APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Brailsford Lord Osborne	[2012] HCJAC 19 Appeal No: XJ479/11   OPINION OF THE COURT   delivered by LORD EASSIE   in   APPEAL   by   GRANT ALISTAIR CAMERON Appellant;   against   PROCURATOR FISCAL, LIVINGSTON Respondent:   _______

 

Appellant: C Shead; McKenzie; Adams Whyte, Livingston

Respondent: I McSporran, Solicitor Advocate, A.D.; Crown Agent

 

 

8 February 2012

 

[1] This appeal under section 174 of the Criminal Procedure (Scotland) Act 1995 - "the 1995 Act" - raises the question whether an amendment to section 24(4) and (5) of the 1995 Act which was enacted by the Scottish Parliament in section 58 of the Criminal Justice and Licensing (Scotland) Act 2010 - "the 2010 Act" - is compatible with the provisions of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms - "ECHR".

[2] Section 24 of the 1995 Act is concerned with the granting of bail and bail conditions. Prior to amendment by section 58 of the 2010 Act, subsection (4) of section 24 read:

"s24(4) In granting bail the court or, as the case may be, the Lord Advocate shall impose on the accused-

(a) the standard conditions; and

(b) such further conditions as the court or, as the case may be, the Lord Advocate considers necessary to secure-

(i) that the standard conditions are observed; and

(ii) that the accused makes himself available for the purpose of participating in an identification parade or other identification procedure or of enabling any print, impression or sample to be taken from him."

 

The standard conditions to which reference is made in that subsection were set out in section 24(5). The terms of the amending section in the 2010 Act, namely section 58, are:-

"s58 Bail condition for identification procedures etc.

In section 24 of the 1995 Act (bail and bail conditions)-

(a) in paragraph (b) of subsection (4), sub-paragraph (ii) and the word 'and' immediately preceding it are repealed, and

(b) in subsection (5), after paragraph (ca) insert-

'(cb) whenever reasonably instructed by a constable to do so-

(i) participates in an identification parade or other identification procedure; and

(ii) allows any print, impression or sample to be taken from the accused;'."

 

Accordingly, as amended by section 58 of the 2010 Act, sections 24 (4) and 24(5) of the 1995 Act now read (with the text inserted in subsection (5) being emphasised) as follows :-

 

"s24(4) In granting bail the court or, as the case may be, the Lord Advocate shall impose on the accused-

(a) the standard conditions; and

(b) such further conditions as the court or, as the case may be, the Lord Advocate considers necessary to secure-

(i) that the standard conditions are observed

(5) The standard conditions referred to in subsection (4) above are conditions that the accused-

(a) appears at the appointed time at every diet relating to the offence with which he is charged of which he is given due notice or at which he is required by this Act to appear;

(b) does not commit an offence while on bail;

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

(ca) does not behave in a manner which causes, or is likely to cause, alarm or distress to witnesses;

(cb) whenever reasonably instructed by a constable to do so-

(i) participates in an identification parade or other identification procedure; and

(ii) allows any print, impression or sample to be taken from the accused;

(d) makes himself available for the purpose of enabling enquiries or a report to be made to assist the court in dealing with him for the offence with which he is charged ; and

(e) where the (or an) offence in respect of which he is admitted to bail is one to which section 288C of this Act applies, does not seek to obtain, otherwise than by way of a solicitor, any precognition of or statement by the complainer in relation to the subject matter of the offence."

 

[3] The change in the legislation may thus be seen as making the attachment of a condition requiring participation in an identification parade or procedure, or requiring the accused to submit to the taking of any print, impression or sample from his body, no longer a matter in which the judge hearing the bail application has any measure of discretion. Instead, any discretion as to whether an accused in custody and seeking bail should be required, if granted bail, to participate in an identification procedure or to submit to the taking of prints, impressions or samples is given to a police constable, the court being bound to give that power to the police, if the accused is not to be detained in custody.

[4] The provisions contained in section 267B of the 1995 Act must also be noted. That section enables the prosecutor in any proceedings, at any time after the proceedings have been commenced, to apply to the court for an order requiring the accused person to participate in an identification parade or other identification procedure. Section 267B(3) provides that, if the accused is present, the court shall allow the accused to make representations in relation to the prosecutor's application; and where the accused is not present, the Court may, if it considers it appropriate to do so, fix a hearing for the purpose of allowing the accused to make such representations. Failure to comply with an order made under section 267B without reasonable excuse is an offence - see section 267B(8).

[5] The circumstances in which this appeal is brought may be shortly stated. The appellant was charged in the Justice of the Peace Court at Livingston on a summary complaint alleging:

"(001) on 16 February 2011 at Job Centre Pluis (sic), Whitburn Road, Bathgate, West Lothian you GRANT ALISTAIR CAMERON did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout, swear, attempt to slam a door against a member of staff there and kick furniture which was knocked across the office there;

CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010".

