CASE OF KEVIN O'DOWD v. THE UNITED KINGDOM
No violation of Art. 5-3;Remainder inadmissible
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
6. The applicant was born in 1946 and lives in London. 7. On 6 December 2001, the applicant was arrested, interviewed and charged with rape, false imprisonment and indecent assault. It was alleged that over a period of days in mid-September 2000, the applicant had raped a woman in her flat, imprisoned her in his car and then indecently assaulted her in his flat. Nine months later, the complainant gave birth to a baby boy and four months after that, in October 2001, she made her first complaint to the police. 8. On 7 December 2001, the applicant's case was sent for trial at the Central Criminal Court pursuant to section 51 of the Crime and Disorder Act 1998. 9. On 17 December 2001, the applicant made an application for bail. As he had served 14 years' imprisonment in respect of a previous conviction for rape and an offence of violence in 1989, under section 25 of the Criminal Justice and Public Order Act 1994 as amended (“the 1994 Act”) bail could only be granted if the judge was satisfied that there were “exceptional circumstances” which justified the grant of bail. The judge was not so satisfied and bail was refused. 10. On 28 January 2002, the applicant pleaded not guilty to all charges and a trial date was fixed for 8 April 2002. A further bail application was refused. 11. On 22 March 2002, the applicant dispensed with the services of his solicitors and counsel and served his own defence statement. The judge did not alter the trial date but gave the applicant time to reconsider his position. On 3 April 2002, the applicant indicated that he would like to have the services of his former legal team and the judge reinstated the representation order. As valuable time had been lost, the trial date was vacated and rearranged for 6 June 2002. A further bail application was refused. 12. At the end of May 2002, the applicant again dispensed with the services of his lawyers. When the case was called on 6 June 2002, however, he was represented by leading and junior counsel. After a midday adjournment, the applicant once again dispensed with the services of his lawyers. The next day, he asked for his legal team to be reinstated and this was done. Defence counsel then indicated that as there had been a delay in disclosure, an application to stay the proceedings would be made. It was agreed to hear the application the next day. 13. Under the Prosecution of Offences (Custody Time Limits) Regulations 1987 (“the 1987 Regulations”) as amended, the maximum period of custody between the sending for trial and the start of the trial (taken to be the date on which the jury is sworn in) in a case such as the applicant's was 182 days. That period was due to expire at midnight on 7 June 2002. The prosecution accordingly applied to extend the custody time limit. Under section 22(3) of the Prosecution of Offences Act 1985 (“the 1985 Act”), a request for extension of the custody time limit must be refused where the court is not satisfied that the prosecution has acted with all due diligence. The application made by the prosecution in the applicant's case was refused because the court was not satisfied that the prosecution had acted with all due diligence and expedition in relation to disclosure. 14. However, under the 1987 Regulations, the right to bail upon expiry of the custody time limit was subject to section 25 of the 1994 Act (see paragraph 45 below). Accordingly, on 7 June 2002, a further application for bail was refused by Judge Norris in the Crown Court because he was not satisfied that “exceptional circumstances” justifying the grant of bail existed. 15. On 8 June 2002, the defence requested access to hospital and telephone records for the first time. As a result, the case was removed from the court agenda and relisted for mention on 21 June 2002. On that date, the trial was re-fixed for 4 November 2002 and a further application for bail was refused. 16. On 20 August 2002, an application for bail was made in the High Court and was refused on the basis that no exceptional circumstances existed. 17. On 10 October 2002, the case came before Woolwich Crown Court for the consideration of two preliminary matters of law. The applicant once again dispensed with the services of his lawyers and the representation order was revoked. As a result, it was not possible to deal with the issues of law, which were accordingly held over for consideration on the first day of trial. 18. On 4 November 2002, the trial began. The applicant was acting in person but counsel had been appointed by the court to cross-examine the complainant. Issues arose regarding discovery, abuse of process, admissibility of photographs and the use of screens. The applicant from time to time absented himself from the court room. 19. On 6 November 2002 the court began to swear in the jury. However, one member of the panel had been at school with the applicant and another, who was related to the applicant, made an observation in public which made it necessary to release the entire panel. The applicant then applied for and was granted legal representation. On 15 November 2002, the applicant's case was transferred to Harrow Crown Court as he was too well-known in the Woolwich area. 20. On 5 December 2002, the case came before Harrow Crown Court. The court indicated that it was prepared to hear the case in January 2003 but the applicant declined this date on the ground that it was unsuitable. The judge subsequently fixed the trial to begin on 2 June 2003 in order to accommodate the needs of the defence regarding preparation and availability of counsel. Outline submissions as to the grant of bail were made and discussion was adjourned until 9 December 2002 in order for skeleton arguments to be prepared in writing. 21. A further application for bail was heard on 9 December 2002. The applicant's counsel made extensive submissions in support of the application, with particular reference to the Court's judgment in Caballero v. the United Kingdom [GC], no. 32819/96, ECHR 2000II. She argued that once the time limit under the 1987 Regulations had expired and was not extended, a defendant should be admitted to bail. Accordingly, in her submission, the applicant had been unlawfully detained since 7 June 2002. 22. Judge Sanders disagreed. He considered, first, that the words “subject to Section 25” in the 1987 Regulations meant “unless this is a case where Section 25 applies”. He found that section 25 clearly did apply in the applicant's case and continued: “... it is lamentable that the prosecution have been shown to be wanting as far as the custody time limits were concerned and indeed had it also been shown that they were deliberately defalcating [sic] on their duty and relying on Section 25 as a stop gap, believing that they could still persuade the Judge to keep [the applicant] in custody come what may, that might in itself and in certain circumstances amount to exceptional circumstances for reconsidering his bail position. But I am not satisfied from the chronology and the history of this trial that that is at all the case. I am satisfied however that no exceptional circumstances did arise at the time that that application was made; that the regulations on custody time limits do not out-weigh the serious considerations of Section 25 and that I consider that it is a completely separate consideration and that I have separate jurisdiction to deal with it and so notwithstanding that the custody time limits did expire and that he might have been entitled to his release in any other case, that is not the case here and so he must, unless I am persuaded otherwise on a straightforward application regarding Section 25, then he must find himself bound by Section 25.” 23. Judge Sanders recalled that he had recently been persuaded to grant a “very long adjournment” to June 2003, at the request of the applicant. He indicated that he was of the view that defendants should not be detained for excessively long periods of time before their trials took place, but noted: “On the other hand, everything that was done by me on his behalf was for the defendant's assistance because it was explained that he yet needed to get his independent DNA; that there were papers missing that have not been properly served upon his defence team and thirdly, since counsel have built up a rapport with the defendant and counsel who have been briefed fairly late in this matter ... had herself commitments that precluded her from safely being able to undertake this work until June.” 24. He added: “If your client, by my ruling on the bail matter and Section 25, feels aggrieved then I would take up [counsel for the prosecution's] suggestion and bring the case forward come what may ...” 25. He continued: “...two things strike me of interest. Bearing in mind the sad chronology I also note that the defendant at the outset had suggested that this was a fabricated tissue of lies by the complainant for motives that he would explain to the jury in due course. A lot of the disclosure arose because of that and he was offered the opportunity to have his own independent DNA as far back as last June, an offer that he never took up ... he then spoke in open court ... of automatism, which again left one ... curious as to know whether there was a need for DNA and whether he was denying intercourse took place, which of course to an alleged victim of rape is an important issue, which of course she is entitled to be aware of in order that she does not have to go through the ordeal of being accused of being sexually promiscuous or a liar and such things, and we still do not know the answer to that. So what is going on? You have come up with another DNA application.” 26. Counsel for the applicant responded that she did not have full instructions and could therefore not speak on behalf of the applicant. The judge again reiterated that the trial date for the applicant might need to be reconsidered, a matter on which the applicant's counsel undertook to seek instructions. The judge expressly pointed out that the effect of his ruling on section 25 was that, if the applicant persisted with his request for a June 2003 trial, he would have to remain in custody for another six months. 27. The applicant's counsel appeared before the judge later that day to confirm that the applicant was content that his trial be held on 2 June 2003, notwithstanding the section 25 ruling. 28. On 30 January 2003, the applicant issued a claim for judicial review of the court's decision of 9 December 2002 to refuse him bail, arguing that his continued detention following the expiry of the custody time limits was in breach of Article 5 § 3 of the Convention. The matter was considered on the papers on 6 February 2003. It was referred for an oral hearing and permission was granted on 26 February 2003. On 20 March 2003, solicitors acting for the applicant indicated that he would also apply for a writ of habeas corpus contending that since the expiration of the custody time limit on 7 June 2002 his custody had been illegal. 