British Nationality Act 1948

1948 CHAPTER 56

An Act to make provision for British nationality and for citizenship of the United Kingdom and Colonies and for purposes connected with the matters aforesaid.

[30th July 1948.]

Be it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows :—

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Knowing the United Kingdom

United Kingdom the country the people

Knowing the following organizations is the best way to know the core of British and United Kingdom:

  • Member of the Order of Merit (OM)
  • Knight Grand Cross of the Order of the British Empire (GBE)
  • London Stock Exchange
  • The British Academy
  • The Royal College of Art
  • King’s College London
  • Institute for Jewish Policy
  • Christ Church College Oxford
  • King James Bible

I have tried to keep the above list as shorter[9 Points] as possible to know and understand British culture, people, empire, heritage and their source of power


 

Legal professionals and their privileges in UK

190.Legal professional privilege

(1)Subsection (2) applies where an individual who[P] is not a barrister or solicitor—

(a)provides advocacy services as an authorised person in relation to the exercise of rights of audience,

(b)provides litigation services as an authorised person in relation to the conduct of litigation,

(c)provides conveyancing services as an authorised person in relation to reserved instrument activities, or

(d)provides probate services as an authorised person in relation to probate activities.

(2)Any communication, document, material or information relating to the provision of the services in question is privileged from disclosure in like manner as if P had at all material times been acting as P’s client’s solicitor.

(3)Subsection (4) applies where—

(a)a licensed body provides services to a client, and
(b)the individual (“E”) through whom the body provides those services—
(i)is a relevant lawyer, or
(ii)acts at the direction and under the supervision of a relevant lawyer (“the supervisor”).

(4)Any communication, document, material or information relating to the provision of the services in question is privileged from disclosure only if, and to the extent that, it would have been privileged from disclosure if—

(a)the services had been provided by E or, if E is not a relevant lawyer, by the supervisor, and
(b)at all material times the client had been the client of E or, if E is not a relevant lawyer, of the supervisor.

(5)“Relevant lawyer” means an individual who is—

(a)a solicitor;
(b)a barrister;
(c)a solicitor in Scotland;
(d)an advocate in Scotland;
(e)a solicitor of the Court of Judicature of Northern Ireland;
(f)a member of the Bar of Northern Ireland;
(g)a registered foreign lawyer (within the meaning of section 89 of the Courts and Legal Services Act 1990 (c. 41));
(h)an individual not within paragraphs (a) to (g) who is an authorised person in relation to an activity which is a reserved legal activity; or
(i)a European lawyer (within the meaning of the European Communities (Services of Lawyers) Order 1978 (S.I. 1978/1910)).

(6)In this section—

“advocacy services” means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right of audience in relation to any proceedings, or contemplated proceedings, to provide;

“litigation services” means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right to conduct litigation in relation to any proceedings, or contemplated proceedings, to provide;

“conveyancing services” means the preparation of transfers, conveyances, contracts and other documents in connection with, and other services ancillary to, the disposition or acquisition of estates or interests in land;

“probate services” means the preparation of any papers on which to found or oppose a grant of probate or a grant of letters of administration and the administration of the estate of a deceased person.

(7)This section is without prejudice to any other enactment or rule of law by virtue of which a communication, a document, material or information is privileged from disclosure.


181Unqualified person not to pretend to be a barrister

(1)It is an offence for a person who is not a barrister—

(a)wilfully to pretend to be a barrister, or

(b)with the intention of implying falsely that that person is a barrister to take or use any name, title or description.

(2)A person who is guilty of an offence under subsection (1) is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), and

(b)on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both).

(3)In relation to an offence under subsection (1) committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44), the reference in subsection (2)(a) to 12 months is to be read as a reference to 6 months.


Source: Courts and Legal Services Act 1990

Connected Laws: Solicitors Act 1974 (c. 47)

The Registered Foreign Lawyers Order 2009 [UK]

STATUTORY INSTRUMENTS

2009 No. 1589

LEGAL PROFESSION, ENGLAND AND WALES

The Registered Foreign Lawyers Order 2009

Made26th June 2009

Coming into force in accordance with article 1

This Order is made in exercise of the powers conferred by section 89(5) and (6) of the Courts and Legal Services Act 1990(1) and section 208(2) and (3) of the Legal Services Act 2007(2).

A draft of this instrument has been laid before Parliament and approved by a resolution of each House of Parliament pursuant to section 120(4) of the Courts and Legal Services Act 1990 and section 206(5) of the Legal Services Act 2007.

Accordingly, the Lord Chancellor makes the following Order:

Citation, commencement and interpretation

1.—(1) This Order may be cited as the Registered Foreign Lawyers Order 2009 and comes into force on the same day as paragraph 9 of Schedule 16 to the Legal Services Act 2007.

(2) In this Order—

(a)“the 1974 Act” means the Solicitors Act 1974(3);
(b)“the 1985 Act” means the Administration of Justice Act 1985(4);
(c)“the 1990 Act” means the Courts and Legal Services Act 1990.

Revocation

2. The Registered Foreign Lawyers Order 1991(5) is revoked.

Solicitors Act 1974

3.—(1) The provisions of the 1974 Act listed in paragraph (2) have effect with respect to registered foreign lawyers as they have effect with respect to solicitors, subject to the modifications specified in the Schedule to this Order.

(2) Those provisions are—

(a)section 11(2) to (4) (fee payable on issue of practising certificates);
(b)section 13(2), (3) and (5) to (7) (appeals etc in connection with the issue of practising certificates);
(c)section 13A(9) to (12) (imposition of conditions while practising certificates are in force);
(d)section 13B (suspension of practising certificates where solicitors convicted of fraud or serious crime);
(e)section 16(3) (except paragraphs (a), (c) and (d)) and (4) to (7) (duration of suspension of practising certificates);
(f)section 32(4) (accounts rules and trust accounts rules);
(g)section 33A (inspection of practice bank accounts etc);
(h)section 34(9) (accountants’ reports);
(i)section 44B (except subsection (2)(b)) (provision of information and documents by solicitors etc);
(j)section 44C(1) to (4) (power to charge for costs of investigations);
(k)section 44D (disciplinary powers of the Society);
(l)section 44E (except subsections (4)(e) and (5)) (appeals against disciplinary action under section 44D);
(m)section 47(1) (except paragraphs (a), (b) and (d) to (f)) (jurisdiction and powers of Tribunal);
(n)section 68 (power of court to order solicitor to deliver bill, etc);
(o)section 83 (power of Society to inspect file of proceedings in bankruptcy of solicitor);
(p)section 84 (service of documents at solicitor’s place of business); and
(q)paragraph 1(1) of Schedule 1 (except paragraphs (a) to (b) and (d) to (m)) (intervention in solicitor’s practice).

4. The power to make regulations under section 28 of the 1974 Act, so far as that power relates to the matters mentioned in subsection (3B)(k) of that section, has effect with respect to registered foreign lawyers as it has effect with respect to solicitors, except that the reference in paragraph (k) to practising certificates is to be read as a reference to registration in the register of foreign lawyers.

5. The following provisions of the 1974 Act have effect with respect to registered foreign lawyers as follows—

(a)section 34(10) (accountants’ reports: no contravention of duty when making a report to the Society) with the modification that the reference to subsection (9) is to be read as including a reference to that subsection as it has effect by virtue of article 3;
(b)section 41 (employment by solicitor of person struck off or suspended)—
(i)with the modification that in subsection (1) reference to a person who is disqualified from practising as a solicitor by reason of a fact mentioned in section 41(1)(a) to (c) of the 1974 Act is to be read as including a reference to a foreign lawyer whose name has been struck off the register of foreign lawyers or whose registration in that register is suspended;
(ii)with the modification that in subsection (1A)(6) reference to a person in relation to whom there is a direction in force under section 47(2)(g) is to be read as including a reference to a foreign lawyer who is subject to an order under paragraph 15(4) of Schedule 14 to the 1990 Act prohibiting that lawyer’s restoration to the register of foreign lawyers except by further order of the Tribunal;
(c)section 42 (failure to disclose fact of having been struck off or suspended)—
(i)with the modification that in subsection (1) reference to a person who is disqualified from practising as a solicitor by reason of a fact mentioned in section 42(1)(a) to (c) of the 1974 Act is to be read as including a reference to a foreign lawyer whose name has been struck off the register of foreign lawyers or whose registration in that register is suspended;
(ii)with the modification that in subsection (1A)(7) reference to a person in relation to whom there is a direction in force under section 47(2)(g) is to be read as including a reference to a foreign lawyer who is subject to an order under paragraph 15(4) of Schedule 14 to the 1990 Act prohibiting that lawyer’s restoration to the register of foreign lawyers except by further order of the Tribunal;
(d)section 44BA (power to require explanation of document or information) with the modification that reference to section 44B is to be read as including a reference to that section as it has effect by virtue of article 3; and
(e)section 44BC (information offences)—
(i)with the modification that reference to section 44B is to be read as including a reference to that section as it has effect by virtue of article 3;
(ii)with the modification that reference to section 44BA is to be read as including a reference to that section as it has effect by virtue of paragraph (d).
Administration of Justice Act 1985

6. The following provisions of the 1985 Act have effect with respect to registered foreign lawyers as follows—

(a)paragraph 9 of Schedule 2 (restriction on employment of person struck off roll or suspended) has effect with the modifications that—
(i)in sub-paragraph (3)(a) reference to a person who is disqualified from practising as a solicitor by reason of a fact mentioned in section 41(1)(a) to (c) of the 1974 Act is to be read as including a reference to a foreign lawyer whose name has been struck off the register of foreign lawyers or whose registration in that register is suspended;
(ii)in sub-paragraph (3)(b) reference to a person in respect of whom there is a direction in force under section 47(2)(g) is to be read as including a reference to a foreign lawyer who is subject to an order under paragraph 15(4) of Schedule 14 to the 1990 Act prohibiting that lawyer’s restoration to the register of foreign lawyers except by further order of the Tribunal;
(b)paragraph 10 of Schedule 2 (failure to disclose fact of having been struck off or suspended) has effect with the modifications that—
(i)in sub-paragraph (3)(a) reference to a person who is disqualified from practising as a solicitor by reason of a fact mentioned in section 41(1)(a) to (c) of the 1974 Act is to be read as including a reference to a foreign lawyer whose name has been struck off the register of foreign lawyers or whose registration in that register is suspended;
(ii)in sub-paragraph (3)(b) reference to a person in respect of whom there is a direction in force under section 47(2)(g) is to be read as including a reference to a foreign lawyer who is subject to an order under paragraph 15(4) of Schedule 14 to the 1990 Act prohibiting that lawyer’s restoration to the register of foreign lawyers except by further order of the Tribunal.
Courts and Legal Services Act 1990

7. Paragraph 14(1) of Schedule 14 to the 1990 Act is amended as follows—

(a)omit the “or” at the end of paragraph (c), and
(b)at the end of paragraph (d) add—“; or—
(e)a decision of the Society to remove his name from the register.”.
Signed by authority of the Lord Chancellor

Bridget PrenticeParliamentary Under Secretary of StateMinistry of Justice
26th June 2009

Article 3


SCHEDULE

Modifications of the 1974 Act in relation to registered foreign lawyers
Provision of the 1974 Act Modification
Section 11(2) Reference to fees which are specified is to be read as a reference to fees which are prescribed under paragraph 2(1)(b) of Schedule 14 to the 1990 Act.
Section11 (3)

Reference to an application for a practising certificate is to be read as a reference to an application for registration or renewal of registration in the register of foreign lawyers.
Section 11(3)(b) Reference to a practising certificate not having been issued since the Society became aware of the failure is to be read as a reference to a registration in the register of foreign lawyers not having been entered or renewed since the Society became aware of the failure.
Section 13(2)
Reference to a practising certificate is to be read as a reference to a registration in the register of foreign lawyers.

