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O v Crown Court at Harrow; HL 26 Jul 2006

References: [2006] UKHL 42, [2006] 3 WLR 195, [2007] 1 AC 249
Links: Bailii
Coram: Lord Nicholls of Birkenhead, Lord Hutton, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
The claimant said that his continued detention after the custody time limits had expired was an infringement of his human rights. He faced continued detention having been refused bail because of his arrest on a grave charge, having a previous conviction for another grave offence.
Held: The appeal was dismissed. Insofar as the the word ‘satisfied’ implied a burden of evidence on the defendant, the Act should be read own under the 1998 Act so that any burden of evidence lay on the prosecution, so as not to create an interference with the defendant’s human rights. That being done, the appeal failed.
Lord Brown of Underheaton: ‘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. ‘
Lord Carswell: ‘The two key requirements imposed by article 5(3) are, first, that the prosecution must bear the overall burden of justifying a remand in custody-it must advance good and sufficient public interest reasons outweighing the presumption of innocence and the general presumption in favour of liberty; and, secondly, that the judge must be entitled to take account of all relevant considerations pointing for and against the grant of bail so as to exercise effective and meaningful judicial control over pre-trial detention. ‘
Statutes: Criminal Justice and Public Order Act 1994 25, European Convention on Human Rights 5(3), Prosecution of Offences (Custody Time Limits) Regulations 1987 (SI 1987/299)
This case cites:

  • Cited – Regina (Sim) v Secretary of State for the Home Department Admn (Times 21-Feb-03, Gazette 03-Apr-03, Bailii, [2003] EWHC 152 (Admin), [2003] 2 WLR 1374, [2004] QB 1288)
    The defendant had been convicted of a serious offence involving violece or sex, and been made subject to a extended sentence. He had been released on licence but recalled, and now challenged the system under which it had been decided that he should . .
  • Cited – Ilijkov v Bulgaria ECHR (Bailii, 33977/96, Bailii, [2001] ECHR 489)
    Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3; Violation of Art. 5-4; Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention . .
  • Cited – Regina v Lichniak HL (HL, Times 26-Nov-02, Bailii, Gazette 06-Feb-03, [2002] UKHL 47, [2003] 1 AC 903, [2003] HRLR 8, [2003] 1 Cr App R 33, 13 BHRC 437, [2002] 4 All ER 1122, [2003] UKHRR 62, [2002] 3 WLR 1834)
    The appellants challenged the mandatory sentence of life imprisonment imposed on them on their convictions for murder. They said it was an infringement of their Human Rights, being arbitrary and disproportionate.
    Held: The case followed on . .
  • Cited – Caballero v United Kingdom ECHR (Times 29-Feb-00, (2000) 30 EHRR 643, 32819/96, Worldlii, [2000] ECHR 52, Bailii, [2000] ECHR 53)
    Provisions were in place which said that a person charged with a very serious crime of violence having once been convicted previously of rape or murder he was to be refused bail automatically. Although the provision had later been altered, the . .
  • Cited – Regina v Offen; Regina v McGuillard; Regina v McKeown; Regina v Okwuegbunam; Regina v Saunders (Stephen) CACD (Times 15-Nov-00, Gazette 05-Jan-01, [2001] 1 WLR 253)
    For the purposes of the Act, where a defendant faced a compulsory life sentence following two convictions for certain offences, a finding by the judge that the defendant did not pose a serious risk to society, could be an exceptional circumstance . .
  • Cited – McClean, Re HL (Bailii, [2005] UKHL 46, House of Lords)
    The appellant was serving a life sentence for terrorist offences. He complained that he should have been released under the 1998 Act. It was said he would be a danger to the public if released. On pre-release home leave he was involved in a . .
  • Cited – Hutchison Reid v The United Kingdom ECHR (Times 26-Feb-03, Bailii, [2003] ECHR 94, 50272/99, (2003) 37 EHRR 211, Bailii, [2003] ECHR 94)
    The applicant had been detained over many years after committing offences of a sexual and violent nature. After one release he reoffended and was re-detained after completing his sentence. He challenged the basis of his continued detention.
  • Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL (House of Lords, Times 21-Oct-02, Bailii, [2002] UKHL 39, [2002] 3 WLR 1313, [2003] 1 AC 787, [2002] 4 All ER 593, [2003] BLGR 57, [2002] 13 BHRC 482, (2002) 166 JPN 850, (2002) 166 JP 657, [2003] HLR 17, [2002] UKHRR 1286, [2003] 1 Cr App R 27)
    The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
    Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
  • Cited – Stogmuller v Austria ECHR (1602/62, (1969) 1 EHRR 155, Bailii, [1969] ECHR 2, Bailii, [1964] ECHR 10, Bailii, [1969] ECHR 25)
    Hudoc Violation of Art. 5-3; Just satisfaction reserved
    The court contrasted the stipulation in article 6(1)-the general requirement for a hearing of any proceedings, civil or criminal, ‘within a reasonable . .
  • Cited – Regina v Leeds Crown Court, Ex parte Bagoutie (Unreported, 31 May 1999)
    Lord Bingham: ‘The court made plain in Ex p McDonald, as indeed is plain on the face of the statute, that when seeking an extension or a further extension of the custody time limit the Crown must show that there is good and sufficient [reason] for . .
  • Cited – Regina (Gibson and Another) v Winchester Crown Court QBD (Times 09-Mar-04, Bailii, [2004] EWHC 361 (Admin), Gazette 18-Mar-04, [2004] 1 WLR 1623)
    The defendant challenged extension of the custody time limit, saying that the prosecuting authorities had not acted with due diligence to take the case forward.
    Held: Though the prosecutor had not acted as required, in this case the actual . .
  • Cited – SBC v The United Kingdom ECHR ((2001) 34 EHRR 619, Bailii, [2001] ECHR 396, 39360/98, Bailii, [2001] ECHR 400)
    Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3; Violation of Art. 5-5; No violation of Art. 13
    The respondent government conceded that the absolute ban on the grant of bail to section 25 . .
  • Cited – Punzelt v The Czech Republic ECHR ((2001) 33 EHRR, Bailii, [2000] ECHR 169, 31315/96, Bailii, [2000] ECHR 170)
    Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3 with regard to length of detention; No violation of Art. 5-3 with regard to refusal of bail; No violation of Art. 6-1; Pecuniary damage – claim . .
  • Cited – Contrada v Italy ECHR (Bailii, 27143/95, ECHR, , Bailii, [1997] ECHR 184)
    The court rejected a complaint under article 5(3). The court said: ‘The right of an accused in detention to have his case examined with particular expedition must not hinder the efforts of the courts to carry out their tasks with proper care . . In . .
  • Cited – Grisez -c- Belgique ECHR (35776/97, Bailii, [2002] ECHR 632, (2003) 36 EHRR 854, Bailii, [2002] ECHR 637)
    The court held that ‘the medical experts did actually cause a certain amount of delay in the conduct of the proceedings,’ and rejected the complaint under article 5(3): ‘[T]he delay due to the medical reports, although improper, does not in itself . .
  • Cited – Regina v Kansal (2) HL (Times 04-Dec-01, House of Lords, Bailii, Gazette 17-Jan-02, [2001] UKHL 62, [2001] 3 WLR 1562, [2002] 2 AC 69, [2002] 1 All ER 257, [2002] HRLR 9, [2002] BPIR 370, [2002] 1 Cr App R 36)
    The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
    Held: In doing so the prosecutor was acting to give effect to section 433. The decision in Lambert to disallow retrospective effect . .

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