 

The appellant having failed to appear at the first calling of the complaint on 15 March 2011, a warrant for his arrest was granted. The appellant was arrested pursuant to that warrant and appeared from custody before the justice of the peace on 29 March 2011. His solicitor moved the court that the accused be ordained to appear, but the procurator fiscal depute insisted on any liberty pending trial being subject to bail, with, of course, the standard conditions as amended by the 2010 Act. In opposing the prosecutor's insistence on bail, rather than an order ordaining the appellant to appear, the solicitor for the appellant challenged the validity of the inclusion in the amended standard conditions of the condition relating to participation in identification procedure and the provision of prints, samples and the like; and as respects that contention he lodged a devolution issue minute. The appellant was granted bail, but a diet was fixed for 7 April 2011 when the question of the compatibility of the amendment to the standard conditions with the ECHR was debated. The justice of the peace rejected the submission that the imposition of the amended standard conditions was a breach of the appellant's rights under the Convention; but she granted leave to appeal; and this appeal is from that decision.

[6] While before the justice of the peace reference was made in argument also to Article 6 ECHR, the argument before us was concerned only with Article 5. The terms of that Article, so far as relevant, are:-

"Article 5 - Right to liberty and security'

 

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

[...]

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

 

[...]

 

3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial".

 

 

[7] The contention advanced by counsel for the appellant was, in summary, that the conditions upon which bail might be granted was a matter which engaged Article 5 ECHR. A useful analysis of the decisions of the European Court of Human Rights - "ECtHR" - on Article 5, and the granting of bail, was to be found in the report prepared by the Law Commission in England and Wales - "Bail and the Human Rights Act 1998" (Law Com No.269). The basic principle was that pre-trial detention of an accused was only compatible with the right to release stipulated by Article 5 where either (a) it was necessary to avoid a real risk that if at liberty the accused might (i) fail to attend the trial or (ii) interfere with witnesses or obstruct the course of justice, or (iii) commit an offence while on bail or (iv) be at risk of harm from which he would not otherwise be protected; or (b) that a disturbance to public order would result. (cf. Law Com No.269, paragraph 2.29). Where those risks might be adequately addressed by the imposition of bail conditions, detention pending trial could no longer be said to be necessary and release on those conditions would be required (cf. Law Com No.269, paragraph 9A1, 9A3-5). Bail conditions therefore required to relate to a matter which would otherwise justify detention. Any ancillary bail condition should be related to that primary condition (cf. Law Com No.269, paragraph 9B.15 ff). The grounds recognised as legitimate did not include any general ground of gathering evidence against the accused. But importantly, bail conditions, as with any decision to detain pending trial, required to be specifically related to the circumstances of the particular case and to be determined judicially according to those circumstances. While it was not contended that, in light of the particular circumstances of a given case, a judicial decision given, after hearing parties, which attached a condition of participation in identification procedures or the provision of samples to release on bail could never be legitimate, normally such a condition would not be related to any need for pre-trial detention on the grounds recognised by the ECtHR. Legislation making obligatory in every case the attachment of such a condition, unrelated to any of the grounds justifying pre-trial detention, were the accused to be released pre-trial, was thus incompatible with the rights secured by Article 5 ECHR.

[8] In response, the argument advanced by the Advocate depute on behalf of the Crown was, in the first place, that Article 5 was not engaged at all. That article, it was submitted, was solely concerned with detention pending trial; it was not concerned in any respect with conditions attaching to release on bail. Further, in the particular circumstances of the present case, since the prosecutor did not expressly move for a remand in custody when the appellant appeared on 29 March 2011, Article 5 could not be engaged.

[9] But if, contrary to that submission, which was the Crown's primary submission, Article 5 were engaged, the Advocate depute stated that he was not in a position to criticise or challenge the analysis of the text of the article and the case law of the ECtHR which had been set out by the Law Commission in its report. Prior to the amendment effected by the 2010 Act, the Crown approach, said the Advocate depute, had been that where a need for an identification procedure had been identified the Crown would oppose bail, on the view that a condition requiring attendance at an identification procedure or submission to the taking of samples was not an appropriate bail condition. So, it was submitted, the amendment brought about by the 2010 Act was Convention compliant. The purpose behind including the condition in issue as a standard condition might lie in the background of legislation on vulnerable witnesses, which implied a greater reliance on identification parades and other identification procedures. It was not always possible at the outset of a prosecution to say whether vulnerable witness procedures might be required. If such procedures were to prove necessary, they were, said the Advocate depute, necessary all along. And if not necessary, no burden was placed upon the accused. As respects published executive policy behind, or justification for, the enactment of section 58 of the 2010 Act, the Advocate depute said that he could only point to what was stated at page 26 of the Scottish Government's publication "Revitalising Justice" which, in respect of what became section 58 of the 2010 Act, under the heading of the "Benefit of making the proposed change" states:-

"Will free up court time as the procurator fiscal will no longer require to take up court time by asking the court to impose the requirement to participate in an ID procedure as a further condition".

