The Law Commission

PART V

EXCEPTIONS TO THE RIGHT TO BAIL (3):
FOR THE DEFENDANT'S OWN PROTECTION

5.1      Schedule 1 to the Bail Act permits a court to refuse bail if it is satisfied that the defendant should be kept in custody for his or her own protection.^[1] A custody officer may also refuse bail on this ground.^[2]

The consultation paper

5.2      We provisionally concluded that a refusal of bail for the defendant's own protection can be compatible with the Convention, but only if there are exceptional circumstances and (perhaps) only if those exceptional circumstances relate to the nature of the alleged offence and the conditions or context in which it is alleged to have been committed. We provisionally proposed that guidance be issued to reflect this. We invited comments on what form such guidance might take, and asked for information on how often the power to refuse bail for this purpose is used, in what circumstances and, in particular, whether it is commonly used to guard against self-harm as distinct from harm from others.
5.3      Our provisional conclusions were based on the only case of which we were aware in which the ECtHR has considered the lawfulness of detention pending trial on the ground of protecting the defendant from harm, IA v France.^[3] The applicant had been charged with the murder of his wife. He had been continuously detained for over five years, partly because the judicial authorities feared that his wife's family would attack him. The ECtHR held that there are cases in which "the safety of a person under investigation requires his continued detention, for a time at least".^[4] It is thus a true "ground" for denying bail, rather than a reason for concluding that a ground is substantiated.^[5] The ECtHR held that, on the facts of that case, the ground was not made out.^[6]
5.4      Having concluded that the protection of the defendant was capable of being a relevant and sufficient reason for detention, the Court added, without further explanation:

However, this can only be so in exceptional circumstances having to do with the nature of the offences concerned, the conditions in which they were committed and the context in which they took place.^[7]

5.5      Although these words would not seem to encompass a risk of self-harm unconnected to the circumstances of the offence, we warned that it would be unwise to rely too heavily on one rather enigmatic statement, particularly since the possibility of self-harm had not arisen in that case.

Consultation responses

5.6      There was broad agreement among respondents that detention for the defendant's own protection was capable of being compatible with the Convention. The Justices' Clerks' Society, the Law Society and the CPS were clear that the power, though used infrequently, was used not only to protect from harm by others but also to protect the defendant from self-harm. The Inner London Magistrates' Courts Service thought the youth court used the power for the welfare of young persons but, on the rare occasions when it was used in the adult court, it was to protect from harm by others.
5.7      The Justices' Clerks' Society and the Law Society suggested that the power was used to protect the defendant from self-harm where, in a murder case, there was a close relationship between the defendant and the deceased, and there was a fear of suicide. The Law Society and one of the respondents from the Office of the Judge Advocate General indicated that the power was used where there was a medical or psychiatric history, when it might be a useful holding device pending an assessment for the purposes of the court considering the exercise of its powers under the Mental Health Act 1983.
5.8      Some respondents doubted whether we were justified, on the basis of sparse authority, in coming to any conclusion on the issue of whether detention to protect the defendant from self-harm could ever be compatible with the Convention. The Foreign and Commonwealth Office and the Home Office thought the better view was that the point had not been sufficiently tested in the ECtHR. ACPO and an Assistant Chief Constable, however, saw no reason for thinking that such detentions might not be compatible with the Convention, provided that they are justified by a proper factual basis in each particular case.

Our views

5.9      The ECtHR did consider interference with the right to liberty based on a need to protect a person from a risk of self-harm in Riera Blume v Spain, which concerned a family's detention of their relatives for "deprogramming" after exposure to a religious sect.^[8] The Court indicated that a risk of suicide would not justify "a major deprivation of liberty", but the ruling does not rule out a fear of suicide as a reason which may justify some level of detention. This case may be of limited utility. Its facts are far removed from a court considering the question of bail for a defendant who presents a risk of suicide, where detention for fear of self-harm is being used as a holding measure for a very short time pending medical assessment under the Mental Health Act.
5.10      We conclude that a refusal of bail for the defendant's own protection, whether from harm by others or self-harm, can be compatible with the Convention where

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.

5.11      Given the absence of authority, we can presently see no reason why a decision of a court to order detention because of a risk of self-harm should not be compatible with the ECHR even where the circumstances giving rise to the risk are unconnected with the alleged offence, provided that the court is satisfied that there is a real risk of self-harm, and that a proper medical examination will take place rapidly so that the court may then consider exercising its powers of detention under the Mental Health Act 1983.
Ý
Ü   Þ

Note 1    Bail Act 1976, Sched 1, Part I, para 3 (imprisonable offences); Sched 1, Part II, para 3 (non-imprisonable offences).    [Back]

Note 2    PACE, s 38(1)(a)(vi).    [Back]

Note 3    1998-VII.    [Back]

Note 4    Ibid, para 108.    [Back]

Note 5    The grounds which the ECtHR has found capable of being “relevant and sufficient” to justify detention have been listed at para 2.29 above. The distinction between grounds and reasons is explained further at para 10.2 below.    [Back]

Note 6    The Court was influenced by the fact that the need to protect the applicant was relied on only intermittently by the judicial authorities. It also found that no real reason had been given for fearing a revenge attack by the applicant’s wife’s family. (He was Lebanese, as was his wife. Her family lived in Lebanon, and the only reason given for fearing an attack consisted of a curious reference to “barbaric” Lebanese customs.)    [Back]

Note 7    1998-VII, para 108.    [Back]

Note 8    App No 37680/97, 14 October 1999. The Court held that the Catalan authorities had been implicated in the detention, and could be held responsible for it, because the police delivered the applicants to the hotel after a raid on the cult’s premises, and interviewed them while they were there. The investigating judge had feared suicide, and so had ordered the police to deliver the applicants to their families so that they could receive psychiatric help on a voluntary basis.    [Back]