The Law Commission

PART II

THE SUBSTANTIVE RIGHTS: ARTICLE 5

2.1      Article 5(1) of the Convention provides that

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law …

Six situations are then set out in which the deprivation of a person's liberty may be permissible. The ECtHR has stated that

the list of exceptions to the right to liberty secured in Article 5(1) is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim and purpose of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty.^[1]

Any deprivation of liberty must therefore be justifiable at all times under one of the six exceptions. If, even for a time, a detention does not fall within one of the exceptions, Article 5 will have been violated.^[2]

2.2      The exception of primary relevance to bail is Article 5(1)(c),^[3] which permits

the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.

2.3      The Court has held that paragraph (1)(c) of Article 5 must be read in conjunction with paragraph (3), "with which it forms a whole".^[4] Paragraph (3) provides that

Everyone arrested or detained in accordance with the provisions of paragraph (1)(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

2.4      These provisions, "both separately and as inter-related, present considerable difficulties of interpretation", with the result that, to bring them into line with the requirements of the administration of criminal justice in Europe, the Strasbourg institutions have had to pay "only limited respect to the text".^[5]
2.5      In this Part, we seek to provide an overview of these key provisions. After explaining the purpose of Article 5, we examine the interpretation the Court has given the key phrases in paragraphs (1)(c) and (3). We also briefly examine the potential significance of paragraph (1)(b) in the bail context, and the requirements of paragraph (4).

The purpose of Article 5

2.6      The Court recently noted that it had

frequently emphasised the fundamental importance of the guarantees contained in Article 5 for securing the rights of individuals in a democracy to be free from arbitrary detention at the hands of the authorities … In that context, it has repeatedly stressed that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrary detention.^[6]

2.7      The notion of the protection of the individual from arbitrary detention is founded on the rule of law. The Court has stated that

Judicial control of interferences by the executive with the individual's right to liberty is an essential feature of the guarantee embodied in Article 5(3), which is intended to minimise the risk of arbitrariness. Judicial control is implied by the rule of law, "one of the fundamental principles of a democratic society … which is expressly referred to in the Preamble of the Convention" … and "from which the whole Convention draws its inspiration".^[7]

Article 5(1)

"Liberty and security of person"

2.8      Although paragraph 1 of Article 5 refers to both "liberty" and "security" of the person, the ECtHR has stated that these terms

must be read as a whole and, in view of [their] context, as referring only to physical liberty and security.^[8]

"Procedure prescribed by law" and "lawful arrest or detention"

2.9      The phrases "procedure prescribed by law" and "lawful arrest or detention" overlap. A deprivation of liberty may be said to be "lawful" only if it is carried out in accordance with "a procedure prescribed by law".^[9] The Court has reiterated on many occasions that the terms "law" and "lawful", as they occur in the phrases in question, refer back to national law.^[10] It is a matter for national courts to determine whether national law has been complied with. The ECtHR nonetheless exercises a jurisdiction to review their decisions, subject to an appropriate margin of appreciation.^[11] The national law in question must itself conform to the purpose of Article 5 and to the Convention as a whole, including the general principles expressed or implied in it.^[12] The notions of "law" and "lawfulness" have implications for the quality of domestic law. Thus, "where a national law authorises deprivation of liberty … it must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness".^[13]

Article 5(1)(c)

"Effected for the purpose of bringing him before … "

2.10      The Court has determined that this phrase governs the whole of Article 5(1)(c).^[14] Paragraph (1)(c) provides three circumstances in which a person may be detained:

(1) "on reasonable suspicion of having committed an offence";

(2) "when it is reasonably considered necessary to prevent his committing an offence"; and

(3) to prevent a person "fleeing after having done so".

2.11      One reading of (2) might be thought to provide a justification for a general power of preventive detention in advance of any offence having been committed. That possibility has effectively been avoided by the ECtHR's insistence that the whole of Article 5(1)(c) is governed by the purpose of producing the person detained to a judge. Were it otherwise,

anyone suspected of harbouring an intent to commit an offence could be arrested or detained for an unlimited period on the strength merely of an executive decision without its being possible to regard his arrest or detention as a breach of the Convention … [S]uch an assumption, with all its implications of arbitrary power, would lead to conclusions repugnant to the fundamental principles of the Convention ….^[15]

2.12      The result is that the second circumstance in which a person may be detained may have only very limited application. It has been suggested that it might cover the power to arrest a person to prevent murder, or in anticipation of an imminent breach of the peace.^[16]

"The competent legal authority"

