The Law Commission

PART VIII

EXCEPTIONS TO THE RIGHT TO BAIL (6):
SECTION 25 OF THE CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994

8.1      Section 25 of the Criminal Justice and Public Order Act 1994, as amended,^[1] provides:

A person who in any proceedings has been charged with or convicted of an offence to which this section applies in circumstances to which it applies shall be granted bail in those proceedings only if the court, or as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it.

8.2      The offences to which section 25 applies are murder, attempted murder, manslaughter, rape and attempted rape.^[2] The circumstances to which it applies are that the defendant charged with such an offence has previously been convicted of one of these offences.^[3] In these cases the onus is on the defendant to show that there are "exceptional circumstances" justifying release. Whereas the other exceptions to the right to bail (contained in Schedule 1 to the Bail Act) merely provide that the defendant need not be granted bail, the effect of section 25 is that the defendant must not be granted bail unless there are exceptional circumstances.

The background

8.3      As originally enacted, section 25 was introduced as part of a "package of measures"^[4] intended to reduce the incidence of offending by people on bail, then estimated by the Government at 50,000 offences a year.^[5] In its original form, section 25 prevented bail from being granted at all in cases where it applied. Opponents of the provision argued that it was unnecessary, because the courts could be relied upon to exercise their discretion properly, and unfair, because it left no room for exceptional cases in which bail might be justified.^[6] There seems to have been no discussion of a possible conflict with the Convention.^[7]

The original section 25 and Article 5

8.4      In Caballero v UK^[8] the Government conceded that the application of the original section 25 had violated the applicant's rights under Article 5(3), and the ECtHR accepted that concession. This was not unexpected in the light of the ECtHR case law and, specifically in relation to section 25, the views expressed by the Commission.^[9] The section did not allow for the examination of all the relevant facts. It caused bail to be denied to certain offenders simply because they fell within a particular category, irrespective of whether a deprivation of liberty was necessary in the individual circumstances and without any room for judicial discretion.^[10]

The 1998 amendment

8.5      The section, as amended in 1998, provides that bail may be granted in such cases only if the court or constable is satisfied that there are "exceptional circumstances" justifying this. The Government introduced the amendment to "restore to the police and to the courts their rightful discretion in relation to the granting of bail in certain cases".^[11] It believed that this would prevent the Convention being violated.^[12]
8.6      The Caballero judgment has also contributed to the recent repeal of certain provisions of Scottish bail legislation which were similar in their effects to section 25.^[13] The Scottish Executive considered introducing an "exceptional circumstances" test, but decided against this course, believing that it would "add nothing to a clear common law position in Scotland" which already enables a sheriff to refuse bail to defendants charged with serious offences whenever it is deemed necessary to do so.^[14]

The compatibility of section 25 (as amended) with the ECHR

The consultation paper

8.7      In the consultation paper we noted that some sources had doubted whether the amendment to section 25 was sufficient to make it compatible with the Convention. We cited Philip Leach, at that time the legal director of Liberty, as saying:

As the European Commission has re-affirmed in CC v UK, the fundamental objective of Article 5 is to prevent arbitrary detention. There is no statutory definition of what is meant by "exceptional circumstances" and it is not apparent whether, for example, the defendant will need to establish that there is a particularly low risk of interference with justice, or of further crimes being committed, or that there is very little danger of absconding or of public disorder, or whether the defendant must go further than that. If so, it is not at all clear what would, exceptionally, justify granting bail. Furthermore, to single out a category of suspects in this way may not pay "due regard to the presumption of innocence" which the Convention requires.^[15]

8.8      We noted that this view might appear to derive support from the ECtHR's judgment in Nikolova v Bulgaria.^[16] The applicant in that case was charged with an offence which, under Bulgarian legislation, constituted a "serious and wilful" offence, with the consequence that she had to be detained on remand unless she could demonstrate

beyond doubt, the burden of proof being borne by … her, that there did not exist even a hypothetical danger of absconding, re-offending, or obstructing justice.

This burden could be discharged only in exceptional circumstances, such as the detained person being immobilised by illness.

