CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 décembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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