2.13      The phrase "the competent legal authority" is "a synonym, of abbreviated form", for the phrase "judge or other officer authorised by law to exercise judicial power" which occurs in Article 5(3).^[17] The term "other officer" has a wider meaning than "judge", but there is "a certain analogy" between the two.^[18]
2.14      The Convention requires that the legal authority be independent,^[19] and hear an application for bail rather than delegate it.^[20] There is a linked "substantive requirement" which imposes on a judicial officer the obligations of "reviewing the circumstances militating for or against detention, and of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons".^[21] These obligations cannot be discharged if the officer is prevented by national law from properly exercising this essentially judicial discretion.^[22]

"Reasonable suspicion"

2.15      A person arrested or detained in accordance with Article 5(1)(c) must be reasonably suspected of having committed an offence. This is an objective standard. In Fox, Campbell and Hartley v UK the Court explained that

The "reasonableness" of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5(1)(c). The Court agrees with the Commission and the Government that having a "reasonable suspicion" presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as "reasonable" will however depend upon all the circumstances.^[23]

Article 5(3)

"Promptly"

2.16      Article 5(3) requires that a person arrested or detained be "brought promptly before a judge or other officer authorised by law to exercise judicial power". The purpose of this requirement is to ensure "prompt and automatic judicial control of police or administrative detention ordered in accordance with the provisions of Article 5(1)(c)".^[24] The Court has refused to define the word "promptly" in terms of a specific time limit. Instead, it has said that "the issue of promptness must be assessed in each case according to its special features".^[25]
2.17      The Commission suggested in Brogan v UK,^[26] however, that ordinarily the period should be no longer than four days. In Brogan itself, the shortest time that any of the applicants had spent in custody was four days and six hours. It was found by the Court to be a violation of Article 5(3).^[27]
2.18      It would appear that the time limits laid down in English legislation, which we described in Part II of the consultation paper,^[28] meet the requirements of the Convention. Specifically, there is nothing to suggest that the regime set down in section 46 of PACE for the production to a magistrates' court of a person following charge falls foul of the requirement of "promptness" which has emerged from the case law of the Court. For this reason, in this report we do not discuss the obligation imposed by the first part of Article 5(3).

"A judge or other officer authorised by law to exercise judicial power"

2.19      The purpose of Article 5(3) is to provide, as a safeguard against arbitrary detention, an independent scrutiny of the reasons for an accused person's detention, and to ensure release if continued detention is not justified. It is therefore essential that the "judge or other officer" have two characteristics:^[29]

(1) independence from the prosecuting authorities; and

(2) the power to order that the accused person be released.

2.20      The "judge or other officer" is required to consider the circumstances militating for and against continued detention, and must have the power to release the accused person if continued detention would not be justified. It is insufficient if the officer is able to do no more than recommend release.^[30]

"Trial within a reasonable time or release pending trial"

2.21      Read literally, Article 5(3) appears to give the national authorities a choice between two courses of action, either of which will satisfy the requirements of the Convention: either to bring the defendant to trial "within a reasonable time" or to release the defendant pending trial. In the early case of Wemhoff v Germany, however, the Court decided that

such an interpretation would not conform to the intention of the High Contracting Parties. It is inconceivable that they should have intended to permit their judicial authorities, at the price of release of the accused, to protract proceedings beyond a reasonable time.^[31]

2.22      The second part of Article 5(3), therefore, confers both a right to trial within a reasonable time and a right (albeit not an absolute right) to release pending trial.

Trial within a reasonable time

2.23      In W v Switzerland the Commission decided that the applicant's detention for four years before trial was a breach of Article 5(3) because that Article "implies a maximum length of pre-trial detention".^[32] However, the Court had already remarked in Stögmüller v Austria that the concept of a "reasonable time" could not be translated into "a fixed number of days, weeks, months or years, or into various periods depending upon the seriousness of the offence".^[33] In W v Switzerland the Court preferred this latter view to the Commission's suggestion, which, it said, found no support in the case law:

The case law in fact states that the reasonable time cannot be assessed in abstracto. As the Court has already found in the Wemhoff v Germany judgment …, the reasonableness of an accused person's continued detention must be assessed in each case according to its special features.^[34]

On the facts, the Court found that W's detention for four years did not violate the guarantee of trial within a reasonable time.

