The Law Commission

PART XI
THE RIGHT TO CHALLENGE THE LEGALITY OF PRE-TRIAL DETENTION

Article 5(4): the right to take court proceedings to challenge the legality of pre-trial detention

11.1      Article 5(4) of the Convention gives a detained person the right to challenge the lawfulness of his or her detention in court at periodic intervals. It 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 his detention is not lawful.^[1]

11.2      The ECtHR has stated that

the purpose of Article 5(4) is to assure to persons who are arrested or detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected.^[2]

The relationship between Article 5(3) and Article 5(4)

11.3      Article 5(3) provides that a person arrested in connection with an alleged offence as permitted by Article 5(1)(c) must "be brought promptly before a judge or other officer authorised by law to exercise judicial power".^[3] Although the procedures required by Articles 5(3) and 5(4) may both result in the defendant's release, their functions remain distinct. Article 5(3) requires that a judicial officer should determine whether the defendant's detention should be extended pending trial; Article 5(4) requires that the defendant be allowed the opportunity to persuade a court that his or her current detention is unlawful.
11.4      The distinction is blurred where a detention has been ordered by a body with the procedural safeguards and characteristics which the ECtHR requires of a court. Under English law, a person arrested for an alleged offence must be brought before a court, not just an officer with judicial power. The person's first appearance before a magistrates' court will (if sufficiently "prompt") satisfy Article 5(3), and may also provide the opportunity for the court challenge which Article 5(4) requires.^[4]
11.5      Where this is so, Article 5 does not give the detained person an immediate right to challenge the legality of the detention in another court. As we shall see in Part XII, however, a right to have the detention scrutinised by a court again may arise after a period of time has passed.

Procedural safeguards required of a court hearing under Article 5(4)

11.6      In De Wilde, Ooms and Versyp v Belgium (No 1)^[5] the ECtHR held, contrary to the ruling in Neumeister,^[6] that the term "court" in Article 5(4) imported certain procedural requirements:

… in order to constitute … a "court" an authority must provide the fundamental guarantees of procedure applied in matters of deprivation of liberty. … [T]he Convention uses the word "court" in several of its Articles. It does so to mark out one of the constitutive elements of the guarantee afforded to the individual by the provision in question (see, in addition to Article 5(4), Articles 2(1), 5(1) (a) and (b), and 6(1) (tribunal)). In all these different cases, it denotes bodies which exhibit not only common fundamental features, of which the most important is independence of the executive and of the parties to the case, but also the guarantees of judicial procedure.^[7]

11.7      The guarantees of judicial procedure that arise wherever the Convention uses the word "court" are not identical in all instances.^[8] The ECtHR has identified certain essential characteristics of the "judicial procedure" necessary to satisfy Article 5(4). In the consultation paper we suggested that these include:

(1)that the defendant is able to participate in the hearing, if only through a legal representative; and

(2)that the hearing is "adversarial", with the parties enjoying "equality of arms".

11.8      Article 5(4) requires that the defendant be given a "speedy" opportunity to challenge the lawfulness of the detention, and to secure his or her release if the detention is not proved to be justified. The Convention is not violated merely because a particular bail hearing does not comply with the necessary procedural requirements, but only if the defendant cannot obtain a hearing that is compliant.

Participation by the defendant

11.9      Although the requirements of Article 5(4) are not coterminous with those of Article 6(1), the opportunity to be heard, "either in person or, where necessary, through some form of representation", is essential.^[9] The opportunity to attend and make submissions in person may be required where the failure to provide such an opportunity would result in unfairness or a risk of injustice;^[10] for example, if some personal characteristic of the defendant was especially pertinent.
11.10      English legislation does not expressly entitle the defendant to be present or to make oral representations personally at a bail hearing, either at first instance or on appeal.^[11]

Consultation responses relating to participation by the defendant

11.11      A broad spectrum of respondents expressed the view that the defendant should usually be present when his or her liberty was being considered.^[12] Some pointed out that it would avoid adjournments for instructions to be taken. The Society of Public Teachers of Law emphasised the concern of the ECtHR to avoid trial in absentia. Liberty asserted that Article 5(4) gave the defendant a right to be present.
11.12      The CPS agreed that defendants should usually be present when their liberty was being considered. They accepted that in practice this is often not the case in the higher courts, but expressed the view that it sufficed that the defendant was represented.