Reference to a condition within section 10(4)(b) is to be read as a condition imposed under paragraph 2A(2)(a) of Schedule 14 to the 1990 Act which prohibits the taking of any steps specified in the condition, except with the approval of the Society.

Section 13(3) Reference to an application under section 9 is to be read as a reference to an application under paragraph 2(1) of Schedule 14 to the 1990 Act.
Section 13(5)(b) Reference to a condition within section 10(4)(b) is to be read as a reference to a condition imposed under paragraph 2A(2)(a) of Schedule 14 to the 1990 Act which prohibits the taking of any steps specified in the condition, except with the approval of the Society.
Section 13A(9) Reference to a solicitor who holds a practising certificate subject to a condition imposed under section 13A(1) which prohibits that solicitor from taking any steps specified in the condition, except with the approval of the Society, is to be read as a reference to a registered foreign lawyer whose registration is subject to a condition imposed under paragraph 2A(2)(b) of Schedule 14 to the 1990 Act prohibiting the taking of any steps specified in the condition, except with the approval of the Society.
Section 13B(1)
Reference to an application to the Tribunal under section 47 is to be read as a reference to an application to the Tribunal under paragraph 15(2) of Schedule 14 to the 1990 Act.

Reference to a practising certificate is to be read as reference to a foreign lawyer’s registration.

The provision is to be read as if reference to a sole solicitor endorsement were omitted.

Section 13B(6)
Reference to suspension of a solicitor from practice is to be read as reference to the suspension of a foreign lawyer’s registration.

The provision is to be read as if reference to practice as a sole solicitor were omitted.

Section 13B(8)(b)
Reference to a certificate is to be read as reference to a foreign lawyer’s registration.

The provision is to be read as if reference to a sole solicitor endorsement were omitted.

Section 16(3)
Reference to suspension of a solicitor’s practising certificate is to be read as reference to the suspension of a foreign lawyer’s registration.

Reference to expiry of a certificate is to be read as reference to the expiry of a foreign lawyer’s registration.

Section 16(3)(b) Reference to section 15(1) is to be read as a reference to paragraph 10(1) of Schedule 14 to the 1990 Act.
Section 32(4) The provision is to be read as if the reference to an employee of a solicitor were omitted.
Section 44B(3)(b)
The provision is to be read as if the reference to an employee of a solicitor were omitted.

Reference to a failure to comply with any requirements imposed by or by virtue of the 1974 Act or any rules made by the Society is to be read as a reference to a failure to comply with any requirements imposed by or by virtue of that Act, the 1990 Act or any rules made by the Society.

Section 44C(2)(b) Reference to a failure or apprehended failure to comply with any requirement imposed by or by virtue of the 1974 Act or any rules made by the Society is to be read as a reference to a failure to comply with any requirement imposed by or by virtue of that Act, the 1990 Act or any rules made by the Society.
Section 44D(1)(a)
The provision is to be read as if the reference to an employee of a solicitor were omitted.

Reference to a failure to comply with a requirement imposed by or by virtue of the 1974 Act or any rules made by the Society is to be read as a reference to a failure to comply with a requirement imposed by or by virtue of that Act, the 1990 Act or any rules made by the Society.

Section 44E(4)(d) Reference to the matters mentioned in paragraphs (a) to (d) of section 47(2) is to be read as a reference to the matters mentioned in paragraph 15(4)(a) to (c) of Schedule 14 to the 1990 Act.
Section 47(1)(c)
Reference to a former solicitor is to be read as a reference to a foreign lawyer who was formerly on the register.

Reference to removal of a solicitor’s name from the roll or striking a solicitor’s name off the roll is to be read as a reference to removal of a foreign lawyer’s name from the register or striking the name of a foreign lawyer off the register of foreign lawyers.

Paragraphs 15(1), 16 and 17 of Schedule 14 to the 1990 Act apply in relation to an application under section 47(1)(c) as applied to registered foreign lawyers.

Section 84
Reference to a practising certificate is to be read as reference to registration in the register of foreign lawyers.

Reference to any notice or other document required or authorised by or by virtue of the 1974 Act is to be read as a reference to any notice or other document required or authorised by or by virtue of the 1974 Act or the 1990 Act.

Reference to a practising solicitor is to be read as a reference to a registered foreign lawyer.

Paragraph 1(1) of Schedule 1
Reference to the powers conferred by Part 2 of the Schedule is to be read as reference to the powers conferred by Part 2 of the Schedule as they apply to registered foreign lawyers by virtue of paragraph 5(1), (2) and (6) to (9) of Schedule 14 to the 1990 Act.

The provision is to be read as if the reference to sections 32 and 37(2)(c) were omitted.


Legal Services Act 2007 (c.29)

Access to Justice Act 1999 (c. 22).

Courts and Legal Services Act 1990 (c. 41).

Financial support for Members of the House of Lords

Eligibility

Members of the House of Lords, unlike MPs in the Commons, are unsalaried. They do not
receive salaries or other employment benefits, including pensions.

There are two exceptions: a few officeholders receive a salary, and some Ministers receive a salary from the Government for their Government roles.

Attendance at the House of Lords is voluntary, but Members who do not receive a salary
are eligible to receive allowances and, within certain limits, some travel expenses they incur in fulfilling their parliamentary duties.

Members who receive a Ministerial or Office Holders’ salary are not entitled to claim the
allowances based on attendance.

Daily Allowance

Members of the House of Lords who are not paid a salary may claim a daily allowance of
£313 (or may elect to claim a reduced daily allowance of £157) for each day if House of Lords records show that Members attended a sitting of the House that day or undertook qualifying work away from Westminster.

It is for the individual Member to decide whether a claim for the daily allowance is made at the full rate, the reduced rate or not claimed at all.

Attendance Travel Costs

In addition to the daily allowance, Members are also entitled to claim travel costs to and
from their registered residential address for certain parliamentary business.

Administration of the system

The House of Lords’ House Committee sets the rules. The rules are given to every Member and set out in the “Guide to financial support for Members” which is available online on Parliament site.

The House of Lords Finance Department administers the system and checks claims against records of attendance and registered residential address. Claims made outside the rules are rejected. Any abuses are dealt with under the system set out in the Code of Conduct. The National Audit Office audits the House of Lords’ Annual Report and Resource Accounts each year.

Are the payments taxable?

No. Membership of the House of Lords is neither an office nor employment and therefore payments are not liable for income tax. This was confirmed independently by the Senior Salaries Review Body (SSRB).


Source: UK Parliament

Members of the House of Lords-UK

Lords by party/group and type of peerage

Party/group Life peers* Excepted
hereditary peers**
Bishops Total
Bishops 0 0 26 26
Conservative 188 46 234
Crossbench 151 31 182
Labour 175 4 179
Liberal Democrat 91 3 94
Lord Speaker 1 0 1
Non-affiliated 37 7 44
Other 15 0 15
Conservative Independent 1 0 1
Democratic Unionist Party 4 0 4
Green Party 1 0 1
Independent Labour 2 0 2
Independent Social Democrat 1 0 1
Independent Ulster Unionist 1 0 1
Labour Independent 1 0 1
Plaid Cymru 1 0 1
UK Independence Party 1 0 1
Ulster Unionist Party 2 0 2
Total 658 91 26 775

* Made up of life peers under the Appellate Jurisdiction Act 1876 and the Life Peerages Act 1958

** Made up of hereditary peers elected by parties and groups, or by the whole House

Lords by party/group and gender

Party/group Men Women Total
Bishops 21 5 26
Conservative 172 62 234
Crossbench 139 43 182
Labour 123 56 179
Liberal Democrat 61 33 94
Lord Speaker 1 0 1
Non-affiliated 38 6 44
Other 13 2 15
Conservative Independent 1 0 1
Democratic Unionist Party 4 0 4
Green Party 0 1 1
Independent Labour 2 0 2
Independent Social Democrat 1 0 1
Independent Ulster Unionist 1 0 1
Labour Independent 0 1 1
Plaid Cymru 1 0 1
UK Independence Party 1 0 1
Ulster Unionist Party 2 0 2
Total 568 207 775

 NEWLY JOINED LORDS

Member Party/group Joined the House
Lord Ravensdale Crossbench 3 April 2019
The Lord Bishop of Derby Bishops 28 March 2019
Baroness Blackwood of North Oxford Conservative 1 February 2019
Lord Reay Conservative 28 January 2019
Lord Carrington Crossbench 4 December 2018
Baroness Osamor Labour 26 November 2018
The Lord Bishop of Bristol Bishops 2 October 2018
Lord Bethell Conservative 19 July 2018
The Earl of Devon Crossbench 12 July 2018
Baroness Bull Crossbench 11 July 2018
Lord Anderson of Ipswich Crossbench 10 July 2018
Baroness Boycott Crossbench 9 July 2018
Lord Randall of Uxbridge Conservative 25 June 2018
Lord Garnier Conservative 22 June 2018
Lord Haselhurst Conservative 22 June 2018
Baroness Barran Conservative 21 June 2018
Lord McNicol of West Kilbride Labour 21 June 2018
Baroness Bryan of Partick Labour 20 June 2018
Baroness Sater Conservative 20 June 2018
Lord McCrea of Magherafelt and Cookstown Democratic Unionist Party 19 June 2018
Baroness Meyer Conservative 19 June 2018
Lord Lilley Conservative 18 June 2018
Lord Pickles Conservative 18 June 2018
Lord Tyrie Non-affiliated 12 June 2018
The Lord Bishop of London Bishops 10 April 2018
The Lord Bishop of Chichester Bishops 3 January 2018

Members of the House of Lords, who are not paid a salary, may claim a daily allowance of £300 (or may elect to claim a reduced daily allowance of £150) per sitting day – but only if they attend a sitting of the House and/or committee proceedings.


Updated on September 2019

Source: UK Parliament

Act of Settlement 1701 (1701)

Parliament of England

12 & 13 William III, c. 2 (England)

An Act for the further Limitation of the Crown and better securing the Rights and Liberties of the Subject

[Assented to 1701.]

