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Published online by Cambridge University Press: 12 November 2010
Whilst the power of the police to release a person on bail prior to trial has existed for centuries, the power to release on bail a person suspected of but not charged with a criminal offence has been available to the police only since 1925. The power to attach conditions to pre-charge bail is of very recent origin, having been introduced for the first time in 2003 but rapidly expanded since then. Whilst imposing restrictions on the liberty of a person should, constitutionally, be reserved to the judiciary, the fact that it was originally conceived, in part at least, as a mechanism for enhancing liberty reduced the constitutional tension created by allowing members of the executive such powers. However, the changing role of arrest in the investigation of crime and the granting of extensive powers to the police to impose bail conditions means that the police now have the ability to place controls on people not charged with a criminal offence for extended periods of time. It is argued here that this is in breach of the right to liberty under Article 5 of the European Convention on Human Rights and, in practice, may also breach other Convention rights.
1 For example, “Lawyers to fight bail conditions that “stifle” climate protests”, guardian.co.uk, 3 May 2009; “Didcot demonstrators: Police use bail restrictions to stifle climate protests”, guardian.co.uk, 27 October 2009.
2 A notable exception were the proposed changes to the law relating to police bail conditions made by the Liberal Democrats. See HL Deb. vol. 713 col. 579 (20 October 2009).
3 Joint Committee on Human Rights, Second Report on the Criminal Justice Bill, HL (2002–02) 40.
4 R(C) v. Chief Constable of A and A Magistrates' Court [2006] EWHC 2352 (Admin); R (Ajaib) v. Birmingham Magistrates' Court [2009] EWHC 2127 (Admin).
5 See Raine, J. and Wilson, M., “Police Bail with Conditions: Perspectives on the Use, Misuse and Consequences of a New Police Power” (1997) 37 British Journal of Criminology 593CrossRefGoogle Scholar, and A. Hucklesby, “Police Bail and the Use of Conditions” (2001) Criminology and Criminal Justice 44, although both concern bail granted after charge. Ben Newton, in his chapter “Bail”, in M. Colvin and J. Cooper, Human Rights in the Investigation and Prosecution of Crime (Oxford University Press, 2009), briefly considers the human rights implications of street bail but, although critical, does not pursue his analysis. Stefan Trechsel, in his otherwise comprehensive work Human Rights in Criminal Proceedings (Oxford University Press, 2005) does not consider police bail, and it is not considered in B. Emmerson, A. Ashworth and A. Macdonald, Human Rights and Criminal Justice (2nd ed. Sweet and Maxwell, 2007) nor in K. Ewing Bonfire of the Liberties: New Labour, Human Rights, and the Rule of Law (Oxford University Press, 2010).
6 State of Mauritius v. Khoyratty [2006] UKPC 13; [2007] 1 A.C. 80.
7 See, for example, R. Young, “Street Policing after PACE: The Drift to Summary Justice” in E. Cape and R. Young (eds.), Regulating Policing: The Police and Criminal Evidence Act 1984 Past, Present and Future (Hart 2008), ch. 7, and R. Morgan, Summary Justice: Fast – but Fair? (Centre for Crime and Justice Studies, 2008).
8 The police have no common law power to grant bail. See Williamson v. Chief Constable of the West Midlands [2003] EWCA Civ 337, (2003) 167 J.P. 181 at 192 [20] (Dyson LJ).
9 Notwithstanding the contemporary centrality of police bail to the functioning of policing the historic roots of this power, essential for determining its proper ambit, have attracted very little detailed attention.
10 See Metropolitan Police Act, 1829, s. 9; Metropolitan Police Act, 1839, ss. 70–72; Metropolitan Police Courts Act, 1840, s. 8; Metropolitan Police Act 1864, s. 2 (an Act passed to deal with anti-social street musicians); Town Police Clauses Act 1847, ss. 17–19; Summary Jurisdiction Act 1879, s. 38 (extending police bail to felonies in certain cases and amended by later Acts); Municipal Corporations Act, 1882, s. 227 (borough police empowered to grant bail); Criminal Justice Administration Act 1914, s. 22; Criminal Justice Act 1925, s. 45 (pre-charge bail); Magistrates Act 1952, s. 38 (consolidating and re-enacting previous provisions); and Magistrates Act 1980, s. 43.
