BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF ALLEN v. THE UNITED KINGDOM
(Application
no. 18837/06)
JUDGMENT
STRASBOURG
30 March 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Allen v. the United
Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 9 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18837/06) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, Ms Susan Anne Allen (“the applicant”), on 2 May
2006.
- The
applicant, who had been granted legal aid, was represented by Mr D.
Taylor, a lawyer practising in Liverpool. The United Kingdom
Government (“the Government”) were represented by their
Agent, Ms E. Willmott, of the Foreign and Commonwealth
Office, London.
- The
applicant alleged that the fact that she was not allowed to attend
the hearing of the prosecution's appeal against her being granted
bail had breached her rights under Article 5 §§ 3 and 4 and
Article 6 of the Convention.
- On
14 May 2008 the President of the Chamber decided to give notice of
the application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in Liverpool.
The applicant's
initial granting of bail
- On
6 October 2005 the applicant was charged with two offences of
conspiracy to supply Class A drugs.
- On
7 October 2005 the applicant was produced at Liverpool City
Magistrates' Court. Following a contested bail application she was
granted bail by the Deputy District Judge.
The prosecution's
appeal against the applicant being granted bail
- The
prosecution gave notice that it wished to appeal against the grant of
bail and the applicant remained in detention. The appeal hearing was
to take place at Liverpool Crown Court on 11 October 2005 and the
applicant's solicitors arranged with the Prison Service for her to be
present at the court building.
- The
prosecution's appeal came before Judge Globe on 11 October 2005. At
the start of the hearing, counsel for the applicant requested that
the judge exercise his discretion to allow the applicant to be
present while the appeal was heard. It was contended on the
applicant's behalf that she had been led to believe that she would be
released following the grant of bail at the magistrates' court and
that she had not properly understood the implications of the
prosecution's appeal. Counsel for the applicant asserted that if she
were present she would see that her case was being dealt with fairly
and he further clarified that the basis for his application was
“common humanity” and “not technical”. Judge
Globe declined the request, reasoning that the applicant could be
given a full report of what had happened from her counsel. Moreover,
her attendance would be undesirable as one of the applicant's
co-accused had not been present at the hearing of the appeal against
the grant of bail to him, and it would therefore be unfair to treat
the applicant more favourably.
- When
the applicant later arrived in the court building, her counsel again
requested that she be allowed to attend the hearing in person. He
emphasised that this was a re-hearing and rather unusual as it was
the prosecution which had sought to appeal the Deputy District
Judge's ruling on bail. As the applicant was already present in the
building, her production would cause little inconvenience. Judge
Globe again refused, this time explaining that if he allowed the
applicant to be present it would set a precedent for any defendant in
custody wishing to attend an appeal against bail in the future.
- The
applicant's counsel submitted to the judge:
“You have considerable experience of looking at
people and taking into account their demeanour. This woman is, on the
defence case, a respectable woman of good background and a vulnerable
person. I would like you to see her, frankly, because you will be
able to tell and see that she does not fall into a category of so
many of those who appear before you ... I was able to address the
learned District Judge on precisely those terms. I believe that it
had some impact on his decision to grant bail because he was able to
see her and make an assessment of that person. She is here and you
could make that assessment if she was brought up before you.”
- In
refusing the applicant permission to attend, Judge Globe stated:
“I am not going to alter my view in relation to
[the applicant] being present during the hearing. I will listen to
your submissions. If there is anything during your submissions that
causes me to hear evidence from her or to have to do something
different to what I am doing at the moment in relation to the hearing
of the matter, I will reconsider it at that stage.”
- At
a later stage of the hearing, Judge Globe remarked:
“... [W]hat beyond what you have been able to
describe to me are you suggesting that I should gain from bringing
her up from the cells into the dock at the moment? What do you want
me to do if I were to ask her to come up into the dock, just look at
her? Does that add anything to anything that you are suggesting? I
have a very clear picture of the sort of person who is going to walk
into the dock. No doubt she is going to be very worried. It must be a
very intimidating experience for anybody of no previous convictions
who has recently been taken into custody, to be brought into a court
as large as this. I can imagine full well what is going to happen
when she walks in. But given the fact that I can imagine that, and I
have seen it happen many times, what else am I going to notice?”
