or re-offending. In the Supreme Court's view such would only be the case where, for example, the accused was seriously ill, elderly or in any other condition which excluded the danger of his or her absconding or re-offending. Since the applicant was charged with a crime punishable by more than ten years' imprisonment and as no special circumstances excluding the danger of his absconding or re-offending had been established, there were no grounds for ordering his release on bail. The Supreme Court referred to its practice on the matter.The Supreme Court further refused to consider the applicant's contention that the evidence against him was weak. It found that it had no jurisdiction to do so in connection with a bail application. Its only task was to examine whether the conditions for detention on remand under Article 152 of the Code of Criminal Procedure had been met."

85. In its conclusions the Court stated:

"76. The applicant's detention on remand lasted from 4 October 1993 to 31 January 1997. The period to be taken into consideration is therefore three years, three months and twenty-seven days.

77. 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. In such cases, the Court must 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 ascertain whether the competent national authorities displayed "special diligence" in the conduct of the proceedings (Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000-IV).

78. The parties do not appear to dispute that the applicant's initial detention was based on a reasonable suspicion of him having committed a crime. The Court sees no reason to reach a different conclusion.

79. As to the grounds for the continued detention, the domestic courts applied law and practice under which there was a presumption that detention on remand was necessary in cases where the sentence faced went beyond a certain threshold of severity (ten years' imprisonment according to the law as in force until June 1995 and five years' imprisonment thereafter).

80. The severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending. The Court accepts that in view of the seriousness of the accusation against the applicant the authorities could justifiably consider that such an initial risk was established.

81. However, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand (see, as a recent authority, Jecius v. Lithuania, no. 34578/97, § 94, ECHR 2000-IX).That is particularly true in the present case where under the applicable domestic law and practice the characterisation in law of the facts - and thus the sentence faced by the applicant - was determined by the prosecution authorities without judicial control on the question whether or not the evidence supported reasonable suspicion that the accused had committed an offence attracting a sentence of the relevant length ... .

82. The only other ground for the applicant's lengthy detention was the domestic courts' finding that there were no exceptional circumstances warranting release.

83. However, that finding was not based on an analysis of all pertinent facts. The authorities regarded the applicant's arguments that he had never been convicted, that he had a family and a stable way of life, and that after the passage of time any possible danger of collusion and absconding had receded, as irrelevant (see paragraphs 43-47, 49 and 53 above).They did so because by virtue of Article 152 of the Code of Criminal Procedure and the Supreme Court's practice the presumption under that provision was only rebuttable in very exceptional circumstances where even a hypothetical possibility of absconding, re-offending or collusion was excluded due to serious illness or other exceptional factors.It was moreover incumbent on the detained person to prove the existence of such exceptional circumstances, failing which he was bound to remain in detention on remand throughout the proceedings (see paragraphs 59 and 71 above).

84. The Court reiterates that 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. Any system of mandatory detention on remand is per se incompatible with Article 5 § 3 of the Convention (see the Letellier v. France judgment of 26 June 1991, Series A no. 207, §§ 35-53; the Clooth v. Belgium judgment of 12 December 1991, Series A no. 225, § 44; the Muller v. France judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II, §§ 35-45; the above cited Labita judgment, §§ 152 and 162-165; and the above cited Jecius v. Lithuania, §§ 93 and 94).Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention (see the Contrada v. Italy judgment of 24 August 1998, Reports 1998-V, §§ 14, 16, 18, 23-30, 58-62), the existence of the concrete facts outweighing the rule of respect for individual liberty must be nevertheless convincingly demonstrated.

85. Moreover, the Court considers that it was incumbent on the authorities to establish those relevant facts. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases.

86. ...

87. In the present case the Court finds that by failing to address concrete relevant facts and by relying solely on a statutory presumption based on the gravity of the charges and which shifted to the accused the burden of proving that there was not even a hypothetical danger of absconding, re-offending or collusion, the authorities prolonged the applicant's detention on grounds which cannot be regarded as sufficient.The authorities thus failed to justify the applicant's detention on remand for the period of three years, three months and twenty-seven days. In these circumstances it is not necessary to examine whether the proceedings were conducted with due diligence.There has been therefore a violation of Article 5 § 3 of the Convention."

