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You are here: BAILII >> Databases >> The Law Commission >> Bail and the Human Rights Act 1998 [2001] EWLC 269 (20 June 2001) URL: http://www.bailii.org/ew/other/EWLC/2001/269.html Cite as: [2001] EWLC 269 |
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Item 10 of the Seventh Programme of Law Reform: Criminal Law
Laid before Parliament by the Lord High Chancellor pursuant to section 3(2) of the Law Commissions Act 1965
Ordered by The House of Commons to be printed
20 June 2001
LONDON: The Stationery Office
£ .
HC 7
The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.
The Law Commissioners are:
The Honourable Mr Justice Carnwath CVO, Chairman
Professor Hugh Beale
Mr Charles Harpum
Professor Martin Partington
Judge Alan Wilkie QC
The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.
The terms of this report were agreed on 23 May 2001.
The text of this report is available on the Internet at:
http://www.lawcom.gov.uk
CONTENTS
| Paragraph | |
| PART I: INTRODUCTION AND OVERVIEW | |
| The scope of this report | 1.2 |
| The Human Rights Act 1998 | 1.5 |
| Our approach | 1.9 |
| Applying the HRA to the English law of bail | |
| Section 3: The duty to interpret legislation as Convention-compatible | 1.12 |
| Reading in | 1.20 |
| Reading down | 1.25 |
| Section 6: Public authorities must not act incompatibly with the Convention rights | 1.28 |
| Section 2: Interpreting Convention rights | 1.32 |
| The right to damages under the HRA | 1.37 |
| The structure of this report | 1.40 |
| Our main conclusions | 1.46 |
| PART II: THE SUBSTANTIVE RIGHTS UNDER ARTICLE 5 | |
| The purpose of Article 5 | 2.6 |
| Article 5(1) | |
| "Liberty and security of person" | 2.8 |
| "Procedure prescribed by law" and "lawful arrest or detention" | 2.9 |
| Article 5(1)(c) | |
| "Effected for the purpose of bringing him before … " | 2.10 |
| "The competent legal authority" | 2.13 |
| "Reasonable suspicion" | 2.15 |
| Article 5(3) | |
| "Promptly" | 2.16 |
| "A judge or other officer authorised by law to exercise judicial power" | 2.19 |
| "Trial within a reasonable time or release pending trial" | 2.21 |
| Trial within a reasonable time | 2.23 |
| Right to release pending trial | 2.26 |
| Detention must be necessary | 2.27 |
| Detention must be for a legitimate purpose | 2.28 |
| How does English law measure up? | 2.32 |
| "Release may be conditioned by guarantees to appear for trial" | 2.35 |
| Conclusions | 2.37 |
| Article 5(1)(b) | 2.39 |
| The first limb of Article 5(1)(b): Is a bail condition a "lawful order of a court"? | 2.43 |
| The second limb of Article 5(1)(b): Is a bail condition an "obligation prescribed by law"? | 2.49 |
| Our view of the relevance of Article 5(1)(b) to bail | 2.51 |
| Article 5(4) | 2.52 |
| PART III: EXCEPTIONS TO THE RIGHT TO BAIL (1): THE RISK OF OFFENDING ON BAIL | |
| The consultation paper | 3.2 |
| Consultation responses | 3.7 |
| Conclusions | 3.9 |
| PART IV: EXCEPTIONS TO THE RIGHT TO BAIL (2): DEFENDANT ON BAIL AT THE TIME OF THE ALLEGED OFFENCE | |
| The consultation paper | 4.2 |
| Analysis of responses | 4.5 |
| Our views | 4.6 |
| Conclusion | 4.10 |
| PART V: EXCEPTIONS TO THE RIGHT TO BAIL (3): FOR THE DEFENDANT'S OWN PROTECTION | |
| The consultation paper | 5.2 |
| Consultation responses | 5.6 |
| Our views | 5.9 |
| PART VI: EXCEPTIONS TO THE RIGHT TO BAIL (4): LACK OF INFORMATION | |
| The Convention requirements | |
| Detention because of insufficient information | 6.4 |
| Insufficient information attributable to the dilatoriness of a state body | 6.7 |
| Our views | |
| The scope of paragraph 5 and its compatibility with the Convention | 6.8 |
| Where lack of information is attributable to the dilatory conduct of a state body | 6.11 |
| Conclusion | 6.13 |
| PART VII: EXCEPTIONS TO THE RIGHT TO BAIL (5): ARREST UNDER SECTION 7 | |
| Arrest under section 7 of the Bail Act 1976 | |
| Arrest for absconding | 7.1 |
| Arrest for breach, or anticipated breach, of a bail condition | 7.3 |
| The power to refuse bail to defendants arrested under section 7(3) | 7.6 |
| The compatibility of section 7(5) proceedings with the ECHR | |
| The Havering Magistrates case | 7.8 |
| Section 7(5) and the requirements of Article 6 | |
| Do proceedings under section 7(5) amount to charging the arrested person with a criminal offence? | 7.11 |
| Section 7(5) and the requirements of Articles 5 and 6 | 7.12 |
| Nature and purpose of proceedings under section 7(5) | 7.13 |
| The standard of proof required | 7.14 |
| The evidence the justices should hear and take into account | 7.15 |
| Disclosure | 7.17 |
| The compatibility of paragraph 6 of Part I and paragraph 5 of Part II of Schedule 1 with the ECHR | 7.18 |
| The inter-relationship between section 7(5) and paragraphs 6 of Part I and 5 of Part II | 7.20 |
| Other bail hearings concerning defendants who have been arrested under section 7 | 7.23 |
