Criminal law

Bail and the Human Rights Act 1998

The Law Commission has published its paper on Bail and the Human Rights Act 1998 (paper number 269).

It offers guidance to those who have to make bail decisions.

While few of the issues identified will be unknown to defence practitioners the paper enables arguments to be raised with a new clarity and determination.

Only three of the exceptions to the right to bail, set out in schedule 1 to the Bail Act 1976, are said to be wholly compliant with the European Convention on Human Rights.

These are failure to appear, interference with the course of justice and a remand following conviction when reports are required and can only be obtained by keeping the defendant in custody.

The commission then offers guidance on all other exceptions to the right to bail.

In relation to the risk of further offences, it emphasises that decisions must be based on personalised arguments, not stereotyped considerations.

The mere fact that previous convictions exist will not be enough.

The Crown must show why those convictions, at the dates in question and for the identified offences, mean that this defendant will commit proportionately serious enough offences following any release on bail.

The fact that a defendant is already on bail will never, of itself, amount to an exception to the right to bail.

However, it may provide evidence in support of an objection to bail based on paragraph 2 of the schedule.

At a first hearing defence solicitors often prefer to have bail refused under paragraph 5 of the schedule on the basis that the Crown has not had sufficient time to obtain all relevant information.

This hearing will then not count as an application for bail and allow a minimum of two further full applications.

However, there may be exceptional cases in which a bail package can be put together by the defence at the first hearing.

The commission's advice is that while detention may be compatible if it is for a short period which is no longer than necessary to enable the required information to be obtained, it will only be so if the lack of information is not caused by the failure of the prosecution, the police, the court or another state body (which will now include the probation service) to act with 'special' diligence.

The commission applies the decision of the Divisional Court in R (DPP) v Havering Justices [2001] 3 All ER 999 in relation to those arrested under section 7 of the Bail Act for breach or suspected breach of bail conditions.

Mere breach of conditions can never itself justify a remand in custody or the change of the bail conditions.

However, the breach may provide evidence in support of a genuine paragraph 2 ground.

Section 25 of the Criminal Justice and Public Order Act 1994 provides that if a defendant has been convicted of murder, attempted murder, rape, attempted rape or manslaughter (for which they were imprisoned or detained), and now faces any one of those five charges, bail may only be granted if there are exceptional circumstances.

This appears to reverse the burden or proof as it should be applied under article 5.

The commission deals with this difficulty by advising that exceptional circumstances will always exist if the Crown has not proved that the particular defendant represents a danger to the public.

The number of bail applications which can be made is defined by schedule 1, part 2A of the Bail Act.

However, the commission recommends that the court, after the first two hearings, should consider every 28 days thereafter whether the passage of time itself constitutes in a particular case a sufficient new argument to allow a further application.

While this is unlikely to assist in cases which have been before the court for significant periods, it will allow a more regular review of bail in the early stages including in those cases sent to the Crown court under section 51 of the Crime & Disorder Act 1998.

Burden of proof and the Human Rights Act 1998

It is in the area of the burden of proof that the Human Rights Act 1998 appears to be having its greatest effect in criminal law.

Two decisions of the House of Lords have fundamentally changed the law in relation to crimes routinely appearing before the courts.

It is an offence under the Misuse of Drugs Act 1971 to be in possession of controlled drugs.

Because of the wide meaning of possession, section 28(2) of the Act provided a defence if a defendant could prove that he did not know or suspect or have reason to suspect that the items which were in his possession were in fact controlled drugs.

This had always been interpreted as placing a burden on the defence to prove, to the civil standard, that the defendant did not have the necessary knowledge or suspicion.

The law has been changed by R v Lambert [2001] Crim LR 806.

The defence is now only required to 'raise the issue' by evidence thus passing the burden of proof to the criminal standard back to the Crown to prove that the defendant did indeed know or suspect or have reason to suspect what was in their possession.

In R v Carass (2002) The Times 21 January, a similar approach was taken in relation to the offence under section 206 of the Insolvency Act 1986.

The defence need now only raise by evidence the issue that there was no intent to defraud.

This will have significant consequences for the advice to be given during an investigation by solicitors.

It places these cases in the same group as self-defence and duress.

In all these matters there is now a need for the defence merely to raise the relevant issue by evidence.

This can be done in the police station by making a mixed statement; that is a statement containing both admissions (in this case as to possession) but also denials (that he knew or suspected that the contents were drugs).

A mixed statement has evidential weight not only as to the admission but also as to the exculpatory statement .

It is an offence under section 14 of the Sexual Offences Act 1956 for a male indecently to assault a woman.

The Crown must prove an assault and indecency.

In many cases the defence will be that there was no assault because there was consent by the complainant to the act in question.

However, the statute sought to protect girls younger than 16 and provided that whatever the factual position they could not in law consent.

Historically, it was not a defence for the defendant to prove that he believed that the complainant was at least 16 - and many have pleaded guilty notwithstanding their genuine belief as to that fact - when there was consent to their behaviour.

As a result, their names would now be entered on the sex offenders register.

Such pleas should no longer be entered.

The House of Lords have held in R v K [2001] 3 All ER 897 that the Crown must prove the mental element of all aspects of the crime and therefore, in these particular circumstances that the defendant knew that the complainant was under 16.

This will again affect the advice being given at the police station stage.

If evidence can be given as to the belief that the complainant was at least 16 it may be difficult for the Crown to contest that evidence and many prosecutions may not be brought.

For those who have been convicted or accepted cautions since the implementation of the Human Rights Act on 2 October 2000, consideration should be given to appeals out of time or to a reference back to the court through the Criminal Cases Review Commission so as to expunge the record from the sex offenders register.

By Anthony Edwards, TV Edwards, London