O V. Crown Court at Harrow

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  1.   I have had the advantage of reading in draft the speech of my noble and learned friend Lord Brown of Eaton-under-Heywood. For the reasons he gives, with which I agree, I would dismiss this appeal.

    2. LORD HUTTON

    My Lords,

  2.   I have had the advantage of reading in draft the speech of my noble and learned friend Lord Brown of Eaton-under-Heywood. For the reasons he gives, with which I agree, I too would dismiss this appeal.

    3. BARONESS HALE OF RICHMOND

    My Lords,

  3.   For the reason given in the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood, with which I agree, I too would dismiss the appeal.

    4. LORD CARSWELL

    My Lords,

  4.   The arguments advanced on behalf of the appellant can be distilled into two main propositions:

    (a)  Once the statutory custody time limit has expired, and has not been extended, there is ipso facto a breach of article 5(3) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") if the defendant is still held by virtue of the operation of section 25 of Criminal Justice and Public Order Act 1994 ("section 25");

    (b)  Alternatively, the effect of section 25 is to place a burden on the defendant to establish the existence of the exceptional circumstances required for bail to be granted, which is an unjustified and disproportionate interference with his Convention rights.

  •   My noble and learned friend Lord Brown of Eaton-under-Heywood has set out the facts and the applicable statutory and Convention provisions in his opinion, which I have had the advantage of reading in draft, and I am grateful to adopt them without repeating them. On the first issue, I am in entire agreement with the reasoning and conclusion contained in his opinion. On the second issue, I also agree with him when he says in paragraph 35 that whether section 25 needs to be read down to achieve the agreed result is a matter of little moment. Whether one adopts the approach of Kennedy LJ in the Divisional Court or that favoured by Hooper J, one can readily reach the same place. I think, however, that the difference between the two is worth examination.

  •   It seems to me plain from the ordinary meaning of the wording of section 25 that Parliament intended that if the judge deciding a bail application to which the section applies found the arguments for and against the existence of such exceptional circumstances evenly balanced and is left uncertain, he must refuse bail. I do not see how a judge could be "satisfied" of the existence of exceptional circumstances justifying the grant of bail unless he came to the conclusion that the arguments in favour or the existence of such circumstances outweighed those in favour of it. Adopting the term used by Elias J in R (Sim) v Parole Board [2004] QB 1288, 1310, para 51, the default position is the refusal of bail.

  •   It may be worth pointing out that but for the effect of the…
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    [2006] UKHL 42
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