The Law Commission

PART X

REASONS AND REASONING IN BAIL DECISIONS

10.1      In this Part we consider the significance of the reasons given by a national court for denying bail. The ECtHR has laid down requirements for the reasoning processes which it expects national courts to use. In determining whether a national court has observed these requirements, the ECtHR assumes that the national court's underlying reasoning process is reflected in the reasons it gives for its decision.

The Convention

Grounds and reasons

10.2      In Part II, we listed the grounds which the Court has found capable of being "relevant and sufficient" to justify denying bail.^[1] Whether these grounds do in fact justify detention in a particular case will depend on the cogency of the reasons put forward by the national court. This distinction between grounds and reasons is crucial to the Strasbourg case law.

The importance of reasons

10.3      The following paragraph, or one very like it, commonly occurs by way of introduction to the Court's judgments in Article 5(3) cases:

It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the circumstances arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and 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 true facts mentioned by the detainee in his applications for release and his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5(3).^[2]

10.4      Thus, the ECtHR approaches the question whether the proper consideration of the circumstances militating for and against the accused's detention, as required under Article 5(3), was carried out, and whether the detention was justifiable, by close analysis of the reasoning of the "judge or other officer".^[3]

The nature of the requirement for reasons

10.5      A national court has no independent Convention duty to make an adequate record of the reasons for its decision.^[4] Nevertheless, the ECtHR has refused to accept bald assertions that the national court decision was justified by the facts and for reasons which are compliant with the Convention. In practice, it will usually be impossible for a Government to establish that the national court had sound reasons unless they are recorded in sufficient detail.^[5]

The standard of reasoning required

10.6      It is possible to identify from the case law three different requirements which the reasoning of the national court must satisfy. In addition, the ECtHR has held that certain inferences cannot be drawn.

Reasons must be "concrete", not "abstract" or "stereotyped"

10.7      The ECtHR has stated repeatedly that the reasons put forward by domestic courts will be regarded as inadequate if they are "abstract" or "stereotyped". This arises where the court has failed properly to scrutinise the facts relating to the particular defendant and to relate its conclusions closely to those facts.^[6]

Reasons must be consistent with, and sustained by, the facts of the case

10.8      The ECtHR will not accept the reasoning of the national courts unless the reasoning is sustained by the facts upon which it was based. The Court is surprisingly willing to substitute its own assessment of the facts for that of the national court. There is little discernible "margin of appreciation" in Article 5 cases.^[7]
10.9      Moreover, the facts must continuously sustain the view that a relevant ground for detention exists. Thus, if the facts initially support the belief that, if released, the defendant would abscond or commit an offence, but after a time they cease to support that belief, the ECtHR will hold that, thereafter, reliance upon the ground in question is not supported by the requisite "relevant and sufficient" reasons.^[8]

Reasons must take into account the counter-arguments put forward by the defendant

10.10      The reasons of the national courts must deal with any counter-arguments put forward by the defendant. To the extent that they fail to do so, the Court will treat them as inadequate.^[9]

Reasons must avoid drawing automatic inferences

10.11      Certain circumstances, whilst relevant to the question of whether a defendant should be kept in custody, are not sufficient in themselves to justify detention. Thus, the Court has ruled that:

(1) The strength of the evidence against the defendant cannot in itself serve to justify, for the purposes of the Convention, the inference that his or her detention is necessary. Although "the persistence of a reasonable suspicion that the person arrested has committed an offence is a sine qua non of the validity of the continued detention", after a certain period the domestic authorities must be able to point to further factors which justify his or her continued detention.^[10]

(2) The severity of the sentence which the defendant faces, if convicted, does not in itself justify the inference that he or she would attempt to evade trial if released from detention.^[11] Other factors, especially those relating to the defendant's character, morals, home, occupation, assets, family ties and other links with the country in which the prosecution is taking place, may either confirm the existence of a danger of flight or make it appear so small that it cannot justify detention pending trial.^[12]

(3) The fact that it is possible for the defendant to escape from the jurisdiction does not in itself warrant the conclusion that he or she would abscond if released.^[13]

(4) The existence of a risk that the defendant would commit an offence if released on bail cannot be automatically assumed from the fact that he or she has a criminal record.^[14]