- The
applicant's counsel replied that he had withdrawn his application for
her to attend. Judge Globe invited him to make any last submissions
about what might be gained by seeing the applicant in person. Counsel
answered with:
“...looking at the demeanour of the person, that
is all. There is something to do with that assessment which is better
if one looks at the person and sees them looking across the court
looking back at you. But you have in detail, as you have pointed out,
a thorough description of her and if that suffices I am not going to
seek to persuade you to go further.”
- Judge
Globe proceeded with the hearing in the applicant's absence. He
decided to allow the prosecution appeal and refuse bail, on the
grounds that the applicant's brother, one of the co-accused, was at
liberty, possibly overseas, and that there was a risk that she would
abscond and join him or provide him with information about the
prosecution case which would obstruct the course of justice.
The applicant's
first application for permission to apply for judicial review
- The
applicant applied for permission to apply for judicial review of the
decision not to allow her to attend the hearing on the ground that
her rights under the Convention had been breached.
- On
9 November 2005 Mr Justice Sullivan refused the application for
permission to apply for judicial review. He first observed that the
applicant was challenging Judge Globe's decision not to allow her to
attend the prosecution appeal, and that she did not contend that the
ultimate decision to refuse her bail was unreasonable. Mr Justice
Sullivan further noted that though Rule 19.17 (4) of the Criminal
Procedure Rules (see paragraph 22 below) was not referred to during
the hearing before Judge Globe, it was Convention compliant because a
person was entitled to be present if, in an exceptional case, the
interests of justice so required. The applicant's grounds for
applying for permission to seek judicial review did not explain why
hers was an exceptional case or why the interests of justice required
her attendance whilst she was legally represented.
- Mr
Justice Sullivan took into account Judge Globe's clear indication
that he would be prepared to reconsider his view and allow the
applicant to be present if there was anything that would require him
to hear evidence from her in person. However, counsel representing
the applicant had not been able to identify what would be gained by
producing the applicant.
The applicant's
renewed application for permission to apply for judicial review
- On
7 December 2005 Mr Justice Gibbs refused the applicant's renewed
application for permission to bring judicial review proceedings. The
applicant's counsel attended and argued that the decision to refuse
her admission to the hearing of the prosecution's appeal had breached
her rights under Article 5 § 3, or alternatively, Article 5 §
4 of the Convention. It was asserted that the production of the
applicant before the Deputy District Judge did not fulfil the
requirements of Article 5 § 3 because the judge was not a judge
authorised by law to exercise judicial power, as his decision was
subject to immediate appeal and was never put into effect.
- In
giving judgment, Mr Justice Gibbs took into account a transcript of
the proceedings before Judge Globe. Although Rule 19.17 (4) had not
been expressly cited to Judge Globe, the latter's approach to the
application made to him had been entirely consistent with that rule.
The general principle underlying Rule 19.17 (4) was that an applicant
should not generally be entitled to be present at the hearing of a
prosecution appeal. The first exception to that proposition had not
been fulfilled as the applicant was not acting in person. Therefore
the judge would have to take the view that the case was of an
exceptional nature and/or that the interests of justice required the
applicant to be present. Judge Globe, in considering the matter,
undoubtedly had the interests of justice in mind. He had referred to
the position of the co-defendant and had made an enquiry as to
whether there was any particular reason to believe that injustice
would occur, having regard to the fact that an explanation could be
given to the applicant immediately afterwards as to the judge's
decision and his reasons for it. Judge Globe had also, notably, left
open the possibility of altering his decision if, for example, it
became apparent that oral evidence might be required from the
applicant in support of her application.