Recital of Bill of Rights 1689, Section 2, and that the late Queen and Duke of Gloucester are dead; and that His Majesty had recommended from the Throne a further Provision for the Succession of the Crown in the Protestant Line. The Princess Sophia, Electress and Duchess Dowager of Hanover, Daughter of the late Queen of Bohemia, Daughter of King James the First, to inherit after the King and the Princess Anne, in Default of Issue of the said Princess and His Majesty, respectively and the Heirs of her Body, being Protestants

I. Whereas in the first year of the reign of Your Majesty, and of our late most gracious sovereign lady Queen Mary (of blessed memory), an Act of Parliament was made, entitled, An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, wherein it was (amongst other things) enacted, established, and declared that the crown and regal government of the Kingdoms of England, France, and Ireland, and the dominions thereunto belonging, should be and continue to Your Majesty and the said late Queen, during the joint lives of Your Majesty and the said Queen, and to the survivor: and that after the decease of Your Majesty and of the said Queen, the said Crown and regal government should be and remain to the heirs of the body of the said late Queen; and for default of such issue, to Her Royal Highness the Princess Anne of Denmark, and the heirs of her body; and for default of such issue to the heirs of the body of Your Majesty. And it was thereby further enacted, that all and every person and persons that then were, or afterwards should be reconciled to, or shall hold communion with the see or Church of Rome, or should profess the popish religion, or marry a papist, should be excluded, and are by that Act made for ever incapable to inherit, possess, or enjoy the Crown and government of this realm, and Ireland, and the dominions thereunto belonging, or any part of the same, or to have, use, or exercise any regal power, authority, or jurisdiction within the same: and in all and every such case and cases the people of these realms shall be and are thereby absolved of their allegiance: and that the said Crown and government shall from time to time descend to and be enjoyed by such person or persons, being Protestants, as should have inherited and enjoyed the same, in case the said person or persons, so reconciled, holding communion, professing or marrying, as aforesaid, were naturally dead: After the making of which statute, and the settlement therein contained, your majesty’s good subjects, who were restored to the full and free possession and enjoyment of their religion, rights, and liberties, by the providence of God giving success to your majesty’s just undertakings and unwearied endeavours for that purpose, had no greater temporal felicity to hope or wish for, that to see a royal progeny descending from Your Majesty, to whom (under God) they owe their tranquillity, and whose ancestors have for many years been principal assertors of the reformed religion and the liberties of Europe, and from our said most gracious sovereign lady, whose memory will always be precious to the subjects of these realms: and it having since pleased Almighty God to take away our said sovereign Lady, and also the most hopeful Prince William, Duke of Gloucester (the only surviving issue of Her Royal Highness the Princess Anne of Denmark) to the unspeakable grief and sorrow of Your Majesty and your said good subjects, who under such losses being sensibly put in mind, that it standeth wholly in the pleasure of Almighty God to prolong the lives of Your Majesty and of Her Royal Highness, and to grant to Your Majesty, or to Her Royal Highness, such issue as may be inheritable to the Crown and regal government aforesaid, by the respective limitations in the said recited act contained, do constantly implore the divine mercy for those blessings: and Your Majesty’s said subjects having daily experience of your royal care and concern for the present and future welfare of these Kingdoms, and particularly recommending from your throne a further provision to be made for the succession of the Crown in the Protestant line, for the happiness of the nation, and the security of our religion; and it being absolutely necessary for the safety, peace, and quiet of this realm, to obviate all doubts and contentions in the same, by reason of any pretended title to the Crown, and to maintain a certainty in the succession thereof, to which your subjects may safely have recourse for their protection, in case the limitations in the said recited act should determine: therefore for a further provision of the succession of the Crown in the Protestant line, we Your Majesty’s most dutiful and loyal subjects, the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, do beseech Your Majesty that it may be enacted and declared, and be it enacted and declared by the King’s most excellent majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That the most excellent Princess Sophia, Electress and Duchess Dowager of Hanover, daughter of the most excellent Princess Elizabeth, late Queen of Bohemia, daughter of our late sovereign lord King James the First, of happy memory, be and is hereby declared to be the next in succession, in the Protestant line, to the imperial Crown and dignity of the said Realms of England, France, and Ireland, with the dominions and territories thereunto belonging, after His Majesty, and the Princess Anne of Denmark, and in default of issue of the said Princess Anne, and of His Majesty respectively: and that from and after the deceases of His said Majesty, our now sovereign lord, and of Her Royal Highness the Princess Anne of Denmark, and for default of issue of the said Princess Anne, and of His Majesty respectively, the Crown and regal government of the said Kingdoms of England, France, and Ireland, and of the dominions thereunto belonging, with the royal state and dignity of the said Realms, and all honours, styles, titles, regalities, prerogatives, powers, jurisdictions and authorities, to the same belonging and appertaining, shall be, remain, and continue to the said most excellent Princess Sophia, and the heirs of her body, being Protestants: and thereunto the said Lords Spiritual and Temporal, and Commons, shall and will in the name of all the people of this Realm, most humbly and faithfully submit themselves, their heirs and posterities: and do faithfully promise, that after the deceases of His Majesty, and Her Royal Highness, and the failure of the heirs of their respective bodies, to stand to, maintain, and defend the said Princess Sophia, and the heirs of her body, being Protestants, according to the limitation and succession of the Crown in this act specified and contained, to the utmost of their powers, with their lives and estates, against all persons whatsoever that shall attempt anything to the contrary.

The Persons inheritable by this Act, holding Communion with the Church of Rome, incapacitated as by the former Act; to take the Oath at their Coronation, according to Coronation Oath Act 1688

II. Provided always, and be it hereby enacted, That all and every person and persons, who shall or may take or inherit the said Crown, by virtue of the limitation of this present act, and is, are or shall be reconciled to, or shall hold communion with, the See or Church of Rome, or shall profess the popish religion, or shall marry a papist, shall be subject to such incapacities, as in such case or cases are by the said recited act provided, enacted, and established; and that every King and Queen of this Realm, who shall come to and succeed in the imperial Crown of this Kingdom, by virtue of this act, shall have the coronation oath administered to him, her or them, at their respective coronations, according to the act of Parliament made in the first year of the reign of His Majesty, and the said late Queen Mary, intituled, An Act for establishing the Coronation Oath, and shall make, subscribe, and repeat the declaration in the act first above recited mentioned or referred to, in the manner and form thereby prescribed.

Further Provisions for securing the Religion, Laws, and Liberties of these Realms

III. And whereas it is requisite and necessary that some further provision be made for securing our religion, laws and liberties, from and after the death of His Majesty and the Princess Anne of Denmark, and in default of issue of the body of the said Princess, and of His Majesty respectively; be it enacted by the King’s most excellent majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in Parliament assembled, and by the authority of the same,
That whosoever shall hereafter come to the possession of this Crown, shall join in communion with the Church of England, as by law established;

That in case the Crown and imperial dignity of this Realm shall hereafter come to any person, not being a native of this Kingdom of England, this nation be not obliged to engage in any war for the defence of any dominions or territories which do not belong to the Crown of England, without the consent of Parliament;

That no person who shall hereafter come to the possession of this Crown, shall go out of the dominions of England, Scotland, or Ireland, without the consent of Parliament;

That from and after the time that the further limitation by this act shall take effect, all matters and things relating to the well governing of this Kingdom, which are properly cognizable in the Privy Council by the laws and customs of this Realm, shall be translated there, and all resolutions taken thereupon shall be signed by such of the Privy Council as shall advise and consent to the same;

That after the said limitation shall take effect as aforesaid, no person born out of the Kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging (although he be naturalized or made a denizen, except such as are born of English parents) shall be capable to be of the Privy Council, or a member of either House of Parliament, or to enjoy any office or place of trust, either civil or military, or to have any grant of lands, tenements or hereditaments from the Crown, to himself or to any other or others in trust for him;

That no person who has an office or place of profit under the King, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons;

That after the said limitation shall take effect as aforesaid, judges commissions be made quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them;

That no pardon under the Great Seal of England be pleadable to an impeachment by the Commons in Parliament.

The Laws and Statutes of the Realm confirmed

IV. And whereas the laws of England are the birth-right of the people thereof, and all the Kings and Queens, who shall ascend the throne of this Realm, ought to administer the government of the same according to the said laws, and all their officers and ministers ought to serve them respectively according to the same: the said Lords Spiritual and Temporal, and Commons, do therefore further humbly pray, That all the laws and statutes of this Realm for securing the established religion, and the rights and liberties of the people thereof, and all other laws and statutes of the same now in force, may be ratified and confirmed, and the same are by His Majesty, by and with the advice of the said Lords Spiritual and Temporal, and Commons, and by authority of the same, ratified and confirmed accordingly.

Habeas Corpus Act (1679)

31 Charles 2, c. 2 (England)

An act for the better securing the liberty of the subject, and for prevention of imprisonments beyond the seas.

[Assented to 27th May, 1679.]

WHEREAS great delays have been used by sheriffs, gaolers and other officers, to whose custody, any of the King’s subjects have been committed for criminal or supposed criminal matters, in making returns of writs of habeas corpus to them directed, by standing out an alias and pluries habeas corpus, and sometimes more, and by other shifts to avoid their yielding obedience to such writs, contrary to their duty and the known laws of the land, whereby many of the King’s subjects have been, and hereafter may be long detained in prison, in such cases where by law they are bailable, to their great charges and vexation.

II. For the prevention whereof, and the more speedy relief of all persons imprisoned for any such criminal or supposed criminal matters; be it enacted by the King’s most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority thereof. That whensoever any person or persons shall bring any habeas corpus directed unto any sheriff or sheriffs, gaoler, minister or other person whatsoever, for any person in his or their custody, and the said writ shall be served upon the said officer, or left at the gaol or prison with any of the under-officers, under-keepers, or deputy of the said officers or keepers, that the said officer or officers, his or their under-officers, under-keepers or deputies, shall, within three days after the service thereof as aforesaid, (unless the commitment aforesaid were for treason or felony, plainly and specially expressed in the warrant of commitment), upon payment or tender of the charges of bringing the said prisoner, to be ascertained by the Judge or Court that awarded the same, and endorsed upon the said writ, not exceeding twelve pence per mile, and upon security given by his own bond to pay the charges of carrying back the prisoner, if he shall be remanded by the Court or Judge to which he shall be brought according to the true intent of this present act, and that he will not make any escape by the way, make return of such writ; and bring, or cause to be brought, the body of the party so committed or restrained, unto or before the Lord Chancellor, or Lord Keeper of the great seal of England for the time being, or the Judges or Barons of the said Court from which the said writ shall issue, or unto and before such other person or persons before whom the said writ is made returnable, according to the command thereof; and shall then likewise certify the true causes of his detainer or imprisonment, unless the commitment of the said party be in any place beyond the distance of twenty miles from the place or places where such Court or person is or shall be residing; and if beyond the distance of twenty miles, and not above one hundred miles, then within the space of ten days, and if beyond the distance of one hundred miles, then within the space of twenty days, after such delivery aforesaid, and no longer.

III. And to the intent that no sheriff, gaoler or other officer, may pretend ignorance of the import of any such writ; be it enacted by the authority aforesaid, That all such writs shall be marked in this manner, Per statutum tricesimo primo Caroli secundi Regis, and shall be signed by the person that awards the same; and if any person or persons shall be or stand committed or detained as aforesaid, for any crime, unless for felony or treason plainly expressed in the warrant of commitment, in the vacation-time, and out of term, it shall and may be lawful to and for the person or persons so committed or detained (other than persons convict or in execution of legal process) or any one on his or their behalf, to appeal or complain to the Lord Chancellor or Lord Keeper, or any one of his Majesty’s Justices, either of the one bench or of the other, or the Barons of the Exchequer of the degree of the coif; and the said Lord Chancellor, Lord Keeper, Justices or Barons or any of them, upon view of the copy or copies of the warrant or warrants of commitment and detainer, or otherwise upon oath made that such copy or copies were denied to be given by such person or persons in whose custody the prisoner or prisoners is or are detained, are hereby authorized and required, upon request made in writing by such person or persons, or any on his, her, or their behalf, attested and subscribed by two witnesses who were present at the delivery of the same, to award and grant an habeas corpus under the seal of such Court whereof he shall then be one of the Judges, to be directed to the officer or officers in whose custody the party so committed or detained shall be, returnable immediate before the said Lord Chancellor or Lord Keeper or such Justice, Baron or any other Justice or Baron of the degree of the coif of any of the said Courts; and upon service thereof as aforesaid, the officer or officers, his or their under-officer or under-officers, under-keeper or under-keepers, or their deputy, in whose custody the party is so committed or detained, shall, within the times respectively before limited, bring such prisoner or prisoners before the said Lord Chancellor or Lord Keeper, or such Justices, Barons or one of them, before whom the said writ is made returnable, and in case of his absence before any other of them, with the return of such writ, and the true causes of the commitment and detainer; and thereupon, within two days after the party shall be brought before them, the said Lord Chancellor or Lord Keeper, or such Justice or Baron before whom the prisoner shall be brought as aforesaid, shall discharge the said prisoner from his imprisonment, taking his or their recognizance, with one or more surety or sureties, in any sum according to their discretions, having regard to the quality of the prisoner and nature of the offense, for his or their appearance in the Court of the King’s bench the term following, or at the next assizes, sessions or general gaol-delivery of and for such county, city, or place where the commitment was, or where the offense was committed, or in such other court where the said offense is properly cognizable, as the case shall require, and then shall certify the said writ with the return thereof, and the said recognizance or recognizances unto the said Court where such appearance is to be made; unless it shall appear unto the said Lord Chancellor or Lord Keeper or Justice or Justices, or Baron or Barons, that the party so committed is detained upon a legal process, order or warrant, out of some court that hath jurisdiction of criminal matters, or by some warrant signed and sealed with the hand and seal of any of the said Justices or Barons, or some Justice or Justices of the Peace, for such matters or offenses for the which by the law the prisoner is not bailable.

