O, R (on the application of) v Crown Court At Harrow

Factual and Procedural Background

The case concerns a claim for judicial review and an application for Habeas Corpus relating to a decision by Judge Sanders at the Crown Court at Harrow on 9th December 2002. The decision refused bail to the Appellant despite the expiration of the custody time limit applicable to his case.

The Appellant was charged with rape, false imprisonment, and indecent assault allegedly committed in mid-September 2000. The Appellant was arrested and charged in December 2001, with the case sent for trial at the Central Criminal Court. Multiple applications for bail were refused due to the Appellant’s prior conviction for rape and violent offences, which triggered the application of section 25 of the Criminal Justice and Public Order Act 1994, requiring "exceptional circumstances" for bail to be granted.

The case was transferred between courts, with several trial dates fixed and vacated due to changes in legal representation, disclosure delays, and jury issues. The custody time limit of 182 days from sending for trial expired on 7th June 2002, but an application to extend the limit was refused due to lack of prosecutorial diligence. Subsequent bail applications were refused on the basis of section 25 of the 1994 Act.

The Appellant challenged the refusal of bail on 9th December 2002 by way of judicial review commenced on 30th January 2003, also seeking a writ of Habeas Corpus on the ground that his continued custody after the expiration of the custody time limit was unlawful.

Legal Issues Presented

1. The effect of section 29(3) of the Supreme Court Act 1981 on the court’s jurisdiction in this matter.
2. Whether arguments for release from custody should be addressed to a High Court Judge.
3. Whether the amendment to regulation 6(6) of the 1987 Regulations was ultra vires (beyond the powers granted by Parliament).
4. The proper interpretation of section 25 of the Criminal Justice and Public Order Act 1994, particularly regarding:
• The right to liberty under Article 5 of the European Convention on Human Rights (ECHR).
• European and domestic jurisprudence on the burden of proof concerning bail.
5. Whether reliance on section 25(1) after expiration of the custody time limit violated the Appellant’s right to trial within a reasonable time under Article 5(3) of the ECHR.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the refusal of bail after the expiration of the custody time limit was unlawful and that his continued detention was illegal.
• He argued that section 25 of the 1994 Act imposed an impermissible burden of proof on him to demonstrate exceptional circumstances justifying bail, which was incompatible with Article 5(3) of the ECHR.
• The Appellant submitted that the amendment to regulation 6(6) of the 1987 Regulations was ultra vires, lacking proper statutory authority.
• He relied on European Court of Human Rights decisions criticizing mandatory detention and reverse burdens of proof, particularly Ilijkov v Bulgaria and Hutchison-Reid v UK, to support his argument that the statutory framework violated his rights.
• The Appellant also raised a discrimination claim under Article 14 of the ECHR, arguing that section 25 operated discriminatorily.

Respondent's Arguments

• The Respondent submitted that section 25 of the 1994 Act was compatible with Article 5 and that the burden imposed was evidential rather than legal, requiring only judicial evaluation rather than proof beyond reasonable doubt.
• It was argued that the amendments to the 1987 Regulations were valid exercises of statutory power under section 22 of the Prosecution of Offences Act 1985.
• The Respondent maintained that the public interest justified the presumption against bail for persons with previous convictions for serious offences charged with similar offences.
• The Respondent distinguished the European authorities cited by the Appellant, noting factual and legal differences and the limited applicability of those cases to the present context.
• It was contended that the expiration of the custody time limit did not of itself constitute exceptional circumstances requiring bail, and that the prosecution had acted with due diligence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed jurisdictional issues, concluding that section 29(3) of the Supreme Court Act 1981 did not bar the court from considering the bail and custody time limit issues raised, including the Habeas Corpus application.

On the ultra vires challenge, the court found the amendment to regulation 6(6) of the 1987 Regulations validly enacted pursuant to the wide powers granted by section 22 of the Prosecution of Offences Act 1985. The regulation’s inclusion of section 25 of the 1994 Act was consistent with the Bail Act 1976 and Parliament’s intention to exclude bail in certain serious cases.

The court examined the relationship between section 25 of the 1994 Act, the Bail Act 1976, and Article 5 of the ECHR. It acknowledged the presumption of liberty under the Bail Act but emphasized that section 25 creates a statutory presumption against bail for defendants with previous serious convictions charged with similar offences, permitting bail only if exceptional circumstances justify it.

The court reviewed European jurisprudence, particularly Caballero v UK and Ilijkov v Bulgaria, recognizing the importance of judicial control over detention and the incompatibility of mandatory detention without exceptions. It also noted the European Court’s criticism of shifting the burden of proof to the detained person to show exceptional circumstances.

Regarding the meaning of "exceptional circumstances," the court adopted a purposive approach, interpreting the term as describing unusual or uncommon circumstances justifying departure from the norm of refusal of bail in such cases.

The court analyzed the standard and burden of proof in bail applications under section 25. It acknowledged a division of opinion: one view held that the word "satisfied" requires judicial evaluation without imposing a legal burden on the defendant, while the other view held that section 25 imposes a legal burden on the defendant to prove exceptional circumstances, which is incompatible with Article 5(3) unless read down to an evidential burden.

On the expiration of custody time limits, the court recognized that the statutory regime aims to ensure timely trials and that failure to extend the limit due to prosecutorial delay normally entitles the accused to bail. However, section 25 modifies this by prioritizing public interest concerns in serious cases, and the expiration of the time limit does not automatically constitute exceptional circumstances for bail.

The court also considered the defendant’s conduct causing delays and the need to assess all relevant circumstances for Article 5(3) compliance. It rejected the argument that refusal of bail after the custody time limit necessarily violated Article 5(3) if exceptional circumstances were absent.

The discrimination claim under Article 14 was dismissed on the basis that the statutory distinction was objectively justified and proportionate, given the Appellant’s prior convictions and the associated risks.

In conclusion, the court found no violation of the Appellant’s rights and upheld the refusal of bail.

Holding and Implications

The court DISMISSED the claim for judicial review and refused the application for Habeas Corpus. The decision affirmed that section 25 of the Criminal Justice and Public Order Act 1994, as amended, validly restricts bail for defendants with prior serious convictions charged with similar offences unless exceptional circumstances exist.

The court held that the expiration of custody time limits does not automatically entitle a defendant to bail if section 25 applies, and that refusal of bail under this section does not violate Article 5(3) of the ECHR provided judicial discretion is properly exercised.

The court recognized a difference of opinion regarding the burden of proof imposed by section 25 but did not find it necessary to resolve this definitively, noting that the issue may require further authoritative determination.

No new precedent was set beyond the clarification of the interplay between custody time limits, section 25, and Article 5 rights. The decision emphasizes the importance of judicial reasoning when granting or refusing bail in serious cases and confirms the validity of the statutory framework balancing individual liberty and public protection.