The Law Commission

PART III

EXCEPTIONS TO THE RIGHT TO BAIL (1):
THE RISK OF OFFENDING ON BAIL

3.1      English law permits detention on the ground that it is feared that the defendant would commit an offence if released on bail. Section 38(1)(a)(iii) of PACE permits the police to detain a person charged with an imprisonable offence where "the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from committing an offence".^[1] In the case of a defendant who is before a court and has a right to bail under section 4 of the Bail Act 1976, paragraph 2 of Part I^[2] of Schedule 1 to the Act provides that a defendant "need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would … (b) commit an offence while on bail".

The consultation paper

3.2      In the consultation paper we noted that the ECtHR has accepted in principle that a defendant may be detained because of a risk that he or she will offend while on bail.^[3] We suggested that Strasbourg case law requires three conditions to be satisfied before a refusal of bail on this ground would be justified under Article 5.

(a) The offence which it is feared the defendant may commit whilst on bail must be a serious one, since all of the Strasbourg cases where detention has been held to be justified on this ground have involved offences at the upper end of the scale of seriousness (murder^[4] or serious fraud^[5]). We expressed the view that an offence which would not attract a custodial sentence would presumably not be sufficiently serious, but found it difficult to go beyond that.

(b) The danger of the defendant committing offences if released must be "plausible"^[6] and the fear of further offending "reasonably" held.^[7] We concluded that the risk must be real, and the reasons for that conclusion adequately explained.

(c) Detention must be an appropriate way of averting the risk.^[8] Detention must therefore be necessary to prevent the defendant committing the feared offence.

3.3      We observed that, according to Clooth v Belgium, the second and third requirements were to be judged "in the light of the circumstances of the case and in particular the past history and personality of the person concerned".^[9] Although the defendant's criminal record may often be of importance, and a record of offences similar to that charged might justify a conclusion that there is a risk of the defendant committing further offences of that kind if released on bail,^[10] it was said in Muller v France (No 1) that "a reference to a person's antecedents cannot suffice to justify refusing release".^[11] We argued that this does not mean there must be some further evidence of a risk of the defendant committing offences while on bail, over and above the defendant's criminal record. What it may, at most, mean is that to deny bail on account of the defendant's criminal record would only be justified if the court does in fact draw the inference from that record that there is a real risk that the defendant will offend while on bail. In Muller the French authorities appeared to have proceeded directly from the defendant's record of similar offences to the conclusion that he must therefore be detained in case he should reoffend or abscond.
3.4      In the ECtHR cases, the offence charged was similar in nature and gravity to that which it was feared the applicant might commit if released. We expressed the view that this coincidence did not necessarily mean that such a similarity was essential. Rather, we concluded, there must be an appropriate connection between the offence charged and that which it is feared the defendant might commit. We gave, as an example of a sufficient connection, the case of a defendant obsessed with a particular person who was arrested for some comparatively minor act of criminal damage directed at that person. If, in custody following that arrest, the defendant were to indicate an intention to kill that person, we considered that a court might be justified in denying bail on the grounds of a real risk that the defendant would carry out the threat.
3.5      In the light of this analysis we considered whether the law of England and Wales on this subject was likely to be applied in a Convention-compatible manner. We reminded ourselves of the terms of paragraph 2(b) of Part I of Schedule 1 to the Bail Act and the obligation imposed on the court to have regard to a number of considerations if they appear to the court to be relevant.^[12] Read literally, the Act permits a refusal of bail where, for example, the offence that it is feared the defendant might commit is not of a serious nature – perhaps not even serious enough to attract a sentence of imprisonment – or has no connection with the offence charged. We suggested that a refusal of bail in such circumstances, even if permissible under the Act, would probably be a violation of Article 5(3).
3.6      We considered that one way of avoiding such violation would be to amend the Act so as to provide expressly that bail may be refused on the ground of a risk that the defendant would offend while on bail only in the circumstances where this would be in line with the requirements of the Convention which we had identified. We were not persuaded that this was necessary. We suspected that, in practice, it was not common for bail to be refused on this ground in such circumstances that the detention could not be justified under Article 5(3). We pointed out that it was quite possible for these provisions to be applied in a Convention-compatible way if decision-takers were given appropriate guidance.

