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

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    22.  It is important, however, to note subsection (1) of section 25 in its original form, as it came into force on 10 April 1995:

    "A person who in any proceedings has been charged with or convicted of an offence to which this section applies and in circumstances to which it applies shall not be granted bail in those proceedings."

    23.  When section 25 was originally enacted section 4 of the Bail Act 1976 was amended to introduce a new subsection 8:

    "This section is subject to section 25 of the Criminal Justice and Public Order Act 1994 (exclusion of bail in cases of homicide and rape)."

    And regulation 6(6) of the 1987 Regulations (see para 18 above) was similarly amended so as to make it expressly "subject to section 25 of the Criminal Justice and Public Order Act 1994 (exclusion of bail in cases of homicide and rape)."

    24.  The amendment to section 25(1) was effected as from 30 September 1998 by section 56 of the Crime and Disorder Act 1998, an amendment precipitated by two challenges before the European Court of Human Rights: Caballero v United Kingdom (2000) 30 EHRR 643 and SBC v United Kingdom (2001) 34 EHRR 619. In each case the government had conceded that the absolute ban on the grant of bail to section 25 defendants provided for by section 25 as first enacted violated article 5(3).

    25.  The government's concession in Caballero was made after the Commission had delivered its Opinion, with the result that the court there declined to consider the merits. In SBC, however, the court (at paragraph 22) did pass judgment on the merits, essentially by endorsing the Commission's Opinion in Caballero to the effect that article 5(3) requires the "judicial control of interference by the executive with an individual's right to liberty" and the judge "must examine all the facts arguing for and against the existence of a genuine requirement of public interest justifying with due regard to the presumption of innocence, a departure from the rule of respect for the accused's liberty, and . . . have the power to order an accused's release."

    26.  Moving the amendment to section 25 in the House of Lords on 31 March 1998 (Hansard (HL Debates, col 340)), Lord Falconer of Thoroton said this:

    "We consider that, in the exceptional cases at which section 25 is targeted, it is right to reverse the general presumption in favour of bail and shift the onus onto the defence to provide good and sufficient reason why bail should not be denied. We do not envisage that this new burden on the defence will be easily overcome in most cases, but to rule out the possibility of granting bail cannot be justified. We see this new provision as allowing some flexibility to prevent injustice, while ensuring that the protection of the public remains the primary concern and providing a tough additional safeguard against bad bail decisions in these particularly serious circumstances."

    27.  I do not understand Mr Emmerson QC for the respondents and intervenors to argue that the section should properly be construed and applied in that way so as to put the "burden" on the defendant to provide "good and sufficient reason" for bail. Certainly, to my mind, such an approach would be irreconcilable with the Strasbourg case-law. I need cite only a short passage from the Court's decision in Ilijkov v Bulgaria (Application No. 33977/96) (Unreported, 26 July 2001):

    "84.  The court reiterates that continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. . . . Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention … , the existence of the concrete facts outweighing the rule of respect for individual liberty must be nevertheless convincingly demonstrated.

    85.  Moreover, the court considers that it was incumbent on the authorities to establish those relevant facts. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases."

    28.  The two key requirements imposed by article 5(3) are, first, that the prosecution must bear the overall burden of justifying a remand in custody—it must advance good and sufficient public interest reasons outweighing the presumption of innocence and the general presumption in favour of liberty; and, secondly, that the judge must be entitled to take account of all relevant considerations pointing for and against the grant of bail so as to exercise effective and meaningful judicial control over pre-trial detention.

    29.  Mr Emmerson contends that, properly construed and applied, section 25 in fact satisfies both of those requirements. There is, he submits, no objection to a presumption (or 'statutory assumption' or 'norm' as he would prefer to characterise it) provided only that it does not arise solely from the seriousness of the charge (as it had in Ilijkov) but rather, as here, from a combination of that and a previous conviction for another such serious offence; and provided also that it does not operate (as, again, it had in Ilijkov but does not here) so as to preclude the judge from taking account of all relevant considerations in deciding whether or not the statutory assumption is displaced. As for "exceptional circumstances" Mr Emmerson submits that if, having regard to all the relevant facts, the Court concludes that bail should after all be granted to a section 25 defendant, that, by definition will constitute exceptional circumstances.

