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You are here: BAILII >> Databases >> The Law Commission >> Bail and the Human Rights Act 1998 Part XIII [2001] EWLC 269(13) (20 June 2001)
URL: http://www.bailii.org/ew/other/EWLC/2001/269(13).html
Cite as: [2001] EWLC 269(13)
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- detention is necessary to address a real risk that, if granted bail, the defendant would suffer harm by others or self-harm, against which detention could provide protection, and
- there are exceptional circumstances in the nature of the alleged offence and/or the conditions or context in which it is alleged to have been committed.[7]
- detention is for a short period, which is no longer than necessary to enable the required information to be obtained, and
- the lack of information is not due to a failure of the prosecution, the police, the court, or another state body to act with "special diligence".
PART XIII
SUGGESTED GUIDANCE FOR BAIL DECISION-TAKERS
13.1 In producing this report, we hope that it 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. In summary we first set out our conclusions on the general principles applicable to the refusal of bail, and then give some guidance on how decision-takers might apply various provisions of the Bail Act, so as to comply with the ECHR.ECHR principles applicable to the refusal of bail[1]
13.2 A defendant should be refused bail only where detention is necessary for a purpose which the ECtHR has recognised as legitimate in that detention may be compatible with the defendant's right to release under Article 5(3). Those recognised purposes are to avoid a real risk that, were the defendant released,(1) he or she would
(a) fail to attend trial; or
(b) interfere with evidence or witnesses, or otherwise obstruct the course of justice; or
(c) commit an offence while on bail; or
(d) be at risk of harm against which he or she would be inadequately protected; or
13.3 Detention will be necessary only if that risk could not be adequately addressed, so that detention would no longer be necessary, by the imposition of appropriate bail conditions. 13.4 The court refusing bail should give reasons for finding that detention is necessary. Those reasons should be closely related to the individual circumstances pertaining to the defendant, and be capable of supporting the court's conclusion. 13.5 An English court exercising its powers in a way which is compatible with the Convention rights should refuse bail only where it can be justified under both the Convention, as interpreted by the ECtHR, and domestic legislation.(2) a disturbance to public order would result.
Application of the exceptions to the right to bail in English law in a way which complies with the ECHR
13.6 The exceptions in paragraph 2(a) and (c) and paragraph 7 of Part I[2] and paragraph 2 of Part II[3] of Schedule 1 to the Bail Act 1976 can be readily applied in a manner which is compatible with the Convention without any guidance from us being necessary or desirable. 13.7 The remaining exceptions provided for in Parts I and II of Schedule 1 to the Bail Act 1976 and in section 25 of the Criminal Justice and Public Order Act 1994 may be applied in a way which complies with the ECHR. We offer the following guidance as an aid to taking such decisions.1. The risk of offending on bail[4]
13.8 Pre-trial detention for the purpose of preventing the defendant from committing an offence while on bail can be compatible with Article 5(1)(c) and (3) of the ECHR, provided it is a necessary and proportionate response to a real risk that, if released, the defendant would commit an offence while on bail. Previous convictions and other circumstances may be relevant, but the decision-taker must consider whether it may properly be inferred from them that there is a real risk that the defendant will commit an offence.2. Defendant on bail at the time of the alleged offence[5]
13.9 A defendant should be detained under paragraph 2A only where the court is also relying on another paragraph of Part I of Schedule 1 to the Bail Act. A decision to withhold bail solely because the circumstances in paragraph 2A exist would not only infringe Article 5, but would also be unlawful under sections 3 and 6 of the HRA. 13.10 The fact that the defendant was on bail at the time of the alleged offence should not, therefore, be regarded as an independent ground, but as one of the considerations which the court should take into account when considering withholding bail because, for example, of a real risk that the defendant will commit an offence while on bail. Thus, courts should not refuse bail under paragraph 2A alone, but should do so only where such a decision may properly be based on one of the other grounds for refusal of bail, such as paragraph 2(b).3. Detention for the defendant's own protection[6]
13.10 A refusal of bail for the defendant's own protection, whether from harm by others or self-harm, can be compatible with the Convention where4. Detention because of a lack of information[8]
13.12 The refusal of bail by a court because it has not been practicable to obtain sufficient information for the taking of a full bail decision for want of time since the institution of proceedings against the defendant can be compatible with Article 5 provided thatWhere these tests are met, the general principles applicable to the refusal of bail that we identified in paragraphs 13.2 – 13.5 above will not apply.