Our views

11.13      Although many respondents thought that, ideally, the defendant should be present, others noted the countervailing considerations of the expense and inconvenience of ferrying defendants to and from court for bail applications, as well as the discomfort this might cause to some defendants. Some respondents mentioned the use of video links between prisons and courts. If video link technology can accommodate confidentiality between client and representative, this may achieve many of the benefits of defendants being "present" while avoiding the practical difficulties of ferrying them about.
11.14      None of the responses cast any serious doubt on our provisional conclusion that it is unlikely that Article 5(4) would be infringed simply because the defendant was not present, provided that he or she was represented. Nevertheless, the court should not hear a bail application to a conclusion in the absence of a defendant where the defendant's presence is essential to fair proceedings. Indeed, we have been informed that magistrates treat defendants as entitled to be present.^[13]

An adversarial hearing with each party enjoying equality of arms

11.15      To satisfy Article 5(4), a hearing must be "adversarial". The defendant must be given an equal opportunity to present his or her case to the court, and to respond to the submissions of the prosecution. In Nikolova v Bulgaria the ECtHR said:

A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceeding must be adversarial, and must always ensure equality of arms between the parties, the prosecutor and the detained person. Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client's detention.^[14]

11.16      We now consider two issues that appear relevant to whether a hearing is sufficiently "adversarial" and provides "equality of arms". First, we consider whether sworn evidence must be heard. Secondly, we consider how much evidence must be disclosed by the prosecution to the defence, prior to the hearing.

Does the court need to hear sworn evidence?

11.17      Two questions arise. Must the prosecution call evidence on oath which is subject to cross-examination? Can the defendant insist on giving or calling evidence on oath?
11.18      We are unaware of any ECtHR decision on the issue of whether Article 5(4) requires the hearing of sworn evidence. There is case law under Article 6, which provides expressly that defendants at trial have the right to examine or have examined witnesses against them.^[15] The procedural safeguards required under Article 5(4), however, are not the same, nor as exacting, as those required under Article 6. In the Havering Magistrates case^[16] the High Court regarded the de Wilde case^[17] and Winterwerp v Netherlands^[18] as representing

the high watermark of the argument that the procedural requirements of article 6 are to be in some way assimilated to consideration of issues under article 5. Neither decision does more … than to underline the fact that, where a decision is taken to deprive somebody of his liberty, that should only to be done after he has been given a fair opportunity to answer the basis upon which such an order is sought …. [I]n testing whether or not such an opportunity has been given, it is essential to bear in mind the nature and purpose of the proceedings in question.^[19]

Thus, the procedural safeguards implied in Article 5(4) cannot be expected to be any stricter for a bail hearing than is required for a trial.

11.19      Even under Article 6, the ECtHR has held that not every defence witness need be called and examined for the trial to be fair.^[20] The important point is that the trial should accord with the principle of "equality of arms", which underlies the right to examine prosecution witnesses:

… this provision does not require the attendance and examination of every witness on the accused's behalf. Its essential aim … is a full "equality of arms" in the matter. With this proviso, it leaves it to the competent national authorities to decide upon the relevance of proposed evidence insofar as is compatible with the concept of a fair trial which dominates the whole of Article 6 …^[21]

11.20      In Bricmont v Belgium the Court stated that normally it will be for the domestic courts to decide whether or not to call a witness, but added:

There are exceptional circumstances which could prompt the Court to conclude that the failure to hear a person as a witness was incompatible with Article 6.^[22]

11.21      The question of evidence on oath at bail hearings was considered by the Home Office Working Party on Bail Procedures in Magistrates' Courts (1974).^[23] The report states:

The suggestion has been made to us that when giving their views on a bail application the police should take the oath. We do not think that this would be appropriate, since it often happens that the prosecution is represented on a bail application by a prosecuting solicitor or by a police officer other than the officer directly concerned in the case. Moreover, the taking of an oath might involve calling witnesses to give first-hand evidence, and this would inevitably slow down the proceedings, often to the defendant's disadvantage. There may, however, occasionally be circumstances where particular facts are in dispute and where it is desirable for the officer in the case or an officer who can speak from his personal knowledge to attend. In these circumstances it may be desirable to put the officer on oath, but in general we consider it preferable for the present practice of making unsworn statements to continue.^[24]

11.22      The English courts have not taken the view that sworn evidence is necessary in every case to prove the "facts" upon which a bail decision is based. In the pre-HRA case of In re Moles^[25] the High Court held that, where a court had to decide whether it was "satisfied" that there were "substantial grounds" for believing something to be the case, such as the existence of a ground for denying bail under paragraph 2 of Part I of Schedule 1 to the Bail Act 1976, strict rules of evidence (as used in trials) were inappropriate. Similarly, in ex parte Sharkey^[26] Lord Lane LCJ stated that there was no requirement for formal evidence to be given in a bail hearing. It was, for example, sufficient for the facts to be related second hand by police officers.

Consultation responses

11.23      There was much comment that evidence is seldom given on oath or subject to cross-examination.^[27] It was said that bail applications are not wholly adversarial, as there is no need to call evidence, and that they are not in practice adversarial. Concern was also expressed about the standard of proof required by the court and the nature of the evidence presented. One academic said that the prosecution case was regarded, even by defence solicitors, as factually accurate, whereas much of the information from the defence was seen as subjective and unable to be validated. This comment may be valid, but may reflect the different types of information typically given by the different sides: the Crown's evidence may often be matters of record such as the antecedent history or the content of witness statements, whereas the defence evidence may be aspirational.
11.24      None of the respondents, however, went so far as to say that bail proceedings without sworn evidence would not satisfy the requirements of Article 5(4).

Our views

11.25      In the recent Havering Magistrates case it was held that, in proceedings following a defendant's arrest for suspected breach of a bail condition,^[28] it was not necessary in every case for the justice to hear sworn evidence:

… 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.^[29]

11.26      Although the case concerned the emergency procedure under section 7(5) of the Bail Act in which the justice is required to form an "opinion" as to certain matters before the defendant may be detained, the High Court's decision appears to be equally applicable to normal bail applications.^[30] Latham LJ endorsed the decisions in In re Moles and ex parte Sharkey.^[31] The court did state, however, that there were some circumstances in which a court should be prepared to hear oral evidence. Furthermore, the justice should take into account the quality of the material before him or her when forming the necessary opinion:

This material is likely to range from mere assertion … which is unlikely to have any probative effect, to documentary proof …. The procedural task of the justice is to ensure that the defendant has a full and fair opportunity to comment on, and answer, that material. If that material includes evidence from a witness who gives oral testimony, clearly the defendant must be given an opportunity to cross-examine. Likewise, if he wishes to give oral evidence he should be entitled to. The ultimate obligation of the justice is to evaluate that material in the light of the serious potential consequences to the defendant, having regard to the matters to which I have referred, and the particular nature of the material, that is to say taking into account, if hearsay is relied upon by either side, the fact that it is hearsay and has not been the subject of cross-examination, and form an honest and rational opinion.^[32]

11.27      In our view, if courts follow these guidelines in conducting bail hearings, Article 5(4) is unlikely to be violated simply because the court has not heard sworn evidence. There was nothing in any of the consultation responses to cast doubt on our provisional conclusion that it is not necessary to hear sworn evidence in the great majority of cases, but courts should, in particular cases, consider whether fairness requires the calling of evidence on oath for the determination of the application, as a failure to call such evidence may cause a particular decision to fall foul of Article 5(4).
11.28      A court hearing bail proceedings should take account of the quality of the material presented. It may range from mere assertion to documentary proof. If the prosecution's material includes oral evidence, the defendant must be given an opportunity to cross-examine the witness. Likewise, the defendant should be permitted to give oral evidence if he or she wishes to do so.

Disclosure

11.29      The aspect of "equality of arms" that seems most troublesome in the case of bail hearings in magistrates' courts is that of disclosure.^[33] There is no statutory requirement to make disclosure for the purpose of such hearings. If bail is refused where disclosure has not been made, it may be argued that such a hearing is not sufficiently "adversarial" to satisfy Article 5(4).^[34]
11.30      The scale of disclosure required is unlikely to be comparable with that required for trial. Nikolova suggests that the only documents which must be disclosed are those which the defence advocate needs to see for the purpose of effectively countering the prosecution's reasons for opposing bail.^[35]

Consultation responses relating to disclosure

11.31      The Bar Council, the Criminal Bar Association and Liberty expressed concern about the extent of disclosure, and disagreed with the proposition that prosecutors would voluntarily disclose relevant material without legislative compulsion.
11.32      The CPS referred us to ex parte Lee,^[36] in which the Court of Appeal specifically considered disclosure at a stage prior to committal, that is, before the statutory disclosure regime of the Criminal Procedure and Investigations Act 1996 bites. The court emphasised the continuing obligations on the prosecutor to make such disclosure as justice and fairness may require in the particular circumstances of the case. One example given was that previous convictions of a complainant or deceased should be disclosed if that could reasonably be expected to assist the defence when applying for bail.