    30.  Mr Turner QC for the appellant submits to the contrary that on its natural reading section 25 would apply as Lord Falconer suggested, thereby placing an impermissible burden on the defendant and, by making the grant of bail conditional upon the judge being "satisfied" of "exceptional circumstances", inhibiting a proper exercise of judicial control over detention. But Mr Turner accepts that by virtue of section 3 of the Human Rights Act 1998 the section can be read and given effect compatibly with article 5. That is why I indicated at the outset that this issue, although debated before your Lordships at great length, is really not that important. In the final analysis both sides agree how the section is to be construed and applied; they differ only as to how to achieve that result.

    31.  As it happens, that too was the only difference between the judges in the court below (Kennedy LJ and Hooper J): [2003] 1 WLR 2756. Applying by analogy the decision of the Court of Appeal in R v Offen [2001] 1 WLR 253 (concerning the court's approach to section 2 of the Crime (Sentences) Act 1997 which provides for automatic life sentences for defendants convicted of two serious offences unless the court is of the opinion that there are "exceptional circumstances relating to either of the offences or to the offender which justify its not doing so"), Kennedy LJ said (para 32):

    "[Section 25 (1)] establishes 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."

    Earlier he had said (para 28):

    "[T]here is nothing offensive or contrary to Convention law about Parliament reminding the courts of the risks normally attendant upon the grant of bail to those to whom section 25 applies. A reminder can properly be given by creating a statutory presumption against the grant of bail, but if judicial control is to be effective courts must be left free to examine all of the relevant circumstances and, in an appropriate case, to override the presumption."

    32.  He added (para 33) that if section 25 were approached in the way he had suggested then:

    "the fact that section 25 overrides section 4 of the Bail Act 1976 will not be a matter of any great moment, because section 25 will merely assist the court to adopt a proper approach in relation to the question of bail, and the approach will be in conformity with the requirements of article 5."

    33.  Hooper J on the other hand was concerned in particular by the use of the word "satisfied" in section 25(1) and thought that "section 25, read literally, imposes the burden on the defendant to show exceptional circumstances" (para 96). In the result he concluded that the section should be read down so that "the burden remains upon the prosecution to satisfy the court that bail should not be granted" (para 99).

    34.  Importantly, however, both members of the court decided that section 25(1) (subject only to its effect in cases where the custody time limit has expired, the important second issue yet to be addressed) has no substantive effect upon the way in which bail applications by section 25 defendants would in any event fall to be determined under the Bail Act. It serves merely to "remind" the courts of the risks normally posed by those to whom section 25 applies and "will merely assist the court to adopt a proper approach" in relation to bail in their cases. In my judgment they were right in that conclusion and it seems to me unsurprising that the Scots, placed in a similar position by the Caballero judgment, decided against introducing an "exceptional circumstances" test, believing that it would "add nothing to a clear common law position in Scotland"—see the Law Commission Report (Law Com. No. 269) on Bail and the Human Rights Act 1998, paragraph 8.6.

    35.  Whether or not, strictly speaking, section 25 needs to be read down to achieve the agreed result is a question of little moment. I myself, however, have a mild preference for Hooper J's approach. Like him I read the section as placing a burden on the section 25 defendant. He has to rebut a presumption and if he fails to do so is to be denied bail. True it is, as Mr Turner himself accepted, that in the vast majority of cases the court will reach a clear view one way or the other whether the conditions for withholding bail specified by Schedule 1 to the Bail Act are satisfied. But just occasionally the court will be left unsure as to whether the defendant should be released on bail—the only situation in which the burden of proof assumes any relevance—and in my judgment bail would then have to be granted. That must be the default position. Section 25 should in my judgment be read down to make that plain.

    36.  I come to the more important issue arising for your Lordships' decision, the impact of section 25 in cases where the custody time limit has expired. This is the issue on which the appeal turns since, as Mr Turner accepts, the appellant is not challenging the decisions refusing him bail prior to the expiry of the custody time limit, only the refusals of bail since that date. These he challenges on the basis that section 25 could then not properly apply; he submits rather that at that point the appellant had an absolute right to bail. This issue, unlike the last one, requires some consideration of the facts of the case and to these therefore I must now turn.