The underlying rationale: proper exercise of judicial discretion

10.12      The ECtHR requires that the reasons given should be sufficient to make it plain that a Convention-compatible decision has been made. They must not consist simply of a statement of the existence of particular facts about the defendant. This could allow the domestic court to slide into the drawing of automatic inferences. Rather, the reasons must state the circumstances which were found to be relevant, and the conclusions drawn from them. The circumstances cited must be sufficient to justify the conclusion reached. There must be a clear nexus between the two that amounts to more than an assumption. Thus, the court should state that the defendant was refused bail not just because he or she had six previous offences of the same type as that charged, which occurred without a substantial break between them, but also that the court therefore believes that there is a real risk that, if released, the defendant would commit such an offence again. If the defendant raises arguments, such as a long period of time since the last conviction during which he or she has taken part in a rehabilitative programme, the reasons given for the refusal of bail should address them.
10.13      The ECtHR's approach need not be seen as imposing overly cumbersome requirements. Rather, it has the potential to enhance the quality of decision-making and increase the legitimacy of bail decisions. Underlying the positive requirements and the forbidden inferences is an insistence on the proper exercise of judicial discretion, with particular emphasis on detailed consideration of the individual facts of each case. Giving full reasons ensures that a proper process is followed, relevant considerations are not overlooked, and the defendant understands why his or her arguments did not prevail.
10.14      Nevertheless, the above discussion of the ECtHR's approach illustrates the difficulties that may face domestic courts having to take a large number of bail decisions in a short time. Perforce, their reasons will be brief and based upon a recitation of standard grounds and factors, such as "previous offending". The problem may be compounded if "tick box" forms for the recording of reasons encourage the giving of reasons in such a brief form.

English law and practice

The Bail Act scheme and practice in the magistrates' courts

10.15      Under section 5(3) of the Bail Act 1976 an English court which withholds bail is required to give reasons, so that the defendant can consider making an application in another court.^[15] This scheme is capable of producing reasons which demonstrate a reasoning process compatible with Article 5. In practice, however, the reasons given by English courts on a variety of standard forms are frequently short and not explicitly based upon particular facts and factors. Stone's Justices' Manual suggests that magistrates announce any decision to refuse bail merely by relating the grounds and statutory reasons in short form.^[16]
10.16      We have identified^[17] certain reasons which are insufficient, in themselves, to justify refusing bail, without proper attention being given to the particular facts in each individual case. These reasons closely resemble the considerations which, under the Bail Act, may be relevant to the decision to refuse bail.^[18] The ECtHR regards such considerations as potentially relevant. It would not be right, however, to use what can only be one relevant consideration, such as a previous conviction, as the basis for an assumption that a Convention-compatible ground for detention, such as a real risk of offending while on bail, exists. This would be an example of the kind of "automatic reasoning" of which the ECtHR has disapproved. Moreover, research suggests that, in practice, inferences which the ECtHR has held to be impermissible are in fact relied on by the courts as a basis for their decisions to refuse bail.^[19]

Administrative law principles

10.17      English administrative law also requires that, where there is an existing obligation to give reasons for a decision, the reasons given be clear and adequate, and deal with the substantial issues in the case.^[20] If this test applies to the duty to give reasons which is imposed by section 5(3) of the Bail Act 1976, and we can see no reason why it should not, then the standards thus expressed are likely to be regarded as co-extensive with those required by the ECtHR.

The recording of the grounds and reasons for not granting bail

The use of "tick box" forms

10.18      Courts use standard forms to provide documentary evidence of the basis of bail decisions. These forms vary in their precise configuration, but in broad terms their layout is the same: they set out the grounds for refusing bail in one column, and a number of possible reasons for finding those grounds established in another. The decision is recorded by ticking the relevant box in each column.^[21]
10.19      The main problem with such forms is that they usually set out in the "grounds" column a number of headings, such as that the offence charged is alleged to have been committed while the defendant was on bail, which we have identified as not being proper grounds for the refusal of bail under the ECHR. While the forms reflect the drafting of the domestic legislation, such matters can, under the Convention, only be reasons capable of justifying detention on the ground that it is necessary for a purpose which complies with the Convention. A form which includes in the "grounds" column what should really be regarded only as a reason capable of supporting the conclusion that one of the grounds is made out is liable to mislead decision-takers into either making decisions which are not compatible with the Convention, or giving reasons for them which fail to demonstrate that they have been arrived at in a Convention-compatible way.
10.20      In the consultation paper we identified a further concern. Decisions recorded on standard forms might be at risk of being characterised as "abstract" or "stereotyped", and therefore inadequate. The ECtHR assumes that the quality of the reasons given directly reflects the quality of the decision-making process. We expressed the view that a refusal of bail, the reasons for which were recorded in insufficient detail on a standard form, might be held to violate Article 5. It might also be difficult to establish that the reasons relied upon were sufficiently supported by the facts, particularly if there was no record showing that the defendant's arguments have been addressed.

