The Law Commission

PART IX(B)

CONDITIONAL BAIL AS AN ALTERNATIVE TO UNCONDITIONAL BAIL

9B.1      In this part we consider whether English law permits the imposition of bail conditions in circumstances in which Article 5 would require that the defendant be granted unconditional bail or bail with less stringent conditions.

Convention principles

The purpose of a condition

9B.2      If a court conditionally releases a defendant, it is, by implication, authorising the defendant's re-arrest in the event of the condition being broken.^[1] Until there is a detention, there can be no breach of Article 5. Nevertheless, it would be unwise for a court to impose a condition which would be liable to lead to an arrest which might violate the Convention. Therefore, to comply with Article 5, a court should only impose a condition for a purpose which the ECtHR will recognise as capable of justifying detention.^[2]

A condition must be necessary

9B.3      Article 5 requires that a defendant who has not been convicted by a court (and is therefore presumed innocent under Article 6(2)) should not have his or her liberty curtailed to an extent that is disproportionate to the reasons or risks said to justify the limitations. While it may be legitimate to demand a financial security if its amount is fixed with a view to ensuring that the defendant has an adequate incentive to appear for trial, it would not be legitimate if it were related solely to the loss that the defendant were alleged to have caused.^[3] A demand for a sum which is higher than necessary may infringe Article 5 if the defendant is unable to pay and has to remain in custody.^[4] Thus, a bail condition should only be imposed where, if it were broken, it may be necessary to arrest the defendant in order to pursue the legitimate purpose of the condition.^[5]

The compatibility of English law with the ECHR

9B.4      We have seen, then, that Article 5 does not permit detention arising as a consequence of a bail condition which

(1) was imposed for a purpose other than those that, under the ECHR, can justify pre-trial detention; or

(2) was imposed for one of those purposes, but was not necessary for that purpose – either because the constraints that it imposed on the defendant's conduct were out of proportion to the risk that it sought to avert, or because that risk could have been eliminated (or reduced to an acceptable level) by the imposition of a less burdensome condition, or because there was no real risk of the consequence that the condition was designed to avert.

9B.5      We will now briefly examine the various powers in English law for imposing bail conditions, focusing in turn on each of the two requirements above, concerning the purpose of a condition and whether the imposition of the condition is necessary, with a view to assessing the compatibility of those powers with the Convention.

The purposes for which conditions may be imposed

9B.6      Are the purposes for which English law permits the imposition of bail conditions equivalent to those that can justify pre-trial detention under the Convention? The purposes for which an English court or custody officer^[6] can impose bail conditions under section 3(6)(a), (b) and (c) of the Bail Act 1976^[7] are all capable of justifying detention under the Convention.^[8] A requirement that a defendant provide sureties to secure, or to give security for, his or her surrender to custody is permitted by subsections (4) and (5) of section 3. This too pursues a purpose permitted by the Convention.

Section 3(6)(d)

9B.7      Section 3(6)(d) authorises the attachment of bail conditions for the purpose of securing that the defendant "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". This condition will typically be imposed only after the defendant has been convicted.^[9] Article 5(1)(c) of the Convention would not then apply. Detention would be justified under Article 5(1)(a), which permits "the lawful detention of a person after conviction by a competent court". Even where Articles 5(1)(c) and (3) continue to apply, our view is that this bail condition could be justified "to ensure that the defendant does not obstruct the course of justice". The condition in section 3(6)(d) is to ensure that the court has all the information it needs for sentencing purposes. A failure to comply may well constitute a failure to co-operate with the effective progress of the case. Such a failure would be highly likely to obstruct the progress of the court's business. If the defendant complies with the condition, there will be no loss of liberty; if the defendant does not, that demonstrates the need for the condition, and any subsequent detention arising from a breach of the condition would be capable of complying with the Convention.

Section 3(6)(e)

9B.8      The above reasoning would also apply to conditions imposed for the purpose of securing that the defendant attends an interview with an authorised advocate or litigator. If the court believes that it is necessary for the defendant to attend such an interview for the case to proceed effectively, a failure to co-operate with the requirement could well obstruct the course of justice.