- Mr
Justice Gibbs found that the Deputy District Judge was authorised to
exercise judicial power as required by Article 5 § 3 of the
Convention and clearly had exercised it, even though his decision was
subject to immediate appeal and was not put into effect pending
appeal. As concerned the applicant's complaints under Article 5 § 4,
the legal framework covering applications for bail, including
appeals, did in Mr Justice Gibbs view enable her to take
proceedings whereby the lawfulness of her detention could be decided
speedily by a court as required by that article. There was, in his
judgment, nothing even arguably to be found in the wording of Article
5 § 4 which entitled an applicant to be present at such
proceedings in all instances. Where prosecution appeals against
refusal of bail were concerned, Rule 19.17 (4) provided a Convention
compatible procedure to ensure that no injustice was caused to an
applicant in cases in which he or she was not permitted to be
present.
II. RELEVANT DOMESTIC LAW AND PRACTICE
-
Rule 19.17(4) of the Criminal Procedure Rules SI
2005/384 (“the Criminal Procedure Rules”) provides
as follows:
“The person concerned [when the prosecution appeal
against a decision to grant bail] shall not be entitled to be present
at the hearing of the appeal unless he is acting in person or, in any
other case of an exceptional nature, a judge of the Crown Court is of
the opinion that the interests of justice require him to be present
and gives him leave to be so.”
- Section
1 (1) of the Bail (Amendment) Act 1993 (“the 1993 Act”)
grants the prosecution the right to appeal to the Crown Court against
a decision by magistrates to grant bail in cases concerning
particularly serious charges or convictions. Section 1 (3) of the
1993 Act provides that such an appeal may only be made where, prior
to the grant of bail, the prosecution has made representations that
bail should not be allowed. The appeal itself is by way of a
re-hearing of the application for bail and the judge hearing the
appeal may remand the accused person in custody or grant bail subject
to such conditions as he thinks fit (section 1 (9) of the 1993 Act).
- Section
1 (4) of the 1993 Act requires that the prosecution give oral notice
of its intention to appeal to the court which has granted bail. This
must be done at the conclusion of the proceedings in which bail has
been granted and before the release from custody of the person
concerned. Section 1 (5) gives the prosecution two hours within which
to serve written notice of appeal upon both the court which has
granted bail and the defendant. If it fails to do so, the appeal is
deemed to be disposed of (section 1 (7)). Section 1 (6) of the 1993
Act states that upon
receipt of the prosecution's oral notice of appeal against the
decision to grant bail, the magistrates' court shall remand the
person concerned in custody, until the appeal is determined. Once
the proper notice has been given, section 1 (8) of the 1993 Act
provides that the hearing of the appeal must commence within two
working days of the first instance proceedings at which oral notice
of appeal is given.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 5 §§ 3 AND 4
AND ARTICLE 6 § 1 OF THE CONVENTION
- The
applicant complained that the Deputy District Judge did not meet the
requirements of Article 5 § 3 of the Convention as he was not
able to give a binding ruling on bail, as the prosecution were
entitled to appeal against his decision. She also complained that the
fact that she was not permitted to attend the hearing of the
prosecution's appeal against bail breached her rights under Article 5
§ 4 of the Convention. She further complained that the refusal
in question gave rise to a violation of her rights under Article 6 §
1 of the Convention.
Article
5 §§ 3 and 4 of the Convention provides as follows:
“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.
Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
Article
6 § 1 of the Convention, as relevant, provides:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. The refusal to allow the applicant to attend the prosecution's
appeal against bail
- The
applicant asserted that her being refused permission to attend the
prosecution's appeal breached her rights under Article 5 § 4 of
the Convention. She further maintained that her inability to attend
the hearing in person constituted a breach of her rights under
Article 6 § 1 of the Convention.
- The
Court considers that the applicant's complaint under Article 6 should
be examined under Article 5 § 4 of the Convention, it being the
lex specialis in the matter (see, mutatis mutandis, Alp
and Others v. Turkey, (dec.), nos. 34396/05, 8753/06, 25853/06,
37432/06, 37435/06, 2873/07, 24664/07 and 44938/08, 9 June
2009).
a) The parties' arguments
i) The applicant
- The
applicant maintained that Article 5 § 4 of the Convention
entitled her to be present when the prosecution's appeal against the
decision to grant her bail was considered.
- She
stressed that a lengthy period of detention was in issue, as her
trial was on serious charges and would be likely to take a long time.
