The Law Commission

PART VI

EXCEPTIONS TO THE RIGHT TO BAIL (4): LACK OF INFORMATION

6.1      Paragraph 5 of Part I of Schedule 1 to the Bail Act 1976, which applies to defendants accused of imprisonable offences, states:

The defendant need not be granted bail where the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by this Part of this Schedule for want of time since the institution of the proceedings against him.

6.2      This provision enables the court to refuse to release a defendant where it does not have sufficient information to decide whether or not the other grounds for refusing bail specified in Part I of Schedule 1 exist. When this power is exercised, it is not regarded in practice as the making of any "bail decision". Rather, the making of the bail decision is deferred and as a result the restrictions on repeated bail applications found in Part IIA of Schedule 1 (discussed in Part XII below) do not apply.^[1]
6.3      In the consultation paper we regarded paragraph 5 as not giving rise to any problem of Convention-compatibility, and so did not give it detailed consideration.^[2] Whilst that position was not questioned by the vast majority of respondents, one respondent, the solicitor Anthony Edwards, did question the compatibility of paragraph 5. He identified a risk that, in some cases, it might be used to refuse bail because of a lack of information caused by incompetence or dilatoriness on the part of the prosecution.

The Convention requirements

Detention because of insufficient information

6.4      The detention of a person who is reasonably suspected of having committed an offence is permitted by Article 5(1)(c) of the Convention. At the stage of arrest, reasonable suspicion is all that is necessary. Under Article 5(3), however, the detained person must be "brought promptly before a judge or other officer authorised by law to exercise judicial power". At that stage, the detained person "shall be entitled to trial within a reasonable time or release pending trial".
6.5      In Letellier v France the ECtHR stated:

It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release. … 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, but, after a certain lapse of time, it no longer suffices: the [ECtHR] must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty.^[3]

6.6      Thus, a judge may rely on reasonable suspicion to justify detention for a short period of time, but only for as long as is necessary for the investigation to reach a point where proper consideration can be given to the factors militating for and against a grant of bail. Thereafter, there will be an obligation to bail the defendant unless there are sufficient Convention-compatible grounds, and reasons for believing that those grounds exist, to justify detention.

Insufficient information attributable to the dilatoriness of a state body

6.7      The ECtHR has repeatedly made it clear that, where a person has been detained, the national authorities must show "special diligence" in the conduct of the investigation.^[4] This accords with the entitlement of the detained person under Article 5(3) to "trial within a reasonable time", as well as the principle of the presumption of innocence.^[5] Although the requirement of "special diligence" has been employed by the ECtHR in cases where the point at issue was whether or not the time between arrest and trial was unreasonably long, it is reasonable to assume that the principle also applies in other situations where the speed of a state body's investigations may affect the length of pre-trial detention.^[6]

Our views

The scope of paragraph 5 and its compatibility with the Convention

6.8      Letellier v France has provided a standard formula to describe the hierarchy of reasons for arrest and detention pending trial. Reasonable suspicion will suffice initially but, after a certain lapse of time, it no longer suffices. There must then be additional grounds, recognised by the ECtHR case law, to justify the continuation of detention.
6.9      The language of paragraph 5 requires that the court be satisfied that it has not been practicable to obtain sufficient information for want of time since the institution of proceedings. We conclude that it would normally be used only on the first occasion that the defendant comes before the court. On that occasion a defendant may be remanded in custody for a maximum period of eight days.^[7] Furthermore, there is the clearest possible guidance from a non-judicial source that, where this is the basis of detention, the period of remand should be a short one, and should be no longer than necessary to enable the required information to be obtained.^[8]
6.10      It is very difficult to see, in the light of this analysis, how paragraph 5 could, as a matter of English law, be properly relied on by the English courts in circumstances which fall outside the time permitted by Letellier for lawful detention based on reasonable suspicion of an offence having been committed.

Where lack of information is attributable to the dilatory conduct of a state body

6.11      Paragraph 5 applies to situations where "it has not been practicable to obtain sufficient information". It would, in our view, be a violation of Article 5 and a misconstruction of paragraph 5^[9] for a court to detain a defendant because of a lack of information which could have been provided if the prosecution, the police, the court office or another state agency had displayed the required level of diligence.^[10]
6.12      Detention would, however, be compatible with the Convention if the court had enough information to be satisfied of one of the grounds for detention recognised by both English law and the ECtHR. It would then be immaterial whether the lack of information on some other ground was attributable to a want of diligence, because it would be unnecessary to rely on paragraph 5 at all. It may be, for example, that, on the basis of the information available, the court might conclude that it is necessary to detain the defendant because of a real risk that, if granted bail, he or she would abscond, commit an offence, or interfere with witnesses or the course of justice.

Conclusion

6.13      We conclude that the refusal of bail by a court because of a lack of information, as permitted by paragraph 5, can be compatible with Article 5 provided that

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".

6.14      Where these tests are met, the requirements for lawful pre-trial detention that we identified in Part II of this report will not apply.
6.15      Where these tests are not met, detention will only be compatible with the Convention where it is based on one of the other grounds for detention provided for in English law, and where the requirements set out in Part II above are satisfied.
6.16      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.
6.17      It is entirely possible for the courts to apply paragraph 5 in a way which is compatible with the ECHR. We therefore make no recommendation in respect of this provision.
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Note 1    See R v Calder Justices, ex p Kennedy (1992) 156 JP 716, in which it was held that a decision under para 5 merely expresses the justices’ satisfaction that they are not in a position to make a proper bail decision. It does not, therefore, restrict further bail applications.    [Back]

Note 2    Consultation Paper No 157, paras 1.28 – 1.31.    [Back]

Note 3    A 207 (1991), 14 EHRR 83, para 35. Similar passages occur in, eg, Matznetter v Austria A 10 (1969), 1 EHRR 198, para 12;B v Austria, A 175 (1990), 13 EHRR 20, para 42; Yargci and Sargin v Turkey A 319-A (1995), 20 EHRR 505, para 50.    [Back]

Note 4    Tomasi v France A 241-A (1992), 15 EHRR 1, para 84; Herczegfalvy v Austria A 244 (1992), 15 EHRR 437, para 71; Abdoella v Netherlands A 248-A (1992), 20 EHRR 585, para 24.    [Back]

Note 5    Enshrined in Article 6(2) of the ECHR.    [Back]

Note 6    The case law on Article 5(4) (the right of a detained person to take proceedings by which the lawfulness of the detention can be decided speedily by a court) also recognises that national authorities have a duty to act with “due diligence” where a person’s liberty is at stake. The state has an obligation to provide an efficient judicial system capable of reaching speedy determinations of the lawfulness of detentions. See Bezicheri v Italy A 164 (1989), 12 EHRR 210, paras 23–24; E v Norway A 181-A (1990), 17 EHRR 30, para 66.    [Back]

Note 7    MCA 1980, ss 128 and 128A.    [Back]

Note 8    Home Office Circular 155/1975 said, at para 21: “The Working Party were strongly of the opinion that the length of such remands should be kept to the minimum necessary to enable the inquiries to be completed, and that a week’s remand should not be ordered as a matter of course in these circumstances; the police should be asked how long their inquiries were likely to take and the length of remand fixed accordingly.”     [Back]

Note 9    Legislation must be “read and applied” in a way which is compatible with the Convention rights: HRA 1998, s 3.    [Back]

Note 10    See para 6.7 above.    [Back]

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