Section 3(6A)

9B.9      Section 3(6A) provides that, where the defendant is charged with murder, the court must impose a condition that the defendant undergo a medical examination for the purpose of enabling reports to be prepared on his or her mental condition, unless it considers that satisfactory reports have already been obtained. Our reasoning in relation to the purpose of conditions imposed under section 3(6)(d) would also apply to those imposed under section 3(6A). If a court requires a medical report, a failure to co-operate with the making of such a report could well obstruct the course of justice.

The relevance of Article 5(1)(b)

9B.10      The above arguments presuppose that conduct which obstructs the progress of court proceedings falls within the Convention-compatible ground for detention of being necessary to ensure that the defendant does not obstruct the course of justice. It might be contended, though in our view incorrectly, that "obstruct the course of justice" does not encompass such conduct. For this reason, we will discuss, briefly, the possible relevance of Article 5(1)(b) as an alternative basis for detention following a breach, or anticipated breach, of conditions imposed under section 3(6)(d) or (e), or 3(6A), of the Bail Act.
9B.11      Article 5(1)(b) permits deprivations of liberty in accordance with a procedure prescribed by law in the case of

the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law.^[10]

9B.12      Article 5(1)(c), with the attendant case law, provides a comprehensive code for pre-trial detention, including that following a grant of conditional bail. The inappropriate use of Article 5(1)(b) might circumvent the protections inherent in the case-law surrounding 5(1)(c).^[11] We have not considered Article 5(1)(b) in relation to the imposition of conditions for the purposes of ensuring that the defendant surrenders to custody, does not commit offences and does not obstruct the course of justice, as these are all purposes that the ECtHR has expressly recognised as capable of justifying detention under Article 5(1)(c).
9B.13      With respect to conditions imposed under section 3(6)(d) or (e), or 3(6A), of the Bail Act, we believe that a criminal court should be able to require defendants to do certain things to enable it to secure the information necessary to carry out its functions. It would be illogical if Article 5(1)(b) permitted the arrest of a witness for failing to answer to a witness summons or to surrender relevant evidence to the court,^[12] but the Convention did not permit the arrest of a defendant for failing to co-operate with the court.
9B.14      Our view is that, whilst an argument can be made out that Article 5(1)(b) might be of possible relevance, recourse need not be had to it. The detention of a defendant for the purpose of ensuring that he or she co-operates with the preparation of a report which the court needs, or attends an interview with a lawyer, is capable of justification under Article 5(1)(c).

Ancillary conditions

9B.15      One response to the consultation paper raised the question whether ancillary bail conditions are compatible with the Convention. An example of this is a set of conditions imposing: (i) a requirement to reside at a particular address; (ii) a requirement to observe a curfew; and (iii) as an aid to the enforcement of the first two conditions, a further condition that the defendant present himself to a police officer calling at the address during the hours of curfew. Because of the requirement that the purpose of a condition must be one that can justify detention under the Convention, it was argued that if the last of these conditions was imposed not to prevent the defendant committing offences, but for the ancillary purpose of securing compliance with the primary conditions, it would contravene Article 5.
9B.16      We note that the Bail Act recognises the function of ancillary conditions, providing as it does in section 3(6ZA) that, where a defendant is required under subsection (6) to reside in a bail hostel, he or she may also be required to comply with the rules of the hostel.^[13] While not imposed directly in pursuance of a purpose recognised by the ECtHR as capable of justifying detention, such a condition ensures the effectiveness, or the effective enforcement, of another bail condition. Without the ancillary condition the court may believe that the main condition would not be a sufficient precaution to ensure that the defendant surrenders to custody.
9B.17      In our view, the imposition of an ancillary condition in such circumstances would be compatible with the Convention because its purpose is to support, and facilitate the achievement of, the legitimate primary purpose behind the main condition. This interpretation is supported by the fact that paragraph 8(1) of Part I of Schedule 1 applies to subsections (6ZA) and (7) of section 3. Thus, where the defendant is accused or convicted of an imprisonable offence, one of these ancillary conditions should not be imposed unless it is necessary to impose it for the purpose of preventing one of the events specified in paragraph 2 of that Part.
9B.18      We see no reason why similar reasoning should not also apply to the purpose of ancillary conditions which are not expressly permitted by the Bail Act. Provided that the main condition which is supported by the ancillary condition is imposed for a purpose that is permitted by the Bail Act, and the ancillary condition is necessary to ensure that the main condition is effective, the ancillary condition can itself also be said to have been imposed for a purpose which is permissible under the Bail Act. If a condition imposed in these circumstances meets the requirements we have set out above, we believe that it would be compatible with the Convention.^[14]

