Accused should have been allowed to attend appeal against the grant of her bail
1 April 2010
Allen v. The United Kingdom (Application no. 18837/06), Date of judgment: 30 March 2010
The European Court of Human Rights (ECtHR) has ruled that, in the circumstances, it was a breach of the applicant Susan Allen’s rights under article 5(4) of the European Convention on Human Rights (ECHR) for a Deputy District Judge to refuse her permission to attend an appeal against the grant of her bail.
In October 2005 Ms Allen was charged with two offences of conspiracy to supply Class A drugs. She was produced at Liverpool City Magistrates’ Court. Following a contested bail application she was granted bail by the Deputy District Judge, and the prosecution subsequently appealed. Her counsel requested that the judge allow her to be present at the appeal. The judge declined the request, reasoning that the applicant could be given a full report of what had happened from her counsel. Moreover, her attendance would be undesirable as one of the applicant’s co-accused had not been present at the hearing of the appeal against the grant of bail to him, and it would therefore be unfair to treat the applicant more favourably.
Ms Allen applied for permission to judicially review the decision of the Deputy District Judge but was turned down twice by the High Court. In the second permission application, Mr Justice Gibbs held that as to her complaints under Article 5(4), the legal framework covering applications for bail, including appeals, did enable her to take proceedings whereby the lawfulness of her detention could be decided speedily by a court as required by that article. There was, in his judgment, nothing even arguably to be found in the wording of Article 5(4) which entitled an applicant to be present at such proceedings in all instances.
The ECtHR disagreed with the Deputy District Judge, as well as Gibbs J. The Court considered that there had been a breach fo Article 5(4), and stated:
44. The Court considers of central importance the fact that the relevant domestic law qualifies a prosecution appeal against bail as a re-hearing of the application for bail, thereby entitling the judge hearing the appeal to remand the accused in custody or to grant bail subject to such conditions as he may deem appropriate (see paragraph 23 above). It follows that the applicant should have been afforded the same guarantees at the prosecution’s appeal as at first instance. Though the Court is mindful of the inherent logistical difficulties involved in ensuring a detainee’s personal attendance at a court hearing, it finds no evidence of any compelling reasons in the present case which might have rendered the applicant’s presence undesirable or impracticable. To the contrary, it is accepted that the applicant’s representatives had made arrangements for her to be present at the court building on the day of the prosecution appeal hearing, and that no inconvenience would have been caused in allowing her to attend.
45. It is also noteworthy that, according to the applicable domestic law, the prosecution appeal had the effect of immediately staying the applicant’s grant of bail at first instance, consequently depriving the applicant of her liberty from the moment the prosecution announced their intention to appeal against the Deputy District Judge’s decision (see paragraph 24 above). Furthermore, as the applicant herself asserts, a lengthy period of pre-trial detention was likely given the gravity of the charges against her (see paragraph 31 above).
46. The Court cannot but stress the importance of what was at stake for the applicant, namely her right to liberty. It recalls in this connection its judgment in the case of Garcia Alva v. Germany, no. 23541/94, § 39, 13 February 2001, where it stated that:
“According to the Court’s case-law, it follows from the wording of Article 6 – and particularly from the autonomous meaning to be given to the notion of “criminal charge” – that this provision has some application to pre-trial proceedings (see the Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no. 275, p. 13, § 36). It thus follows that, in view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted under Article 5 § 4 of the Convention should in principle also meet, to the largest extent possible under the circumstances of an on-going investigation, the basic requirements of a fair trial, such as the right to an adversarial procedure.”
47. For the reasons set out above, and in light of the fundamental importance of the right to liberty in issue, the Court does not find the Government’s justification for the refusal in question to be sufficient. For the Court, having regard to the particular circumstances of the applicant’s case as described above, fairness required that the applicant’s request to be present at the appeal be granted.
48. There has accordingly been a violation of Article 5 § 4 of the Convention.
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