2.24      In assessing the reasonableness of the length of time taken to bring the detained person to trial, account must be taken of the continuing interference with the liberty of a person who has a right to be presumed innocent until proved guilty.^[35] As the Court stated in the early case of Neumeister v Austria,

The reasonableness of the time spent by the accused person in detention … must be assessed in relation to the very fact of his detention. Until conviction, he must be presumed innocent and the purpose of [Article 5(1)(c)] … is essentially to require his provisional release once his continuing detention ceases to be reasonable.^[36]

2.25      Thus, when an accused person has been detained, the national authorities must show "special diligence" in the conduct of the investigation.^[37] In English law, the right of detained persons to trial within a reasonable time is protected by the custody time limit regime, which, as Lord Bingham CJ noted, imposes "an exacting standard" by comparison with the law of some other European countries.^[38]

Right to release pending trial

2.26      The approach of the Court is that

The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention of the person concerned … However, after a certain lapse of time, it is no longer sufficient; in such circumstances the Court must examine "the grounds which persuaded the judicial authorities to decide"^[39] that the detention should be continued.^[40]

Detention must be necessary

2.27      After "a certain lapse of time", the Court will focus on the actual reasons advanced for denying bail in the national courts, and the applicant's arguments in favour of bail being granted, to decide whether the continuation of the detention beyond that time was justified. Detention will be found to have been justified only if it was necessary in the circumstances of the case.

Before being referred to the organs set up under the Convention …, cases of alleged violations of Article 5(3) must have been the subject of domestic remedies and therefore of reasoned decisions by [the] national judicial authorities. It is for them to mention the circumstances which led them, in the general interest, to consider it necessary to detain a person suspected of an offence but not convicted. …

It is in the light of these pointers that the Court must judge whether the reasons given by the national authorities to justify continued detention are relevant and sufficient to show that detention was not unreasonably prolonged and contrary to Article 5(3) of the Convention.^[41]

Detention must be for a legitimate purpose

2.28      Detention will be found to be justified only if it was necessary in pursuit of a legitimate purpose (or ground). The Court has recognised a number of purposes which are capable of justifying detention. They all relate to feared events for the prevention of which detention may be necessary, such as the defendant absconding.^[42] Detention will be considered necessary only if there is a real risk that the feared event will take place if the defendant is granted bail.
2.29      The ECtHR has recognised that pre-trial detention may be compatible with the defendant's right to release under Article 5(3) where it is for the purpose of avoiding a real risk that, were the defendant released,^[43]

(1) he or she would

(a) fail to attend trial;^[44]

(b) interfere with evidence or witnesses, or otherwise obstruct the course of justice;^[45]

(c) commit an offence while on bail;^[46] or

(d) be at risk of harm against which he or she would be inadequately protected; ^[47] or

(2) a disturbance to public order would result.^[48]

2.30      Although these grounds are capable of justifying pre-trial detention, the ECtHR will only accept that detention is necessary for one of those grounds if that conclusion is supported by adequate reasons put forward by the national court which are clearly addressed to the facts of the case.^[49]
2.31      Moreover, the circumstances in which some grounds can be relied upon are more restricted than in the case of other grounds. If, for example, there is good reason to suppose that the defendant would abscond if granted bail, the ECtHR is likely to accept that a remand in custody is justified. Detention on the grounds of a supposed risk to public order or a need to protect the defendant, however, will be appropriate only in exceptional circumstances.^[50]

How does English law measure up?

2.32      Some of the grounds for pre-trial detention provided for in Schedule 1 to the Bail Act 1976 are manifestly acceptable under the Convention. These include detention on the grounds of a fear that the defendant will fail to surrender to custody, or will interfere with witnesses or otherwise obstruct the course of justice. We also believe that, where a case is adjourned for inquiries or a report, and it appears to the court that it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody,^[51] such detention is plainly compatible with the Convention, because this would fall within the legitimate purpose of preventing the defendant from obstructing the course of justice. Accordingly, although the detention of a defendant on these grounds can be a violation of Article 5 – for example, because there is insufficient evidence to substantiate the ground in question – our conclusion is that these grounds, as they exist in English law, can be applied in a way which is compatible with the Convention. Provided that decision-takers apply their discretion to refuse bail on these grounds in accordance with the general standards applicable to bail decisions which we identify in this report,^[52] it is unlikely that those grounds would be relied upon in a way which would not be compatible with Article 5.
2.33      Some of the remaining exceptions to the right to bail in English law, however, require closer examination. They are as follows:

(1) the existence of grounds for believing that the defendant would commit an offence if released on bail;

(2) the fact that the defendant was on bail at the time when he or she allegedly committed the offence charged;

(3) the need to detain the defendant for his or her own protection;

(4) where it has not been practicable to obtain sufficient information for the purpose of taking a proper decision about bail;

(5) the fact that the defendant has been arrested under section 7 of the Act (for breach of a bail condition, for example); and

(6) the fact that the defendant is charged with an offence of homicide or rape, and has previously been convicted of such an offence.

