Crown Prosecution Service v Chorley Justices [2002] EWHC 2162 (Admin)

Crown Prosecution Service v Chorley Justices [2002] EWHC 2162 (Admin) was a successful application for judicial review brought by the Crown Prosecution Service before the Divisional Court concerning the lawfulness of so-called “doorstep conditions” attached to bail.

A defendant had appeared before the Chorley justices on 2 August 2002 following the execution of a warrant issued after he had failed to attend on 11 July. He faced a large number of offences including handling stolen goods, driving while impaired through drugs, and various less serious motoring offences. He was clearly facing the risk of a custodial sentence. The defendant had failed to appear before the justices on two separate occasions in relation to these offences, namely 18 April and 11 July 2002, and had failed to appear on other occasions in relation to other matters.

The prosecution requested that bail be granted with conditions including a curfew and, in addition, a further condition that the defendant be required during the hours of the curfew to present himself at the door of his home if requested to do so by a police officer. The defendant, through his solicitor, did not oppose such a condition being made. However, the clerk to the justices drew the attention of the bench to a memorandum distributed to all magistrates in Lancashire by the Director of Legal Services and Justices Clerk on 31 July 2002. In that memorandum the author indicated his view that the addition of the requirement that an accused person present himself at the door of premises if requested to do so by a police officer, commonly known as a “doorstep condition”, was not one which could lawfully be made within the terms of section 3 of the Bail Act 1976. Having heard further submissions from the prosecution and advice from their clerk, the justices concluded that they did not have jurisdiction to impose a doorstep condition. Accordingly, the bail conditions imposed merely included, for relevant purposes, the curfew condition itself. The case itself had subsequently become academic as a result of events which had led to the re-arrest of the defendant, but the matter was of some importance because there was apparently a considerable diversity of views in magistrates’ courts around the country as to the lawfulness of doorstep conditions.

The Crown Prosecution Service submitted that the only relevant considerations for the court, as described by Lord Lane in R v Mansfield Justices, ex parte Sharkey [1985] 1 QB 613, at page 625, were whether the condition was necessary for the prevention of the commission of an offence by the defendant when on bail. In that case it had been held that the justices were not obliged to have substantial grounds; it was enough if they perceived a real and not a fanciful risk of an offence being committed. The submission was that if it could properly be said that the condition, in the circumstances of the case, was necessary for the prevention of the commission of an offence by this defendant, then it was one which could properly be imposed, and that that was the only criterion which had to be applied by the justices in determining whether or not they had power to impose a particular condition that was being requested. It was submitted that in the circumstances of this particular case it was a perfectly proper condition to request, and that the justices should have considered that they had power to impose the condition, the only question being whether or not it was necessary to impose it in the circumstances of the case.

On behalf of the justices it was accepted that the appropriate question was that posed by Lord Lane in Sharkey, and it was also accepted that, for the purposes of determining the question before the court, it was not helpful to categorise a proposed condition as ancillary or primary. At the end of the day the question would always remain whether or not it was a condition which was necessary in the circumstances of the case for the purpose of avoiding a risk of one of the eventualities identified in paragraphs (a), (b) and (c) of section 3(6) of the Bail Act 1976. Those paragraphs provided that a person may be required to comply, before release on bail or later, with such requirements as appear to the court to be necessary to secure that he surrenders to custody, he does not commit an offence while on bail, or he does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person. It was submitted that in applying that approach it was clear that there could, in truth, be no justification for the imposition of a doorstep condition; it in no way added to any protection of the public than that which had been achieved by the imposition of a curfew condition. It was submitted that one could test that by saying that if a defendant who was properly obeying the curfew nonetheless failed to attend at the door when the police officer asked him to, what additional benefit had been achieved. He was and still remained obeying the curfew.

It was further submitted that there was an indication in the Act itself that the ambit of subsection (6) was not as wide as would justify the imposition of a doorstep condition. It was pointed out that section 3 contained additional provisions, subsections (6ZAA) and (6ZA), added by amendment. Subsection (6ZAA) provided that, subject to section 3AA, if a person is a child or young person he may be required to comply with requirements imposed for the purpose of securing the electronic monitoring of his compliance with any other requirement imposed on him as a condition of bail. Subsection (6ZA) provided that where a person is required under subsection (6) to reside in a bail hostel or probation hostel, he may also be required to comply with the rules of the hostel. It was submitted that those two subsections would have been wholly unnecessary if the wide construction contended for by the Crown Prosecution Service were the appropriate construction of the Act. Finally, it was submitted that a wide power to impose conditions was one which the court should look at with some care because there must be some certainty where there is an intention to restrict the liberty of an individual, and that certainty could only be achieved if there was a restrictive approach to the scope of the conditions which could be imposed pursuant to the Act.

