Accused should have been allowed to attend appeal against the grant of her bail

1 April 2010 by

Allen v. The United Kingdom (Application no. 18837/06), Date of judgment: 30 March 2010

(Read judgment)

    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.

    Welcome to the UKHRB


    This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
    Commissioning Editor: Jonathan Metzer
    Editorial Team: Rosalind English
    Angus McCullough QC David Hart QC
    Martin Downs
    Jim Duffy

    Free email updates


    Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

    Subscribe

    Categories


    Tags


    Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

    Disclaimer


    This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

    Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

    %d bloggers like this: