C.C. v. THE UNITED KINGDOM
Doc ref: 32819/96 • ECHR ID: 001-4050
Document date: December 1, 1997
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AS TO THE ADMISSIBILITY OF
Application No. 32819/96
by C. C.
against the United Kingdom
The European Commission of Human Rights sitting in private on
1 December 1997, the following members being present:
Mr S. TRECHSEL, President
Mrs G.H. THUNE
Mrs J. LIDDY
MM E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 June 1996 by
C. C. against the United Kingdom and registered on 29 August 1996 under
file No. 32819/96;
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
1 May 1997 and the observations in reply submitted by the
applicant on 18 July 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Jamaican citizen who was born on 29 December
1926. He is currently in prison in Brixton and is represented by Philip
Leach, a solicitor practising in London.
A. Particular facts of the case
The facts of the case, as submitted by the parties, may be
summarised as follows. In 1987 the applicant was convicted of
manslaughter and sentenced to 4 years imprisonment.
On 2 January 1996 the applicant was arrested by the police on the
basis of the alleged offence of attempted rape of his next door
neighbour. The applicant maintained that he had sexual intercourse with
the woman with her consent. He was brought before the Magistrates'
Court on 4 January 1996. While the applicant had instructed his
solicitor to apply for bail on his behalf, the Magistrate would not
consider a bail application in view of section 25 of the Criminal
Justice and Public Order Act 1994. Accordingly, the applicant was
remanded in custody by the Magistrate.
Initially, the applicant was held at Wandsworth prison and he was
then transferred to Brixton prison on 9 May 1996. He claims that the
pre-trial prison regime was difficult in light of his age and failing
health, referring to chronic bronchitis which became worse, to high
blood pressure and to his pension having been stopped. He also claims
that for the first eight days in Wandsworth he was confined to his cell
for 23 hours each day and that, subsequently, he agreed to a suggestion
from the prison authorities that (as a person charged with attempted
rape) he should be segregated from other prisoners.
The applicant was convicted of attempted rape and of assault
occasioning actual bodily harm in October 1996 and on 17 January 1997
he was sentenced, the trial court deducting the period of his pre-trial
detention from the sentence imposed pursuant to section 67 of the
Criminal Justice Act 1967. On 11 July 1997 the Court of Appeal rejected
his appeal against sentence.
B. Relevant domestic law and practice
The period of pre-trial detention is deducted from the sentence
subsequently handed down pursuant to section 67 of the Criminal Justice
Act 1967.
The Bail Act 1976 ("the 1976 Act") provides that an accused shall
be granted bail unless the court is satisfied that there are
substantial grounds for believing that the defendant, if released on
bail, would fail to surrender to custody, commit an offence while on
bail or interfere with witnesses or otherwise obstruct the course of
justice, whether in relation to himself or any other person (paragraph
2 of Schedule 1 to the 1976 Act).
Pursuant to paragraph 9 of Schedule 1 of the 1976 Act, in taking
the above decision, the court shall have regard to such of the
following considerations, as well as to any other considerations, as
appear to that court to be relevant:
- the nature and seriousness of the offence or default (and the
probable method of dealing with the defendant for it);
- the character, antecedents, associations and community ties of
the defendant;
- the defendant's record as regards the fulfilment of his
obligations under previous grants of bail in criminal
proceedings; and
- except in the case of a defendant whose case is adjourned for
inquiries or a report, the strength of the evidence of his having
committed the offence or having defaulted.
According to paragraph 9A of that schedule, if a defendant (who
has been charged with murder, manslaughter, rape, attempted murder and
attempted rape) is granted bail and representations have been made as
regards the matters mentioned in paragraph 2 of Schedule 1 to the 1976
Act, the court must state its reasons for granting bail and cause those
reasons to be included in the record of the proceedings.
Section 25 of the Criminal Justice and Public Order Act 1994
("the 1994 Act") came into force on 10 April 1995 and, insofar as
relevant, provides as follows:
"1. 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.
2. This section applies, subject to subsection 3 below, to the
following offences, ... -
(a) murder;
(b) attempted murder;
(c) manslaughter;
(d) rape and
(e) attempted rape.
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 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."
