Joint Committee On Human Rights Second Report

Other Provisions engaging Human Rights


36. Clause 3 of the Bill would give power to a constable to release an arrested person on bail without first taking him or her to a police station. For this purpose, the clause would amend section 30 of PACE, and would insert new sections 30A, 30B, 30C and 30D into PACE. The power to release on bail would be contained in proposed new section 30A.

37. Although the proposed new section 30A would appear to confer a benefit on the person arrested rather than interfere with any rights, someone who is not released on bail under section 30A, but is kept in custody and taken to the police station, is being deprived of his or her liberty. Under ECHR Article 5.1, any deprivation of liberty must be 'in accordance with a procedure prescribed by law' and (in this particular context) be a "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".[44] Proposed new section 30A does not specify the circumstances when an arrested person should be released on bail before taking him or her to a police station. Under ECHR Article 5.1, the requirements that a deprivation of liberty be "in accordance with a procedure prescribed by law" and that an arrest or detention be "lawful" entail (i) that the deprivation be in conformity with municipal law, and (ii) that it should not be arbitrary.[45] As no criteria are laid down for deciding whether to refuse to release a person on bail under proposed new section 30A, we have considered whether there is a significant risk that the refusal of bail by a constable on the street would be arbitrary, violating ECHR Article 5.1.

38. We have concluded that detention rather than release under proposed new section 30A is unlikely to be incompatible, for three reasons.

39. First, the right which might be infringed by a decision not to release a suspect is a right not to be (longer) detained. But PACE authorizes detention until the person reaches a police station, and ECHR Article 5.1 permits such detention on reasonable suspicion that the person has committed an offence, as long as the detention is not arbitrary. It would be unusual to find circumstances in which a person could be lawfully arrested for the purpose of being brought before a competent legal authority on suspicion of having committed an offence under Article 5.1(c), yet the detention could be said to be arbitrary in ways which would not already make it unlawful by virtue of other rules operating in the legal systems of the United Kingdom. If the constable treated people differently because of their colours, sexes, nationalities, etc., it would be discrimination violating Article 5 taken together with Article 14 of the ECHR. If the constable adopts a blanket policy of never releasing anyone, it would be an unlawful fetter on the discretion by virtue of ordinary judicial review principles. If the constable only releases people on bail on Thursdays, Fridays and Saturdays, or tosses a coin to decide whether to release them, that would be irrational, in the Wednesbury sense, and so unlawful and subject to judicial review. In any of these cases, the unlawfulness in municipal law would mean that the continued detention of a suspect would not be "in accordance with a procedure prescribed by law", but that would be because the detention is in any case unlawful in municipal law, and there would be an adequate remedy for it.

40. Secondly, it does not seem to us to be necessary in every case, in order to avoid arbitrariness, to spell out in legislation the grounds on which a constable could properly decide not to release someone on bail. The Strasbourg case-law on this shows that the meaning of "arbitrary" depends on context. As one of the leading authorities [46] puts it—

Thus a detention is 'arbitrary' if it is 'not in conformity with the purpose' of the particular sub-paragraph concerned or with Article 5 generally.[47] For example, detention ostensibly for the purpose of deportation which is really aimed at illegal extradition would be 'arbitrary'.[48] There is authority in respect of certain sub-paragraphs of Article 5(1) to the effect that a detention is also 'arbitrary' if, although properly motivated, it is not proportionate to the attainment of the sub-paragraph's purpose.[49]...In the context of Article 5(1)(f), the Commission has suggested that 'lawful' also incorporates the requirement that the municipal law upon which the decision is based must be accessible and foreseeable in its application.[50] There would appear to be no contextual reason why such a requirement should not apply to all sub-paragraphs of Article 5(1).[51]