Consultation responses

3.7      There was general agreement among respondents that guidance would be sufficient, and was preferable to legislation.^[13] Some respondents, however, disagreed with our analysis of the Strasbourg jurisprudence. In particular, the CPS and the Home Office argued that there is no requirement that the offence which the defendant may commit whilst on bail must be a serious one. The fact that the cases which have reached the ECtHR have involved serious offences does not justify the inference that only such cases are capable of meeting Convention requirements. Similarly (concurring with our reasoning on this point) they said that, merely because the cases considered by the ECtHR have concerned a fear of offences that are similar in nature and gravity to the offences charged, it does not follow that such similarity is essential. They agreed, however, that there should be an appropriate connection between the offence charged and the offence feared, and that detention must be appropriate to the risk of offending.
3.8      A number of respondents thought that a requirement that the offence feared must be "serious" and "likely to attract a custodial sentence" could pose problems of definition, and might in practice be particularly troublesome for a custody sergeant considering police bail. The Metropolitan Police and the Police Federation, along with two academics, feared that, out of an abundance of caution, persons would be released who should not be released.

Conclusions

3.9      In the light of these responses, we have looked afresh at the ECtHR case law and have concluded that our provisional conclusions were overstated. We do not now believe that the feared offence must be of any specific level of seriousness, nor that it must be likely to be punished by any particular type of sentence, for pre-trial detention to be justified.
3.10      The Bail Act 1976 and PACE comply with the requirements of the ECHR in these respects. In our view, the factors identified by the ECtHR as relevant in determining whether there has been a breach of Article 5(1)(c) or (3) constitute a sensible and measured approach to the issue. Furthermore, its approach is consistent with that which the courts and the police should already be employing in considering whether to withhold bail under paragraph 2(b) of Part I of Schedule 1 to the Bail Act 1976 (taking into account the relevant considerations under paragraph 9) or section 38 of PACE.
3.11      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 that 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.^[14]
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Note 1    In the case of a person charged only with a non-imprisonable offence, the power to detain arises only where “the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from causing physical injury to any other person or from causing loss of or damage to property”: s 38(1)(a)(iv). A person charged with any offence, even one that is non-imprisonable, may also be detained if “the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from interfering with the administration of justice or with the investigation of offences or of a particular offence”: s 38(1)(a)(v). Interference with the course of justice may, of course, itself entail the commission of an offence.    [Back]

Note 2    Which applies to defendants accused or convicted of imprisonable offences.    [Back]

Note 3    See, eg, Matznetter v Austria A 10 (1969), 1 EHRR 198, para 9. The Court in that case said that this justification for withholding bail applied “in the special circumstances of the case”. This formulation has not, however, been repeated in later cases, and we do not consider that it adds an independent qualification to the application of the principle. See, eg, Clooth v Belgium A 225 (1991), 14 EHRR 717, paras 38–40; Muller v France (No 1) 1997II, para 44.    [Back]

Note 4    Clooth v Belgium A 225 (1991), 14 EHRR 717.    [Back]

Note 5    Matznetter v Austria A 10 (1969), 1 EHRR 198; Toth v Austria A 224 (1991), 14 EHRR 551.    [Back]

Note 6    Clooth v Belgium A 225 (1991), 14 EHRR 717, para 40.    [Back]

Note 7    Toth v Austria A 224 (1991), 14 EHRR 551, para 70.    [Back]

Note 8    In Clooth v Belgium A 225 (1991), 14 EHRR 717, detention in prison was found not to be justified when the defendant was actually in need of psychiatric treatment. The Commission criticised the national authorities for keeping the applicant in detention for a long period “without considering whether there was another way of safeguarding public security and preventing him from committing further offences” (Commission opinion, para 75). The ECtHR stated that “the [national] courts in question should have taken measures more suited to Mr Clooth’s psychological deficiencies”, and that detention “without an accompanying therapeutic measure” had been inappropriate (judgment, paras 39–40).    [Back]

Note 9    Clooth v Belgium A 225 (1991), 14 EHRR 717, para 40.    [Back]

Note 10    A record of offences wholly dissimilar to, and unconnected with, that charged is unlikely to be an adequate basis for fearing “repetition” of the offence charged. The previous convictions inClooth v Belgium, for example, related to an attempted aggravated theft and desertion, whereas the offences which gave rise to the ECtHR hearing were murder and arson.    [Back]

Note 11    1997-II, para 44. More details of this case are given at para 9B.30, n 21 below.    [Back]

Note 12    Sched 1, Part I, para 9.    [Back]

Note 13    Only NACRO and the Justices’ Clerks Society preferred legislation – the latter because of its concern about the increase in governance by circular and guidance.    [Back]

Note 14    This is particularly so if the previous convictions are not comparable in nature or degree with the offence charged: Clooth v Belgium A 225 (1991), 14 EHRR 717, para 40.    [Back]