The Law Commission

PART VII

EXCEPTIONS TO THE RIGHT TO BAIL (5):
ARREST UNDER SECTION 7

Arrest under section 7 of the Bail Act 1976

Arrest for absconding

7.1      Sections 7(1) and (2) empower a court to issue a warrant for the arrest of a person who has been released on bail and who fails to attend court at the appointed time or absconds during proceedings. A person who fails to surrender to the court without reasonable cause or, if with reasonable cause, as soon after the appointed time as is reasonably practicable, commits an imprisonable offence contrary to section 6 of the Bail Act.^[1]
7.2      Arrest pursuant to such a warrant would be justifiable under Article 5(1)(c), both to prevent the defendant from fleeing after having committed the original offence and on reasonable suspicion of the offence of absconding.

Arrest for breach, or anticipated breach, of a bail condition

7.3      In Part IX(B) of this report we consider conditional bail as an alternative to unconditional bail. Here we do no more than indicate that bail conditions should be imposed only where, if those conditions were broken or reasonably thought likely to be broken, the arrest of the defendant would be compatible with the Convention.^[2] If this advice is followed, arrest under section 7(3) (see below) should not give rise to any problems of non-compliance with the Convention.
7.4      Section 7(3) empowers a constable to arrest a person without warrant in three situations:

(1) where the constable has reasonable grounds for believing that that person is not likely to surrender to custody;

(2) where the constable has reasonable grounds for either believing that the person is likely to break a bail condition or suspecting that the person has broken a bail condition; and

(3) where a surety notifies a constable in writing of a wish to be relieved of his or her obligations because the person on bail is unlikely to surrender to custody.

7.5      Breach of a bail condition is not an offence under the Bail Act 1976.

The power to refuse bail to defendants arrested under section 7(3)

7.6      Where a person has been arrested without warrant in pursuance of section 7(3), section 7(4) requires that that person be brought before a justice of the peace within 24 hours, or, where the person is arrested within 24 hours of the time appointed for his or her attendance at court, before the court before which he or she is required to appear.^[3]
7.7      Section 7(5) provides that a justice of the peace before whom a person is brought under subsection (4) may, if of the opinion that the person

(a) is not likely to surrender to custody, or

(b) has broken or is likely to break any condition of bail, remand the defendant into custody or grant bail subject to the same or different conditions as before.^[4] If the justice is not of one of those two opinions then bail must be granted subject to the same conditions as were originally imposed.^[5] Section 7(5) therefore provides threshold criteria which must be satisfied before the previous release on bail (and the conditions imposed with it) can be interfered with.

The compatibility of section 7(5) proceedings with the ECHR

The Havering Magistrates case

7.8      The High Court has recently considered the extent to which the procedure under section 7(5) of the Bail Act 1976 is compatible with Articles 5 and 6 of the ECHR. In the joined cases R (on the application of the DPP) v Havering Magistrates' Court and R (on the application of McKeown) v Wirral Borough Magistrates' Court^[6] (which we will call the Havering Magistrates case) the High Court dealt with two related applications for judicial review of bail decisions taken by justices of the peace under section 7(5). The justices in each of these cases had taken opposite views on whether the aspects of Article 6 of the ECHR which apply to persons charged with a criminal offence should apply in relation to section 7(5) proceedings.
7.9      Paragraph 3 of Article 6 sets out five minimum rights to which everyone charged with a criminal offence is entitled. These include the right "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him". It was submitted on behalf of the DPP that the Havering justices were wrong in concluding (i) that Article 6 applied to the section 7(5) procedure, and (ii) that oral evidence from the complainant who alleged breach of the bail condition was required in the circumstances of the case.^[7] In contrast, in the Wirral justices case, submissions were made on behalf of Mark McKeown that, in a section 7(5) hearing, justices could only form an opinion that a person has broken a bail condition if the prosecution proves such a breach to the criminal standard.^[8]
7.10      The Divisional Court therefore had to decide three issues:

(1) whether Article 6 applies to section 7(5) proceedings;

(2) even if Article 6 does not apply, whether justices in such proceedings may or must hear oral evidence; and

(3) whether the criminal standard of proof applies in such proceedings.

Section 7(5) and the requirements of Article 6

Do proceedings under section 7(5) amount to charging the arrested person with a criminal offence?

