R (O) v Crown Court at Harrow

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Brown of Eaton-under-Heywood. For the reasons he gives, with which I agree, I would dismiss this appeal.

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Brown of Eaton-under-Heywood. For the reasons he gives, with which I agree, I too would dismiss this appeal.

For the reason given in the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood, with which I agree, I too would dismiss the appeal.

The arguments advanced on behalf of the appellant can be distilled into two main propositions:

My noble and learned friend Lord Brown of Eaton-under-Heywood has set out the facts and the applicable statutory and Convention provisions in his opinion, which I have had the advantage of reading in draft, and I am grateful to adopt them without repeating them. On the first issue, I am in entire agreement with the reasoning and conclusion contained in his opinion. On the second issue, I also agree with him when he says in paragraph 35 that whether section 25 needs to be read down to achieve the agreed result is a matter of little moment. Whether one adopts the approach of Kennedy LJ in the Divisional Court or that favoured by Hooper J, one can readily reach the same place. I think, however, that the difference between the two is worth examination.

It seems to me plain from the ordinary meaning of the wording of section 25 that Parliament intended that if the judge deciding a bail application to which the section applies found the arguments for and against the existence of such exceptional circumstances evenly balanced and is left uncertain, he must refuse bail. I do not see how a judge could be "satisfied" of the existence of exceptional circumstances justifying the grant of bail unless he came to the conclusion that the arguments in favour or the existence of such circumstances outweighed those in favour of it. Adopting the term used by Elias J in R (Sim) v Parole Board[2004] QB 1288, 1310, para 51, the default position is the refusal of bail.

It may be worth pointing out that but for the effect of the Human Rights Act 1998 and the Convention, the courts would most probably follow the ordinary meaning of the section and fulfil the object of Parliament in enacting it. The fact that they are not in a position to do does not derive from any judicial desire to frustrate the wishes of Parliament, but is the inescapable consequence of the application of the Human Rights Act and the Convention. As Lord Brown points out in his opinion, the effect of article 5(3) of the Convention is that the court has to adopt a position opposite to that of the default position, namely that continued imprisonment has to be justified. It is necessary to resort to some method of reaching that position in order to comply with the Human Rights Act.

Both Kennedy LJ and Hooper J appreciated that it was necessary to adopt a construction of section 25 which did not offend against the presumption of innocence and the respect for individual liberty. It is clear from such cases as Ilijkov v Belgium (Application No 33977/96, unreported, 26 July 2001), which is quoted by Lord Brown in paragraph 27 of his opinion, that the European Court of Human Rights places a high value on maintaining these features and would regard any dilution of them as contrary to the provisions of the Convention. Kennedy LJ and Hooper J approached the question in different ways.

Kennedy LJ commenced by rejecting the applicant's contention that section 25 imposed a burden of proof on the person seeking bail, on the analogy of the remark of Lord Bingham of Cornhill in R v Lichniak [2002] UKHL 47, [2003] 1 AC 903, 913, para 16:

"I doubt whether there is in truth a burden on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the board to consider all the available material and form a judgment."

Cf also R (McCann) v Crown Court at Manchester[2003] 1 AC 787, 812, para 37, where Lord Steyn said:

"The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation."

Kennedy LJ went on to interpret the words "exceptional circumstances" in a very broad sense, so broad that any presumption against bail in cases coming within section 25 was effectively removed. Basing his reasoning on the decision of the Court of Appeal, Criminal Division in R v Offen [2001] 1 WLR 253, para 32, he interpreted the provisions of section 25 as establishing a norm:

"The norm is that those to whom it applies if granted bail are so likely to fail to surrender to custody, or offend, or interfere with witnesses or otherwise obstruct the course of justice, that bail should not be granted. If in fact, taking into account all the circumstances relating to a particular alleged offence and offender he does not create an unacceptable risk of that kind he is an exception to the norm, and in accordance with his individual right to liberty he should be granted bail."

In other words, the judge is to consider the circumstances of the case and if he considers that to grant bail would not create an unacceptable risk he may properly be satisfied that there are exceptional circumstances which justify it. This approach appears to involve interpreting the words "is satisfied" as meaning simply "considers". Such an approach may suffice to ward off complaints of breach of article 5 of the Convention, but it would be difficult to maintain that it puts into effect the apparent intention of Parliament in enacting section 25.

The approach of Hooper J might be described as more direct. He accepted (paras 95-6) that the literal meaning of "satisfied" connoted something more than "judgment or evaluation". He went on in paragraphs 96-98:

"96. It follows that, in my view, section 25, read literally, imposes the burden on the defendant to show exceptional circumstances.

97. Having regard to both the wording of article 5 and Ilijkov v Bulgaria 26 July 2001 and Hutchison Reid v United Kingdom 20 February 2003, it seems to me that article 5 prohibits the imposition on the detained person of the burden of proving that he should be released. That conclusion is consistent with the conclusion of Elias J in R (Sim) v Parole Board [2003] 2 WLR 1374.

98. It follows that section 25 is, in my view, inconsistent with article 5(3) in imposing the burden on the defendant to satisfy the court of the existence of exceptional circumstances. The reverse onus of proof cases under article 6 do not help."

He therefore favoured overtly reading down section 25 in accordance with the requirements of section 3 of the Human Rights Act 1998 to impose an evidentiary burden.

I am in strong agreement with the view expressed by Lord Bingham in R v Lichniak and Lord Steyn in R (McCann) v Crown Court at Manchester that the juridical exercise carried out by the court in such cases is indeed an exercise in judgment or evaluation, not the application of a burden of proof. In In re McClean [2005] UKHL 46 at paragraphs 70-74 of my opinion I set out my reasons for so holding in a case where Sentence Review Commissioners applying section 8 of the Northern Ireland (Sentences) Act 1998 revoked the declaration whereby a life sentence prisoner received accelerated release. They were required to do so if they "believed" that applicable conditions in section 3 (which required that the prisoner should be distanced from terrorist organisations and should not be a danger to the public) were no longer satisfied. I agreed with the view expressed by McCollum LJ in the Northern Ireland Court of Appeal that section 8(2) did not impose a burden on either the Secretary of State who made the application or the prisoner: rather the Commissioners were to conduct a full review, the object being to determine whether in their opinion the conditions contained in section 3 remained satisfied. In paragraph 74 of my opinion in In re McClean I referred to Lord Bingham's statement in R v Lichniak and to a number of analogous instances in Northern Ireland case-law where deciders exercised functions conferred by statute.

I would be attracted to such an...