High Court of Justice in Northern Ireland Queen's Bench Division Decisions

1. The applicant is charged with unlawfully having in his possession, on 13 September 2000, a controlled drug of Class B, namely cannabis resin, contrary to section 5(2) of the Misuse of Drugs Act 1971. He is also charged with having, on the same date, in his possession approximately 20 kilos of cannabis resin with intent unlawfully to supply it to another, contrary to section 5(3) of the Misuse of Drugs Act 1971.

2. Mr J Mallon, who appears for the applicant, asks the court to rule on two preliminary issues with arguments based on the European Convention for the Protection of Human Rights and Fundamental Freedoms and the enactment of the Human Rights Act. The Act is currently in force to a limited extent and it is intended that the main provisions will come into force on 2 October 2000.

3. A decision whether or not to release a defendant on bail is unlikely to have any bearing on whether a subsequent conviction should be quashed. Having regard to this and to the observations of the House of Lords in Kebelin it is, in my judgment, premature for counsel to invoke the Human Rights Act.

4. As the date for commencement of the Act is imminent I propose to express an opinion on the submissions that have been made by Mr Mallon though I do so without the benefit of a full argument from the prosecution. Since the hearing I have read, and derived considerable assistance from, Bail and the Human Rights Act 1998, Law Commission Consultation Paper No. 157 .

5. Mr Mallon’s first submission concerns the mode of hearing a bail application. Article 5 of the Criminal Justice (NI) Order 1998 gives the court power, after hearing representations from the parties, to direct that an accused shall be treated as being present in the court for any particular hearing before the start of a trial if, during the hearing he is held in a prison or other institution and whether by means of a live television link or otherwise, he is able to see and hear the court and to be seen and heard by it.

6. The applicant is being held in HM Prison Maghaberry and it is proposed that his application should be heard with him appearing on a live video link. At the outset of application the applicant confirmed that he could see and hear the court and I was able to both to see and hear him.

7. It is argued on behalf of the applicant that it would be a breach of his Convention rights, and in particular of his rights under Article 5(3), for the court to proceed with the hearing by this method and that an applicant must in all cases be physically present in the court room

8. Article 5(3) states:

9. Mr Mallon relied on a passage in the judgment of the European Court of Human Rights in Schiesser v Switzerland(1979) 2EHHR 242, at paragraph 31, where the Court said:

10. Article 5(3) requires one appearance before a judge and it is a defendant’s first remand appearance before a magistrate, provided it is sufficiently prompt, that fulfils this requirement.

11. An application for bail is brought in exercise of rights under Article 5(4). This entitles a defendant to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. He may do so at the same time as he appears before the magistrate under Article 5(3), on his first remand, or by making a later challenge or challenges to the legality of his detention.

12. It is well established that Article 5(4) gives an applicant a right to participate in the hearing – see Winterwerp v Netherlands A33 (1979)2EHRR 387- as the court said “either in person or, where necessary, through some form of representation”.

13. This applicant is represented both by counsel and solicitor and he can participate in the hearing and make representations himself, if he wishes, over the live video link.

14. It is open to the Court to require the presence of the applicant in Court after hearing representations. A decision to do so must depend upon the circumstances of the particular case.

15. No such representations have been made in this case as Mr Mallon is relying upon presence as of right.

16. In my opinion the submission that the applicant is entitled to be present in court has no basis in the wording of Article 5(4) and I do not accept that such a right exists.

17. The second submission made on behalf of the applicant is that he, or his counsel, is entitled to see all the police files which are available to the prosecution as there should be equality of arms and that once they are produced reasonable time should be given for consideration of the contents of the files.

18. Mr Mallon founds this submission on a passage in the judgment of the European Court of Human Rights in Lamy v Belgium 11EHRR 529 at paragraph 31 where the Court said:

19. In the more recent case of Nikolova v Bulgaria 25 March 1999( Application No. 31195/96), not referred to in the course of the argument, the Court said (at para. 58):

20. There are four general grounds on which bail may be opposed by the prosecution. Where there is a well -founded risk: that the accused will fail to appear, that, if released, he would interfere with the course of justice, that he would be likely to commit offences or his release may give rise to public disorder.

21. If there are any documents which may assist the applicant to answer opposition to bail on all or any of these grounds provided his counsel is given access to them it will normally provide equality of arms between the parties. In practice this is usually done by, for example, handing over a copy of the police record if the risk of commission of offences is relied upon as a ground for opposing bail. Generally these are the documents “which are essential in order effectively to challenge the lawfulness of ... detention”. Therefore I do not accept that an applicant is entitled, as of right, to any general disclosure such as is claimed here or to such disclosure as is given before trial. While this is generally the position I would add that cases decided under the Convention show that it is necessary to examine each case on its merits and it may be necessary to depart from this in particular cases. Where, for example, as in Nikolova, the charge is based on an auditor’s report and the applicant is asserting that the evidence is weak, it may be necessary for the applicant to inspect the evidence on which the charges are based. The usual practice of counsel outlining the prosecution case may in particular cases be insufficient to provide equality of arms.

22. The applicant would therefore in the present case be entitled, through his counsel, to disclosure of those documents, if any, upon which the prosecution intends to rely as providing grounds to oppose bail unless there is good reason for not doing so, such as the protection of a witness.