86. Mr Turner relies particularly on paragraph 85. Mr Lewis submits that paragraph 85 must be read against the background of all of the findings and submits that this case, as many cases in the ECHR, is "fact sensitive". It does not support the proposition that shifting the burden of proof to the defendant is incompatible with Article 5.
87. Mr Turner also relies upon Hutchison Reid v. United Kingdom (Application no. 50272/99) Judgment 20 February 2003. The applicant alleged that he was being wrongly detained in a mental hospital and that he had not been provided with a prompt or adequate review of the continued lawfulness of his detention. He invoked Articles 5 (1) and (4). Dealing with the issue of the burden of proof, the Court stated:

" 68.  The applicant complained that in the proceedings brought for release under section 64 of the 1984 Act it was for the patient to satisfy the Sheriff that he was no longer suffering from a mental disorder requiring his detention in hospital for medical treatment, arguing that under Article 5 it was for the State to justify the deprivation of liberty.

  69.  The Court would observe that there is no direct Convention case-law governing the onus of proof in Article 5 § 4 proceedings, though the imposition of a strong burden of proof on applicants held in detention on remand to show that there was no risk of absconding has previously been taken into account in finding procedures for review of that detention incompatible with the Article 5 § 4 (see Nikolova v. Bulgaria, [GC], no. 31195/96, ECHR 1999-II, § 59, and Ilijkov v. Bulgaria, no. 33977/96, judgment of 26 July 2001, unreported, § 99).

  70.  That it is however for the authorities to prove that an individual satisfies the conditions for compulsory detention, rather than the converse, may be regarded as implicit in the case-law. In examining complaints under Article 5 § 1, the Court has adopted the approach that both the initial deprivation of a mental patient's liberty and the continued detention could only be lawful under Article 5 § 1(e) if it can "reliably be shown that he or she suffers from a mental disorder sufficiently serious to warrant detention", namely that the burden lies on the authorities in both cases (Winterwerp judgment, cited above, §§ 39-40, Johnson v. the United Kingdom, judgment of 24 October 1997, Reports 1997-VIII, § 60) ... .

...

  73.  The Court finds therefore that insofar as the burden of proof was placed on the applicant in his appeal to establish that his continued detention did not satisfy the conditions of lawfulness it was not compatible with Article 5 § 4 of the Convention."

88.  Mr Lewis relied on the words in paragraph 69, that "the imposition of a strong burden of proof on applicants held in detention on remand to show that there was no risk of absconding has previously been taken into account in finding procedures for review of that detention incompatible" (emphasis added). He submits that this shows that, in Ilijkov, the issue of the burden of proof cannot be separated from the other issues. He also notes that in the first sentence of paragraph 70, the reference is to "compulsory detention" and not "pre-trial detention".
89. Mr Turner also relies on the decision of Elias J in R. (on the application of Sim) v. Parole Board and the Secretary of State for the Home Department [2003] EWHC 152 (Admin). One of the issues in the case was the compatibility with Article 5 (1) of section 44A of the Criminal Justice Act 1991. In the words of Elias J:

"Section 44A(4) sets out the test for determining whether or not the prisoner should be released. It provides that the Board shall direct the prisoner's release... :

'if satisfied that it is no longer necessary for the protection of the public that he should be confined (but not otherwise).'

Accordingly, the Parole Board does not have to be positively satisfied that it is necessary for the protection of the public that he should be confined; rather they need only be satisfied that it is no longer so necessary. It follows as a matter of language that if they are left uncertain as to whether it is still necessary or not, he will continue to be confined."

90. Under the heading "The presumption of detention", Elias J set out the competing arguments.

49. The claimant contends that section 44A infringes Article 5.1 because it imposes a burden of proof upon the claimant to satisfy the Parole Board that it is no longer necessary to continue the detention whereas it ought to be for the Board to be satisfied that detention is necessary. Ms Steyn submitted that it is inappropriate to refer to the concept of burden of proof in cases of this kind where the function of the Parole Board is inquisitorial rather than adversarial, and where it has to assess future risk. She referred me to a number of authorities to that effect, including certain observations of Lord Bingham in R v Lichniak [2002] 3 WLR 1834 at para.16 in which he said in the context of mandatory life prisoners:

"I doubt whether there is in truth a burden of proof on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the Board to consider all the available material and form a judgment."

91. Elias J continued:

"50. I accept that the concept of burden of proof is an inappropriate term, but nevertheless it does seem to me that it is perfectly apposite to describe the position in terms of their being a presumption that the prisoner will be detained unless the Parole Board is satisfied to the contrary."

92. He posed the question in this way:

"51. The question, therefore, is whether it is a breach of the Convention to frame the presumption or default position in favour of detention rather than liberty."

93. After considering the arguments he stated:

"54. In my judgment the provisions of Article 5.1 are not met if the language of section 44A is to be construed in the ordinary way."

94. He concluded:

"55. The question which then arises is whether it is possible to give section 44A a construction which is compatible with these Convention rights in accordance with section 3 of the Human Rights Act, or whether it is necessary to make a declaration of incompatibility under section 4. Both the claimant and the Secretary of State submit that it is possible to adopt the section 3 route. This can be done, it is submitted, by construing the word "necessary" in a sufficiently flexible way. I agree that it is possible to achieve consistency with the Convention in this manner. It involves interpreting the phrase "no longer necessary for the protection of the public interest " in section 44A in such a way that the Board must reach that conclusion unless positively satisfied that continuing detention is necessary in the public interest. It is not necessary to add to or amend the language of the section to achieve this result."

95. In my judgment, the word "satisfied" in section 25 has the same meaning as "satisfied" in the Bail Act and in section 22(3) of the Prosecution of Offences Act 1985. It places the burden on one or other party. The word "satisfied", as I have said, means more than "judgment or evaluation". Bail applications being of an adversarial rather than inquisitorial nature, it seems to me unnecessary to refer to a presumption in favour of liberty or detention. However, there is probably no difference in practice between saying there is a burden on the prosecution/defence and saying there is a presumption in favour of liberty/detention.
96. It follows that, in my view, section 25, read literally, imposes the burden on the defendant to show exceptional circumstances.
97. Having regard to both the wording of Article 5 and the cases of Ilijkov and Hutchison Reid, it seems to me that Article 5 prohibits the imposition on the detained person of the burden of proving that he should be released. That conclusion is consistent with the conclusion of Elias J in Sim.
98. It follows that Section 25 is, in my view, inconsistent with Article 5(3) in imposing the burden on the defendant to satisfy the court of the existence of exceptional circumstances. The reverse onus of proof cases under Article 6 do not help.
99. It was agreed by all counsel that section 25, if on a literal reading incompatible with Article 5(3), may properly be read down to impose an evidential burden on the defendant to point to or produce material which supports the existence of exceptional circumstances. A defendant who falls within section 25 is very unlikely to be granted bail and, unless he can point to exceptional circumstances, will almost certainly not be granted bail. Nonetheless, in my view, the burden remains upon the prosecution to satisfy the court that bail should not be granted.
- - - - - - - - - - - - -

LORD JUSTICE KENNEDY: For the reasons set out in the judgment which has been handed down, this application is dismissed.

MR TURNER: My Lords, I hope the court received from Mr Lewis and myself suggested corrections to the draft judgment. We have not seen the final one.

LORD JUSTICE KENNEDY: They have all been done.

MR TURNER: I am grateful. As I indicated in the note that I sent together with the proposed corrections, on behalf of the claimant I seek to have some points certified, and if the points be certified, to invite the court to give leave to appeal to the House of Lords. I hope, again, that although they were only sent out early this morning, the court has received the draft proposed points that I have set out.

LORD JUSTICE KENNEDY: We did.

MR TURNER: I should say first of all that the Crown Prosecution Service does not appear to be here or represented today. I imagine that is because your Lordships on the last occasion said no one need attend. I faxed to them yesterday my corrections with a note saying I intended to apply, and I also faxed them this morning the proposed notes, but whether they have been received by counsel, I do not know. I have not spoken --

LORD JUSTICE KENNEDY: You and I have been doing the same thing. I am relieved to see it is not just me. The Act is 1994 --

MR TURNER: It is the Criminal Justice and Public Disorder Act -- or Public Order Act --

MR LEWIS: Before 1994 it was "Disorder" and subsequently it has become "Order".