11 Even before the establishment of the Metropolitan police their forerunners were taking bail. The 1828 Select Committee on the Police of the Metropolis recorded in evidence that some Substitute-Constables were in the habit of taking bail from some defendants, particularly undergraduates at universities who had a propensity towards drink and violence. Bail taken in such circumstances, it seems, formed part of their remuneration, which is not altogether surprising as the police were largely unpaid. See the “Report from the Select Committee on the Police of the Metropolis” 1828 (533) Parliamentary Papers (1828) evidence of J S Thomas, 14th March 1828, K4 79. No doubt for this very reason Metropolitan Police Act 1829, s. 9, prohibited constables from taking “any fee or reward” for granting bail.
12 The issue of warrants was another area where the separation of powers was blurred, much to the concern of the magistrates.
13 Sir Leon Radzinowicz, History of English Criminal Law and its Administration Since 1750, Volume Four Grappling for Control (Stevens and Sons, 1968), pp. 193–194.
14 In these circumstances the Secretary of State intervened to admit those detained to bail.
15 C. Petersdorf, A Practical Treatise on the Law of Bail (Butterworths 1824), pp. 502–503.
16 Report from Select Committee on Metropolis Police Offices 1837–38 (578) Parl Papers (1837–1838) 33.
17 Select Committee Report (note 16 above) Recommendation No 11 p. 34.
18 Select Committee Report (note 16 above) evidence of James Traill, magistrate, 37 Evidence. However, an earlier House of Commons select committee report in 1833 had argued that such an extension was not necessary.
19 Summary Jurisdiction Act 1879, s. 38.
20 The full extent of the powers is summarised very helpfully in the Report of the Royal Commission upon the duties of the Metropolitan Police, 1908 Cd. 4156 [42]–[43].
21 Report (note 20 above), p. 75 [12] and [14].
22 C. Emsley, The Great British Bobby (London 2009), 208.
23 Report of an inquiry held by the Right Hon. J.F.P. Rawlinson, K.C., M.P., into the arrest of Major R.O. Sheppard (HMSO 1924–25), Cmd. 2497 p. 6.
24 Note 23 above, p. 5.
25 HL Deb. vol. 65 col. 263 (9 December 1925).
26 The Law Times, 12th September 1925 vol. 160, p. 189.
27 1928–29 Cmd. 3297. For another example of custodial abuse see Report of the Tribunal appointed under the Tribunals of Inquiry (Evidence) Act, 1921, in regard to the interrogation of Miss Savidge by the Police 1928, Cmd. 3147. This inquiry led to important changes in the way that female suspects were interviewed.
28 Royal Commission on Police Powers and Procedures (1928–29) Cmd. 3297, ch. 5.
29 Note 28 above, [143]. The Commission thought that power was inappropriate in cases where the suspect was arrested on suspicion of having committed a serious offence, or where the suspect was of no fixed abode.
30 K. Bottomley and K. Pease, Crime and Punishment: Interpreting the Data (Milton Keynes 1986), p. 66.
31 R. Gemmill and R. Morgan-Giles, Arrest, Charge and Summons Research Study No. 9 (HMSO 1980) 21, Table 3.7, cited in Bottomley and Pease (note 30 above), 66. Between 8 and 17% of those in police custody were bailed under s. 38(2) for further inquires. A similar figure was later found by the Home Office Research Study No 185 Entry into the criminal justice system: a survey of police arrests and their outcomes by C. Phillips and D. Brown, 82. However, 44% of bailed suspects had no further action taken against them, 83.
32 H. Street Freedom, the Individual and the Law (Harmondsworth 1967), pp. 26–27. A full account of the abuse of police bail in the case of Mandy Rice-Davies can be read in S. Bowes, The Police and Civil Liberties (London 1966), pp. 146–147.
33 M King, Bail or Custody (London 1971).
34 Note 33 above, p. 8.
35 [1970] 1 All E.R. 413.
36 Note 33 above, p. 6.
37 Home Office Research Unit, The Use of Bail and Custody by London Magistrates Courts Before and After the Criminal Justice Act 1967, Report No 20 (HMSO 1974), p. 15.
38 Note 37 above, p. 8.
39 Note 33 above, p. 8.
40 Report of the Working Party on Bail Procedures in Magistrates' Courts (HMSO 1974), 179–180.
41 Galligan, D., “The Working paper on Bail” (1975) 38 MLR 59Google Scholar, 63.
42 K. Bottomley, Decisions in the Penal Process (London 1973), pp. 87–88.
43 For a comprehensive treatment see M. Zander, The Police and Criminal Evidence Act 1984 (5th ed., Londonl 2005), and for a critical analysis of the impact of PACE 1984 see E. Cape and R. Young (eds.), Regulating Policing: The Police and Criminal Evidence Act 1984 Past, Present and Future (Oxford 2008).
