Information Note on the Court’s case-law 15

February 2000

Caballero v. the United Kingdom [GC] - 32819/96

Judgment 8.2.2000 [GC]

Article 5

Article 5-3

Judge or other officer exercising judicial power

Automatic refusal of bail: violation

(Extract from press release )

Facts : The applicant, Clive Caballero, a Jamaican national, was born in 1926 and is currently in prison in HMP Brixton, the United Kingdom. In 1987 t he applicant was convicted of manslaughter. The naked body of the victim, a neighbour, was discovered outside of the door of her apartment wrapped in a bedspread after a drinking session with the applicant, during which he had sexually interfered with her. He was sentenced to four years’ imprisonment and released in August 1988. On 2 January 1996 the applicant was arrested by the police on suspicion of attempted rape of his next-door-neighbour. He maintained that he had had sexual intercourse with the woman with her consent and the woman claimed that the incident had taken place after she had blacked-out from drinking. He was brought before the Magistrates' Court on 4 January 1996. The applicant instructed his solicitor to apply for bail on his behalf, but n o bail application was made in view of section 25 of the Criminal Justice and Public Order Act 1994, which had the effect that he could not be granted bail because of his previous conviction. The record of the hearing of 4 January 1996 refers to section 25 of the 1994 Act as the reason for the refusal of bail. The applicant was remanded in custody by the magistrate on 4 and 11 January 1996, the second appearance being necessary in view of the possibility (later abandoned) of the prosecution amending the cha rge against the applicant. The applicant was convicted of attempted rape and of assault occasioning actual bodily harm in October 1996. On 17 January 1997 he was sentenced to four years’ imprisonment for the assault conviction and to life imprisonment for the attempted rape conviction. The trial court deducted 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.

Law : (a) The complaints and the parties’ submissions before the Court - Before the Commission, the applicant complained that section 25 of the Criminal Justice and Public Order Act 1994 (which has been subsequently amended) meant that he was automatically deta ined prior to his trial, in violation of Article 5 §§ 3 and 5 and Article 14 of the European Convention on Human Rights. He also complained under Article 13 that he did not have an effective domestic remedy as regards these alleged violations. Before the C ourt, the applicant made the same complaints except he did not pursue his complaint under Article 13. The Government conceded that there had been a violation of Article 5 § 3 and § 5 and agreed with the Commission’s conclusions on the applicant’s complaint s under Articles 13 and 14.

(b) Decision of the Court on the merits (unanimous) - As to Article 5 § 3 and § 5, the Court decided to accept the Government’s concession that there has been a violation of Article 5 § 3 and § 5 of the Convention in the case, with the consequence that it was empowered to make an award of just satisfaction to the applicant under Article 41, but it did not consider it necessary, in the particular circumstances, to examine the issues of interpretation of Article 5 § 3 and § 5 rais ed in the applicant’s complaint. Since the applicant did not pursue his complaint under Article 13 before the Court, the Court saw no cause to examine it of its own motion. In view of the Court’s acceptance of the Government’s concession in connection with Article 5 § 3 of the Convention, the Court did not find it necessary to consider the applicant’s complaint about section 25 of the 1994 Act under Article 14.

(c) Article 41 of the Convention (unanimous) - The applicant did not allege any pecuniary damage . However, he sought an unspecified amount of compensation for non-pecuniary damage, arguing that a decision not to make such an award would strip Article 5 § 5 of any effectiveness. He also submitted an affidavit of a solicitor in the United Kingdom who h ad practised since 1985 exclusively in criminal law and advocacy in the criminal courts. The affidavit detailed why, according to the deponent, the applicant would have had a good chance of being granted bail prior to his trial had section 25 of the 1994 A ct not been in force. The Court recalled that in certain cases which concerned violations of Article 5 § 3 and § 4 it had made relatively small awards in respect of non-pecuniary damage but, in more recent cases, it had declined to make any such award. It was noted that in some of these recent judgments the Court had stated that just satisfaction could be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of t he guarantees of Article 5 § 3 and that the Court had concluded, according to the circumstances of those cases, that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage suffered. However, taking into a ccount the affidavit evidence and the applicant’s claim that if he had been released on bail prior to his trial it could have been his last days of liberty given his age, ill-health and the long sentence he was serving, the Court awarded him, on an equitab le basis, GBP 1,000 compensation for non-pecuniary damage. As to costs and expenses, the applicant claimed a total of GBP 32,225.09 in legal costs and expenses (inclusive of value added tax). This claim comprised the costs and expenses of two different leg al representatives together with counsel’s fees. The Court noted that costs and expenses are recoverable under Article 41 of the Convention when it has been established that they were actually and necessarily incurred and reasonable as to quantum. It found that there had been considerable duplication of work by the applicant’s two representatives and that the number of hours for which counsel charged appeared to be excessively high. Making its assessment on an equitable basis, the Court awarded the applican t, in legal costs and expenses, GBP 15,250 inclusive of VAT but less the amounts received in legal aid from the Council of Europe (4,100 French francs).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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