MR TURNER: Yes. It does not matter how many times one proofreads something, it --

LORD JUSTICE KENNEDY: I think somebody picked it up in paragraph 3.

MR TURNER: I think that is where I had taken it from.

LORD JUSTICE KENNEDY: It is wrong?

MR TURNER: Yes, it is wrong. I lifted it from there without cottoning on, until my learned friend's instructing solicitor this morning pointed it out to us.

LORD JUSTICE KENNEDY: I am very sorry. As far as the shorthand writer --

MR TURNER: That needs correcting all the way through.

LORD JUSTICE KENNEDY: In so far as it is section 25, it is 1994. Please could the shorthand writer correct that.

MR LEWIS: It is still wrong in paragraph 3.

MR TURNER: That is where I had lifted it from without thinking. My Lords, of my points, the first two -- let me deal with the first one. That relates to the question of whether there is, in fact, a burden imposed at all on an accused person, and if there is a burden, whether it is what is sometimes called "a legal burden" or sometimes "a persuasive burden" on the one hand, or whether it is an evidential burden on the other hand. And if there is a burden of any sort, what is the standard of proof that relates to that burden?

The second point also relates, as it were, to the burden of proof, although what I have done there is to factor in the alternative position. If there is no burden of proof as such, does the burden -- or if there is no burden, what may be described as the default position --

LORD JUSTICE KENNEDY: I have in front of me a heavily amended version.

MR TURNER: Those are Mr Lewis' amendments. He will no doubt explain to your Lordships, as he has to me, why he makes those proposed amendments. But the second point deals with the situation as to whether it is a burden, whether it is a presumption, whether it is a default position, whether it is compatible with Article 5.

Point number 3 is, in effect, a general sweep up section. It relates not simply to the position where custody time limits have expired, but generally. It covers the position as to whether in any event, in any case, section 25 is incompatible. It also, as it were, sneaks in the Article 14 point as well, which I still submit is a point of law; it is a point of law of general public importance, and whether it is answered correctly one way or not is a matter of argument.

Point number 4 is, in effect, the ultra vires argument. It recites the statutory provisions, the Bail Act provisions, section 25 itself and the regulations, and asks whether those are valid and effective.

Points 5 and 6, I can see to some extent cover the same ground, but I have put them in those two ways to make absolutely clear what the position is. Number 5: does the expiration of a custody time limit necessarily amount to exceptional circumstances? That, of course, does not pose the question about what is the consequence if it does not. That is effectively posed in question 6: is the continued detention after expiration of the custody time limit compatible with Article 5?

My Lords, those are the points that I seek to have certified. Perhaps your Lordships would like to hear my learned friend before I go further on my submissions.

MR LEWIS: My Lords, I am afraid (inaudible) this morning. I did do one amended draft, but I do not know whether Hooper J has one.

LORD JUSTICE KENNEDY: You will soon have one. Just a second.

MR LEWIS: I am sorry, my Lords. I will approach this in three ways. Firstly, I will take these questions as they stand, and I will just say to your Lordships why we think some should be deleted in any event. Secondly, it may well be that there is a simple route in any event, a simple question because (inaudible) you may simply want to certify whether section 25 is compatible with Article 5 of the ECHR.

Could I take you firstly to 4, 5 and 6? Point 4 is the question of ultra vires. In my submission, that simply does not raise the question of general public importance. It does not merit certification, so I would simply delete 4 because the question of vires, with no disrespect to my learned friend, is so obvious that it does not need this Divisional Court to certify it. Points 5 and 6, my Lords, are identical. The only exceptional circumstance, as I understand it, is the requirement to comply with Article 5. In the (inaudible) of Article 5, section 25 clearly is primary (inaudible) regulation. So I would delete 5; it is not asking any question that is relevant. It is 6 that is the relevant question. Because of Article 5, do you have to regard the expiry of the time limit as exceptional circumstances, and then you comply with the ECHR. So I would delete 4 and 5, and just leave question 6 there, if we are going to have a question. So that would be one question.