    37.  On 6 December 2001 the appellant was arrested, interviewed and charged with rape, false imprisonment and indecent assault. It was alleged that over a period of days in mid-September 2000 he had raped a woman in her flat, imprisoned her in his car and then indecently assaulted her in his flat. Nine months later she gave birth to a baby boy and in October 2001 she made her first complaint to the police.

    38.  On 7 December 2001 the appellant's case was sent for trial to the Central Criminal Court under section 51 of the Crime and Disorder Act 1998, with the appellant in custody. Pursuant to regulation 5(6B) of the 1987 Regulations, the custody time limit in his case was accordingly 182 days.

    39.  On 17 December 2001 a bail application was refused. The appellant was a section 25 defendant: he had a previous conviction for rape (a qualifying offence). He had indeed 30 previous convictions for a wide range of criminal offences, and for the rape (committed in December 1989) and an offence of violence (grievous bodily harm) he had recently served a total of 14 years' imprisonment. The case was transferred to Woolwich Crown Court where on 28 January 2002 a plea and directions hearing took place. The appellant pleaded not guilty and the trial was fixed for 8 April 2002. A further bail application was refused.

    40.  On 22 March 2002 the appellant dispensed with the services of his solicitors and counsel and served his own defence statement. The matter was mentioned before the judge who, without altering the trial date, gave him time to reconsider his decision. On 3 April 2002 the appellant indicated that he would like to have the services of his former legal team and the judge reinstated the representation order. As time had been lost, however, the trial date of 8 April 2002 was vacated and a new trial date fixed for 6 June 2002. A further bail application was refused.

    41.  At the end of May 2002 the appellant again dispensed with his lawyers but on 6 June 2002 when the case was called on he was represented by leading and junior counsel. Once again he dispensed with his lawyers after the mid-day adjournment. The following day, however, 7 June 2002, he asked for his legal team to be reinstated and again this was done. Defence counsel then indicated that, as there had been a delay in disclosure, an application to stay the proceedings would be made. It was decided that that would be heard the following day, 8 June 2002. Meantime, the 182-day custody time limit being due to expire at midnight on 7 June 2002, the prosecution that day applied for an extension of time under section 22(3) of the 1985 Act. The application was refused because the court was not satisfied that the prosecution had acted with all due diligence and expedition in relation to disclosure. That notwithstanding, a further application for bail was refused, again pursuant to section 25.

    42.  On 8 June 2002 the defence for the first time requested access to hospital and telephone records and this resulted in the case being stood out of the list and re-listed for mention on 21 June 2002. The hearing of the case was then fixed to commence on 4 November 2002 and a further application for bail was refused. On 20 August 2002 an application for bail was made to Keith J in the High Court and was refused.

    43.  The Crown Court continued to monitor disclosure and on 10 October 2002 the case was listed to consider two preliminary matters of law. The appellant once again dispensed with the services of his lawyers and the representation order was revoked. It was impossible, therefore, to deal with the issues of law which had to be adjourned to the first day of the trial.

    44.  On 4 November 2002 the appellant was acting in person but with leading counsel in attendance, appointed by the court to cross-examine the complainant. Issues were raised in relation to discovery, abuse of process, admissibility of photographs and the use of screens, and the appellant from time to time absented himself from the court room. Eventually, on 6 November 2002, the court began to empanel a jury, but one of the panel had been at school with the appellant and another, who was related to the appellant, made an observation in public which made it necessary to release the entire panel. The appellant then again applied for and was granted representation. On 15 November 2002 the case was transferred to the Harrow Crown Court because it was considered that the appellant was too well known in the Woolwich area. At that court, on 5 December 2002, before His Honour Judge Sanders, the trial was fixed for 2 June 2003 in order to meet the needs of the defence in relation to preparation and availability of counsel. The court had been prepared to hear the case in January 2003. The case was given a time estimate of three to four weeks.

    45.  An application for release on bail was commenced on 5 December 2002 and concluded on 9 December 2002. Once again it was refused on the basis of section 25. The appellant was given a further opportunity to opt for trial in January 2003 but he declined to do so.

    46.  On 30 January 2003 the appellant sought to challenge Judge Sanders's decision refusing him bail on 9 December 2002. On 26 February 2003 permission for judicial review was granted with a direction that the Secretary of State be served with notice of the proceedings because they appeared to raise an issue of compatibility with the Convention. On 20 March 2003 the appellant applied in addition for a writ of habeas corpus on the ground that his continued custody since the expiry of the custody time limit on 7 June 2002 was illegal.

