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Judgments - O (FC) (Appellant) v. Crown Court at Harrow (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)

HOUSE OF LORDS

SESSION 2005-06

[2006] UKHL 42

on appeal [2003] EWHC 868 Admin

 

OPINIONS

OF THE LORDS OF APPEAL

for judgment IN THE CAUSE

 

O (FC) (Appellant) v. Crown Court at Harrow (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)

 

In re O (Appellant) (application for a writ of Habeas Corpus) (Criminal Appeal from Her Majesty's High Court of Justice) (Consolidated Appeals)

 

Appellate Committee

 

Lord Nicholls of Birkenhead

Lord Hutton

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood

 

Counsel

Appellant:

James Turner QC

Jamas Hodivala

(Instructed by Clarke Kiernan)

Respondent in the second case and Intervener in the first case:

Ben Emmerson QC

Clive Lewis

(Instructed by Treasury Solicitor and the Director of Public Prosecutions)

 

Hearing dates:

19, 20 and 21 June 2006

 

on

Wednesday 26 July 2006

 

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

O (FC) (Appellant) v. Crown Court at Harrow (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)

In re O (Appellant) (application for a writ of Habeas Corpus) (Criminal Appeal from Her Majesty's High Court of Justice)

(Consolidated Appeals)

[2006] UKHL 42

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    1.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Brown of Eaton-under-Heywood. For the reasons he gives, with which I agree, I would dismiss this appeal.

LORD HUTTON

My Lords,

    2.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Brown of Eaton-under-Heywood. For the reasons he gives, with which I agree, I too would dismiss this appeal.

BARONESS HALE OF RICHMOND

My Lords,

    3.  For the reason given in the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood, with which I agree, I too would dismiss the appeal.

LORD CARSWELL

My Lords,

    4.  The arguments advanced on behalf of the appellant can be distilled into two main propositions:

    (a)  Once the statutory custody time limit has expired, and has not been extended, there is ipso facto a breach of article 5(3) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") if the defendant is still held by virtue of the operation of section 25 of Criminal Justice and Public Order Act 1994 ("section 25");

    (b)  Alternatively, the effect of section 25 is to place a burden on the defendant to establish the existence of the exceptional circumstances required for bail to be granted, which is an unjustified and disproportionate interference with his Convention rights.

    5.  My noble and learned friend Lord Brown of Eaton-under-Heywood has set out the facts and the applicable statutory and Convention provisions in his opinion, which I have had the advantage of reading in draft, and I am grateful to adopt them without repeating them. On the first issue, I am in entire agreement with the reasoning and conclusion contained in his opinion. On the second issue, I also agree with him when he says in paragraph 35 that whether section 25 needs to be read down to achieve the agreed result is a matter of little moment. Whether one adopts the approach of Kennedy LJ in the Divisional Court or that favoured by Hooper J, one can readily reach the same place. I think, however, that the difference between the two is worth examination.

    6.  It seems to me plain from the ordinary meaning of the wording of section 25 that Parliament intended that if the judge deciding a bail application to which the section applies found the arguments for and against the existence of such exceptional circumstances evenly balanced and is left uncertain, he must refuse bail. I do not see how a judge could be "satisfied" of the existence of exceptional circumstances justifying the grant of bail unless he came to the conclusion that the arguments in favour or the existence of such circumstances outweighed those in favour of it. Adopting the term used by Elias J in R (Sim) v Parole Board [2004] QB 1288, 1310, para 51, the default position is the refusal of bail.

    7.  It may be worth pointing out that but for the effect of the Human Rights Act 1998 and the Convention, the courts would most probably follow the ordinary meaning of the section and fulfil the object of Parliament in enacting it. The fact that they are not in a position to do does not derive from any judicial desire to frustrate the wishes of Parliament, but is the inescapable consequence of the application of the Human Rights Act and the Convention. As Lord Brown points out in his opinion, the effect of article 5(3) of the Convention is that the court has to adopt a position opposite to that of the default position, namely that continued imprisonment has to be justified. It is necessary to resort to some method of reaching that position in order to comply with the Human Rights Act.

    8.  Both Kennedy LJ and Hooper J appreciated that it was necessary to adopt a construction of section 25 which did not offend against the presumption of innocence and the respect for individual liberty. It is clear from such cases as Ilijkov v Belgium (Application No 33977/96, unreported, 26 July 2001), which is quoted by Lord Brown in paragraph 27 of his opinion, that the European Court of Human Rights places a high value on maintaining these features and would regard any dilution of them as contrary to the provisions of the Convention. Kennedy LJ and Hooper J approached the question in different ways.

    9.  Kennedy LJ commenced by rejecting the applicant's contention that section 25 imposed a burden of proof on the person seeking bail, on the analogy of the remark of Lord Bingham of Cornhill in R v Lichniak [2002] UKHL 47, [2003] 1 AC 903, 913, para 16:

    "I doubt whether there is in truth a burden on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the board to consider all the available material and form a judgment."

Cf also R (McCann) v Crown Court at Manchester [2003] 1 AC 787, 812, para 37, where Lord Steyn said:

    "The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation."

Kennedy LJ went on to interpret the words "exceptional circumstances" in a very broad sense, so broad that any presumption against bail in cases coming within section 25 was effectively removed. Basing his reasoning on the decision of the Court of Appeal, Criminal Division in R v Offen [2001] 1 WLR 253, para 32, he interpreted the provisions of section 25 as establishing a norm:

    "The norm is that those to whom it applies if granted bail are so likely to fail to surrender to custody, or offend, or interfere with witnesses or otherwise obstruct the course of justice, that bail should not be granted. If in fact, taking into account all the circumstances relating to a particular alleged offence and offender he does not create an unacceptable risk of that kind he is an exception to the norm, and in accordance with his individual right to liberty he should be granted bail."

In other words, the judge is to consider the circumstances of the case and if he considers that to grant bail would not create an unacceptable risk he may properly be satisfied that there are exceptional circumstances which justify it. This approach appears to involve interpreting the words "is satisfied" as meaning simply "considers". Such an approach may suffice to ward off complaints of breach of article 5 of the Convention, but it would be difficult to maintain that it puts into effect the apparent intention of Parliament in enacting section 25.

    10.  The approach of Hooper J might be described as more direct. He accepted (paras 95-6) that the literal meaning of "satisfied" connoted something more than "judgment or evaluation". He went on in paragraphs 96-98:

    "96.  It follows that, in my view, section 25, read literally, imposes the burden on the defendant to show exceptional circumstances.

    97.  Having regard to both the wording of article 5 and Ilijkov v Bulgaria 26 July 2001 and Hutchison Reid v United Kingdom 20 February 2003, it seems to me that article 5 prohibits the imposition on the detained person of the burden of proving that he should be released. That conclusion is consistent with the conclusion of Elias J in R (Sim) v Parole Board [2003] 2 WLR 1374.

    98.  It follows that section 25 is, in my view, inconsistent with article 5(3) in imposing the burden on the defendant to satisfy the court of the existence of exceptional circumstances. The reverse onus of proof cases under article 6 do not help."

He therefore favoured overtly reading down section 25 in accordance with the requirements of section 3 of the Human Rights Act 1998 to impose an evidentiary burden.

    11.  I am in strong agreement with the view expressed by Lord Bingham in R v Lichniak and Lord Steyn in R (McCann) v Crown Court at Manchester that the juridical exercise carried out by the court in such cases is indeed an exercise in judgment or evaluation, not the application of a burden of proof. In In re McClean [2005] UKHL 46 at paragraphs 70-74 of my opinion I set out my reasons for so holding in a case where Sentence Review Commissioners applying section 8 of the Northern Ireland (Sentences) Act 1998 revoked the declaration whereby a life sentence prisoner received accelerated release. They were required to do so if they "believed" that applicable conditions in section 3 (which required that the prisoner should be distanced from terrorist organisations and should not be a danger to the public) were no longer satisfied. I agreed with the view expressed by McCollum LJ in the Northern Ireland Court of Appeal that section 8(2) did not impose a burden on either the Secretary of State who made the application or the prisoner: rather the Commissioners were to conduct a full review, the object being to determine whether in their opinion the conditions contained in section 3 remained satisfied. In paragraph 74 of my opinion in In re McClean I referred to Lord Bingham's statement in R v Lichniak and to a number of analogous instances in Northern Ireland case-law where deciders exercised functions conferred by statute.

    12.  I would be attracted to such an approach in the present case, but I am not persuaded that it is possible on the wording of section 25 to adopt it. In the various instances which I quoted in In re McClean the decider on the wording of the relevant statute had to determine something or form a judgment or opinion. Similarly, in R v Offen [2001] 1 WLR 253 the court had to be "of the opinion" that there were exceptional circumstances. I have to agree with Hooper J that in its ordinary meaning the word "satisfied" is less neutral and that to be satisfied requires more than a judgment or evaluation. As the court has to be satisfied that there are exceptional circumstances justifying the grant of bail, I conclude, in agreement with Hooper J, that the phrase connotes a burden or presumption. That being so, it is necessary to apply the technique of reading down section 25, so far as it is possible to do so, in order to avoid a breach of the appellant's Convention rights. It was agreed that this could be done, as Hooper J has set out in paragraph 99 of his judgment, by imposing an evidential burden on the defendant to point to or produce material which supports the existence of exceptional circumstances. I consider that this is the most appropriate avenue to take in the present appeal, and that it would ensure compatibility with the Convention.