My Lords, if I can go back to questions 1 and 2, these focus on the other point over which the court was divided, the burden of proof. My criticism of these questions, questions 1 and 2, is firstly slightly -- if your Lordships look at it, the first two lines say, "Is there a burden?". Then the next line says, "Is it a legal or an evidential burden?". It seems to me you can delete them into lines (inaudible). You can simply say, "Does section 25 of the relevant Act impose a legal burden or an evidential burden on the accused, and if so, is that compatible with Article 5?". If you also want to ask the question about the appropriate standard of proof, you can (inaudible) impose a legal burden or an evidential burden. If so, what is the appropriate standard of proof, and is that compatible with Article 5?

LORD JUSTICE KENNEDY: It is all wrapped up in it, is it not?

MR LEWIS: It is all wrapped up. As far as my learned friend suggests, there is a different default position. That is simply an argument; it is just a use of language to say why there should be some sort of burden on the prosecution. Again, I do not think one needs this tripod question, where you work through a whole series of options. It would be much simpler to condense it. In my submission, if you approach it in this way, you would have one question, question 6, on the expiry of the time limit, you would have one question on the burden of proof reflecting the different views between your Lordships. Then you may or may not want to have a final question, as you have in 3, section 25 of the relevant Act, otherwise compatible with Article 5 of the ECHR.

In my submission, my Lords, the Article 14 point is so obvious, again, I would suggest that there is no need to certify that. It is clear as day and does not need to be the subject of a separate question. So I would focus on detention, burden of proof and Article 5, and leave it at that. The other option is simply to have a question like 3 in section 25 of the relevant Act compatible with Article 5.

MR JUSTICE HOOPER: Taking the word "otherwise" out?

MR LEWIS: Yes, and just have that one question. Then we have the stated case, if you give permission, and that, my Lords, would state the case. But if you want to give us some guidance as to what we should do now -- the issue is pretty clear from your Lordships' judgment anyway. It is clear where the court is divided. It is clear where you are not divided. So those would be my submissions on the question, unless I can assist you further.

LORD JUSTICE KENNEDY: Thank you.

MR TURNER: Certainly, I accept that the questions are clear from your Lordships' judgment. It is trying to highlight those in question --

LORD JUSTICE KENNEDY: It is to your advantage, surely, that the matter is as condensed as possible. What is wrong with Mr Lewis' amendment to your daft, without going simply to question 3? How does it shut you out, other than Article 14 and the ultra vires argument, which I think, speaking for myself, you have difficulty with --

MR TURNER: Can I just deal with Article 14? What I submit on that is that it is a point of law. It is a point of general public importance. Those are the only two criteria that I have to satisfy in order to obtain a certification on it, in my submission. It does rise in the decision. That is the test under the Administration of Justice Act 1960.

LORD JUSTICE KENNEDY: What do you shut out? Otherwise, the matter seems to me to be conveniently condensed.

MR TURNER: Taking 1 and 2, which my learned friend has sought to amalgamate, what he has done by his amalgamation is to leave out what I would submit is the important part dealing with the situation if a court should find there is no burden. What is the position then? If there is no burden, what about the situation that exists? The presumption or the default position, is that compatible with Article 5?

LORD JUSTICE KENNEDY: (inaudible) then the ambit of the amended question 1.

MR TURNER: My Lords, I question whether it does, and if it does, is it not better, I ask, to highlight the distinction between a burden on the one hand and a default position or presumption on the other hand, which the two questions do. They highlight that distinction which, of course, appears in your Lordships' judgment because there is a difference in view expressed between your Lordships on that very issue. It serves to highlight that. That is why I would prefer to have it in, because I would submit that point number 1, on my learned friend's reformulation, does not necessarily cover the position where there is found to be no burden.

MR LEWIS: It would be question 3, actually, my Lords, even if there was no question 1.

MR TURNER: Question 3, the sweep up pointers, as we have put it. Of course, one bears in mind that that applies in relation to all situations, not just the situation where there is an expiration of the custody time limit. So one should not delete the "otherwise" from that in any event because it is asking first of all --

LORD JUSTICE KENNEDY: No one is suggesting otherwise, unless it was a free-standing question as the only question.

MR TURNER: My submission is that it should not be a free-standing question because it is otherwise than the burden point and otherwise than the expiration of custody time limit point. Those do need to be looked at separately because they clearly are different positions. It may be that it is in conflict with Article 5.3 purely in the custody time limit expiration situation, but not generally. It may be that there is a general problem with it, quite apart from the custody time limit, so one needs to isolate those two situations.