7.11      The High Court rejected the submission that proceedings under section 7(5) amount to charging the arrested person with a criminal offence, so as to give rise to all the Article 6 rights and, in particular, those in Article 6(3).^[9] Having referred to the Strasbourg cases of Engel v Netherlands (No 1)^[10] and Campbell and Fell v UK,^[11] the court noted that, in contrast to section 6 of the Bail Act,^[12] section 7 does not create any offence. Section 7 is intended to provide the means by which the purposes of any conditions imposed under section 3^[13] can be achieved. It followed that

The liability of the defendant to be detained in the events specified in section 7 is therefore consequent upon his liability to be detained by reason of the charge which he faces in order to secure these purposes. It is not … to be equated to the imposition of any form of punishment or sanction which would justify the conclusion that proceedings under section 7(5) are equivalent to his facing a criminal charge. That would … be a wholly inappropriate way of categorising a claim that the defendant was not likely to surrender to custody, or was likely to break any condition of his bail, both of which are matters which would justify the exercise of the power under section 7(5) …. In these circumstances, I do not consider that article 6 has any direct relevance to these applications.^[14]

Section 7(5) and the requirements of Articles 5 and 6

7.12      The High Court regarded it as clear that Article 5 was applicable. The court emphasised that, as the principal purpose behind the provisions of Article 5 is "to ensure that persons are not subject to arbitrary deprivation of liberty", it was necessary for the judicial procedure to ensure equal treatment of the parties and to be truly adversarial, with equality of arms between the parties.^[15] Whilst the ECtHR has borrowed some of the general concepts of fairness in judicial proceedings from Article 6,

that does not mean that the process required for conformity with article 5 must also be in conformity with article 6. That would conflate the Convention's control over two separate sets of proceedings which have different objects.^[16]

Nature and purpose of proceedings under section 7(5)

7.13      The High Court stated that, although "a literal reading of section 7(5) could lead to the conclusion that the mere fact of a breach of condition could justify detention", that approach would not be compatible with the Convention because it would allow detention where detention is not necessary for a purpose that is valid under the Convention.^[17] Even where one of the two threshold conditions for detention or the imposition of new conditions contained in section 7(5) is met, the defendant should only be detained or granted bail subject to additional conditions where this would be compatible with the Convention.^[18] The fact of a breach is no more than one of the factors which a justice must consider in exercising his or her discretion under s 7(5).^[19]

The standard of proof required

7.14      None of the cases cited before the High Court suggested that Article 5 required the underlying facts relevant to detention to be proved to the criminal standard of proof.^[20]

The evidence the justices should hear and take into account

7.15      The High Court took the view that justices hearing section 7(5) proceedings are not required to hear oral evidence in every case, but should take account of the quality of the material presented, which may range from mere assertion to documentary proof. If the material includes oral evidence, the defendant must be given an opportunity to cross-examine. Likewise, defendants should be permitted to give relevant oral evidence if they wish to do so.^[21]
7.16      Although it was not an issue raised in either case, brief consideration was given to the difficulties that might arise where an adjournment might be necessary. In R v Liverpool Justices the court had held that justices do not have a power to adjourn section 7(5) proceedings.^[22] The court in the Havering Magistrates case noted that, even if that view were wrong and justices did have a power to adjourn the proceedings, a mere power to adjourn would be of little value because

there is clearly no power to detain for the purposes of the adjournment. A solution is likely to be that, Parliament having determined that there should be a swift and relatively informal resolution of the issues raised, the justice must do his best to come to a fair conclusion on the relevant day; if he cannot do so, he will not be of the opinion that the relevant matters have been made out which could justify detention.^[23]

Disclosure

7.17      Article 5 does not require that the whole of the prosecution file be disclosed to the defence prior to a bail 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. In section 7(5) proceedings, that will generally include the information necessary for the defendant to argue that the threshold conditions for detention specified in that section have not been met, and that, even if they are met, detention is not necessary for a lawful purpose.^[24]

The compatibility of paragraph 6 of Part I and paragraph 5 of Part II of Schedule 1 with the ECHR

7.18      The right to bail conferred by section 4 of the Bail Act 1976 is, in the case of defendants accused of imprisonable offences, subject to paragraph 6 of Part I of Schedule 1, which provides:

The defendant need not be granted bail if, having been released on bail in or in connection with the proceedings for the offence, he has been arrested in pursuance of section 7 of this Act.