13.13 After that short period of time has passed, a lack of information that is not due to a failure of a state body to act with "special diligence" may be taken into account as a factor militating in favour of detention, in support of the existence of another Convention-compliant ground for detention.5. Detention following arrest under section 7[9]
Section 7(5) hearings
13.14 Paragraphs 6 of Part I and 5 of Part II of Schedule 1 to the Bail Act provide that a defendant arrested pursuant to section 7 need not be granted bail. The general words of these paragraphs should not be construed as overriding the effect of the limitations imposed by section 7(5) on when bail can be refused. 13.15 Thus, where a defendant, arrested under section 7(3), is brought before a justice of the peace under section 7(4) to be dealt with under section 7(5), paragraphs 6 of Part I and 5 of Part II of Schedule 1 should be read as subject to the provisions of section 7(5). 13.16 Although a literal reading of section 7(5) could lead to the conclusion that the mere fact that a condition has been breached could justify detention, that approach would not comply with the ECHR. Even where one of the threshold conditions for detention or the imposition of new conditions contained in section 7(5) is met, the defendant should be detained, or granted bail subject to additional conditions, only where it is necessary to do so for one of the purposes identified in paragraph 13.2 above. 13.17 A justice hearing section 7(5) proceedings is not required to hear oral evidence in every case, but should take account of the quality of the material presented. If the material includes oral evidence, the defendant must be given an opportunity to cross-examine. Likewise, a defendant should be permitted to give relevant oral evidence if he or she wishes to do so. 13.18 Article 5 does not require that the whole of the prosecution file be disclosed to the defence prior to such a hearing. It is sufficient if disclosure is provided of the material the defendant needs in order to enjoy "equality of arms" with the prosecution in relation to the issue to be decided by the court.Other bail hearings concerning defendants who have been arrested under section 7
13.19 The courts should not refuse to grant a defendant bail simply because he or she has been arrested under section 7. These provisions should be applied so that bail is refused only where this is necessary for one of the purposes identified in paragraph 13.2 above. The circumstances leading to the defendant being arrested under section 7 may properly be taken into account as a possible reason for concluding that detention is necessary for such a purpose.6. Section 25 of the Criminal Justice and Public Order Act 1994[10]
13.20 Section 25 can be interpreted compatibly with the Convention as meaning that, where the defendant would not, if released on bail, pose a real risk of committing a serious offence, this constitutes an "exceptional circumstance" so that bail may be granted. This construction achieves Parliament's purpose of ensuring that, when making bail decisions about defendants to whom section 25 applies, decision-takers focus on the risk the defendant may pose to the public by re-offending. 13.21 There may be other "exceptional circumstances" which may permit bail to be granted. 13.22 Even if "exceptional circumstances" do exist, bail may, nonetheless, be withheld on an ECHR-compatible ground if this is deemed to be necessary in the individual case.Conditional bail
1. Conditional bail as an alternative to custody[11]
13.23 A court cannot detain a person pursuant to an aim which complies with the ECHR where there is another way to achieve that aim which will interfere with the defendant's liberty to a lesser extent. Thus, a defendant must be released, if need be subject to conditions, unless (i) that would create a risk of the kind which can, in principle, justify pre-trial detention, and (ii) that risk cannot, by imposing suitable bail conditions, be averted, or reduced to a level at which it would not justify detention.2. Conditional bail as an alternative to unconditional bail[12]
13.24 A court should only impose bail conditions for a purpose which the ECtHR recognises as capable of justifying detention.[13] 13.25 A bail condition should be imposed only where, if the defendant were to break that condition or be reasonably thought likely to do so, it may be necessary to arrest the defendant in order to pursue the purpose for which the condition was imposed. 13.26 Decision-takers should state their reasons for imposing bail conditions and specify the purposes for which any conditions are imposed. 13.27 Decision-takers should also be alert to ensure that any bail conditions they impose do not violate the defendant's other Convention rights, such as those protected by Articles 8–11.Giving reasons for bail decisions[14]
13.28 It is of particular importance that magistrates' clerks make, and retain for the file, a note of the gist of the arguments for and against the grant of bail, and the oral reasons given by the bench for their decision. 13.29 Standard forms should be completed accurately and show that a decision has been taken in a way that complies with the Convention.[15]Challenges to the legality of pre-trial detention
1. The right to challenge pre-trial detention[16]
13.30 The procedural safeguards required by the ECHR of a domestic court that makes decisions on the lawfulness of detention are satisfied by our domestic law and procedure. In particular:(1) It is unlikely that Article 5(4) would be infringed simply because the defendant was not present at a bail hearing, 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.