IV. Provided always, and be it enacted, that if any person shall have willfully neglected by the space of two whole terms after his imprisonment, to pray a Habeas Corpus for his enlargement, such person so willfully neglecting shall not have any Habeas Corpus to be granted in vacation time, in pursuance of this act.

V. And be it further enacted by the authority aforesaid, that if any officer or officers, his or their under-officer or under-officers, under-keeper or under-keepers, or deputy, shall neglect or refuse to make the returning aforesaid, or to bring the body or bodies of the prisoner or prisoners according to the command of the said writ, within the respective times aforesaid, or upon demand made by the prison or person in his behalf, shall refuse to deliver, or within the space of six hours after demand shall not deliver to said person so demanding, a true copy of the warrant or warrants of commitment and detainer of such prisoner, which he and they are hereby required to deliver accordingly; all and every the head gaolers and keepers of such prisoner, and such other person in whose custody the prisoner shall be detained, shall for the first offense forfeit to the prisoner or party grieved the sum of one hundred pounds; and for the second offense the sum of two hundred pounds, and shall and is hereby made incapable to hold or execute his said office; the said penalties to be recovered by the prisoner or party grieved, his executors or administrators, against such offender, his executors, or administrators, by any action of debt, suit, bill, plaint or information, in any of the King’s Courts at Westminster, wherein no essoin, protection, privilege, injunction, wager of law, or stay of prosecution by non vult ulterius prosequi or otherwise, shall be admitted or allowed, or any more than on one imparlance; and any recovery or judgment at the suit of any party grieved, shall be a sufficient conviction for the first offense; and any after recovery or judgment at the suit of a party grieved for any offense after the first judgment, shall be a sufficient conviction to bring the officers or person within the said penalty for the second offense.

VI. And for the prevention of unjust vexation by reiterated commitments for the same offense; be it enacted by the authority aforesaid, that no person or persons which shall be delivered or sit at large upon any Habeas Corpus shall at any time hereafter be again imprisoned or committed for the same offense by any person or persons whatsoever, other than by the legal order and process of such Court wherein he or they shall be bound by recognizance to appear, or other Court having jurisdiction of the cause; and if any other person or persons shall knowingly, contrary to this act, recommit or imprison, or knowingly procure or cause to be recommitted or imprisoned, for the same offense or pretended offense, any person or persons delivered or set at large as aforesaid, or be knowingly aiding or assisting therein, then he or they shall forfeit to the prisoner or party grieved the sum of five hundred pounds; any colourable pretense or variation in the warrant or warrants of commitment notwithstanding, to be recovered as aforesaid.

VII. Provided always, and be it further enacted, that if any person or persons shall be committed for high treason or felony, plainly andspecially expressed in the warrant of commitment, upon his prayer or petition in open Court the first week of the term, or first day of the Sessions of Oyer and Terminer, or general gaol delivery to be brought to his trial, shall not be indicted some time in the next term, Session of Oyer and Terminer, or general gaol delivery, after such commitment; it shall and may be lawful to and for the Judges of the Court of King’s Bench and Justices of Oyer and Terminer or general gaol delivery, and they are hereby required upon motion to them made in open Court the last day of the term, Session or gaol delivery, either by the prisoner or any one in his behalf, to set at liberty the prisoner upon bail, unless it appear to the Judges and Justices upon oath made that the witnesses for the King could not be produced the same term, Session or general gaol delivery; and if any person or persons committed as aforesaid, upon his prayer or petition in open Court the first week of the term or first day of the Session of Oyer and Terminer and general gaol delivery, to be brought to his trial, shall not be indicted and tried the second term, Session of Oyer and Terminer or general gaol delivery, after his commitment, or upon his trial shall be acquitted, he shall be discharged from his imprisonment.

VIII. Provided always, that nothing in this act shall extend to discharge out of prison any person charged in debt, or other action, or with process in any civil cause, but that after he shall be discharged of his imprisonment for such his criminal offense, he shall be kept in custody according to the law, for such other suit.

IX. Provided always, and be it enacted by the authority aforesaid, that if any person or persons, subjects of this realm, shall be committed to any prison, or in custody of any officer or officers whatsoever, for any criminal or supposed criminal matter, that the said person shall not be removed from the said prison and custody into the custody of any other officer or officers; unless it be by Habeas Corpus or some other legal writ; or where the prisoner is delivered to the constable or other inferior officer to carry such prisoner to some common gaol; or where any person so sent by order of any Judge or Assize or Justice of the Peace, to any common workhouse or house of correction; or where the prisoner is removed from one prison or place to another within the same county, in order to his or her trial or discharge in due course of law; or in case of sudden fire or infection, or other necessity; and if any person or persons shall, after such commitment aforesaid, make out and sign, or countersign any warrant or warrants for such removal aforesaid, contrary to this act; as well he that makes or signs or countersigns such warrant or warrants to as the officer or officers that obey or execute the same, shall suffer and incur the pains and forfeitures in this act before mentioned, both for the first and second offenses respectively, to be recovered in manner aforesaid by the party grieved.

X. Provided also, and be it further enacted by the authority aforesaid, that it shall and may be lawful to and for any prisoner and prisoners as aforesaid, to move and obtain his or their Habeas Corpus, as well out of the High Court of Chancery or Court of Exchequer, as out of the Courts of King’s Bench or Common Pleas, or either of them; and if the said Lord Chancellor or Lord Keeper, or any Judge or Judges, Baron or Barons for the time being of the degree of the coif, of any of the Courts aforesaid, in the vacation time, upon such of the copy or copies of the warrant or warrants of commitment or detainer, or upon oath made that such copy or copies were denied as aforesaid, shall deny any writ of Habeas Corpus by this act required to be granted, being moved for as aforesaid, they shall severally forfeit to the prisoner or party grieved the sum of five hundred pounds, to be recovered in manner aforesaid.
XI. And be it declared and enacted by the authority aforesaid, that an Habeas Corpus, according to the true intent and meaning of this act, may be directed and seen in any county Palatine, the Cinque Ports, or other privileged places within the Kindgom of England, dominion of Wales, or town of Berwick upon Tweed, and the islands of Jersey and Guernsey; any law or usage to the contrary notwithstanding.

XII. And, for preventing illegal imprisonments in prisons beyond the seas, be it further enacted by the authorities aforesaid that no subject of this realm that now is, or hereafter shall be an inhabitant or resiant Of this Kingdom of England, dominion of Wales, or town of Berwick upon Tweed, shall or may be sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier, or into forts, garrisons, islands, or places beyond the seas, which are or at any time hereafter shall be within or without the dominions of His Majesty, his heirs, or successors; and that every such imprisonment is hereby enacted and adjudged to be illegal; and that if any of the said subjects now is or hereafter shall be so imprisoned, every such person and persons so imprisoned, shall and may, for every such imprisonment, maintain, by virtue of this act, an action or actions of false imprisonment, in any of His Majesty’s Courts of record, against the person or persons by whom he or she shall be so committed, detained, imprisoned, sent prisoner, or transported, contrary to the true meaning of this act, and against all or any person or persons that shall frame, contrive, write, seal, or countersign any warrant or writing for such commitment, detainer, imprisonment, or transportation, or shall be advising, aiding, or assisting in the same, or any of them; and the plaintiff in every such action shall have judgment to recover his treble costs, besides damages, which damages so to be given shall not be less than five hundred pounds; in which action no delay, stay, or stop of proceeding by rule, order, or command, nor no injunction, protection, or privilege whatsoever, nor any more than one imparlance, shall be allowed, excepting such rule of the Court wherein the action shall depend, made in open Court, as shall be thought in justice necessary, for special cause to be expressed in the said rule; and the person or persons who shall knowingly frame, contrive, write, seal or countersign any warrant for such commitment, detainer, or transportation, or shall so commit, detain, imprison, or transport any person or persons contrary to this act, or be any way advising, aiding, or assisting therein, being lawfully convicted thereof, shall be disabled from thenceforth to bear any office of trust or profit within the said realm of England, dominion of Wales, or town of Berwick upon Tweed, or any of the islands, territories, or dominions thereunto belonging, and shall incur and sustain the pains, penalties and forfeitures limited, or denied, and provided, in and by the statute of Provision and Praemunire made in the sixteenth year of King Richard the Second; and be incapable of any pardon from the King, his heirs or successors, of the said forfeitures, losses or disabilities or any of them.

XIII. Provided always, that nothing in this act shall extend to give benefit to any person who shall by contract in writing agree with any merchant or owner of any plantation, or other person whatsoever, to be transported to any parts beyond the seas, and receive earnest upon such agreement, although that afterwards such person shall renounce such contract.

XIV. Provided always, and be it enacted, that if any person or persons, lawfully convicted of any felony, shall in open Court, pray to be transported beyond the seas, and the Court shall think fit to leave him or them in prison for that purpose, such person or persons may be transported into any parts beyond the seas; this act, or anything therein contained to the contrary notwithstanding.

XV. Provided also, and be it enacted, that nothing herein contained shall be deemed, construed, or taken, to extend to the imprisonment of any person before the first day of June, one thousand six hundred seventy and nine, or to any thing advised, procured or otherwise done, relating to such imprisonment; any thing herein contained to the contrary notwithstanding.

XVI. Provided also, that if any person or persons at any time resiant in this realm, shall have committed any capital offense in Scotland or Ireland, or any of the islands, or foreign plantation of the King, his heirs or successors, where he or she ought to be tried for such offense, such person or persons may be sent to such place, there to receive such trial, in such manner as the same might have been used before the making of this act; any thing herein contained to the contrary notwithstanding.

XVII. Provided also, and be it enacted, that no person or persons shall be sued, impleaded, molested, or troubled for any offense against this act, unless the party offending be sued or impleaded for the same within two years at the most after such time wherein the offense shallbe committed, in case the party grieved shall not be then in prison; and if he shall be in prison, then within the space of two years after the decease of the person imprisoned, or his or her delivery out of prison, which shall first happen.

XVIII. And, to the intent no person may avoid his trial – or general gaol delivery by procuring his removal before the Assizes, at such time as he cannot be brought back to receive his trial there, be it enacted, that after the Assizes proclaimed for that county where the prisoner is detained, no person shall be removed from the common gaol under any Habeas Corpus granted in pursuance of this act, but upon any such Habeas Corpus shall be brought before the Judge of Assizes in open Court, who is thereupon to do what to justices shall appertain.