8.9      The applicant appealed against her detention. A Bulgarian court dismissed her appeal on the ground that she had submitted medical certificates relating only to her past state of health,^[17] and that there were therefore no current circumstances justifying a departure from the mandatory detention requirement. The court ignored as irrelevant the "concrete facts" relied upon by the applicant – for example, that she had not attempted to abscond or to obstruct the investigation, and that she had a family and a stable way of life.
8.10      The applicant's complaint^[18] was based on Article 5(4), which confers on a detained person the right to have the lawfulness of his or her detention decided by a court.^[19] She complained that the court's decision had been "purely formal" and "nothing more than a rubber-stamping process". The ECtHR upheld her complaint and emphasised that its task was to ascertain whether the applicant's rights had in fact been violated, not whether the relevant Bulgarian law could have been applied without violating them.^[20] While Article 5(4) does not require a judge hearing a challenge to detention to address every argument put forward by the detainee,

its guarantees would be deprived of their substance if the judge, relying on domestic law and practice, could treat as irrelevant, or disregard, concrete facts invoked by the detainee and capable of putting into doubt the existence of the conditions essential for the "lawfulness", in the sense of the Convention, of the deprivation of liberty. The submissions of the applicant … contained such concrete facts and did not appear implausible or frivolous. By not taking these submissions into account the [court] failed to provide the judicial review of the scope and nature required by Article 5(4) of the Convention.^[21]

8.11      It could not be assumed from the decision in Nikolova that any refusal of bail under section 25 would also be a violation of Article 5. The complaint was not that the Bulgarian court had infringed the applicant's right to release under Article 5(3), but that, by simply "rubber-stamping" the initial decision, it had failed to provide the independent judicial review required by Article 5(4). The ECtHR did not have to consider whether there is necessarily an infringement of Article 5(3) where pre-trial detention is authorised on the ground that the circumstances raise a presumption against release, and that presumption has not been rebutted.

Do statutory presumptions always lead to arbitrary decision-making?

8.12      As amended, section 25 gives the court a strong indication of the way in which its discretion should be exercised, but does not prevent it from exercising that discretion altogether. Ultimately it is for the court to determine whether a given defendant should be detained or released. The Convention does not prohibit the legislature from requiring the courts to have regard to particular criteria in making judicial decisions. It prohibits provisions which deprive them of their power to make the final decision. It is instructive to examine the way in which the ECtHR has dealt with legislative attempts to influence judicial decision-making by means of statutory provisions reversing the burden of proof in respect of certain facts which form an element of an offence, or are necessary foundations of certain exculpatory defences.
8.13      In the consultation paper we referred to Salabiaku v France,^[22] which involved certain provisions of the French Criminal Code which, in some circumstances, created a rebuttable presumption of guilt.^[23] The ECtHR held that the application of these provisions to the applicant's case had not violated his right to be presumed innocent under Article 6(2) of the Convention, because the French courts retained "an unfettered power of assessment with regard to evidence adduced by the parties before it". It was clear from the judgments of the various courts who had heard the applicant's case that they had been careful not to resort automatically to the presumption laid down in the Criminal Code, but had properly considered the evidence.^[24]
8.14      Similarly in Hoang v France, the ECtHR noted that the French court had

duly weighed the evidence before it, assessed it carefully and based its finding of guilt on it. It refrained from any automatic reliance on the presumptions created in the relevant provisions of the Criminal Code …^[25]

8.15      The House of Lords considered the Convention-compatibility of certain provisions in English law which reverse the burden of proof on the issue of substantive liability, in R v DPP, ex parte Kebilene.^[26] Lord Hope of Craighead drew a distinction between a "mandatory presumption of guilt as to an essential element of the offence" and a "discretionary" one. In the case of the former, once the facts upon which it rests are proved, guilt must follow. It is, therefore, inconsistent with the presumption of innocence. Such prima facie breach of the presumption of innocence will not however lead inevitably to the conclusion that the provision is incompatible with Article 6(2).^[27] In the case of a discretionary presumption, the "tribunal of fact may or may not rely on the presumption, depending upon its view as to the cogency or weight of the evidence". In such a situation, it may be necessary to consider the facts of the particular case before it can be determined whether the presumption of innocence has been violated.^[28]
8.16      This classification applies to presumptions of guilt and Article 6(2) rather than limits on the discretion of national courts and Article 5(3), but it provides a helpful analogy.