Consequently, the procedure adopted when reviewing her entitlement to
bail had to be similar to that applied during a criminal trial in
order to comply with Article 5 § 4 of the Convention.
- The
applicant further asserted that Judge Globe had erred in the exercise
of his discretion under Rule 19.17 (4) of the Criminal Procedure
Rules. The interests of justice required that she, in the
circumstances, attend the hearing as she had been granted bail
previously and had a legitimate interest in understanding why Judge
Globe allowed the prosecution appeal. Moreover, she was present at
the Crown Court when the appeal was being heard and there was no
practical reason why she should not have been allowed to be present.
- The
applicant finally contended that the basis for her detention was
first reviewed at the Crown Court during the consideration of the
prosecution's appeal against bail. As the reasons for her detention
had not been reviewed before, it was more likely that she would hear
things in the course of the hearing that she might wish to address
through her representative. Furthermore, the assessment of her
character had been a key issue during the appeal hearing, as the
judge had been required to consider whether she would comply with the
restrictions placed upon her by the bail conditions.
ii) The Government
- Since
the prosecution's appeal against the grant of bail was a re hearing
of the issues which had been determined by the Deputy District Judge,
the Government accepted that the procedural requirements of Article 5
§ 4 applied in full to the hearing before Judge Globe. The
Government submitted that both the hearing before the Deputy District
Judge and Judge Globe had met the requirements of Article 5 § 4
of the Convention.
- It
was well-established that the requirements of Article 5 § 4
were not the same as those under Article 6 of the Convention,
regardless of the length of pre-trial detention that might ensue. The
difference between the stringency of the procedural requirements
under Articles 5 § 4 and Article 6 of the Convention reflected
the different purposes of the two provisions. Rather than
guaranteeing that the merits of the case against a defendant receive
a “fair and public hearing,” Article 5 § 4 was
intended simply to ensure that a review could properly establish
whether detention was lawful rather than arbitrary.
- The
general principle enshrined in Article 5 § 4 was that either the
accused or their legal representative should be permitted to attend a
review of detention. That had clearly been permitted in the
applicant's case. The only exceptions were where the presence of the
accused was necessary in order to give satisfactory information or
instructions to her counsel; where there had been a significant lapse
of time between detention decisions; or where there was a proposed
change to the basis of detention.
- In
the applicant's case, the appeal hearing had taken place within two
working days of the original bail hearing at which the applicant and
her lawyers had all been present. Furthermore, the grounds on which
the prosecution had sought to appeal the grant of bail were the same
grounds on which they had contested the original grant of bail in the
magistrates' court.
b) The Court's assessment
i) General principles
- The
Court recalls that by virtue of Article 5 § 4, an arrested or
detained person is entitled to bring proceedings for the review by a
court of the procedural and substantive conditions which are
essential for the “lawfulness”, in the sense of Article 5
§ 1, of his or her deprivation of liberty (see Brogan and
Others v. the United Kingdom, judgment of 29 November 1988,
Series A no. 154-B, § 65). Although it is not always necessary
that the procedure under Article 5 § 4 be attended by the same
guarantees as those required under Article 6 § 1 of the
Convention for criminal or civil litigation, it must have a judicial
character and provide guarantees appropriate to the kind of
deprivation of liberty in question (see Reinprecht v. Austria,
no. 67175/01, § 31, ECHR 2005-...., with further
references). The proceedings must be adversarial and must always
ensure equality of arms between the parties. In the case of a person
whose detention falls within the ambit of Article 5 § 1 (c), a
hearing is required (see Trzaska v. Poland, no. 25792/94,
§ 74, 11 July 2000). The possibility for a detainee to be
heard either in person or through some form of representation
features among the fundamental guarantees of procedure applied in
matters of deprivation of liberty (see Kampanis v. Greece,
judgment of 13 July 1995, Series A no. 318-B, § 47).
- The
Court reiterates that Article 5 § 4, in guaranteeing to persons
arrested or detained a right to take proceedings to challenge the
lawfulness of their detention, also proclaims their right, following
the institution of such proceedings, to a speedy judicial decision
concerning the lawfulness of detention and ordering its termination
if it proves unlawful. Although it does not compel the Contracting
States to set up a second level of jurisdiction for the examination
of the lawfulness of detention, a State which institutes such a
system must in principle accord to the detainees the same guarantees
on appeal as at first instance (see Moisyev v. Russia, no.