XIX. Provided nevertheless, that after the Assizes are ended, any person or persons detained, may have his or her Habeas Corpus according to the direction and intention of this act.

XX. And be it also enacted by the authority aforesaid, that if any information, suit, or action shall be brought or exhibited against any person or persons for any offense committed or to be committed against the form of this law, it shall be lawful for such defendant to plead the general issue, that they are not guilty, or that they owe nothing, and to give such special matter in evidence to the jury that shall by the same, which matter being pleaded had been good and sufficient matter in law to have discharged the said defendant or defendants against the said information, suit, or action, and the said matter shall be then as available to him or them, to all intents and purposes, as if he or they had difficiently pleaded, set forth, or alledged, the same matter in bar or discharge of such information, suit, or action.

XXI. And because many times persons charged with petty treason or felony, or as acceptances thereunto, are committed upon suspicion only, whereupon they are bailable, or not, according as the circumstances making out that suspicions are more or less weighty, which are best known to the Justices of Peace that committed the persons, and have the examinations before them, or to other Justices of the Peace in the county; be it therefore enacted that when any person shall appear to be committed by any Judge or Justice of the Peace, and charged as accessory before the fact, to any petty treason or felony, or upon suspicion thereof, or with suspicion of petty treason or felony, which petty treason or felony shall be plainly and specially expressed in the warrant of commitment, that such person shall not be removed or bailed by virtue of this act, or in any other manner than they might have been before the making of this act.

Jack Sebastian Shepherd -v- The Queen – 20/6/ 2019

On 26 July 2018 following a trial at the Central Criminal Court Jack Shepherd was convicted by a jury of manslaughter and on the following day was sentenced to 6 years’ imprisonment. Although he was in communication with his lawyers throughout the trial, in breach of his bail, he had previously left the UK and was voluntarily absent from both the trial and the sentencing hearing. He was subsequently granted leave to appeal that conviction. Early in 2019, the appellant was extradited from Georgia both for the offence of manslaughter and an unrelated offence of causing grievous bodily harm with intent for which he had also failed to appear. Upon his return to the UK, he admitted an offence of failing to surrender to custody contrary to s. 6 of the Bail Act 1976. He was sentenced to a term of 6 months’ imprisonment to operate consecutively to the term of 6 years’ imprisonment. The appellant also seeks to challenge his conviction for this offence.

The states from whom extradition is sought will recognise that breach of bail is a separate matter in the UK. With an explanation of the way in which breach will be considered by the court and on the basis that punishing those who fail to answer bail is a necessary component of an effective criminal justice system which releases most of those charged with crime rather than requiring their detention in custody. In every case the consent of the state from which extradition is sought should unequivocally be requested with an explanation of why this is necessary. If, in those circumstances, criminal proceedings have to be commenced, it should not be impracticable to start such proceedings at the time that extradition is sought.

  1. Bail Act 1976
  2. Extradition Act 2003
  3. Policing and Crime Act 2009 
  4. Anti-Social Behaviour, Crime and Policing Act 2014

Neutral Citation Number: [2019] EWCA Crim 1062

Case No: 201803465 C3

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CENTRAL CRIMINAL COURT

The Common Serjeant, H.H. Judge Marks QC T20177384

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/06/2019

Before :

THE PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE JEREMY BAKER
and
MRS JUSTICE THORNTON D.B.E.
– – – – – – – – – – – – – – – – – – – – –
Between :

JACK SEBASTIAN SHEPHERD …….Appellant
– and –
THE QUEEN……………….. Respondent
– – – – – – – – – – – – – – – – – – – – –
Stephen Vullo QC, Andrew McGee and Kate O’Raghallaigh for the Appellant Aftab Jafferjee QC and Michelle Nelson QC for the Crown John Hardy QC for the Crown (Bail Act offence)

Hearing date : 13 June 2019
– – – – – – – – – – – – – – – – – – – – –

Approved Judgment

Sir Brian Leveson P :

1. On 28 June 2018, Jack Sebastian Shepherd (“the appellant”) was due to appear at the

Central Criminal Court before the Common Serjeant, His Honour Judge Marks QC in connection with his trial for manslaughter. He had communicated with his solicitors that he did not intend to attend the trial and he did not do so. As a result, a bench warrant (not backed for bail) was issued. This followed an earlier bench warrant (not backed for bail) in connection with other proceedings.

2. In the event, without objection from his legal advisers (which included leading counsel), the trial subsequently proceeded in the appellant’s absence. On 26 July, by majority verdict (11:1), he was convicted of manslaughter and, on the following day, equally in his absence, sentenced to a term of 6 years’ imprisonment. Ancillary orders of forfeiture (of the speed boat involved) and in relation to the Victim Surcharge were also made.

3. Throughout the trial, the appellant was in communication with his legal advisors and, following its conclusion, he sought leave to appeal both conviction and sentence, which, in relation to conviction, he was granted by the single judge. On 11 April 2019, prior to his appeal being heard, he surrendered to the authorities in the Republic of Georgia. He did not contest extradition to the UK and, on his return, admitted an offence under s. 6 of the Bail Act 1976 for which he was sentenced to a term of 6 months’ imprisonment to operate consecutively to the term of 6 years’ imprisonment. He also seeks to challenge his conviction in relation to the Bail Act offence which, by virtue of s. 13 of the Administration of Justice Act 1960, he pursues as of right.

Facts

4. At some time before midnight on 8 December 2015, Charlotte Brown suffered fatal injuries when the appellant’s speedboat struck a submerged tree on the river Thames.

It was not in issue that, at times during that trip, the boat was travelling at excessive speed and that Ms Brown, who had no experience of driving a speedboat and who, along with the appellant, had been drinking alcohol, was at the wheel at the time of the incident.

5. The background was that Ms Brown and the appellant had met, for their first date, earlier that evening: two bottles of an expensive wine were bought but the extent to which the second bottle was consumed was in issue. They partook of some food with the alcohol at a restaurant in the City before returning to the appellant’s houseboat in

Hammersmith. The appellant then offered to take the victim out on his speedboat and they drank more alcohol (in the form of champagne) whilst they waited for the tide to rise.

6. At some time after 10.20 pm, they set off, it appearing to be the case that they took more alcohol with them. The appellant was driving. It was not in issue that on the outward leg of the journey the boat was travelling at excessive speed. At some point on the return journey, the appellant allowed Ms Brown to take the wheel and take control. CCTV images showed the boat move in a gradual line from the north to south side of the river: it seemed to slow significantly. As it approached Plantation Wharf, witnesses describe the boat making a chugging sound, with reducing engine revolutions; that was not consistent with a vessel travelling at or above the permitted speed limit.

7. Having impacted with the tree, the boat turned over throwing both the appellant and Ms Brown into the water; neither was wearing a buoyancy aid or life jacket. Tragically, Ms Brown was unresponsive when she was pulled from the water and subsequently died in hospital. Meanwhile, the appellant was rescued by the RNLI and handed over to a Marine Police Unit. He was suffering from hypothermia and appeared very concerned as to Ms Brown’s welfare and whereabouts: he spoke to an officer, Con Winter, who described him as “clearly very drunk” as well as seemingly “extremely confused” and “clearly suffering from shock”. While in the hospital, he answered a number of questions posed by Con Winter about the circumstances of the incident.

8. The appellant was discharged from hospital on 9 December and interviewed as a significant witness later the same day: that interview was recorded and a transcript was and is available. At the core of this appeal are the circumstances in which that interview took place and the extent to which the appellant’s rights were not respected.

9. In the event, the prosecution case was that the appellant, as the owner of the boat and, under Thames byelaws, its master, owed Ms Brown a duty of care. It was contended that breach of that duty posed an obvious and serious risk of death and had been a significant contributory factor in her death. In particular:

i) The appellant had taken the boat out at night when it was cold and dark, when it was defective in a number of ways, in particular, in relation to the kill cord, steering, windscreen and seats.

ii) The appellant knew that both he and Ms Brown had been drinking and, furthermore, had taken more alcohol onto the boat.

iii) The appellant had driven at speeds well in excess of the speed limit, allowing Ms Brown to take the wheel, knowing how much alcohol she had consumed and that she had no experience of driving speed boats; he had failed to intervene when she, following his example, drove at excessive speed.

iv) Furthermore, the appellant had failed to inform Ms Brown that there were buoyancy aids/life jackets on board and failed to require her (or at least provide her with the option) of wearing one.

10. The defence case was that the appellant had not owed a duty of care to Ms Brown. Furthermore, there was no reasonably foreseeable risk of death and, in any event, no act or omission of his was a substantial cause of death. As for the alleged negligence, he denied that:

i) he was intoxicated to the extent alleged by the Crown or to a level which led to the accident;

ii) Ms Brown was obviously intoxicated;

iii) the boat was speeding as alleged or at all before the accident;

iv) he had been under any obligation to provide or insist on a buoyancy aid being worn by any guest on the boat;

v) the river or weather conditions were such as to have placed the boat at risk or to have contributed to the accident.

11. It was further contended that the appellant had been questioned without the benefit of a caution or legal advice and whilst suffering from shock and hypothermia. In these circumstances he may have made errors as to events and details when interviewed. However, he had been truthful throughout.

12. It is not in issue that the issues before the jury were the nature and extent of any duty of care owed by the appellant to Ms Brown, breach of that duty, reasonable foreseeability of a serious and obvious risk of death, causation and whether such breach amounted to such gross negligence as constituted a crime as explained by the authorities relating to gross negligence manslaughter. It is not suggested that these ingredients were not explained entirely appropriately to the jury or that they were not entitled to reach the verdict which they did. The prosecution did not rely on his answers to Con Winter going to or in the hospital and, notwithstanding what might have been subsequently asserted, the only basis upon which this verdict is challenged is the admissibility of the interview of the appellant conducted on 9 December, the day after the accident.

Voire Dire

13. It is first necessary to identify the nature of the application to the judge. Made pursuant to ss. 76 and 78 of the Police and Criminal Evidence Act 1984 (“PACE”) it was:

“to exclude the evidence relating to the defendant’s account of his alcohol consumption and state of sobriety contained in (a) the evidence of Police Officer Liam Winter and (b) the significant witness interview.”

14. It was said to have been made only on 1 July (in relation to the trial that had commenced) in these circumstances:

“This application is made at this stage in light of the defendant’s near-certain absence from his trial and an unopposed application to try the defendant in his absence having been granted.

No application was made earlier because:

a. had the defendant been in a position to give evidence at his trial, his account would have been broadly in line with what he said to [Con Winter] and in the significant witness interview, but with the correction of certain matters, in particular the amount of alcohol he had consumed;

b. in those circumstances, the defendant would have benefited from the jury knowing that he had given a full and reasonably consistent account at an early stage;

c. it is also the case that, had a successful application been made to exclude [Con Winter’s] evidence and the significant witness interview at an earlier stage, the defendant would in effect have been precluded from giving evidence himself without the excluded evidence, at least arguably, becoming admissible and going before the jury.”

15. In the event, the judge acceded to the application to exclude in very substantial part the evidence of what the appellant said about his alcohol consumption: on the face of it, therefore, the defence broadly succeeded in obtaining the relief that the written application sought. What the judge permitted to be adduced in evidence, however, was the appellant’s initial account generally in answer to open questions to tell the officers what happened on the previous day.

