Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30307/96

by B. H.

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 16 February 1996

by B.H. against the United Kingdom and registered on 27 February 1996

under file No. 30307/96;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

6 May 1997 and the observations in reply submitted by the

applicant on 9 July 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1960 and currently

resident in Northamptonshire. He is represented before the Commission

by Gordon Reed, a solicitor practising in Essex.

A. Particular facts of the case

The facts of the case, as submitted by the applicant, may be

summarised as follows. On 24 May 1993 the applicant was convicted of

manslaughter and sentenced to 4 years imprisonment. He was released

from prison on 17 July 1995.

On 29 August 1995 the applicant was arrested by the police and

charged with the rape of a woman, who was an acquaintance of the

applicant. The applicant maintained that he had consensual sexual

intercourse with the woman. He was brought before the Magistrates'

Court on 30 August 1995. The prosecution objected to bail on the basis

that the applicant might fail to surrender to custody and that he might

interfere with witnesses. The applicant's solicitor successfully

persuaded the court that there was no fear that the applicant would

fail to surrender to custody but claims that, mindful of the contents

of section 25 of the Criminal Justice and Public Order Act 1994, he did

not argue against the other ground raised by the prosecution as it was

largely academic.

The applicant was remanded in custody by the Magistrate on the

grounds that he was not entitled to bail pursuant to section 25 of the

1994 Act and that he might interfere with the course of justice having

regard to the nature and seriousness of the alleged offence. The

applicant's committal hearing took place on 11 October 1995 and his

trial took place between 11 and 14 March 1996. The applicant was

acquitted and released from custody.

B. Relevant domestic law and practice

Section 4 of the Bail Act 1976 as amended ("the 1976 Act")

provides that a person accused of a criminal offence shall be granted

bail except as stated in Schedule 1 to the 1976 Act. Paragraph 2 of

Schedule 1 provides that a defendant need not be granted bail if 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.

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 or

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 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

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 Criminal Justice and Public Order Act

1994. Accordingly, his detention until his trial was pre-ordained by

statute and he invokes Article 5 paras. 3 and 5 together with

Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 February 1996 and was

registered on 8 March 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 applicant's complaints under Article 5 of

the Convention.

The Government's observations were received on 6 May 1997 and the

applicant's observations in response were received on 9 July 1997,

those observations having been submitted within the respective time-

limits fixed for that purpose.

THE LAW

The applicant complains that section 25 of the Criminal Justice

and Public Order Act 1994 took away the power of the Magistrate to

consider, on the basis of certain criteria, the particular

circumstances of his case militating for or against his detention prior

to his trial. He invokes Article 5 paras. 3 and 5 together with

Article 13 (Art. 5-3+5-5+13) of the Convention which Articles read as

follows:

Article 5 (Art. 5)

"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 time or to release pending trial. Release may be

conditioned by guarantees to appear for 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)

"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."

1. Article 5 (Art. 5) of the Convention

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 courts 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 that the Magistrates'

Court 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 his 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.

The Government submit that 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 applicant's reliance in his application on the Ireland

v. the United Kingdom and the Schiesser cases (Eur. Court HR, Ireland

v. the United Kingdom judgment of 18 January 1978, Series A no. 25 and

Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34),

the Government submit, in particular, that those cases concerned

defendants 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. Neither case was concerned with whether a State is entitled to

deny bail for persons in the circumstances outlined in section 25 where

the defendant 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. The

Magistrates' Court found that there was reason to believe that the

applicant would interfere with witnesses and that bail should be

refused on that ground as well as on the basis of section 25 of the

1994 Act.

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 Magistrates' Court stated in the

present case that it would not have granted bail because of the risk

of the defendant interfering with witnesses, the applicant has no right

to compensation.

Accordingly, the Government consider that the complaints under

Article 5 (Art. 5) 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 notes, in the first place, the purpose of section

25 outlined by the Government but argues that the Government have not

provided sufficient justification for what is a serious interference

with an accused's right to liberty by section 25 because no explanation

has been offered why the interest of the public and that of the proper

administration of justice could not be met by the well established pre-

1994 Act system. It is argued that the Government have not criticised

the pre-1994 system and the Government have not suggested that the

Magistrates' Court cannot be trusted with the relevant assessment of

risk. On the contrary, the Government themselves submit that those

courts rarely granted bail in "section 25 circumstances" prior to the

enactment of that section.

Secondly, the applicant considers section 25 a disproportionate,

illogical, irrational and indefensible response to the purpose which

the Government state is sought to be achieved by that section. The

effect of the section is to completely exclude any assessment

whatsoever of the risk involved in releasing an accused on bail - every

one who falls within the scope of section 25 is automatically detained

without any assessment of his/her particular case and, consequently,

without any assessment of risk on release no matter how exceptional the

circumstances of his case may be. Furthermore, the applicant submits

that the effect of section 25 is that a person accused of a number of

offences of rape and murder but with prior convictions falling outside

the ambit of section 25 will have the right to have the circumstances

of his case considered with a view to deciding on bail whereas someone

accused of one offence of murder has no such right if his previous

conviction happens to fall within section 25 of the 1994 Act.

Thirdly, and as to the Government's submissions on the rights

contained in Article 5 para. 3 (Art. 5-3) of the Convention, the

applicant points out that he does not assert an absolute right to

release pending trial - he argues that he was entitled to have a judge

or other officer consider the circumstances of his case and to decide

whether he could be so released or not. He also considers the remaining

powers of the Magistrates' Court referred to by the Government

irrelevant in a case where the prosecution has been properly brought

but where there are not sufficient reasons to detain a defendant in

custody pending trial. These powers are also irrelevant in the present

case because the applicant was brought before the Magistrates' Court

the day following his arrest whereas it would have taken weeks of

preparation for a committal hearing or for a hearing on an issue of

abuse of process. Accordingly, such remaining powers do not satisfy the

"promptly" requirement of Article 5 para. 3 (Art. 5-3) of the

Convention. The Magistrates' Court's power to order a speedy trial,

although relevant to a case where bail is refused, is clearly no

substitute for a prompt consideration of release on bail. In any event,

and in spite of this power to order a speedy trial, the applicant spent

more than six months in custody prior to his acquittal. Moreover, the

applicant considers that laying down criteria in legislation for the

exercise by the Magistrates' Court of its power to grant bail is a

wholly different concept to taking away this power altogether, the

latter action defeating the substance of the rights under Article 5

para. 3 (Art. 5-3). Even if the legislature could so take away this

power, such an interference would only be justified by a pressing

social need which need has not been demonstrated by the Government.

Fourthly, the applicant repeats his submissions made in his

application that no fully argued bail application was made because, in

the view of his experienced solicitor advising him, it was futile given

the application of section 25 of the 1994 Act to his case.

2. 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). The applicant maintains his position that there has

been a breach of his rights guaranteed by Article 5 (Art. 5) of the

Convention for which breach he has no domestic remedy.

The Commission considers that the application raises serious

issues under Articles 5 and 13 (Art. 5, 13) 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.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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B.H. v. THE UNITED KINGDOM

B.H. v. THE UNITED KINGDOM

LEXI