7.19      An identical provision is included in paragraph 5 of Part II of the Schedule, in relation to defendants accused of non-imprisonable offences.

The inter-relationship between section 7(5) and paragraphs 6 of Part I and 5 of Part II

7.20      We have noted above that a person arrested under section 7(3), that is by a constable without warrant,^[25] must be brought before a justice of the peace within 24 hours.^[26] The powers of a justice of the peace to detain a defendant arrested under section 7(3) are constrained by the specific criteria in section 7(5).^[27] The Act makes no express provision as to how the broad terms of paragraph 6 of Part I, and paragraph 5 of Part II, interact with the considerably narrower terms of section 7(5).
7.21      We describe below^[28] how we believe these paragraphs should be applied. They will, in our view, be relevant in relation to defendants arrested pursuant to warrants issued under section 7(1) and 7(2) in any court proceedings after arrest.^[29] However, we do not believe this to be the case in respect of arrests under section 7(3) because section 7(5) expressly limits the powers of a justice to detain such a defendant. The general words of paragraph 6 of Part I, and paragraph 5 of Part II, should not be construed so as to water down the more specific requirements of section 7(5).^[30]
7.22      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). In practice, this means that where someone is arrested pursuant to section 7(3), then, regardless of paragraphs 6 and 5, he or she should be granted bail unless the justice is satisfied that the section 7(5) threshold criteria for reconsidering the grant of bail are met, and detention is otherwise necessary for a purpose permitted by the Convention.

Other bail hearings concerning defendants who have been arrested under section 7

7.23      Where a person has been arrested pursuant to a warrant issued under section 7(1) or (2), however, he or she has a right to bail under section 4 which is subject to the exceptions in Schedule 1. Paragraphs 6 of Part I and 5 of Part II of the Schedule are relevant, and, as we have seen, provide that bail need not be granted where the defendant has been arrested under section 7. These paragraphs may also be applicable to defendants who have been dealt with under section 7(5) and who make a subsequent application for bail.

The consultation paper

7.24      Paragraph 6 of Part I and paragraph 5 of Part II of Schedule 1 would appear, on a literal reading, to entitle a court to deny a defendant bail simply because he or she has been arrested in pursuance of section 7. In the consultation paper we provisionally concluded that refusal of bail under either of these paragraphs would violate Article 5 unless the decision could be bolstered by the existence of another ground for refusing bail. We pointed out that paragraph 9 of Part I of Schedule 1 implicitly recognises the position of paragraph 6 as being subsidiary to the other grounds for refusing bail by including the defendant's past record of fulfilling his or her obligations under a grant of bail as a factor to which the court should have regard in taking the decisions required by paragraph 2.^[31] Our provisional view was that both paragraph 6 of Part I and paragraph 5 of Part II of Schedule 1 should be repealed.

The consultation responses

7.25      Whilst the majority of respondents agreed with our provisional proposal, several respondents took a different view. As in the case of paragraph 2A,^[32] the latter group argued that, as paragraphs 6 of Part I and 5 of Part II merely confer a discretion to withhold bail, they can be applied in a Convention-compliant manner. This argument was put forward by the Foreign Office, the Home Office, the DTI and the CPS.

The Havering Magistrates case

7.26      It is troubling that these statutory provisions appear to permit the court to withhold bail simply because the defendant has been arrested under section 7. Indeed, it was recognised in the recent Havering Magistrates case that, if interpreted literally, the provisions would not be Convention-compatible. Although paragraphs 6 and 5 were not strictly at issue, the court said that it could usefully deal with the question of their compatibility with Article 5.^[33]
7.27      The court cited with approval the view we expressed in our consultation paper, that if paragraph 6 was given its most ordinary and natural meaning so that bail could be refused simply because the defendant had been arrested under section 7, this would lead to a breach of Article 5. Whilst the circumstances of a section 7 arrest are capable of providing good reason for concluding that a ground for denying bail exists, it cannot properly be a ground in itself.^[34]
7.28      In accordance with the duty imposed upon courts by section 3 of the HRA "to construe the Act in accordance with the Convention, if [the court] can", the High Court concluded that

paragraph 6 of Part I and paragraph 5 of Part II of Schedule 1 … are to be construed as providing that such an arrest is capable of being taken into account in determining whether or not any of the grounds for refusing bail set out in paragraph 2 of Part I or paragraph 2 of Part II of the Schedule exist.^[35]