16. In the light of the way in which the argument developed before this Court, it is necessary to set out the circumstances of the interview of the appellant on the day following the incident (as evidenced in a lengthy voire dire) and the judge’s ruling in relation to it.

Det. Sgt. Mullan (who had been present when it was conducted) explained the background. The appellant was interviewed as a significant witness to gain an understanding of what had happened: as frequently happens in such circumstances, that interview was recorded. At that stage of the investigation, there was nothing to indicate that he was involved in a criminal offence. At that stage no consideration had been given to any possible viable infringements of Thames by-laws. As a result, he was not cautioned.

17. Cross-examined, Det Sgt Mullan recognised that at the time of the interview he knew that both Ms Brown and the appellant had been drinking alcohol on and off the boat which was owned by the appellant and had capsized with both thrown into the Thames and that Ms Brown had died. The police were unsure whether either had been wearing lifejackets and believed that Ms Brown’s lifejacket may have been lost in the water. They knew that the appellant had allowed Ms Brown to drive the boat shortly before the collision and that the appellant had appeared to be drunk or under the influence of alcohol when observed by officers at the hospital.

18. Det Sgt Mullan went on to explain that he had had no prior knowledge of or involvement with incidents on the river. He had been told by a senior officer, Det Insp Braganza, that the Marine Unit had informed him that no offences had been committed. In particular, he was not aware and did not consider that driving a boat whilst drunk might have been a criminal offence (albeit a summary offence contrary to Thames Byelaws). He accepted that if the incident had involved a car on a road he would “absolutely” have cautioned the appellant. The fact that he had not was because he had been told that no criminal offence had been committed.

19. He explained that, at the beginning of the interview, Det Con Sherrie Allen identified that the purpose of the interview was to take a witness statement. Initially, the appellant was permitted to give an account of what had happened and then that account was broken down by further questions. He had been asked whether he had taken out other “dates” and whether this was a technique he used to attract women. These questions had been asked because the appellant had mentioned something along these lines, elaborating that he had probably taken about ten women onto the boat and had allowed the majority to drive it. He said that he had purchased the boat “with the intention of trying to pull women basically”. The officer accepted that these questions related to previous incidents and said they were building a picture of how the evening had evolved and how it had “evolved before”.

20. He agreed that the appellant had been asked whether he would have got into a car having consumed a comparable amount of alcohol and whether he had ever done so. The appellant had replied that he would not have but had done so in the past. It was put to the officer that he was asking whether the appellant had ever committed a criminal offence: the explanation was that, at some point, the appellant had said he believed that he had done wrong and, based on the fact that he had responsibility whilst on the road, he had been trying to establish whether the appellant would have done the same on a river. The officer was asked whether he would usually ask witnesses if they had ever committed criminal offences and replied that he would though it would depend on the circumstances and the case was quite unique.

21. Det Sgt Mullan could not recall whether he was aware of the appellant’s previous convictions prior to the interview but accepted that he knew of previous stops on the Thames. He accepted that he had asked questions as to these stops but said that he was not testing the appellant’s truthfulness but getting his version of what had happened.

He could not recall why, before the interview, an evidential blood sample had been taken. He could not recall whether he knew about it.

22. The interview had been reviewed by Det Ch Insp Armstrong on the following day and it was put to Det Sgt Mullan that his senior officer had noted the working theory that foul play was not suspected and that the incident had been an accident. He agreed that, in this context, foul play meant evidence of an assault or something similar. However, information gathering continued pending the results of the post mortem examination. Although it was noted that advice was pending as to whether legislation relating to being drunk in charge of a vessel included a pleasure boat, the officer confirmed that he did not believe that driving a boat on the Thames whilst drunk was an offence.

23. The officer was then taken to notes in which previous contact with the appellant by the Marine Support Unit as to the speed and condition of his boat was documented. There was also a note that further consultation would be needed with the Port of London Authority in relation to any subsequent enforcement of byelaws. It was put to him that, by 9 December, byelaw offences were being considered. He reiterated that, at the time of the interview, he did not believe an offence had been committed and, had he done so, he would have cautioned the appellant.

24. Re-examined, Det Sgt Mullan accepted that subsequently he became aware that it was an offence to drive a boat whilst “over the limit”. He was also asked about the evidence of alcohol consumption. That evidence came from the bar where the two had dined earlier that evening: two bottles of wine had been consumed and foil from the top of a champagne bottle and two wine glasses with residue found on the appellant’s houseboat. There had also been messages sent by Ms Brown to her sister and friend which referred to champagne being consumed whilst on the speedboat.

25. In his ex tempore ruling on the question of admissibility, although not emanating from any evidence from the appellant (but rather from what he had told by a defence toxicologist), the judge recounted the defence position in relation to alcohol to the effect that he had overstated his actions in the interview both in relation to his consumption of alcohol and the effect this had had on the speed of the boat and his behaviour. It appears, however, to have been accepted that, much earlier in the evening the appellant had consumed a double vodka, shared with Ms Brown a bottle of wine in the bar and half a second bottle and, in addition, had had perhaps half a glass of champagne on the houseboat, taking the champagne on the boat with them. He had said that on the speedboat bottles tended to rock and the contents spill and the champagne had been more of a “prop” on the date.

26. The judge noted that the toxicology evidence was based on what the appellant had said to his instructing solicitors. There was no evidence of back calculation; when his blood sample taken at 13.30hrs on 9 December was tested there was a zero reading. The defence submitted that even on the Crown’s analysis which gave an estimate of about 34-100 milligrams in blood there was a real possibility that his level had been far below the limit. The difficulty with the trial proceeding in the appellant’s absence was that he was unable to give evidence and there was an interview in which he had said that he was drunk.

27. In this initial ruling, the judge said that there was a distinction to be drawn between questioning relating to alcohol consumption and other questions. However, in relation to being drunk and in charge of the boat the judge noted that at the beginning of the interview the appellant had given a lengthy account of what had happened. At that stage he was not being asked questions about any offence. As the interview progressed that situation had changed and he been asked specific questions about alcohol and the officer had admitted that had he known it was an offence at that stage he would have cautioned the appellant. In the circumstances, the judge ruled that the interview was not inadmissible and fairness did not demand that it be excluded in its entirety, but those passages in which he was specifically asked about alcohol would be excluded.

28. Later in the trial, the judge provided a written ruling explaining in greater detail the reasons for his decision on admissibility. He noted the background (not relied upon by the prosecution) that, while at hospital, the appellant had spoken to Con Winter who elicited that it was his boat, he had been driving but had permitted the victim to drive which is when the accident occurred and that they had both had a significant amount to drink.

29. The judge clearly accepted that the following day, both the Senior Investigating Officer, Det Insp Braganza, and Det Sgt Mullan (who were aware of the conversation in hospital) were of the view that nothing had come to light which led either of them to believe that the appellant had committed an offence. This was borne out by the briefing provided to the Forensic Services (“this is not being treated as a suspicious incident”).

30. The judge accepted that the appellant was clearly a critical witness from whom the police needed to obtain an account. They decided to do so by recording an interview with him as a “significant witness”. Mr Mullan believed the purpose of the interview was to “understand the facts of what had happened”. The judge equally accepted that Rule 9 of the River Thames Bye-laws 1978 made it an offence for a master of a vessel to drive it when the blood level exceeded 35 and noted that there was no power of arrest for that offence which was punishable with a fine and repeated the officer’s evidence that he was unaware that this was an offence otherwise he would have cautioned the appellant.

31. It was against that background that the defence sought to exclude part of the interview under s. 78 of PACE on the basis of a breach of Code C (failure to caution and afford legal representation). It was contended that the test to be applied was an objective one and that the prosecution could not fairly rely on the officer’s ignorance of the bye-laws.

32. The judge referred to the terms of para 10(a) of Code C of the Codes of Practice and stated that it was necessary to consider the purpose of the interview: the obligation to caution arose “before any questions about an offence … are put”. Det Sgt Mullan, on the other hand, had described the purpose of the interview as “to establish clear facts of the incident and [the appellant] was the only individual who could tell…what…happened”. He had been treated as a significant witness because of his presence during the incident as he may have held vital information which needed to be accurately obtained to progress and direct the investigation. The CRIS report showed that the matter had not progressed as a criminal investigation until 16 December.

33. In the circumstances, the judge concluded that whilst there were grounds to suspect the appellant of having committed an offence under the bye-laws, para 10(a) of Code C was not engaged because questions were not being put to him about an offence; he was being questioned to ascertain the circumstances in which the accident had occurred which at that time the police did not believe involved criminal conduct.

34. Looking at the substance of the interview it began with the appellant being asked to give an account which he had done at some length. In the course of this he referred to the fact that both he and the victim had drunk significant amounts. As a result of the account the officers had questioned him at some length to get more detail. He was asked a number of questions about drinking.

35. Furthermore, the application to exclude had been made late and against a background of the appellant having absconded and failed to attend his trial. The judge explained:

“I mention this because the defence have made it clear that if D had been in attendance at the trial, they would not have made this application to exclude the interview; on the contrary, as they put it in their skeleton argument, ‘the defendant would have benefited from the jury knowing that he had given a full and reasonably consistent account at an early stage’.

They add ‘had the defendant been in a position to give evidence at his trial, his account would have been broadly in line with what he said … in the significant witness interview, but with the correction of certain matters, in particular in relation to the amount of alcohol he had consumed’.

36. In those circumstances, although the judge had found the matter unusual and difficult, he concluded that there had been no breach of Code C but, in view of the concession that the appellant would have been cautioned had the officer been aware of the bye-law, the passages in which the appellant was asked specifically about drink should be excluded. The judge added that if he was wrong as to whether the Code had been breached, based on s. 78 of PACE, his conclusion would have been the same. In relation to the contention that he had been denied the right to legal representation, the judge concluded that this provision related to detainees and that the appellant had not been detained at the time of the interview.

37. It is important to underline what evidence, which Stephen Vullo QC (who acted for the appellant at trial as he did before us) sought to exclude but was admitted as a consequence of the ruling. The answers (part of a long account to tell the officer in as much detail as possible about what happened) identified by Mr Vullo were as follows:

“…so yeah we had dinner and then we drank quite a lot of wine. We drunk two bottles of wine and got a taxi to mine and then we got to mine and drank more and then decided to go out on the boat and we’d talked about it over dinner. … so we went out on the boat and had some wine on the boat as well … so my memory’s quite hazy of the whole evening really because we drank very heavily …. I mean it’s hazy because we’d been drinking …”.

In addition, Mr Vullo sought to exclude an acknowledgement by the appellant of a summary of this account proffered by Det Con Allen. Further, in answer to an open question (requesting that he tell the officer about the arrangement) included the explanation:

“… went into the restaurant where he had yeah ordered a bottle of wine and kind of drunk that and then had some food and then another bottle of wine and yeah left and got the taxi back. To be honest with [sic] I’m even quite hazy about the leaving restaurant.”

The Appeal

38. Mr Vullo contended that the judge should have excluded, wholly or in part, evidence of the answers given by the appellant in his significant witness interview. Whilst at the hospital the appellant had been questioned by a police officer and told the officer that he had been drunk, that he and the victim had continued to drink on the boat and that he had allowed the victim to drive the boat. This information formed part of the background (not relied on) but demonstrated that, by the time of the interview, there were clearly objective grounds for suspecting the appellant had committed a criminal offence based on his earlier answers and the fact that the victim had died. In addition, although not relied on before the judge, there was the offence of exceeding the speed limit on the Thames (contrary to para. 16 of the Byelaws). Accordingly, he should have been cautioned and afforded his rights under Code C of PACE in relation to legal advice and representation and pre-interview disclosure. Given that he had not been cautioned and had not had the benefit of his rights under Code C the interview should have been excluded.

