O (FC) v Crown Court at Harrow

The House of Lords dismissed the appellant's challenge to the application of section 25 of the Criminal Justice and Public Order Act 1994 to pre-trial detention. The court held that section 25, properly read and applied in light of the Human Rights Act 1998 and article 5(3) ECHR, does not automatically place an unlawful reverse burden on the defendant: it may be read down to impose an evidential burden while leaving the ultimate burden of justifying continued detention on the prosecution under article 5(3). The Lords also held that the expiry of a custody time limit following the court's refusal to extend it does not ipso facto render further custody incompatible with article 5(3); the domestic statutory test for extension and the Strasbourg test of "special diligence" are related but not identical, and refusal to extend does not inevitably establish a Convention breach.

The appellant, charged with serious sexual offences and subject to section 25 (Criminal Justice and Public Order Act 1994) by reason of a prior conviction, challenged refusals of bail including refusals made after the expiry of the applicable custody time limit. He sought habeas corpus and judicial review, contending that (i) once a custody time limit had expired and the court had refused to extend it under section 22(3) of the Prosecution of Offences Act 1985, continued detention was necessarily incompatible with article 5(3) ECHR; and (ii) section 25 unlawfully imposed the burden on the defendant to establish "exceptional circumstances" justifying bail.

The issues framed were: (i) how section 25 affects the judicial approach to bail in light of article 5(3) and the Human Rights Act 1998; (ii) whether section 25 imposes an impermissible reverse burden; and (iii) whether refusal to extend a custody time limit under section 22(3) automatically renders subsequent detention unlawful under article 5(3).

The court reviewed the statutory scheme (Bail Act 1976, Criminal Justice and Public Order Act 1994 s.25, Prosecution of Offences Act 1985 s.22 and the Custody Time Limits Regulations 1987) and Strasbourg authorities on "special diligence" under article 5(3). The Lords concluded that section 25 should be treated as a Parliament-intended statutory presumption against bail in a narrowly defined class of cases but that, to be Convention-compatible, it may and should be read down so that the judge retains effective judicial control: the prosecution bears the overall burden of justifying continued detention and the defendant need only discharge an evidential burden to point to material establishing exceptional circumstances. On the custody time-limit point, the Lords held that refusal to extend a custody time limit under domestic statute does not automatically equate to a breach of article 5(3); the Strasbourg court takes an overall view and may reach a different conclusion, but there is no necessary incompatibility between a domestic refusal to extend and article 5(3). The appeal was dismissed.

Appeal dismissed. The House of Lords held that section 25 of the Criminal Justice and Public Order Act 1994 is compatible with article 5(3) when read in light of the Human Rights Act 1998: it operates as a statutory presumption against bail for a narrow class of defendants but can be read down to impose at most an evidential burden on the defendant while leaving the prosecution to justify continued detention. Further, refusal to extend a custody time limit under section 22(3) does not automatically make subsequent detention unlawful under article 5(3); the domestic statutory test and Strasbourg's "special diligence" test are related but not identical, and continued detention after refusal of an extension may be lawful in appropriate cases.

Divisional Court (Kennedy LJ and Hooper J) considered the issue ([2003] EWHC 868 (Admin)); appeal to the House of Lords ([2006] UKHL 42). The Divisional Court's differing approaches concerned whether section 25 imposes a burden on the defendant or can be construed as a presumption to be overridden by judicial evaluation; the House of Lords resolved these points and dismissed the appeal.