| The consultation paper | 7.24 |
| The consultation responses | 7.25 |
| The Havering Magistrates case | 7.26 |
| Conclusion and recommendation | 7.32 |
| PART VIII: EXCEPTIONS TO THE RIGHT TO BAIL (6): SECTION 25 OF THE CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994 | |
| The background | 8.3 |
| The original section 25 and Article 5 | 8.4 |
| The 1998 amendment | 8.5 |
| The compatibility of section 25 (as amended) with the ECHR | |
| The consultation paper | 8.7 |
| Do statutory presumptions always lead to arbitrary decision-making? | 8.12 |
| Can section 25 be interpreted compatibly with the Convention? | 8.17 |
| Analysis of responses | |
| Respondents who supported our provisional conclusions that section 25 was capable of being construed compatibly with the Convention but, in its present form, was liable to be misconstrued | 8.22 |
| Respondents who doubted whether section 25 was capable of being construed compatibly with Article 5 | 8.23 |
| Respondents favouring the repeal of section 25 for reasons of policy and principle | 8.24 |
| Respondents who believed that section 25 was not liable to be misconstrued in a manner that was not compatible with Article 5 | 8.25 |
| Respondents supporting section 25 for reasons of policy and principle | 8.27 |
| Our views | |
| Arguments of policy and principle | 8.28 |
| Is section 25 capable of being interpreted and applied compatibly with the Convention? | 8.29 |
| The Convention-compatibility of reverse onus presumptions – the importance of public policy considerations | 8.31 |
| What will constitute "exceptional circumstances"? | 8.39 |
| Conclusion | 8.45 |
| PART IX(A): CONDITIONAL BAIL AS AN ALTERNATIVE TO CUSTODY | |
| The ECHR | 9A.2 |
| The compatibility of English law with the ECHR | |
| The role of conditions in the powers of courts to refuse bail | |
| The powers of courts to refuse bail | 9A.6 |
| Part I of Schedule 1: Defendants accused of imprisonable offences | 9A.7 |
| Part II of Schedule 1: Defendants accused of non-imprisonable offences | 9A.9 |
| The powers of courts to impose bail conditions | 9A.10 |
| Analysis | 9A.14 |
| The powers of the police to refuse bail and the availability of conditions | |
| Police powers to refuse bail | 9A.21 |
| Police powers to impose bail conditions | 9A.23 |
| Conclusion | 9A.25 |
| Recommendation | 9A.27 |
| PART IX(B): CONDITIONAL BAIL AS AN ALTERNATIVE TO UNCONDITIONAL BAIL | |
| Convention principles | |
| The purpose of a condition | 9B.2 |
| A condition must be necessary | 9B.3 |
| The compatibility of English law with the ECHR | 9B.4 |
| The purposes for which conditions may be imposed | 9B.6 |
| Section 3(6)(d) | 9B.7 |
| Section 3(6)(e) | 9B.8 |
| Section 3(6A) | 9B.9 |
| The relevance of Article 5(1)(b) | 9B.10 |
| Ancillary conditions | 9B.15 |
| The requirement that conditions be necessary | |
| Necessary for the purpose | 9B.19 |
| Section 3(6A) | 9B.23 |
| Section 11(3) of the Powers of Criminal Courts (Sentencing) Act 2000 | 9B.26 |
| The level of risk | 9B.30 |
| Consultation responses | 9B.32 |
| Conclusion | 9B.35 |
| Guidance relating to decisions to impose conditional bail | 9B.36 |
| PART X: REASONS AND REASONING IN BAIL DECISIONS | |
| The Convention | |
| Grounds and reasons | 10.2 |
| The importance of reasons | 10.3 |
| The nature of the requirement for reasons | 10.5 |
| The standard of reasoning required | 10.6 |
| Reasons must be "concrete", not "abstract" or "stereotyped" | 10.7 |
| Reasons must be consistent with, and sustained by, the facts of the case | 10.8 |
| Reasons must take into account the counter-arguments put forward by the defendant | 10.10 |
| Reasons must avoid drawing automatic inferences | 10.11 |
| The underlying rationale: proper exercise of judicial discretion | 10.12 |
| English law and practice | |
| The Bail Act scheme and practice in the magistrates' courts | 10.15 |
| Administrative law principles | 10.17 |
| The recording of the grounds and reasons for not granting bail | |
| The use of "tick box" forms | 10.18 |
| Consultation responses | 10.21 |
| Efficient and adequate recording practices | |
| Standard forms | 10.24 |
| Grounds | 10.26 |
| Considerations and reasons | 10.27 |
| Conclusion | 10.29 |
| PART XI: THE RIGHT TO CHALLENGE THE LEGALITY OF PRE-TRIAL DETENTION | |
| Article 5(4): the right to take court proceedings to challenge the legality of pre-trial detention | 11.1 |
| The relationship between Article 5(3) and Article 5(4) | 11.3 |
| Procedural safeguards required of a court hearing under Article 5(4) | 11.6 |
| Participation by the defendant | 11.9 |
| Consultation responses relating to participation by the defendant | 11.11 |
| Our views | 11.13 |
| An adversarial hearing with each party enjoying equality of arms | 11.15 |
| Does the court need to hear sworn evidence? | 11.17 |
| Consultation responses | 11.23 |
| Our views | 11.25 |