44 RCCP, Report, Cmnd. 8092 (HMSO 1981).
45 This is despite the fact that research that it had commission found evidence of such use. See P. Softley, Police Interrogation: An Observational Study in Four Police Stations, Research Study No 4 (HMSO 1980).
46 Above note 42, p. 58.
47 In respect of post-charge bail, the Commission recommended that the police should have the power to impose conditions.
48 Section 38 permitted the custody officer to withhold bail on a number of grounds, which originally did not include fear of offences being committed although this was subsequently added. Apart from adding powers to impose conditions, the bail powers referred to have remained substantially the same.
49 RCCJ, Report, Cm 2263, (HMSO 1993), p. 73.
50 M. McConville and J. Hodgson, Custodial Legal Advice and the Right to Silence, Research Study No 16 (HMSO 1993), p. 121.
51 Consultation Paper No. 157.
52 HC 7, Law Com. No. 269 (Law Commission 2001).
53 CM 5563 (HMSO 2002).
54 Published as PACE Review: Report of the Joint Home Office/Cabinet Office Review of the Police and Criminal Evidence Act (Home Office, 2002).
55 Note 54, p. 54.
56 PA Consulting Group, Diary of a Police Officer, Police Research Series Paper 149 (Home Office 2001), pp. 9 and 12 respectively. It was subsequently estimated that allowing an officer to bail an arrested person to attend a police station on a future date could save 390,000 hours of officers' time annually. See Policing Bureaucracy Taskforce, Street Bail: an Alternative to Immediate Detention, (Home Office 2004). For an analysis, see A. Hucklesby, “Not Necessarily a Trip to the Police Station: The Introduction of Street Bail” [2004] Crim. L.R. 803.
57 See Zander, M., “The Joint Review of PACE: a Deplorable Report” (2003) 153 N.L.J. 204Google Scholar, and E. Cape, “Criminal Justice Act 2003 – no debate?” (2004) January Legal Action 6.
58 Note 54 above, p. 23.
59 By CJA 2003, s. 4.
60 It also made the obligation specifically subject to the power to de-arrest the person under s. 30(7).
61 Although if no police station or time is specified, it must subsequently be specified in a written notice (s. 30B(5)).
62 See RCCP Report (note 44 above), para. 8.5.
63 Joint Committee on Human Rights, Second Report on the Criminal Justice Bill HL (2002–02) 40, paras. 36–42.
64 In fact, the Circular states “What type of offence has been committed?” (emphasis added), providing an interesting, if disconcerting, insight into the Home Office attitude to due process.
65 See Director's Guidance on Charging, available at http://www.cps.gov.uk/Publications/directors_guidance/dpp_guidance.html, and I. Brownlee, “The statutory charging scheme in England and Wales: towards a unified prosecution system?” [2004] Crim. LR. 896.
66 For information on CPS Direct, see http://www.cps.gov.uk/direct/. For a critical account see J. Jackson, “Police and Prosecutors after PACE: The Road from Case Construction to Case Disposal” in E. Cape and R. Young, Regulating Policing: The Police and Criminal Evidence Act 1984 Past, Present and Future (Oxford 2008).
67 Which has the meaning set out in Bail Act 1976, s. 3(6).
68 (Home Office 2004).
69 The Serious Organised Crime and Police Act 2005, Part 3, amended PACE 1984, ss. 24 and 25, and other legislation, to make all offences arrestable. See R. Austin, “The New Powers of Arrest: Plus ça change: More of the Same or Major Change?” [2007] Crim. L.R. 459; J. Spencer, “Extending the police state” (2005) N.L.J. 1 April, 477; and E. Cape, “Ever increasing police powers” (2005) February Legal Action 8.
70 CM 6360 (Home Office 2004).
71 It should be noted that whilst the provisions regarding conditional bail apply throughout England and Wales some police forces, such as Hampshire Constabulary, currently do not permit their officers to impose conditional street bail. See http://www.hampshire.police.uk/NR/rdonlyres/A914C82D-C701-444F-96CE-DF8FBC487440/0/00901.pdf.
72 Joint Committee on Human Rights, Legislative Scrutiny: Tenth Progress Report HL 186 I/HC 1138 (2005–06), 1.11, a point later repeated in Joint Committee On Human Rights, Counter–Terrorism Policy and Human Rights (Tenth Report): Counter–Terrorism Bill HL 108 (2007–2008), 50.
