CASE OF ALLEN v. THE UNITED KINGDOM
Violation of Art. 5-4;No violation of Art. 5-3;Non-pecuniary damage - award
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
5. The applicant was born in 1970 and lives in Liverpool. The applicant's initial granting of bail 6. On 6 October 2005 the applicant was charged with two offences of conspiracy to supply Class A drugs. 7. 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 8. 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. 9. 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. 10. 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. 11. 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.” 12. 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.” 13. 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?” 14. 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.” 15. 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 16. 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. 17. 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. 18. 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 19. 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. 20. 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. 21. 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. 22. 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.” 23. 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). 24. 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.