The Advocate depute frankly indicated his having some difficulty in understanding the basis for that statement, or what material court time would be saved; any application for bail involved individual application to, debate before, and consideration by, the judge. With equal candour, the Advocate depute said that the position prior to amendment did not appear to have been in any way unsatisfactory.

[10] As respects the actual circumstances of the present case, the Advocate depute further stated that there was no basis - other than the mandatory nature of the amended standard conditions - upon which the inclusion of such a condition in the terms of the appellant's bail would have been sought.

[11] In their submissions both counsel for the appellant and the Advocate depute addressed the question whether, if prima facie incompatible with Article 5 ECHR, the amended legislation might yet be "read down" in terms of the interpretative obligation in section 3 of the Human Rights Act 1998 to produce a result which would not entail such incompatibility and hence invalidity under the Scotland Act 1998. However, we think it appropriate first to consider the arguments in principle before turning to that aspect.

[12] As we have already indicated, the leading submission for the Crown was that Article 5 ECHR was not in play, since, it was submitted, the article was concerned with detention pending trial and not with any conditions which might be applied to an accused allowed liberty pending trial.

[13] We have come to the view that this leading submission is not well founded. Textually, the terms of Article 5(3) ECHR refer to conditions of release from pre-trial detention; and in our view the issue of the right to liberty pending trial and the imposition of conditions on the grant of provisional liberty in order to meet, in a proportionate manner, considerations which might otherwise have been argued in favour of the justification of detention, are issues naturally inter-linked. At paragraph 15 of its judgment of 27 June 1968 in Wemhoff v Germany [1979-80] 1 EHRR 55, the ECtHR stressed, in a case in which the only reason advanced for detention was a risk that the accused might abscond, that his release must be ordered if it were possible to obtain from him acceptance of conditions that would secure his appearance. As the Law Commission points out at paragraph 9A.5 of its report, the reasoning in that case should apply as respects conditions designed to meet other risks which, in the particular case, might otherwise justify pre-trial detention. The Law Commission says within paragraph 9A.5:

"Thus, a defendant must be released unless (i) that could create a risk of the kind which can, in principle, justify pre-trial detention, and (ii) that risk cannot, by the imposition of bail conditions, be averted, or reduced to a level at which it would not justify detention".

To subject pre-trial release to acceptance of an obligation or a condition for which detention could not be justified in the particular case must, in principle, engage the right to liberty under Article 5 ECHR. It may be added that in its judgment, also delivered on 27 June 1968, in Neumeister v Austria (No 1) (1979-80) 1 EHHR 91 the ECtHR examined the approach of the national court to the setting of a condition of release involving the provision of money security.

[14] The Advocate depute also submitted that Article 5 was not engaged on a narrower basis, related to the particular procedure before the justice of the peace in this case. This related to the fact that the procurator fiscal depute did not actually seek a remand in custody. She opposed the defence invitation to the court to ordain the appellant to appear, thereby, in effect, granting (the obligation to appear apart) unconditional release; she insisted on bail, which automatically entailed the imposition of the amended standard conditions. So, said the Advocate depute, custody not having been sought, no issue of pre-trial detention arose.

[15] In our view this subsidiary submission for the Crown is also unsound. On the hypothesis - which in the event emerged as fact - that the justice of the peace would not accede to the defence motion, the appellant had only the choice to accept the bail conditions, including the new standard condition of which complaint is made, or be returned to custody. Were he to have declined agreement, the motion of the procurator fiscal depute would, we think, logically only have been a motion for a remand in custody. Making acceptance by the appellant of an obligation to satisfy a police requirement to participate in an identification procedure or provide prints or samples from his body a condition of his being given pre-trial release from custody must, in our view, engage his right to release in the absence of recognised reasons justifying his detention. No such obligation is imposed on an accused who is not in custody and thus not seeking release therefrom. The circumstances of the present case thus illustrate the difficulty of the Crown's primary submission.

[16] Having thus concluded that the imposition of conditions on pre-trial provisional release is within the reach of Article 5 ECHR, we turn next to the question whether the amendment to the terms of section 24 of the 1995 Act effected by the 2010 Act is compatible with that article.