41. It seems, then, that the Strasbourg court is cautious about reviewing the substance of municipal law. Arbitrariness has a limited meaning. In the context of arrests and Article 5.1(c), it means having an improper purpose, or (perhaps) being disproportionate to the purpose for which the person was lawfully arrested, or (possibly) being based on a law which is inaccessible or unforeseeable in its application. Assuming that 'arbitrary' bears all these meanings in Article 5.1(c) in the context of an arrest, a constable who decides not to release a person on bail under proposed new section 30A would not be taken for an improper purpose: Article 5.1(c) recognizes that bringing a person before a competent authority on suspicion of an offence is a proper purpose. It would be disproportionate to that purpose only if, in the circumstances of the case, the constable could clearly have achieved the purpose without taking the suspect to a police station. Normally, the nub of the issue would be the foreseeability of the law being applied in that way. As long as the constable reasonably suspects that the person has committed an offence to which a power of arrest is attached, we consider that the detention would be on the basis of a law permitting it. Article 5.1 does not exclude all discretion from the system. If it did, almost every arrest would violate Article 5.1, because there is almost never a duty to arrest anyone. The police use their discretion in deciding what is the best way to proceed. Although the discretion is very wide, it is subject to the usual principles of judicial review for illegality or irrationality,[52] and it is clearly foreseeable that a person who is reasonably suspected of having committed an offence will be arrested. The fact that people might be released under proposed new section 30A would not in itself make their continued detention arbitrary or unforeseeable, because it is clearly foreseeable that a person who is reasonably suspected of committing an offence carrying a power of arrest will be both arrested and taken to a police station. It would be impossible to define in advance all the circumstances in which a constable might decide to release or not release on bail. We consider that the best approach is to assess each decision on its merits on a case-by-case basis.

42. We think, therefore, that the enactment of the proposed new power to release an arrested person on bail would, in itself, give rise to a significant risk of a violation of Article 5 only if there is no rational ground on which the discretion could be exercised. The Explanatory Notes to the Bill set out the purpose of the proposed power:

It provides the police with additional flexibility following arrest and the scope to remain on patrol where there is no immediate need to deal with the person concerned at the station. It is intended to allow the police to plan their work effectively by giving them new discretion to decide exactly when and where an arrested person should attend at a police station for interview.[53]

In our view, a decision to release a person on bail, or not to do so, made on the basis of those considerations and taking account of the circumstances prevailing in the particular case, would be rational and non-arbitrary, and would be lawful and in accordance with a procedure prescribed by law. We have therefore come to the conclusion that clause 3 does not give rise to a significant risk of incompatibility with rights under ECHR Article 5.1.


43. Clauses 62, 65 and 66 would remove in certain circumstances the right of a defendant who has been acquitted of a criminal charge to plead that acquittal as a bar to a subsequent prosecution for the same offence. A court could authorise a retrial after an acquittal in proceedings on indictment where—

  • new and compelling evidence that the defendant was guilty of the offence (i.e. evidence not available or known to an officer at the time of the acquittal, whether or not it would have been admissible then, which is reliable and substantial, and makes it highly probably that the person is guilty when considered in the context of outstanding issues in the case) has become available;[55] and

  • it is in the interests of justice for the court to make an order for a retrial, taking into consideration the need for a fair trial to be possible, the length of time since the commission of the offence, whether the evidence could have been discovered sooner with due diligence, and whether the officers and prosecutor acted with due expedition after discovering the evidence.[56]

44. The new power to order a retrial would be exercised by the Court of Appeal on an application by a prosecutor who would need the written consent of the Director of Public Prosecutions in person, who would have to be satisfied that there is new and compelling evidence of guilt and that it is in the public interest for the application to proceed.[57] It would be possible to use the power to reopen acquittals obtained before the provisions of the Bill are passed or enter into force.[58] This would not violate the right to be free of retrospective penalties under ECHR Article 7, as long as the applicable law relating to the offence for which the retrial is ordered is the same as that in force at the time of the offence, and any sentence which could be imposed on conviction following retrial would be no more severe than that which might have been imposed at the time of the offence. This principle of non-retrospectively of the substantive criminal law and sentencing powers is implicit in the Bill's provisions.