Section 22 of the Prosecution of Offences Act 1985 enables
regulations to be made providing for maximum periods during which an
accused may be detained in custody during the preliminary stages of
criminal proceedings. The Prosecution of Offences (Custody Time Limits)
Regulations 1987 fixed such periods and was amended by the Prosecution
of Offences (Custody Time Limits) (Amendment) Regulations 1995 and by
section 71 of the Criminal Procedure and Investigations Act 1996. These
regulations, as amended, provide that the maximum period a person may
be detained between his first appearance at a Magistrates' Court and
his committal for trial is 70 days and that the maximum period of
detention between committal and the start of the trial is 112 days. In
each case, the period may be extended by a court on the application of
the prosecution only if the court is satisfied that there is good and
sufficient cause for doing so and that the prosecution has acted with
all due expedition. While these provisions apply even in a case to
which section 25 of the 1994 Act applies, in such a case bail cannot
be granted on the expiry of the time-limit - the trial must commence
on or before the expiry of the time-limit or any extension thereof.
COMPLAINTS
1. The applicant complains that the Magistrate, who would normally
consider the particular circumstances of each case and decide to grant
bail or not, had no such power in his case since all discretion was
taken away by section 25 of the 1994 Act. Accordingly, he was not
"brought promptly before a judge or other officer authorised by law to
exercise judicial power" and had no "right to release pending trial"
within the meaning of Article 5 para. 3 of the Convention. The
applicant also invokes Article 5 para. 5 of the Convention in this
respect.
2. The applicant also complains that the provisions of Article 25
of the 1994 Act constitute a violation of his right to be presumed
innocent under Article 6 para. 2 of the Convention and imposed a
heavier penalty on him for manslaughter than was initially applicable
at the time of his conviction for that offence contrary to Article 7
of the Convention because section 25 led to automatic pre-trial
detention once he was subsequently charged.
3. The applicant further complains under Article 14 that section 25
of the 1994 Act discriminates against him because, as a person
previously convicted of manslaughter, he had automatically no right to
bail whereas those convicted of other serious offences have the right
to have the particular circumstances of their case considered by a
Magistrate when the issue of bail arises pursuant to a subsequent
charge.
4. Finally, the applicant complains under Article 13 of the
Convention that he has no effective domestic remedy as regards the
alleged violations of Articles 5, 6, 7 and 14 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 June 1996 and was registered
on 29 August 1996.
On 25 February 1997 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the complaints under Article 5 paras. 3 and 5,
under Article 14 in conjunction with Article 5 para. 3 and under
Article 13 in connection with that complaint under Article 14 of the
Convention.
The Government's observations were received on 6 May 1997. The
applicant's observations in response were received on 21 July 1997,
after one extension of the time-limit fixed for that purpose.
THE LAW
The applicant complains that section 25 of the 1994 Act took away
all power of the Magistrates' Court to decide whether, in accordance
with certain legal criteria and in view of the particular facts of his
case, he should have been released pending trial. He invokes Article 5
para. 3 together with Article 6 para. 2 and Article 7
(Art. 5-3+6-2, 5-3+7) of the Convention in this respect. He further
claims that he has no right to compensation or to an effective domestic
remedy in these respects and he invokes Article 5 para. 5 and Article
13 (Art. 5-5, 13) of the Convention. Furthermore, he considers section
25 discriminatory and in breach of Article 14 (Art. 14) since it
amounts to an unjustifiable difference in treatment of certain
categories of accused.
1. Article 25 (Art. 25) of the Convention
The Commission notes that the period of the applicant's pre-trial
detention was deducted from his sentence pursuant to section 67 of the
Criminal Justice Act 1967. The Commission does not consider that this
constitutes an acknowledgment of any violation in that respect and,
accordingly, the applicant can claim to be a victim of a violation of
the Convention (see, for example, Eur. Court HR, Wassink v. the
Netherlands judgment of 27 September 1990, Series A no. 185-A, p. 14,
para. 38).
2. Articles 5 paras. 3 and 5, 13 and 14 (Art. 5-3, 5-5, 13, 14) of
the Convention
Article 5 paras. 3 and 5 (Art. 5-3, 5-5), insofar as relevant,
reads as follows:
"3. Everyone arrested or detained in accordance with the
provisions of paragraph 1.c of this Article 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 period of time or to release pending trial. ...
5. Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
Article 13 (Art. 13) of the Convention reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
Article 14 (Art. 14) of the Convention reads as follows:
"The enjoyment of the rights and freedoms set forth in the
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
In the first place, the Government submit that, prior to section
25 of the 1994 Act coming into force, the courts only rarely granted
bail to a person accused of a serious crime who had a previous
conviction for an earlier serious crime. At the same time the
Government point out that the purpose of section 25 is to avoid an
unacceptable possibility of the relevant court making an error of
judgment in its assessment of risk in a case falling within the
circumstances of section 25 with the serious consequences for the
victims of the alleged crime or for the proper administration of
justice that would entail.
