Proximity or Imminence of Trial Not a ‘Relevant and Sufficient Reason’ Justifying Detention on Remand

Gault v United Kingdom [2007] ECHR 1271/05 (20 November 2007)


In Gault v United Kingdom, the European Court of Human Rights held that the detention of Ms Lesley Gault pending re-trial violated art 5(1)(c) of the European Convention on Human Rights.  The Court held that no separate issue arose under art 8 of the Convention in respect of the applicant’s right to private and family life in relation to her three young children.

Relevantly, the Court held that, pursuant to art 5(1)(c), the proximity or imminence of a trial does not justify pre-trial detention that would not otherwise be permitted at law.  Additionally, while suspicion of guilt is a prerequisite to detention, it is not of itself a relevant or sufficient reason to refuse bail.


The applicant’s husband was murdered in May 2000, and the applicant was charged in August 2001 with aiding and abetting her former lover to murder her husband.  She was released on bail pending trial, neither the police nor prosecution objecting.  In November 2002, the applicant’s lover was unanimously convicted by the jury, yet the jury failed to agree on a verdict for the applicant.  The prosecution elected to prosecute the applicant again and bail was also granted again, the prosecution not objecting.

In March 2003, the applicant was convicted of murder by majority verdict, sentenced to life imprisonment and commenced her custodial sentence.  In July 2004, the Court of Appeal ordered a retrial after finding that the trial judge has misdirected the jury.  The applicant again applied for bail and the prosecution did not object; however, the Court of Appeal refused the application.  It was this detention which the applicant alleged violated the Convention.


Under Article 5(1)(c) of the Convention, there must be relevant and sufficient reasons for pre-trial detention.  The article provides:

Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.  Release may be conditioned by guarantees to appear for trial.

Under the relevant Northern Ireland domestic law, the grant of bail is governed by common law principles.  Bail is discretionary, guided by certain factors, including the risk that the defendant will not appear at trial, interfere with witnesses or evidence, and may commit further offences while released.  In considering the likelihood of a defendant absconding, the nature and seriousness of the offence, the applicable penalty for the offence and the strength of evidence against the defendant are relevant considerations.

The Court was critical of the scant reasons given by the Court of Appeal for refusing bail pending re-trial.  The Court identified two reasons for refusing bail from the Court of Appeal’s reasoning, namely that re-trial would be prompt, and that there was a material difference between the applicant’s third trial and her first and second trials.

Relevance of Prompt Re-trial

The Court held that the first ground was not a relevant reason for the purpose of art 5(1)(c) of the Convention.  The court observed that the second limb of art 5(1)(c) does not give the domestic tribunal a choice between bringing an accused promptly to trial and granting provisional release pending trial.  Clearly there is a practical choice, in that release pending trial or trial in a reasonable time is necessary for compliance with the article; however, the article does not permit a trial within a reasonable time to justify detention not otherwise permitted at law.

Relevance of Suspicion of Guilt

In respect of the second ground, the Court inferred from the Court of Appeal’s grant of a re-trial (rather than acquittal) that their Honours had a reasonable suspicion of the applicant’s guilt.  The Court observed that while such a suspicion is a prerequisite to detention, it is not of itself relevant or sufficient reason to refuse bail.  Additionally, the Court did not accept the UK Government’s argument that it was implicit in the Court of Appeal decision that the risk of absconding was higher for the third trial compared to the earlier trials.


The Court concluded that art 5(1)(c) had been contravened and awarded the applicant €7,500.

Implications for the Victorian Charter

The decision may be relevant to the interpretation of art 21 of the Victorian Charter, which enshrines the right to liberty and security of person and makes specific provision for the rights of people who are arrested or detained.

Lachlan McMurtrie, Human Rights Law Group, Mallesons Stephen Jaques