| Disclosure | 11.29 |
| Consultation responses relating to disclosure | 11.31 |
| Our views | 11.33 |
| Is there a requirement that the hearing be held in public? | 11.35 |
| Consultation responses relating to the question of whether bail hearings need to be held in public | 11.38 |
| Our views | 11.40 |
| Conclusion | 11.41 |
| PART XII: REPEATED APPLICATIONS | |
| The requirements of Article 5(4) | |
| The right of periodic challenge | 12.2 |
| When must repeated challenges be heard? | 12.4 |
| Does English law and practice comply with these requirements of Article 5(4)? | 12.5 |
| Are bail hearings sufficiently frequent? | 12.6 |
| Conclusion | 12.9 |
| Does the court conduct an effective review of the lawfulness of detention?: repetition of arguments previously heard | 12.10 |
| Our views | |
| The consultation paper | 12.17 |
| Consultation responses | 12.20 |
| Conclusions | 12.22 |
| Judges and magistrates hearing repeated bail applications | 12.25 |
| Conclusion | 12.26 |
| PART XIII: SUGGESTED GUIDANCE FOR BAIL DECISION-TAKERS | Part XIII |
| PART XIV: CONCLUSION AND RECOMMENDATIONS | Part XIV |
| APPENDIX A: EXTRACTS FROM THE BAIL ACT 1976 | Appendix A |
| APPENDIX B: ARTICLES 5 & 6 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS | Appendix B |
| APPENDIX C: ORGANISATIONS AND INDIVIDUALS WHO COMMENTED ON CONSULTATION PAPER NO 157 | Appendix C |
In this report we use the following abbreviations:
ACPO: Association of Chief Police Officers of England, Wales and Northern Ireland
CPS: Crown Prosecution Service
DTI: Department of Trade and Industry
ECHR: European Convention for the Protection of Human Rights and Fundamental Freedoms
ECtHR: European Court of Human Rights
HRA: Human Rights Act 1998
MCA 1980: Magistrates’ Court Act 1980
NACRO: National Association for the Care and Resettlement of Offenders
PACE: Police and Criminal Evidence Act 1984
In this report, wherever possible we give references to judgments of the European Court of Human Rights in both the official series of reports and the European Human Rights Reports, a commercial English series (published by Sweet and Maxwell). Up to 1996, the relevant official publication was called “Series A (Judgments and Decisions)”. This we cite in the form: Brogan v UK A 145-B (1988); that is Series A (Judgments and Decisions), volume 145, case B (ie the second case reported in that volume; if there is no letter, the volume contains a single judgment). The year is that of judgment. After 1996, the official series became “Reports of Judgments and Decisions”. Reports in this series are cited in the form: Assenov v Bulgaria 1998-VIII; that is the 1998 volume, part VIII.
References within a report are given to paragraph rather than page numbers. In more recent reports, all paragraphs in a judgment are numbered in a single series. In earlier cases, only the paragraphs of the judgment proper were numbered, not the preparatory matter. In some of these earlier cases, there is a separate number sequence for each section of the report (“The procedure”; “As to the facts” etc). Our paragraph reference is always to the paragraph number in the judgment proper (headed “Judgment” or “As to the law”), unless we state otherwise.
Until the Eleventh Protocol to the ECHR came into force on 1 November 1998, applications to the Convention organs were first subject to an admissibility decision by the European Commission on Human Rights. If the application was found to be admissible, the Commission would prepare a report setting out the facts of the case, as it found them, and giving its opinion on the merits of the application. As with the Court, individual members of the Commission sometimes gave dissenting opinions. Where we refer to decisions and reports of the Commission, we cite where they can be found in the official series where possible. That series is called “Decisions and Reports” and is published by the Council of Europe. The citations we have used are in the form Schertenlieb v Switzerland (1980) 23 DR 137 (Commission decision); that is volume 23, page 137.
Where we refer to the opinion of the Commission in respect of an application that has subsequently been the subject of a judgment by the Court, however, we refer to the report of the judgment, indicating that the paragraphs we refer to are from the opinion. Both the official series of the Court’s reports and the reports of judgments in the European Human Rights Reports contain the full or partial opinion of the Commission which was provided in the Commission’s report. The Eleventh Protocol put in place a new procedure in which the Court, rather than the Commission, decides the admissibility of a case. As of 30 October 1999 all applications were transferred to the Court. The application numbers and dates of unreported judgments are given. Transcripts are obtainable on the European Court of Human Rights website (http://www.echr.coe.int).
