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FOURTH
SECTION
CASE OF
GAULT v. THE UNITED KINGDOM
(Application
no. 1271/05)
JUDGMENT
STRASBOURG
20
November 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gault v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall,
President,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr K.
Traja,
Mr S. Pavlovschi,
Mrs P. Hirvelä,
Mr L.
Garlicki, judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 23 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1271/05) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, Ms Lesley Ann Gault (“the applicant”), on 5
January 2005. Having originally been designated by the initial G.,
the applicant subsequently agreed to the disclosure of her name.
- The
applicant, who had been granted legal aid, was represented by Mr T.
Caher, a solicitor practising in Lisburn, Northern Ireland, assisted
Mr J. McCrudden QC and Mr M. Mulholland, counsel. The
United Kingdom Government (“the Government”) were
represented by their Agent, Ms K. Jones of the Foreign and
Commonwealth Office.
- The
applicant alleged that the decision to place her in detention on
remand pending her third trial had not been supported by relevant and
sufficient reasons. She relied on Article 5 §§ 1 (c) and 3
and Article 8 of the Convention.
- On
6 February 2006 the President of the Chamber of the Fourth Section of
the Court decided to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it was decided to examine the merits of the application
at the same time as its admissibility.
- The
applicant and the Government each filed written observations (Rule 59
§ 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1967 and lives in Lisburn,
Northern Ireland.
- On
19 May 2000 the applicant’s husband was murdered. On 18 August
2001 the applicant was charged with aiding and abetting Mr G, her
former lover, to murder her husband. She was released on bail pending
trial to her home where she lived with her three children, who were 6
years of age at the time (triplets). Neither the police nor the
prosecution objected. The trial judge permitted the applicant to
remain on bail throughout the trial: no objection was formulated by
the prosecution. She continued to reside at home with her children.
- On
20 November 2002 the jury unanimously convicted Mr G of murder but
failed to agree on a verdict on the applicant. The trial judge
granted her bail pending the prosecution’s decision whether to
prosecute her further. The prosecution did not object to bail and she
remained at home with her children. Subsequently, the prosecution
elected to prosecute the applicant again but did not object to her
remaining on bail.
- The
applicant’s second trial began on 17 February 2003. The second
trial judge also allowed bail, no objection being made by the
prosecution. On 20 March 2003 she was, by a majority verdict of the
jury, convicted of murder. The trial judge sentenced her to life
imprisonment and committed her to custody. The period of imprisonment
that the applicant had to serve before she could have been considered
for release was set at fifteen years. Leave to appeal was rejected by
a single judge of the Court of Appeal of Northern Ireland.
- On
9 July 2004 the full Court of Appeal allowed her appeal. It found
that the second trial judge had misdirected the jury as to the state
of mind necessary to make the applicant an accessory to murder. While
the prosecution case had been that the applicant had facilitated the
killing of her husband by Mr G knowing that he intended to kill and
intending that Mr G should do so, that was not the matter put by the
second trial judge to the jury: that trial judge had directed the
jury as follows:
“If you’re satisfied beyond reasonable doubt
that [the applicant] participated in a joint venture with [Mr G],
realising that in the course of that venture [Mr G] might use force
with intent to kill or to cause really serious injury to her husband
and Mr G did so, then she would be guilty of murder.”
The
Court of Appeal found that that ruling effectively opened to the jury
the possibility of convicting the applicant for murder on the basis
of matters not part of the prosecution case and not canvassed during
trial and, notably, on the basis that the applicant had engineered a
meeting between her husband and Mr G without any firm intention that
he be killed. The Court of Appeal quashed her conviction and, having
heard further submissions, ordered that she be returned upon a fresh
indictment for murder before the Crown Court.