Our views

11.33      In the recent case of Wildman, Lord Woolf CJ stated that

formal disclosure of the sort which is appropriate prior to the trial will not normally be necessary in regard to an application either for bail or for an extension of [custody] time limits. As long as the defendant's interests are properly protected, having regard to the issues which are before the justices, that will suffice.^[37]

Newman J agreed that it was not necessary for the prosecution to disclose all of the evidence in its possession to provide the defence with equality of arms and to comply with the ECHR. He endorsed the statement of Kennedy LJ in ex parte Lee that a responsible prosecutor "should be asking himself what, if any, immediate disclosure justice and fairness required him to make in the particular circumstances of the case".^[38]

11.34      In our view there is no need to change the law relating to disclosure. Ex parte Lee recognises an ongoing duty of disclosure from the time of arrest. It states the test to be applied, and applies it specifically to bail applications. If its requirements, together with the Attorney General's guidelines to prosecutors,^[39] are observed, Article 5(4) can be complied with.

Is there a requirement that the hearing be held in public?

11.35      We raised in the consultation paper the question whether bail hearings should be held in public. We drew attention to two ECtHR cases in which reviews of the legality of pre-trial detentions which took place in camera were found to be unsatisfactory.^[40] The Convention does not require that the hearing be held in public. A public hearing would often not be in the interests of defendants. We suggested that the defendant's wishes for a public hearing may be relevant to whether the requirements of Article 5(4) had been complied with.
11.36      In each of these cases, access to the purported "hearing", which was described as having been held "in camera", was denied not only to the public, but even to the defendant and his or her representative. The ECtHR found that the proceedings were not compatible with Article 5(4) because they were not truly adversarial and did not ensure equality of arms between the parties. We cannot draw from this any inference that the ECtHR found a violation simply because the hearing was not held in public. The court neither mentioned this, nor did it cite Article 6 cases on the benefits of justice being seen to be done.^[41] This suggests that a public hearing is not required.
11.37      Bail hearings in the magistrates' court always take place in open court. In the Crown Court and the High Court, however, bail hearings generally take place "in chambers"^[42] (whether actually in the judge's room or in court). In the High Court in London and at other major centres the hearing is not normally open to the public unless the judge otherwise directs. Wherever bail hearings take place, the defendant's legal representative is entitled to be heard.

Consultation responses relating to the question of whether bail hearings need to be held in public

11.38      The Bar Council and the Criminal Bar Association's joint response, along with Liberty, commented that there was no reason for bail applications to be heard in private, but gave no examples of bail hearings being held in private against the wishes of the defendant. The CPS and the Law Society made the point that it was often in the interests of the defendant to have these hearings in private. Neither thought there was any evidence that bail hearings were being held in private contrary to the wishes of defendants.
11.39      NACRO pointed out that the holding of High Court bail applications in private means that there is little authority on the correct approach to be taken in bail proceedings. Lord Woolf had, in his 1991 report on the 1990 prison disturbances, acknowledged this as a problem and suggested that there might be occasions when High Court judges could usefully adjourn some decisions on bail applications into open court where guidance, in the form of a public judgment, would be beneficial.

Our views

11.40      This issue does not seem to pose a problem. Under the present arrangements, there seems to be no reason why, if the defendant wants the hearing to be in public, the hearing should be held in private against his or her wishes. The power exists for the court to hold it in public and we would have thought it inconceivable that any judge would refuse such a request by the defendant unless there was some other free-standing reason for it to be held in camera.

Conclusion

11.41      Our provisional conclusion was that a defendant refused bail in England and Wales would be unlikely to have a valid complaint that he or she had no opportunity to challenge the decision in a court hearing which complied with Article 5(4). The responses we have received, particularly from practitioners, have confirmed us in this view, and we make no recommendation on this issue.