2.34      In Parts III to VIII of this report we examine each of these grounds in turn.

"Release may be conditioned by guarantees to appear for trial"

2.35      Article 5(3) provides that a defendant may be released subject to "guarantees to appear for trial". The Court has held that where the sole ground cited for detaining a defendant consists in the risk that he or she will abscond, and that risk can be surmounted by the imposition of appropriate bail conditions, a failure to release the defendant will constitute a violation of Article 5(3).^[53]
2.36      Article 5(3) does not refer to the imposition of conditions for purposes other than to secure the defendant's appearance for trial. We assume, however, that conditions may also be imposed for any of the other purposes which the ECtHR has said are capable of justifying detention, and that conditions should be used in preference to detention. We consider conditional bail further in Parts IX(A) and IX(B) below.

Conclusions

2.37      Although a reasonable suspicion that the defendant has committed an offence can be sufficient justification for pre-trial detention for a short time, after that time Article 5(3) requires that the defendant be released unless further reasons can be found to justify continued detention. Our examination of the ECtHR case law has led us to conclude that continued detention can only be justified in accordance with the following principles:

(1) A defendant should be refused bail only where detention is necessary in pursuit of one of the five purposes which the ECtHR has recognised as legitimate.^[54]

(2) A legitimate purpose will exist only where there is a real risk that the feared event will occur if the defendant is released on bail.

(3) Detention will be necessary only if that risk could not be adequately addressed, to the point where detention would no longer be necessary, by the imposition of appropriate bail conditions.

(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.

2.38      A refusal of bail by an English court will be compatible with the Convention rights only where it can be justified under both the Convention, as interpreted by the ECtHR, and domestic legislation.

Article 5(1)(b)

2.39      Some respondents to our consultation paper suggested that Article 5(1)(b) may be relevant in the bail context. Article 5(1)(b) permits

the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law.

2.40      Article 5(1)(b) may be relevant to bail in two possible ways. The first is that, as a person awaiting trial is obliged by law to do certain things, such as to surrender to the court at the appointed time and to refrain from interfering with witnesses, detention to secure that he or she complies with those obligations would be justified under Article 5(1)(b). We do not accept that view.
2.41      Article 5(1)(c) and its surrounding case law establish a regime of minimum standards governing pre-trial detention. Persons who have been deprived of their liberty under Article 5(1)(c) have certain rights under Article 5(3) which do not apply to persons detained under Article 5(1)(b). Such persons must be brought before a "judge or other officer" who, the ECtHR has stated, must decide whether the detention is justified. Detention will be justified only if it is necessary for a purpose which the ECtHR is prepared to recognise as capable of justifying pre-trial detention. Were suspects to be detained under Article 5(1)(b), the protections afforded them under Article 5(1)(c) and (3) would be circumvented. The ECtHR has stated that such a result should be avoided.^[55] In the many cases in which the Court has examined the detention of persons awaiting trial, it has always looked at them under paragraph (1)(c) of Article 5, not paragraph 5(1)(b).
2.42      The second way in which Article 5(1)(b) might be relevant to bail is to justify the detention of a defendant who has breached a bail condition. It could be argued that the defendant would be arrested and detained "for non-compliance with the lawful order of a court or in order to secure the fulfilment of [an] obligation prescribed by law". There does not appear to be any case law on the issue whether a bail condition amounts to either "the lawful order of a court" or an "obligation prescribed by law", so we must approach it from first principles.

The first limb of Article 5(1)(b): Is a bail condition a "lawful order of a court"?

