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Edwards, R. A.; Cape, Ed (2010)
Publisher: Cambridge University Press
Languages: English
Types: Article
Whilst the power of the police to release a person on bail prior to trial has existed for centuries, the power to release on bail a person suspected of but not charged with a criminal offence has been available to the police only since 1925. The power to attach conditions to pre-charge bail is of very recent origin, having been introduced for the first time in 2003 but rapidly expanded since then. Whilst imposing restrictions on the liberty of a person should, constitutionally, be reserved to the judiciary, the fact that it was originally conceived, in part at least, as a mechanism for enhancing liberty reduced the constitutional tension created by allowing members of the executive such powers. However, the changing role of arrest in the investigation of crime and the granting of extensive powers to the police to impose bail conditions means that the police now have the ability to place controls on people not charged with a criminal offence for extended periods of time. It is argued here that this is in breach of the right to liberty under Article 5 of the European Convention on Human Rights and, in practice, may also breach other Convention rights.
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    • 95 de Haas (note 94 above) 393-394.
    • 96 The early English case law is meticulously catalogued in de Haas, and is drawn upon here.
    • 97 Year Book, 4 Hen. VI at 8 pl. 21.
    • 98 Anon (1704) 6 Mod. Rep. 231. This is a view long approved by the Supreme Court of the USA: “When bail is given the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment” (Taylor v. Taintor 83 U.S. 366, 371-372 (1872)). Following the decision of the USA Supreme Court in Leary v. United States 224 U.S. 567, 575-576 (1912) a contract system of bail replaced the common law one. This is an approach contrary to public policy in English law: “When a man is ordered to find bail, and a surety becomes responsible for him, the surety is bound at his peril to see that his principal obeys “the order, of the Court: at least, this is the, rule in the criminal law; but if money to the amount for which the surety is bound is deposited, with him as an indemnity against, any loss which he may sustain, by reason of his principal's conduct, the surety has no interest in taking care that the condition of the recognisance is performed. Therefore the contract between the plaintiff and the defendant is tainted with illegality” (Herman v. Jeuchner (1884-85) L.R. 15 Q.B.D. 561, 563 (Brett MR)).
    • 99 Foxall v. Barnett (1853) 23 L.J.Q.B. 7, 8 (Coleridge J ).
    • 100 A. Bottomley, “The Granting of Bail: Principles and Practice” (1968) 31 M.L.R. 40, 49. Parliament acted because the poor were needlessly detained as a result of being unable to find sureties with sufficient resources, and the view was formed that the poor need not provide sureties as they were less likely to abscond.
    • 101 Schedule 2 of the Bail Act 1976 dispensed with the term “at large on bail” so far as statute is concerned. but see R v. Rebecca Saw [2009] EWCA Crim 1, [2009] 2 Cr. App. R (S) 54, 43 (Judge LCJ).
    • 102 For the former Labour government's proposals to extend powers of arrest to anticipated breach of conditions or failure to surrender to custody, and to make them criminal offences, see note 78 above.
    • 103 This may be contrasted with police bail post-charge where, under PACE 1984, s. 47(3A), the date of the first court appearance must normally be no later than the first sitting of the relevant magistrates' court after the person is charged. It may also be contrasted with bail from a court where, whilst there are no time limits in relation to bail itself, there are in practice a number of factors limiting the period for which a defendant will be on bail.
    • 104 House of Commons Standing Committee D, 21 March 2006, Hansard cols. 136-138. The policy guidance issued by the Kent Police states that normally street bail should have a return date of no
    • 124 aSperpvleiesdv.[1F5r5a]n.ce [1997] ECHR 82/1996/671/893, at [42]; Eckle v. Germany [1982] ECHR 8130/78, at [73]. The narrow and literal approach of the English courts is at odds with this. See R (Ajaib) v. Birmingham Magistrates Court [2009] EWHC 2127 (Admin) at [40] (Dobbs J), in which it was held that Article 6 had no application to pre-charge bail since the applicant was not the subject of a criminal charge. With respect this must be wrong. Whilst the extent of the rights that apply precharge is not necessarily as extensive as those that apply during the trial it is wrong both in principle and as a matter of authority to seek to place the articles of the ECHR in watertight compartments. See Murray v. UK [1996] 18731/91. For an analysis of ECtHR jurisprudence on the application of Article 6 ECHR to the investigative stage, see E. Cape, Z. Namoradze, R. Smith and T. Spronken, Effective Criminal Defence in Europe (Antwerp 2010), ch. 2.
    • 125 Garycki v. Poland [2007] ECHR 14348/02, at [68].
    • 126 A. Duff, Answering for Crime (Oxford 2008), p. 196.
    • 127 Duff (note 126 above), p. 197.
    • 128 Lavents v. Latvia [2008] ECHR 58442/00, at [70].
    • 129 Nerattini v. Greece [2008] ECHR 43529/07, at [34].