7.29      These remarks are obiter. In respect of paragraph 6 of Part I, this construction would render the provision compatible with the Convention because all of the grounds in paragraph 2 of Part I are recognised as grounds that can justify detention under Article 5.
7.30      We believe, however, that this dictum is unduly restrictive of the application of paragraph 5 of Part II, which applies to defendants accused of non-imprisonable offences. Paragraph 2 of Part II contains just one exception to the right to bail, based on a risk of the defendant absconding, which applies only where the defendant has previously failed to surrender to custody in accordance with his or her obligations under a grant of bail.^[36]
7.31      In our view, paragraph 5 of Part II enables bail to be refused at a hearing subsequent to a section 7(5) hearing. In the absence of paragraph 5, it would not be possible to detain a defendant who had been arrested under section 7(3) for non-compliance with a bail condition and who applies for bail subsequent to a section 7(5) hearing, otherwise than to avoid the risk of a defendant who has previously failed to surrender to custody failing to surrender again. In other words, it would not be possible to detain such a defendant to avoid a failure to surrender (where the defendant had not previously failed to surrender), the commission of an offence, or the course of justice being obstructed, where the defendant had failed to comply with conditions imposed for those purposes.

Conclusion and recommendation

7.32      The consultation responses we received suggest that in practice the courts do not withhold bail solely on the ground that the defendant has been arrested under section 7. According to the Law Society, the Magistrates' Association and the CPS, repeal of paragraphs 6 and 5 would make little or no difference. Furthermore, the dicta of the High Court in the Havering Magistrates case make it highly unlikely that either paragraph would be construed or applied in a manner which was incompatible with Convention rights.
7.33      We conclude that section 7(5) and paragraphs 6 of Part I and 5 of Part II of Schedule 1 to the Bail Act 1976 can be interpreted and applied so that Convention rights are not violated. The courts should not refuse to grant a defendant bail simply because he or she has been arrested under section 7. These provisions can and should be applied so that bail is only refused where this is necessary for a purpose which is capable of justifying detention under Article 5, as interpreted by the ECtHR. 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.
7.34      Although we have noted that paragraph 5 of Part II has a useful role as part of the scheme for dealing with defendants charged with non-imprisonable offences, paragraph 6 of Part I, which applies to defendants charged with imprisonable offences, is superfluous. Paragraph 2 provides courts with the power to detain such persons for all of the purposes for which bail conditions can properly be imposed. Paragraph 9(c) requires that courts taking decisions under paragraph 2 have regard to relevant considerations, including "the defendant's record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings".
7.35      We recommend that

(1) paragraph 6 of Part I of Schedule 1 to the Bail Act 1976 be repealed; and

(2) paragraph 5 of Part II of Schedule 1 to the Bail Act 1976 be amended by adding a requirement that the court must be satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody, commit an offence while on bail, or interfere with witnesses or otherwise obstruct the course of justice.

(Recommendation 2)

7.36      The amended statute would then make it plain that the courts should not refuse to grant bail to a defendant charged with an imprisonable offence simply because the defendant has been arrested under section 7. Rather, the circumstances leading to the defendant being arrested under section 7 may properly be taken into account under paragraph 9(c) as a possible reason for concluding that one of the Convention-compatible grounds for withholding bail is satisfied. Similarly, the courts should not refuse to grant bail to a defendant charged with a non-imprisonable offence simply because the defendant has been arrested under section 7. Rather, the circumstances leading to the defendant being arrested under section 7 may properly be taken into account as a possible reason for concluding that one of the specified Convention-compatible grounds for withholding bail is satisfied.
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Note 1    This offence is punishable either on summary conviction or as a contempt of court.    [Back]

Note 2    See paras 9B.2 and 9B.36 below.    [Back]

Note 3    Section 7(4) applies only to those arrested without warrant pursuant to subsection (3). It does not apply to a person arrested under a warrant issued under subsection (1) or (2), whose conduct prima facie constitutes an offence.    [Back]

Note 4    This power is subject to subsection (6) (which requires children or young persons to be remanded into the care of the local authority).    [Back]