[17] As we have already mentioned, the Advocate depute did not offer any criticism of the analysis by the Law Commission in England and Wales of the terms of Article 5 and its interpretation by the ECtHR. In our view, the relevant principles may be stated as follows. First, pre-trial deprivation of liberty will be incompatible with Article 5 unless justified by a real risk that some five, catalogued matters or events might transpire. Those are conveniently set out, with footnote references to the relevant case law of the ECtHR, in paragraph 2.29 of the Law Commission's report:

"The ECtHR has recognised that pre-trial detention may be compatible with the defendant's right to release under Article 5(3) where it is for the purpose of avoiding a real risk that, were the defendant released,

(i)                  he or she would

(a)                fail to attend trial;

(b)               interfere with evidence or witnesses, or otherwise obstruct the course of justice;

(c)                commit an offence while on bail; or

(d)               be at risk of harm against which he or she would be inadequately protected; or

(ii)                a disturbance to public order would result".

 

[18] Thus pre-trial detention cannot be justified on some ultroneous basis. Secondly, as already discussed in paragraph [13] supra, detention pending trial will not be justified if the risk, or risks, in the recognised legitimate grounds which is, or are, invoked in the particular case as warranting pre-trial detention are capable of being met by the imposition of conditions. And thirdly, but importantly, the need for detention on one or more of the justifying criteria has to be a matter for assessment by the judicial power - ie the court - in the particular circumstances of the individual case. See, inter alia, paragraphs 2.13, 2.14, 2.27 and 2.30 of the Law Commission's report. It follows, in our view, that whether a condition to be imposed on the grant of bail appropriately addresses and is properly related to one of the recognised and accepted risks capable of justifying pre-trial detention must similarly be assessed by a judge individually, in the circumstances of the particular case in question.

[19] We acknowledge, for the moment, that there may be circumstances in which, on the making of an application for bail, there may be, in opposition, valid argument for some short term, further detention for evidence gathering procedures, such as the taking of samples or the participation in identification procedures, and that such a consideration might arguably be advanced as an addition to the catalogue of justifiable reasons (but only on that short term basis) for which pre-trial liberation might be refused. However, the fundamental problem presented in this appeal is that the amendment to section 24 of the 1995 Act which was effected by section 58 of the 2010 Act removes the opportunity for any individual consideration by a judge of whether detention might otherwise be necessary for the purposes to which the amended section 24(5)(cb) refers and thus any individual case consideration of whether that perceived necessity for short term detention might be met by a suitable condition. The amendment effected by section 58 of the 2010 Act removes all elements of judicial discretion and supervision of the question whether the particular accused may be required to submit to evidence gathering or other investigatory procedures as a counterpart for his obtaining pre-trial liberty. As was pointed out in the discussion before us, while an accused who has not been in custody may be required to participate in an identification procedure by virtue of section 267B of the 1995 Act, whether he should be subjected to that requirement is a matter of judicial decision in the individual circumstances of the case and provision is made for his having an opportunity to make representations to the court. The taking of prints, impressions or samples from such an accused would, of course, require judicial warrant. To that extent we have come to the view that the inclusion of the condition in question as a mandatory condition on the grant of bail is incompatible with the rights secured to the citizen by Article 5 ECHR. As earlier indicated, the Crown frankly indicated its difficulty in advancing to us any comprehensible reason for the amendment effected by the 2010 Act which might require to be weighed in any assessment of its compatibility with the Convention.

[20] Given our conclusion on the question whether the amendment is compatible with Article 5, the question then arises whether the amended terms of section 24 of the 1995 Act may yet be "read down" to become ECHR compatible. Neither party expressed much enthusiasm for that exercise. We understand that lack of enthusiasm. The only meaningful way of "reading down" - in terms of the interpretative obligation in section 3 of the Human Rights Act 1998 - the amended section 24 of the 1995 Act in a way to make it ECHR compatible is to treat the standard condition in section 24 (5) (cb) as being non-mandatory and requiring the exercise of some measure of judicial discretion. But, in reality, such a "read down" interpretation of the amended legislative text is equivalent in all respects to discounting the substance of section 58 of the 2010 Act. We are therefore constrained to the view that the amendment effected by section 58 of the 2010 Act is not compatible with the requirements of Article 5 ECHR and should to be declared, pursuant to section 29 of the Scotland Act 1998, to be "not law".

[21] Before pursuing that course to its conclusion, we require in terms of section 102(4) of the Scotland Act 1998 to make intimation to the Advocate General on the issue whether our decision that section 58 of the 2010 Act is not compatible with Article 5 ECHR should be given only prospective effect. We must therefore continue the case for an opportunity to be given to the Advocate General, and parties, to make submissions on whether our decision on the incompatibility with Article 5 ECHR of section 58 of the 2010 Act should be treated as an ex tunc or an ex nunc ruling.