2.43      The first limb of Article 5(1)(b) allows for the lawful arrest and detention of a person for "non-compliance with the lawful order of a court". The aim of this limb is to allow civil detention to enforce court orders. It has been used to justify detention for failure to pay a fine,^[56] refusal to undergo a psychiatric examination,^[57] refusal to undergo a blood test,^[58] and refusal to be bound over to keep the peace,^[59] where the applicant had been ordered to do one of these things by a court.
2.44      One immediate objection to the argument that a bail condition is a "lawful order of a court" is that conditions attached to police bail cannot fall within that description.
2.45      Where the bail conditions are imposed by a court, however, the issue becomes less clear-cut. One view is that there is a difference between ordering a person not to do x and releasing a person on bail on condition that he or she does not do x. In the former case, doing x will be a contempt of court and will itself lead to a penalty being imposed. In the latter, doing x may lead to the person's liberty being withdrawn, not as a penalty for non-compliance but to address the risk against which the condition was intended to guard. If a bail condition is a "lawful order of a court", then why is it called a condition rather than an order? Why would breaching it not be a contempt of court?
2.46      On another view, however, bail conditions amount to "the lawful order of a court" because the court is giving the defendant instructions as to his or her conduct, and adverse results will flow from a failure to abide by those instructions.
2.47      If this second view were correct it could be argued that Article 5(1)(b) would permit the detention of the defendant for non-compliance with the condition alone, without any need to consider the risks that he or she would pose if granted bail. This would substantially diminish the limits placed on pre-trial detention by Article 5(3), which only applies to persons who are detained under Article 5(1)(c). On the other hand, where the condition has proved ineffective to achieve the purpose for which it was imposed, it may be that the defendant can then be detained, compatibly with Article 5(1)(c), for that same purpose. Reliance on Article 5(1)(b) would then be unnecessary.
2.48      Whatever may be the correct answer to this knotty legal problem, the ECtHR has been wary of allowing Article 5(1)(b) to be used in a fashion that would deprive an individual of the other Article 5 rights.^[60]

The second limb of Article 5(1)(b): Is a bail condition an "obligation prescribed by law"?

2.49      The second limb of Article 5(1)(b) allows for the arrest and detention of a person "in order to secure the fulfilment of any obligation prescribed by law". A wide interpretation would entail consequences incompatible with the notion of the rule of law from which the Convention draws its inspiration, and the scope of the second limb must therefore be defined narrowly.^[61]
2.50      The ECtHR has said that the second limb applies only where the law permits the detention of a person to compel that person to fulfil a specific and concrete obligation which he or she has until then failed to satisfy.^[62] Although this requirement would not seem to exclude the detention of a person who has failed to comply with a specific bail condition, it is questionable whether the detention would genuinely be "in order to secure the fulfilment of" the condition. There is a difference between an obligation to do something, where detention may be used to compel a person to comply with the obligation, and the release of a person on bail subject to a condition, where breach of that condition may lead to detention to fulfil the objective at which the condition was directed.

Our view of the relevance of Article 5(1)(b) to bail

2.51      In our view it is difficult to say with any confidence that Article 5(1)(b) is of any assistance when considering pre-trial detention. We have, therefore, thought it right to test the English law of bail against the requirements of Article 5(1)(c), as interpreted by the ECtHR, rather than relying on Article 5(1)(b). In doing so, we leave open the possibility that Article 5(1)(b) may be of some relevance to pre-trial detention following breaches of bail conditions, and we consider this issue in Part IX(B).^[63]

Article 5(4)

2.52      Article 5(4), which applies to all detainees, states that

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 the detention is not lawful.

2.53      Where a person has been detained under Article 5(1)(c), the requirements of Article 5(4) differ somewhat from those imposed by Article 5(3). Article 5(3) requires that the accused person be brought "promptly" before a "judge or other officer". Article 5(4) requires that after arrest or detention the detained person shall be entitled to have the lawfulness of the detention reviewed by a "court"^[64] and that the determination of lawfulness should be made "speedily".^[65] Where the body to which the defendant has been brought for a hearing under Article 5(3) has the characteristics of a court, the initial requirement of judicial supervision imposed by paragraph (4) may be satisfied by that hearing. We have assumed that this is so in the case of the arrangements in English law under which a person charged must be brought before a court.^[66] Article 5(4) has continued relevance, however, in that the detained person may be entitled to have his or her detention scrutinised by a court again at periodic intervals.^[67]
2.54      The requirements of Article 5(4) are discussed in greater detail in Parts XI and XII of this report.
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Note 1    Quinn v France A 311 (1996), 21 EHRR 529, para 42. See also Engel v Netherlands A 22 (1976), 1 EHRR 647, para 57; Ireland v UK A 25 (1978), 2 EHRR 25, para 194; Winterwerp v Netherlands A 33 (1979), 2 EHRR 387, para 37; Guzzardi v Italy A 39 (1980), 3 EHRR 333, para 96.    [Back]

Note 2    Quinn v France A 311 (1996), 21 EHRR 529, para 42.    [Back]

Note 3    Some respondents to the consultation paper suggested that exception (b) may also be relevant. This is discussed at paras 2.39 – 2.51 below.    [Back]

Note 4    Lawless v Ireland (No 3) A 3 (1961), 1 EHRR 15, para 14; Schiesser v Switzerland A 34 (1979), 2 EHRR 417, para 29.    [Back]

