A court of constitutional jurisdiction has recently ruled that the human rights of an accused person had been violated. This because the law allows the prosecution to appeal when the court grants bail while the accused person cannot appeal when the court refuses bail.
I believe everyone should rejoice when the courts fortify the human rights armoury of the individual and of the nation. I, for one, am delighted that persons facing criminal charges in detention are given more opportunities to regain their freedom pending trial, if and when the proper circumstances concur. And I earnestly hope that, independently of the final outcome of this case, the law will extend the right of appeal to any accused person denied bail. I have no doubts about that.
What I do have grave doubts about is whether the failure of the law to provide an appeal against a refusal of bail qualifies as a violation of human rights. In my view, it does not.
The European Court of Human Rights had already ruled (Stephens v. Malta, No. 1), that the Maltese system, by virtue of which an accused denied bail cannot appeal (while the prosecution can when the court grants bail), does not violate the accused person’s fundamental human rights. The ECHR considered that the right of accused persons under Maltese law to request bail as frequently as they like, without any limitation whatsoever, ensures as strong a protection against unnecessarily prolonged detention as a right to appeal would.
The Maltese court, despite the clear Strasbourg judgement that the impossibility to appeal against a refusal of bail does not breach human rights, instead went for a finding of violation. This was done on the strength of an argument that had already been expressly raised before the ECHR and specifically rejected by the Strasbourg court: that giving this right to the prosecution and denying it to the accused constituted a breach of the “equality of arms” that should exist between all parties to criminal proceedings. Strasbourg found it did not.
The doctrine of “equality of arms” requires the prosecution and the defence to be on an equal footing.
I dread to consider the fallout when domestic courts start cheerfully overruling that piddling supreme court of Europe.
Is granting bail comparable to refusing bail? I would definitely answer no. One affects the individual alone, the other affects the individual too but, over and above, it also produces serious consequences on the community.
There is no substantial similarity between refusing bail, which mostly affects the accused person, and granting bail, which certainly has a bearing on the individual but which can also raise serious concerns to society. These include letting loose a suspected criminal on the community and increasing the possibilities of tampering with the evidence, of re-offending, of absconding from justice and of intimidating witnesses, all major public order considerations, absent when bail is refused.
It is useless comparing apples and turnips and then lamenting they are differently treated.
The ECHR highlighted these intrinsic, substantial differences between granting bail and refusing bail in the case of Allen v. UK (2010).
There exist essentially dissimilar realities related to bail which the courts have to confront: granting bail, refusing bail, revoking bail, reviewing the conditions of bail. Each attracts different considerations.
In the UK case mentioned above, the ECHR found that the refusal to allow the accused to be present at a hearing in which the prosecution requested that her bail be revoked amounted to a violation of her human rights.
On the other hand, the refusal to allow accused persons to be present at hearings that would determine whether they would be granted or refused bail would not necessarily have violated their human rights. Because granting bail, refusing bail or revoking bail simply cannot be placed in one and the same basket.
Invoking equality of arms in inherently unequal scenarios is misconceived.
When, many years ago, I started practising law, nothing was human rights for the courts (especially when it very clearly was). Some would now urge us to gallop rapturously towards the other extreme: everything is human rights, even when very clearly it is not.
I despise the negation of human rights but, then, I hardly relish their trivialisation. Thanks, but I buy no shares in the human rights industry, however booming that business appears.
The remedy granted by the court raises further concerns.
But this I will discuss in a future contribution.
Judge Bonello sat on the European Court of Human Rights from 1998 to 2010.