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Cite as: [2001] EWLC 269
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    The Law Commission

    (LAW COM No 269))

    BAIL AND THE HUMAN RIGHTS ACT 1998

    Item 10 of the Seventh Programme of Law Reform: Criminal Law
    Laid before Parliament by the Lord High Chancellor pursuant to section 3(2) of the Law Commissions Act 1965
    Ordered by The House of Commons to be printed
    20 June 2001
    LONDON: The Stationery Office
    £    .    
    HC 7
    The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.
    The Law Commissioners are:
    The Honourable Mr Justice Carnwath CVO, Chairman
    Professor Hugh Beale
    Mr Charles Harpum
    Professor Martin Partington
    Judge Alan Wilkie QC
    The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.
    The terms of this report were agreed on 23 May 2001.
    The text of this report is available on the Internet at:
    http://www.lawcom.gov.uk
    CONTENTS
      Paragraph
    PART I: INTRODUCTION AND OVERVIEW  
    The scope of this report 1.2
    The Human Rights Act 1998 1.5
    Our approach 1.9
    Applying the HRA to the English law of bail  
        Section 3: The duty to interpret legislation as Convention-compatible 1.12
             Reading in 1.20
             Reading down 1.25
        Section 6: Public authorities must not act incompatibly with the Convention rights 1.28
        Section 2: Interpreting Convention rights 1.32
    The right to damages under the HRA 1.37
    The structure of this report 1.40
    Our main conclusions 1.46
       
    PART II: THE SUBSTANTIVE RIGHTS UNDER ARTICLE 5  
    The purpose of Article 5 2.6
    Article 5(1)  
        "Liberty and security of person" 2.8
        "Procedure prescribed by law" and "lawful arrest or detention" 2.9
        Article 5(1)(c)  
             "Effected for the purpose of bringing him before … " 2.10
             "The competent legal authority" 2.13
             "Reasonable suspicion" 2.15
    Article 5(3)  
         "Promptly" 2.16
         "A judge or other officer authorised by law to exercise judicial power" 2.19
         "Trial within a reasonable time or release pending trial" 2.21
        Trial within a reasonable time 2.23
        Right to release pending trial 2.26
             Detention must be necessary 2.27
             Detention must be for a legitimate purpose 2.28
             How does English law measure up? 2.32
         "Release may be conditioned by guarantees to appear for trial" 2.35
        Conclusions 2.37
    Article 5(1)(b) 2.39
        The first limb of Article 5(1)(b): Is a bail condition a "lawful order of a court"? 2.43
        The second limb of Article 5(1)(b): Is a bail condition an "obligation prescribed by law"? 2.49
        Our view of the relevance of Article 5(1)(b) to bail 2.51
    Article 5(4) 2.52
       
    PART III: EXCEPTIONS TO THE RIGHT TO BAIL (1): THE RISK OF OFFENDING ON BAIL  
    The consultation paper 3.2
    Consultation responses 3.7
    Conclusions 3.9
       
    PART IV: EXCEPTIONS TO THE RIGHT TO BAIL (2): DEFENDANT ON BAIL AT THE TIME OF THE ALLEGED OFFENCE  
    The consultation paper 4.2
    Analysis of responses 4.5
    Our views 4.6
    Conclusion 4.10
       
    PART V: EXCEPTIONS TO THE RIGHT TO BAIL (3): FOR THE DEFENDANT'S OWN PROTECTION  
    The consultation paper 5.2
    Consultation responses 5.6
    Our views 5.9
       
    PART VI: EXCEPTIONS TO THE RIGHT TO BAIL (4): LACK OF INFORMATION  
    The Convention requirements  
        Detention because of insufficient information 6.4
        Insufficient information attributable to the dilatoriness of a state body 6.7
    Our views  
        The scope of paragraph 5 and its compatibility with the Convention 6.8
        Where lack of information is attributable to the dilatory conduct of a state body 6.11
    Conclusion 6.13
       
    PART VII: EXCEPTIONS TO THE RIGHT TO BAIL (5): ARREST UNDER SECTION 7  
    Arrest under section 7 of the Bail Act 1976  
        Arrest for absconding 7.1
        Arrest for breach, or anticipated breach, of a bail condition 7.3
             The power to refuse bail to defendants arrested under section 7(3) 7.6
    The compatibility of section 7(5) proceedings with the ECHR  
        The Havering Magistrates case 7.8
        Section 7(5) and the requirements of Article 6  
             Do proceedings under section 7(5) amount to charging the arrested person with a criminal offence? 7.11
        Section 7(5) and the requirements of Articles 5 and 6 7.12
             Nature and purpose of proceedings under section 7(5) 7.13
             The standard of proof required 7.14
             The evidence the justices should hear and take into account 7.15
             Disclosure 7.17
    The compatibility of paragraph 6 of Part I and paragraph 5 of Part II of Schedule 1 with the ECHR 7.18
        The inter-relationship between section 7(5) and paragraphs 6 of Part I and 5 of Part II 7.20
        Other bail hearings concerning defendants who have been arrested under section 7 7.23
             The consultation paper 7.24
             The consultation responses 7.25
             The Havering Magistrates case 7.26
        Conclusion and recommendation 7.32
       