Secondly, the Government also argue that "trial within a
reasonable time" and "release pending trial" are alternatives. It is
submitted that nothing in Article 5 para. 3 (Art. 5-3) prohibits a
State from deciding that, in particular circumstances, it would be an
unacceptable risk to release such a defendant so long as that person
receives a speedy trial, it being noted that the applicant does not
contest that he was tried within a reasonable period of time.
Thirdly, the Government further consider, inter alia, that the
Magistrates' Courts remain the "judge or other officer authorised by
law to exercise judicial power" within the meaning of Article 5 para.
3 (Art. 5-3) in view of the remaining powers of those courts including
the power to consider at committal hearings whether there was
sufficient evidence to continue the proceedings and, if not, to dismiss
the case, to consider whether the accused has been properly charged and
treated and, if not, to consider whether to dismiss the case for abuse
of process and order release and to ensure that the trial takes place
"speedily" (the "remaining powers" of the Magistrates' Court). When
Parliament can require the Magistrates' Court to have regard to
specified substantive criteria when considering bail (and thereby
significantly reduce its discretion), it is consistent for Parliament
to determine that, in a limited category of cases, bail is
inappropriate so long as the accused retains the protection of the
remaining powers of the Magistrates' Court.
In any event, the United Kingdom Parliament is entitled to
conclude that it is appropriate to deny bail to a person accused of a
certain grave crime who has been previously convicted of such a grave
crime and who, in such circumstances, presents too substantial a risk
of re-offending, absconding, interfering with witnesses or otherwise
obstructing justice and so causing serious harm to others or to the
proper administration of justice.
As to the jurisprudence of the Court on Article 5 para. 3
(Art. 5-3) (certain cases having been referred to by the applicant in
his application) the Government submit, in particular, that those cases
concerned accused persons who did not have access to a court with a
power to order release in any circumstances or with the power to ensure
a speedy trial. None of the Court's cases on Article 5 para. 3
(Art. 5-3) were concerned with whether a State is entitled to deny bail
for persons in the circumstances outlined in section 25 where the
accused has the right of access to a Magistrates' Court with the
remaining powers outlined above. Moreover, the previous judgments of
the Court on Article 5 para. 3 (Art. 5-3) of the Convention were
concerned with examples of arbitrary detention and there is nothing
arbitrary about section 25 of the 1994 Act it being a carefully
considered and rational scheme advancing the purposes of section 25
outlined above. Even if it were possible to argue that the application
of section 25 may be unfair in some circumstances, there was nothing
arbitrary in the present case and it is not the function of the
Convention organs to consider section 25 in the abstract.
As regards the complaint under Article 5 para. 5 (Art. 5-5) of
the Convention, the Government maintain, in the first place, that there
has been no breach of Article 5 para. 3 (Art. 5-3) and, consequently,
no breach of paragraph 5 of Article 5 (Art. 5-5). In the alternative,
the Government argue that, since the applicant's pre-trial detention
was deducted from his sentence, the applicant had no right to
compensation.
As regards Article 14 of the Convention in conjunction with
Article 5 para. 3 (Art. 14+5-3), the Government refer to the Stubbings
judgment (Eur. Court HR, Stubbings v. the United Kingdom judgment of
22 October 1996, Reports of Judgments and Decision for 1996-IV, pp.
1506-07, para. 70) arguing that it is well within the State's margin
of appreciation to conclude that persons who have been previously
convicted of a grave offence should be differently treated for the
purposes of bail once they are accused of having committed another such
offence and that it would be inappropriate to grant bail in view of the
risks involved for the public and the proper administration of justice.
As regards Article 13 (Art. 13) of the Convention, the Government
submit that Article 13 (Art. 13) is not applicable since the
application does not involve any arguable complaints of breaches of the
Convention (Eur. Court HR, Boyle and Rice v. the United Kingdom
judgment of 27 April 1988, Series A no. 131). It is also argued that,
in any event, Article 13 (Art. 13) does not go so far as to guarantee
a remedy allowing a State's laws as such to be challenged before a
national authority on the grounds of being contrary to the Convention,
the Government citing the James and Others together with the Lithgow
and Others judgments (Eur. Court HR, James and Others v. the United
Kingdom judgment of 21 February 1986, Series A no. 98 and Lithgow and
Others v. the United Kingdom judgment of 8 July 1986, Series A no.
102).
