CONCURRING OPINION OF JUDGE B RATZA

1. With some hesitation, I have voted in favour of finding a violation of Article 5 § 4 of the Convention in the present case.

2. The applicant was represented by counsel at the hearing before Judge Globe of the prosecution ' s appeal against the grant of bail. The applicant ' s presence in the court building had not been requested by the Crown Court itself but had been arranged directly between the applicant ' s solicitors and the Prison Service. When, at the start of the hearing, the applicant ' s counsel requested that Judge Globe should exercise his discretion to allow the applicant to be present when the appeal was heard, the request was refused, the judge finding that the case was not of “an exceptional nature” and that “the interests of justice” did not require the applicant ' s presence for the purposes of Rule 19.17(4) of the Criminal Procedure Rules (SI 2005/384). Judge Globe went on, however, to emphasise that, if during the submissions of the applicant ' s counsel something should occur which required him to hear evidence from the applicant herself or to take a different view about the need for the applicant ' s presence, the matter would be reconsidered at that stage. There is nothing to suggest that any new factor arose which required the applicant ' s presence; in particular, it is not claimed that, during the appeal hearing, any new or different ground was advanced by the prosecution for opposing the grant of bail, which had not been relied on before the Magistrates ' Court.

3. Had this been a case of an applicant ' s appeal against the refusal of bail, I would have found no basis in the Court ' s case-law for holding that the applicant ' s rights under Article 5 § 4 had been violated. The case-law makes clear that, in order to comply with that paragraph, proceedings to extend a person ' s detention on remand or to review a decision ordering the person ' s detention or refusing bail must be adversarial in nature and must ensure equality of arms between the parties: in this regard, the Court has held that the possibility for a detainee to be heard in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty (see, for example, Kam p anis v. Greece , judgment of 13 July 1995, Series A no. 318-B, § 47). However, the Court has also held that, where an applicant is legally represented at a hearing in such proceedings, Article 5 § 4 does not additionally require the presence at the hearing of the applicant himself or herself in the absence of special reasons ( Jankauskas v. Lithuania (dec.), no. 59304/00, 16 December 2003). Such reasons have been found to exist in cases where the hearing of the appeal took place many weeks after the original remand in custody and where the appeal court changed the original basis for the remand of the applicant, without any possibility of further appeal ( Graužinis v. Lithuania , no. 37975/97, 10 October 2000); where, in

seeking release from detention on remand, the applicant relied on the appalling conditions of detention, of which her counsel had no first-hand knowledge ( Mamedova v. Russia , no. 7064/05, 1 June 2006); and where the case called for an assessment of the applicant ' s character or mental state ( Mamedova v. Russia , cited above; Duda v. Poland , no. 67016/01, 19 December 2006).

4. No special reasons were advanced before Judge Globe for requiring the presence of the applicant at the bail appeal hearing and the application for her attendance was eventually not pursued by her counsel.

5. However, in common with the majority of the Chamber, I consider that different considerations apply in a case such as the present, where bail has been granted to an applicant at first instance, where the applicant is detained pending the determination of an appeal against the grant of bail brought by the prosecution and where the prosecution ' s appeal is qualified as a rehearing of the original application for bail. I consider that in these circumstances an applicant should be afforded the same guarantees under Article 5 as he or she enjoys in the original application for bail and that the presence of the applicant at the appeal hearing should be the rule rather than the exception. Since there were in the present case no practical or other obstacles to the attendance of the applicant at the appeal hearing, I consider that her rights under Article 5 § 4 were violated.

CONCURRING OPINION OF JUDGE BONELLO

1. The facts of this case appear simple and uncon test ed. The applicant, charged with criminal offences, had been granted bail by the Deputy District Judge. The prosecution appealed to have the benefit of bail revoked, and the Crown Court set down the discussion on the revocation of bail for hearing on 11 October 2005. The applicant ' s lawyer arranged with the Prison Service for the applicant to be present in court for that hearing, and she was duly conveyed to the court building on the appointed day. Counsel for the applicant asked the court for his client to be present inside the courtroom, but Judge G., presiding, relying on very clear domestic law in force (see paragraph 22 of the judgment), refused permission. After the pleadings the judge proceeded, in the enforced absence of the accused, to revoke the bail she had already been granted by the Deputy District Judge.

2. I had no difficulty in voting with the majority in favour of finding a violation of the applicant ' s rights enshrined in Article 5 § 4. However, I believe the reasoning adopted by the Court to be unnecessarily restrictive, and quite alarmingly so. The Court found that Judge G. ' s denial of the applicant ' s request to be present at the hearing that would determine her provisional liberty violated the applicant ' s rights – but only because she had already been granted bail and now faced the danger of losing that provisional liberty. These considerations necessarily imply that in other circumstances – for example, had this been the first bail hearing, or had bail already been refused at first instance – the judge of the appeal court could legitimately have excluded the accused from the courtroom.

