The requirement for a court to be satisfied that "exceptional circumstances" existed before granting bail to an alleged offender, to whom s.25 Criminal Justice and Public Order Act 1994 applied, did not violate the right to liberty enshrined in Art.5(3) European Convention on Human Rights.Application for judicial review and for a writ of habeas corpus arising from a denial of bail to the claimant ('O') following the expiry of his custody time limit. O had a previous conviction for rape when arrested and charged on 6 December 2001 on suspicion of having committed a similar offence. Thereafter he made seven applications for bail, including one to the High Court, all of which were refused. The last of these applications took place at Harrow Crown Court on 9 December 2002 and was refused because, having considered s.25 Criminal Justice and Public Order Act 1994, the judge was not satisfied that there were exceptional circumstances that justified granting O bail in light of his previous conviction. O subsequently brought this claim, contending that since the expiration of his custody time limit on 7 June 2002 his custody had been illegal. The following matters fell to be determined: (i) the effect of s.29(3) Supreme Court Act 1981; (ii) whether, bearing in mind that O sought his release from custody, his arguments should have been addressed to a High Court judge; (iii) whether the amendment to reg.6(6) Prosecution of Offences (Custody Time Limits) Regulations 1987 SI 1987/299 was, in terms of domestic legislation, ultra vires; (iv) what the proper approach to the wording of s.25 of the 1994 Act was, having regard to, firstly, the right to liberty in Art.5 European Convention on Human Rights and, secondly, European and domestic jurisprudence as to the burden of proof; and (v) whether, in this case, the judge's reliance on s.25 of the 1994 Act after the expiration of the custody time limit violated O's right to trial within a reasonable time as laid down by Art.5(3).HELD: (1) In dealing with the issues arising in this case, the court was not inhibited by s.29(3) Supreme Court Act 1981. (2) Notwithstanding that O had previously had a bail application considered by the High Court and was not therefore entitled to make another similar application, the jurisdiction of the Crown Court was not inhibited and it was desirable that some of the issues raised be determined by the High Court. (3) By virtue of s.4(8) Bail Act 1976 the whole of that section was made subject to s.25 of the 1994 Act. Regulation 6(6) of the 1987 Regulations did no more than reflect s.4(8) of the 1976 Act and the provisions of s.22 Prosecution of Offences Act 1985 were wide enough to permit the secretary of state to make the changes that were made. It followed that the 1987 Regulations were not ultra vires and, as a matter of domestic law, s.25 of the 1994 Act continued to have effect after the expiration of the custody time limit. (4) The amendments made to the wording of s.25(1) of the 1994 Act (by s.56 Crime and Disorder Act 1998) would not be compliant with Art.5(3) of the Convention if the words "exceptional circumstances" were too narrowly construed or if the court set too high a threshold at which it was prepared to declare itself satisfied that exceptional circumstances existed. However, such was not the case as s.25 merely assisted a court to adopt a proper approach in relation to the question of bail and little was to be achieved by dwelling on who had the burden of proof in circumstances where issues were raised and explored without formality. (5) It was possible in a case to which s.25 of the 1994 Act applied for a judge to refuse an extension of a custody time limit on the basis that the prosecution had failed to show due diligence and expedition and, in order to avoid a violation of Art.5(3), to release an alleged offender on bail despite the absence of exceptional circumstances. However, such a situation plainly did not exist in O's case, and it followed that the decision of the judge to refuse O bail was correct in the circumstances and his continued detention was justified. (6) (Per Hooper J) Bail applications being of an adversarial rather than inquisitorial nature, s.25 of the 1994 Act, read literally, imposed the burden on the defendant rather than the prosecution to show exceptional circumstances. It followed that s.25 was inconsistent with Art.5(3).Application dismissed.
 EWHC 868 (Admin)