Scottish Human Rights Law Group

Article 5(1) – the bases on which liberty might be denied

Article 5(1)(a) – the prevention of flight after committing an offence

A Guatemalan national, while being detained under the Immigration Act 1971, was charged with importing drugs. He applied for and was granted bail by the sheriff but that was later denied due to the seriousness of the criminal charge against him.  

He sought review of the refusal of bail initially on the basis that he claimed that his being in custody adversely affected the preparation of his defence contrary to in breach of Art. 6(3)(b).  It was then argued that he had been refused bail simply on grounds of his nationality 1950 Art. Contrary to Articles 5(3) and 6(1) when read in the light of Article 14.   In refusing the petition and dismissing the arguments that the petitioner’s Convention rights were being breach the court affirmed that while the application for bail was competently made, the gravity of the charge was properly taken into account as a factor when considering bail, since that would affect sentencing and, as such, the likelihood of the accused’s reluctance to face trial.   Thus his continued detention was lawful for the purposes of Article 5(1)(c).

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