3. I concede I embrace far more radical views on the right of an accused person to be present during all the stages of the proceedings in which issues regarding his or her liberty are being discussed and determined, if the accused person so requires. Hard as I try, I cannot bring myself to see the presence of the accused, in proceedings which determine their rights and their liberty, as a discretionary concession that essentially depends on the court ' s conviviality or misanthropy, or on whether the presiding judge had started the day in a cantankerous or in an affable mood. At stake for the applicant at that hearing of 11 October were her freedom, her future, her incarceration. It strikes me as at least moderately weird that every person in the universe had a “right” to be present in the courtroom on 11 October – everybody, that is, except the person most immediately affected by the goings-on in that courtroom. Anyone can be there when imprisonment is being decided, provided it is not the person who is risking prison. Issues intimately concerning the accused are best discussed and determined behind the accused ' s back, where else? Now we wouldn ' t want any of the precious lessons from Kafka ' s Trial to go to waste, would we?

4. I am unable to look at the presence of the accused in court the way Judge G. did when addressing the applicant ' s counsel: “What ... are you

suggesting that I should gain from bringing her up from her cell into the dock at the moment?” (see paragraph 13 of the judgment), even if “I” presumably stands for “the administration of justice”. Whatever it stands for, surely that was the wrong test to apply. The presence of the accused in court cannot be judged exclusively by reference to its usefulness to the decision-making process, but rather by reference to the right of accused persons to follow, and, if need be, to participate in events which concern them more than they do anyone else. The functioning of the lawyer/accused tandem depends also on the ability of the accused person to give instructions to his or her lawyer in court on a continuous and impromptu basis. How else could the applicant give guidance to her lawyer on any matter which might arise, if the judge barred her by diktat from being anywhere near her lawyer?

5. By the same line of reasoning, one fails to see what the judge, or the administration of justice, may “gain” from the presence of the public in the courtroom. Yet Judge G. excluded only the accused from his presence, and showed no intolerance at all towards the presence of the public. It seems that in the UK system the idle curiosity of a spectator in the courtroom attracts a higher degree of judicial favour and protection than the legitimate concerns of a person desiring to follow what is going on with regard to his or her immediate liberty or incarceration. What was at issue in the present case was hardly what the judge stood to gain or lose, but rather whether at any stage of the criminal trial the accused, if she so desired and requested, could have rightly been prevented from attending a public hearing regarding her liberty – a hearing everyone else, except her, was entitled to attend. For my part, I believe that those accused who wish to be present when their liberty is being determined deserve not to be looked upon by the whole justice system (including the law) as unwelcome nuisances to be hustled out by the court ' s bouncers. And this applies independently of whether it was a first or a second hearing, or whether bail had already been granted or refused. In my view the accused ' s presence should, as a rule, be allowed to contaminate the chastity of abstract academia.

6. I could concede, even if with considerable hesitation, the possibility of proceedings relating solely to “routine” prolongation of detention being conducted in the absence of the accused, but always provided the incarceration had been originally decided after fully adversarial argument and if such review proceedings went hand in hand with high-grade guarantees of a fair hearing and of transparency.

7. There exist several values reflecting different interests that the law and the judiciary should attempt to mesh in a balanced manner. No doubt, throughout the whole span of criminal procedures, the interests of the administration of justice and of the community hold a pre-eminent place. But so should the interests of accused persons, not solely in undergoing a fair trial, but also in participating in and following anything that may disturb

their rights and their liberty, when their rights and their liberty are at stake. It seems to me that the domestic law, as applied by the presiding judge, kept only the first set of interests in mind, casting the second away as irrelevant: what would the judge “gain” from them?

8. It also seems to me that the restrictive reasoning relied on by the judgment of the Court, and domestic law, have stood on its head what, in the criminal process, should be the rule: the presence of the accused. I believe it to be axiomatic that the presence of the accused should be the norm, and the absence of the accused the exception. When the accused ' s liberty is being determined, it is not for him to prove that he is entitled to be present, but rather for the authorities to furnish compelling reasons to exclude the accused from his own courtroom. It appears that, following this judgment, the onus of proving convincingly the right to be present in proceedings relating to provisional liberty has shifted to accused persons. It is now for them to succeed in proving that there exist weighty reasons why their right to liberty should not be determined behind their backs. This, to me, pulls inside out the logic of the criminal process and is manifestly wrong.

9. In the present case, it is not as if the “justice” interests of the community conflicted with the “presence” interests of the accused. Both could have easily co-existed without getting in each other ' s way. It is difficult to see what the presence of the accused during the discussion about whether she deserved provisional liberty or imprisonment would have taken away from the proper administration of justice. It might not have added much, but it certainly would not have detracted anything. And, with no sacrifice at all to the due process of justice, the interests of the accused would not have been sacrificed so pointlessly.

10. My reading of the case-law of the Court quoted in paragraph 43 of the judgment is quite different from that of the respondent Government. The judgments cited indicate that at certain stages of criminal proceedings relating to Article 5 § 4, the presence of the accused may not be strictly required. “May not be strictly required” by no stretch means that it can be lawfully refused. This case-law neither adds to nor subtracts anything from the principle that if the accused is ready, willing and able to attend the hearing (the applicant in this case was physically present inside the court building), only judges who are fully paid-up members of the Star Chamber ought to be enabled by any law to slam the door in her face and lock her out of her own proceedings. That is exactly what happened in this case and, in my view, the Court should have proclaimed in the loudest terms possible that Inquisition tunes no longer score high on the charts of the judicial hit parade.