Note 1    The purpose of this provision is to ensure that a person detained by administrative action can challenge the legality of that detention in a court of law. In England and Wales this purpose is, in general, served by the law of habeas corpus.    [Back]

Note 2    De Wilde, Ooms and Versyp v Belgium A 12 (1971), 1 EHRR 373, para 76.    [Back]

Note 3    See Part II above.    [Back]

Note 4    Thus, where a person has been imprisoned under Article 5(1)(a) having been convicted and sentenced by a court, the requirement of judicial supervision of the lawfulness of the detention contained in Article 5(4) will have already been satisfied by the decision of the trial court: De Wilde, Ooms and Versyp v Belgium A 12 (1971), 1 EHRR 373, para 76.    [Back]

Note 5    A 12 (1971), 1 EHRR 373.     [Back]

Note 6    In Neumeister v Austria (No 1) A 8 (1968), 1 EHRR 91, the ECtHR had held that the principle of “equality of arms” inherent in the right to a fair trial conferred by Article 6(1) was not applicable to an examination of a request for provisional release. At para 24, the Court had said that the term “court” implies only that the authority called upon to decide [upon a request for release] must possess a judicial character, that is to say, be independent both of the executive and of the parties to the case; it in no way relates to the procedure to be followed.    [Back]

Note 7    De Wilde, Ooms and Versyp v Belgium (No 1) A 12 (1971), 1 EHRR 373, paras 76, 78.     [Back]

Note 8    Ibid, para 78.     [Back]

Note 9    Winterwerp v Netherlands A 33 (1979), 2 EHRR 387, para 60; Toth v Austria A 224 (1991), 14 EHRR 551; Kampanis v Greece A 325, (1995) 21 EHRR 43; Hussain v UK (1996) 22 EHRR 1; Assenov v Bulgaria 1998-VIII, 28 EHRR 652; Nikolova v Bulgaria 1999-II, 31 EHRR 64.    [Back]

Note 10    Sanchez-Reisse v Switzerland A 107 (1986), 9 EHRR 71, para 51.    [Back]

Note 11    Magistrates may proceed in the absence of the defendant where he or she is legally represented (MCA 1980, s 122;Baxter v Chief Constable of West Midlands, The Independent 15 June 1998), and may remand the defendant in custody in his or her absence with his or her consent (MCA 1980, s 128(3A)). They may also do so where the defendant is already in custody, and cannot be produced at court due to accident or illness (MCA 1980, s 129); but we have been informed that in these circumstances the court would proceed with the bail application only if the defendant’s advocate so requested. The defendant may also be permitted to participate in the hearing via a live television link (Crime and Disorder Act 1998, s 57).    [Back]

Note 12    Those who took this view included the Law Society, the Office of the Judge Advocate General, the Society of Public Teachers of Law, and a criminal defence solicitor.    [Back]

Note 13    Moreover, we have been told that, where the defendant is so unruly that the prison staff say he or she cannot be brought into court, the magistrates will go down to the cells to hear the application with the prosecution and defence lawyers present. We have also been told that magistrates would expect the procedure to be challenged by judicial review if they gave their decision in the defendant’s absence against his or her wishes.    [Back]

Note 14    1999-II, 31 EHRR 64, para 58.    [Back]

Note 15    Article 6(3)(d) expressly sets out a minimum right of a person charged with a criminal offence “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.    [Back]

Note 16    R (on the application of DPP) v Havering Magistrates’ Court and R (on the application of Mark McKeown) v Wirral Borough Magistrates’ Court [2001] 1 WLR 805. Distinguishing between processes required for conformity with Article 5 and with Article 6 of the Convention, Latham LJ said, at para 36: … that does not mean that the process required for conformity with Article 5 must also be in conformity with Article 6. That would conflate the Convention’s control over two separate sets of proceedings, which have different objects.    [Back]

Note 17    De Wilde, Ooms & Versyp v Belgium (No 1) A 12 (1971), 1 EHRR 378, discussed at para 11.6 above.    [Back]

Note 18    [1979] 2 EHRR 387, in which the ECtHR said, at para 60: The judicial proceedings referred to in Article 5(4) need not, it is true, always be attended by the same guarantees as those required under Article 6(1) for civil or criminal litigation. Nonetheless, it is essential [that] the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded “the fundamental guarantees of procedure applied in matters of deprivation of liberty”.    [Back]

Note 19    R (on the application of DPP) v Havering Magistrates’ Court and R (on the application of Mark McKeown) v Wirral Borough Magistrates’ Court [2001] 1 WLR 805, para 35.    [Back]

Note 20    Engel v Netherlands (No 1) (1976) 1 EHRR 647.    [Back]

Note 21    Ibid, para 91.    [Back]

Note 22    A 158 (1989), 12 EHRR 217, para 89.    [Back]

Note 23    This report led to the enactment of the Bail Act 1976.    [Back]

Note 24    Bail Procedures in Magistrates’ Courts: Report of the Working Party (Home Office 1974) para 93.    [Back]

