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

7 October 2010 by

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).

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

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.




7/7 Bombings 9/11 A1P1 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 birds directive 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 circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics 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 european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


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: