The Law Commission

PART I
INTRODUCTION AND OVERVIEW

1.1 The Human Rights Act 1998 (HRA) makes provision for the majority of the rights^[1] contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) to be directly relied upon in the English courts against public authorities, who may not act incompatibly with them unless required to do so by primary legislation.

The scope of this report

1.2      In this report we consider the impact of the HRA on the law governing decisions taken by the police and the courts to grant or refuse bail^[2] in criminal proceedings. In November 1999 we published a consultation paper.^[3] We are grateful to the judges, academic commentators, non-governmental organisations, professional bodies, private individuals, and government departments and agencies who took time to respond. The quality of our reports would suffer considerably without the benefit of the views and experiences of consultation respondents.
1.3      We have confined ourselves to an examination of the detention of accused persons between the time when they are charged or appear in court, and the time of the verdict or other termination of the case.^[4] During that period, the accused person must be presumed innocent of the offence of which he or she has been accused.^[5]
1.4      Nevertheless, both English law and the Convention recognise that there may be a need to detain a defendant prior to his or her guilt or innocence being decided, for example, where, if released, the person would be likely to abscond. The circumstances in which a person who is presumed to be innocent can be detained, possibly for a considerable period, must be subject to certain safeguards, and the detention of a defendant for any more than a very short time should not take place without judicial scrutiny. The ECHR sets out certain minimum standards relevant to pre-trial detention. In this report, we consider whether English law meets those standards.

The Human Rights Act 1998

1.5      The main provisions of the HRA came into force on 2 October 2000. Section 6 of the Act states that "It is unlawful for a public authority to act in a way which is incompatible with a Convention right" unless primary legislation allows it no other option. Section 3 states that, "[s]o far as it is possible to do so", legislation must be "read and given effect in a way which is compatible with the Convention rights".
1.6      Where legislation cannot be interpreted and applied compatibly with those rights, it nonetheless remains valid. Although the higher courts^[6] may issue a "declaration of incompatibility",^[7] such a declaration does not directly affect the dispute between the parties to the litigation in which the declaration is issued. The incompatible provision remains good law.^[8]
1.7      The declaration of incompatibility is a "remedy" of last resort. The HRA provides two other ways in which the domestic courts can protect Convention rights without recourse to such a declaration:

(1) by interpreting legislation in such a way as is compatible with the Convention; and

(2) by preventing public authorities from acting incompatibly with Convention rights.

1.8      If a provision can be applied so that Convention rights are not violated, legislative action will be unnecessary to ensure Convention-compatibility. There may, however, be situations in which such a provision is liable to mislead persons taking decisions under it into applying it in ways which would violate Convention rights. In such cases, although legislative reform may not be necessary, it may be desirable.

Our approach

1.9      This project has been an unusual one for the Law Commission to have undertaken. Our primary focus has been to determine whether English bail legislation can be applied in a way which is compatible with the Convention rights, not to reform or simplify the law. We have concluded that there are no provisions which, upon analysis, cannot be interpreted and applied compatibly, or which, given appropriate training, decision-takers would be likely to apply in a way which would violate Convention rights.
1.10      This does not mean that we have given the law of bail in England and Wales an unequivocal "clean bill of health" in the sense of being incapable of improvement following a general review. Where appropriate, we indicate where such improvement might, in due course, be made.
1.11      We hope that this report may be of assistance to those providing training to decision-takers and their advisers, and that courts may find it useful to refer to it, at least until the issues discussed have become the subject of reported decisions in the higher courts. A secondary purpose of this report has therefore been to provide pointers for bail decision-takers on how the English legislation can be interpreted and applied compatibly with the Convention rights.

