The Law Commission

PART IX(A)

CONDITIONAL BAIL AS AN ALTERNATIVE TO CUSTODY

9A.1      In English law, bail may be granted subject to conditions. Issues of compatibility with the Convention may arise in respect of this power in two ways. First, a defendant who is refused bail might claim that Article 5 required that bail should have been granted, albeit subject to conditions. Secondly, a defendant who is granted conditional bail might claim that less restrictive conditions should have been imposed, or none at all. We will consider the first of these issues in this part, and the second in Part IX(B).

The ECHR

9A.2      Article 5 of the Convention establishes a presumption in favour of liberty. It provides:

… No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.

It then lists a number of circumstances in which detention may be justified.

9A.3      A court should not detain a person in pursuit of a legitimate aim where there is another way to achieve that aim which would interfere with the defendant's liberty to a lesser extent.^[1] Article 5(3) states that release from lawful arrest or detention before trial "may be conditioned by guarantees to appear for trial". It does not explicitly mention the possibility of imposing bail conditions for other reasons, such as a risk of the defendant committing an offence or interfering with witnesses while on bail. The ECtHR has recognised, however, that it can be legitimate to detain a defendant before trial on the ground that it is necessary to do so in order to avert these risks. It therefore seems reasonable to assume that those risks can also justify the imposition of bail conditions, as this entails a lesser encroachment on the defendant's liberty. If a condition could be imposed which would eliminate a risk or reduce it to an acceptable level, it could not then be said that detention was necessary for that purpose.
9A.4      The ECtHR has stated that a defendant who might abscond if unconditionally released must nonetheless be released if bail conditions are available which are capable of averting that risk. Detention is a last resort. Thus, in Wemhoff v Germany the Court emphasised that

when the only remaining reason for continued detention is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, his release pending trial must be ordered if it is possible to obtain from him guarantees that will ensure such appearance.^[2]

9A.5      The reasoning in that case should apply whenever suitable conditions would meet concerns about other risks recognised by the ECtHR as capable of justifying detention. Thus, a defendant must be released unless (i) that would create a risk of the kind which can, in principle, justify pre-trial detention, and (ii) that risk cannot, by the imposition of appropriate bail conditions, be averted, or reduced to a level at which it would not justify detention.

The compatibility of English law with the ECHR

The role of conditions in the powers of courts to refuse bail

The powers of courts to refuse bail

9A.6      Section 4 of the Bail Act 1976 gives a defendant a right to be granted bail on appearing before a court except as provided in Schedule 1. Parts I and II of Schedule 1 concern, respectively, those accused or convicted of imprisonable and non-imprisonable offences.

Part I of Schedule 1: Defendants accused of imprisonable offences

9A.7      Paragraphs 2 to 7 of Part I of Schedule 1 set out exceptions to the right to bail. Paragraph 2 expressly refers to the relevance of bail conditions. It provides that

The 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 –

(a) fail to surrender to custody, or

(b) commit an offence while on bail, or

(c) interfere with witnesses or otherwise obstruct the course of justice.

9A.8      The remaining exceptions, listed in paragraphs 2A to 7, make no express reference to the alternative course of imposing bail conditions rather than detaining the defendant.

Part II of Schedule 1: Defendants accused of non-imprisonable offences

9A.9      Paragraph 2 of Part II expressly refers to the relevance of bail conditions. It provides that a court need not grant bail to a defendant who has previously failed to surrender to custody in accordance with his or her obligations under a grant of bail if, in view of that failure, the court believes that, were the defendant to be released on bail (whether subject to conditions or not), he or she would fail to surrender to custody. The remaining exceptions in Part II make no express reference to conditions.