The requirement that conditions be necessary

Necessary for the purpose

9B.19      Section 3(6) of the Bail Act 1976, which empowers the court to impose bail conditions, authorises the making of "such requirements as appear to the court to be necessary to secure" any of the purposes specified in that subsection. In addition subsections (4) and (5) state that a defendant may be required, before release on bail, to provide a surety or sureties to secure, or security for, the defendant's surrender to custody. Subsection (7) concerns requirements that may be imposed upon a parent or guardian acting as surety for a child or young person "to secure that the child or young person complies with" a bail condition.
9B.20      The requirement that conditions be imposed only if they are necessary is repeated in Part I of Schedule 1 to the Act (which relates to imprisonable offences), in respect of most of the types of condition. Paragraph 8(1) provides that a court may not impose conditions under section 3(4) to (7), except under section 3(6)(d) or (e), "unless it appears to the court that it is necessary^[15] to do so for the purpose of preventing the occurrence of any of the events mentioned in paragraph 2".^[16] Paragraph 8(1A) adds that a condition may not be imposed under section 3(6)(d) "unless it appears to be necessary to do so for the purpose of enabling inquiries or a report to be made".^[17]
9B.21      There is no additional provision in paragraph 8 requiring that conditions be imposed under section 3(6)(e) only if they are necessary. Nor is there a comparable provision in Part II, which applies to defendants accused of non-imprisonable offences. We do not believe that this poses any problem as section 3(6), the empowering provision, itself provides that conditions can be imposed only when it is "necessary" for the purpose of securing the permitted objective.^[18]
9B.22      Thus, subject only to limited exceptions discussed below,^[19] neither a court nor a custody officer can lawfully impose conditions unless it appears that it is necessary to do so.

Section 3(6A)

9B.23      The effect of section 3(6A) is that, where the defendant is charged with murder, the court must impose a condition that the defendant undergo a medical examination for the purpose of enabling reports to be prepared on his or her mental condition, unless it considers that satisfactory reports have already been obtained. Paragraph 8(3) of Part I of Schedule 1 expressly excludes such conditions from the restriction in paragraph 8(1A) that conditions may be imposed only where it is necessary to do so.
9B.24      While such a condition will doubtless be appropriate in the great majority of cases, section 3(6A) appears to require the court to impose it even if the court does not think it necessary: for example, in a case of a crime of compassion where the defendant has actively sought psychiatric help and attended all appointments, so that there is little doubt that he or she will co-operate in future. If the condition is complied with, however, there would be no possibility of detention. If, without good reason, the defendant fails to comply with the condition, that would suggest that the condition was necessary, so as to justify detention.
9B.25      Unsurprisingly, therefore, as far as we are aware, this provision does not give rise to any significant problems in practice, nor any real risk of complaints under the Convention. It may, in any event, be designed for the protection of the defendant on the basis that, if he or she suffers from mental disorder, it should be identified as soon as possible. We therefore conclude that, although section 3(6A) could, theoretically, compel a court to act in a way which might be regarded as potentially incompatible with the Convention, the likelihood of its actually doing so is minimal and there is therefore no need to amend or repeal this provision.