Applying the HRA to the English law of bail

Section 3: The duty to interpret legislation as Convention-compatible

1.12      Section 3(1) of the HRA states:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

1.13      A court must, if it is possible to do so, read and give effect to legislation in a way which is compatible with the Convention rights even if an otherwise binding pre-HRA judicial decision exists which would require that the legislation be applied in an incompatible way. Furthermore, public authorities relying on the law must also, if possible, read and give effect to legislation in a compatible way. The rule does not, however, affect the validity of primary legislation which cannot be interpreted compatibly with the Convention,^[9] nor the validity of incompatible secondary legislation where primary legislation prevents the removal of the incompatibility.^[10]
1.14      Both the police and the courts must therefore interpret the Bail Act 1976 and other legislation relevant to bail in a way which is compatible with the Convention "[s]o far as it is possible to do so". At this stage in the life of the HRA, it is difficult to say with any certainty how powerful section 3 will be as a tool of interpretation.
1.15      Academic opinion is divided on the issue. Section 3 has been described as the most important provision contained in the HRA,^[11] but also as a "deeply mysterious" one.^[12] Under the previous law, the courts would interpret legislation so that any ambiguities therein were resolved in a way which was compatible with the Convention. This observed the common law presumption that Parliament does not intend to legislate inconsistently with the UK's obligations under an international treaty, and had the advantage of avoiding unnecessary violations of international obligations.^[13]
1.16      The White Paper which led to the passage of the HRA suggested that section 3 went

far beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision.^[14]

1.17      At the Committee stage of the Bill in the House of Lords, Lord Cooke of Thorndon suggested that what was then clause 3 "enjoins a search for possible meanings as distinct from the true meaning which has been the traditional approach".^[15] Such an approach envisages the courts looking at a provision, identifying the range of possible meanings it is capable of supporting, and choosing only a meaning which is compatible with the Convention rights.
1.18      There is, understandably, likely to be a judicial reluctance to resort to a declaration of incompatibility unless driven to it. Nevertheless, the Home Secretary stated before the enactment of the HRA that it was not the Government's intention that the courts "should contort the meaning of words to produce implausible or incredible meanings".^[16]
1.19      We have worked on the basis that, where the clearly unambiguous language of the statute requires a particular result to be reached which would be incompatible with the Convention, that section cannot be saved by section 3. One example of such a provision was the unamended section 25 of the Criminal Justice and Public Order Act 1994, which we discuss in Part VIII. That required the denial of bail to persons who were accused of one of a number of specified serious offences and had previously been convicted of such an offence. It could only have been saved by the device of "reading in" a speculative raft of additional words to provide for exceptions to the rule. In our view, section 3 would not permit the courts to go that far.^[17]

Reading in

1.20      The degree to which the courts will adopt the technique of reading words into legislation to make it compatible with Convention rights is not clear.
1.21      Some might regard the decision of the House of Lords in Litster v Forth Dry Dock,^[18] concerning the construction of UK subordinate legislation enacted to comply with an obligation imposed by an EC Directive, as supporting the validity of the technique.^[19]
1.22      In Canada, where "the Constitution of Canada is the supreme law … and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect",^[20] the courts have sometimes been willing to interpolate words into the statute to ensure its compliance with the Canadian Charter of Rights and Freedoms.^[21]
1.23      Conversely, the Constitutional Court of South Africa appears to have rejected the "reading in" technique.^[22] Similarly, in a decision of the New Zealand Court of Appeal, Thomas J stated that section 6 of New Zealand's Bill of Rights Act "does not authorise the court to legislate".^[23]
1.24      Recently, in the House of Lords,^[24] Lord Hope also stated of section 3 of the HRA: "But the rule is only a rule of interpretation. It does not entitle the judges to act as legislators".^[25] In the same case, however, Lord Steyn stated: "The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions".^[26] Despite this divergence, the House was able to reach a unanimous conclusion about the compatibility with the Convention of the provision in issue. In a passage with which the other Law Lords were in agreement,^[27] Lord Steyn stated:

… under section 41(3)(c) of [the Youth Justice and Criminal Evidence Act 1999] construed where necessary by applying the interpretative obligation under section 3 of the Human Rights Act 1998 … the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the Convention. If this test is satisfied the evidence should not be excluded.^[28]

Their Lordships thus achieved a synthesis of conclusion that the provision was compatible with the Convention, having taken a variety of routes to that conclusion. It has not been necessary for us to form a view about the extent to which the courts may or may not read words into primary legislation in order to make it compatible. This remains, however, a difficult and fundamental question for the English courts.

Reading down

1.25      Section 3 might be used not only to interpret legislation but to restrict its scope, by reading it as subject to certain limits. This technique seems most apt in situations where the legislation permits a public authority, including a court, to do something which, in some circumstances, would be a violation of the Convention, but, in other circumstances, would not.^[29] The technique is sometimes known as "reading down", and is relevant to our purpose. It appears to accord with the language of section 3, which requires that primary and secondary legislation "be read and given effect in a way which is compatible with the Convention rights". ^[30]
1.26      Such an approach is not wholly unfamiliar to the English courts, which have already held that certain fundamental rights inherent in the common law can only be limited by Parliament through the use of the clearest statutory language.^[31]
1.27      It also overlaps with the obligation imposed on public authorities, by section 6, to act in a manner that is compatible with the Convention, which we now consider.

Section 6: Public authorities must not act incompatibly with the Convention rights

1.28      Section 6(1) of the HRA states:

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

The term "public authority" embraces the courts^[32] and the police. It is therefore unlawful for either of these to act in a way which is incompatible with a Convention right in relation to pre-trial detention.

1.29      Refusals of bail almost always involve the exercise of discretion by the police or the courts. The exceptions to the right to bail contained in Schedule 1 to the Bail Act provide that the defendant need not be granted bail if one of a number of specified circumstances exists.^[33] The exceptions are expressed in such terms as may be capable of encompassing refusals of bail in a wide range of situations, including some where the refusal would be compatible with the Convention rights, and some where it would not. These provisions may be "read down" so that they permit the refusal of bail only where this would be compatible with the Convention.
1.30      Even if such legislation were interpreted as permitting a court to refuse a defendant bail in circumstances where this would not be compatible with the Convention rights, the legislation would serve only to give the decision-taker a discretion whether or not to detain the defendant. As public authorities, the courts and the police must not exercise that discretion in a way which results in any of the defendant's Convention rights being violated.
1.31      To illustrate this approach, paragraph 3 of Parts I and II of Schedule 1 to the Bail Act 1976^[34] permits courts to refuse bail if "the court is satisfied that the defendant should be kept in custody for his own protection". Our examination of ECtHR decisions suggests that, while this can be a legitimate purpose for pre-trial detention, where it is for the purpose of protecting a defendant from harm from others, it should only be relied upon in exceptional circumstances and where that purpose could not be adequately pursued by imposing appropriate bail conditions. In our view, a court may exercise its discretion to detain a defendant under paragraph 3 only where the more restrictive requirements of the Convention are met.

Section 2: Interpreting Convention rights

1.32      Section 2(1) of the HRA states:

A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any –

(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,

(b) opinion of the Commission given in a report adopted under Article 31 of the Convention,

(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or

(d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

1.33      Section 2(1) does not require the UK court to regard the decisions of the Strasbourg institutions^[35] as binding precedents. It only requires it to take such decisions into account. The national court will have to show that it has done so by dealing with the relevant Strasbourg case law and, where appropriate, explaining why it has not been followed.
1.34      The ECtHR has itself adopted a dynamic approach to interpreting the ECHR which would be incompatible with a system of binding precedent.^[36] As the Court stated in Tyrer v UK:

The Court must also recall that the Convention is a living instrument which … must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field.^[37]

1.35      Another inhibition on the development of a system of binding precedent is the "margin of appreciation".^[38] This has been most relevant in cases where moral judgments are in play, such as decisions whether or not to censor certain publications in order to protect public morals, where the national authorities are likely to have a better knowledge than international judges of local circumstances and attitudes.^[39] The margin in respect of pre-trial detention is comparatively small.
1.36      For our purposes, we have chosen to regard the Strasbourg decisions as establishing an authoritative framework for pre-trial detention, based on a reasonably well-developed body of jurisprudence.^[40] In the absence of any developed body of English case law interpreting Convention rights, we have therefore based our analysis of the scope of those rights on the Strasbourg cases. We believe that the English courts are likely to do the same.