Accordingly, the Government consider that these complaints are
inadmissible as manifestly ill-founded or, alternatively and insofar
as they are admissible, they do not disclose a violation of the
Convention.
The applicant comments, in the first place, on the Government's
submissions on the relevant domestic law and practice. He considers
that the Government's reference to the practice before section 25 of
the 1994 Act came into force implies that the courts did occasionally
grant bail to persons now falling within the scope of section 25. As
to the Government's outline of the purpose of section 25 (the avoidance
of judicial error in serious cases), the applicant points out that the
Government give no examples of such error, do not submit that such
errors were made in the past, conducted no relevant study in that
respect prior to the enactment of section 25 and could not give any
examples of judicial error when so requested during the debate on
section 25 in the House of Lords. Accordingly, the risk of judicial
error to which the Government refer is hypothetical and not a real
risk. Neither is there any analysis disclosed by the Government which
would indicate that those categories of offenders included within
section 25 are more likely to, for example, abscond. This renders
section 25, in addition to being hypothetical, arbitrary.
The Government's assertion that States are entitled to decide
that the release on bail of a certain category of persons would present
an unjustifiable risk to the public is, according to the applicant,
also illogical and indefensible. The Government appear to consider that
a previous serious conviction and a subsequent charge of a similar
offence is sufficient justification for section 25 of the 1994 Act but
the applicant points out that this assertion is made without any
research, evidence or any regard to the individual facts of the case.
It is a blanket approach that is indefensible when the fundamental
right to liberty is involved and where there exists a well-established
procedure by which courts assess the facts of each case in order to
decide to release on bail or not. Moreover, the Government imply,
without any evidence, that there is a causal link between section 25
defendants and a substantial risk on release.
The applicant also considers the Government's reference to time-
limits as regards pre-trial detention misleading. The time-limits are
easily and often extended, the arraignment is deemed to be the start
of the trial even though the trial proper may not take place for weeks
or months thereafter, bail cannot be granted in section 25 cases and
even where there is a clear breach of custody time-limits no claim for
unlawful imprisonment or release can be brought (Olotu v. Home Office
1996 No. 0117).
Secondly, and as to the Government's observations on the
admissibility and merits of his complaints, the applicant points out,
inter alia, that the Government's submission that trial within a
reasonable time or release are alternatives is not sustainable in view
of the Wemhoff judgment (Eur. Court HR, Wemhoff v. Germany judgment of
27 June 1968, Series A no. 7). On the contrary, the accused has the
right to a trial within a reasonable period of time and to a judicial
determination of the question of pre-trial detention. Furthermore, the
Government's suggestion that the remaining powers of the Magistrate
suffice for the purposes of Article 5 para. 3 (Art. 5-3) ignores the
requirements of that Article outlined in the Schiesser judgment (Eur.
Court HR, Schiesser v. Switzerland judgment of 4 December 1979, Series
A no. 34). The remaining powers are also not relevant to the question
at issue namely, the right to a judicial determination of the necessity
of pre-trial detention.
The applicant also takes issue with the Government's attempts to
distinguish the cases of the European Court of Human Rights on which
he relied in his application noting that the Court has never approved
automatic pre-trial detention for a class of accused without any regard
to their particular circumstances. Moreover, in the absence of any
research prior to its enactment and of any examples of judicial error,
the Government's assertion that section 25 is "carefully considered and
rational" requires further explanation. As to the Government's
submission about not considering the case in the abstract, the
applicant points out that his case is not about an abstract point - he
has certain rights under Article 5 para. 3 (Art. 5-3) as to a judicial
consideration of the need for his being detained pre-trial and he was
not afforded this possibility. It is therefore inappropriate for the
Government now to seek to second-guess what a court's decision would
have been had it not deprived the applicant of that judicial
determination and decision. In any event, the applicant submits that
he had a realistic chance of being granted bail.
Accordingly, the applicant submits that his complaints under
Articles 5 paras. 3 and 5, 13 and 14 (Art. 5-3, 5-5, 13, 14) are
admissible and give rise to a violation of those Articles of the
Convention.
In view of the relevant submissions of the applicant, the
Commission considers that the complaint under Article 14 is raised in
conjunction with Article 5 para. 3 (Art. 14+5-3) of the Convention.
Similarly, it considers that the complaint under Article 13
(Art. 13+5-3) has been raised in connection with Article 5 para. 3 and
with Article 14 (in conjunction with Article 5 para. 3 (Art. 14+5-3)).