    PART VIII: EXCEPTIONS TO THE RIGHT TO BAIL (6): SECTION 25 OF THE CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994  
    The background 8.3
        The original section 25 and Article 5 8.4
        The 1998 amendment 8.5
    The compatibility of section 25 (as amended) with the ECHR  
        The consultation paper 8.7
             Do statutory presumptions always lead to arbitrary decision-making? 8.12
             Can section 25 be interpreted compatibly with the Convention? 8.17
    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
             Respondents who doubted whether section 25 was capable of being construed compatibly with Article 5 8.23
             Respondents favouring the repeal of section 25 for reasons of policy and principle 8.24
             Respondents who believed that section 25 was not liable to be misconstrued in a manner that was not compatible with Article 5 8.25
             Respondents supporting section 25 for reasons of policy and principle 8.27
        Our views  
             Arguments of policy and principle 8.28
             Is section 25 capable of being interpreted and applied compatibly with the Convention? 8.29
                The Convention-compatibility of reverse onus presumptions – the importance of             public policy considerations 8.31
                What will constitute "exceptional circumstances"? 8.39
    Conclusion 8.45
       
    PART IX(A): CONDITIONAL BAIL AS AN ALTERNATIVE TO CUSTODY  
    The ECHR 9A.2
        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
                   Part I of Schedule 1: Defendants accused of imprisonable offences 9A.7
                   Part II of Schedule 1: Defendants accused of non-imprisonable offences 9A.9
                The powers of courts to impose bail conditions 9A.10
             Analysis 9A.14
             The powers of the police to refuse bail and the availability of conditions  
                Police powers to refuse bail 9A.21
                Police powers to impose bail conditions 9A.23
        Conclusion 9A.25
        Recommendation 9A.27
       
    PART IX(B): CONDITIONAL BAIL AS AN ALTERNATIVE TO UNCONDITIONAL BAIL  
    Convention principles  
        The purpose of a condition 9B.2
        A condition must be necessary 9B.3
    The compatibility of English law with the ECHR 9B.4
        The purposes for which conditions may be imposed 9B.6
             Section 3(6)(d) 9B.7
             Section 3(6)(e) 9B.8
             Section 3(6A) 9B.9
        The relevance of Article 5(1)(b) 9B.10
        Ancillary conditions 9B.15
        The requirement that conditions be necessary  
             Necessary for the purpose 9B.19
                Section 3(6A) 9B.23
                Section 11(3) of the Powers of Criminal Courts (Sentencing) Act 2000 9B.26
             The level of risk 9B.30
        Consultation responses 9B.32
        Conclusion 9B.35
    Guidance relating to decisions to impose conditional bail 9B.36
       
    PART X: REASONS AND REASONING IN BAIL DECISIONS  
    The Convention  
        Grounds and reasons 10.2
        The importance of reasons 10.3
             The nature of the requirement for reasons 10.5
        The standard of reasoning required 10.6
             Reasons must be "concrete", not "abstract" or "stereotyped" 10.7
             Reasons must be consistent with, and sustained by, the facts of the case 10.8
             Reasons must take into account the counter-arguments put forward by the defendant 10.10
             Reasons must avoid drawing automatic inferences 10.11
        The underlying rationale: proper exercise of judicial discretion 10.12
    English law and practice  
        The Bail Act scheme and practice in the magistrates' courts 10.15
             Administrative law principles 10.17
        The recording of the grounds and reasons for not granting bail  
             The use of "tick box" forms 10.18
             Consultation responses 10.21
        Efficient and adequate recording practices  
             Standard forms 10.24
                Grounds 10.26
                Considerations and reasons 10.27
    Conclusion 10.29
       