45. These provisions reflect the recommendations of the Law Commission in its report, Double Jeopardy and Prosecution Appeals,[59] save in one respect. The Law Commission recommended that the power to reopen cases should be limited to cases of murder, genocide, and (if and when the Law Commission's recommendations on the reform of the law of involuntary manslaughter are implemented) reckless killing.[60] Other offences would not be serious enough, in the Law Commission's view, to outweigh the factors underpinning the value of the double jeopardy principle: finality as an antidote to distress and anxiety, as a protection for individual liberty, as a protection against harassment by state officials, as a way of protecting the interests of third parties, and as an expression of a wider social value in symbolising the rule of law and a commitment to democratic values.[61]

46. In our view, the range of offences to which an exception to the double jeopardy might apply is a matter for political judgment, not a matter of human rights. In the cases on double jeopardy decided by the European Court of Human Rights, considered in paragraph 50, below, there is no suggestion that the application of the justification for an incursion on the double jeopardy principle should depend on the types of offence in respect of which the exception applied, or that human rights principles were capable of determining what those offences should be. We therefore do not consider this further, although we recognise that the proposals are highly controversial in terms of policy.

47. On the other hand, there are human rights standards which apply to any incursion on double jeopardy. These are considered next.

48. The double jeopardy principle (sometimes known as ne bis in idem) is an aspect of the principle that there should be finality in litigation, and that a judgment which can no longer be appealed should be taken to be authoritative (res judicata). It has long been a fundamental part of both criminal and civil procedure in the United Kingdom, where it has been regarded as a fundamental constitutional protection for people's liberty. It is enshrined in human rights law by Article 14(7) of the ICCPR, which binds the United Kingdom in international law:

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

It is also contained in Article 4 of Protocol No. 7 to the ECHR (hereafter 'P7/4'), a Protocol which the UK has not yet ratified, although the Government has said that it intends to do so. P7/4 states:

1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15.

Those Articles have not yet been expressly incorporated into national law, and there was no need to do so, since their requirements are currently fully respected by the common law principle of double jeopardy. When the UK ratifies Protocol No. 7 to the ECHR, the Government can be expected to amend the Human Rights Act 1998 by adding P7/4 to the list of Convention rights under that Act.

49. On its face, ICCPR Article 14.7 appears to provide less leeway than ECHR P7/4 to a State wishing to restrict the principle of double jeopardy. However, the UN Human Rights Committee has distinguished between the reopening or resumption of criminal proceedings in exceptional circumstances, which might not infringe Article 14.7, and a straightforward retrial, which is forbidden.[62] The difference between the requirements of the two instruments may therefore be less than appears at first sight.

50. There is some case-law on the scope of the principle in P7/4. In Gradinger v. Austria,[63] a man had been acquitted on a charge of drunk driving when medical evidence satisfied the court that his blood alcohol level had been below the prescribed level. He was retried, and convicted, on the basis of a later medical report contradicting the earlier one. The European Court of Human Rights held that this violated P7/4, because the later charge was based on exactly the same conduct, and was of precisely the same nature, as the earlier charge. There was no discussion of P7/4.2, probably because Austria had no legal procedure for the reopening of charges in the light of new evidence. By contrast, in Oliveira v. Switzerland[64] decided that a second conviction on a more serious charge, arising out of the same conduct as an earlier conviction on a less serious charge, did not violate P7/4, because the offence charged was different.

51. These cases were examined by the Law Commission in its report on Double Jeopardy and Prosecution Appeals.[65] The Law Commission concluded that the two decisions conflicted, because in each case the conduct on which both charges were based was identical, and the later court took account of a matter not considered by the earlier court (in Gradinger, new evidence; in Oliveira, a different charge) and treated it as justifying a conviction.[66] We are not persuaded by this. In our view, there is no reason why the double jeopardy principle should prevent different charges from being brought on the basis of the same conduct. However, it is not necessary to decide that issue in the context of the present Bill, because the charge in any retrial under Part 10 of the Bill would clearly be for exactly the same offence, and arise out of exactly the same conduct, as that of the first trial. It is clearly caught by both ICCPR Article 14.7 and P7/4.1. The question is, therefore, whether it is justifiable as a reopening of the earlier case in the light of new evidence under P7/4.2, and the equivalent implied exception to ICCPR 14.7.

