Now, anyone charged with a second offence of murder, rape or manslaughter must be held in custody unless there are exceptional circumstances.
But the commission argues this is a potential breach of the European Convention on Human Rights, which gives all defendants the right to bail and which comes into force in England in October next year. The commission's proposed change would make clear to magistrates and judges that they can use their discretion to release alleged serial murderers or rapists.
The law should also be changed so that a previous conviction is not reason in itself to refuse bail, the commission says. "It [the English law] is liable to be misunderstood and applied in a way which would violate the European Convention on Human Rights." English courts regularly interpret the law as granting no right to bail for murderers and rapists charged with the same offence for the second time. The commission warns that serial offenders who can prove this may have a claim in damages.
Peter Gammon, president of the Chief Superintendents' Association, said he was shocked by the thought that the change might make it easier for serial killers or rapists to be released. "Surely the first priorities must be the protection of the public and the prevention of crime," he said. "I can think of only very rare cases where someone accused for the second time of one these crimes should be released on bail."
In its paper the Law Commission gave examples of where a multiple offender might be released before trial. One is a doctor who has been imprisoned for negligent manslaughter of a patient, but was allowed to continue to practise after his release from prison. A court that did not think it had a discretion would be compelled to refuse bail even if it thought there was no danger of the doctor reoffending, the commission says.
The commission said there was a danger that making an exception to the general right of bail in "murder, rape or manslaughter" cases flouted the principle of a presumption of innocence.Reuse content