Section 11(3) of the Powers of Criminal Courts (Sentencing) Act 2000

9B.26      Section 11(3) of the Powers of Criminal Courts (Sentencing) Act 2000 applies where a magistrates' court is satisfied that the defendant did the act or made the omission charged, but is of the opinion that a medical report is required before the method of dealing with the defendant can be determined. In such circumstances, the court must adjourn for the report to be produced and, where the defendant is granted bail, must impose a bail condition under section 3(6)(d) of the Bail Act to ensure that the defendant co-operates with a medical examination.
9B.27      This situation may arise before the defendant has been formally convicted.^[20] There is no decision of the ECtHR whether a finding that the defendant committed the conduct elements of the offence is sufficient to constitute a conviction for the purposes of the Convention. If it did, Article 5(1)(a) would apply. If not, Article 5(1)(c) and 5(3) would continue to apply.
9B.28      Section 11(3) applies only where the court is of the opinion that a medical report is required. The report would, therefore, be necessary. The only issue is whether, in some cases, it might be unnecessary to impose a condition that the defendant co-operate with the production of that report.
9B.29      We accept that it is possible to conceive of circumstances in which it may not be strictly necessary to impose the condition. Nevertheless, bearing in mind that Article 5 only bites at the point of arrest or detention for breach of the condition, we see little chance of a defendant being arrested under section 7 of the Bail Act for breach of a condition imposed as a result of section 11(3) of the 2000 Act, where it could sensibly be said to have been unnecessary to detain the defendant for a short period until he or she could be brought before a justice of the peace. If the defendant has failed, or is reasonably thought likely to fail, to comply with the condition, that would strongly support the conclusion that the condition was necessary, and that a short period of detention following arrest under section 7(3) would also be necessary in pursuit of the legitimate purpose of the condition.

The level of risk

9B.30      Detention can only be justified under Article 5 to avert a real risk.^[21] We can see no problem with the practical application of this principle since a condition would not be necessary unless the risk comprising the reason for its imposition were real.^[22] Furthermore, when considering whether a bail condition is necessary, the principle of proportionality is relevant. When a court imposes a bail condition, it is, by implication, authorising the arrest of the defendant under section 7(3) if the condition has been, or is likely to be, broken. The period of detention following such an arrest would be a maximum of 24 hours.^[23] It would not, in our view, be difficult to justify such a short period of detention as an emergency measure in response to a suspected or anticipated breach of a condition.
9B.31      As we will see in Part X, the ECtHR requires that reasons be given for decisions affecting a person's liberty which demonstrate that a proper decision-making process was adhered to. There is, therefore, a need for decision-makers to state their reasons for imposing bail conditions. This should include the purposes for which the conditions were imposed, so as to enable the ECtHR, if need be, to see what informed the imposition of those conditions. It would also assist a court dealing with the defendant following his or her arrest to address properly the reason for detention arising from any actual or anticipated breach of the condition.

Consultation responses

9B.32      In the consultation paper we provisionally concluded that English law does not permit the imposition of bail conditions in circumstances in which Article 5 requires the granting of unconditional bail or of bail subject to less stringent conditions, and that English law is therefore compatible with the ECHR in this regard. This view was supported by a significant majority of the respondents who referred to these conclusions.
9B.33      The Justices' Clerks Society and the Society of Public Teachers of Law, however, reminded us that a condition which does not violate Article 5 might fall foul of Articles 8–11.^[24] We said in the consultation paper that the imposition of particular conditions might violate rights guaranteed by other Articles of the Convention, but we observed that this possibility lay outside the scope of the paper. We agree that these matters may become relevant in particular cases but, beyond making the point that decision-makers should be alert to such issues,^[25] we can see no benefit at this stage in our speculating as to what those issues might be or how they ought to be determined.
9B.34      The Metropolitan Police expressed concern that bail conditions were being imposed by the police for non-imprisonable offences where there were no grounds to detain those charged. This was particularly so in respect of certain types of offence, such as soliciting or begging, where conditions, such as that the person charged should not enter a specific area, were being imposed in answer to perceived community concerns about anti-social activities.^[26] As we have seen, the purposes for which English law permits the imposition of bail conditions are in principle capable of justifying detention under Article 5.^[27] Logically, if the purpose of a condition can justify detention under the ECHR then it can justify the imposition of conditions. Whether, in any particular case, a condition should be imposed will require consideration of the level of risk and the need for a proportionate response. We therefore conclude that, while there may be grounds for concern over the width of the police's power to impose conditions in respect of non-imprisonable offences, that concern is independent of the need to ensure compliance of the law with the ECHR, and it would therefore be inappropriate to address it in the present context.

Conclusion

9B.35      Having given careful consideration to the responses we received, we found nothing that caused us to doubt the correctness of the provisional views that we expressed on this issue in the consultation paper. We therefore conclude that it is unlikely that English law permits the imposition of bail conditions in circumstances in which Article 5 requires the granting of unconditional bail or of bail subject to less stringent conditions, and that English law is therefore compatible with the Convention in this regard.

Guidance relating to decisions to impose conditional bail

9B.36      In order to comply with Article 5:

(1) a court should only impose a bail condition for a purpose or purposes that the ECtHR will recognise as capable of justifying detention;^[28]

(2) a bail condition should only be imposed where, if the defendant were to break that condition, or be reasonably thought likely to do so, it may be necessary to arrest the defendant in order to pursue the purpose for which the condition was imposed; and

(3) decision-makers should state their reasons for imposing bail conditions and specify the purposes for which any conditions are imposed.

Decision-makers should also be alert to the defendant's other Convention rights, in particular those protected by Articles 8–11.

Note 1    The power of arrest conferred by s 7(3) of the Bail Act is discussed in Part VII above.    [Back]

Note 2    See paras 2.28 – 2.29 above.    [Back]

Note 3    Neumeister v Austria A 8 (1968), 1 EHRR 91, para 14.    [Back]

Note 4    Schertenlieb v Switzerland (1980) 23 DR 137, 195, Commission opinion paras 166–175.    [Back]

Note 5    This would include arrest where a constable reasonably believes that the defendant is likely to break the condition or reasonably suspects that the defendant has done so, or, in the case of a defendant granted bail with a surety, if the surety has notified a constable in writing that the defendant is unlikely to surrender to custody. These are the circumstances in which a constable may arrest a person who has been granted conditional bail (Bail Act 1976, s 7(3)).    [Back]

Note 6    Section 47(1A) of PACE makes “the normal powers to impose conditions of bail”, as defined in s 3(6) of the Bail Act 1976, available to a custody officer who releases a person on bail after charge, irrespective of whether that person has been charged with an imprisonable or non-imprisonable offence. These “normal powers” enable the officer to impose conditions for the purposes set out in section 3(6)(a), (b) and (c) of the Bail Act.    [Back]

Note 7    Namely, to secure that the defendant (a) surrenders to custody, (b) does not commit an offence while on bail, and (c) does not interfere with witnesses or otherwise obstruct the course of justice. These purposes go beyond the limited grounds upon which a court may, under paras 2–5 of Part II of Sched 1, refuse bail to a defendant accused of a non-imprisonable offence. There is nothing in s 3(6) which limits the power to impose conditions to the same purposes for which bail could have been withheld altogether. These provisions are set out at para 9A.11 above, and in Appendix A below.    [Back]

Note 8    See paras 2.28 – 2.29 above.    [Back]

Note 9    Section 11 of the Powers of Criminal Courts (Sentencing) Act 2000 requires the imposition of a condition under s 3(6)(d) of the Bail Act in circumstances where the defendant has not been formally convicted of an offence. Where a magistrates’ court is satisfied that the defendant did the act or made the omission charged, but requires a medical report before the method of dealing with the defendant is determined, the court should adjourn the case and, if the defendant is granted bail, a condition must be imposed to ensure that the defendant co-operates with the production of the medical report. This provision is discussed further at paras 9B.26 – 9B.29 below.    [Back]

Note 10    Article 5(1)(b) is discussed at paras 2.39 – 2.51 above.    [Back]

Note 11    See, eg, Ireland v UK A 25 (1978), 2 EHRR 25.    [Back]

Note 12    K v Austria App No 16002/90, Commission report of 13 October 1992, unreported, concerned an applicant who had been accused of buying heroin from a couple. He had been fined and imprisoned for his refusal to give evidence against the couple because of the risk that his evidence could be used against him when he was himself on trial. The Government contended that his detention was justified under Art 5(1)(b). In its opinion, the Commission does not appear to have disputed that Art 5(1)(b) was capable of justifying detention for a refusal to co-operate with a court, but found in the particular case that the obligation imposed on the defendant was not “lawful” because it contravened Art 10 by requiring him to incriminate himself. Sir Basil Hall, whose dissent from the finding that Art 10 had been violated was joined by another member of the Commission, took the view that the detention was justified under Art 5(1)(b). The merits of the case were never decided by the ECtHR as a friendly settlement was reached.    [Back]

Note 13    A further example is s 3(7), which applies where a parent or guardian agrees to act as surety for a child or young person: the parent or guardian may be required to ensure that the child or young person complies with a bail condition imposed under subsection (6) or (6A).    [Back]

Note 14    See Alisdair A Gillespie, “Curfew and Bail” (2001) 151 NLJ 465.    [Back]

