“The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing, that the defendant, if released on bail (whether subject to conditions or not) would – a) fail to surrender to custody, or b) commit an offence while on bail, or c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.”
“Thus the general right of any unconvicted person to remain at liberty until convicted may be curtailed if certain stringent conditions are shown to be satisfied.”
“The defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for his own protection or, if he is a child or young person, for his own welfare.”
“The defendant need not be granted bail if – a) the offence is an indictable offence or an offence triable either way; and b) it appears to the court that he was on bail in criminal proceedings on the date of the offence.”
“A straightforward reading of the provision, without the aid of the HRA, suggests that the fact that the defendant was on bail at the time of the alleged offence can itself be an independent ground for the refusal of bail.”
“The defendant need not be granted bail where the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by this part of this schedule for want of time since the institution of the proceedings against him.”
“It our duty to construe the Act in accordance with the Convention, if we can. In our judgment, para 6 of Pt 1. and para 5 of Pt 2 to Sch 1 to the Act are to be construed as providing that such an arrest is capable of being taken into account in determining whether or not any of the grounds for refusing bail set out in para 2 of Pt 1 or 2 of Pt 2 exist.”
“In the present circumstances [i.e. when the defendant is going to be bailed] the question the justices should ask themselves is a simple one: ‘Is this condition necessary for the prevention of a commission of an offence by the defendant when on bail’. They are not obliged to have substantial grounds. It is enough if they perceive a real and not a fanciful risk of an offence being committed. Thus section 3(6) in paragraph 8 gives the court a wide discretion to inquire whether the condition is necessary.”
“Proceedings under s.7(5) are by their nature emergency proceedings to determine whether or not a person who was not considered to present the risks which would have justified remanding in custody in the first instance, nonetheless does now present one or other of those risks. It is true that a literal reading of s.7(5) could lead to the conclusion that the mere fact of a breach of condition could justify detention. But it should be noted that such a finding only gives the justice the power to detain, and not the duty to detain. It seems to me that in exercising that power, the justice would not be entitled to order detention by reason simply of the finding of breach; that in itself is not a justification for the refusal of bail under para 2 of Pt 1 to the Schedule to the Act. To hold that a breach of a condition, was, ipso facto, a ground for detention, would, it is agreed by all parties, be a decision taken on a ground outside the purposes which the European Court of Human Rights has determined justify detention under art 5. The fact of a breach of condition may be some evidence, even powerful evidence, of a relevant risk arising. But it is no more than one of the factors which a justice must consider in exercising his discretion under s.7(5). It seems to me, that the justice is simply required by the statute to come to an honest and rational opinion on the material put before him. In doing so, he must bear in mind the consequences to the defendant, namely the fact that he is at risk of losing his liberty in the context of the presumption of innocence. This was the view of this court in R v Liverpool Justices. Article 5 does not, in my judgment require any different approach. None of the cases which have been cited to us suggest that the provisions of art 5 include a requirement that underlying facts relevant to detention are to be proved to the criminal standard of proof. This is not surprising, bearing in mind the delicate exercise on which the court is engaged in this type of jurisdiction, in seeking to provide fairness to the defendant on the one hand, but securing the objectives of justice and the protection of the public during the period up to and including trial on the other.”
“In taking the decisions required by paragraph 2 or 2A of this Part of this Schedule, the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say— (a) the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it), (b) the character, antecedents, associations and community ties of the defendant, (c) the defendant’s record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings, (d) except in the case of a defendant whose case is adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having defaulted, as well as to any others which appear to be relevant.” as well as to any others which appear to be relevant.”