    13.  I would dismiss the appeal.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    14.  This appeal is all about the pre-trial detention of unconvicted defendants, and in particular the right to bail of a certain category of such defendants. The category in question is that provided for by section 25 of the Criminal Justice and Public Order Act 1994 as amended, namely those charged with one of a specified number of grave offences—essentially murder, attempted murder, manslaughter, rape and attempted rape—who in addition have been previously convicted of such an offence (although not necessarily an offence of the same type). For convenience I will refer to these offences as qualifying offences and to those falling within the section as section 25 defendants. (Section 25 applies also to those convicted of a qualifying offence with a previous conviction for such an offence, but your Lordships are not here concerned with the question of bail pending appeal, only bail pending trial.)

    15.  What is the effect of section 25 upon a section 25 defendant's right to bail (a) during the currency of the custody time limit provided for by the Prosecution of Offences Act 1985 (the 1985 Act) and (b) upon the expiry of such a custody time limit? Those are the central questions arising for your Lordships' determination on this appeal, the second (as will later appear) altogether more contentious than the first. They arise, let me make it clear, specifically in the context of article 5(3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms:

    "Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article [i.e. 'for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence'] 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."

    16.  Before coming to these questions, however, it is necessary first to note the position with regard to the great majority of other unconvicted defendants as provided for by section 4 of the Bail Act 1976 and the First Schedule to that Act. Section 4 provides that such defendants "shall be granted bail except as provided for in Schedule 1 to this Act" and Schedule 1 provides, in the main, by section 2 (1) that:

    "The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would—(a) fail to surrender to custody, or (b) commit an offence while on bail, or (c) interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person."

    Paragraph 9 of the Schedule is also worth noting:

    "In taking the decisions required by paragraph 2(1) . . . the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say—(a) the nature and seriousness of the offence or default (and the probable method of dealing with a defendant before it), (b) the character, antecedents, associations and community ties of the defendant, (c) the defendant's record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings, (d) . . . the strength of the evidence of his having committed the offence or having defaulted, as well as to any others which appear to be relevant."

    17.  As for custody time limits, section 22(1) of the 1985 Act provides for the Secretary of State to make regulations as to these and in section 22(3) states:

    "The appropriate court may, at any time before the expiry of a time limit imposed by the regulations, extend, or further extend, that limit; but the court shall not do so unless it is satisfied—(a) that the need for the extension is due to—(i) the illness or absence of the accused, a necessary witness, a judge or a magistrate; (ii) a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused or two or more offences; or (iii) some other good and sufficient cause; and (b) that the prosecution has acted with all due diligence and expedition."

    18.  The relevant regulations are the Prosecution of Offences (Custody Time Limits) Regulations 1987 (SI 1987/299) (as amended) (the 1987 Regulations) which by regulation 5 specify the custody time limits to apply in the Crown Court and by regulation 6 provide for bail on their expiry. Regulation 6 (6) is important and at this stage I shall set it out in its original form (i.e. without reference to section 25 defendants):

    "The Crown Court, on being notified that an accused who is in custody pending trial there has the benefit of a custody time limit under regulation 5 above and that the time limit is about to expire, shall grant him bail in accordance with the Bail Act 1976, as from the expiry of the time limit, subject to a duty to appear before the Crown Court for trial."

    19.  So much for the position of non section 25 defendants generally. It is time now to set out section 25 itself:

    "(1)  A person who in any proceedings has been charged with or convicted of an offence to which this section applies in circumstances to which it applies shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it.

    (2)  This section applies, subject to sub-section (3) below, to the following offences, that is to say—(a) murder; (b) attempted murder; (c) manslaughter; (d) rape under the law of Scotland or Northern Ireland; (e) an offence under section 1 of the Sexual Offences Act 1956 (rape); (f) an offence under section 1 of the Sexual Offences Act 2003 (rape); [(g) to (m) describe a series of further serious sexual offences provided for by the Sexual Offences Act 2003]; (n) an attempt to commit an offence within any of paragraphs (d) to (m). Sub-section (3): This section applies to a person charged with or convicted of any such offence only if he has been previously convicted by or before a court in any part of the United Kingdom of any such offence or of culpable homicide and, in the case of a previous conviction of manslaughter or of culpable homicide, if he was then sentenced to imprisonment or, if he was then a child or young person, to long-term detention under any of the relevant enactments."

    20.  Subsection (4) provides that the section applies whether or not an appeal is pending and subsection (5) defines conviction to include a finding of not guilty by reason of insanity, a relevant finding in a case of unfitness to plead, and a conviction notwithstanding the offender's absolute or conditional discharge.

    21.  The most recent amendment of the section was by the Sexual Offences Act 2003 which substituted paragraphs (d) to (n) of subsection 25(2) for the original paragraphs (d) and (e) which had specified simply "rape" and "attempted rape" as the qualifying sexual offences. This amendment took effect on 1 May 2004 (after the Divisional Court's judgment) and is not material on the present appeal.

 
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