Pre-trial detention after expiry of the custody limit does not breach right to liberty

7 October 2010 by Maria Roche

Kevin O’Dowd v UK (application no. 7390/07) [2010] ECHR 1324 (21 September 2010) – Read judgment

The European Court of Human Rights has ruled that a man’s pre-trial detention did not breach his right to liberty. Mr O’Dowd, who had a previous conviction for rape, was denied bail despite the maximum custody time limit having expired.

Kevin O’Dowd was charged with rape, false imprisonment and indecent assault in early December 2001. He had a prior conviction for rape which brought him within the provisions of Section 25 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) that bail should only be granted if there are exceptional circumstances justifying it.

The Applicant’s first bail application was refused because the judge was not satisfied that any exceptional circumstances existed justifying bail. Subsequently, the Applicant’s firing and rehiring of his lawyers caused his trial to be delayed from April 2002 to 6th June 2002.

On 7th June 2002 the maximum time of 182 days that a defendant can spend in custody between being sent to the Crown Court for trial and the start of trial expired. The judge refused the prosecution’s application to extend the custody time limit under Section 22 (3) of the Prosecution of Offences Act 1985 (“the 1985 Act”) on the ground that the prosecution had not acted with “all due diligence and expedition” in relation to disclosure.

Nevertheless, the Applicant was refused bail because under Regulation 6(6) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 the right to bail upon expiry of the custody time limit remained subject to Section 25 of 1994 Act and there were still no exceptional circumstances justifying the grant of bail. Three subsequent bail applications were rejected on the same grounds.

The Applicant spent one year, three months and eighteen days in custody between the expiry of the custody limit and the trial being permanently stayed as an abuse of process on 1st September 2003. In total he fired and rehired his lawyers on four occasions, delaying the trial date at least twice. The Applicant also rejected an earlier trial date, in order to ensure his chosen barrister was available and prepared, causing a further delay of five months.

O’Dowd’s arguments

The Applicant claimed the period of detention after the expiry of the custody limit breached Article 5(3) of the ECHR, which provides that everyone who is arrested or detained shall be entitled to trial within a reasonable time or to release pending trial.

The Applicant’s main argument was that the finding that the prosecution had failed to act with “all due diligence” within the context of the 1985 Act amounted to a finding that the authorities had failed to conduct the case with the “special diligence” required in the context of Article 5(3).

He further argued that Section 25 of the 1994 Act placed a burden of proof on him to show exceptional circumstances, which was illegitimate in the light of Ilijkov v Bulgaria (no. 33977/96); that the balancing exercise between the public interest in his continued detention and the presumption of innocence had been tipped in favour of the latter; and that Article 5(3) should be interpreted as conferring specific minimum guarantees of liberty that could not be replaced with financial compensation for excessive pre-trial detention.

The Applicant claimed that his pre-trial detention breached Article 14 (anti-discrimination) taken together with Article 5(3) because “had the applicant not had a previous conviction, he would have been entitled to automatic release upon the expiry of the custody time limit” and the convictions relevant to Section 25 were arbitrary, thus there was no rational basis for differential treatment.

The Government’s Arguments

The Government disputed that a finding that the prosecution had failed to act with “all due diligence” amounted to a general finding that the authorities had failed to show the “special diligence” required by Article 5(3).

The Government argued that:

65  a failure on the part of the prosecuting authorities which has led to some element of delay in the proceedings could result in a refusal to extend the custody time limit notwithstanding the fact that, if the period of detention were examined in its entirety and all the facts of the case taken into account, there would be no violation of Article 5(3).”

The Government pointed out that on 7th June 2002 the Applicant had only been detained for six months, part of which was caused by his own decision to fire his lawyers, and that all delay after this date was caused by the conduct and decisions of the Applicant.

The Government further argued that Section 25 of the 1994 Act merely created an evidential burden for the Applicant to produce material that supported the existence of “exceptional circumstances”; that the seriousness of the alleged offences, the Applicant’s previous convictions and the unclear and changing nature of his defence demonstrated a genuine requirement of detention in the public interest that outweighed the presumption of innocence; and that there was sufficient judicial control of the applicant’s pre-trial detention as the court had the possibility of granting bail.

Finally, the Government submitted that a previous conviction for a serious offence was clearly relevant to the question of bail and it was not arbitrary to treat those with a previous conviction differently.

The Court’s Judgment

The Court reiterated the principles that whether a period of detention is reasonable cannot be assessed in the abstract and must be considered in each case according to its special features; continued detention is only justified if there are specific indications that a genuine requirement of public interest outweighs the rule of respect for individual liberty, and further such reasoning is to be set out in judicial decisions; and that where there are “relevant” and “sufficient” grounds to justify continued deprivation of liberty the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of proceedings.

In assessing whether the “special diligencee” requirement has been met, the Court will have regard to periods of unjustified delay, to the overall complexity of the proceedings and to any steps taken by the authorities to speed up proceedings to ensure that the overall length of detention remains “reasonable”.

In applying these principles to the facts of the case and holding that there was no violation of Article 5(3), the Court held that:

73 Like the Government, the Court does not consider that “due diligence” in terms of section 22(3) of the 1985 Act ……. can be equated to “special diligence” as required by Article 5 § 3 of the Convention.”

and further:

in finding in June 2002 that the prosecution had not acted with all due diligence, there is no evidence that the Crown Court made its assessment by reference to the need for “special diligence” under Article 5 § 3 or with regard to the criteria established in the jurisprudence of this Court…..”

The Court confirmed that its approach differed from that of the domestic courts in considering prosecutorial delay:

73 …Unlike the approach of the domestic courts to compliance with the 1985 Act, in assessing compliance with Article 5 § 3, this Court will examine the proceedings as a whole and assess any particular periods of inactivity or delay by the authorities within the context of the overall period of pre-trial detention, with particular regard to any recognition by the authorities of the length of time already spent in detention and the need to take additional steps to bring about a more speedy trial.”

The Court’s judgment on this aspect was in accordance with that  of Lord Brown when the House of Lords considered the matter in Mr O’Dowd’s domestic litigation [at paragraph 63].

Moreover,  the Court was satisfied that:

the authorities in the present case displayed special diligence in progressing the applicant’s case and that any delay attributable to them did not, in the circumstances of the case, exceed what was reasonable”;

not least because:

…the applicant substantially contributed to the overall length of his pre-trial detention through his conduct of his defence and his choices regarding his legal representation. On several occasions, he dismissed his legal advisers shortly before hearings, which resulted in the hearings being postponed. In particular, his decision to refuse the January 2003 trial date had a significant impact on the duration of his detention.”

The Court also highlighted the Applicant’s own responsibility for the delay in the conduct of proceedings:

….While the applicant was entitled to be represented by legal counsel of his own choosing and no blame can be attributed to him for insisting on the presence of his preferred counsel at trial, he must nonetheless bear the reasonable consequences of his choices on the overall length of his pre-trial detention”

Finally, in deciding that the Applicant’s claim under Article 14 was manifestly ill-founded the Court noted that, in the Applicant’s case, the previous convictions that were relevant for Section 25 of the 1994 Act arose from an incident which was factually very similar and therefore comparable both in nature and degree of seriousness to the offences that the Applicant was charged with. The Court held therefore that:

82  In the circumstances, the Court does not consider that the applicant can claim to be in an analogous position to a defendant charged with the same offence who does not have a previous similar offence.”

Consequently, the Applicant’s complaint under Article 14 was inadmissible and the Court held that there had been no violation of Article 5(3).

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