    PART XI: THE RIGHT TO CHALLENGE THE LEGALITY OF PRE-TRIAL DETENTION  
    Article 5(4): the right to take court proceedings to challenge the legality of pre-trial detention 11.1
        The relationship between Article 5(3) and Article 5(4) 11.3
    Procedural safeguards required of a court hearing under Article 5(4) 11.6
        Participation by the defendant 11.9
             Consultation responses relating to participation by the defendant 11.11
             Our views 11.13
        An adversarial hearing with each party enjoying equality of arms 11.15
             Does the court need to hear sworn evidence? 11.17
                Consultation responses 11.23
                Our views 11.25
             Disclosure 11.29
                Consultation responses relating to disclosure 11.31
                Our views 11.33
        Is there a requirement that the hearing be held in public? 11.35
             Consultation responses relating to the question of whether bail hearings need to be held in public 11.38
             Our views 11.40
    Conclusion 11.41
       
    PART XII: REPEATED APPLICATIONS  
    The requirements of Article 5(4)  
        The right of periodic challenge 12.2
        When must repeated challenges be heard? 12.4
    Does English law and practice comply with these requirements of Article 5(4)? 12.5
        Are bail hearings sufficiently frequent? 12.6
             Conclusion 12.9
        Does the court conduct an effective review of the lawfulness of detention?: repetition of arguments previously heard 12.10
             Our views  
                The consultation paper 12.17
                Consultation responses 12.20
                Conclusions 12.22
        Judges and magistrates hearing repeated bail applications 12.25
    Conclusion 12.26
       
    PART XIII: SUGGESTED GUIDANCE FOR BAIL DECISION-TAKERS Part XIII
       
    PART XIV: CONCLUSION AND RECOMMENDATIONS Part XIV
       
    APPENDIX A: EXTRACTS FROM THE BAIL ACT 1976 Appendix A
       
    APPENDIX B: ARTICLES 5 & 6 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS Appendix B
       
    APPENDIX C: ORGANISATIONS AND INDIVIDUALS WHO COMMENTED ON CONSULTATION PAPER NO 157 Appendix C
ABBREVIATIONS

In this report we use the following abbreviations:

ACPO: Association of Chief Police Officers of England, Wales and Northern Ireland

CPS:     Crown Prosecution Service

DTI:     Department of Trade and Industry

ECHR:     European Convention for the Protection of Human Rights and Fundamental Freedoms

ECtHR:     European Court of Human Rights

HRA:     Human Rights Act 1998

MCA 1980:     Magistrates’ Court Act 1980

NACRO:     National Association for the Care and Resettlement of Offenders

PACE:     Police and Criminal Evidence Act 1984

EUROPEAN COURT OF HUMAN RIGHTS CASES

In this report, wherever possible we give references to judgments of the European Court of Human Rights in both the official series of reports and the European Human Rights Reports, a commercial English series (published by Sweet and Maxwell). Up to 1996, the relevant official publication was called “Series A (Judgments and Decisions)”. This we cite in the form: Brogan v UK A 145-B (1988); that is Series A (Judgments and Decisions), volume 145, case B (ie the second case reported in that volume; if there is no letter, the volume contains a single judgment). The year is that of judgment. After 1996, the official series became “Reports of Judgments and Decisions”. Reports in this series are cited in the form: Assenov v Bulgaria 1998-VIII; that is the 1998 volume, part VIII.

References within a report are given to paragraph rather than page numbers. In more recent reports, all paragraphs in a judgment are numbered in a single series. In earlier cases, only the paragraphs of the judgment proper were numbered, not the preparatory matter. In some of these earlier cases, there is a separate number sequence for each section of the report (“The procedure”; “As to the facts” etc). Our paragraph reference is always to the paragraph number in the judgment proper (headed “Judgment” or “As to the law”), unless we state otherwise.

Until the Eleventh Protocol to the ECHR came into force on 1 November 1998, applications to the Convention organs were first subject to an admissibility decision by the European Commission on Human Rights. If the application was found to be admissible, the Commission would prepare a report setting out the facts of the case, as it found them, and giving its opinion on the merits of the application. As with the Court, individual members of the Commission sometimes gave dissenting opinions. Where we refer to decisions and reports of the Commission, we cite where they can be found in the official series where possible. That series is called “Decisions and Reports” and is published by the Council of Europe. The citations we have used are in the form Schertenlieb v Switzerland (1980) 23 DR 137 (Commission decision); that is volume 23, page 137.

Where we refer to the opinion of the Commission in respect of an application that has subsequently been the subject of a judgment by the Court, however, we refer to the report of the judgment, indicating that the paragraphs we refer to are from the opinion. Both the official series of the Court’s reports and the reports of judgments in the European Human Rights Reports contain the full or partial opinion of the Commission which was provided in the Commission’s report. The Eleventh Protocol put in place a new procedure in which the Court, rather than the Commission, decides the admissibility of a case. As of 30 October 1999 all applications were transferred to the Court. The application numbers and dates of unreported judgments are given. Transcripts are obtainable on the European Court of Human Rights website (http://www.echr.coe.int).

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