- The
applicant applied for bail and the prosecution did not object. The
summary form of order of the Court of Appeal of 9 July 2004 indicates
that her application was refused and that she was to remain in
detention until retrial. In her application form and subsequent
observations the applicant stated that there were two grounds for
that refusal: she had been convicted by a jury of murder on 20 March
2003 and any retrial would take place soon. In correspondence, she
submits that the reasoning of the appeal court was not committed to
writing, that her representative’s contemporaneous note was
mislaid in the Taxing Master’s office but that the Belfast
Telegraph newspaper had accurately reported the reasons for refusing
her bail request. The relevant extract reads as follows:
“Refusing the application the Lord Chief Justice
said he had taken her circumstances into consideration. But he said
that the situation was now different in that she had been found
guilty by the majority verdict of the jury.”
In
their written observations, the Government submitted a copy of the
contemporaneous notes of the senior law clerk present at the hearing.
The final paragraph of her notes reads as follows:
“ CS [Counsel for the prosecution]: no opposition
to bail – did attend.
LCJ [Lord Chief Justice]: on bail before trial, course
of trial, honoured all condits [conditions] prosecution doesn’t
oppose. Material difference here – found guilty by jury
quashing material irregularity on charge. Doesn’t sound
directly an issue on bail. Be a prompt retrial. Refused.
In
her application to the Court of Appeal for leave to appeal against
the refusal of bail to the House of Lords, the applicant argued,
inter alia, that the reasons for refusing bail on 9 July 2004
were not relevant, sufficient or lawful within the meaning of Article
5 of the Convention. On 22 July 2004 the Court of Appeal refused
leave.
- The
applicant remained in custody until 6 September 2004 when she was
granted bail by the third trial judge, during which period of time
her children were cared for by her elderly and infirm parents.
- She
remained on bail throughout the third trial. On 8 October 2004 she
was acquitted and released.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
grant of bail in Northern Ireland is governed by common law rather
than statute. There is a discretion to grant bail in any case but the
court is obliged to pay regard to certain considerations before doing
so and may not do so if satisfied of other matters. The grounds on
which bail may be refused include: where there are good reasons for
believing that the defendant will not turn up for his or her trial;
where there is a serious likelihood that the defendant will interfere
with witnesses or evidence or otherwise obstruct the course of
justice; and when the defendant is likely to commit further offences
if set at liberty. In deciding whether there are good reasons for
believing that the defendant will not turn up for his or her trial,
the relevant factors to be taken into account by the court include:
the nature and seriousness of the alleged offence; the probable
method of dealing with the defendant in the event of a conviction;
and the strength of the evidence against the defendant. The attitude
of the prosecution is one factor to be taken into account by the
court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
A. The parties’ submissions
1. The applicant
- The
applicant submitted that the Court of Appeal did not provide relevant
and sufficient reasons for her detention between 9 July 2004 and
6 September 2004 contrary to Article 5 § 3 of the
Convention, which provides:
“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
authorised 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.”
She
submitted that it was illogical, unreasonable and in conflict with
the presumption of innocence for the court to rely on a verdict which
the same court had just found to be unsafe. She also noted her
special family circumstances (the needs of three young children, the
absence of any parent and the age and infirmity of her own parents
who were obliged to care for the children while she was detained).
She pointed out that the prosecution had not objected to her being
granted bail and that the refusal followed her separation from her
children for a considerable period of time as a result of an unsafe
verdict. She had complied with all bail conditions during her
previous two trials and, indeed, she fully complied with all bail
conditions later imposed by the third trial judge. She further argued
that the prosecution did not at any time in the domestic proceedings
consider that she was at risk of absconding. Therefore, the
respondent Government could not argue that the risk of absconding was
a relevant and sufficient consideration for the purposes of Article 5
§ 3. Moreover, the applicant maintained that the case against
her was at its weakest before the third trial, so little weight could
be attached to the strength of the case against her in deciding
whether or not to refuse bail. The fact that the Court of Appeal
opted to order a retrial could never be a consideration in refusing
bail since consideration of whether or not to grant bail only arose
after the decision to order a retrial: if the Court of Appeal had
discharged her instead then there would have been no need to consider
the question of bail. It appears that the applicant further submitted
that the basis on which her conviction had been quashed was of little
importance to the bail decision. Nor was it relevant that the
applicant knew that if convicted in the third trial she would face a
very lengthy period of imprisonment since the third trial was no
different from the previous two trials in this respect. Finally, the
Court of Appeal had not considered other means such as requiring a
surety for bail before refusing bail.