73 Briefing on the Police and Justice Bill 2006 (Liberty, London 2006), p. 11.
74 Under s. 19 the minister responsible for a bill must certify either that it is compatible with ECHR rights or that, despite the fact that it is not, he nevertheless wishes the House to proceed with consideration of it.
75 “432. Part 2 – Powers of police etc: police bail.The provisions in Schedule 4 in respect of police bail engage Article 5 to the extent to which they permit an individual to be arrested or detained at a police station and permit the imposition of a condition restricting a person's movement to such an extent as to fall within the scope of Article 5 (for example, severe restrictions on a person's free moment). They may also engage Article 8 because they may interfere with the person's right to a private life (for example, a prohibition on visiting certain persons). Any interference with Article 5 would be justified under Article 5(1) (b) as being in order to secure the fulfilment of an obligation prescribed by law or under Article 5(1) (c) as being for the purpose of bringing the person before the competent legal authority on reasonable suspicion of having committed an offence. Any interference with Article 8 would be justified on the basis that it is necessary for the prevention of disorder or crime under Article 8(2).” Police and Justice Bill Explanatory Notes available at http://www.publications.parliament.uk/pa/ld200506/ldbills/104/en/06104x-f.htm.
76 Note 72 above at para. 1.15.
77 It does not extend to permitting conditions to be imposed where a person is released on bail without charge under other sections of PACE 1984, eg., under s. 34(5): R (Torres) v. Commissioner of Police of the Metropolis [2007] EWHC 3212 (Admin).
78 Note that the former labour government has proposed that the power to impose conditions be extended to pre-charge bail granted under other provisions in the PACE 1984, that the police should have powers of arrest in respect of anticipated breach of conditions or anticipated failure to surrender to custody, and that failure to surrender to street bail be made a criminal offence. See Modernising Police Powers: Review of the Police and Criminal Evidence Act (PACE) 1984: Consultation Paper (Home Office 2007), and PACE Review: Government proposals in response to the Review of the Police and Criminal Evidence Act 1984 (Home Office August 2008).
79 [2007] EWHC 3212 (Admin). The custody officer had purported to impose conditional bail under s. 34(5), which is not permissible, but the court held that where a custody officer had not determined that there was sufficient evidence to charge, the police had a choice of which section to use, and using s. 37(2) would enable them to impose conditions.
80 Conditional cautions, which are a matter for a Crown Prosecutor, are governed by the CJA 2003 Part 3. It should be noted that s. 37 is not satisfactory in that where a person is bailed under s. 37(7)(b), arguably they cannot be further detained for questioning or investigation when they surrender to bail since, under s. 37(1), the custody officer must decide whether there is sufficient evidence to charge (which, of course, has already been determined before bail was granted) and, determining that there is such evidence, must deal with the person under s. 37.
81 See G v. Chief Constable of West Yorkshire Police [2006] EWHC 3485 (Admin), and for an analysis see E. Cape, “Police Bail and the Decision to Charge: Recent Developments and the Human Rights Deficit” (2007) Archbold News 7, 6.
82 See note 65 above.
83 Director's Guidance on Charging, note 65 above, at [3.10]. The test in the revised Code for Crown Prosecutors, which came into force in February 2010, retains the reasonable suspicion test, but also requires the Crown prosecutor to be satisfied that there are reasonable grounds for believing that further evidence sufficient to satisfy the full code test will become available within a reasonable period of time.
84 See, for example, Castorina v. Chief Constable of Surrey (1988) 138 N.L.J. 180; O'Hara v. Chief Constable of the Royal Ulster Constabulary [1997] AC 286; Al Fayed v. Metropolitan Police Commissioner [2004] EWCA Civ 1579; Chief Constable of West Yorkshire v. Armstrong [2008] EWCA Civ 1582; and Alford v. Chief Constable of Cambridgeshire [2009] EWCA Civ 100. Contrast R v. Olden [2007] EWCA Crim 726; and Commissioner of Police for the Metropolis v. Raissi [2008] EWCA Civ 1237.
85 See, for example, King v. Gardner (1979) 71 Cr App R 13, and Clarke v. Chief Constable of North Wales Police [2000] All E.R. (D) 477.
86 A. Sanders and R. Young, Criminal Justice (3rd ed., Oxford 2007), p. 164.
87 John Lewis & Co v. Tims [1952] A.C. 676, 691–2 (Lord Porter). Although Tims concerned arrest by store detective Lord Porter was careful to say that his remarks applied, mutatis mutandi, to police officers (680).
