Criminal Litigation

The applicant had been remanded in custody pending re-trial on a murder charge. She ar­gued that this was a violation of Art 5(3) of the ECHR.

HELD The question when a trial or re-trial will occur is not a relevant reason for withholding bail for the purposes of Art 5(3). Art 5 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. In this case, the applicant had been convicted by a jury; the Court of Appeal had quashed the conviction but ordered an immedi­ate re-trial.

The Court of Appeal could be said to have concluded that there was still a case for the applicant to answer and one sufficient to warrant a re-trial. However, the persistence of reasonable suspicion is not in itself a sufficient reason for the refusal of bail. There was no basis for inferring that the Court of Appeal had con­cluded that there was a greater risk of the ap­plicant’s absconding before the re-trial than had been the case before the previous trials (when bail has been granted). It was significant that the prosecution had not opposed bail even though it had been open to it to do so.

It followed that the reasons given by the Court of Appeal could not be considered relevant and sufficient reasons for the purposes of Art 5(3).