Note 15    Italics supplied.    [Back]

Note 16    Namely, the defendant’s failing to surrender to custody, committing an offence while on bail or obstructing the course of justice.    [Back]

Note 17    Para 8(3) does, however, state that the restriction imposed by para 8(1A) does not apply to the conditions that a court is required to impose under s 3(6A) of the Bail Act 1976 or under s 11(3) of the Powers of Criminal Courts (Sentencing) Act 2000. These provisions are discussed below at paras 9B.23 – 9B.25 and 9B.26 – 9B.29 respectively.    [Back]

Note 18    In R v Mansfield Justices, ex p Sharkey [1985] QB 613, 625, Lord Lane CJ commented on the duplication between para 8 and s 3(6): The justices, when the defendant is going to be bailed, are not concerned with paragraph 2 of [Schedule 1], which deals with the refusal of bail. They are concerned with section 3(6) and with paragraph 8(1) of the Schedule. The reference to “any of the events mentioned in paragraph 2” is to sub-paragraphs (a), (b) and (c) … There is a duplication between paragraph 8 and section 3(6) due to indifferent drafting …    [Back]

Note 19    These exceptions apply only when the defendant is accused of murder (Bail Act 1976, s 3(6A)) or where, having found the defendant to have committed the conduct elements of the offence, the court requires medical reports (Powers of Criminal Courts (Sentencing) Act 2000, s 11(3)).    [Back]

Note 20    Although, for the purposes of the Bail Act 1976, s 2 provides that “unless the context otherwise requires, ‘conviction’ includes … (c) a finding under section 11(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (remand for medical examination) that the person in question did the act or made the omission charged”, this is irrelevant because we are concerned here with the definition of “conviction” adopted by the ECtHR rather than that in the Bail Act.    [Back]

Note 21    We review the ECtHR case law in this regard in Parts II and X of this report. In Muller v France (No 1) 1997-II, paras 43–45, the ECtHR held that the pre-trial detention of a person accused of armed robbery and other serious offences violated Article 5(3) because it was “not apparent from the decisions not to release the applicant that there was a real risk of his absconding”. The applicant’s detention was not, therefore, based on “relevant and sufficient reasons”.    [Back]

Note 22    In the context of imprisonable offences, para 2 of Part I of Sched 1 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, would do one of three specified things. Section 3, which sets out when the court can impose bail conditions, does not include a “substantial grounds” requirement.    [Back]

Note 23    The defendant must be brought before a justice within that time for the question of bail to be considered again: Bail Act 1976, s 7(4).    [Back]

Note 24    These articles set out, respectively, the right to respect for private and family life; the right to freedom of thought, conscience and religion; the right to freedom of expression; and the right to freedom of assembly and association.    [Back]

Note 25    This should not pose a serious problem. When contemplating the imposition of a condition which may impact on one of a defendant’s Convention rights, the decision-taker should ensure that the restriction imposed would not be disproportionate to the legitimate aim pursued. In an analogous case, Kwame (1974) 60 Cr App R 65, 70, the Court of Appeal pointed out that magistrates should take into account the consequences of a condition. In that case, the condition imposed was that the defendant should not drive. On pleading guilty, he was disqualified from driving for 12 months as the court had no power to take into account the time awaiting trial during which the condition applied. The result was that he was, in effect, prevented from driving for longer than the statutory 12 months’ disqualification. Roskill LJ, giving the judgment of the court, stated that justices considering the imposition of a “no driving” condition should take into account that such a condition “may sometimes have unexpected and unjust results”.    [Back]

Note 26    The exercise of this power was based upon advice received that there was nothing in the legislation which made the imposition of conditions dependent upon there being parallel grounds upon which bail could be refused.    [Back]

Note 27    This is re-emphasised in the context of police bail by s 3A(5) of the Bail Act 1976, under which a constable can impose conditions only where this appears necessary to ensure that the defendant surrenders to custody and does not commit an offence or obstruct the course of justice.    [Back]

Note 28    Where an ancillary condition is imposed in support of a primary condition, provided that the purpose of the primary condition is one that the ECtHR will recognise as capable of justifying detention, and the ancillary condition aims to ensure that the main condition is effective, we believe that the ancillary condition should itself be regarded as being imposed for a purpose which is permissible under the Convention.    [Back]