Can section 25 be interpreted compatibly with the Convention?

8.17      Section 25 states that a person to whom it applies can be granted bail only if the court or constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it. The meaning of "exceptional circumstances" is therefore crucial.
8.18      In the consultation paper we suggested three possible approaches to the proper construction and application of the section:

(1) The court might approach the section on the basis that it left the court with no real discretion at all. The court might construe the words "exceptional circumstances" as applying only to the circumstances of the offences themselves which made the case highly unusual, and which eliminated virtually all risk of the defendant committing a further such offence whilst on bail. We considered that this approach would be incompatible with Article 5.

(2) The section might be construed so that any circumstances which persuaded a court that bail was appropriate in the circumstances to which the section applied would of themselves be "exceptional". We concluded that this construction would not infringe Article 5, but we doubted whether section 25 could properly be so construed, as it would make the section redundant.

(3) In considering the question of bail, the court would be free to consider all the circumstances, but be required to give special weight to the circumstances triggering the section, so that bail could be granted only if, balancing the factors and having regard to that special weight, the circumstances were sufficiently "exceptional" as to justify bail. This would involve the court going through the usual process of balancing the considerations in favour of bail against those pointing towards detention. A court adopting this interpretation would take all relevant circumstances into account, but might refuse bail because the case falls within section 25, in circumstances where, but for that section, bail would have been granted.

8.19      On the question whether the third construction of section 25 would be compatible with Article 5, we stated two contending views:

(a) It would not be compatible with Article 5, in that it elevates the question whether the offence and the offender fall within a preordained disadvantaged category above the proper question – namely, whether the facts of the individual case are such as to present an unacceptable risk of reoffending were bail to be granted.

(b) Alternatively, there would not necessarily be a breach of Article 5 were bail to be refused because of the need to establish exceptional circumstances, even if, but for section 25, the defendant would have been granted bail. The fact that the court gives special weight to certain factors identified by Parliament does not prevent it from taking all relevant considerations into account in reaching its decision.

8.20      Approach (b) does not require "the exclusion from the risk assessment of a consideration of all the particular circumstances and facts of each accused's case".^[29] We tentatively concluded that this view of the third construction was probably correct and would enable section 25 to be interpreted and applied in a way that was compatible with the Convention.
8.21      We recognised, however, that in its present form the provision might be misconstrued and applied in an incompatible way. We suggested that this risk could be averted either by amending the section so as to clarify its intended effect, or by the provision of guidance. Our provisional view was that amending the legislation would be the most appropriate course.

Analysis of responses

Respondents who supported our provisional conclusions that section 25 was capable of being construed compatibly with the Convention but, in its present form, was liable to be misconstrued

8.22      Approximately two thirds of respondents supported this conclusion. There was broad support in this group for the amendment or repeal of section 25.^[30]

Respondents who doubted whether section 25 was capable of being construed compatibly with Article 5

8.23      Several respondents doubted that section 25 could be applied in a manner which would be compatible with the Convention and advocated its repeal. NACRO thought that the obvious construction of the word "exceptional" is that bail would hardly ever be granted in circumstances where section 25 applied. The Bar Council and the Criminal Bar Association jointly suggested that, given that bail is, in any event, unlikely to be granted in all but a very small number of cases where section 25 would apply, the imposition of a further requirement that in such cases bail should be granted only in "exceptional circumstances" would have "the effect of reducing the decision maker's discretion to the vanishing point". Their view was that this provision inhibits the proper consideration of all the relevant circumstances required by the Convention.