“... the phrase [on the balance of probabilities] is inappropriate when applied not to ascertaining what has already happened but to prophesying what, if it happens at all, can only happen in the future. There is no general rule of English law that when a court is required, either by statute or at common law, to take account of what may happen in the future and to base legal consequences on the likelihood of its happening, it must ignore any possibility of something happening merely because the odds on its happening are fractionally less than evens. ... Paragraph (c) of s 4(1) of the Act, ... , calls on the court to prophesy what will happen to the fugitive in the future if he is returned. The degree of confidence that the events specified in the paragraph will occur which the court should have in order to justify refusal to return the fugitive, is not determined by the mere use of the subjunctive mood of the auxiliary verb ‘may’. It should, as a matter of commonsense and common humanity, depend on the gravity of the consequences contemplated by the section on the one hand of permitting, and on the other of refusing, the return of the fugitive if the court’s expectation should be wrong. ... My Lords, bearing in mind the relative gravity of the consequences of the court’s expectation being falsified either in one way or in the other, I do not think that the test of the applicability of para (c) is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he is returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court (Page 24, ante,[1971] 1 WLR 459 ). ‘A reasonable chance’, ‘substantial grounds for thinking’, ‘a serious possibility’—I see no significant difference between these various ways of describing the degree of likelihood of the detention or restriction of the fugitive on his return which justifies the court in giving effect to the provisions of s 4(1)(c). ... ”
“In my opinion the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country”
“I consider that this passage appropriately expresses the degree of likelihood to be satisfied in order that a fear of persecution may be well-founded.”
“The United Kingdom will be in breach of its obligations underart 3 of the European Convention if it expels a person to a country where substantial grounds have been shown for believing that he would face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment contrary toart 3 of the Convention .”
“a) that the need for the extension is due to – (i) the illness or absence of the accused, a necessary witness, a judge or a magistrate; (ii) a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused or two or more offences; or (iii) some other good or sufficient cause; and b) that the prosecution has acted with all due diligence and expedition.”
“Second, what standard of proof is embodied in the requirements that the court be "satisfied" of various matters as a pre-condition of the exercise of its discretions respectively under section 22(3) of the Act of 1985 and regulation 7(4)? Is it necessary for the court to be satisfied beyond reasonable doubt or only upon the balance of probabilities? This point was touched on by the Divisional Court in White v. Director of Public Prosecutions [1989] Crim.L.R. 375. In its stated case, the Crown Court had there expressed the view that for section 22(3) purposes it had to be satisfied beyond reasonable doubt. Ian Kennedy J. observed that he "would not wish to be understood as necessarily agreeing that that is the correct standard." In our view, the standard to be applied is that of the balance of probabilities. That is the standard for determining bail applications. It should apply equally, we think, to related interlocutory questions of the sort here in question.”
“(1) An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely - (a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and (b) that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him; ...”
“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.”
“[43] I have no doubt that the decision as to whether or not to make a parenting order is an exercise of judgment or evaluation. [44] Mr Crow’s arguments successfully persuaded Lord Hope at para 83 that the condition in s 1(1)(b) raises a question which is a matter for evaluation and assessment; so too are many judicial functions. Granting injunctions, licences, custody, awarding damages, sentencing call for no burden of proof, but for evaluation and assessment. A court’s task in making a parenting order is clearly and precisely defined by Parliament and it involves evaluation and assessment.”
“Whereas the other exceptions to the right to bail (contained in Schedule 1 to the Bail Act) merely provide that the defendant need not be granted bail, the effect of section 25 is that the defendant must not be granted bail unless there are exceptional circumstances.”
“We believe that, provided that section 25 is interpreted so that the courts are not prevented from giving genuine consideration to whether the defendant poses a risk to the public, it is highly likely that the courts would find that the provision can be objectively justified and is not disproportionate. This is particularly so since a defendant is likely to be the person best able to bring to the attention of the court any exceptional circumstances militating in favour of bail. Thus, no injustice is caused to the defendant if he or she bears the burden of displacing a statutory presumption that those who have been once convicted of a very serious offence and are alleged to have committed a further very serious offence pose a substantial risk to the public and should therefore be detained. Furthermore, the burden can be characterised as a “discretionary” rather than a “mandatory” one.Where the court is satisfied that it is not necessary to detain the defendant, it is not obliged to detain the defendant simply because the defendant has not adduced evidence capable of displacing the presumption.”
