THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39360/98 by S.B.C. against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 5 September 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr P. Kūris, Mrs F. Tulkens, Mr K. Jungwiert, Sir Nicolas Bratza, Mr K. Traja, judges , and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 16 June 1997 and registered on 14 January 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British citizen. He was born in 1957 and resides in Devon. He is represented before the Court by Mr Anthony Griffin, a solicitor practising in Exeter.

A. The circumstances of the case [Note1]

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1978 the applicant was serving in the army in Northern Ireland. On his return home on leave he found a man having sex with his wife. A fight ensued and the other man died. The applicant was convicted of manslaughter on 14 November 1978 and was sentenced to three years in prison. He was released on parole on 14 April 1980.

On 17 December 1996 the applicant was arrested on suspicion of incest and indecent assault involving two of his daughters. On 18 December 1996 he was arrested on suspicion of other offences of rape and assault occasioning actual bodily harm in relation to one of those daughters and his youngest daughter. On 19 December 1996 the Magistrates’ Court approved further remand of the applicant and on 20 December 1996 he was charged with two offences of rape of his eldest daughter and one offence of indecent assault of another daughter. Ultimately, the indictment preferred against him contained three counts of rape, three counts of indecent assault and one count of indecency with a child.

The applicant denied the charges against him, which he submits were uncorroborated by his daughters. He claims to have had strong family and business ties in the area (running eight companies with 100 employees and a turnover of £3,000,000.00). He submits that a number of persons were willing to provide sureties if required and a place of residence pending his trial.

Accordingly, the applicant applied for bail on 21 December 1996 to the Magistrates’ Court. None of the lawyers present realised that section 25 of the Criminal Justice and Public order Act 1994 applied and a full bail application was argued. The court refused bail on the basis that it was feared that he might commit further offences and that he might interfere with witnesses or obstruct justice given the nature and seriousness of the offences. On 24 December 1996 he again appeared before the Magistrates’ Court and was remanded in custody, no bail application being made.

A further date was fixed for another bail application on 14 January 1997, the applicant having obtained an assurance of a surety from a captain in the territorial army with whom he could reside (at a substantial distance from his home) during the trial. On that date, the Magistrates’ Court was made aware of the applicability of section 25 and the hearing did not take place. On 15 or 16, 21 and 28 January and on 25 February 1997 the applicant appeared before the Magistrates’ Court. The Magistrates’ Court record for 25 February 1997 hearing noted, in the schedule dealing with exemptions to the right to bail, “no power to grant bail s25 CJPOA 94”.

The trial took place on 20 June 1997 and the applicant was acquitted and released.

B. Relevant domestic law and practice

Section 4 of the Bail Act 1976 as amended (“the 1976 Act”) provided that a person accused of a criminal offence should be granted bail except as stated in Schedule 1 to the Act. Paragraph 2 of Schedule 1 provided that a defendant need not be granted bail if the court was satisfied that there were 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 to the 1976 Act, in taking the above decision, the court was to have regard to such of the following considerations, as well as to any other considerations, as appeared 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 was 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 Schedule 1 to the 1976 Act, if a defendant (who had been charged with murder, manslaughter, rape, attempted murder or attempted rape) was granted bail and representations had been made as regards the matters mentioned in paragraph 2 of Schedule 1, the court had to 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 provided 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 25 of the 1994 Act has been amended by section 56 of the Crime and Disorder Act 1998, which entered into force on 30 September 1998. Section 56 of the 1998 Act reads as follows:

“In sub-section (1) of section 25 of the 1994 Act (no bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences), for the words ‘shall not be granted bail in those proceedings’ there shall be substituted the words ‘shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it’.”

COMPLAINTS

The applicant complains about his automatic pre-trial detention pursuant to section 25 of the Criminal Justice and Public Order Act 1994.

He invokes Articles 5 §§ 3 and 5 together with Articles 6 § 2, 7, 13 and 14 of the Convention.

THE LAW

1. The applicant considers that his automatic pre-trial detention, pursuant to section 25 of the 1994 Act, constituted a violation of Article 5 §§ 3 and 5 of the Convention. Article 5 §§ 3 and 5 reads, in so far as relevant, read 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 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.”

By letter dated 13 May 1999, the Government conceded that there had been a violation of Article 5 §§ 3 and 5 of the Convention in the present case.

2. The applicant also complained that section 25 of the 1994 Act constituted a violation of Articles 6 § 2 and 7 of the Convention. He also invoked Article 14, mainly in conjunction with Article 5 of the Convention.

In their letter of 13 May 1999, the Government considered that no separate issue arose under Article 14 of the Convention. In his observations dated 12 May 2000, submitted after the Court’s judgment in the similar case of Caballero v. the United Kingdom ([GC], no. 32819/96, 8.2.2000), the applicant agreed that the Court did not need to consider further his complaints alleging a breach of Articles 6, 7 or 14 of the Convention.

The Court notes that the applicant does not wish to proceed with his complaints under Articles 6, 7 or 14 of the Convention. In any event, it recalls that in the aforementioned Caballero case, the Commission declared inadmissible similar complaints under Articles 6 and 7 which had been raised alone and in conjunction with 14 of the Convention (no. 32819/96, Dec. 1.12.97, unpublished).  As to his complaint under Article 14 in conjunction with Article 5 of the Convention, the Court notes its conclusion in its judgment in the Caballero case, that the same complaint did not give rise to any separate issue (at § 27 of the above-cited judgment).

3. Finally, the applicant further complained about section 25 of the 1994 Act under Article 13 in conjunction with Article 5 of the Convention. Article 13, in so far as relevant, 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 … “

In his observations, the applicant maintains his complaint under Article 13 and, given that he has agreed not to pursue his complaints under Articles 6, 7 and 14, the complaint is maintained in conjunction with Article 5 §§ 3 and 5 of the Convention. The Government do not comment on this complaint of the applicant.

4. In such circumstances, the Court concludes that the applicant’s complaints raise serious issues under Article 5 §§ 3 and 5 alone and in conjunction with Article 13 of the Convention which require determination on the merits. It follows that these matters cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the complaints inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant ’s complaints [Note2] as regards his being automatically denied bail pursuant to section 25 of the 1994 Act, which he maintains under Article 5 §§ 3 and 5 and Article 13 of the Convention;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa Registrar President

[Note1] Where the parties’ description of the facts differ their respective versions of the facts should be set out separately.

[Note2] Summarise the complaints without necessarily citing the invoked Convention Articles.