The Law Commission

PART XII

REPEATED APPLICATIONS

12.1      Article 5(4) gives a detained person the right to challenge his or her detention in a court of law. In this part we consider the right to make further challenges which is implicit in Article 5(4), and whether English law provides enough opportunities for repeated bail applications to comply with that right.

The requirements of Article 5(4)

The right of periodic challenge

12.2      Where a court refuses bail, Article 5(4) does not give the defendant a right to challenge that decision immediately in another court,^[1] but sometimes entitles the defendant to challenge the lawfulness of the detention again on a later occasion. The ECtHR has expressly so held in the case of persons detained under Article 5(1)(e).^[2]
12.3      In Bezicheri v Italy^[3] the Court extended this approach to detention under Article 5(1)(c). The applicant had been arrested in May 1983, and the first review of the lawfulness of the detention took place in June 1983. He made a second application for release from detention in July 1983. The State argued that the defendant's second application had been made too soon. The ECtHR disagreed:

… the nature of detention on remand calls for short intervals; there is an assumption in the Convention that detention on remand is to be of strictly limited duration …, because its raison d'être is essentially related to the requirements of an investigation which is to be conducted with expedition.^[4]

When must repeated challenges be heard?

12.4      The ECtHR has not explicitly held that pre-trial detention must be open to periodic challenge under Article 5(4) even if the circumstances have not changed. Nevertheless, it has identified the possibility of the passage of time contributing to a change of circumstances as the reason for a right to challenge detention at periodic intervals.^[5] It has often pointed out that the various risks justifying pre-trial detention may diminish over time.^[6]

Does English law and practice comply with these requirements of Article 5(4)?

12.5      Two questions arise. First, are bail hearings sufficiently frequent? Secondly, do such hearings afford an effective review of the lawfulness of detention?

Are bail hearings sufficiently frequent?

12.6      The court must consider the question of bail on the defendant's first appearance, whether or not the defendant applies for it. If he or she is remanded in custody, it must reconsider bail at each subsequent hearing which the defendant attends,^[7] whether or not an application for bail is made. The rules on the intervals at which a defendant on remand must be brought before the court mean that the court must reconsider the question of bail within eight days of the first hearing, and at least every 28 days thereafter.^[8] Might an interval of 28 days be too long to satisfy the requirement that after a "reasonable interval" a defendant is entitled to bring further court proceedings for determination of whether his or her detention is lawful?
12.7      In Bezicheri v Italy^[9] the State failed to establish that a defendant's application for a reconsideration of a bail decision after only one month was made too soon. Apart from stating that "the nature of detention on remand calls for short intervals",^[10] the ECtHR has not stated what interval will suffice.
12.8      Pre-trial detention in England and Wales is now subject to custody time limits.^[11] Broadly speaking, the maximum period of custody in the magistrates' court is 70 days from the first court appearance to the start of summary trial or committal; and in the Crown Court 112 days, from committal to the start of the trial.^[12] This gives an overall maximum of six months. Time limits can be extended in certain circumstances but, if no extension is granted, the expiry of a time limit gives the defendant an absolute right to bail.^[13] This means that a defendant who does not succeed in obtaining bail is likely to be detained for a substantially shorter period than in some other countries which are parties to the Convention. Despite the temptation to do so, we do not regard this factor as in any way affecting the frequency with which a detained defendant is entitled to have the lawfulness of the detention reviewed, as provided for by Article 5(4).

Conclusion

12.9      In the consultation paper we provisionally concluded that reconsideration of bail at least every 28 days is compliant with Article 5(4). The respondents agreed with us. We therefore see no reason to doubt our provisional conclusion.

Does the court conduct an effective review of the lawfulness of detention?: repetition of arguments previously heard

12.10      Paragraph 2 of Part IIA of Schedule 1 to the Bail Act 1976^[14] provides:

At the first hearing after that at which the court decided not to grant the defendant bail he may support an application for bail with any argument as to fact or law that he desires (whether or not he has advanced that argument previously).

Paragraph 3 provides:

At subsequent hearings the court need not hear arguments as to fact or law which it has heard previously.