62936/00 § 160, 9 October 2008; Navarra v. France,
judgment of 23 November 1993, Series A no. 273-B, § 28
and Toth v. Austria, judgment of 12 December 1991,
Series A no. 224, § 84).
ii) Application of principles to the instant case
- Turning
to the present case, the Court reiterates that its task is not to
rule on legislation in abstracto and it does not therefore
express a view as to the general compatibility of Rule 19.17 (4) of
the Criminal Procedure Rules with the Convention (see Reinprecht
v. Austria cited above, § 32 and Nikolova v. Bulgaria
[GC], no. 31195/96, § 60, ECHR 1999-II). Yet it must examine
whether the proceedings in the applicant's case were in conformity
with Article 5 § 4 of the Convention.
- The
Court notes that the applicant initially had been granted bail at the
hearing before the Deputy District Judge, which she personally
attended (see paragraph 7 above). It further notes the submissions
made by the applicant's counsel at the outset of the prosecution's
appeal hearing that the applicant had expected to be released
following the grant of bail and that she had not properly understood
the implications of the prosecution's appeal (see paragraph 9 above).
- The
Court considers to be relevant the fact that the Deputy District
Judge had the opportunity to see the applicant in person and make his
own assessment of her before deciding to grant her bail. This was a
factor emphasised by counsel for the applicant when requesting that
Judge Globe use his discretion to allow the applicant to attend the
hearing of the prosecution's appeal against bail.
- Against this background, the Court recalls its earlier
case-law concerning the question of whether an applicant's attendance
is required for the purposes of Article 5 § 4 of the Convention
(see, among other authorities, Mamedova v. Russia, no.
7064/05, 1 June 2006; GrauZinis v. Lithuania, no. 37975/97, 10
October 2000 and Jankauskas v. Lithuania (dec.), no. 59304/00,
16 December 2003). In these cases, as pointed out by the respondent
Government, the Court identified special circumstances in which an
applicant's personal attendance might be required under Article 5 §
4 of the Convention, even though he or she was legally represented.
Notably however, the Court finds these cases to be distinguishable,
in that they all concerned applicants' appeals against their
detention on remand and not, as in the present case, a prosecution
appeal against the grant of bail, without which the applicant would
have been entitled to be at liberty. Indeed, in Jankauskas,
cited above, the Court was careful to note that the domestic courts
had held hearings in the presence of both the applicant and his
lawyer when making orders authorising and extending the term of his
detention on remand. What was at issue in that case was whether the
applicant had a right to be personally present at his subsequent
appeal against the order for his detention.
- The
Court considers of central importance the fact that the relevant
domestic law qualifies a prosecution appeal against bail as a
re-hearing of the application for bail, thereby entitling the judge
hearing the appeal to remand the accused in custody or to grant bail
subject to such conditions as he may deem appropriate (see paragraph
23 above). It follows that the applicant should have been afforded
the same guarantees at the prosecution's appeal as at first instance.
Though the Court is mindful of the inherent logistical difficulties
involved in ensuring a detainee's personal attendance at a court
hearing, it finds no evidence of any compelling reasons in the
present case which might have rendered the applicant's presence
undesirable or impracticable. To the contrary, it is accepted that
the applicant's representatives had made arrangements for her to be
present at the court building on the day of the prosecution appeal
hearing, and that no inconvenience would have been caused in allowing
her to attend.
- It
is also noteworthy that, according to the applicable domestic law,
the prosecution appeal had the effect of immediately staying the
applicant's grant of bail at first instance, consequently depriving
the applicant of her liberty from the moment the prosecution
announced their intention to appeal against the Deputy District
Judge's decision (see paragraph 24 above). Furthermore, as the
applicant herself asserts, a lengthy period of pre-trial detention
was likely given the gravity of the charges against her (see
paragraph 31 above).