52. Reopening an earlier acquittal may be permitted on the principle set out in P7/4.2 if—

  • there is a legislative scheme in place regulating the circumstances in which a case can be reopened (unlike, apparently, the position in Austria when Gradinger was decided), and

  • that scheme limits the reopening to cases where new evidence has become available (or there has been a fundamental defect in the earlier proceedings).

In our view, the Bill's proposals relating to double jeopardy satisfy both these conditions, and if properly applied by courts, in the light of the considerations outlined in the preceding paragraphs, would not be incompatible with human rights, although we recognize that the proposals are highly controversial in terms of policy.


53. The following provisions seem to us to engage Convention rights—

  • clause 215, relating to the conditions of detention for young people; and

  • clauses 232 and 233, relating to the recall of prisoners released on licence.

In our view, none of these gives rise to a significant risk that any interference with the rights would be unjustified and so give rise to an incompatibility.

ECHR Art. 5.1(c) Back

45   Winterwerp v. The Netherlands, Eur. Ct. H.R., Series A, No. 33 (1979), at § 45 of the judgment Back

46   D. J. Harris, M. O'Boyle and C. Warbrick, Law of the European Convention on Human Rights (London: Butterworths, 1995), pp. 105-106 (footnotes in original) Back

47   See eg Winterwerp v Netherlands A 33 para 39 (1979) and Bouamar v Belgium A 129 para 50 (1988). Cf Article 18, Convention, which 'confirms' this interpretation: Winterwerp case, ibid Back

48   See Bozano v France [A 111 (1986)] Back

49   Winterwerp v Netherlands [above] (Article 5(1)(e)). Cf Caprino v UK [App. No. 7317/75, 22 D.R. 5 at 13 (1980)] ('necessity or proportionality') (Article 5(1)(f), in connection with the length of detention only) and Van Droogenbroeck v Belgium [A 50 (1982)] at p. 104 (Article 5(1)(a), applying a reasonableness test concerning one particular element of that provision only). Back

50   Zamir v UK No 9174/80, 40 DR 42 (1983) (Article 5(1)(f)).... Back

51   There is also no reason why the meaning given to 'lawfulness' in Article 8(2) in Olsson v Sweden (No 2) [A 250 (1992)] should not apply to Article 5 Back

52   See Mohammed-Holgate v. Duke [1984] AC 437, HL Back

53   Explanatory Notes, p. 20, para. 92 Back

54   Clause 62(1), (8) and Sch. 4 Back

55   Clause 65 Back

56   Clause 66 Back

57   Clauses 63, 64 and 78. The Court could also declare that an acquittal in a court outside England and Wales and Scotland was not to be a bar to prosecution in England and Wales: clauses 63(2), 64(2)-(4) Back

58   Clause 62(6) Back

59   Law Com. No. 267, Cm. 5048 (London: The Stationery Office, 2001), pp. 29-32, paras. 3.10-3.21 Back

60   ibid., pp. 38-43, paras. 4.23-4.42 Back

61   ibid., pp. 35-38, paras. 4.11-4.22 Back

62   General Comment 13/21, para. 19 Back

63   Eur. Ct. HR, Series A, No. 328-C (1995) Back

64   Eur. Ct. HR, 1998-V, p. 1990 Back

65   Law Com. No. 267, Cm. 5048 (London: The Stationery Office, 2001), pp. 29-32, paras. 3.10-3.21 Back

66   Law Com. No. 267, pp. 31-32, para. 3.18 Back

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