12.11      These provisions, which were enacted in 1988, had their origins in justices' attempts to cope with the workload of repeated bail applications. When the Bail Act 1976 came into force, magistrates' courts could only remand an unconvicted person in custody for a maximum period of eight clear days,^[15] with the result that many defendants applied for bail every week. In 1980, the Nottingham justices adopted a policy of refusing to hear bail applications after the second successive refusal of bail unless the defendant could point to relevant "new circumstances".^[16]
12.12      In R v Nottingham Justices, ex parte Davies, the Divisional Court held this policy to be lawful. Donaldson LJ said:

I accept that the fact that a bench of the same or a different constitution has decided on a previous occasion or occasions that one or more of the Schedule 1 exceptions applies and has accordingly remanded the accused in custody, does not absolve the Bench on each subsequent occasion from considering whether the accused is entitled to bail, whether or not an application is made.

However, this does not mean that the justices should ignore their own previous decision or a previous decision of their colleagues. Far from it. On those previous occasions, the court will have been under an obligation to grant bail unless it was satisfied that a Schedule 1 exception was made out. If it was so satisfied, it will have recorded the exceptions which in its judgment were applicable. This … is a finding by the court that Schedule 1 circumstances then existed and it is to be treated like every other finding of the court. It is res judicata or analogous thereto. It stands as a finding unless and until it is overturned on appeal. … It follows that on the next occasion when bail is considered the court should treat, as an essential fact, that at the time when the matter of bail was last considered, Schedule 1 circumstances did indeed exist. Strictly speaking, they can and should only investigate whether that situation has changed since then.^[17]

12.13      The Divisional Court said that the policy of the Nottingham justices needed to be qualified in one respect:

The question is a little wider than "Has there been a change?". It is "Are there any new considerations which were not before the court when the accused was last remanded in custody?"^[18]

12.14      The scope of the rule in the Nottingham Justices case was clarified in R v Barking Justices, ex parte Shankshaft.^[19] There had been a refusal of bail at a second hearing, at which the defendant submitted that there were new factors.^[20] The justices decided that they could not look at anything except the fresh grounds and refused to consider the previous grounds.^[21]
12.15      The Divisional Court held that the justices had misdirected themselves. Comyn J, giving judgment, said:

You can only make a second application of any value or use to anybody if you take into account the whole circumstances, the old as well as the new. You cannot regard it as a half-shut, half-open door. That is not doing justice to the individual or justice in the eyes of the public. … In these matters one has got to look at the accumulation of facts. One has, of course, got to bear wholly in mind the facts of previous applications, how they were put and what the objections were at that particular time.^[22]

12.16      The effect of the statutory provisions, alongside the Shankshaft judgment, is that on the third and subsequent bail applications, the court need not hear arguments that it has already heard if no new arguments are being put forward by the defendant in support of bail.^[23] Where no new argument is put forward, Part IIA gives the court a discretion not to hear any arguments at all. If the defendant presents a new argument, however, the court must look at it and take account of all the relevant circumstances, old as well as new.

Our views

The consultation paper

12.17      Our provisional view was that where, after a remand in custody of 28 days, the defendant makes a further application for bail, and the court refuses to hear arguments that were put forward at the previous hearing, the ECtHR might well find an infringement of the defendant's rights under Article 5(4). This would be particularly so if, as some have suggested, magistrates are reluctant to accept that concrete facts put forward by the defendant, such as a new job, sureties, a fixed address, a deterioration in health, dependants at home, or the completion of police inquiries (allegedly making witness interference less likely) amount to a change in circumstances to be considered.^[24]
12.18      We suggested that where a defendant makes a further application for bail after 28 days of detention, a magistrates' court should hear the old arguments again, irrespective of whether the defendant wishes to advance any new arguments. We observed that magistrates were already free to do so: paragraph 3 of Part IIA only provides that the court need not hear arguments which it has previously heard, not that it may not.
12.19      Furthermore, if the passage of time is itself treated as a material change of circumstances on which a new argument can be based, the court must hear that new argument, and any other argument put forward, old or new. We expressed the view that, if this were correct, amending legislation would not be required as appropriate guidance to decision-takers would suffice.