- The
Court cannot but stress the importance of what was at stake for the
applicant, namely her right to liberty. It recalls in this connection
its judgment in the case of Garcia Alva v. Germany, no.
23541/94, § 39, 13 February 2001, where it stated that:
“According to the Court's case-law, it follows
from the wording of Article 6 – and particularly from the
autonomous meaning to be given to the notion of “criminal
charge” – that this provision has some application to
pre-trial proceedings (see the Imbrioscia v. Switzerland
judgment of 24 November 1993, Series A no. 275, p. 13, § 36).
It thus follows that, in view of the dramatic impact of deprivation
of liberty on the fundamental rights of the person concerned,
proceedings conducted under Article 5 § 4 of the Convention
should in principle also meet, to the largest extent possible under
the circumstances of an on-going investigation, the basic
requirements of a fair trial, such as the right to an adversarial
procedure.”
- For
the reasons set out above, and in light of the fundamental importance
of the right to liberty in issue, the Court does not find the
Government's justification for the refusal in question to be
sufficient. For the Court, having regard to the particular
circumstances of the applicant's case as described above, fairness
required that the applicant's request to be present at the appeal be
granted.
- There
has accordingly been a violation of Article 5 § 4 of the
Convention.
2. The alleged failure of the Deputy District Judge to meet the
requirements of Article 5 § 3 of the Convention
-
The applicant also complained that the Deputy District Judge
did not meet the requirements of Article 5 § 3 of the Convention
as he was unable to give a final ruling on bail. She emphasised the
fact that the Deputy District Judge's decision was open to appeal by
the prosecution, and that his decision would be stayed pending the
outcome of such an appeal.
- The
Court recalls its judgment in McKay v. the United Kingdom [GC],
no. 543/03, §§ 36 - 40, ECHR 2006 X. There, after a
thorough examination of the relevant case-law, the Grand Chamber
stated that it had found no persuasive authority for concluding that
the first obligatory appearance before a judge must encompass the
power to grant release on bail. Rather, it was stressed that the
initial automatic review of arrest and detention “must
be capable of examining lawfulness issues and whether or not there is
a reasonable suspicion that the arrested person had committed an
offence, in other words, that the detention falls within the
permitted exception set out in Article 5 § 1 (c). When the
detention does not, or is unlawful, the judicial officer must then
have the power to release” (see McKay,
cited above § 40). It further reiterates its conclusion at §
39 of McKay that: “Insofar as it may be suggested that
the power to grant bail was a power which the magistrates had to be
able to exercise on the first court appearance of the detained person
after arrest, the Grand Chamber is unable to agree with this
interpretation.”
-
In view of the foregoing, the Court rejects the applicant's
contention that the Deputy District Judge did not “exercise
judicial power,” as his decision on bail was open to appeal. To
the contrary, it observes that its case-law to date has emphasised
that the power of a judge or judicial officer on initial review under
Article 5 § 3 simply must be to release an individual in the
event that he finds their detention unlawful or not to be based on
any reasonable suspicion that they have committed an offence. The
Court further notes that, as was the case in McKay (cited
above, see §§ 49 and 50), the question of the applicant's
bail was reconsidered shortly thereafter by a judicial officer who
undisputedly did have the power to make a final decision in that
respect.
- There has, accordingly, been no violation of Article 5
§ 3 of the Convention.
- APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed compensation for the breach of her rights as the
Court deemed appropriate.
- The
Court finds it reasonable to assume that the applicant suffered a
certain amount of distress and frustration due to her inability to
attend the hearing of the prosecution's appeal, after which she was
denied bail and kept in detention. Therefore, ruling on an equitable
basis, as required by Article 41 of the Convention, the Court awards
the applicant EUR 1,000 for non-pecuniary damage, plus any tax that
may be chargeable.
B. Costs and expenses
- The
applicant, who was granted legal aid in connection with the
proceedings before the Court, has failed to submit quantified claims
in respect of costs and expenses. Thus, the Court does not make any
award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares unanimously the application admissible;
- Holds by six votes to one that there has been a
violation of Article 5 § 4 of the Convention;
3. Holds unanimously that there has been no violation of
Article 5 § 3 of the Convention;
4. Holds unanimously that there is no need to examine the
complaint under Article 6 of the Convention;
- Holds by six votes to one
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into pounds sterling at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 30 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions of
Judges Bratza, Bonello and Mijović
are annexed to this judgment.