39. Mr Vullo went on to argue that most of the damaging evidence against the appellant came from the answers he had given in that interview: these included driving at excessive speed, alcohol intake, life jackets, allowing the victim to steer and the fact that she had been at the helm at the time of the accident. In that regard, the officer’s mistake as to the law was fatal to the admissibility of the interview. The judge ruled that there had been no breach of Code C but in view of the concession that the appellant would have been cautioned had the officer known of the bye-law, this conclusion could not be sustained.

40. In short, the judge erred in failing to exercise his discretion to exclude the interview in that the test for whether grounds exist to suspect someone of committing an offence must be objective and, irrespective of the officer’s subjective opinion there was ample evidence to suspect that offences, including manslaughter, had been committed. In those circumstances, there had been a breach of para. 10(a) of Code C and the judge’s analysis of the provision was unduly restrictive. In any event, even in the absence of a breach of the Code, it was unreasonable not to exclude the interview.

41. Further, Mr Vullo submitted that the judge had placed undue weight on the fact that the defence made the application to exclude late and would not have done so had the appellant attended his trial and given evidence. This was not, he contended, a relevant consideration and should not have been taken into account.

42. In response, Aftab Jafferjee QC, who also appeared for the prosecution before the Common Serjeant, submitted that, for the reasons given by the judge, there was no breach of Code C of PACE. Alternatively, any such breach was not substantial or significant and no unfairness arose by the admission of parts of the significant witness interview of the appellant; exclusion of the evidence was subject to judicial discretion which was properly exercised. He noted that parts of the interview (dealing with subsequent answers in relation to alcohol) were excluded.

43. Mr Jafferjee went on to challenge the proposition that the case depended on the admissions made by the appellant. He pointed to the following evidence available entirely outside what the appellant said in interview.

i) At the restaurant two bottles of wine each at 13.5% vol were consumed and a light meal ordered. The first bottle of wine was ordered at 18.50 the second at 19.38. The bill was paid at 21.15, that is to say nearly two hours after the second bottle of wine had been ordered.

ii) The appellant and Ms Brown went by taxi to his houseboat moored at Hammersmith where, in the early hours of 9 December 2015, two wine glasses each containing a small amount of liquid and foil from the top of a champagne bottle were found.

iii) Ms Brown sent text messages which were retrieved to the effect that she had consumed champagne whilst on the speedboat.

iv) Expert evidence demonstrated that on the outward journey the boat travelled at speeds of between 26 to 30 knots whereas the speed limit is 12 knots. Footage recovered from the victim’s mobile telephone had her making the point that “ …. we’re going so fast”.

v) Although the evidence that Ms Brown was at the helm on part of the return journey came from accounts given to the police by the appellant, CCTV footage showed that, in that period, the boat slowed. It was estimated to be travelling at between 22 and 29 knots.

vi) It was the location and extent of the damage caused to the boat by the tree or log that supported the conclusion that the vessel had hit it at speed.

vii) At 00:05, in answer to calls from residents along the Thames, the police arrived. Between 00.05 and 00.14, when the appellant’s temperature was first taken, the police recorded that he was “in a very poor state”. He repeatedly asked “Is she alright?” and “have you found her?”. Con Winter described him as “clearly very drunk, smelling quite heavily of alcohol and slurring his words”.

viii) In his words, Con Winter “attempted to gather information” from the appellant who was not able to give any “real” answers. He was described as “extremely confused and clearly suffering from shock as well as being drunk making it hard for him to remember details”. What he said was not relied upon but his condition was important.

ix) To a paramedic, he said that he had been out for a meal, was drinking and thought it a good idea to go out in a boat down the Thames. He was with his “date” (he could not remember her name) and the boat tipped over. He said she wanted to have a go at driving the boat. Throughout the exchange he was very distressed, very cold and garbled. In the meantime, Ms Brown’s body was recovered at 00.46 and she was pronounced dead at 01.55.

x) It was in that context that Con Winter obtained an account from the appellant during which he spoke of what the two had drunk, explaining that Ms Brown had asked to “drive” and he had allowed her to. She had struck something and they had been catapulted into the water. The appellant’s mobile telephone was seized and permission given for the police to enter the houseboat. Con Winter left the hospital and at that time did not believe that any offence was apparent.

xi) Against that background, on the afternoon of 9 December 2015, the appellant was interviewed as a significant witness by Det Con Allen and Det Sgt Mullan. The officers did not know that being drunk in charge of a boat on the Thames was an offence and viewed the interview as being necessary to gain an understanding of what had happened.

xii) Records revealed that the matter was not viewed as a criminal investigation until 16 December 2015. It was only after a lengthy investigation that, in November 2017, a summons alleging manslaughter was issued.

44. As to the facts, therefore, Mr Jafferjee submits that, when first speaking to the appellant at the scene and at the hospital the police were doing no more than trying to identify the victim and her family and to ascertain what had happened. The appellant gave an incomplete, incoherent account (upon which reliance was not placed) and the significant witness interview which followed was to obtain information about what the police believed was the accidental death of the victim. It was not an interview to establish whether the appellant had committed bylaw offences, or, indeed, any offence.

45. Although the appellant admitted helming the boat while drunk, that matter was not “the” or even “an” offence under consideration on 8 or 9 December. The police did not know how or what had led to the capsizing of the boat. Further, for the purposes of Code C 10.1 and the Notes for Guidance 10A of PACE, the information which was then available did not provide reasonable or objective grounds to suspect him of any offence, let alone unlawfully killing Ms Brown.

46. Furthermore, the application to exclude the significant witness interview was made because the appellant had absented himself from the trial and was focused solely on the issue of the quantity of alcohol he told the police he had consumed. In determining fairness, the judge was entitled to have regard to the fact that the appellant accepted the accuracy of the content of the interview and would have sought to rely on it had he been present; in that regard, throughout the trial, he was well aware of (and providing instructions in relation to) what was being raised.

47. In the circumstances, Mr Jafferjee argued that the judge was correct to find that there was no breach of the Code and, in any event, in the exercise of his discretion, had specifically excluded specific questions and answers relating to alcohol consumption.

Discussion

48. In the context of a case which has generated so much publicity, it is worthwhile repeating the fundamental principles. The provisions of s. 76(2) of PACE require the court, among other circumstances, to exclude evidence of a confession unless it is sure that it has not been obtained “in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence”. Furthermore, s. 78 permits the court to refuse to admit evidence on which the prosecution proposes to rely if it appears to the court:

“… that having regard to the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

Codes of Practice issued pursuant to s. 66 of PACE are admissible and, if relevant to any question arising in the proceedings, “shall be taken into account in determining that question”: see s. 67(11) of PACE.

49. At the relevant time, Code C provided:

“C:10.1 A person whom there are grounds to suspect of an offence, see Note 10A, must be cautioned before any questions about an offence … are put to them if either the suspect’s answers or silence … may be given in evidence to a court in a prosecution. A person need not be cautioned if questions are for other necessary purposes, e.g….

C:10.2 Whenever a person not under arrest is initially cautioned … that person must at the same time be told they are not under arrest and informed of the provisions of para. 3.21 which explain how they may obtain legal advice…”

The examples are not relevant but Note 10A makes it clear:

“There must be some reasonable, objective grounds for the suspicion based on known facts or information which are relevant to the likelihood the offence has been committed and the person to be questioned committed it.”

50. Dealing with interviews, C: 11.1A makes it clear:

“An interview is the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under paragraph 10.1 must be carried out under caution. Before a person is interviewed, they and, if they are represented, their solicitor must be given sufficient information to enable them to understand the nature of any such offence, and why they are suspected of committing it … in order to allow for the effective exercise of the rights of the defence.”

51. Reference to C:3.21 deals with those who are not arrested but are cautioned making it clear that, if they agree to remain, they may obtain “free and independent legal advice if they want”. The Code then goes on to require the interviewer:

“… must ensure that other provisions of this code and Codes E and F concerning the conduct and recording of interviews of suspects and the rights and entitlements and safeguards for suspects who have been arrested and detained are followed insofar as they can be applied to suspects who are not under arrest.”

52. It is worth adding that failure to comply with the Code will not necessarily result in a breach of s. 76 of PACE because it may not render unreliable anything that was said. The real test, however, is to be found in s. 78, namely, whether admission of the evidence would have such an adverse effect on the fairness of the proceedings.

53. The thrust of the legislation is clear: it is to be fair to those who are suspected of committing a criminal offence and to ensure that their rights are respected. It was not suggested (and the judge most certainly did not find) that the officers were acting in bad faith and suspected the appellant of having committed a criminal offence. They were not aware of the byelaw offence or offences and, in the light of the evidence, clearly were not then contemplating unlawful killing of any sort: Note 10A proceeds on the premise that there was, in fact, a suspicion. Their questioning, on that basis, did not fall within C:11.1A which requires questioning in relation to suspected involvement in a criminal offence and it is difficult to see what information could have been provided to enable a legal adviser to understand the nature of any such offence, where none was, in fact, suspected. Save for the impression of the police officer, at that stage, it is even unclear whether there was evidence that he exceeded the limit of alcohol that the byelaw specified. Suffice to say that, in relation to C:3.21, it is clear that the judge concluded that the appellant was not, in fact, suspected of having committed a criminal offence not least because they did not know about the byelaw.

54. It is obvious that, in an attempt to escape compliance with the Codes, the police cannot ignore the possibility that a criminal offence (even one punishable with a financial penalty at the behest only of a different authority) but it is equally important that police officers should not be subject to a potential trap if, by careful searching of byelaws, an esoteric offence of which they cannot be expected to be aware can be found. The purpose of the interview, as clearly found by the judge, was not to investigate any suspected criminal offence but to find out what had happened. If, during the course of such an interview, a suspicion of criminality arises, needless to say, the interview must be brought to a close and all the provisions of the Code (both in relation to caution and access to legal advice) observed.

55. It is unnecessary to decide whether the existence of an unknown byelaw offence which could have triggered Code C did, in fact, do so. For our part, in the context of this particular case, although we readily recognise that different facts might produce a different result, we are not prepared to say that the judge was wrong to conclude that it did not: as a matter of fact, the police were not then investigating any suspected criminal offence even if, objectively, they could have been. The result is that the obligation to caution (and, pursuant to C:10.2 obtain legal advice) was not triggered.

56. We do not, however, rest our conclusion on that ground. We have also been prepared to proceed on the basis that there were breaches of the Code and therefore to consider the exercise of discretion pursuant to s. 78 of PACE. Whether or not (as the single judge believed was arguable although we doubt the proposition) the judge proceeded on the basis the appellant was not entitled to legal advice on the basis that he was not detained, we have no doubt that the only proper conclusion to reach was that the evidence of the interview in the redacted form (which included what the appellant said at its start in relation to open questions but omitted most of the material relating to later questions as to the appellant’s sobriety) was admissible.

57. We reach that conclusion for the following reasons. First, the judge clearly accepted that, at the time of the interview, the relevant officers did not, in fact, suspect that any offence might have been committed. This was not least because a senior officer in the Marine Unit had made that clear and the question is whether or not they should have been aware of the byelaws of driving a boat while over a specified limit of alcohol or speeding (which, unlike in relation to a motor car, bite on the ‘master’ of the vessel and not only on the driver). Although at one stage it appeared to be suggested that the officers should then have been considering the offence of manslaughter, this was not pursued and it is equally clear that they were not. In fact, the appellant was not, in fact, suspected of having committed any offence. The Code (dealing with legal advice, disclosure of information and explanation) proceeds on the premise of suspicion and the investigation of one or more offences: it is that which gives rise to the requirement of a caution.