(2) It is not necessary to hear sworn evidence in the great majority of cases. 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).
(3) A court hearing bail proceedings should take account of the quality of the material presented. If the material includes oral evidence, the defendant must be given an opportunity to cross-examine. Likewise, the defendant should be permitted to give relevant oral evidence if he or she wishes to do so.
(4) Ex parte Lee[17] recognises an ongoing duty of disclosure from the time of arrest. The Court of Appeal emphasised that at the stage before committal[18] there are continuing obligations on the prosecutor to make such disclosure as justice and fairness may require in the particular circumstances of the case, that is, where it could reasonably be expected to assist the defence when applying for bail. If this requirement is observed, together with the Attorney General's guidelines to prosecutors, Article 5(4) can be complied with.
(5) The duty of disclosure does not require that the whole of the prosecution file be disclosed to the defence prior to such a hearing. It is sufficient if disclosure is provided of the material the defendant needs in order to enjoy "equality of arms" with the prosecution in relation to the matter to be decided by the court.
(6) If the defendant requests that the bail hearing be held in public, it should be held in public unless there is a good reason not to do so.
2. Repeated applications[19]
13.31 Article 5(4) gives a detained person the right, in certain cases, to make further court challenges to the legality of his or her detention despite having already made one or more such challenges. With the passage of time, the circumstances which once were considered by a court to justify detention may have changed. 13.32 Part IIA of Schedule 1 to the Bail Act 1976 is capable of being interpreted and applied compatibly with Article 5(4). In hearings to which that provision applies, courts should be willing, at intervals of 28 days, to consider arguments that the passage of time constitutes, in the particular case before the court, a change in circumstances relevant to the need to detain the defendant, so as to require the hearing of all the arguments on the question of bail. It may be, for example, that the time served on remand may have reduced the risk of the defendant absconding. 13.33 If the court finds that the passage of time does amount to a relevant change of circumstances then a full bail application should follow in which all the arguments, old and new, can be put forward and taken into account.Ü Þ
Note 1 Discussed in Part II above. [Back] Note 2 These relate, in para 2, to the belief that a defendant will fail to surrender to custody or will interfere with witnesses or otherwise obstruct the course of justice; and in para 7, to where a case is adjourned for inquires 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. (Part I applies where a defendant is accused or convicted of an imprisonable offence.) [Back] Note 3 This relates to the belief that a defendant who has previously failed to surrender in accordance with obligations under a grant of bail will fail to surrender to custody. (Part II applies where a defendant is accused or convicted of a non-imprisonable offence). [Back] Note 4 Bail Act 1976, Sched 1, Part I, para 2(b), discussed in Part III above. [Back] Note 5 Bail Act 1976, Sched 1, Part I, para 2A, discussed in Part IV above. [Back] Note 6 Bail Act 1976, Sched 1, Part I, para 3; Part II, para 3; discussed in Part V above. [Back] Note 7 We base this requirement on the single ECtHR case of IA v France 1998-VII, which concerned the detention of a person at risk of harm from others rather than self-harm. [Back] Note 8 Bail Act 1976, Sched 1, Part I, para 5, discussed in Part VI above. [Back] Note 9 Bail Act 1976, Sched 1, Part I, para 6; Part II, para 5; discussed in Part VII above. The Convention requirements relating to detention are discussed above in Part II, the imposition of bail conditions as opposed to granting unconditional bail is discussed in Part IX(B), and issues relating to hearing oral evidence are discussed in Part XI. [Back] Note 10 Discussed in Part VIII above. [Back] Note 11 Discussed in Part IX(A) above. [Back] Note 12 Discussed in Part IX(B) above. [Back] Note 13 Where an ancillary condition is imposed in support of a primary condition, provided that the purpose of the primary condition is one that the ECtHR will recognise as capable of justifying detention, and the ancillary condition aims to ensure that the main condition is effective, we believe that the ancillary condition should itself be regarded as having been imposed for a purpose which is permissible under the Convention. [Back] Note 14 Discussed in Part X above. [Back] Note 15 We have suggested that the content of standard bail decision forms should be reviewed to ensure that the decisions they assist are compatible with the ECHR as well as the Bail Act. [Back] Note 16 Discussed in Part XI above. [Back] Note 17 R v DPP, ex p Lee [1999] 1 WLR 1950. [Back] Note 18 That is, at a stage prior to that at which the statutory disclosure regime of the Criminal Procedure and Investigations Act 1996 bites. [Back]
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