Respondents favouring the repeal of section 25 for reasons of policy and principle

8.24      A number of respondents supported the repeal of section 25 wholly or partly on the ground that the provision was an unnecessary fetter on the discretion of decision-makers. The Magistrates' Association stated that magistrates knew how to exercise their discretion properly and the provision was unnecessary.^[31]

Respondents who believed that section 25 was not liable to be misconstrued in a manner that was not compatible with Article 5

8.25      The Foreign and Commonwealth Office thought that, given the extreme circumstances in which section 25 applies, it would only be in exceptional cases that bail would be appropriate anyway. This view was echoed by the Home Office, who stated that

the finding of law and fact involved in determining the presence of exceptional circumstances allows a court the freedom to release on bail a person who does not present a serious risk. Further the presence of exceptional circumstances cannot be considered without a proper consideration of all the aspects of the case.

8.26      The Home Office stated that the lack of statutory guidance would be "filled by judicial freedom and therefore by the Convention." Lord Davidson thought that any future challenge could be successfully resisted on the ground that the amendment, combined with the pre-trial time limit, afforded ample protection against arbitrary detention. The DTI, ACPO and the CPS also took the view that section 25 was not liable to be misapplied in a non-compliant manner, but they supported the idea of issuing appropriate guidance.

Respondents supporting section 25 for reasons of policy and principle

8.27      The Police Federation argued that the provision was necessary because, prior to its introduction, "very serious offenders who had been charged with further serious offences were being granted bail in circumstances that were simply making a mockery of the Criminal Justice System". ACPO viewed it in the context of the large number of serious offences committed by individuals on bail, and cited Kebilene in support of the propriety of the reverse burden of proof.^[32] The CPS noted that normally only the defendant would have knowledge of the exceptional circumstances.

Our views

Arguments of policy and principle

8.28      Our task is not to judge the merits of section 25, but to consider whether it can be read in a Convention-compatible manner and, if so, whether that reading is so problematic that the law is liable to be applied in an incompatible way.

Is section 25 capable of being interpreted and applied compatibly with the Convention?

8.29      We remain of the view, with which a clear majority of consultation respondents agreed, that section 25 is capable of being interpreted and applied compatibly with the Convention.
8.30      We are confirmed in our view by two recent decisions of the Court of Appeal. One relates to the Convention-compatibility of reverse onus presumptions. The other provides an interesting examination of "exceptional circumstances", albeit in a different context from bail decisions.

The Convention-compatibility of reverse onus presumptions – the importance of public policy considerations

8.31      Since the consultation paper, the Court of Appeal has considered the question of reverse onus presumptions in Lambert, Ali and Jordan.^[33] The appellants argued that statutory provisions requiring defendants to discharge a burden of proof on the balance of probabilities in order to establish a successful defence to what would otherwise be a criminal offence were contrary to Article 6 of the Convention, and should therefore be interpreted as imposing only an evidential burden.
8.32      The Court of Appeal rejected these arguments. Lord Woolf CJ stated that "a broad and purposive approach" should be given to the language of the Convention. He considered the case of Salabiaku v France^[34] in which the ECtHR said:

Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law. …

Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.

Lord Woolf also referred to the words of Lord Hope in R v DPP, ex parte Kebilene where he stated that account may be taken of the problem the legislation was designed to address, and that

As a matter of general principle … a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual. ^[35]