    • 130 Nerattini, at [21].
    • 131 Nerattini, at [25].
    • 132 Allenet de Ribemont v. France [1996] ECHR 15175/89, at [36].
    • 148 Although by virtue of PACE 1984, s. 37A(1)(a), this would only apply to bail decisions made under PACE 1984, s. 37(7), s. 37C(2) or s. 37CA(2) and not, for example, to bail under s. 37(2). Custody officers are required to have regard to any such guidance (s. 37A(3)). It would seem that a Crown Prosecutor does not have power to make a bail decision, or to direct a custody officer to make a bail decision, in an individual case, although ss. 37B - 37CA are not completely clear on this point. See Merit v. Ukraine [2004] ECHR 66561/01, at [62]-[63]; and also Niedbala v. Poland [2000] ECHR 27915/95, at [51]-[57].
    • 149 Pantea v. Romania [2003] ECHR 33343/96, at [236]-[239].
    • 150 These conflicting roles are similar to those found in courts martial. See Miller v. UK [2004] ECHR 45825/99, at [29]-[30].
    • 151 Thompson v. United Kingdom [2004] ECHR 36256/97, at [33].
    • 152 A. Hucklesby, “Police Bail and the Use of Conditions” (2001) Criminology and Criminal Justice 441, 443.
    • 153 [2005] ECHR 65518/01. At [58] the Court concluded: “The prosecution authorities not only belong to the executive branch of the State, but they also concurrently perform investigative and prosecution functions in criminal proceedings and are party to those proceedings. The Court therefore reiterates its position as to the status of the prosecutor, who cannot be regarded as an officer authorised by law to exercise judicial power! and rejects the Government's arguments in this respect”.
    • 154 Both the police (Police Act 1996) and the Crown Prosecution Service (Prosecution of Offenders Act 1985) are creatures of statute. Both are nominally operationally independent but are subject to the control of the executive (Police Act 1996, s. 36A and Prosecution of Offences Act 1985, ss. 2 and 9).
    • 155 See A. Sanders and R. Young, Criminal Justice (3rd ed, Oxford University Press, 2007) especially chapters 2 and 3.
    • 164 SP.olCicheoPoonwgher,”“(P1o9l9ic7i)n3g7tBheritDisrhoJssou-rAnalSoofcCiarlimDiinsocilpogliyna5r9y3,M60o5d.el of Policing” (1998) 38 British Journal of Criminology 623, 625; A. Hucklesby, “Police Bail and the Use of Conditions” (2001) Criminology and Criminal Justice 441, 444.
    • 165 See for example Artico v. Italy [1980] ECHR 6694/74.
    • 166 Smirnov v. Russia [2005] ECHR 71362/01, at [49]; Gillan v. UK [2010] ECHR 4158/05, at [76]-[87].
    • 167 Papachristou v. City of Jackonsville 405 US 156, 170 (1972).
    • 168 Dawood v. Minister of Immigration [2000] CCT 35/99, at [47] (O'Regan J).
    • 176 For example, many of the Belmarsh detainees were freed on conditional bail following the decision of the House of Lords in A v. Home Secretary [2004] UKHL 56. Those conditions were in effect identical to the control orders later imposed on the terrorist suspects. See C. Walker, “Keeping Control of Terrorists without Losing Control of Constitutionalism” (2006-2007) 59 Stan. L. Rev. 1395, 1410.
    • 177 Each case inevitably turns on its own facts: “To determine whether a person is deprived of his or her liberty the Court must look upon the actual circumstances of the regime to which he or she was subject, as a matter of law and in fact” (Pekov v. Bulgaria [2006] ECHR 50358/99, at [73]).
    • 178 Secretary of State for the Home Department v. JJ [2007] UKHL 45 [2008] 1 AC 385, [103] (Lord Brown).
    • 179 Note 177 above, [105], (Lord Brown) and [61] (Lady Hale).
    • 180 CJA 2003 s. 240A. A “qualifying curfew condition” is defined as “a condition of bail which requires the person granted bail to remain at one or more specified places for a total of not less than 9 hours in any given day”. The defendant must be electronically tagged: R v. Barrett [2009] All E.R. (D) 40 (Sep); R v. Girma [2009] EWCA Crim 912, at [95]. For discounts before s. 240A came into force see R v. Glover [2008] EWCA Crim 1782, at [14] (Hughes L.J.).
    • 181 See model conditions in Home Office and ACPO Guidance on the Safer Detention and Handling of Persons in Police Custody (2006), 171.
    • 182 Note 180 above.
    • 183 Raine and Wilson, note 162 above, pp. 258-259.
    • 184 Baroness Miller of Chilthorne Domer, Policing and Crime Bill, HC Deb. vol. 713 col. 579 (20 Oct 2009)., and see P. Lewis, “Lawyers to fight bail conditions that 'stifle' climate protests”,
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