88 Before 1967 this is all that the common law would have permitted; Criminal Law Act 1967, s. 2.
89 Hussein v. Chong Fook Kam (1970) A.C. 942, 948 (Lord Devlin). In this Lord Devlin was echoing Lord Porter in Tims: “Those who arrest must be persuaded of the guilt of the accused; they cannot bolster up their assurance or the strength of the case by seeking further evidence and detaining the man arrested meanwhile or taking him to some spot where they can or may find further evidence” (691).
90 Holgate-Mohammed v. Duke (1984) A.C. 437, 441–442 (Lord Diplock).
91 A position that has been held to be acceptable under the ECHR. See for example Murray v. United Kingdom [1994] ECHR 14310/88. It must be said that the reasoning of the majority in this case is far from convincing.
92 This is an unhappy legacy of the effect of the decisions in cases such as Dallison v. Caffery [1965] 1 Q.B. 348 and Holgate-Mohammed v. Duke [1984] A.C. 437 that allowed the police to use arrest as an investigatory tool. In these cases no thought was given to the wider implications of allowing the police to arrest for investigations rather than to bring a person suspected of offending before a magistrates' court.
93 Syed Mahamad Yusuf-Ud-Din v. Secretary of State for India in Council (1903) 19 T.L.R. 496, 497 (Lord MacNaghten). In Syed the Privy Council held that once a prisoner was freed on bail he was no longer imprisoned and could not thus bring an action for false imprisonment for the time he spent on bail. The decision of the Judicial Committee is per incuriam. The cases referred to below were not cited before the Committee or referred to in its judgment.
94 de Haas, E., “Concepts of the Nature of Bail in English and American Criminal Law” (1946) 6 University of Toronto Law Journal 385CrossRefGoogle Scholar, 393. The phrase comes from the account found in the L'Ancienne Coutume de Normandie.: the “accused was considered as being held by the sureties in lieu of a prison of stone and mortar” (de Haas, (393)).
95 de Haas (note 94 above) 393–394.
96 The early English case law is meticulously catalogued in de Haas, and is drawn upon here.
97 Year Book, 4 Hen. VI at 8 pl. 21.
98 Anon (1704) 6 Mod. Rep. 231. This is a view long approved by the Supreme Court of the USA: “When bail is given the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment” (Taylor v. Taintor 83 U.S. 366, 371–372 (1872)). Following the decision of the USA Supreme Court in Leary v. United States 224 U.S. 567, 575–576 (1912) a contract system of bail replaced the common law one. This is an approach contrary to public policy in English law: “When a man is ordered to find bail, and a surety becomes responsible for him, the surety is bound at his peril to see that his principal obeys “the order, of the Court: at least, this is the, rule in the criminal law; but if money to the amount for which the surety is bound is deposited, with him as an indemnity against, any loss which he may sustain, by reason of his principal's conduct, the surety has no interest in taking care that the condition of the recognisance is performed. Therefore the contract between the plaintiff and the defendant is tainted with illegality” (Herman v. Jeuchner (1884–85) L.R. 15 Q.B.D. 561, 563 (Brett MR)).
99 Foxall v. Barnett (1853) 23 L.J.Q.B. 7, 8 (Coleridge J ).
100 Bottomley, A., “The Granting of Bail: Principles and Practice” (1968) 31 M.L.R. 40CrossRefGoogle Scholar, 49. Parliament acted because the poor were needlessly detained as a result of being unable to find sureties with sufficient resources, and the view was formed that the poor need not provide sureties as they were less likely to abscond.
101 Schedule 2 of the Bail Act 1976 dispensed with the term “at large on bail” so far as statute is concerned. but see R v. Rebecca Saw [2009] EWCA Crim 1, [2009] 2 Cr. App. R (S) 54, 43 (Judge LCJ).
102 For the former Labour government's proposals to extend powers of arrest to anticipated breach of conditions or failure to surrender to custody, and to make them criminal offences, see note 78 above.
103 This may be contrasted with police bail post-charge where, under PACE 1984, s. 47(3A), the date of the first court appearance must normally be no later than the first sitting of the relevant magistrates' court after the person is charged. It may also be contrasted with bail from a court where, whilst there are no time limits in relation to bail itself, there are in practice a number of factors limiting the period for which a defendant will be on bail.
104 House of Commons Standing Committee D, 21 March 2006, Hansard cols. 136–138. The policy guidance issued by the Kent Police states that normally street bail should have a return date of no more than two weeks, although it does envisage that it could be up to six weeks, or even longer in exceptional circumstances.
105 [2006] EWHC 2352 (Admin).