8.33      Lord Woolf noted that the ECHR jurisprudence makes clear that the courts do not have to ignore the wider interests of the public in applying those Convention provisions which do not themselves contain an express limitation. He held that the reverse onus provisions at issue in the case^[36] were justifiable under the Convention because they were enacted by Parliament on the basis of understandable policy considerations and were not a disproportionate response to those considerations.
8.34      We believe that this decision supports our view that it is unlikely that section 25 poses a serious risk of incompatibility with the Convention. Lord Woolf appears to have taken the view that, even if an article of the Convention does not itself contain express limitations, this does not prevent the courts from identifying the wider interests of the community and balancing these against the interference with the Convention right.
8.35      We are not dissuaded from this view by the recent judgment in R (on the application of H) v Mental Health Review Tribunal.^[37] The case concerned section 73 of the Mental Health Act 1983, which places on a restricted patient the burden of satisfying the tribunal that he or she no longer suffers from a mental disorder warranting detention. The Court of Appeal issued a declaration that section 73 was incompatible with Article 5(1)(e), which permits the lawful detention of persons reliably shown to be of unsound mind.^[38]
8.36      Whilst there is an apparent similarity between the provisions in issue in this case and the reverse onus presumption in section 25 of the Criminal Justice and Public Order Act 1994, we regard section 25 as more closely analogous to section 2 of the Crime (Sentences) Act 1997 (which has been held to be compatible with the Convention)^[39] than to section 73 of the Mental Health Act 1983.
8.37      Section 25 of the Criminal Justice and Public Order Act 1994 and section 2 of the Crime (Sentences) Act 1997 were both enacted in response to public concern about the threat of serious offences committed by repeat offenders. Each contains a rebuttable presumption that arises where certain factual matters have already been established by the prosecution. The true effect of section 25 is that, once the prosecution has established that certain circumstances exist which bring the provision into play, attention shifts to whether the defendant poses a substantial risk to the public. A rebuttable presumption arises that the defendant does pose such a risk. Under section 73 of the Mental Health Act 1983, by way of contrast, there is no requirement that the state establish any presumptive facts. A tribunal can decline to order release for no reason other than that the defendant failed to satisfy them that he or she was not of unsound mind.^[40]
8.38      We believe that, provided that section 25 is interpreted so that the courts are not prevented from giving genuine consideration to whether the defendant poses a risk to the public, it is highly likely that the courts would find that the provision can be objectively justified and is not disproportionate. This is particularly so since a defendant is likely to be the person best able to bring to the attention of the court any exceptional circumstances militating in favour of bail. Thus, no injustice is caused to the defendant if he or she bears the burden of displacing a statutory presumption that those who have been once convicted of a very serious offence and are alleged to have committed a further very serious offence pose a substantial risk to the public and should therefore be detained. Furthermore, the burden can be characterised as a "discretionary" rather than a "mandatory" one.^[41] Where the court is satisfied that it is not necessary to detain the defendant, it is not obliged to detain the defendant simply because the defendant has not adduced evidence capable of displacing the presumption.

What will constitute "exceptional circumstances"?

8.39      We believe that the recent Court of Appeal decision in Offen^[42] provides a useful guide to the construction of the phrase "exceptional circumstances". That case concerned the proper interpretation of section 2 of the Crime (Sentences) Act 1997, which provides for automatic life sentences for defendants convicted of two serious offences unless the court is of the opinion that there are "exceptional circumstances relating to either of the offences or to the offender which justify its not doing so".^[43] The appellants contended that section 2 of the 1997 Act was incompatible with Articles 3, 5, 7 and 8 of the Convention.
8.40      In a previous Court of Appeal decision on this provision,^[44] decided before the coming into force of the Human Rights Act, Lord Bingham CJ had set out a two-stage process for determining whether the duty to impose a life sentence under section 2(2) of the 1997 Act arose. The first was to determine whether exceptional circumstances existed. Lord Bingham said:

We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art … To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.^[45]

Only at the second stage was the policy and intention of Parliament, to protect the public against defendants who had committed serious offences, considered. The assumption was that persons who had committed two serious offences posed a danger to the public. If the facts showed that the statutory assumption was misplaced, this could justify a court in not imposing a life sentence.