Consultation responses

12.20      The substantial majority of those who responded on this point agreed with our conclusion that the statutory provisions were capable of being read compatibly with the ECHR. Most were in favour of some form of guidance to the effect we suggested. One or two thought that legislation was appropriate, but most were content with a practice direction.
12.21      Some respondents appeared to think that we were suggesting that the mere lapse of time would have greater influence on bail decisions than would be likely. Some seemed to think that it would necessarily be regarded as a reason to grant bail. Others seemed to think that it involved acceptance that the reasons for refusing bail would necessarily reduce in potency with the passage of time. That was not the import of our suggestion. The passage of time may affect matters to such an extent that, after a period of time has elapsed, continued detention may no longer be necessary. Thus, the defendant should be entitled to ask a court to reconsider the need for continued detention, on the basis that the passage of time may have diminished the risks previously justifying it. It is clear from the decision in Bezicheri v Italy that the passage of one month may affect matters so as to give rise to this entitlement.

Conclusions

12.22      Having considered the consultation responses, we have modified our view. Although the passage of time may result in a change of circumstances on which an argument in favour of bail can be based, it will not necessarily do so in every case. If the lapse of 28 days necessarily constituted a new argument which had to be determined taking into consideration the previous applications and objections, a defendant could insist on a full re-hearing of bail arguments every 28 days even if no material change in circumstances had occurred. We believe that this would place a more onerous duty on the courts than the Convention actually demands.
12.23      We now consider that courts should be willing, at regular intervals of 28 days, to consider arguments that the passage of time constitutes, in the particular case before the court, a change in circumstances so as to require full argument. It may be, for example, that the time served on remand has reduced the risk of the defendant absconding. If the court finds that the passage of time does amount to a relevant changed circumstance, or that there are other circumstances which may be relevant to the need to detain the defendant, that have changed or come to notice since the last fully argued bail hearing, then a full bail application should follow in which all the arguments, old and new, could be put forward and taken into account.
12.24      Where, after such a hearing,^[25] the court further remands a defendant in custody, section 5(6A) of the Act imposes a duty to issue a certificate that the court has heard full argument on the application for bail.^[26] Where such a certificate is issued, the court "shall state … the nature of the change of circumstances or the new considerations which caused it to hear a further fully argued bail application".^[27] In appropriate cases, it would be legitimate for a court to record the change of circumstance as having been the passage of time since the last bail application.

Judges and magistrates hearing repeated bail applications

12.25      Two respondents^[28] suggested that repeat applications should not be heard by the same magistrates or judge who heard one of the previous bail applications. We disagree. The magistrates' and judges' oaths of office and the case law require them to consider each application properly and not to regard themselves as bound by their previous decision.

Conclusion

12.26      The existing legislation is capable of being applied compatibly with the Convention. We therefore make no recommendation for legislation.

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

Note 2    Article 5(1)(e) permits “the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics, or drug addicts or vagrants”. In Winterwerp v Netherlands A 33 (1979), 2 EHRR 387, the applicant had been detained under Dutch legislation dealing with mentally ill persons. He complained that he had not been notified of the periodic renewals of court orders authorising his detention, nor been allowed to appear before the court or represented in the proceedings. The ECtHR held that this was a violation of Article 5(4).    [Back]

Note 3    A 164 (1989), 12 EHRR 210.    [Back]

Note 4    Bezicheri v Italy A 164 (1989), 12 EHRR 210, para 21. This ruling was applied in Assenov v Bulgaria 1998-VIII, 28 EHRR 652.    [Back]

Note 5    Winterwerp v Netherlands A 33 (1979), 2 EHRR 387.    [Back]

Note 6    See, eg, Neumeister v Austria A8 (1968) 1 EHRR 91, para 10: The danger of flight necessarily decreases as the time spent in detention passes by, for the probability that the length of detention on remand will be deducted from the period of imprisonment which the person concerned may expect, if convicted, is likely to make the prospect seem less awesome to him and reduce his temptation to flee. See also IA v France 1998-VII, paras 105, 109–111; Muller v France (No 1)1997-II, para 45.    [Back]

Note 7    Bail Act 1976, Sched 1, Part IIA, para 1. The court need not consider the question of bail at hearings which the defendant does not attend. This is because the right to bail applies to any person who “appears or is brought before a magistrates’ court or the Crown Court in the course of or in connection with proceedings for the offence, or [who] applies to a court for bail in connection with the proceedings”: Bail Act 1976, s 4(2).     [Back]

