Scottish High Court of Justiciary Decisons

PETITION TO THE NOBILE OFFICIUM BY GEOFFREY KEITH BURN and IN REFERRAL UNDER R 40.7 OF THE ACT OF ADJOURNAL (DEV ISSUE RULES) 1999 FOR CONSIDERATION BY THE HIGH COURT OF JUSTICIARY by PATRICK McQUILKEN v. PROCURATOR FISCAL, GLASGOW [2000] ScotHC 34 (16th March, 2000)

[1] We have before us a petition to the nobile officium in the name of Geoffrey Keith Burn and a reference from the Sheriff Court at Glasgow under Rule 40.5 of the Act of Adjournal (Criminal Procedure Rules) 1996 in proceedings against Patrick McQuilken. They both raise the same point about the practice, in relation to bail at the stage of committal for further examination, adopted by sheriffs in the light of the decision of Lord McCluskey in Boyle v. H. M. Advocate 1995 S.L.T. 162.

[2] Burn appeared on petition at the Sheriff Court at Selkirk on 29 February 2000 charged with contraventions of Section 103(1)(b) and 143(1) and (2) of the Road Traffic Act 1988. The agent for Burn applied for bail but the procurator fiscal depute opposed the application and indicated that further enquiries required to be made regarding the charges and that they necessitated Burn being remanded in custody. The procurator fiscal depute did not specify the nature of those further enquiries, but applying the approach laid down in Boyle, the Sheriff refused the application and, on the motion of the procurator fiscal depute, granted warrant to imprison Burn in the Prison of Edinburgh, therein to be detained for further examination. In his petition to the nobile officium Burn argues inter alia that, by successfully opposing bail without supplying the Sheriff with information as to the nature of any further enquiries or as to why they necessitated keeping him in custody, the procurator fiscal in effect deprived the Sheriff of any power to reach an independent view on Burn's application. In these circumstances the Lord Advocate's representative had acted in a way which was incompatible with Burn's rights under Article 5 of the European Convention on Human Rights and Fundamental Freedoms which provides inter alia:

1. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
2. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

[3] On 28 February 2000 McQuilken appeared on petition at Glasgow Sheriff Court charged with breach of the peace, two charges of assault and contraventions of Sections 47(1) and 52(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. His agent made an application for bail which the procurator fiscal depute opposed on the basis that the Crown had further enquiries to carry out and that the release of McQuilken on bail at that stage would prejudice the further investigation of the case in the public interest. The agent for McQuilken then indicated that the nature of the Crown's opposition gave rise to a devolution issue within the meaning of Schedule 6 to the Scotland Act 1998 and the Sheriff continued the proceedings until the following day to allow the agent to lodge and intimate the necessary minute in accordance with the relevant rules in the Act of Adjournal. At the continued hearing the following day the Sheriff refused the motion for bail and held that he could not require the Crown to specify the nature of the further enquiries which they wished to undertake, nor could he look behind the Crown's assertion that the further enquiries necessitated McQuilken's being remanded in custody. It was in these circumstances that, without deciding the application, the Sheriff referred the question to this court. Before the hearing of the reference took place, on 3 March 2000 the sheriff fully committed McQuilken and released him on bail but, because of the general importance of the point to be argued, it was decided to proceed with the reference. In the result Mr. Ogg, Q.C., who appeared for Burn and McQuilken, did not ask the court to make any operative order in either of the cases. Both he and the Advocate Depute were content that the court should issue an opinion indicating the approach which should be adopted in applications for bail before full committal.

[4] We understand that, before the decision in Boyle there was no uniform practice as to the handling of such applications but that it was by no means unusual for sheriffs to ask the procurator fiscal why the Crown wished the particular accused to be kept in custody and, if the procurator fiscal was not able to give an explanation, many sheriffs would refuse the Crown motion and release the accused on bail. That situation changed with the decision in Boyle where Lord McCluskey observed (1995 S.L.T. at p. 163):

[5] In the hearing before us there was essentially no dispute between counsel for Burn and McQuilken and the Advocate Depute as to the approach which required to be adopted to this particular matter in the light of Article 5 of the Convention and the case law of the European Court of Human Rights. The established view of the Court is to be found in a number of judgments, including T.W. v. Malta and Aquilina v. Malta (1999) 29 E.H.R.R. 185. For present purposes it is sufficient to notice what the Court says in paragraph 41 of its judgment:

Applying what the Court says, we are satisfied that the law as laid down by Lord McCluskey in Boyle does not meet the requirements of Article 5(3) since the Sheriff is directed not to seek to go behind any statement by the procurator fiscal that the Crown are continuing to make enquiries and that it is necessary for the proper pursuit of these enquiries in the public interest that the accused should remain in custody at that stage. In effect the law as there stated enjoins the sheriff not to consider the merits of the accused's continued detention for himself but to defer to the statement by the procurator fiscal. Now that the Convention has entered our law, we are satisfied that the approach laid down in Boyle can no longer be regarded as sound and that the decision must therefore be overruled.

[6] In future the Crown must provide sufficient general information relating to the particular case to allow the sheriff to consider the merits of their motion that the accused should be committed to prison and detained there for further examination. What will be required will depend on the facts of the particular case and for that reason we cannot lay down any hard-and-fast rule. We are satisfied, however, that it will not be necessary for the Crown to disclose operational details. On the other hand, where, for example, the Crown oppose bail on the ground of the risk that the accused would interfere with witnesses, the procurator fiscal depute should be in a position to explain the basis for that fear. The same would apply where opposition is based on a fear that the accused would interfere with a possible search of premises which the police wished to carry out. It follows also, as the Advocate Depute pointed out, that where opposition to bail is based on some such ground and the relevant enquiry is completed before the date for further examination, the Crown will wish to bring the matter back before the sheriff so that he can, if so advised, order the accused's release from custody.

[7] In the particular circumstances of these cases, which we have explained, we make no further order.