106 This was unconditional bail, since the provision of Police and Justice Act 2006 had not then been brought into effect, but it is unlikely that it would have made any difference if conditions had been imposed since, in any case, the court could have varied or removed the conditions.
107 Home Office Circular 61/2003 Criminal Justice Act 2003: Bail Elsewhere than at a Police Station, section C. Since this circular was issued, the category of “serious arrestable offence”, previously defined in PACE 1984, s. 116 and Sch. 5, has been abolished by CJA 2003, Sch. 7, para. 43. Some police forces, in their internal guidance, also stress that street bail will normally only be suitable in relation to minor offences. See, for example, Kent Police Policy Document N64 Bail, para 19.2.
108 [1985] Q.B. 613.
109 Again, this may be contrasted with court bail.
110 See, for example, Bail and the Human Rights Act 1998, HC 7, (Law Commission 2001) at 73 and 81. In its submission to the Commission, the Metropolitan Police expressed concern that bail conditions (following charge) were being imposed for non-imprisonable offences where there were no grounds for detaining the person in custody pending their court appearance.
111 For example, Kent Police (see note 107 above), at para 13.2 in respect of bail granted by a custody officer, although this is not explicitly repeated in respect of street bail decisions.
112 Note 107 above, at para. A.5.
113 It should be noted that neither the legislation nor Home Office Circular 61/2003 makes any special provision in respect of juveniles beyond, in the case of the latter, requiring the parent or carer to be informed. Despite the fact that Youth Justice Board guidance emphasises the importance of bail supervision and bail support schemes for juveniles, the provisions regarding street bail and pre-charge bail apply to juveniles in the same way as they apply to adults except that conditions can additionally be imposed on a juvenile for their own welfare or in their own interests. There is no equivalent to the Children and Young Persons Act 1933, s. 44(1), which requires a court when dealing with a child or young person to have regard to their welfare.
114 PACE 1984, s. 36(3).
115 Bail Act 1976, s. 5A. A suspect's lawyer has a right to inspect the custody record as soon as practicable after their arrival at a police station (PACE Code of Practice C, para. 2.4), and the suspect and their lawyer are entitled to a copy of the custody record if a request is made when the person is taken to court or within 12 months of release from police detention (PACE Code C, para. 2.4A).
116 Asseov v. Bulgaria [1998] ECHR 24760/94, at [146].
117 McKay v. United Kingdom [2006] ECHR 543/03 [30].
118 Ladent v. Poland [2008] ECHR 11036/03, at [45]–[46].
119 Now given statutory force in the United Kingdom by virtue of Human Rights Act 1998, Sch. 1.
120 Stack v. Boyle, 342 U.S. 1, 4 (1951).
121 Zander, M., “Bail: A Re-appraisal” [1967] Crim. L.R. 25, 26Google Scholar.
122 Dumbell v. Roberts [1944] 1 All ER 326, 329 (Scott L.J.): “The British principle of personal freedom, that every man should be presumed innocent until he is proved guilty, applies also to the police function of arrest”.
123 In Fatullayev v. Azerbaijan [2010] ECHR40984/07 the European Court held that once the applicant had been detained during an investigation, though not formally indicted, Article 6(2) applied [155].
124 Serves v. France [1997] ECHR 82/1996/671/893, at [42]; Eckle v. Germany [1982] ECHR 8130/78, at [73]. The narrow and literal approach of the English courts is at odds with this. See R (Ajaib) v. Birmingham Magistrates Court [2009] EWHC 2127 (Admin) at [40] (Dobbs J), in which it was held that Article 6 had no application to pre-charge bail since the applicant was not the subject of a criminal charge. With respect this must be wrong. Whilst the extent of the rights that apply pre-charge is not necessarily as extensive as those that apply during the trial it is wrong both in principle and as a matter of authority to seek to place the articles of the ECHR in watertight compartments. See Murray v. UK [1996] 18731/91. For an analysis of ECtHR jurisprudence on the application of Article 6 ECHR to the investigative stage, see E. Cape, Z. Namoradze, R. Smith and T. Spronken, Effective Criminal Defence in Europe (Antwerp 2010), ch. 2.
125 Garycki v. Poland [2007] ECHR 14348/02, at [68].
126 A. Duff, Answering for Crime (Oxford 2008), p. 196.
127 Duff (note 126 above), p. 197.
128 Lavents v. Latvia [2008] ECHR 58442/00, at [70].
129 Nerattini v. Greece [2008] ECHR 43529/07, at [34].
130 Nerattini, at [21].
131 Nerattini, at [25].
132 Allenet de Ribemont v. France [1996] ECHR 15175/89, at [36].
133 [2007] ECHR 14348/02, at [66].
134 Daktaras v. Lithuania [2001] ECHR 42095/98, at [42]: “Moreover, the principle of the presumption of innocence may be infringed not only by a judge or court but also by other public authorities, including prosecutors. This is particularly so where a prosecutor, as in the present case, performs a quasi-judicial function when ruling on the applicant's request to dismiss the charges at the stage of the pre-trial investigation, over which he has full procedural control”.
135 Aquilina v. Malta [1999] ECHR 25642/94, [49].
136 And in the domestic context this is recognised by the fact that a person cannot be detained without charge for longer than 36 hours before they must be produced to a magistrates' court (PACE 1984, ss. 41 and 42).
137 For example in Rokhlina v. Russia [2005] ECHR 54071/00 the ECtHR held that for the purposes of the Convention the applicant was “charged” when she was arrested on suspicion of murdering her husband and taken into custody, even though she was not formally charged under Russian law until some time later.
138 Article 6 will apply when a person is “charged”. The ECtHR has defined this “as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence” (Deweer v. Belgium [1980] ECHR 6903/75, at [46]). While Article 6 does not fully apply until the suspect is formally charged, parts of that Article do apply at the pre-trial stage in order that the rights of the defence are not subsequently prejudiced.
139 The exceptions to the right to liberty contained in Article 5 are exhaustive and strictly defined. They are to be construed narrowly in a way that favours the individual: Ilijkov v. Bulgaria [2001] ECHR 33977/96, at [85].
140 See note 75 above.
141 The possibility of which is recognised by PACE 1984, s. 30(7) and (7A), although this terminology is not used in the legislation.
142 See the text to note 105 above.
143 John Lewis v. Tims [1952] AC 676.
144 Although there would still be no automatic judicial oversight of arrest decisions.
145 Schiesser v. Switzerland [1979] ECHR 7710/76, at [32].
146 Winterwerp v. Netherlands [1979] ECHR 6301/73, at [60].
147 Ireland v. United Kingdom [1978] ECHR 5310/71, at [199].
148 Although by virtue of PACE 1984, s. 37A(1)(a), this would only apply to bail decisions made under PACE 1984, s. 37(7), s. 37C(2) or s. 37CA(2) and not, for example, to bail under s. 37(2). Custody officers are required to have regard to any such guidance (s. 37A(3)). It would seem that a Crown Prosecutor does not have power to make a bail decision, or to direct a custody officer to make a bail decision, in an individual case, although ss. 37B – 37CA are not completely clear on this point. See Merit v. Ukraine [2004] ECHR 66561/01, at [62]–[63]; and also Niedbala v. Poland [2000] ECHR 27915/95, at [51]–[57].
149 Pantea v. Romania [2003] ECHR 33343/96, at [236]–[239].
150 These conflicting roles are similar to those found in courts martial. See Miller v. UK [2004] ECHR 45825/99, at [29]–[30].
151 Thompson v. United Kingdom [2004] ECHR 36256/97, at [33].
152 Hucklesby, A., “Police Bail and the Use of Conditions” (2001) Criminology and Criminal Justice 441, 443Google Scholar.
153 [2005] ECHR 65518/01. At [58] the Court concluded: “The prosecution authorities not only belong to the executive branch of the State, but they also concurrently perform investigative and prosecution functions in criminal proceedings and are party to those proceedings. The Court therefore reiterates its position as to the status of the prosecutor, who cannot be regarded as an officer authorised by law to exercise judicial power! and rejects the Government's arguments in this respect”.
154 Both the police (Police Act 1996) and the Crown Prosecution Service (Prosecution of Offenders Act 1985) are creatures of statute. Both are nominally operationally independent but are subject to the control of the executive (Police Act 1996, s. 36A and Prosecution of Offences Act 1985, ss. 2 and 9).
155 See A. Sanders and R. Young, Criminal Justice (3rd ed, Oxford University Press, 2007) especially chapters 2 and 3.
156 PACE 1984, s. 30CA. Subsequently the suspect can apply to a magistrates' court under s. 30CB.
157 Herczegfalvy v. Austria [1993] ECHR 10533/83, at [89].
158 Note 156 above, at [96].
159 Note 156 above, at [96].
160 “Quality in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness”: Amuur v. France [1996] ECHR 19776/92, at [50].
161 Vlasov v. Russia [2008] ECHR 78146/01, at [125].
162 Vasileva v. Denmark [2003] ECHR 52792/99.
163 Raine, J. and Wilson, M., “Police Bail – Perspectives on the Use, Misuse and Consequences of new Police Power” (1997) 37 British Journal of Criminology 593CrossRefGoogle Scholar, 605.