2. The Government
- The
Government submitted that particular considerations applied in a case
where the Court of Appeal quashed a conviction, ordered a retrial and
then considered whether to grant bail to the defendant. They
submitted that in such circumstances it was appropriate for the Court
of Appeal to take into account the following factors: the previous
conviction of the defendant; the apparent strength of the case
against the defendant; the fact that the court had opted to order a
retrial of the defendant rather than discharge him or her; the basis
on which the defendant’s earlier conviction was quashed; the
nature and seriousness of the offence; the fact that the defendant
had been in custody since the earlier conviction; and the fact that
the defendant would be given a very lengthy period of imprisonment if
convicted again.
- The
Government submitted that when the bail decision was made, the Court
of Appeal was fully apprised of the facts and circumstances of the
applicant’s case. It took into account that the applicant had
been on bail prior to her conviction and had honoured her conditions
of bail. However it also took into account the applicant’s
conviction and subsequent detention. It also considered the fact that
the conviction had been quashed due to a material irregularity in the
trial judge’s direction to the jury and that a prompt retrial
was envisaged. It was significant that the applicant had been
convicted by a jury since this suggested the case against her was a
strong one and she knew that if convicted at the retrial she faced a
sentence of life imprisonment with a likely minimum period of fifteen
years’ imprisonment. In addition there was a persistence of a
reasonable suspicion that the applicant had committed a serious
offence and she had also been in custody for 17 months prior to the
bail hearing. In the Government’s view, these factors were
sufficient to provide good reason to believe the applicant might
abscond if granted bail. It was irrelevant that the third trial judge
granted bail since the Court of Appeal made its decision on the basis
of the facts before it at the time. Equally, it was irrelevant that
the prosecution did not object to bail since according to Article 5 §
3, the decision to grant or refuse bail was for a ‘judge or
other officer’. The Court of Appeal had therefore properly
exercised its discretion and correctly concluded that there were
relevant and sufficient reasons to justify the applicant’s
detention pending her retrial.
B. Admissibility
- The
Court notes at the outset that while it cannot be excluded that the
case could be more appropriately examined under Article 5 § 1 of
the Convention, like the parties the Court will examine the facts of
the case from the standpoint of Article 5 § 3. It notes that
this complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention and that it is not inadmissible
on any other grounds. It must therefore be declared admissible.
C. Merits
- The
Court’s review of whether the reasons given by the domestic
court were relevant and sufficient for the purposes of Article 5 §
3 is hampered by the fact that there is a lack of clarity as to what
the reasons were. It would certainly have been desirable for the
Court of Appeal to have recorded more detailed reasoning as to the
grounds for the applicant’s detention (Van der Tang v.
Spain, judgment of 13 July 1995, Series A no. 321,
§ 60; Sardinas Albo v. Italy, no. 56271/00,
§ 89, 17 February 2005). Nonetheless, the Court is
satisfied that reasons were given and observes that the parties have
confined their observations to the relevance and sufficiency of those
reasons. In this respect, the Court recalls that in general it is
essentially on the basis of the reasons given in the domestic courts’
decisions that the Court is called upon to decide whether or not
there has been a violation of Article 5 § 3 (Khudobin v.
Russia, no. 59696/00, § 108, ECHR 2006 ...
(extracts); Jablonski v. Poland, no. 33492/96, § 79,
21 December 2000). It is not the Court’s task to establish such
facts and take the place of the national authorities who ruled on the
applicant’s detention (Ilijkov v. Bulgaria,
no. 33977/96, § 86, 26 July 2001). Similarly, the
Court will confine itself to the reasons actually given by the
domestic courts and not consider new reasons advanced by the
respondent Government (Trzaska v. Poland, no. 25792/94,
§ 66, 11 July 2000; and Khudobin, cited above, §
108). The Court will therefore examine the reasons given by the Court
of Appeal, to the extent that they can be discerned from the
materials before it. The Court notes that the two reasons given by
the Court of Appeal were, firstly, that the re-trial would be prompt
and, secondly, that there was a material difference between the
applicant’s third trial and her first and second trials,
thereby justifying refusing bail pending the third trial although
granted pending the first and second trials.