29. On 16 April 2003, the applicant's applications for habeas corpus and judicial review of the decision refusing bail were rejected by the Divisional Court. In dismissing the argument of the defence that the amendments to section 25 to allow the grant of bail in “exceptional circumstances” were insufficient to restore the judicial control required under the Convention, Kennedy LJ held (at paragraph 28) that: “... there is nothing offensive or contrary to Convention law about Parliament reminding the courts of the risks normally attendant upon the grant of bail to those to whom section 25 applies. A reminder can properly be given by creating a statutory presumption against the grant of bail, but if judicial control is to be effective courts must be left free to examine all the relevant circumstances and, in an appropriate case, to override the presumption.” 30. Kennedy LJ considered the Convention authorities and accepted (at paragraph 32) that section 25 would not be compatible with the Convention if “exceptional circumstances” were too narrowly construed or if the court set too high a threshold at which it would be prepared to conclude that “exceptional circumstances” existed. In considering the application of section 25 in practice, Kennedy LJ explained that: “[Section 25] establishes a norm. The norm is that those to whom it applies if granted bail are so likely to fail to surrender to custody, or offend, or interfere with witnesses or otherwise obstruct the course of justice that bail should not be granted. If in fact, taking into account all the circumstances relating to a particular alleged offence and offender he does not create an unacceptable risk of that kind he is an exception to the norm, and in accordance with his individual right to liberty he should be granted bail.” 31. As regards the expiration of the custody time limit, Kennedy LJ considered that the custody time limits set out in national law and the “reasonable time” requirement under Article 5 § 3 of the Convention were not one and the same. Accordingly, in assessing whether the prosecution had acted with “special diligence” as required by the Convention, the finding of the lower court that it was not satisfied that the prosecution had acted with all due diligence as required by section 22(3) of the 1985 Act (see paragraph 46 below) was not decisive. Although Kennedy LJ accepted that in a case where the prosecution had not demonstrated all due diligence, a court may well conclude that it had not displayed the necessary “special diligence” required under Article 5 § 3, he considered that this was not the case here. 32. Finally, in respect of the applicant's argument under Article 14 of the Convention that section 25 operated in a discriminatory manner, Kennedy LJ considered that the applicant was not in a situation analogous to a person charged with a serious offence because he also had a previous conviction for a serious offence which was relevant to the risk attendant on a grant of bail. He further found that the distinction made was justified, was based on relevant factors, pursued a legitimate objective and was proportionate. 33. In conclusion, he stressed the importance of setting out reasons for refusing bail in order to show that careful and appropriate consideration had been given to the question whether exceptional circumstances exist. 34. Hooper J agreed with Kennedy LJ in all respects, save that unlike Kennedy LJ he considered that section 25 did impose the burden on the defendant to show “exceptional circumstances” which, in light of Convention case-law, was inconsistent with Article 5 § 3. Accordingly, he considered that section 25 should be read down in accordance with the obligation in section 3 of the Human Rights Act 1998 to impose merely an evidential burden on the applicant to point to or produce material which supports the existence of “exceptional circumstances”, thereby ensuring compliance with the demands of Article 5 § 3. 35. The applicant appealed to the House of Lords, arguing that once the custody time limit had expired there was, by virtue of the expiry of the time limit itself, a breach of Article 5 § 3 by his continued detention under section 25; and, in the alternative, that the effect of section 25 was to place a burden on the applicant to establish exceptional circumstances required for the grant of bail, which was a breach of the applicant's Convention rights. 36. In the meantime, the applicant's trial commenced on 1 September 2003. However, on 25 September 2003, the prosecution was permanently stayed as an abuse of process, for reasons which are unclear, and the applicant was released from custody. 