Note 5    D J Harris, M O’Boyle and C Warbrick, Law of the European Convention on Human Rights (1995) p 115.    [Back]

Note 6    Çakiki v Turkey App No 23657/94, 8 July 1999, para 104. See also Kurt v Turkey 1998-III, 27 EHRR 373, para 122; Timurtas v Turkey App No 23531/94, 13 June 2000, para 103. For an example of the Court interpreting Article 5 in accordance with its purpose of protecting the individual from arbitrary detention see Winterwerp v Netherlands A 33 (1979), 2 EHRR 387, para 37. An arbitrary detention can never be “lawful”: X v UK A 46 (1981), 4 EHRR 188, para 43; Van Droogenbroeck v Belgium A 50 (1982), 4 EHRR 443, para 48.    [Back]

Note 7    Brogan v UK A 145B (1988), 11 EHRR 117, para 58. The quotations are from Klass v Germany A 28 (1978), 2 EHRR 214, para 55, and Engel v Netherlands A 22 (1976), 1 EHRR 647, para 69.     [Back]

Note 8    Adler and Bivas v Germany App Nos 5573/72 and 5670/72, Commission decision, Yearbook 20 (1977), p 102, 146. See P van Dijk and G J H van Hoof, Theory and Practice of the European Convention on Human Rights (3rd ed 1998) pp 344–345. It should be noted that the article is not applicable to mere restrictions on liberty of movement, which are regulated by Article 2 of the Fourth Protocol. Having said that, the distinction between physical deprivation of liberty and restriction of liberty of movement is one of degree rather than kind. Thus the confinement of the applicant (with a number of other suspected members of the mafia) to a set of buildings in a small corner of an island, otherwise largely occupied by a prison, amounted to detention rather than a mere restriction on freedom of movement: Guzzardi v Italy A 39 (1980), 3 EHRR 333.    [Back]

Note 9    Winterwerp v Netherlands A 33 (1979), 2 EHRR 387, para 39.    [Back]

Note 10    In Herczegfalvy v Austria (1993) 15 EHRR 437, para 63, the Court stated that “if detention is to be lawful … it must essentially comply with national law and the substantive and procedural rules thereof”.    [Back]

Note 11    See, eg, Winterwerp v Netherlands A 33 (1979), 2 EHRR 387, para 45; Kemmache v France (No 3) A 296C (1994), 19 EHRR 349, paras 37, 42; Scott v Spain 1996VI, 24 EHRR 391, para 56; Benham v UK 1996-III, 22 EHRR 293, paras 40-41.    [Back]

Note 12    See references in n 6 above.    [Back]

Note 13    Amuur v France 1996III, 22 EHRR 533, para 50.    [Back]

Note 14    Lawless v Ireland (No 3) A 3 (1961), 1 EHRR 15, paras 13–14.     [Back]

Note 15    Ibid, para 14.    [Back]

Note 16    D J Harris, M O’Boyle and C Warbrick, Law of the European Convention on Human Rights (1995) pp 117–118. For a rare case in which the second limb of Article 5(1)(c) was used to provide an additional justification for a detention, see Eriksen v Norway 1997III, 29 EHRR 328. Norwegian law allows for the extension by a court of a form of detention of an insane or mentally handicapped offender. As part of the procedure, it is possible for the offender to be detained for four weeks after the end of an authorised period of detention and before he or she is brought before the court that considers extending the detention. Detention for that four week period was justified under Article 5(1)(a), but also under Article 5(1)(c), as one of the conditions for detention was that there was a likelihood that the applicant would offend again if released. The Court, however, effectively confined the circumstances in which such detention could be justified under the second limb of Article 5(1)(c) to a case in which the detention was concurrently justified by Article 5(1)(a): see para 86.    [Back]

Note 17    Lawless v Ireland (No 3) A 3 (1961), 1 EHRR 15, para 9; Ireland v UK A 25 (1978), 2 EHRR 25, para 199; Schiesser v Switzerland A 34 (1979), 2 EHRR 417, para 29.     [Back]

Note 18    Schiesser v Switzerland A 34 (1979), 2 EHRR 417, paras 27–31.     [Back]

Note 19    Ibid. See also, eg, Assenov v Bulgaria 1998VIII, para 146; Nikolova v Bulgaria 1999-II, 31 EHRR 64, para 49; Hood v UK 1999-I, 29 EHRR 365, paras 57–58.    [Back]

Note 20    Schiesser v Switzerland A 34 (1979), 2 EHRR 417, para 31.    [Back]

Note 21    Ibid.    [Back]