In such circumstances and in light of the above submissions, the
Commission considers that the application raises serious issues under
Articles 5 paras. 3 and 5, 13 and 14 (Art. 5-3, 5-5, 13, 14) of the
Convention which require determination on the merits. It follows that
these complaints cannot be dismissed as manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No
other ground for declaring them inadmissible has been established.
3. Articles 6 para. 2 and 7, 13 and 14 (Art. 6-2, 7, 13, 14) of the
Convention
The applicant complains that the provisions of Article 25
(Art. 25) of the 1994 Act constitute a violation of his right to be
presumed innocent under Article 6 para. 2 (Art. 6-2) of the Convention
and imposed a heavier penalty on him for manslaughter than was
initially applicable at the time of his conviction for that offence
contrary to Article 7 (Art. 7) of the Convention because section 25 led
to automatic pre-trial detention once he was subsequently charged. The
applicant has also invoked Article 13 (Art. 13) in those respects as
well as Article 14 (Art. 14) of the Convention.
Article 6 para. 2 (Art. 6-2) reads as follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to the law."
Article 7 para. 1 (Art. 7-1) reads as follows:
"No one shall be held guilty of any criminal offence on account
of any act or omission which did not constitute a criminal
offence under national or international law at the time when it
was committed. Nor shall a heavier penalty be imposed than the
one that was applicable at the time the criminal offence was
committed."
The Government submit that Article 6 para. 2 (Art. 6-2) of the
Convention is concerned with the manner in which guilt is determined
at trial and not with the question of whether the accused should be
detained pending trial, a matter to be addressed under Article 5
(Art. 5) of the Convention. In any event, the applicant has not been
denied bail because of a presumption of guilt but because Parliament
has considered that it would be inappropriate for the public to run the
risk of further offences being committed or of an interference with the
proper administration of justice. As regards Article 7 (Art. 7) of the
Convention, the Government submit that pre-trial detention is not a
finding of guilt or indeed punishment in relation to a criminal offence
for the purposes of Article 7 (Art. 7) of the Convention.
The Commission considers that section 25 of the 1994 Act
constitutes an assessment by Parliament of the risk attaching to the
release on bail of a certain category of accused. This risk assessment
falls to be considered under Article 5 (Art. 5) of the Convention and
it does not give rise to an issue under Article 6 para. 2 (Art. 6-2)
of the Convention, the latter being concerned with the applicant's
guilt or innocence for the offence with which he was charged (mutatis
mutandis, No. 9167/80, Dec. 15.10.81, D.R. 26, p. 248, at p. 250).
As to Article 7 (Art. 7) of the Convention, the applicant argues
that the effect of section 25 of the 1994 Act is a retroactive increase
in the penalty for manslaughter. However, the Commission notes that the
penalty for manslaughter remains the same and, while section 25 of the
1994 Act means automatic pre-trial detention, this arises only in the
context of an alleged second offence. That subsequent pre-trial
detention relates to and is to be evaluated in the context of the
subsequent charge and Article 5 (Art. 5) of the Convention and it does
not give rise to an issue under Article 7 (Art. 7) of the Convention.
The applicant's complaints under Articles 6 para. 2 and 7
(Art. 6-2, 7) of the Convention are, accordingly, incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
Moreover, and insofar as the applicant raises Article 14 in
conjunction with Articles 6 para. 2 and 7 (Art. 14+6-2, 14+7), the
Commission notes its finding above, that the applicant's complaints do
not fall within the ambit of Articles 6 para. 2 or 7 (Art. 6-2, 7) of
the Convention in which case Article 14 (Art. 14) of the Convention is
not applicable (Eur. Court HR, Marckx v. Belgium judgment of 13 June
1979, Series A no. 31, pp. 15-16, para. 32). This complaint under
Article 14 (Art. 14) of the Convention is therefore also inadmissible
as incompatible ratione materiae with the provisions of the Convention.
As to the complaint under Article 13 (Art. 13), the Commission
considers, in view of its reasoning above, that the applicant does not
have an arguable claim as regards his complaints under Articles 6, 7
or 14 (Art. 6, 7, 14) (Eur. Court HR, Boyle and Rice v. the United
Kingdom judgment of 27 April 1988, Series A no. 131). This complaint
under Article 13 (Art. 13) of the Convention is therefore manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission,
by a majority,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaints about his automatic pre-trial detention,
about being discriminated against in that respect and about his
not having any right to compensation or any domestic remedy in
those respects; and
unanimously,
DECLARES INADMISSIBLE the remainder of the application
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission