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O (FC) (Appellant) v. Crown Court at Harrow (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)
LORD NICHOLLS OF BIRKENHEAD
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.
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
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.
4. The arguments advanced on behalf of the appellant can be distilled into two main propositions:
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  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  UKHL 47,  1 AC 903, 913, para 16:
Cf also R (McCann) v Crown Court at Manchester  1 AC 787, 812, para 37, where Lord Steyn said:
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  1 WLR 253, para 32, he interpreted the provisions of section 25 as establishing a norm:
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:
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  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  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
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 offencesessentially murder, attempted murder, manslaughter, rape and attempted rapewho 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:
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:
Paragraph 9 of the Schedule is also worth noting:
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:
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):
19. So much for the position of non section 25 defendants generally. It is time now to set out section 25 itself:
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.