Note 22    As in the case of s 25 of the Criminal Justice and Public Order Act 1994, before it was amended by the Crime and Disorder Act 1998, s 56: Caballero v UK (aka CC v UK) (2000) 30 EHRR 643, Commission opinion, paras 40–45. This provision is discussed in Part VIII below.    [Back]

Note 23    A 182 (1990), 13 EHRR 157, para 32.     [Back]

Note 24    De Jong, Baljet and van den Brink v Netherlands A 77 (1984), 8 EHRR 20, para 51.    [Back]

Note 25    Ibid, para 52; see also Wemhoff v Germany A 7 (1968), 1 EHRR 55, para 10.     [Back]

Note 26    A 145-B (1988), 11 EHRR 117, Commission opinion, para 103.    [Back]

Note 27    A 145-B (1988), 11 EHRR 117, para 62.    [Back]

Note 28    Consultation Paper No 157, paras 2.70 – 2.78.    [Back]

Note 29    Identified by the ECtHR in Schiesser v Switzerland A 34 (1979), 2 EHRR 417, paras 27, 31.    [Back]

Note 30    De Jong, Baljet and Van den Brink v Netherlands A 77 (1984), 8 EHRR 20, paras 47, 48.    [Back]

Note 31    A 7 (1968), 1 EHRR 55, para 5.     [Back]

Note 32    A 254-A (1993), 17 EHRR 60, para 30.     [Back]

Note 33    A 9 (1969), 1 EHRR 155, para 4.    [Back]

Note 34    W v Switzerland A 254-A (1993), 17 EHRR 60, para 30.    [Back]

Note 35    The right of persons charged with a criminal offence to be presumed innocent until proved guilty is contained in ECHR Art 6(2).    [Back]

Note 36    A 8 (1968), 1 EHRR 91, para 4.    [Back]

Note 37    Eg B v Austria A 175 (1990), 13 EHRR 20, para 42;Herczegfalvy v Austria, A 244 (1992), 15 EHRR 437, para 71.    [Back]

Note 38    R v Manchester Crown Court, ex p McDonald [1999] 1 WLR 841, 850.    [Back]

Note 39    Stögmüller v Austria A 9 (1969), 1 EHRR 155, para 4.    [Back]

Note 40    B v Austria A 175 (1990), 13 EHRR 20, para 42. Similar passages occur in, eg, Matznetter v Austria A 10 (1969), 1 EHRR 198, para 12; Letellier v France A 207 (1991), 14 EHRR 83, para 35; Yargci and Sargin v Turkey A 319-A (1995), 20 EHRR 505, para 50.    [Back]

Note 41    Wemhoff v Germany A 7 (1968), 1 EHRR 55, para 12 (italics supplied).    [Back]

Note 42    In each case, a further prerequisite of the legitimacy of the ground in question is that it is recognised by the national law of the relevant Contracting State as a legitimate ground for pre-trial detention.     [Back]

Note 43    In addition to the grounds specified here, it is arguable that the ECtHR’s judgment in Clooth v Belgium A 225 (1991), 14 EHRR 717, paras 41–46, may permit detention where it is necessary for the purposes of the investigation into the defendant’s case. The better view seems to be, however, that detention can only be justified where it is necessary both because the investigation is continuing and for one of the recognised grounds for detention, such as the need to prevent the defendant from interfering with the course of justice.    [Back]

Note 44    See, eg, Wemhoff v Germany A 7 (1968), 1 EHRR 55, para 14; Neumeister v Austria (No 1) A 8 (1968), 1 EHRR 91, paras 9–12; Matznetter v Austria A 10 (1969), 1 EHRR 198, para 8; Stögmüller v Austria A 9 (1969), 1 EHRR 155, para 15; Letellier v France A 207 (1991), 14 EHRR 83, paras 40–43; W v Switzerland A 254-A (1993), 17 EHRR 60, para 33; Kemmache v France (Nos 1 & 2) A 218 (1991), 14 EHRR 520, paras 55–56; Toth v Austria A 224 (1991), 14 EHRR 551, paras 71–72; Tomasi v France A 241A (1992), 15 EHRR 1, paras 96–98; Van der Tang v Spain A 326 (1995), 22 EHRR 363, paras 64–67; Muller v France (No 1) 1997II, para 43; IA v France 1998VII, para 105.    [Back]