Consultation responses

10.21      Respondents to the consultation paper agreed that the Convention required that cogent reasons be given for the refusal of bail. They were divided in their attitudes towards the use of forms with tick boxes. Some regarded such forms as a useful shorthand capable of guiding decision-takers through a complex statutory scheme. Even amongst this group there was concern that such a form may be regarded as evidence of automatic or stereotyped decision-making. We were referred to other forms, such as the custody record form used by the police, where such decisions were recorded and where there was said to be provision for a short individual statement of reasons to be given. Some respondents stated that decision-takers were only required to give their reasons, not to justify them. Since the boxes addressed both the grounds and the reasons for the grounds, the forms were adequate to satisfy this requirement.
10.22      The CPS noted that, in its experience, the form is only a shorthand. Whilst it shared the concern that the use of pro forma documentation might, on its own, be insufficient evidence of proper reasoning, it stated that, in practice, clerks and prosecutors made full notes of the arguments put forward and the reasons given by the magistrates. It suggested that preservation of these notes with the case file would so supplement the documentation of the decision that the reasons would pass muster, both domestically and under the Convention.
10.23      On the other side of the divide, the Bar Council and the Criminal Bar Association jointly expressed the view that the tick box form should be consigned to history as inimical to the requirement for a reasoned decision which incorporates an analysis and conclusion based on the strengths and weaknesses of the contending arguments. One respondent stated that the use of tick boxes often distracts the decision-taker's mind from the proper issues, or reveals that the decision-taker did not properly understand the distinction between the grounds for denying bail, and the reasons supporting the existence of such grounds.

Efficient and adequate recording practices

Standard forms

10.24      Whilst the concern we expressed in the consultation paper about the use of standard forms was justified, our judgment is that the use of such forms can be a boon to persons taking a large number of decisions in a short time, applying a complex statutory scheme. A properly drafted form would lead the decision-taker through the scheme in a demonstrably proper way. Appropriate use of a standard form requiring decision-takers to tick the relevant boxes is an important discipline likely to contribute to the taking of lawful decisions, provided that the form accurately reflects the decision-making process required under the Bail Act 1976, interpreted in accordance with the ECtHR case law. Nevertheless, it cannot be a substitute for a full note, made by the clerk of the court, of the arguments put forward and of the oral decision recording the reasoning of the court. The reasons which a court gives for denying bail should explicitly deal with the facts of the individual case, not simply state a recognised relevant consideration or a circumstance pertaining to the accused, without going further and explaining fully why it is necessary to detain the defendant.
10.25      It is not for us to design forms for use in the courts. It may, however, be useful for us to suggest what might be included in a standard form. It is vital that it should distinguish between "grounds" and "reasons", perhaps in two columns, with one column for grounds, and the other for the considerations taken into account and reasons for the conclusion that the ground(s) exist.

Grounds

10.26      The grounds stated in the first column should only include those recognised both in the Bail Act and by the ECtHR case law, as identified in this report.^[22] The form might usefully make clear that both the Convention and the Bail Act standards must be satisfied before a particular ground can be deemed applicable to a particular case. In the context of a defendant accused of an imprisonable offence, for example, domestic legislation provides that a fear that, if granted bail, the defendant would commit an offence while on bail can only be relied upon where there are "substantial grounds for believing" that he or she will commit an offence while on bail.^[23] This test presumably either exceeds or is co-extensive with the "real risk" standard adopted by the ECtHR.