The right to damages under the HRA

1.37      Article 5(5) of the ECHR states:

Everyone who has been the victim of arrest or detention in contravention of the provisions of [Article 5] shall have an enforceable right to compensation.

1.38      Section 8(3) of the HRA states that an award of damages may only be made where it is necessary to afford "just satisfaction to the person in whose favour it is made".^[41] The Act makes special provision in respect of judicial acts done in good faith.^[42]
1.39      Since the publication of the consultation paper,^[43] we have produced a full report specifically on the subject of damages under the HRA.^[44] We refer readers to that report.

The structure of this report

1.40      In Part II we consider the requirements of Article 5 of the ECHR in relation to pre-trial detention. In Parts III to VIII we consider whether certain exceptions to the right to bail in English law which might seem to pose problems of compatibility with those requirements can in fact be applied in a Convention-compatible way.
1.41      In Parts IX(A) and IX(B) we consider when the courts and the police can attach conditions to bail in a way which is compatible with the Convention, as well as when they must do so rather than keep the defendant in custody.
1.42      In Part X we consider the standard of reasoning in bail decisions required by the Convention, and whether practice in the English courts needs to change in order to ensure compliance. In Part XI we consider the right of defendants to challenge the legality of pre-trial detention, and in Part XII we discuss how frequently defendants should be able to make further challenges.
1.43      Throughout the report, we have endeavoured to provide suggestions on how the English legislation can be applied by bail decision-takers without violating defendants' Convention rights. For ease of reference, we have identified our suggestions in bold, italicised text. In addition, they are set out in the summary of conclusions provided in Part XIII.
1.44      Relevant extracts from the Bail Act 1976 are contained in Appendix A. Appendix B contains Articles 5 and 6 of the ECHR. Appendix C lists those who responded to our consultation paper.
1.45      We have found it convenient to refer to the Convention, on the one hand, and "English law" on the other. In this context, by "English law" we mean pre-HRA English law. Of course, the Convention rights are now, in reality, part of English law.

Our main conclusions

1.46      Certain of the grounds for pre-trial detention provided for in Schedule 1 to the Bail Act 1976 are plainly compatible with the Convention. These include detention on grounds of a fear that the defendant will fail to surrender to custody,^[45] or will interfere with witnesses or otherwise obstruct the course of justice.^[46] We also believe that detention where a case is adjourned for inquiries or a report and it appears to the court that it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody,^[47] is also plainly compatible with the Convention, because this would fall within the legitimate purpose of preventing the defendant from obstructing the course of justice.
1.47      The other exceptions to the right to bail^[48] are all capable of being applied in a Convention-compliant manner. In some cases we draw attention to the need for appropriate training to avoid decisions being made that would not be compatible with the Convention, but we make no recommendations for immediate legislation.
1.48      The English provisions on the granting of conditional bail, the giving of reasons for bail decisions, scrutiny of pre-trial detention by a court, and the making of repeated bail applications,^[49] are capable of being applied compatibly with the Convention rights. We highlight, where relevant, the need for training and for providing appropriately drafted forms. In Part IX(A), however, we highlight a lacuna in English law for which we believe that legislative reform is particularly desirable.
Ý
Þ

Note 1    Articles 2–12 and 14 of the ECHR, Articles 1–3 of the First Protocol, and Articles 1 and 2 of the Sixth Protocol, all as read with Articles 16–18 of the ECHR (see HRA, s 1(1)).    [Back]

Note 2    That is, the release from detention of a person suspected or accused of a criminal offence, subject to an obligation to surrender to the custody of the court or the police at a later date.    [Back]

Note 3    Consultation Paper No 157 (1999). This project has been undertaken pursuant to Item 10 of the Law Commission’s Seventh Programme of Law Reform (1999) Law Com No 259, which recommended “that an examination be made of particular areas of criminal law, evidence and procedure where issues arise in connection with the application of the Human Rights Act 1998”.    [Back]

