Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 17

APP/2016/3035

Lord Justice General

Lord Brodie

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

BAIL APPEAL

by

AA

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  MacIntosh; John Pryde & Co (for Turnbull McCarron, Glasgow)

Respondent: Prentice QC AD; the Crown Agent

12 February 2016

[1]        Section 72A of the Criminal Procedure (Scotland) Act 1995 provides that, where the prosecutor has made an application to extend the 140 day period and the court has refused that motion, the accused is entitled to bail.  Where a trial diet is fixed, and the accused is already on bail, the conditions of that bail can be reviewed.  The section does not deal with a situation where an extension to the 140 day period is granted and the accused is not on bail.

[2]        Section 30 provides that a court has the power to review bail, if the circumstances of the accused have changed materially, or the person puts before the court material information which was not available to it when the decision was made.  Section 32 provides for an appeal to the appropriate Appeal Court against a refusal of bail.  The appropriate court will be the High Court, where bail has been refused by a judge of that court, or the Sheriff Appeal Court, where the refusal has been by a sheriff. 

[3]        Section 23 provides a general jurisdiction to the sheriff to admit accused persons to bail.  Section 24 refers to the right of the High Court to admit persons to bail.  This is a re-enactment of section 8 of the Bail Act 1888.  It preserves the right of the High Court to grant bail, originally specified in the now repealed 1701 Act.  It remains clear that, where the High Court is seized of a case, such as where an indictment calls at a Preliminary Hearing, it has the power to hear and determine applications for bail. 

[4]        The procedure in this case was that the appellant appeared on petition, along with two co-accused on 31 August 2015, on a charge of rape.  He was committed for further examination and bail was refused.  The reasons minuted were that there was a risk of absconding and of failure to appear.  The appellant is a foreign national, who entered the United Kingdom illegally with no documentation about a month earlier.  He had no ties with the United Kingdom.  The appellant was fully committed on 8 September.  Bail was again refused for the same reasons.  No appeals were taken against the refusals of bail at the time.  Such appeals would, in normal course, have been heard by the Sheriff Appeal Court.

[5]        The appellant was indicted, along with his co-accused, to a Preliminary Hearing in the High Court on 22 December 2015, on a charge of repeated rape.  A trial diet was fixed for 1 July 2016, with the 140 day time bar extended to accommodate that diet.  The extension was not opposed by the appellant, although he appears to have stated to the court that it was his intention to seek a review of bail in the sheriff court.  There is no record of any application for bail being made at the Preliminary Hearing.

[6]        On 31 December 2015, the appellant purported to appeal the original decision of the sheriff to refuse bail at full committal, over 3 months previously.  That appeal went to the Sheriff Appeal Court and was refused on 8 January 2016.  On 19 January 2016, the appellant lodged a petition for bail to the High Court, praying as a relevant circumstance the date of the trial diet and the fact that the appellant would have been in custody for 10 months prior to that trial.  This petition did not mention the Sheriff Appeal Court process and decision.  On 22 January, a Note of Appeal to the High Court was presented.  This does mention the Sheriff Appeal Court decision and purports to be an appeal from it. 

[7]        Where an indictment has been served, citing an accused to a Preliminary Hearing in the High Court, once that diet has called, the appropriate court to decide any applications for bail is that court.  That is because it is inevitable that that court will be apprised of all the relevant information relative to the progress of the case.  It is therefore not appropriate to revert to the sheriff once the case has called in the High Court.  It follows that the procedure to appeal the original sheriff’s decision on bail, after the calling of the Preliminary Hearing, was inappropriate, as was also the procedure which has followed thereon.  If an accused person wishes to seek bail upon a trial diet being fixed at a Preliminary Hearing, he should seek that from the Preliminary Hearing judge.