PROCEDURE

The case originated in an application (no. 1271/05) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Ms Lesley Ann Gault (“the applicant”), on 5 January 2005. Having originally been designated by the initial G., the applicant subsequently agreed to the disclosure of her name.

The applicant, who had been granted legal aid, was represented by Mr T. Caher, a solicitor practising in Lisburn, Northern Ireland, assisted Mr J. McCrudden QC and Mr M. Mulholland, counsel. The United Kingdom Government (“the Government”) were represented by their Agent, Ms K. Jones of the Foreign and Commonwealth Office.

The applicant alleged that the decision to place her in detention on remand pending her third trial had not been supported by relevant and sufficient reasons. She relied on Article 5 §§ 1 (c) and 3 and Article 8 of the Convention.

On 6 February 2006 the President of the Chamber of the Fourth Section of the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility.

The applicant and the Government each filed written observations (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1967 and lives in Lisburn, Northern Ireland.

On 19 May 2000 the applicant’s husband was murdered. On 18 August 2001 the applicant was charged with aiding and abetting Mr G, her former lover, to murder her husband. She was released on bail pending trial to her home where she lived with her three children, who were 6 years of age at the time (triplets). Neither the police nor the prosecution objected. The trial judge permitted the applicant to remain on bail throughout the trial: no objection was formulated by the prosecution. She continued to reside at home with her children.

On 20 November 2002 the jury unanimously convicted Mr G of murder but failed to agree on a verdict on the applicant. The trial judge granted her bail pending the prosecution’s decision whether to prosecute her further. The prosecution did not object to bail and she remained at home with her children. Subsequently, the prosecution elected to prosecute the applicant again but did not object to her remaining on bail.

The applicant’s second trial began on 17 February 2003. The second trial judge also allowed bail, no objection being made by the prosecution. On 20 March 2003 she was, by a majority verdict of the jury, convicted of murder. The trial judge sentenced her to life imprisonment and committed her to custody. The period of imprisonment that the applicant had to serve before she could have been considered for release was set at fifteen years. Leave to appeal was rejected by a single judge of the Court of Appeal of Northern Ireland.

On 9 July 2004 the full Court of Appeal allowed her appeal. It found that the second trial judge had misdirected the jury as to the state of mind necessary to make the applicant an accessory to murder. While the prosecution case had been that the applicant had facilitated the killing of her husband by Mr G knowing that he intended to kill and intending that Mr G should do so, that was not the matter put by the second trial judge to the jury: that trial judge had directed the jury as follows: “If you’re satisfied beyond reasonable doubt that [the applicant] participated in a joint venture with [Mr G], realising that in the course of that venture [Mr G] might use force with intent to kill or to cause really serious injury to her husband and Mr G did so, then she would be guilty of murder.” The Court of Appeal found that that ruling effectively opened to the jury the possibility of convicting the applicant for murder on the basis of matters not part of the prosecution case and not canvassed during trial and, notably, on the basis that the applicant had engineered a meeting between her husband and Mr G without any firm intention that he be killed. The Court of Appeal quashed her conviction and, having heard further submissions, ordered that she be returned upon a fresh indictment for murder before the Crown Court.

The applicant applied for bail and the prosecution did not object. The summary form of order of the Court of Appeal of 9 July 2004 indicates that her application was refused and that she was to remain in detention until retrial. In her application form and subsequent observations the applicant stated that there were two grounds for that refusal: she had been convicted by a jury of murder on 20 March 2003 and any retrial would take place soon. In correspondence, she submits that the reasoning of the appeal court was not committed to writing, that her representative’s contemporaneous note was mislaid in the Taxing Master’s office but that the Belfast Telegraph newspaper had accurately reported the reasons for refusing her bail request. The relevant extract reads as follows: “Refusing the application the Lord Chief Justice said he had taken her circumstances into consideration. But he said that the situation was now different in that she had been found guilty by the majority verdict of the jury.” In their written observations, the Government submitted a copy of the contemporaneous notes of the senior law clerk present at the hearing. The final paragraph of her notes reads as follows: “ CS [Counsel for the prosecution]: no opposition to bail – did attend. LCJ [Lord Chief Justice]: on bail before trial, course of trial, honoured all condits [conditions] prosecution doesn’t oppose. Material difference here – found guilty by jury quashing material irregularity on charge. Doesn’t sound directly an issue on bail. Be a prompt retrial. Refused. In her application to the Court of Appeal for leave to appeal against the refusal of bail to the House of Lords, the applicant argued, inter alia, that the reasons for refusing bail on 9 July 2004 were not relevant, sufficient or lawful within the meaning of Article 5 of the Convention. On 22 July 2004 the Court of Appeal refused leave.

The applicant remained in custody until 6 September 2004 when she was granted bail by the third trial judge, during which period of time her children were cared for by her elderly and infirm parents.

She remained on bail throughout the third trial. On 8 October 2004 she was acquitted and released.