Note 4    We therefore do not consider the bail position of people who have been detained by the police but not yet charged, nor of those who have been convicted and sentenced but seek bail, eg, because they wish to appeal. Nor do we look at the law as it relates to children and young persons, because to do so would encompass many further issues.    [Back]

Note 5    ECHR, Art 6(2).    [Back]

Note 6    A list is provided in HRA, s 4(5).    [Back]

Note 7    HRA, s 4(4).    [Back]

Note 8    It is for the Government and Parliament to remedy the incompatibility, if they so wish. HRA, s 10, provides Ministers of the Crown with a speedy method of doing so.    [Back]

Note 9    HRA, s 3(2)(b).    [Back]

Note 10    HRA, s 3(2)(c).    [Back]

Note 11    Sir Anthony Hooper, “The Impact of the Human Rights Act on Judicial Decision-making” [1998] EHRLR 676, 682.    [Back]

Note 12    Geoffrey Marshall, “Interpreting Interpretation in the Human Rights Bill” [1998] PL 167.    [Back]

Note 13    See, eg, Garland v British Rail Engineering (No 2) [1983] 2 AC 751, 771; the Court of Appeal in R v Home Secretary, ex p Brind [1991] 1 AC 696. For a useful summary, see R Clayton and H Tomlinson, The Law of Human Rights (2000) paras 2.13 – 2.17.    [Back]

Note 14    Rights Brought Home (1997) Cm 3782, para 2.7.    [Back]

Note 15    Hansard (HL) 18 November 1997, vol 583, col 533. In R v DPP, ex p Kebilene [2000] 2 AC 326, 373, Lord Cooke suggested that it was at least a possible meaning of s 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989 that it imposed an evidential, rather than a persuasive, burden of proof on the defendant, though that did not accord with the most natural interpretation of the statutory language.    [Back]

Note 16    Hansard (HC) 3 June 1998, vol 313, col 422.    [Back]

Note 17    See Richard A Edwards, “Reading Down Legislation under the Human Rights Act” (2000) 20 LS 353.    [Back]

Note 18    Litster v Forth Dry Dock and Forth Estuary Engineering [1990] 1 AC 546.    [Back]

Note 19    In that case the House of Lords was willing to interpolate additional words into the UK regulations in order to give effect to the purpose of the Directive. In so doing, their Lordships adopted an interpretation which clearly strained the language of the regulations. They acted under the European Communities Act 1972, which makes EC law effectively supreme.    [Back]

Note 20    Constitution Act 1982, s 52.    [Back]

Note 21    By including a certain class of individuals which the legislation had not originally protected: Schachter v Canada (1992) 93 DLR (4th) 1, 13, per Lamer CJC. See also Vriend v Alberta (1998) 156 DLR (4th) 385, cited by Lord Lester in “The Art of the Possible” [1998] EHRLR 665, 672.    [Back]

Note 22    Coetzee v Republic of South Africa 1995 (4) SALR 631, para 62, per Sachs J.    [Back]

Note 23    Quilter v Attorney-General [1998] 1 NZLR 523, 542.    [Back]

Note 24    A [2001] UKHL 25.    [Back]

Note 25    Ibid, para [108].    [Back]

Note 26    A [2001] UKHL 25, para [44].    [Back]

Note 27    See Lord Slynn, para [13]; Lord Hope, para [110]; Lord Clyde, para [136]; and Lord Hutton, para [163].    [Back]

Note 28    At para [46].    [Back]

Note 29    An example from New Zealand is Ministry of Transport v Noort [1992] 3 NZLR 260, which concerned the right to seek legal advice by telephone before submitting to a compulsory blood or breath test. It was held that, notwithstanding the lack of provision in the Transport Act, the Act could be read as subject to the right, under the Bill of Rights, of an arrested person to consult a lawyer without delay. See Lord Cooke of Thorndon, “The British Embracement of Human Rights” [1999] EHRLR 243, 249–50.    [Back]