Note 8    See MCA 1980, ss 128 and 128A (the latter was inserted by Criminal Justice Act 1988, s 155).    [Back]

Note 9    A 164 (1989), 12 EHRR 210.    [Back]

Note 10    Ibid, para 21.    [Back]

Note 11    Prosecution of Offences (Custody Time Limits) Regulations (SI 1987 No 299).    [Back]

Note 12    Where the defendant is sent to the Crown Court for trial under s 51 of the Crime and Disorder Act 1998 (which provides for a person charged with an indictable-only offence to be sent for trial without committal proceedings), the maximum period of custody between the defendant being sent to the Crown Court for an offence and the start of the trial in relation to it is set at 182 days: Prosecution of Offences (Custody Time Limits) Regulations (SI 1987 No 299) reg 5(6B).    [Back]

Note 13    Prosecution of Offences (Custody Time Limits) Regulations (SI 1987 No 299) reg 8(2)(b): Where the time limit has expired, s 4(1) of the Bail Act 1976 is read as though it gave the defendant a right to bail that could not be limited by the exceptions provided in Sched 1.    [Back]

Note 14    Inserted by Criminal Justice Act 1988, s 154.    [Back]

Note 15    Magistrates’ Courts’ Act 1952, s 105; now MCA 1980, s 128(6). Defendants had no pre-committal right of appeal to the Crown Court against a decision of a magistrates’ court to refuse bail, and criminal legal aid was not available for applications to a judge in chambers. Hence, in practice, defendants had no option other than to seek release by way of repeated bail applications to the magistrates’ court. It remains the case that legal aid is not available for an application to a judge in chambers. However, defendants may now appeal to the Crown Court against a decision of the magistrates’ court to refuse bail: Criminal Justice Act 1982, s 60.     [Back]

Note 16    The policy of allowing defendants to make two applications for release, despite the absence of any change of circumstances, was based on the consideration that the defence will often be unable to prepare the application properly in time for the first hearing.    [Back]

Note 17    R v Nottingham Justices, ex p Davies [1981] QB 38, 43–44. This decision was the subject of trenchant criticism by many commentators. See A Samuels, “Bail: Renewed Application” (1981) 131 NLJ 132; M Hayes, “Where Now the Right to Bail?” [1981] Crim LR 20; N Corre and D Wolchover, Bail in Criminal Proceedings (1999) para 5.4.5.    [Back]

Note 18    R v Nottingham Justices, ex p Davies [1981] QB 38, 44.    [Back]

Note 19    (1983) 147 JP 399.    [Back]

Note 20    These were in the form of suitable sureties and the fact of his mother’s illness.    [Back]

Note 21    They were so advised and so acted upon the basis of R v Nottingham Justices, ex p Davies. The court in Shankshaft explained what it understood the court to have meant in the Nottingham Justices case in relation to repeated applications for bail. No point was made about the fact that the constraints on repeated applications required by the policy of the Nottingham justices relate to any hearing after the second hearing, not the second hearing itself (which the facts of Shankshaft concerned). The Nottingham justices’ policy accepted that a second full bail application should be permitted, as insufficient information may be available at the first application.    [Back]

Note 22    (1983) 147 JP 399, 401–402.    [Back]

Note 23    The court nevertheless remains obliged to consider whether the defendant should be granted bail according to the usual criteria.    [Back]

Note 24    J Burrow, “Bail – A Suitable Case for Treatment” (1982) 132 NLJ 409. The author does not suggest that on each and every occasion these examples have been put forward they have been refused, rather that they are illustrative of an unsympathetic view towards “changes”.    [Back]

Note 25    One in which the court has heard full argument, being satisfied that there has been a change in circumstances or that new considerations have been placed before it.    [Back]

Note 26    By virtue of the combined effect of s 81(1)(g) and (1J) of the Supreme Court Act 1981, a full argument certificate is a prerequisite of an application for bail to the Crown Court (if made before committal). There is the alternative, which does not require a certificate, of an application to the High Court, but legal aid does not cover such applications.    [Back]

Note 27    Section 5(6B).    [Back]

Note 28    Liberty and the Inner London Magistrates’ Courts Service.    [Back]