CASE OF S.B.C. v. THE UNITED KINGDOM
Violation of Art. 5-3;Violation of Art. 5-5;No violation of Art. 13
Nicolas Bratza
8. On 14 November 1978 the applicant was convicted of manslaughter and sentenced to three years in prison. He was released on parole on 14 April 1980. On 17 December 1996 he was arrested on suspicion of incest and indecent assault involving two of his daughters. On 18 December 1996 he was arrested on suspicion of other offences of rape and assault in relation to two of his daughters. On 19 December 1996 the Magistrates’ Court approved further remand of the applicant and on 20 December 1996 he was charged with two offences of rape and one offence of indecent assault concerning two of his daughters. Ultimately, the indictment preferred against him contained three counts of rape, three counts of indecent assault and one count of indecency with a child. 9. On 21 December 1996 the applicant applied for bail to the Magistrates’ Court. The court did not appreciate that section 25 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) applied and a full bail application was heard. The court refused bail on the basis that it was feared that he might commit further offences and that he might interfere with witnesses or obstruct justice given the nature and seriousness of the charges. On 24 December 1996 he again appeared before the Magistrates’ Court and was remanded in custody. No bail application was made. 10. A further date was fixed for a bail application on 14 January 1997, the applicant having obtained an assurance of a surety from a captain in the territorial army with whom he could reside during his trial. On that date, the Magistrates’ Court was made aware of the applicability of section 25 of the 1994 Act and the hearing did not take place. On 15 or 16, 21 and 28 January and on 25 February 1997 the applicant appeared before the Magistrates’ Court. The Magistrates’ Court record for 25 February 1997 hearing noted, in the schedule dealing with exemptions to the right to bail, “no power to grant bail s25 CJPOA 94”. The applicant was tried on 20 June 1997, when he was acquitted on all charges and released. 11. Section 4 of the Bail Act 1976 as amended (“the 1976 Act”) provided that a person accused of a criminal offence should be granted bail except as stated in Schedule 1 to the Act. Paragraph 2 of Schedule 1 provided that a defendant need not be granted bail if the court was satisfied that there were substantial grounds for believing that the defendant, if released on bail, would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person. 12. Pursuant to paragraph 9 of Schedule 1 to the 1976 Act, in taking the above decision, the court was to have regard to such of the following considerations, as well as to any other considerations, as appeared to that court to be relevant: – the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it); – the character, antecedents, associations and community ties of the defendant; – the defendant’s record as regards the fulfilment of his obligations under previous grants of bail in criminal proceedings; and – except in the case of a defendant whose case was adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having defaulted. 13. According to paragraph 9A of Schedule 1 to the 1976 Act, if a defendant (who had been charged with murder, manslaughter, rape, attempted murder or attempted rape) was granted bail and representations had been made as regards the matters mentioned in paragraph 2 of Schedule 1, the court had to state its reasons for granting bail and cause those reasons to be included in the record of the proceedings. 14. Section 25 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) came into force on 10 April 1995 and provided as follows: “1. A person who in any proceedings has been charged with or convicted of an offence to which this section applies and in circumstances to which it applies shall not be granted bail in those proceedings. 2. This section applies, subject to subsection 3 below, to the following offences, ... – (a) murder; (b) attempted murder; (c) manslaughter; (d) rape; and (e) attempted rape. 3. This section applies to a person charged with or convicted of any such offence only if he has been previously convicted by or before a court in any part of the United Kingdom of any such offence or of culpable homicide and, in the case of a previous conviction of manslaughter or culpable homicide, if he was then sentenced to imprisonment or, if he was then a child or young person, to long-term detention under any of the relevant enactments.” 15. Section 25 of the 1994 Act has been amended by section 56 of the Crime and Disorder Act 1998, which entered into force on 30 September 1998. Section 56 of the 1998 Act reads as follows: “In sub-section (1) of section 25 of the 1994 Act (no bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences), for the words ‘shall not be granted bail in those proceedings’ there shall be substituted the words ‘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’.”