164 Choongh, S., “Policing the Dross – A Social Disciplinary Model of Policing” (1998) 38 British Journal of Criminology 623CrossRefGoogle Scholar, 625; Hucklesby, A., “Police Bail and the Use of Conditions” (2001) Criminology and Criminal Justice 441, 444Google Scholar.
165 See for example Artico v. Italy [1980] ECHR 6694/74.
166 Smirnov v. Russia [2005] ECHR 71362/01, at [49]; Gillan v. UK [2010] ECHR 4158/05, at [76]–[87].
167 Papachristou v. City of Jackonsville 405 US 156, 170 (1972).
168 Dawood v. Minister of Immigration [2000] CCT 35/99, at [47] (O'Regan J).
169 Bail Act 1976, s. 3(6) and PACE 1984, s. 30A(3B) are almost identical in this respect. Conditions may be imposed if they are necessary to secure that the suspect surrenders to custody, does not commit an offence whilst on bail, does not interfere with witnesses or otherwise obstruct the course of justice, or necessary for his own protection or, in the case of a suspect under the age of 17, for his own welfare or in his own interests.
170 In the same way that magistrates do. See R v. Mansfield Justices, ex parte Sharkey [1985] 1 All ER 193. Hucklesby (note 164 above, at 261) noted that magistrates' courts can impose an infinite variety of bail conditions. This is true of police bail as well, the police enjoying virtually the same powers.
171 See the discussion in the Law Commission, Bail and the Human Rights Act 1998 (Law Com No 269 HC 7, 2001) [9B-15] – [9B-18].
172 For example, Home Office Circulars 61/2002, 61/2003 and 021/2007.
173 Khan v. United Kingdom [2000] ECHR 35394/97, at [25]–[28].
174 Gatt v. Malta [2010] ECHR 28221/08, at [49].
175 We do not know what conditions the police, in general, impose as this information is not collected or, indeed, monitored centrally.
176 For example, many of the Belmarsh detainees were freed on conditional bail following the decision of the House of Lords in A v. Home Secretary [2004] UKHL 56. Those conditions were in effect identical to the control orders later imposed on the terrorist suspects. See Walker, C., “Keeping Control of Terrorists without Losing Control of Constitutionalism” (2006–2007) 59 Stan. L. Rev. 1395Google Scholar, 1410.
177 Each case inevitably turns on its own facts: “To determine whether a person is deprived of his or her liberty the Court must look upon the actual circumstances of the regime to which he or she was subject, as a matter of law and in fact” (Pekov v. Bulgaria [2006] ECHR 50358/99, at [73]).
178 Secretary of State for the Home Department v. JJ [2007] UKHL 45 [2008] 1 AC 385, [103] (Lord Brown).
179 Note 176 above, [105], (Lord Brown) and [61] (Lady Hale).
180 CJA 2003 s. 240A. A “qualifying curfew condition” is defined as “a condition of bail which requires the person granted bail to remain at one or more specified places for a total of not less than 9 hours in any given day”. The defendant must be electronically tagged: R v. Barrett [2009] All E.R. (D) 40 (Sep); R v. Girma [2009] EWCA Crim 912, at [95]. For discounts before s. 240A came into force see R v. Glover [2008] EWCA Crim 1782, at [14] (Hughes L.J.).
181 See model conditions in Home Office and ACPO Guidance on the Safer Detention and Handling of Persons in Police Custody (2006), 171.
182 Note 181 above.
183 Raine and Wilson, note 163 above, pp. 258–259.
184 Baroness Miller of Chilthorne Domer, Policing and Crime Bill, HC Deb. vol. 713 col. 579 (20 Oct 2009)., and see P. Lewis, “Lawyers to fight bail conditions that ‘stifle’ climate protests”, The Guardian 3 May 2009, available at www.guardian.co.uk/environment/2009/may/03/climate-rush-protesters-bail-challenge. They were also prohibited from being any closer to Parliament than one kilometre.
185 See a discussion of this problem with respect to Terrorism Act 2000, ss. 44 and 45, powers in Edwards, R., “Stop and Search, Terrorism and the Human Rights Deficit” (2008) 37 C.L.W.R. 211Google Scholar, 221–222. In Gillan the ECtHR declined to examine the application under Articles 10 and 11 having held that there was an infringement under Article 8 ECHR.
186 See Brogan and others v. United Kingdom (1989) 11 EHRR 117.