Lord Justice Latham held that the arguments of the Crown Prosecution Service were correct in relation to the interpretation of the powers of the court under section 3(6). It seemed to him that none of the arguments, put forward on behalf of the justices, could detract from the straightforward meaning of the words of section 3(6) for which the Crown Prosecution Service contended. The submission of the Crown Prosecution Service involved the careful statement that in each case the question that had to be asked was whether in relation to the particular defendant the additional condition was one which was necessary to secure one of the objectives of paragraphs (a), (b) or (c). The arguments on behalf of the justices did not detract in any way from the generality of the words of subsection (6). The first submission, as to the extent to which the condition in effect in any way added to the protection of the public, which was the object of subsection (6), was a question of fact to be determined in each case and did not help to define the power of the magistrates. The second argument had some force, in the sense that one could see arguments for saying that both the additional subsections were not strictly necessary. However, subsection (6ZAA) involved interference with either the person of the defendant or intrusion into the home of the defendant or his place of residence in ways in which it may well have been felt by Parliament were more appropriately dealt with by a specific provision than by relying upon the generality of subsection (6) itself. As far as subsection (6ZA) was concerned, the requirement to reside in a bail hostel or probation hostel was the requirement which was subject to the need to have established the matters in paragraphs (a), (b) or (c). The requirement to comply with the rules of the hostel was a matter which was intended to ensure that there were no difficulties arising out of the defendant’s residence in such a hostel which could cause problems to the bail hostel itself, and in those circumstances one could see why Parliament may have considered it appropriate to add a specific provision to that effect. Accordingly, none of the arguments put forward on behalf of the justices could justify, as a matter of statutory construction, the conclusion that the justices came to that they had no jurisdiction or power under section 3(6) to impose the condition requested by the Crown Prosecution Service.

Lord Justice Latham went on to consider the provisions of the European Convention on Human Rights. Both Article 5 and Article 8 were undoubtedly engaged in this particular case. Article 5 was the article which dealt with the question of the individual’s right to liberty and security. The relevant provision was paragraph 1, which provided that everyone had the right to liberty and security of person and that no one should be deprived of his liberty save in specified cases and in accordance with the procedure prescribed by law, including the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law. That provision was engaged because any breach of a lawfully imposed condition of bail was a matter which rendered the defendant in question liable to arrest under section 7 of the Bail Act 1976. Accordingly, the requirement of the Convention was that the law under which any such arrest occurred should be sufficiently precise and accessible to meet the requirements of the Convention and that it was a provision which struck an appropriate balance and was proportionate to the aim it pursued. Article 8 was also engaged as the imposition of the condition was clearly one which was capable of interfering with the private and family life of a defendant or indeed his home. Article 8(2) made it clear that there should be no interference with the exercise of that right, save in accordance with a law which was sufficiently precise and accessible and in circumstances which could justifiably be considered to be in the interests of society and for the prevention of disorder or crime.

It had not been submitted on behalf of the justices that if the court concluded that the condition was lawful under section 3(6) of the Bail Act 1976, there was any breach of those provisions of the European Convention. That concession was, in Lord Justice Latham’s judgment, properly made. He had no doubt that the provisions of the law in question were indeed sufficiently clear, they were accessible, and, in particular in the context of the imposition of any condition of bail, the defendant in question would undoubtedly have no doubt about what he had to do or not do in order to ensure that he was not exposed to the risk of being deprived of his liberty. He had no doubt that the law generally, in empowering the justices to impose such a condition, was appropriate and struck a proper balance in the interests of both the individual and society. It had to be remembered that, in particular in a case such as the present, there was the real risk that the defendant would be deprived of his liberty; in other words, the justices would have been entitled to have remanded him in custody. The ability of the justices, therefore, to impose conditions appropriate to avoid the risks to the public identified in subsections 6(a), (b) and (c), was one which was beneficial not only to the community, but also to the individual defendant in question, who thereby had the opportunity to avoid the alternative consequence, which would be that the justices might consider that the only way of securing those matters was to remand him in custody. However, the question would always arise in every case as to whether or not it was a proportionate and appropriate response to the problem presented by the particular defendant in the particular case. Section 3(6) of the Act provided a proper indication of when it could be proportionate as a response by requiring the magistrates to impose a condition only when it was necessary in that case to do so.

For all those reasons, the justices were wrong to determine that they had no power to impose the condition in question. Accordingly, the court granted a declaration in the following terms: where an accused in criminal proceedings is remanded on bail subject to conditions, namely, that he reside at a particular address and remain at the address between specified times (that is, subject to a curfew), the court may impose a further condition requiring the accused during the hours of the curfew to present himself at the door of the premises if requested to do so by a police officer. Lord Justice Latham noted that the declaration was only intended to indicate that the justices had the power to do so. It would always remain a question as to whether or not that power should be exercised in the particular case. Although the case did not directly affect the powers of the police to grant bail, the construction of the statute which he favoured led to the same result in the case of police bail, namely that a police officer could, if he considered it necessary to do so, impose a doorstep condition. The relevant statutory provisions were identical in effect.

Mr Justice McCombe agreed, adding that in many cases it would often be the package of measures that were put together by way of conditions that enabled the court to be satisfied that they had done what was necessary to secure the matters set out in section 3(6) of the Act, and that over-analysis of the precise effect of individual conditions may only serve to cloud what was a simple statutory test, and may over-complicate the essentially simple question that was identified by Lord Lane in the passage from the decision in the Sharkey case. In short, magistrates and police officers have power to impose a doorstep condition alongside a curfew requirement where necessary to secure the statutory purposes, and the justices had erred in holding otherwise.

R v Mansfield Justices, ex parte Sharkey [1985] 1 QB 613