The powers of courts to impose bail conditions

9A.10      Section 3(3) of the Bail Act 1976 provides, in part, that "Except as provided by [section 3] … (c) no … requirement shall be imposed … as a condition of bail".^[3]
9A.11      Section 3(4) and (5) permit a court granting bail to require the defendant, before release on bail, to provide one or more sureties to secure, or to give security for, his or her surrender to custody. Section 3(6) permits a court granting bail to require the defendant to comply, before release on bail or later, with such requirements as appear to the court to be necessary to secure that

(a) he surrenders to custody,

(b) he does not commit an offence while on bail,

(c) he does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person,

(d) he makes himself available for the purpose of enabling inquiries or a report to be made to assist the court in dealing with him for the offence, or that

(e) before the time appointed for him to surrender to custody, he attends an interview with an authorised advocate or authorised litigator, as defined by section 119(1) of the Courts and Legal Services Act 1990.

9A.12      In addition, section 3(6ZA) provides that, where a defendant is required (under subsection (6)) to reside in a bail or probation hostel, he or she may also be required to comply with the rules of the hostel; and, in the case of a defendant accused of murder, section 3(6A) requires the imposition of a condition that the defendant undergo a medical examination (unless satisfactory reports have already been obtained).
9A.13      In effect, therefore, and with limited exceptions,^[4] the legislation embodies two general principles which are in line with the requirements of Article 5:

(1) Conditions may not be imposed for any purpose other than the prevention of conduct which may, under the Convention, be prevented by refusing bail altogether.

(2) Even for the purpose of preventing such conduct, conditions may not be imposed unless they are necessary for that purpose.

Analysis

9A.14      A useful initial approach to whether English law is compatible with the Convention may be to consider whether the courts have the power under the Bail Act to attach a condition to bail in every circumstance where they can deny bail altogether.
9A.15      The circumstances in which bail can be denied under paragraphs 2 and 2A of Part I, and paragraph 2 of Part II, plainly give rise to no difficulty in this regard.^[5] This is because the terms of the exceptions to the right to bail (that is, the purposes for which detention is permitted) contained in that paragraph correlate with the purposes for which conditions can be imposed in section 3(6)(a)–(c). It is of no concern that there is no precise condition which correlates with the exception in paragraph 2A because, as explained earlier, the paragraph 2A exception should not be regarded as an independent ground, but as a consideration to be taken into account in determining whether there is a real risk of the defendant committing an offence while on bail.^[6] The exception in paragraph 7 of Part I (detention where it would otherwise be impracticable to complete inquiries or make a report) also presents no difficulties, since it correlates with the purpose in section 3(6)(d).
9A.16      Similar reasoning can be extended to the exception in paragraph 6 of Part I and paragraph 5 of Part II, both of which permit detention of persons who have been arrested under section 7.^[7] These provisions exist to facilitate the detention of those who have either failed to surrender to custody in the past, or have broken a bail condition. Detention of such persons would either be to prevent the defendant from failing to surrender to custody again, or in pursuit of the purpose for which the condition which the defendant has broken was originally imposed.^[8] It is obvious that the courts are able to impose conditions for the same purposes for which bail could be denied under this exception. In relation to the exception in paragraph 5 of Part I (lack of sufficient information for the making of a bail decision),^[9] no need for any condition of bail can arise, since the exception relates to the time prior to the making of any bail decision.
9A.17      There is a problem, however, in relation to paragraph 3 of both Parts I and II, which state that a court need not grant bail where it is satisfied that the defendant should be kept in custody for his or her own protection or, if the defendant is a child or young person, for the child's own welfare. In Part V above we concluded that detention on this ground could, in exceptional circumstances, be compatible with the Convention. The purposes for which bail conditions may be imposed under section 3(6) of the Act, however, do not include any purpose relating to the defendant's protection. Thus, there is a lacuna in the domestic legislation in any case where the imposition of a condition would suffice to protect a defendant who would otherwise need to be detained for his or her own protection.
9A.18      As public authorities, courts must not exercise their discretion to refuse bail under paragraph 3 in a manner which would violate the Convention,^[10] so this lacuna could present a problem. Such situations will be rare. Article 5 permits the use of detention to protect the defendant from harm only where there are exceptional circumstances.^[11] Where such exceptional circumstances do exist, we suspect that detention would often be the only appropriate way to address them, even if English law did allow bail conditions to be used for the purpose.
9A.19      In some situations, however, a real difficulty may arise. Consider, for example, a defendant accused of committing sexual offences against a child whose family lives in the same street as the defendant. The court may be of the opinion that the defendant is in real danger of being attacked by the parents of the child. This danger may be averted by the defendant going to live at a secret address, but the address may only be available if residence were the subject of a bail condition. In the absence of a domestic power to impose a suitable condition, it would seem that the court, required as it is to act in accordance with the Convention, would have to grant unconditional bail, however unattractive that might appear to be, unless the circumstances of the case could justify the imposition of a bail condition for another purpose which is recognised by English law and would have the secondary effect of protecting the defendant.^[12]
9A.20      The explicit terms of section 3 of the Bail Act preclude it from being construed, pursuant to section 3 of the HRA, in a way which would permit a power to impose conditions for such a purpose to be implied.^[13] There is no room either for "reading down" or "reading in", even if these were recognised as permissible tools of construction.^[14]