Note 45    See, eg, Wemhoff v Germany A 7 (1968), 1 EHRR 55, para 14; Clooth v Belgium A 225 (1991), 14 EHRR 717, paras 41–44; Letellier v France A 207 (1991), 14 EHRR 83, paras 37–39; Kemmache v France (Nos 1 & 2) A 218 (1991), 14 EHRR 520, paras 53–54; Tomasi v France A 241A (1992), 15 EHRR 1, paras 92–95; W v Switzerland A 254-A (1993), 17 EHRR 60, paras 35–36; Muller v France (No 1) 1997II, paras 39–40; IA v France 1998VII, paras 109–110.    [Back]

Note 46    See, eg, Matznetter v Austria A 10 (1969), 1 EHRR 198, para 9; Clooth v Belgium A 225 (1991), 14 EHRR 717, paras 38–40; Muller v France (No 1) 1997II, para 44.    [Back]

Note 47    See, eg, IA v France 1998VII, para 108.     [Back]

Note 48    See, eg, Letellier v France A 207 (1991), 14 EHRR 83, paras 47–51; Tomasi v France A 241A (1992), 15 EHRR 1, paras 90–91; IA v France 1998VII, para 104.     [Back]

Note 49    The quality of reasons required is discussed in Part X below.    [Back]

Note 50    See IA v France 1998VII, paras 104, 108. See also Part V below.    [Back]

Note 51    As permitted by the Bail Act 1976, Sched 1, Part I, para 7.    [Back]

Note 52    See paras 13.2 – 13.5 below.    [Back]

Note 53    Wemhoff v Germany A 7 (1968), 1 EHRR 55, para 15. Where the condition involves the payment of a sum of money to secure the defendant’s return to court, the amount payable must be fixed with reference to that purpose, and hence to the defendant’s assets and resources. It may not be determined with reference to the losses which the alleged offence may have caused, nor set at a level that is unnecessarily high to achieve its legitimate purpose. See Neumeister v Austria (No 1) A 8 (1968), 1 EHRR 91, paras 12–14.    [Back]

Note 54    For these five purposes, see para 2.29 above.    [Back]

Note 55    See Engel v Netherlands (No 1) A 22 (1976), 1 EHRR 647, para 69.    [Back]

Note 56    Airey v Ireland (1977) 8 DR 42 (Commission decision).    [Back]

Note 57    X v Germany (1975) 3 DR 92 (Commission decision).    [Back]

Note 58    X v Austria (1979) 18 DR 154 (Commission decision).    [Back]

Note 59    Steel v UK 1998-VII, 28 EHRR 603, paras 69–70.    [Back]

Note 60    Engel v Netherlands (No 1) A 22 (1976), 1 EHRR 647, para 69.    [Back]

Note 61    Ibid. In McVeigh, O’Neill and Evans v UK (1981) 5 EHRR 71, para 176, the Commission stated that “the nature of the obligation whose fulfilment is sought must itself be compatible with the Convention.” It added that “the obligation in question cannot, in particular, consist in substance merely of an obligation to submit to detention.”    [Back]

Note 62    Engel v Netherlands (No 1) A 22 (1976), 1 EHRR 647, para 69. In McVeigh, O’Neill and Evans v UK (1981) 5 EHRR 71, para 173, the Commission expressed the view that the second limb of Article 5(1)(b) “is primarily intended … to cover the case where the law permits detention as a coercive measure to induce a person to perform a specific obligation which he has wilfully or negligently failed to perform hitherto”. The Commission went on to state that “the person concerned must normally have had a prior opportunity to fulfil the ‘specific and concrete’ obligation incumbent upon him and failed, without proper excuse, to do so”, but accepted that there could be “other limited circumstances of a pressing nature which could warrant detention in order to secure the fulfilment of an obligation” (para 175). In that case, such pressing circumstances were found to exist. The case concerned the use of special powers under anti-terrorist legislation to detain persons at a border for 45 hours for the purpose of securing the fulfilment of a statutory obligation incumbent upon them to submit to an examination. We are not aware of any other cases in which special circumstances have been found, removing the need for the detained person to have had a prior opportunity to fulfil the obligation.    [Back]

Note 63    See paras 9B.10 – 9B.14 below.    [Back]

Note 64    The term “court” denotes a body which exhibits “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”: De Wilde, Ooms and Versyp v Belgium A 12 (1971), 1 EHRR 373, para 76–78. See also Part XI below.    [Back]

Note 65    The term “speedily” connotes a lesser degree of urgency than the term “promptly” used in Art 5(3): see E v Norway A 181-A (1990), 17 EHRR 30, para 28.    [Back]

Note 66    PACE, s 46. See para 2.18 above.    [Back]

Note 67    See Part XII below.    [Back]