L.G.
T.L.E.
CONCURRING OPINION OF JUDGE BRATZA
- With
some hesitation, I have voted in favour of finding a violation of
Article 5 § 4 of the Convention in the present case.
- 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.
- 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, Kampanis 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 (GrauZinis 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).
- 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.
- 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
- The
facts of this case appear simple and uncontested. 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.
- 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.
- 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?
- 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?
- 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.
- 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.
- 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?
- 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.
- 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.
- 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.
PARTLY DISSENTING OPINION OF JUDGE MIJOVIC
- Regrettably,
I am unable in the present case to agree with the majority of the
Chamber that there has been a violation of Article 5 § 4 of the
Convention for the following reasons.
- The
applicant complained that the fact that she was not permitted to
attend the hearing of the prosecution's appeal against bail breached
her rights under Article 5 § 4 of the Convention.
- In
examining whether the proceedings in this case were in conformity
with Article 5 § 4 of the Convention, the majority concluded
that there was “no evidence of any compelling reasons in the
present case which might have rendered the applicant's presence
undesirable or impracticable”.
- For
me, the question that should have been considered by the Chamber was
whether the applicant needed to be personally present in order “to
give satisfactory information and instructions to her counsel”
(see Mamedova v. Russia, no 7064/05, § 91, 1 June 2006).
When invited to make submissions as to why the interests of justice
would require the applicant's presence, her counsel replied only by
stating “looking at the demeanour of the person, that is all”,
following which he informed the judge that he had withdrawn the
application (see paragraphs 14 and 43 of the judgment).
- Furthermore,
it is clear from her counsel's statement that the applicant did not
have any decisive or relevant information of which she alone had
first-hand knowledge. Weight should also be given to the fact, relied
on by the Crown Court judge, that one of the applicant's co-accused
had not been present at the hearing and that it would have been
unfair to have treated the applicant more favourably. Furthermore,
the judge expressed his willingness to allow the applicant to attend
in person should her counsel identify any cogent reason why her
presence would further assist in his assessment of her character. No
such reason ever emerged. Therefore, I see no reason to believe that
the applicant's attendance at the appeal hearing was crucial.
- The
Crown Court judge decided to allow the prosecution appeal and refused
bail on the grounds that the applicant's brother, one of the
co-accused, was at liberty, possibly overseas, and that there was a
risk that she would abscond and join him or provide him with
information about the prosecution case and thereby obstruct the
course of justice. However, the question may be asked as to whether
the applicant would have complained if the judge's decision had been
different, namely if she had been granted bail even without her being
present at the hearing? I do not think so, and that makes the
complaint look somewhat artificial and akin to a grievance about the
result of the outcome of the hearing.
- Finally, the majority considered that “fairness
required that the applicant's request to be present at the appeal be
granted”.
However, I am of the opinion that the fact that she was represented
at the hearing by her counsel fully satisfied “fairness
requirements”. The requirements of Article 5 § 4 are not
the same as those under Article 6 of the Convention and the
difference reflects the different purposes of the two provisions-
while “a fair and public hearing” represents the core of
Article 6, the proceedings contemplated under Article 5 § 4 are
intended, in my understanding, to provide a speedy determination on
the lawfulness of detention. I do accept, as pointed out in the
judgment, that the procedure under Article 5 § 4 must have a
judicial character and must provide guarantees appropriate to the
kind of deprivation of liberty in question. i.e. that the proceedings
must be adversarial and ensure equality of arms between the parties.
Turning to the present case, the facts show that the applicant was
represented and that her counsel was given ample opportunity to make
submissions on her behalf.
- For
all these reasons, I am of the opinion that in the present case there
has been no violation of Article 5 § 4 of the Convention. For
that reason I voted against making an award of damages to the
applicant. I have voted with the majority on the other points
mentioned in the operative part of the judgment (Article 5 § 3
and Article 6).