The powers of the police to refuse bail and the availability of conditions

Police powers to refuse bail

9A.21      In respect of both imprisonable and non-imprisonable offences, section 38(1) of PACE requires the custody officer to release a defendant charged with an offence, either on bail or without bail, unless one of the specified exceptions applies. These exceptions, which permit the custody officer to detain the defendant, are similar to those allowing courts to detain defendants charged with imprisonable offences. They include the custody officer having reasonable grounds for believing that the defendant will (inter alia) fail to appear in court in answer to bail, or that detention is necessary to prevent the defendant interfering with the administration of justice, or for the defendant's own protection. In addition, a person charged with an imprisonable offence can be detained if the custody officer has reasonable grounds for believing that this is necessary to prevent that person from committing an offence. A person charged with a non-imprisonable offence can be detained if the custody officer has reasonable grounds for believing that this is necessary to prevent that person from causing physical injury to any other person or from causing loss or damage to property.^[15]
9A.22      All but two of these exceptions make express reference to circumstances in which "the custody officer has reasonable grounds for believing that the detention of the person is necessary" to secure the stated purpose. Clearly it would not be necessary to detain the defendant for one of these purposes if that purpose could be secured by granting conditional bail.^[16]

Police powers to impose bail conditions

9A.23      Although none of the exceptions in section 38(1) refers expressly to the possibility of release subject to conditions, section 47(1A) of PACE states that, where a custody officer releases an arrested person under section 38(1), the "normal powers to impose conditions of bail" (as defined in section 3(6) of the Bail Act 1976) are available. Section 3(6) of the Bail Act defines these "normal powers" as empowering the custody officer to impose such requirements as appear to the officer to be necessary to secure the objectives in section 3(6)(a), (b) or (c).^[17] Each of these conditions relates to matters that would permit the custody officer to detain the arrested person under section 38(1) of PACE.
9A.24      As with the courts' powers to impose conditions, although a custody officer can detain a defendant for his or her own protection, the officer cannot impose conditions for the same purpose, and the same points we make in relation to the courts are equally applicable to custody officers.

Conclusion

9A.25      A court should not detain a person pursuant to an aim which has been recognised by the ECtHR where there is another way to achieve that aim which will interfere with the defendant's liberty to a lesser extent. Thus, a defendant must be released, if need be subject to conditions, unless (i) that would create a risk of a kind which can, in principle, justify pre-trial detention, and (ii) that risk cannot, by imposing suitable bail conditions, be averted, or reduced to a level at which it would not justify detention.
9A.26      The lack of a power in English law for the courts or police to impose a bail condition where this is necessary for the defendant's own protection could thus present difficulty where such a condition, had it been possible to attach one, could have averted the risk, or reduced it to a level at which it would not justify detention. In such cases, unless the defendant can be legitimately detained for another Convention-compatible purpose, or the protective condition can be legitimately imposed for one of the purposes for which English law does permit conditions to be imposed, the court should not refuse the defendant bail.

