O (FC) (Appellant) v. Crown Court at Harrow (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice) In re O (Appellant) (application for a writ of Habeas Corpus) (Criminal Appeal from Her Majesty's High Court of Justice) (Consolidated Appeals)

Article 5(3) requires the prosecution to justify continued pre-trial detention by sufficient public-interest reasons which outweigh the presumptions of innocence and liberty. The court must consider every relevant circumstance for and against bail.

Section 25 of the Criminal Justice and Public Order Act 1994 must be read compatibly with those requirements. It guides the application of ordinary bail principles but does not transfer the overall burden of justification to the defendant. If the court remains uncertain, bail is the default position.

Refusal to extend a statutory custody time limit for want of prosecutorial diligence does not automatically make subsequent detention incompatible with article 5(3). Compatibility depends upon an overall assessment of the length and conduct of the detention and proceedings.

The appellant was remanded in custody for trial on serious sexual charges and fell within section 25 of the Criminal Justice and Public Order Act 1994 because of a previous rape conviction. His statutory custody time limit expired after the prosecution failed to obtain an extension, the Crown Court not being satisfied that it had acted with all due diligence and expedition. Bail was nevertheless repeatedly refused under section 25.

The Divisional Court dismissed his judicial-review claim and refused habeas corpus: [2003] EWHC 868 Admin; [2003] 1 WLR 2756. The consolidated appeals asked how section 25 affected bail both before and after expiry of a custody time limit, and whether continued detention following refusal of an extension necessarily violated article 5(3) of the Convention.

1. The appeals were dismissed unanimously. Lord Brown of Eaton-under-Heywood delivered the leading speech. Lord Nicholls, Lord Hutton and Baroness Hale agreed with his reasons. Lord Carswell agreed with the outcome and addressed the proper construction of section 25 in further detail.

2. Per Lord Brown, article 5(3) imposes two requirements. The prosecution bears the overall burden of advancing good and sufficient public-interest reasons for continued detention which outweigh the presumption of innocence and the general presumption in favour of liberty. The judge must also be able to consider all relevant circumstances for and against bail so that judicial control is effective and meaningful.

3. Section 25 of the Criminal Justice and Public Order Act 1994 must be construed compatibly with those requirements. It is essentially a guide to the operation of the Bail Act 1976 for defendants accused of specified grave offences who have a qualifying previous conviction. It does not substantively alter the ordinary inquiry into whether detention is justified. Per Lord Brown, if the court is left uncertain whether bail should be withheld, bail must be granted as the default position.

4. Lord Carswell agreed that the ordinary meaning of “is satisfied” placed a burden or presumption upon the defendant. He preferred expressly to read down section 25 under section 3 of the Human Rights Act 1998. The defendant could be required to point to material supporting exceptional circumstances, but the overall burden of justifying detention remained upon the prosecution.

5. Per Lord Brown, refusal to extend a custody time limit under section 22(3) of the Prosecution of Offences Act 1985 does not automatically render subsequent detention contrary to article 5(3). Domestic legislation applies a comparatively rigid formula at a particular stage. The Strasbourg court examines the proceedings from a longer and wider perspective and asks whether the total period of detention was excessive, taking account of all relevant events and the conduct of both prosecution and defence.

6. Section 25 also disapplies, for defendants within its scope, the ordinary requirement in regulation 6(6) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 that bail follow automatically when the custody time limit expires. That operation was compatible with article 5(3). There was no other basis for holding that the appellant had been wrongly refused bail.

1. House of Lords: The consolidated appeals were dismissed unanimously: [2006] UKHL 42.
2. High Court, Divisional Court: The court dismissed the claim for judicial review and refused the application for habeas corpus, but certified points of law of general public importance: [2003] EWHC 868 Admin; [2003] 1 WLR 2756.
3. Crown Court: Bail was repeatedly refused under section 25 of the Criminal Justice and Public Order Act 1994, including after the statutory custody time limit had expired.