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

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    60.  Mr Emmerson contends in response that there is no automatic equation between a lack of due diligence such as may prompt a refusal to extend the custody time limit and a breach of the reasonable time guarantee in article 5(3). This, he submits, is illustrated by the judgment of the European Court of Human Rights in Contrada v Italy (92/1997/876/1088), Judgment 24 August 1998. Rejecting a complaint under article 5(3) the court (para 67) said this:

    "The right of an accused in detention to have his case examined with particular expedition must not hinder the efforts of the courts to carry out their tasks with proper care . . . In the instant case, with the exception of the analysis of the data relating to Mr Contrada's mobile telephones, which could and should have been carried out earlier, and the excessive workload referred to by the trial court . . . , the court sees no particular reason to criticise the relevant national authorities' conduct of the case, especially as, when the maximum periods of detention pending trial were extended, the trial court offered to increase the rate of the hearings, but the defence declined."

    The court's reference there to "particular expedition" reflects the requirement for "special diligence" in an article 5 (3) (as opposed to an article 6(1) case.

    61.  Similarly, in Grisez v Belgium (2003) 36 EHRR 854, although the court held that "the medical experts did actually cause a certain amount of delay in the conduct of the proceedings," it rejected (para 53) the complaint under article 5(3):

    "[T]he delay due to the medical reports, although improper, does not in itself provide a sufficient basis for a finding that there was a violation of article 5(3) of the Convention. The total length of the detention pending trial in this case—two years, three months and nineteen days—does not appear excessive in view of the seriousness of the charges and the number of matters requiring investigation."

    62.  What these cases demonstrate, submits Mr Emmerson, is that even where the European Court of Human Rights identifies a lack of due diligence which is causative of delay, it will not necessarily find a violation of article 5(3)—although in such circumstances our own courts would be likely to refuse an extension of the custody time limit.

    63.  Mr Emmerson's argument is in my opinion correct. By the very nature of things, the Strasbourg Court will be looking at the case in a different way from the domestic court, in particular from a longer and wider perspective. Strasbourg will have the whole picture before it and will take an overall view as to whether the reasonable time guarantee has been exceeded. Grisez illustrates the point well: the ultimate question addressed by the court was whether "the total length of the detention pending trial appear[ed] excessive". So too in Contrada: the court took account of the trial court's post-delay offer to increase the rate of the hearings (akin perhaps to the offer of a January 2003 trial date in the present case, similarly declined). The domestic court, by contrast, is inevitably having to decide a much narrower question and within a shorter time-frame. And it is doing so within the strict confines of section 22(3) which, despite the marked similarity between its language and that used in Strasbourg, in fact imposes a more rigid formula for the extension of custody time limits than Strasbourg does with regard to the reasonable time guarantee under article 5(3). For my part I would not expect there to be many cases where, as here, bail is refused notwithstanding the court's refusal to extend the custody time limit. But I conclude that there is no necessary inconsistency between the two and that article 5(3) is not necessarily thereby breached. Nor, in my judgment, is there any other reason for thinking that this appellant was wrongly refused bail: on the contrary, the case for his continued detention in custody appears to have been a strong one.

    64.  There is one other aspect of the second issue which I would briefly touch on. Since the legislation itself expressly contemplates that bail may be refused to section 25 defendants even where their custody time limit has expired, it might have been said that, even assuming the refusal of bail in such circumstances necessarily involves a breach of article 5(3), section 6(2) of the Human Rights Act would preclude a domestic judgment to that effect—consider, for example, cases like R v Kansal (No 2) [2002] 2 AC 69. Theoretically, however, the appellant's argument, even if correct, would still leave some scope for section 25's application (and, more particularly, for the application of regulation 6(6) of the 1987 Regulations (as amended)), namely in those cases where the custody time limit expires not because the prosecution has been refused an extension on one or other of the section 22(3) grounds, but rather because it has neglected to make the necessary application for an extension in the first place. It might, therefore, have been possible to conclude that, despite the evident intention of Parliament, section 25 was not after all to operate in cases where an application to extend the custody time limit was refused. For the reasons given earlier, however, in my judgment the point does not in the event arise.


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