8.41      The consequence of this test was that, even where the defendant did not pose a danger to the public, the court would still have to impose a life sentence where it was unable to find any exceptional circumstances. In Turner (Ian)^[46] the Court of Appeal stated that the effect of section 2 could be to compel a judge to impose an automatic life sentence even if, in the circumstances of the case, it offended his or her sense of justice.
8.42      In Offen, Lord Woolf CJ stated that Article 5 required that detention should not be arbitrary or disproportionate, and that passing a life sentence on a person who did not pose a danger to the public might fail those tests. He construed section 2 by focusing on its purpose of protecting the public from repeat offenders who commit serious offences. Section 2 established a norm that persons convicted of a second serious offence posed a significant risk to the public. If, taking into account all the circumstances relating to the offender, he or she did not pose such a risk, then that constituted a departure from the norm, and thus an exceptional circumstance which may justify the court in not imposing a life sentence. We believe that Offen provides a sensible model for the interpretation of section 25, which was also enacted because of Parliament's concern that such defendants posed a threat to the public.
8.43      If section 25 were construed so that circumstances in which the defendant would not pose a significant risk to the public if released on bail were regarded as "exceptional", then that would meet the purpose of the legislation. We do not believe that such an interpretation would prevent section 25 from having some effect. Where there is a significant risk that the defendant would commit a serious offence or endanger the public while on bail, then notwithstanding any factors (such as the defendant's health, employment or family responsibilities) that reduce that risk or might for other reasons persuade a court to grant bail, bail cannot be granted. The Convention permits the detention of defendants where there is a real risk that they will commit an offence while on bail, and detention is necessary to avert such a risk. Section 25 focuses the court's attention on that risk, leaving it free to have regard to all relevant factors.
8.44      In the light of the authorities, therefore, "exceptional circumstances" encompasses situations where the court believes that the defendant would not pose a significant risk to the public if released on bail. In addition, there may be other situations where the circumstances affecting the appropriateness of detention are regarded as exceptional for some other reason.^[47]

Conclusion

8.45      We conclude that section 25 can be interpreted compatibly with the Convention, and that, if bail decision-takers are given adequate training and guidance on the legal obligation to construe and apply section 25 in a manner compatible with the Convention, they are unlikely to experience serious difficulties in so doing. We therefore make no recommendations for legislation.
8.46      Section 25 should be construed as meaning that where the defendant would not, if released on bail, pose a real risk of committing a serious offence, this constitutes an "exceptional circumstance" so that bail may be granted. This construction would achieve Parliament's purpose of ensuring that, when making bail decisions about defendants to whom section 25 applies, decision-makers focus on the risk the defendant may pose to the public by re-offending.
8.47      There may be other "exceptional circumstances" which may permit bail to be granted.
8.48      Even if "exceptional circumstances" do exist, bail may, nonetheless, be withheld on a Convention-compatible ground if this is deemed to be necessary in the individual case.
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Note 1    By the Crime and Disorder Act 1998, s 56, which came into force on 30 September 1998: Crime and Disorder Act 1998 (Commencement No 2 and Transitional Provisions) Order 1998 (SI 1998 No 2327).    [Back]

Note 2    Criminal Justice and Public Order Act 1994, s 25(2).    [Back]

Note 3    Ibid, s 25(3).    [Back]

Note 4    This package included a new exception to the right to bail (para 2A of Part I of Sched 1 to the Bail Act 1976, inserted by Criminal Justice and Public Order Act 1994, s 26). That exception has been discussed in Part IV above.    [Back]

Note 5    Hansard (HC) 10 March 1994, vol 239, col 386.    [Back]

Note 6    “Where the Executive seeks to interfere with the established discretion of the judiciary, it has a very heavy burden to discharge – and the Government have not got within miles of doing so on this occasion”: Lord Ackner, Hansard (HL) July 5 1994, vol 556, col 1234.    [Back]

Note 7    Such discussion of rights as there was took the form of querying whether defendants should have a right to bail at all. Mr Robert MacLennan (a Liberal Democrat MP) referred to bail as “a privilege that is too often abused”: Hansard (HC) January 11 1994, vol 235, col 60. Mr Roger Evans MP said that the Bail Act 1976 had “removed the good sense of the courts” and “created the topsy-turvy general presumption in favour of bail, subject only to limited exceptions”: Hansard Standing Committee B, 25 January 1994, col 280.    [Back]

Note 8    App No 32819/96, 8 February 2000, 30 EHRR 643.    [Back]

Note 9    See BH v UK App No 30307/96, Commission decision of 1 December 1997, 25 EHRR CD 136; Caballero v UK (aka CC v UK) App No 32819/96, (2000) 30 EHRR 643, Commission opinion, paras 43–49. “BH” and “CC” both complained that their rights under Article 5(3) (among others) had been violated by their detention under s 25 as they had not been “brought promptly before a judge or other officer authorised by law to exercise judicial power”. The Commission accepted the validity of these complaints, and noted that, according to settled ECtHR case law, before authorising pre-trial detention a judicial officer must hear the accused and examine all the facts arguing for or against the existence of a genuine requirement of the public interest justifying, with due regard to the presumption of innocence, a departure from the rule of respect for the accused’s liberty.    [Back]

Note 10    The ECtHR has stated that the mere fact that a defendant has previous convictions cannot in itself justify pre-trial detention, eg Muller v France 1997-II, para 44. Similarly, in Morganti v France (No 1) A 320-C (1995), 21 EHRR 34, Commission opinion, para 62, the Commission stated that the seriousness of the charge which the defendant faces cannot be taken alone as justifying detention.    [Back]

Note 11    Lord Falconer of Thoroton, Hansard (HL) 31 March 1998, vol 588, col 239.    [Back]

Note 12    During the Committee stage in the Commons, the Home Office Minister Mike O’Brien referred to CC and BH (see n 9 above), saying “there is a question mark over the current construction of section 25 in relation to the ECHR … [The cases] make this amendment to section 25 essential”: Hansard (HC) Standing Committee B, 19 May 1998.    [Back]

Note 13    The Bail, Judicial Appointments, etc (Scotland) Act 2000 repealed certain provisions of the Criminal Procedure (Scotland) Act 1995 which had precluded sheriffs (though not the High Court or the Lord Advocate) from granting bail to defendants charged with murder or treason, or to those charged with attempted murder, culpable homicide, rape or attempted rape who had a previous conviction for any of those offences or for murder or manslaughter.    [Back]

Note 14    Policy memorandum relating to the Bail, Judicial Appointments, etc (Scotland) Bill, Session 1 (2000) SP Bill 17-PM.    [Back]

Note 15    [1999] Crim LR 300, 304–305.     [Back]

Note 16    Nikolova v Bulgaria 1999-II, 31 EHRR 64.    [Back]

Note 17    It was claimed that at the time of the applicant’s arrest she had not completely recovered from gynaecological surgery.    [Back]

Note 18    She also complained under Article 5(3). However, this was on the basis that, after her arrest, she had not been promptly brought before “a judge or other officer authorised by law to exercise judicial power”, but only before an investigator who did not have power to make a binding decision as to her detention and was not procedurally independent from the prosecutor. The Court confirmed its previous decision in Assenov v Bulgaria 1998-VIII that this procedure was incompatible with Article 5(3).    [Back]

Note 19    See Part XI below.    [Back]

Note 20    Nikolova v Bulgaria 1999-II, 31 EHRR 64, para 60.    [Back]

Note 21    Ibid, para 61.    [Back]

Note 22    A 141-A (1988), 13 EHRR 379.    [Back]

Note 23    The Code allowed the French courts to find a defendant guilty of certain customs offences on the basis that certain prohibited goods had been found in his or her possession. The defendant could rebut that presumption of liability only by proving to the court’s satisfaction that his or her possession of them was the result offorce majeure.    [Back]

Note 24    A 141-A (1988), 13 EHRR 379, paras 29–30.    [Back]

Note 25    A 243 (1992), 16 EHRR 53, para 36.     [Back]

Note 26    [2000] 2 AC 326. Such provisions, andex p Kebilene, were further considered in Lambert, Ali and Jordan [2001] 1 All ER 1014. This case is considered at paras 8.31 – 8.34 below.    [Back]

Note 27    Ibid, at 379d and 380b–d. Lord Hope explained that this classification is not an exact science (380c). A finding that a provision is inconsistent with the presumption of innocence will not lead inevitably to the conclusion that the provision is incompatible with Article 6. Lord Hope said that the European jurisprudence showed that other factors need to be brought into consideration at this stage (at 380d).    [Back]

Note 28    [2000] 2 AC 326, 379.    [Back]