58. Until information is gathered about any incident (save where it is obvious from the circumstances), there is frequently an investigative phase which is simply seeking an understanding of what happened before there is any question of suspicion. Provided that the police always act in good faith (which means justifying the view they have reached), it is obviously in the public interest that investigating officers are able to pursue that phase; the other side of the coin is that when an investigation generates suspicion that an offence may have been committed, the protection of the Codes become engaged. For the reasons advanced by Mr Jafferjee, we reject the proposition that the prosecution depended on the evidence in the interview: for the reasons he advanced (set out above) it clearly did not.

59. Second, the issue for the judge was whether, if established, breaches of the Code (or, indeed, any other circumstances) were such that the admission of the interview would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. There is no rule of exclusion if the Code is breached: it is one of the features, albeit important, to be taken into account. In this case, the introduction to the skeleton argument regarding s. 76 and s. 78 of PACE was to exclude the evidence relating to the appellant’s account of his alcohol consumption and state of sobriety and nothing else. Indeed, the point was made that the appellant’s account (were he to have given evidence) would have been “broadly in line with what he said … in the significant witness interview” albeit with the correction of “certain matters in particular the amount of alcohol he had consumed”. The point is also made that the appellant would have benefited from the jury knowing that he had given a full and “reasonably consistent” account at an early stage. Thus, in relation to the general thrust of the defence, it is difficult to see how its admission could have an adverse effect on the fairness of the trial. The expert evidence that Mr Vullo was unable to call as to alcohol consumption was not inadmissible because of what was said by the appellant to the police but because the factual basis for his opinion was derived from instructions given by the appellant who had decided not to attend his trial and establish those facts.

60. Third, Mr Vullo submits that this last point only explains why no application was made earlier and that the appellant’s failure to attend his trial is irrelevant. In one sense, that is correct because the judge had to assess the risk of an adverse effect on the fairness of the trial as it was proceeding. On the other hand, the appellant’s deliberate decision to abscond (while keeping in touch with his lawyers throughout the trial) could not be used to provide him with an argument that he should be in a better position than he would have been had he been present.

61. Neither counsel referred to the appellant’s rights under the ECHR but, for the sake of completeness, we have considered the guidance offered by the Grand Chamber in Ibrahim v United Kingdom (2016) 61 EHRR 9. Mr Vullo was aware of the case (having been instructed by one of the appellants) but did not suggest that it advanced his argument. We agree. Mr Ibrahim’s success consequent upon the failure to caution him was based on that fact that the decision was deliberate and followed a recognition that he had made incriminating statements which justified caution ([300]); furthermore, the voir dire and subsequent scrutiny were compromised by a “striking” unavailability of oral evidence from the officer who authorised the withholding of safeguards ([304]).

62. As to the general principles, there was no suggestion that the relevant safeguards needed to be administered before suspicion arose (see [249] and [296]). Further, the Grand Chamber explicitly rejected the submission that a restriction not justified by compelling reasons automatically results in a violation of Article 6 (at [260]-[262]): the fairness of proceedings as a whole must be taken into account. This is entirely in accord with our approach.

63. Although the facts are very different to the present case, it is worth underlining that the decision that there was no violation of Article 6 was based, at least in part, on features equally apparent here. First, there was a lengthy voir dire (see [282]). Second, it was open to the appellant to give evidence to challenge the admitted evidence at trial ([283]); though the appellant did not do so, it is important that the Grand Chamber considered this factor relevant in respect of Mr Ibrahim even though he elected not to give evidence ([305]). Third, the prosecution could depend on considerable material aside from the impugned statements ([288]-[291]). Finally, the judge summed up the case thoroughly, explaining how the impugned statements came to be made ([292]): similarly, in this case, no criticism is made of the way in which the Common Serjeant directed the jury in this case. Further, when the jury asked about whether parts of the statement had been removed, they were correctly directed that there was often material which was irrelevant which is why the interview had been edited.

64. When granting leave, the single judge made the point that the appellant should not be overoptimistic as to the outcome. That warning was prescient. The appeal against conviction is dismissed.

Breach of Bail

65. Although the appellant admitted the offence of failing to surrender to bail, contrary to s. 6 of the Bail Act 1976 (for which he was sentenced to 6 months’ imprisonment consecutive to the term passed for manslaughter), Mr Vullo submitted that it had subsequently emerged that the extradition request made to authorities in Georgia (where the appellant was living) did not explicitly request extradition for this offence. Thus, by reason of the rule of specialty, there was no jurisdiction to deal with this offence.

66. The documentation is comparatively clear. On 26 February 2010, the Extradition Section of the Home Office wrote to Givi Bagdavadze, the Head of the International Co-operation Unit at the Office of the Prosecutor General of Georgia seeking extradition in relation to two separate cases which were identified as the offence of Manslaughter (for which he had been convicted) and Wounding or Causing Grievous Bodily Harm with Intent (the other offence for which he had failed to surrender to bail). The accompanying statements make it clear that he had failed to surrender to bail but do not specifically seek extradition for an offence under the Bail Act 1976.

67. Correspondence followed from which it was clear that the specialty rule was not waived. On 27 March, after the appellant had consented to extradition and the order had been made by the court (but before the matter had been put before the Minister), Alison Riley, the Specialist Extradition Prosecutor at the CPS, asked:

“Does the fact that [the appellant] consented to extradition mean under your law that he has lost his specialty protection? If so, the UK courts will be able to impose separate penalties for the breaches of bail if they so wish. If not, I will have to make sure that everyone understands that he cannot be dealt with by either court for failing to appear.”

68. Mr Baghdavadze replied:
“As to your question on the specialty rule, the answer is no. … Is breach of bail a criminal offence in the UK? We don’t have such an offence. If it’s not a criminal offence then perhaps you won’t need to apply rule of specialty.”

69. Ms Riley then explained the problem. She wrote (on the same day):

“Breach of bail can be a criminal offence in the UK, depending on the circumstances but it is not one which is ‘prosecuted’ as such where there is a failing to appear, but rather something for which a Judge can of his own motion impose a consecutive sentence. For this reason we do not seek extradition for it specifically, but rather include the facts in the formal extradition request. The ‘pool of facts’ doctrine allows us to deal with the matter where a person is returned to the UK on everything contained in the formal extradition request. ….

In view of your clear explanation of Georgian law …, do you think specialty applies and we should tell both courts that they may not impose an additional sentence on Shepherd for failings to appear?”

70. That elicited the response:

“Under Georgian law failure to respect bail obligations may result in confiscating bail deposit and/or judge may apply more severe penalty than s/he would use in a similar crime case where the defendant behaved properly during trial. However, we in no case consider it prosecution for ‘failure of complying with bail order’ as a separate offence. If this is a similar case as yours then from our perspective rule of specialty is inapplicable.”

71. It is common ground that the prosecution did not include an allegation of a Bail Act offence and although s. 151A(3)(b) of the Extradition Act 2003 as amended by s. 76(3) of the Policing and Crime Act 2009 and the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2003 Act”) also allows a court to deal with offences “disclosed by the information provided” to the requested state, it is clear that the absence of any reference at all is insufficient (see R v Seddon [2009] 2 Cr App R 9 at [21] followed in R v Dey [2010] EWCA Crim 1190 by concession and R v Birch [2015] EWCA Crim 2289). Thus, it is equally common ground that the only route by which the Bail Act conviction can stand is by the operation of s. 151A(3)(c) of the 2003 Act which also includes “an offence in respect of which consent to the person being dealt with is given on behalf of the territory”.

72. Mr Hardy made it clear that it should not be thought that the failure to seek extradition for the Bail Act offence was an oversight. The problem arises because in those cases in which bail is granted by the court, CPD 14C.4 makes it clear that it is more appropriate that the court should initiate the proceedings by its own motion and CPD 14C.7 provides that proceedings under s. 6 of the Bail Act 1976 may be conducted either as a summary offence or a criminal contempt of court. The decision to prosecute is thus made after arrest and not at the time of the failure to attend whereas Article 1 of

the European Convention on Extradition requires surrender of ‘all persons against whom the competent authorities …. are proceeding for an offence’.

73. For our part, we acknowledge the difficulty which the circumstances surrounding failure to attend will generate in requests for extradition and, furthermore, that there is no failsafe, or necessarily easy, answer. It may be, however, that states from whom extradition is sought will recognise that breach of bail (which, in Georgia, appears to be an aggravating factor in relation to sentence) is a separate matter in the UK. With an explanation of the way in which breach will be considered by the court and on the basis that punishing those who fail to answer bail is a necessary component of an effective criminal justice system which releases most of those charged with crime rather than requiring their detention in custody, it may well be that s. 151A(3)(c) of the 2003 Act provides a potential answer. Thus, in every case the consent of the state from which extradition is sought should unequivocally be requested with an explanation of why this is necessary. If, in those circumstances, criminal proceedings have to be commenced (rather than proceedings by way of contempt of court), it should not be impracticable to start such proceedings at the time that extradition is sought.

74. Reverting to this case, the question can be posed in simple terms. Did the Republic of Georgia consent to the appellant being dealt with for an offence under the Bail Act? Mr Hardy argued that inferential consent can be spelt out of the exchange of correspondence which we have set out above. Mr Vullo did not accept that Mr Bagdavadze, although Head of the International Co-operation Unit at the Office of the Prosecutor General of Georgia, was proved to have the authority to consent. In any event, he submitted that a proper construction of the correspondence revealed neither request for consent nor the provision of consent.

75. In our judgment, the correspondence reveals an exchange of information about the different approaches to breach of bail, particularly in the context of specialty. At no stage does Ms Riley formally request consent to pursue the appellant for his breach of bail and nothing in Mr Bagdavadze’s response (even assuming that he has the necessary authority to consent) can be taken as consent on behalf of the Republic of Georgia. In those circumstances, there was no basis in the extradition from Georgia to pursue the appellant for his breach of bail and the proceedings against him are a nullity. His appeal in relation to this aspect of the case, therefore, succeeds.

76. It is important to underline the consequence of this finding. It is beyond argument (and is not in issue) that the appellant failed to answer to his bail both in relation to the allegation of Manslaughter (which he admitted) and in respect of the proceedings for Wounding with Intent. This conviction and sentence is quashed as a nullity but it does not necessarily mean that the appellant is free of liability for his failure to attend. By s. 151A(2) of the 2003 Act, he may be dealt with in the UK for an offence committed before his extradition not only in the circumstances set out in s. 151A(3) discussed above but also if the condition in s. 151A(4) is satisfied namely if he has returned to the territory from which he was extradited or he has been given an opportunity to leave the United Kingdom. That will probably mean waiting not only for the conclusion of the sentence but also the termination of any licence period (if a term of his licence is that he must not leave the UK). Whether the appellant may then arguably be pursued for this egregious breach of the provisions of the Bail Act is a matter for the authorities. The alternative (if there is a specialty bail offence in the requested jurisdiction) is to commence criminal proceedings for breach of bail and include that offence in the warrant.

Conclusion

77. The appeal against conviction for manslaughter is dismissed. The challenge to the conviction for breach of the Bail Act 1976 is allowed: that conviction is a nullity. Whether the appellant is further pursued for the breach is a matter for the authorities in due course.