As far as 4 is concerned, again, what I submit is the vires question, the validity of the legislation is a point of law, it is of public importance, and it does arise out of the decision of your Lordships.

As far as 5 and 6 are concerned, I entirely accept my learned friend's point that 6 does cover 5. All I have sought to do is to highlight the particular exceptional circumstance, but I am not so troubled by that because I accept the point that 5 is encompassed within 6.

LORD JUSTICE KENNEDY: Thank you very much. We are both certifying on the amended form drafted by Mr Lewis the three questions as indicated on his amendment. We are not prepared to certify beyond that.

Do you want to say anything about leave, Mr Turner?

MR TURNER: Yes, my Lords. I appreciate that the grant of leave by this court is unusual. The reasons for it are well-known, that the House of Lords has a limited amount of time available to deal with cases. However, I do seek leave in this case for, essentially, two reasons.  I say firstly it is a matter of importance that applies directly to this defendant. This defendant is due to be tried on a date in June.

LORD JUSTICE KENNEDY: Your difficulty, surely, is that both of us took the view that this is a hopeless case on the merits.

MR TURNER: Your Lordships took the view it was a hopeless case on the merits. The House of Lords -- of course, the whole purpose of the appeal would be to persuade the House of Lords that your Lordships' view is wrong.

LORD JUSTICE KENNEDY: It just seems to me at the moment that one of the difficulties is that it is a bad vehicle point.

MR TURNER: My Lords, what I would certainly seek to argue to the House of Lords -- with the greatest respect, one would seek to argue that there are criticisms that can be made of your Lordships' analysis of the background situation and the emphasis that appears there on delays caused by the defendant himself. There are certainly points we would seek to make in relation to that. If it is a case that deserves to be dealt with at all, then it does affect this defendant, and there is a very limited window of opportunity, as it were, for the matter to be dealt with on behalf of this defendant.

The second reason why I submit there should be leave in any event -- and there inevitably must be leave -- is that one of the purposes of the judgment was to provide guidance for judges and police officers who have to deal with section 25 at ground level, as it were, at the coal face. Because of the disagreement between your Lordships as to the question of burden, one can find this situation may arise. A judge dealing with an application will say, "Is there a burden, and if so, who is it on?". We will say, "There is a case about that. Let us look at it. What is the ratio of the case?". Then we find there are two different competing views taken on the question of whether there is a burden. I certainly do not criticise your Lordships for differing. I accept that there are two validly held views on that. But it does not help those below who have to decide these cases. Then the decision maker may say, "At the moment am I satisfied? Well, on the one hand this and on the other hand that, it is pretty evenly balanced. It is evenly balanced. So what do I do now? Am I satisfied, if my mind is evenly balanced one way or the other, or am I not satisfied?". So for those reasons, we say, for the guidance for those who have to apply this piece of legislation, there must be an authoritative decision.

Your Lordships, for understandable reasons, have not been able to give an authoritative decision because it is a two judge court and there is a split. Therefore, the only way we can get an authoritative decision now is for their Lordships in the House to rule on the matter. For those two reasons, we submit that this is a case where inevitably there must be an appeal further. If there is to be an appeal, then leave should be granted now because of the time problem. If leave is not given in this case, it means another case has to go up through the system, there has to be a hearing in the Divisional Court, and then on again. So there is the added expense of another hearing in another case, which would be unnecessary. My Lords, those are my submissions.

LORD JUSTICE KENNEDY: I am not prepared to grant leave. That is a matter for their Lordships' house. One of the factors that seems to us to be significant is that, if necessary, the matter could be further reviewed before a three judge divisional court in another case.

MR LEWIS: My Lords, would it be helpful if we did a final version of the certificate for the Associate?

LORD JUSTICE KENNEDY: That would be very helpful.

MR LEWIS: I think question 6 should be first, question 1 should be second, and question 3 should be third.

MR TURNER: I agree with that.

LORD JUSTICE KENNEDY: If that is your view --

MR TURNER: I have it on my word processor. Would it be helpful if I re-jig it and send it to Mr Lewis, and if he is happy, I will have it brought over. I am over here this afternoon in front of my Lord, so I can bring it over later in the day.

LORD JUSTICE KENNEDY: I am sure he is looking forward to it. Thank you very much.