O, R (on the application of) v Crown Court At Harrow

Expiry of a custody time limit does not automatically require release on bail where section 25 of the Criminal Justice and Public Order Act 1994 applies. That provision establishes a norm against bail for persons charged with specified serious offences who have relevant previous convictions. It must nevertheless be applied compatibly with Article 5(3) of the Convention. The court must consider all relevant circumstances and retain genuine judicial control. Exceptional circumstances exist where the individual circumstances show that the accused does not present the unacceptable risks addressed by section 25. Expiry of the custody time limit is relevant but does not, by itself, constitute exceptional circumstances or prove a violation of Article 5(3). Bail decisions should give brief reasons, including when bail is refused.

The claimant faced charges of rape, false imprisonment and indecent assault. He had a previous conviction for rape and had been refused bail under section 25 of the Criminal Justice and Public Order Act 1994. The prosecution failed to obtain an extension of the custody time limit because it had not shown due diligence and expedition. The Crown Court nevertheless refused bail after the limit expired.

The claimant sought judicial review and habeas corpus. He challenged the validity of the amended custody-time-limit regulations, the domestic interpretation of section 25, the compatibility of continued detention with Article 5(3), and the alleged discriminatory operation of section 25 under Article 14.

1. Jurisdiction and vires. Section 29(3) of the Supreme Court Act 1981 did not prevent the Administrative Court from considering the challenge. Section 22(13) of the Prosecution of Offences Act 1985 treated the relevant Crown Court jurisdiction as jurisdiction other than jurisdiction relating to trial on indictment. The amended regulations were intra vires. Sections 4(1) and 4(8A) of the Bail Act 1976 remained subject to section 25 by virtue of section 4(8), and the amendment to regulation 6(6) reflected that statutory relationship.
2. Section 25. Section 25 establishes a statutory norm against bail, but does not remove effective judicial control. The court must examine all relevant circumstances. The expression “exceptional circumstances” is an ordinary adjective meaning circumstances outside the ordinary course, unusual, special or uncommon. It does not require circumstances to be unique or very rare. The relevant question is whether, taking account of the alleged offence and the offender, the accused presents the unacceptable risks identified by the provision.
3. Convention compatibility. Properly construed, section 25 is compatible with Article 5(3). The court must make a genuine and individual assessment. The fact that the custody time limit has expired does not automatically amount to exceptional circumstances. Article 5(3) requires an overall assessment of the length and conduct of the proceedings, including delay caused by the defendant, rather than treating the refusal to extend a domestic custody limit as conclusive.
4. Application and outcome. Judge Sanders was entitled to conclude that there were no exceptional circumstances, having regard to the seriousness of the charges and the claimant’s previous conviction. No Article 5(3) violation was established. The claimant’s position was not analogous to that of an accused without the relevant previous conviction, so Article 14 did not assist. The claim and habeas corpus application were dismissed. No relief was granted. Fresh bail applications remained available if circumstances changed.
5. Separate opinion. Hooper J agreed with the result but differed on the meaning of “satisfied” in section 25. He considered that, read literally, the provision placed a legal burden on the defendant, which was incompatible with Article 5(3), but that it could and should be read down to impose only an evidential burden. This difference did not affect the outcome.

The judgment itself does not state a prior appellate decision in the same proceedings. The court refused permission to appeal to the House of Lords.