Recommendation

9A.27      We recommend that the Bail Act 1976 be amended to empower the police and the courts to impose such conditions as appear necessary for the defendant's own protection, consonant with the exception to the right to bail at paragraph 3 of Part I of Schedule 1 to the Bail Act.^[18]

(Recommendation 3)

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Note 1    In Clooth v Belgium A 225 (1991), 14 EHRR 717, Commission opinion para 75, the Commission pointed out that the judicial authorities had kept 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”. The question in that case, however, was not whether the defendant should be detained in custody or released on conditional bail, but whether he should be detained in custody or transferred to a psychiatric institution.    [Back]

Note 2    A 7 (1968), 1 EHRR 55, para 15.    [Back]

Note 3    Paragraph 8 of Part I of Schedule 1 (“Restriction of conditions of bail”) makes additional provision in respect of the exercise of those powers. These are discussed at paras 9B.20 – 9B.21 below.    [Back]

Note 4    Conditions under s 3(6)(d) (to secure co-operation with the preparation of any report for sentencing purposes), s 3(6)(e) (to secure that the defendant attends an interview with an advocate or litigator) and s 3(6A) (relating to medical examinations of those accused of murder) are examined at paras 9B.7 – 9B.14, 9B.23 – 9B.25 below.    [Back]

Note 5    Para 4 of Part I and para 4 of Part II, which allow a court to refuse bail to a defendant already in custody in pursuance of a sentence of a court, also present no difficulty under Article 5, as Article 5(1)(a) provides that “the lawful detention of a person after conviction by a competent court” is a case when deprivation of liberty may be justified.    [Back]

Note 6    See Part IV above.    [Back]

Note 7    Eg for breach of a bail condition.    [Back]

Note 8    The exception to the right to bail based on the defendant having been arrested under s 7 is discussed in Part VII above.    [Back]

Note 9    See Part VI above.    [Back]

Note 10    HRA, s 6, discussed at paras 1.28 – 1.31 above.    [Back]

Note 11    IA v France 1998-VII, para 108, discussed at paras 5.3 – 5.5 above.    [Back]

Note 12    Such as a condition to secure the defendant’s attendance at trial, or to prevent the defendant from interfering with witnesses or obstructing the course of justice.    [Back]

Note 13    Section 3(3) of the Bail Act states that “Except as provided by this section … no other requirement shall be imposed on [the defendant] as a condition of bail”.    [Back]

Note 14    See paras 1.20 – 1.27 above.    [Back]

Note 15    Thus a custody officer has wider powers to detain a person charged with a non-imprisonable offence than are available to a court dealing with a defendant accused of such an offence.    [Back]

Note 16    One of the two other exceptions is that the custody officer “has reasonable grounds for believing that the person arrested will fail to appear in court in answer to bail”. No such reasonable grounds would exist if the risk of the defendant’s failing to appear could be averted by imposing suitable bail conditions. The remaining exception permits detention if the arrested person’s name and address cannot be ascertained, or if the custody officer has reasonable grounds for doubting the truth of the name and address information the person has provided. Since this exception does not refer to a risk of any particular consequences if the arrested person is released, the possibility of averting such consequences by imposing bail conditions does not arise.    [Back]

Note 17    See para 9A.11 above.    [Back]

Note 18    Discussed in Part V above. Since a condition should only be imposed where detention would be compatible with the Convention if the condition were broken (see para 9B.2 below), it will be necessary for the police and the courts to interpret this power in the same way that they are required to interpret that exception. The only Strasbourg authority on that exception of which we are aware is IA v France 1998-VII, in which the ECtHR stated that detention for the defendant’s own protection from harm by others should be limited to cases where there were exceptional circumstances having to do with the nature of the offences concerned, the conditions in which they were committed or the context in which they took place. In Part V above, we suggested that this restriction may not be applicable to detention for the purpose of protecting the defendant from self-harm.    [Back]