Note 29    Caballero v UK (aka CC v UK) App No 32819/96, (2000) 30 EHRR 643, Commission opinion, para 49. See para 8.4 above.    [Back]

Note 30    Those who supported this view included the Justices’ Clerks’ Society and the Police Superintendents’ Association.    [Back]

Note 31    This view received support from the Bar Council and the Criminal Bar Association (joint response), the Inner London Magistrates’ Courts Service and an academic who noted that the law already made provision for the giving of reasons for the grant of bail in these circumstances.    [Back]

Note 32    See para 8.15 above.    [Back]

Note 33    [2001] 1 All ER 1014. The defendant Lambert appealed to the House of Lords, but judgment was awaited at the time of writing.    [Back]

Note 34    A 141-A (1988), 13 EHRR 379, para 28.    [Back]

Note 35    [2000] 2 AC 326, 384.    [Back]

Note 36    Lambert argued that certain defences to a charge of being in possession of a controlled drug (contained in ss 5(4) and 28(2) and (3) of the Misuse of Drugs Act 1971), which can succeed only where the defendant proves certain facts on the balance of probabilities, violated the rights to a fair and public hearing, and to be presumed innocent until proved guilty, contained in Article 6 of the ECHR. Ali and Jordan argued that s 2 of the Homicide Act 1957 violated Article 6 because, on a charge of murder, a defendant can secure a conviction of manslaughter on the grounds of diminished responsibility only by proving, on the balance of probabilities, that he or she was suffering from diminished responsibility as defined by s 2(1).    [Back]

Note 37    [2001] EWCA Civ 415, The Times 2 April 2001.    [Back]

Note 38    See Winterwerp v Netherlands A 33 (1979), 2 EHRR 387, para 39.    [Back]

Note 39    The proper interpretation of this provision and its compatibility with the Convention was considered by the Court of Appeal in Offen [2001] 2 All ER 154. We discuss this case at paras 8.39 – 8.42 below.    [Back]

Note 40    The Court of Appeal did not accept the view that s 73 could, in line with s 3 of the HRA, be interpreted so as to require a patient’s release where the tribunal is not satisfied that the patient is suffering from mental illness and needs to be detained, rather than only where the tribunal is satisfied that the patient is not suffering from such illness or does not need to be detained: It is of course the duty of the court to strive to interpret statutes in a manner compatible with the Convention and we are aware of instances where this has involved straining the meaning of statutory language. We do not consider however that such an approach enables us to interpret a requirement that a tribunal must act if satisfied that a state of affairs does not exist as meaning that it must act if not satisfied that a state of affairs does exist. The two are patently not the same. [2001] EWCA Civ 415, para [27], per Lord Phillips MR (giving the judgment of the court).    [Back]

Note 41    See paras 8.15 – 8.16 above.    [Back]

Note 42    [2001] 2 All ER 154.    [Back]

Note 43    This provision is now contained in the Powers of Criminal Courts (Sentencing) Act 2000, s 109. The Act also provides for minimum sentences to be imposed where the defendant is convicted of a third offence of trafficking “class A” drugs (s 110) or domestic burglary (s 111) unless there are “particular circumstances which – (a) relate to any of the offences or to the offender; and (b) would make it unjust to do so in all the circumstances.”    [Back]

Note 44    Kelly (Edward) [2000] QB 198.    [Back]

Note 45    Ibid, at p 208.    [Back]

Note 46    [2000] 1 Cr App R (S) 472.    [Back]

Note 47    In Frost (Paul William), The Times 5 Jan 2001 the Court of Appeal held that there may still be situations in which “exceptional circumstances” may be found to exist for the purposes of s 2(2) of the Crime (Sentences) Act 1997 even if the offender does present a significant risk to the public. The defendant had committed his first serious offence when he was 15 years old and had been sentenced to a supervision order, which effectively functioned as a probation order for a person under 17 years of age. Had he been sentenced to a probation order, s 2 of the Crime (Sentences) Act 1997 would not have applied. The Court of Appeal held that this constituted an “exceptional circumstance” for the purposes of the section.    [Back]