Considerations and reasons

10.27      The second column might comprise a series of tick boxes identifying the paragraph 9 considerations plus those "grounds" we have identified as being, truly, only "reasons". There might usefully be provision for any other relevant considerations to which regard has been had in reaching the decision. In addition, we suggest that a reasonably large space be provided next to each box in this column. This space could be used for recording the reasons for the court concluding that the ground exists and rejecting the defendant's counter-arguments. We would expect more detailed information to be recorded in the full note made by the clerk of the court. It may also be useful to include on the form a note that reasons given should include the reasons why bail conditions, though considered as a possible alternative to custody, were believed to be inadequate. Where a defendant is granted bail, standard forms could also beneficially be used for recording the grounds and reasons for the imposition of any bail conditions.^[24]
10.28      There may be benefits in providing a well designed flow chart to accompany the form, to guide decision-takers through the process of making decisions and applying the Bail Act in a Convention-compatible way. Such a chart might be usefully modelled on the Magistrates' Association's sentencing guidelines.

Conclusion

10.29      Section 5(3) of the Bail Act 1976 requires an English court to give reasons when refusing bail. The ECHR and domestic administrative law require that the reasons given be clear, adequate to demonstrate the proper exercise of judicial discretion, and address the points put to the court in argument.^[25] Thus, there is every reason to believe that English law is, in this respect, capable of being applied in a way which is compatible with the Convention, and we therefore make no recommendations for legislation.
10.30      It is important that decision-takers understand how to apply the relevant statutory provisions in a manner that accords with the Convention, and to provide proper reasons for their decisions. In our view, given appropriate training, decision-takers and court clerks can make proper decisions and give proper reasons for them. A well-designed form, coupled with proper training and a flow chart, would be of assistance to them in doing so.
10.31      We therefore conclude that:

(1) the use of standard forms as a means of formally recording the reasons for decisions to refuse bail should be continued;

(2) the content of such forms should be reviewed to ensure that the decisions they assist are compatible with the ECHR as well as the relevant domestic legislation;

(3) magistrates' clerks should, as part of their initial and continuing training and guidance, be reminded of the particular importance in bail applications of noting, and retaining for the file, the gist of the arguments for and against the grant of bail, and the oral reasons given by the bench for their decision; and

(4) consideration could be given to the Crown Court and the High Court routinely tape-recording bail hearings, in order that there may be a record of the arguments put forward and the reasons for the decision taken.

Note 1    Para 2.29 above.    [Back]

Note 2    Toth v Austria A 224 (1991), 14 EHRR 551, para 67. See also Letellier v France A 207 (1991), 14 EHRR 83, para 35; Clooth v Belgium A 225 (1991), 14 EHRR 717, para 36; Kemmache v France (Nos 1 & 2) A 218 (1991), 14 EHRR 520, para 45; Tomasi v France A 241A (1992), 15 EHRR 1, para 84; W v Switzerland A 254-A (1993), 17 EHRR 60, para 30; Contrada v Italy 1998V, para 54; IA v France 1998VII, para 102; Assenov v Bulgaria 1998VIII, 28 EHRR 652, para 154.    [Back]

Note 3    See, eg, Ringeisen v Austria (No 1) A 13 (1971), 1 EHRR 455; Letellier v France A 207 (1991), 14 EHRR 83; IA v France 1998VII; Muller v France 1997II.    [Back]

Note 4    Van der Tang v Spain A 321 (1995), 22 EHRR 363, para 60.    [Back]

Note 5    Letellier v France A 207 (1991), 14 EHRR 83, para 43.    [Back]

Note 6    Examples include Clooth v Belgium A 225 (1991), 14 EHRR 717, where the national court in part justified detention by merely referring “by means of a stereotyped formula” (para 44) to an earlier decision; Letellier v France A 207 (1991), 14 EHRR 83, where an appeal to a supposed threat to public order amounted to taking “a purely abstract point of view” (para 51); Yagci and Sargin v Turkey A 319 (1995), 20 EHRR 505, where the national court “nearly always used an identical, not to say stereotyped, form of words, without in any way explaining why there was a danger of absconding” (para 52); and IA v France 1998VII, where the decisions of the national court “refer in an abstract manner” (para 104) to various features of the case.    [Back]

Note 7    In Ringeisen v Austria (No 1) A 13 (1971), 1 EHRR 455, the national court cited evidence in support of its conclusion that the applicant would collude with witnesses and commit further offences. The ECtHR considered the evidence and concluded that it was insufficient to justify the national court’s conclusion. This shows that, where liberty is in issue, the ECtHR is prepared to concern itself directly with the merits of the decision of the domestic court.    [Back]