Note 30    The Lord Chancellor has also given some support to the view that the scope of the powers granted by primary legislation can be pared down so that they do not allow Convention rights to be transgressed. See Lord Irvine of Lairg LC, “The Development of Human Rights in Britain under an Incorporated Convention on Human Rights” [1998] PL 221 at 228–229. A helpful discussion of the application of s 3 of the HRA, including the possible relevance of the techniques of “reading in” and “reading down”, is provided in Clayton and Tomlinson’s The Law of Human Rights (2000) vol 1, paras 4.04 – 4.38.    [Back]

Note 31    Eg R v Lord Chancellor, ex p Witham [1998] QB 575.    [Back]

Note 32    HRA, s 6(3).    [Back]

Note 33    Such as the court being satisfied that there are substantial grounds for believing that the defendant, if released on bail, would fail to surrender to custody.    [Back]

Note 34    These provisions are discussed in Part V below.    [Back]

Note 35    The Eleventh Protocol to the ECHR, which came into force on 1 November 1998, put in place a new procedure in which the Court, rather than the Commission, decides the admissibility of a case. As of 30 October 1999 all applications were transferred to the Court. Despite the abolition of the Commission, its decisions remain valid indications of the meaning of the Convention where there is no decision from the Court itself.    [Back]

Note 36    See Luzius Wildhaber, President of the ECtHR, “Precedent in the European Court of Human Rights” (contained in Mahoney, Matscher, Petzold, Wildhaber,Protecting Human Rights: The European Perspective - Studies in memory of Rolv Ryssdal).    [Back]

Note 37    A 26 (1978), 2 EHRR 1, para 31. We commend to readers the discussion of precedent in the ECtHR by Professor David Feldman of the University of Birmingham, contained in Consultation Paper No 157, Appendix C.    [Back]

Note 38    The “margin of appreciation” is the degree of flexibility which the ECtHR allows to national authorities in deciding whether there is a pressing social need to interfere with rights, and how great an interference is necessary.    [Back]

Note 39    See, eg, Handyside v UK A 24 (1976), 1 EHRR 737, para 48. In controversial areas, such as the giving of official recognition to the new status of transsexuals, the ECtHR has refused to find violations of Convention rights until a pan-European consensus has developed: see, eg, Rees v UK A 106 (1986), 9 EHRR 56; Cossey v UK A 184 (1990), 13 EHRR 622; Sheffield and Horsham v UK 1998-V, 27 EHRR 163.    [Back]

Note 40    The ECtHR regards its previous decisions as authoritative interpretations of the Convention under the social and moral conditions, and the state of scientific knowledge, current at the time when they were made. Previous decisions are usually followed and applied, “such a course being in the interests of legal certainty and the orderly development of the Convention case law” (Cossey v UK A 184 (1990), 13 EHRR 622, para 35).    [Back]

Note 41    This reflects the test set out in Article 41 of the ECHR. When deciding whether to award damages, or the amount of an award, English courts are required to take into account the principles applied by the ECtHR in relation to the award of compensation under Article 41 of the Convention (HRA, s 8(4)). The ECtHR cases show that, unless the victim can show that he or she has suffered pecuniary loss that would not have been suffered had Article 5 not been violated, or special facts exist warranting an award for non-pecuniary loss, the finding that a violation has occurred will frequently be considered sufficient “just satisfaction”.    [Back]

Note 42    “In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention”: HRA, s 9(3).    [Back]

Note 43    We considered the right to obtain damages for violations of Convention rights in Part I of Consultation Paper No 157.    [Back]

Note 44    Damages under the Human Rights Act 1998 (2000) Law Com No 266, Scot Law Com No 180, Cmnd 4953. That report includes detailed consideration of the availability of damages in the domestic courts for breaches of Article 5 (paras 6.27 – 6.80), including damages in respect of judicial acts (Appendix A).    [Back]

Note 45    See para 2.29, n 44 below.    [Back]

Note 46    See para 2.29, n 45 below.    [Back]

Note 47    As permitted by the Bail Act 1976, Sch 1, Part I, para 7.    [Back]

Note 48    Examined in Parts III–VIII below.    [Back]

Note 49    See Parts IX–XII below.    [Back]