Note 5    In R (on the application of Ellison) v Teesside Magistrates’ Court [2001] EWHC Admin 12, Lord Woolf LCJ and Newman J held that, where a person is arrested under s 7(3) and brought before a justice under s 7(4), the justice must personally exercise the discretion under s 7(5). If of the view that one of the threshold conditions in s 7(5) is met, the justice must either remand the person in custody until trial or grant bail subject to the same or different conditions as before. In a s 7(5) hearing concerning a defendant who had been granted bail by the Crown Court and was awaiting trial in that court, the Teesside Magistrates were therefore acting ultra vires in remanding the defendant in custody until a bail application could be made to, and heard by, the Crown Court.    [Back]

Note 6    [2001] 1 WLR 805.    [Back]

Note 7    Ibid, para 5.    [Back]

Note 8    Ibid, para 25.    [Back]

Note 9    Ibid, paras 15–22. This view was endorsed by Lord Woolf LCJ in Wildman v DPP [2001] EWHC Admin 14, The Times 8 February 2001.    [Back]

Note 10    A 22 (1976), 1 EHRR 647, paras 80–83.    [Back]

Note 11    A 80 (1984), 7 EHRR 165.    [Back]

Note 12    This makes it an offence, punishable with imprisonment, for a person to abscond.    [Back]

Note 13    In Havering Magistrates [2001] 1 WLR 805, paras 21–22, the court observed that it had not been suggested that these conditions in any way contravene the ECHR.    [Back]

Note 14    Havering Magistrates [2001] 1 WLR 805, para 22, per Latham LJ.    [Back]

Note 15    Ibid, paras 26-27, 34. Latham LJ cited the ECtHR cases: Kemmeche v France (No 3) A 296-C (1994), 19 EHRR 349, para 37; Schiesser v Switzerland A 34 (1979), 2 EHRR 417, para 30.    [Back]

Note 16    Havering Magistrates [2001] 1 WLR 805, para 35, per Latham LJ.    [Back]

Note 17    See paras 2.26 – 2.31 above.    [Back]

Note 18    The Convention requirements relating to detention are discussed in Part II above. The imposition of bail conditions as an alternative to granting unconditional bail is discussed in Part IX(B) below.    [Back]

Note 19    Havering Magistrates [2001] 1 WLR 805, para 38, per Latham LJ.    [Back]

Note 20    Havering Magistrates [2001] 1 WLR 805, para 39, per Latham LJ.    [Back]

Note 21    Ibid, para 41, per Latham LJ. See also paras 11.17 – 11.28 below.    [Back]

Note 22    R v Liverpool JJ, ex p DPP [1993] QB 233. See also n 5 above.    [Back]

Note 23    Havering Magistrates [2001] 1 WLR 805, para 44.    [Back]

Note 24    This matter is discussed in greater detail at paras 11.29 – 11.34 below.    [Back]

Note 25    Such an arrest will have been for a breach or an anticipated breach of a bail condition, or an anticipated failure to surrender to custody, rather than for the commission of an offence.    [Back]

Note 26    Except where the defendant was arrested within 24 hours of the time appointed for surrender to custody, in which case the defendant must be brought before the court at which he or she was to have surrendered.    [Back]

Note 27    See para 7.7 above. No constraint appears in s 7 in relation to a person arrested pursuant to a warrant.    [Back]

Note 28    See paras 7.23 – 7.31, 7.33 below.    [Back]

Note 29    A defendant who has absconded is liable to be charged with a Bail Act offence which is imprisonable. If so, or if the main offence is an imprisonable one, the defendant’s right to bail under section 4 of the Act will be subject to the provisions of Part I of Sched 1, including para 6. On the other hand, if the defendant is only charged with non-imprisonable offences then Part II of Sched 1, including para 5, will apply.    [Back]

Note 30    Support for this approach can be inferred from the judgment in the Teesside Magistrates case, discussed at n 5 above.    [Back]

Note 31    Consultation Paper No 157, para 8.7.    [Back]

Note 32    See para 4.5 above.    [Back]

Note 33    Havering Magistrates [2001] 1 WLR 805, para 45.    [Back]

Note 34    See para 2.28 – 2.30 above.    [Back]

Note 35    Havering Magistrates [2001] 1 WLR 805, para 47.    [Back]

Note 36    The only other exceptions to the right to bail in respect of defendants accused of non-imprisonable offences (contained in Part II of Sched 1) permit the refusal of bail: (i) for the defendant’s own protection, (ii) where the defendant is in custody in pursuance of the sentence of a court, and (iii) where the defendant has been arrested in pursuance of s 7.    [Back]