Note 8    See, eg, Neumeister v Austria (No 1) A 8 (1968), 1 EHRR 91, para 10; Matznetter v Austria A 10 (1969), 1 EHRR 198, para 11; Letellier v France A 207 (1991), 14 EHRR 83, para 51; Clooth v Belgium A 225 (1991), 14 EHRR 717, para 43. In some cases, the Court has concluded that reliance on a particular ground is mistaken because it is only intermittently used as a justification. In IA v France 1998VII, for instance, two grounds (protection of the applicant and the risk that he would pressurise witnesses) were treated in this way, leading the Court to reject them partly on the basis that “it was hard to understand how such risks could fluctuate in such a way” (para 110).    [Back]

Note 9    In Letellier v France A 207 (1991), 14 EHRR 83, the national court did not properly address the applicant’s arguments that she would not abscond because she had young children and derived her income from a small business she ran on her own. See also Neumeister v Austria (No 1) A 8 (1968), 1 EHRR 91, para 11; Stögmüller v Austria A 9 (1969), 1 EHRR 155, para 15; Matznetter v Austria A 10 (1969), 1 EHRR 198, para 11; Tomasi v France A 241A (1992), 15 EHRR 1, para 98.    [Back]

Note 10    See paras 2.26 – 2.29 above.    [Back]

Note 11    Similarly, the Commission has expressed the opinion that the seriousness of the offence of which the defendant has been accused cannot in itself justify pre-trial detention: Morganti v France (No 1) A 320-C (1995), 21 EHRR 34, Commission opinion para 62.    [Back]

Note 12    Neumeister v Austria (No 1) A 8 (1968), 1 EHRR 91, para 10. See also Tomasi v France A 241A (1992), 15 EHRR 1, para 98; W v Switzerland A 254 (1993), 17 EHRR 60, para 33; Yagci and Sargin v Turkey A 319 (1995), 20 EHRR 505, para 52; Muller v France 1997II, para 43.     [Back]

Note 13    Thus in Stögmüller v Austria A 9 (1969), 1 EHRR 155, although the applicant had a pilot’s licence, and ready access to an aeroplane, the Court held that, nonetheless, his detention could not be justified on the ground that he would abscond if released: for he had in fact been released under court supervision for various periods, during which he had made several journeys out of Austria, and had kept constantly in contact with the investigating authorities and returned on each occasion.    [Back]

Note 14    Muller v France 1997II, para 44.    [Back]

Note 15    Legislation has recently been enacted which, when brought into force, will require magistrates’ courts and the Crown Court to give reasons for their decisions where they grant bail after hearing representations from the prosecutor in favour of withholding bail (Criminal Justice and Police Act 2001, s 129). Such a requirement has the potential to promote thoughtful decision-making and the proper consideration of the risks that a defendant might pose if granted bail. We do not believe that it would pose any problems of compatibility with the Convention, provided that courts do not allow themselves to be distracted from the fact that, under both the Bail Act and Art 5, it is the refusal of bail that must be justified as being necessary for a Convention-compatible purpose by the giving of clear and cogent reasons.    [Back]

Note 16    Stone’s Justices’ Manual 2000, para 1-432.    [Back]

Note 17    At para 10.11 above.    [Back]

Note 18    Bail Act 1976, Sched 1, Part I, para 9.    [Back]

Note 19    See Consultation Paper No 157, Appendix D.    [Back]

Note 20    See M Fordham, Judicial Review Handbook (2nd ed 1997) para 62.3; de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed 1995) paras 9-049 to 9-053; H W R Wade and C F Forsyth, Administrative Law (8th ed 2000) pp 918–919.    [Back]

Note 21    One such form, which was in use in the Inner London area, was reproduced in Consultation Paper No 157 as Appendix E.    [Back]

Note 22    Accordingly, factors such as those in paras 2A and 6 of Part I and para 5 of Part II should not appear on any form as independent grounds upon which bail may be withheld.    [Back]

Note 23    Bail Act 1976, Sched 1, Part I, para 2.    [Back]

Note 24    It may be possible to use the same form for recording the reasons for the imposition of bail conditions as would be used for the recording of the reasons for refusing bail altogether. The form for recording bail decisions that was reproduced as Appendix E to Consultation Paper No 157 provides a space for the recording of any conditions imposed, but not for the recording of the reasons for their imposition.    [Back]

Note 25    See paras 10.5 – 10.12, 10.17 above.    [Back]