37. The House of Lords handed down its judgment in the judicial review and habeas corpus proceedings on 26 July 2006. Delivering the leading judgment, Lord Brown of Eaton-under-Heywood considered that an approach under section 25 which required the applicant to provide good and sufficient reason for bail would be “irreconcilable with the Strasbourg case law” (at paragraph 27). However, as regards the operation of section 25 in practice, he continued (at paragraphs 34-34): “Importantly, however, both members of the [divisional] court decided that section 25(1) (subject only to its effect in cases where the custody time limit has expired, the important second issue yet to be addressed) has no substantive effect upon the way in which bail applications by section 25 defendants would in any event fall to be determined under the Bail Act. It serves merely to 'remind' the courts of the risks normally posed by those to whom section 25 applies and 'will merely assist the court to adopt a proper approach' in relation to bail in their cases. In my judgment they were right in that conclusion and it seems to me unsurprising that the Scots, placed in a similar position by the Caballero judgment, decided against introducing an 'exceptional circumstances' test, believing that it would 'add nothing to a clear common law position in Scotland' ... Whether or not, strictly speaking, section 25 needs to be read down to achieve the agreed result is a question of little moment. I myself, however, have a mild preference for Hooper J's approach. Like him I read the section as placing a burden on the section 25 defendant. He has to rebut a presumption and if he fails to do so is to be denied bail. True it is, as [counsel for the defendant] himself accepted, that in the vast majority of cases the court will reach a clear view one way or the other whether the conditions for withholding bail specified by Schedule 1 to the Bail Act are satisfied. But just occasionally the court will be left unsure as to whether the defendant should be released on bail—the only situation in which the burden of proof assumes any relevance—and in my judgment bail would then have to be granted. That must be the default position. Section 25 should in my judgment be read down to make that plain.” 38. As to the lawfulness of the applicant's continued detention after the expiry of the custody time limit, Lord Brown reviewed the facts of the case, noting that the applicant had a previous conviction for rape; indeed, he had 30 previous convictions for a wide variety of offences. He also observed that the applicant had dispensed with his lawyers and had them reinstated on no fewer than four occasions, two of which had caused delay. A further five months' delay was caused by the applicant's decision to reject the offer of a January 2003 trial date in favour of a date in June 2003, to suit his counsel's convenience. Lord Brown noted that it was unclear, in the absence of a transcript of the court's decision of 7 June 2002 or any further information on the subject, why the lower court was not satisfied that the prosecution had acted with all due diligence and expedition in relation to disclosure. However, he concluded that even where there was a lack of due diligence under domestic law, this was not in itself sufficient to establish the lack of “special diligence” required for a breach of Article 5 § 3. Lord Brown concluded (at paragraph 63) that: “By the very nature of things, the Strasbourg Court will be looking at the case in a different way from the domestic court, in particular from a longer and wider perspective. Strasbourg will have the whole picture before it and will take an overall view as to whether the reasonable time guarantee has been exceeded. Grisez illustrates the point well: the ultimate question addressed by the court was whether 'the total length of the detention pending trial appear[ed] excessive'. So too in Contrada: the court took account of the trial court's post-delay offer to increase the rate of the hearings (akin perhaps to the offer of a January 2003 trial date in the present case, similarly declined). The domestic court, by contrast, is inevitably having to decide a much narrower question and within a shorter time-frame. And it is doing so within the strict confines of section 22(3) which, despite the marked similarity between its language and that used in Strasbourg, in fact imposes a more rigid formula for the extension of custody time limits than Strasbourg does with regard to the reasonable time guarantee under article 5(3). For my part I would not expect there to be many cases where, as here, bail is refused notwithstanding the court's refusal to extend the custody time limit. But I conclude that there is no necessary inconsistency between the two and that Article 5(3) is not necessarily breached. Nor, in my judgment, is there any other reason for thinking that this appellant was wrongly refused bail: on the contrary, the case for his continued detention in custody appears to have been a strong one.” 39. The House of Lords found no violation of Article 5 § 3 and unanimously rejected the applicant's appeal. 40. Section 51 of the Crime and Disorder Act 1998 provides that where an adult appears before a magistrates' court charged with an offence triable only on indictment, the court shall send him forthwith to the Crown Court for trial for that offence. 41. The Bail Act 1976 (“the 1976 Act”) regulates the grant of bail. Section 4 provides that defendants: “shall be granted bail except as provided for in Schedule 1 to this Act.” 42. Schedule 1 of the 1976 Act provides, under paragraph 2, that: “The 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 (whether subject to conditions or not) would— (a) fail to surrender to custody, or (b) commit an offence while on bail, or (c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.” 43. Paragraph 9 of the Schedule provides that: “In taking the decisions required by paragraph 2 ... the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say— (a) the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it), (b) the character, antecedents, associations and community ties of the defendant, (c) the defendant's record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings, (d) ... the strength of the evidence of his having committed the offence or having defaulted, as well as to any others which appear to be relevant.” 