Rape and Article 5: Misjudgments in Jersey

http://news.bbc.co.uk/2/hi/europe/jersey/4155101.stm

On Friday, 7 January, 2005, a boy was refused bail by Ian Le Marquand on the grounds of an alleged stabbing.

http://news.bbc.co.uk/2/hi/europe/jersey/4155101.stm

Boy in custody over school attack: A 14-year-old boy accused of stabbing five teenagers with a pair of scissors at Jersey's Les Quennevais school has been remanded in custody. The boy, who cannot be named, appeared at the island's magistrates court on Friday. He reserved his plea to five charges of grave and criminal assault, and to one of possessing an offensive weapon. Magistrate Mr Ian Le Marquand refused an application for bail and remanded the boy in custody until next Tuesday

However, fast forward to July 2008, and we now find the following:

http://news.bbc.co.uk/2/hi/europe/jersey/7523280.stm


Human rights fears over rape bail: Calls to stop people suspected of rape in Jersey being released on bail could conflict with human rights legislation, a former magistrate has warned. The plea for a change was made by the national charity Rape Crisis after a woman was raped by a man who had been bailed for a similar offence. The charity wants previous convictions for sexual offences taken into account. But former magistrate Ian Le Marquand said refusing bail could undermine the basic principles of human rights. The man accused of rape was subsequently found guilty of raping both women.

It seems to me that one of the problems here, apart from the sheer inconsistency of legal practice, is the inability of Ian Le Marquand to understand the European Convention on Human Rights. A similar failing occurred in the Soham murders, with a misunderstanding of the Data Protection Law, leading to a miscarriage of justice.

http://news.scotsman.com/latestnews/Number-in-dock-for-breaching.4302659.jp

The Scotsman noted that anyone can apply for bail. That is in fact, the human rights position. But it does not follow that bail will be granted, only that it cannot automatically be refused.

The volume of bail orders issued has jumped significantly in recent years with the advent of the European Human Rights Act, which allows anyone to apply for bail regardless of the offence.

http://www.yourrights.org.uk/yourrights/the-rights-of-defendants/bail.html

The website detailing rights notices that courts can grant bail, but can also refuse bail. Remember, this is looking at rights from a human rights perspective from the accused individual - and yet it notes that bail can be refused.

If you are charged with an offence which does not carry a possible sentence of imprisonment, the court can normally only refuse bail if you have failed to attend in the past and they believe you would do so again.

Where conditions are attached to your bail, or bail is refused, the court must state its reasons for doing so. In cases of rape or homicide the court must also state reasons if it decides to grant bail.


http://www.hri.org/docs/ECHR50.html

When we look at the convention, article 5 is the one that is significant, and these are the relevant sections.

ARTICLE 5

No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
1. c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial

In the case of alleged rape, this would certainly seem to apply - " reasonably considered necessary to prevent his committing an offence", i.e., another rape.


In fact, if we look at the wider context, we note that elsewhere in the world, human rights clearly does not reflect Ian le Marquand's suggestions on the matter. Nana Oye Lithur, in the report below, is an international human rights lawyer, dealing with cases where bail is often granted by corrupt officials in rape cases.

http://www.thestatesmanonline.com/pages/news_detail.php?newsid=1703§ion=12

The Commonwealth Human Rights Initiative has expressed dismay at the decisions of certain judges to grant bail to rape and defilement suspects contrary to the Criminal Procedure Code. The human rights organisation has therefore urged the Chief Justice to hold such judges accountable for such actions and also reprimand them in the appropriate manner in order to restore public confidence in the criminal justice system. Speaking at a press conference in Accra yesterday, to mark International Human Rights Day 2006, Nana Oye Lithur, the Regional Coordinator for the CHRI-Africa Office, cited several cases where judges have granted bail and even in some instances without surety to suspects in rape and defilement cases. She said another essential piece of evidence in securing a conviction for rape and defilement is the medical report.

We can see how article 5 does in fact apply in the case of Loukanov v Bulgaria - the bold text is mine.

Criminal proceedings had been instituted against the applicant, a former Prime Minister of Bulgaria and a member of the National Assembly, allegedly on suspicion of his having misappropriated, in concert with other members of the Government, a large quantity of public funds intended as assistance and loans to certain developing countries, contrary to specific provisions in the Criminal Code. The applicant was arrested and remanded in custody pending trial. Subsequent appeals and requests for release were refused, and the applicant was detained for 115 days before being released on bail. He complained that his arrest and detention on remand had been in breach of Article 5(1) (c) of the Convention, in that the facts alleged against him could not objectively ground any 'reasonable suspicion of [his] having committed an offence'. His complaint was, in essence, that his arrest and detention were really nothing more than an overt act of political reprisal.

The Commission was of the view that there had been a breach of Article 5(1), because none of the grounds specified in Article 5(1) (c) as justifying detention had been shown to exist. The facts invoked against the applicant could not, in the eyes of an objective observer, be construed as amounting to the offences of misappropriation with which he had been charged, and it could not therefore be said that there was any reasonable suspicion of his having committed an offence. Nor could his detention be justified as being reasonably necessary to prevent him committing an offence or absconding. Having reached this conclusion about the permissible grounds in Article 5(1)(c) not being made out, the Commission found it unnecessary to decide whether the detention was 'lawful' under domestic law.

- from "Yearbook of European Law. Volume: 17", 1998, p599

Should our magistrates receive training in European Law? Did any case law judgements get cited which indicated bail would breach article 5? Or was it just an off-the cuff opinion based on a very loose reading of the law? Judging by the former Magistrate Ian Le Marquand, the answer has to be a resounding yes.