“In its decision of21 February 1995 the Supreme Court stated that under Article 152 §§ 1 and 2 of the Code of Criminal Procedure detention on remand was mandatory for everyone accused of a crime punishable by ten or more years' imprisonment, the only exception being where it was clear beyond doubt that there was no danger of the accused's absconding or re-offending. In the Supreme Court's view such would only be the case where, for example, the accused was seriously ill, elderly or in any other condition which excluded the danger of his or her absconding or re-offending. Since the applicant was charged with a crime punishable by more than ten years' imprisonment and as no special circumstances excluding the danger of his absconding or re-offending had been established, there were no grounds for ordering his release on bail. The Supreme Court referred to its practice on the matter.The Supreme Court further refused to consider the applicant's contention that the evidence against him was weak. It found that it had no jurisdiction to do so in connection with a bail application. Its only task was to examine whether the conditions for detention on remand under Article 152 of the Code of Criminal Procedure had been met.”
“76. The applicant's detention on remand lasted from4 October 1993 to31 January 1997 . The period to be taken into consideration is therefore three years, three months and twenty-seven days. 77. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were "relevant" and "sufficient", the Court must also ascertain whether the competent national authorities displayed "special diligence" in the conduct of the proceedings (Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000-IV). 78. The parties do not appear to dispute that the applicant's initial detention was based on a reasonable suspicion of him having committed a crime. The Court sees no reason to reach a different conclusion. 79. As to the grounds for the continued detention, the domestic courts applied law and practice under which there was a presumption that detention on remand was necessary in cases where the sentence faced went beyond a certain threshold of severity (ten years' imprisonment according to the law as in force until June 1995 and five years' imprisonment thereafter). 80. The severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending. The Court accepts that in view of the seriousness of the accusation against the applicant the authorities could justifiably consider that such an initial risk was established. 81. However, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand (see, as a recent authority, Jecius v. Lithuania, no. 34578/97, § 94, ECHR 2000-IX).That is particularly true in the present case where under the applicable domestic law and practice the characterisation in law of the facts - and thus the sentence faced by the applicant - was determined by the prosecution authorities without judicial control on the question whether or not the evidence supported reasonable suspicion that the accused had committed an offence attracting a sentence of the relevant length ... . 82. The only other ground for the applicant's lengthy detention was the domestic courts' finding that there were no exceptional circumstances warranting release. 83. However, that finding was not based on an analysis of all pertinent facts. The authorities regarded the applicant's arguments that he had never been convicted, that he had a family and a stable way of life, and that after the passage of time any possible danger of collusion and absconding had receded, as irrelevant (see paragraphs 43-47, 49 and 53 above).They did so because by virtue of Article 152 of the Code of Criminal Procedure and the Supreme Court's practice the presumption under that provision was only rebuttable in very exceptional circumstances where even a hypothetical possibility of absconding, re-offending or collusion was excluded due to serious illness or other exceptional factors.It was moreover incumbent on the detained person to prove the existence of such exceptional circumstances, failing which he was bound to remain in detention on remand throughout the proceedings (see paragraphs 59 and 71 above). 84. The Court reiterates that continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Any system of mandatory detention on remand is per se incompatible with Article 5 § 3 of the Convention (see the Letellier v. France judgment of26 June 1991 , Series A no. 207, §§ 35-53; the Clooth v. Belgium judgment of12 December 1991 , Series A no. 225, § 44; the Muller v. France judgment of17 March 1997 , Reports of Judgments and Decisions 1997-II, §§ 35-45; the above cited Labita judgment, §§ 152 and 162-165; and the above cited Jecius v. Lithuania, §§ 93 and 94).Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention (see the Contrada v. Italy judgment of24 August 1998 , Reports 1998-V, §§ 14, 16, 18, 23-30, 58-62), the existence of the concrete facts outweighing the rule of respect for individual liberty must be nevertheless convincingly demonstrated. 85. Moreover, the Court considers that it was incumbent on the authorities to establish those relevant facts. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule ofArticle 5 of the Convention , a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases. 86. ... 87. In the present case the Court finds that by failing to address concrete relevant facts and by relying solely on a statutory presumption based on the gravity of the charges and which shifted to the accused the burden of proving that there was not even a hypothetical danger of absconding, re-offending or collusion, the authorities prolonged the applicant's detention on grounds which cannot be regarded as sufficient.The authorities thus failed to justify the applicant's detention on remand for the period of three years, three months and twenty-seven days. In these circumstances it is not necessary to examine whether the proceedings were conducted with due diligence.There has been therefore a violation of Article 5 § 3 of the Convention.”