44. Section 4(8) of the 1976 Act provides that the right to bail under section 4 is subject to section 25 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”). 45. The 1994 Act makes specific provision for bail in a case where a suspect is charged with a serious offence and has previously been convicted and imprisoned for a serious offence. Section 25 provides: “(1) A person who in any proceedings has been charged with or convicted of an offence to which this section applies in circumstances to which it applies shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it. (2) This section applies, subject to subsection (3) below, to the following offences, that is to say– (a) murder; (b) attempted murder; (c) manslaughter; (d) rape under the law of Scotland or Northern Ireland; (e) an offence under section 1 of the Sexual Offences Act 1956 (rape); (f) an offence under section 1 of the Sexual Offences Act 2003 (rape); (g) an offence under section 2 of that Act (assault by penetration); ... (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 of culpable homicide, if he was then sentenced to imprisonment ...” 46. The Prosecution of Offences Act 1985 allows the Secretary of State, under section 22(1), to make regulations setting custody time limits. Section 22 also provides the appropriate court with the power to extend the time limit in a given case: “(3) The appropriate court may, at any time before the expiry of a time limit imposed by the regulations, extend, or further extend, that limit; but the court shall not do so unless it is satisfied– (a) that the need for the extension is due to– (i) the illness or absence of the accused, a necessary witness, a judge or a magistrate; (ii) a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused or two or more offences; or (iii) some other good and sufficient cause; and (b) that the prosecution has acted with all due diligence and expedition. 47. The Prosecution of Offences (Custody Time Limits) Regulations 1987 as amended set out the custody time limits applicable. Regulation 5(6B) provides that where an accused is sent for trial under section 51 of the Crime and Disorder Act 1998, the maximum period of custody between the accused being sent to the Crown Court for an offence and the start of the trial shall be 182 days. Under section 22(11A) of the 1985 Act, the start of a trial on indictment shall be taken to occur when a jury is sworn in. 48. Under Regulation 6 of the 1987 Regulations, upon the expiry of the custody time limit, an accused in custody must be granted bail, subject to section 25 of the 1994 Act: “(6) The Crown Court, on being notified that an accused who is in custody pending trial there has the benefit of a custody time limit under Regulation 5 above and that the time limit is about to expire, shall, subject to section 25 of the Criminal Justice and Public Order Act 1994 (exclusion of bail in cases of homicide and rape), grant him bail in accordance with the Bail Act 1976, as from the expiry of the time limit, subject to a duty to appear before the Crown Court for trial.” 49. In R (Quereshi and Others) v Leeds Crown Court [1999] EWHC Admin 454, the High Court considered the scope for extending custody time limits. Lord Bingham CJ noted: “14. ... The court made plain in ex parte McDonald, as indeed is plain on the face of the statute, that when seeking an extension or a further extension of a custody time limit the Crown must show that there is good and sufficient [cause] for making the extension and that it has acted with all due expedition. What, however, was not made plain in ex parte McDonald (because the question did not arise) is that these two provisions are in my judgment linked. It is not in doubt that the Crown must show proper grounds for keeping a defendant in prison awaiting trial for a period longer than the statutory maximum. But the Crown must also show that such an extension is not sought because it has shown insufficient vigour in preparing the case for trial. Put crudely, the prosecution cannot prepare for trial in a dilatory and negligent manner and then come to the court to seek an extension of the custody time limit because the prosecution is not ready for trial. Nor, if the effect of its dilatoriness is to put the defence in a position where the defence is not ready for the trial can the Crown seek an extension and show that it has acted with all due expedition. It is in the ordinary way the business of the prosecution to be ready. If therefore the Crown is seeking an extension of the time limit it must show that the need for the extension does not arise from lack of due expedition or due diligence on its part. It seems clear to me, however, that the requirement of due expedition or due diligence or both is not a disciplinary provision. It is not there to punish prosecutors for administrative lapses; it is there to protect defendants by ensuring that they are kept in prison awaiting trial no longer than is justifiable. That is why due expedition is called for. The court is not in my view obliged to refuse the extension of a custody time limit because the prosecution is shown to have been guilty of avoidable delay where that delay has had no effect whatever on the ability of the prosecution and the defence to be ready for trial on a predetermined trial date.” 50. Section 3(1) of the Human Rights Act provides that, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.