Note 25    [1981] Crim LR 170.    [Back]

Note 26    R v Mansfield Justices, ex p Sharkey [1985] 1 QB 613.    [Back]

Note 27    This practice was noted by London Legal Lectures, the Office of the Judge Advocate General, the Justices’ Clerks’ Society, the Law Society, and the CPS.    [Back]

Note 28    The procedure under the Bail Act 1976, s 7(5). See Part VII above.    [Back]

Note 29    R (on the application of DPP) v Havering Magistrates’ Court and R (on the application of Mark McKeown) v Wirral Borough Magistrates’ Court [2001] 1 WLR 805, para 39, per Latham LJ.    [Back]

Note 30    In Wildman v DPP [2001] EWHC Admin 14, The Times 8 February 2001, Lord Woolf LCJ took the view that, following the Havering Magistrates case, it was not always necessary for justices to hear evidence before refusing bail or extending a custody time limit (paras [18]–[20]).    [Back]

Note 31    R (on the application of DPP) v Havering Magistrates’ Court and R (on the application of Mark McKeown) v Wirral Borough Magistrates’ Court [2001] 1 WLR 805, para 40.    [Back]

Note 32    R (on the application of DPP) v Havering Magistrates’ Court and R (on the application of Mark McKeown) v Wirral Borough Magistrates’ Court [2001] 1 WLR 805, para 41, per Latham LJ.    [Back]

Note 33    In Lamy v Belgium A 151 (1989), 11 EHRR 529, the ECtHR held that there was no “equality of arms”, and that, therefore, the hearings were not sufficiently “adversarial” to satisfy Article 5(4), where the applicant was refused access to the investigation file, and his counsel was allowed access to it only during the 48 hours preceding each hearing. Crown counsel had been familiar with the whole file, while the applicant had been unable to challenge the reasons relied upon to justify a remand in custody.    [Back]

Note 34    Article 5(4) gives the defendant a right speedily to challenge his or her detention before a court, with the benefit of proper disclosure and the other safeguards implicit in “equality of arms”. Thus, a failure to make disclosure at the first remand hearing would not, by itself, involve a breach of Article 5(4) if disclosure were made at the second or on appeal, provided that the second hearing was held “speedily”.    [Back]

Note 35    See para 11.15 above.    [Back]

Note 36    R v DPP, ex p Lee [1999] Cr App R 304.    [Back]

Note 37    Wildman v DPP [2001] EWHC Admin 14, para [24].    [Back]

Note 38    Ibid, para [32].    [Back]

Note 39    The Attorney General’s guidance on Disclosure of Information in Criminal Proceedings (November 2000) states, at para 34: Prosecutors must always be alive to the need, in the interests of justice and fairness in the particular circumstances of any case, to make disclosure of material after the commencement of proceedings but before the prosecutor’s duty arises under the [CPIA 1996]. For instance, disclosure ought to be made of significant information that might affect a bail decision or that might enable the defence to contest the committal proceedings. See also Points for Prosecutors (September 2000) p 22. Both documents are available at www.lslo.gov.uk.    [Back]

Note 40    Assenov v Bulgaria 1998-VIII, 28 EHRR 652; Nikolova v Bulgaria 1999-II, 31 EHRR 64. In the latter (at para 47) the State accepted that, in light of the former, the relevant legislation applicable in Bulgaria at that time could not be regarded as being in conformity with the Convention.    [Back]

Note 41    Article 6 (the right to a fair trial) expressly states that “Judgment shall be pronounced publicly” but that “the press and public may be excluded from all or part of the trial” in the pursuit of a number of legitimate aims specified in the article.    [Back]

Note 42    Crown Court Rules 1982, r 27 states that the jurisdiction of the Crown Court in hearing bail applications “may be exercised by a judge of the Crown Court sitting in chambers”. Bail hearings in the High Court are governed by the Civil Procedure Rules 1998. Order 79, rule 9 of Part 50 of the CPR states that applications to the High Court in respect of bail in any criminal proceedings must be made by claim form to a judge. Although the commentary in the “White Book” states that the application must be made to the judge in chambers (Civil Procedure (2001) Vol 1, sc 79.9.2), and this reflects long established practice, it may well be that this practice should be reconsidered in the light of Part 39 of the CPR, which states: “(1)The general rule is that a hearing is to be in public” and “(3) A hearing, or any part of it, may be in private … (g) if the court considers this to be necessary, in the interests of justice”.    [Back]