The claimant having been released on licence from a prison sentence refused to comply with the conditions of his licence on the ground that he was entitled to be released unconditionally. He was returned to prison. The Divisional Court dismissed his claim for judicial review. His appeal was allowed by the Court of Appeal which granted a declaration that he was entitled to immediate release but stayed the declaration to permit a petition to the House of Lords and granted him conditional bail. He refused to comply with the bail conditions and, as a result, was arrested and returned to prison pursuant to an order of a Lord Justice who, the next day, ordered that his bail be revoked and that he remain in custody until the end of the stay granted by the Court of Appeal. Following the dismissal by the House of Lords of the Home Office’s appeal, he was released unconditionally and he then brought an action for false imprisonment and breach of his rights under article 5 ECHR against the Ministry of Justice as successor to the Home Office. The claimant now appealed against rejection of his claim for damages for his detention.
Held: The appeal raised important questions as to the legal consequences of the grant of bail by the Court and as to the scope of Article 5.1(b) of the European Convention on Human Rights.
Stanley Burnton LJ explained that the only authority for the continued detention was the original sentence of imprisonment and the legislation which was the subject of the court’s judgment: ‘Turning to the effect of the orders of Hughes LJ, I consider that the answer is to be found in the nature of a grant of bail. In principle, a grant of bail is not an order for the detention of the person to whom it is granted. To the contrary, it is a grant of liberty to someone who would otherwise be detained. The legal justification for his detention is to be found elsewhere: in the case of a person suspected of crime, in the powers of arrest of a constable under a warrant issued by a magistrates’ court (see section 1 of the Magistrates’ Courts Act 1980), or without a warrant (see section 24 of the Police and Criminal Evidence Act 1984), and powers to remand pending trial or further hearing. Similarly, there is statutory authority for detention in immigration cases: see, for example, paragraph 16 of Schedule 2 to, and paragraph 2 of Schedule 3 to, the Immigration Act 1971.
A grant of bail may be conditional or unconditional. A condition of bail does not impose an obligation on the person granted bail. It is a true condition. It qualifies the grant of liberty made by the grant of bail. If the person granted bail does not comply with the conditions of his bail, he is liable to be returned to custody. If so, the legal authority for his detention is not the grant of bail, or his breach of the conditions of his bail, but the authority for his detention apart from the order for bail. All that his breach of the conditions of his bail does is to disentitle him to bail.’
Maurice Kay VP CA Stanley Burnton, Patten LJJ
[2010] EWCA Civ 1435, [2011] QB 856, [2011] UKHRR 622, [2011] 2 WLR 936, [2011] 3 All ER 251
Bailii
European Convention on Human Rights 5.1(b)
England and Wales
Citing:
See Also – Stellato, Regina (on the Application of)v Secretary of State for the Home Department HL 28-Feb-2007
The prisoner had served part of his ten year sentence, been released on licence and then recalled. He complained that the new parole system under which he had then to apply was invalid, having been made Parliament by negative resolution.
Held: . .
Cited by:
Cited – B (Algeria) v Secretary of State for The Home Department SC 8-Feb-2018
Bail conditions only after detention
B had been held under immigration detention, but released by SIAC, purportedly in conditional bail, after they found there was no realistic prospect of his deportation because he had not disclosed his true identity. The court was asked ‘whether . .
These lists may be incomplete.
Updated: 21 June 2021; Ref: scu.427214