“ 68. The applicant complained that in the proceedings brought for release under section 64 of the 1984 Act it was for the patient to satisfy the Sheriff that he was no longer suffering from a mental disorder requiring his detention in hospital for medical treatment, arguing that under Article 5 it was for the State to justify the deprivation of liberty. 69. The Court would observe that there is no direct Convention case-law governing the onus of proof in Article 5 § 4 proceedings, though the imposition of a strong burden of proof on applicants held in detention on remand to show that there was no risk of absconding has previously been taken into account in finding procedures for review of that detention incompatible with the Article 5 § 4 (see Nikolova v. Bulgaria, [GC], no. 31195/96, ECHR 1999-II, § 59, and Ilijkov v. Bulgaria, no. 33977/96, judgment of26 July 2001 , unreported, § 99). 70. That it is however for the authorities to prove that an individual satisfies the conditions for compulsory detention, rather than the converse, may be regarded as implicit in the case-law. In examining complaints under Article 5 § 1, the Court has adopted the approach that both the initial deprivation of a mental patient's liberty and the continued detention could only be lawful under Article 5 § 1(e) if it can “reliably be shown that he or she suffers from a mental disorder sufficiently serious to warrant detention”, namely that the burden lies on the authorities in both cases (Winterwerp judgment, cited above, §§ 39-40, Johnson v. the United Kingdom, judgment of24 October 1997 , Reports 1997-VIII, § 60) ... . ... 73. The Court finds therefore that insofar as the burden of proof was placed on the applicant in his appeal to establish that his continued detention did not satisfy the conditions of lawfulness it was not compatible with Article 5 § 4 of the Convention.”
“Section 44A(4) sets out the test for determining whether or not the prisoner should be released. It provides that the Board shall direct the prisoner's release... : ‘if satisfied that it is no longer necessary for the protection of the public that he should be confined (but not otherwise).’ Accordingly, the Parole Board does not have to be positively satisfied that it is necessary for the protection of the public that he should be confined; rather they need only be satisfied that it is no longer so necessary. It follows as a matter of language that if they are left uncertain as to whether it is still necessary or not, he will continue to be confined.”
“50. I accept that the concept of burden of proof is an inappropriate term, but nevertheless it does seem to me that it is perfectly apposite to describe the position in terms of their being a presumption that the prisoner will be detained unless the Parole Board is satisfied to the contrary.”
“51. The question, therefore, is whether it is a breach of the Convention to frame the presumption or default position in favour of detention rather than liberty.”
“54. In my judgment the provisions of Article 5.1 are not met if the language of section 44A is to be construed in the ordinary way.”
“55. The question which then arises is whether it is possible to give section 44A a construction which is compatible with these Convention rights in accordance with section 3 of the Human Rights Act, or whether it is necessary to make a declaration of incompatibility under section 4. Both the claimant and the Secretary of State submit that it is possible to adopt the section 3 route. This can be done, it is submitted, by construing the word "necessary" in a sufficiently flexible way. I agree that it is possible to achieve consistency with the Convention in this manner. It involves interpreting the phrase "no longer necessary for the protection of the public interest " in section 44A in such a way that the Board must reach that conclusion unless positively satisfied that continuing detention is necessary in the public interest. It is not necessary to add to or amend the language of the section to achieve this result.”