- In
respect of the first reason, the Court recalls that the matter of
when the trial or, in the present case, re-trial will occur is not a
relevant reason for the purposes of Article 5 § 3: the second
limb of Article 5 § 3 does not give judicial authorities a
choice between either bringing an accused to trial within a
reasonable time or granting him provisional release pending trial
(McKay v. the United Kingdom [GC], no. 543/03, § 41,
ECHR 2006 ....). Therefore insofar as the promptness of the
re-trial was a reason for refusing bail and not simply an additional
observation by the Lord Chief Justice, the Court considers that it
cannot be said to be a relevant reason for the purposes of Article 5
§ 3 of the Convention.
- In
respect of the second reason advanced by the Court of Appeal, the
Court first recalls that the persistence of reasonable suspicion is a
condition sine qua non for the lawfulness of the continued
detention, but after a certain lapse of time it no longer suffices
(Labita v. Italy [GC], no. 26772/95, § 153,
ECHR 2000 IV). However, the Court also recognises that the
present case must be distinguished from the more common situation
where an accused person is placed in detention on remand pending a
first trial. In the present case, the applicant had been convicted by
a jury. That conviction had been quashed as a result of the improper
direction of the trial judge. The Court of Appeal, having heard
argument from both parties, quashed the conviction but ordered an
immediate re-trial. Having full knowledge of the case the Court of
Appeal could be said to have concluded on the basis of the facts
before it that there was still a case for the applicant to answer and
one sufficient to warrant a re-trial. The persistence of reasonable
suspicion may therefore be said to have derived from the same basis
as the decision to order a re-trial: indeed the question of bail was
considered immediately after the Court of Appeal had implicitly
concluded that there was a reasonable suspicion.
- However,
it cannot be said that this was in itself a relevant and sufficient
reason for the refusal of bail. As a matter of domestic law, the
Court of Appeal may have been entitled to conclude that there was a
material difference between the third trial and the first two trials.
Nonetheless, the Court is not persuaded by the Government’s
argument that in drawing this material difference, it can be inferred
that the Court of Appeal had concluded that there was a greater risk
of the applicant’s absconding before the third trial than had
been the case before the previous two trials. In this respect, it is
of some significance that the prosecution had made no submission to
this effect even though it was open to them to do so. Nor is the
Court persuaded that in the circumstances of the case the risk of the
applicant absconding was amplified by the length of the sentence she
faced following the second re-trial. In this connection, the Court
recalls that the risk of absconding cannot be gauged solely on the
basis of the severity of the sentence faced by the applicant
(Muller v. France, judgment of 17 March 1997,
Reports of Judgments and Decisions 1997 II, § 43)
and in any event, the severity of the sentence the applicant faced
did not change throughout the proceedings against her.
- Having
therefore examined the reasons given by the Court of Appeal, the
Court finds that these cannot be considered relevant and sufficient
reasons for the purposes of Article 5 § 3. Accordingly there has
been a violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant further complained that her detention on remand had
violated her right to respect for her private and family life
guaranteed under Article 8 of the Convention.
- Article
8 of the Convention provides as relevant:
“1. Everyone has the right to respect
for his private and family life...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of... public safety or for the prevention of disorder
or crime....”