    47.  On 16 April 2003, in a reserved judgment following a two-day hearing, the Divisional Court dismissed the claim for judicial review and refused the application for habeas corpus. They certified, however, three points of law of general public importance in respect of which the House later gave leave to appeal. It would not be helpful to set out the points of law as certified.

    48.  The appellant's trial ultimately commenced on 1 September 2003 but, on 25 September, was permanently stayed (on abuse of process grounds which are somewhat obscure and in any event unrelated to the present appeal) when the appellant was released from custody.

    49.  In the result, the appellant was in custody from his arrest on 6 December 2001 until his eventual release on 25 September 2003, a total of some 22 months, the last 16 of which followed the expiry of the custody time limit. During this time he dispensed with his lawyers and then had them reinstated on no fewer than four occasions, two of which at least caused delay. A further five months' delay was caused by the appellant's decision to reject the offer of trial in January 2003 in favour of trial in June 2003 to suit his counsel's convenience. As to why the court on 7 June 2002 "was not satisfied that the prosecution had acted with all due diligence and expedition in relation to disclosure" and so refused to extend the custody time limit, your Lordships have no copy of the transcript or record of the hearing that day and no information whatever as to how much delay there had been or in regard to what documents or in what circumstances.

    50.  So much for the facts. The appellant submits that no further details are required. It is his essential argument that once, as here, the court has refused to extend a custody time limit because of the prosecution's failure to act "with all due diligence and expedition" within the meaning of section 22(3)(b) of the 1985 Act, the court cannot refuse bail without thereby violating article 5(3). To understand the argument it is necessary now to turn to the Strasbourg cases focusing on the permissible length of pre-trial detention. The line of authority starts with the court's decision in Stögmüller v Austria (1969) 1 EHRR 155 where the court, contrasting the stipulation in article 6(1)—the general requirement for a hearing of any proceedings, civil or criminal, "within a reasonable time"—with that in article 5(3)—the requirement for "trial within a reasonable time" or "release pending trial"—said this: (para 5):

    "Article 5(3), for its part, refers only to persons charged and detained. It implies that there must be special diligence in the conduct of the prosecution of the cases concerning such persons. Already in this respect the reasonable time mentioned in this provision may be distinguished from that provided for in article 6."

    51.  That was the first reference in the Strasbourg cases to "special diligence". A more recent and developed statement of the principle appears in Punzelt v Czech Republic (2001) 33 EHRR 49, at para 73:

    "The court reiterates that the reasonableness of the length of detention must be assessed in each case according to its special features. Continued detention may be justified in a given case only if there are clear indications of a genuine public interest which, notwithstanding the presumption of innocence, outweighs the right to liberty. . . . The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The court must then establish whether the other grounds given by the judicial authorities continues to justify the deprivation of liberty. Where such grounds were 'relevant' and 'sufficient', the court must also ascertain whether the competent national authorities displayed 'special diligence' in the conduct of the proceedings."

    52.  The appellant emphasises that last sentence and the requirement, as a precondition of the accused's continuing lawful detention, not only of relevant and sufficient grounds but also that the competent national authorities (the state and the prosecution) have displayed "special diligence" in the conduct of the proceedings.

    53.  This approach is, of course, mirrored in the two limbs of section 22(3) of the 1985 Act, the requirement that the prosecution prove (a) a "good and sufficient cause" for the proposed extension of the custody time limit (amended in 1998 to specify in sub-paragraphs (i) and (ii) two specific examples of such good and sufficient cause), and (b) that it has acted "with all due expedition" (amended in 1998 to introduce the requirement that it has acted too with "all due diligence").

    54.  That it was necessary to introduce custody time limits under the 1985 Act and not merely apply the Bail Act was a point made by Lord Bingham of Cornhill CJ in R v Manchester Crown Court, Ex p McDonald [1999] 1 WLR 841, 845-846:

    "If the law ended at that point [simply with the Bail Act] it would manifestly afford inadequate protection to unconvicted defendants, since a person could, if the Bail Act conditions were satisfied, be held in prison awaiting trial indefinitely, and there would be no obligation on the prosecuting authority to bring him to trial as soon as reasonably possible. It was no doubt to rectify that defect that Parliament [introduced the 1985 Act]."

    55.  At p 847 Lord Bingham turned to consider section 22(3)(b):

    "To satisfy the court that this condition is met the prosecution need not show that every stage of preparation of the case has been accomplished as quickly and efficiently as humanly possible. That would be an impossible standard to meet, particularly when the court which reviews the history of the case enjoys the immeasurable benefit of hindsight. Nor should the history be approached on the unreal assumption that all involved on the prosecution side have been able to give the case in question their undivided attention. What the court must require is such diligence and expedition as would be shown by a competent prosecutor conscious of his duty to bring the case to trial as quickly as reasonably and fairly possible. In considering whether that standard is met, the court will of course have regard to the nature and complexity of the case, the extent of preparation necessary, the conduct (whether co-operative or obstructive) of the defence, the extent to which the prosecutor is dependent on the co-operation of others outside his control and other matters directly and genuinely bearing on the preparation of the case for trial."

    56.  Lord Bingham returned to the consideration of section 22(3)(b) in R v Leeds Crown Court, Ex p Bagoutie, 31 May 1999 (quoted by Lord Woolf CJ in R (Gibson) v Winchester Crown Court [2004] 1 WLR 1623, 1632-1634 with regard to the question whether any lack of due diligence had to be causative of delay). Lord Bingham said this at para 14 of Ex p Bagoutie:

    "The court made plain in Ex p McDonald, as indeed is plain on the face of the statute, that when seeking an extension or a further extension of the custody time limit the Crown must show that there is good and sufficient [reason] for making the extension and that it has acted with all due expedition. What, however, was not made plain in Ex p McDonald (because the question did not arise) is that these two provisions are in my judgment linked. . . . It is in the ordinary way the business of the prosecution to be ready. If therefore the Crown is seeking an extension of the time limit it must show that the need for the extension does not arise from lack of due expedition or due diligence on its part. It seems clear to me, however, that the requirement of due expedition or due diligence or both is not a disciplinary provision. It is not there to punish prosecutors for administrative lapses; it is there to protect defendants by ensuring that they are kept in prison awaiting trial no longer than is justifiable. That is why due expedition is called for. The court is not in my view obliged to refuse the extension of a custody time limit because the prosecution is shown to have been guilty of avoidable delay where that delay has had no effect whatever on the ability of the prosecution and the defence to be ready for trial on a predetermined trial date."

    57.  Such, therefore, is the approach required by domestic law to the extension of custody time limits: the prosecution is to be judged by realistic, not impossible, standards and it should not in any event be refused an extension unless its lack of due diligence and expedition has in fact delayed the trial date.

    58.  It follows, submits the appellant, that if because of section 22(3)(b) the court has refused to extend the custody time limit, the competent national authorities will necessarily have been shown to have failed in their obligation to display "special diligence" in the conduct of the proceedings so that the continued detention of the accused in custody would be unlawful under article 5(3).

    59.  The strength of the appellant's argument lies not, of course, in the detention exceeding the specified custody time limit: as Lord Bingham observed in Ex p McDonald at p 850: "the term of 112 days prescribed by the regulations imposes what is, by international standards, an exacting standard" (as too, no doubt, is 182 days), although, of course, that period is repeatedly extendable so long only as the requirements of section 22(3) are satisfied. Rather it lies in the marked similarity between the language of section 22(3)(b) (particularly as amended to include the requirement for due diligence) and that of the Strasbourg jurisprudence—in the same way that Strasbourg's reference to "relevant" and "sufficient" grounds is akin to the expression "good and sufficient cause" in section 22(3)(a); and in the purpose of these twin requirements under domestic law being just the same as under article 5(3): "to protect defendants by ensuring that they are kept in prison awaiting trial no longer than is justifiable" (Lord Bingham in Ex p Bagoutie—see above). Add to that the approach to section 22(3)(b) indicated by the domestic authorities and, submits the appellant, there is simply no room for concluding that the refusal of an extension under that provision would not inevitably result in a Strasbourg decision that continued detention thereafter was unlawful. This is a serious argument and it cannot be lightly dismissed.

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