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible
- However,
given its reasoning leading to a violation of Article 5 § 3, the
Court does not consider that this complaint gives rise to any
separate issue under Article 8 (see D.G. v. Ireland,
no. 39474/98, § 107, ECHR 2002 III).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant did not allege any pecuniary damage. However, she argued
that she had suffered non-pecuniary damage as a result of her
unlawful detention on remand. This was exacerbated by her separation
from her three young children during the annual school holidays who
were instead cared for by her elderly parents. This was made more
difficult by her previous detention. With reference to Northern Irish
case-law on unlawful detention, she submitted that appropriate
compensation would be GBP 5,000 for the first day’s
detention, decreasing by GBP 1,000 each day for the next four days
and then GBP 1,000 for each subsequent day in detention. This scale,
for fifty-four days in detention, resulted in a total figure of GBP
69,000 (approximately EUR 100,883).
The
Government considered that this claim was excessive and that domestic
case-law was of limited relevance when considering just satisfaction.
They nonetheless gave examples of domestic cases where much lower
sums of compensation had been awarded. They also referred to
Trzaska v. Poland, no. 25792/94, 11 July 2000 and
Muller, cited above, as examples of cases where this Court has
recognised that for a breach of Article 5 § 3, the mere finding
of a violation constitutes just satisfaction. However, if the Court
considered that non-pecuniary damage should be awarded then they
submitted that this should not exceed GBP 5,000 (approximately EUR
7,310).
- The
Court takes note of the parties’ submissions on similar awards
in domestic law. However, it agrees with the Government that domestic
case-law is of limited relevance to the question of non-pecuniary
damage in proceedings before it (see, mutatis mutandis,
Salah v. the Netherlands, no. 8196/02, § 74,
ECHR 2006 ... (extracts)). Having regard to the relevant
principles for an award of non-pecuniary damage for a violation of
Article 5 § 3 of the Convention (see inter alia,
Smirnova v. Russia, nos. 46133/99 and
48183/99, § 105, ECHR 2003 IX (extracts)), the Court,
ruling on an equitable basis, awards the applicant EUR 7,500.
B. Costs and expenses
- The
applicant originally claimed a total of GBP 6,580 in legal costs and
expenses (inclusive of value-added tax (VAT)) which is approximately
EUR 9,623. This claim comprised the costs and expenses of the
applicant’s solicitor in the amount of GBP 2,937.50, senior
counsel’s fees in the amount of GBP 2,761.65 and junior
counsel’s fees in the amount of GBP 881.25.
- The
Government submitted that since these costs had not been itemised it
was not possible to comment on their reasonableness and invited the
Court to reject the claims in whole or in part. If the Court decided
to make an award, the Government submitted that 50% would be a
reasonable proportion.
- Subsequent
to the Government’s observations, the applicant submitted a
statement of the work done by senior counsel, detailing his fees of
GBP 2,761.65 (approximately EUR 4,039) for nearly 40 hours work. No
other itemised statement was received by the Court. The Government
considered excessive the time for which counsel had billed and
submitted that 50 % would be a reasonable proportion. In respect of
the other fees claimed by the applicant, the Government maintained
their original observations.
- The
Court recalls that in order for costs and expenses to be recoverable
under Article 41 of the Convention, it must be established that they
were actually and necessarily incurred, and reasonable as to quantum
(see, among other authorities, D.G. v. Ireland, cited above, §
128). The Court notes that no itemised statements were provided in
relation to the costs and expenses of the applicant’s solicitor
or junior counsel. Consequently, it makes no award under these heads.
As to the costs and expenses of senior counsel, the Court agrees with
the Government that the number of hours for which counsel charged
appears to be excessively high. Considering the above, and making its
assessment on an equitable basis, the Court awards the applicant EUR
2,020 inclusive of VAT, less EUR 850 already received in legal aid
from the Council of Europe.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of
Article 5 § 3 of the Convention;
- Holds that no separate issue arises under
Article 8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 7,500
(seven thousand five hundred euros) in respect of non-pecuniary
damage, together with any tax that may be applicable, to be converted
into pounds sterling at the rate applicable at the date of
settlement;
(b) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,020 (two thousand and
twenty euros), inclusive of value-added tax, in respect of costs and
expenses, to be converted into pounds sterling at the rate applicable
on the date of settlement, less EUR 850 (eight hundred and fifty
euros); and
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 20 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Josep Casadevall
Registrar President
