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BILL OF ADVOCATION BY JAMES RUSSELL AGAINST HER MAJESTY'S ADVOCATE [2021] ScotHC HCJAC_24 (24 March 2021)
URL: http://www.bailii.org/scot/cases/ScotHC/2021/2021_HCJAC_24.html
Cite as:
2021 GWD 12-168,
2021 SCCR 111,
[2021] ScotHC HCJAC_24,
2021 SLT 633,
[2021] HCJAC 24
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 24
HCA/2021/000011/XC
Lord Justice Clerk
Lord Pentland
Lord Matthews
OPINION OF THE COURT
delivered by LORD PENTLAND
in
BILL OF ADVOCATION
by
JAMES RUSSELL
Complainer
against
HER MAJESTY'S ADVOCATE
Respondent
Complainer: C M Mitchell QC; Collins & Co, Edinburgh for Virgil Crawford, Stirling
Respondent: A Prentice, QC, sol adv, AD; Crown Agent
24 March 2021
Introduction
[1]
This Bill of Advocation challenges a decision made by the sheriff at Falkirk on
22 December 2020 to refuse to determine the complainer's application for review of an
earlier ruling not to allow him bail. The sheriff regarded the application as incompetent
because the Sheriff Appeal Court ("the SAC") had previously refused appeals brought by
2
the complainer against decisions not to grant him bail in the present proceedings. The Bill
raises a question as to which there appears to be some uncertainty in practice. The issue is
whether the determination of a bail appeal by the SAC has the effect that any future
applications for review of bail can only competently be entertained by that court rather than
by the sheriff at first instance.
Factual background
[2]
On 6 May 2020 the complainer appeared at Falkirk Sheriff Court on a petition alleging
contraventions of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 and
section 49(1) of the Criminal Law Consolidation (Scotland) Act 1995. He was committed for
further examination and remanded in custody, an application for bail having been refused.
At a further appearance on 13 May he was committed until liberated in due course of law.
As he was entitled to do under section 23(4) of the Criminal Procedure (Scotland) Act 1995
("the 1995 Act"), the complainer renewed his application for bail. The application was
refused. The complainer appealed against that decision to the SAC (see section 32 of the
1995 Act). On 21 May his appeal was refused.
[3]
Subsequently an indictment was served on the complainer with a first diet fixed for
1 September 2020. On that date the complainer made an oral application for review of bail
in terms of section 30 of the 1995 Act. The basis of the application was that there had been a
material change in circumstances in view of his continued remand in custody and the
inability of the court to appoint a trial diet. The application was refused. The first diet was
continued to 6 October 2020.
[4]
On 6 October 2020, the complainer made a further oral application for review of bail;
this was essentially on the same grounds as the one made (and refused) on 1 September.
3
The sheriff refused to consider the application; he took the view that it would be
incompetent for him to do so because the SAC had already determined the question of bail
in May. At the hearing the first diet was again continued, this time until 22 December 2020.
Following the hearing on 6 October, the complainer appealed to the SAC against the sheriff's
refusal to allow him bail. The SAC on 2 November 2020 refused the bail appeal.
[5]
On 22 December 2020 the case called before the sheriff at Falkirk. The First Diet was
once again adjourned, this time until 2 February 2021. The complainer applied for the
refusal of bail to be reviewed. The minute states that the sheriff ex proprio motu refused to
make a determination regarding the application for bail "being of the view that it has
previously been decided by the (SAC)".
[6]
The complainer now submits to this court that contrary to the view taken by the sheriff
his application for review of bail on 22 December 2020 was competent and the sheriff should
have addressed it on its merits.
Section 30 of the 1995 Act
[7]
Since the terms of this provision are at the heart of the case it will assist if we set out
the pertinent parts of it. Section 30 of the 1995 Act provides inter alia as follows:
(1)
This section applies where a court has refused to admit a person to bail or,
where a court has so admitted a person, the person has failed to accept the conditions
imposed or that a sum required to be deposited under section 24(6) of this Act has
not been so deposited.
...
4
(2)
A court shall, on the application of any person mentioned in subsection (1) ...
have power to review (in favour of the person) its decision as to bail, or its decision
as to the conditions imposed, if--
(a)
the circumstances of the person have changed materially; or
(b)
the person puts before the court material information which was not
available to it when its decision was made. (Emphasis added).
Sheriff's report
[8]
In his helpful report to this court the sheriff confirmed that he refused to consider the
motion for review of bail on 22 December 2020 because he considered it to be incompetent.
He explained that it is regularly submitted by agents for an accused that even where an
appeal on the question of bail has been determined by a superior court, an inferior court
could, where there has been a material change in circumstances, revisit the question of bail.
The sheriff considered that as it could only be the superior court which could be aware of
the circumstances at the time of its decision, and having made a decision based on those
circumstances, it was for the superior court only to determine if there has been a material
change in circumstances. He observed that there appeared to be a divergence of practice
within the shrieval judiciary on whether or not to consider applications for bail where an
appeal on an earlier decision on bail had already been considered by a superior court.
[9]
The sheriff referred to the following passage in Renton and Brown's Criminal Procedure
(6th ed. para 10.20.1) :
"These provisions (i.e. section 30) are without prejudice to the right of appeal to the
appropriate appeal court on bail, but once an appeal has been disposed of a lower
court will not entertain an application for review which must be made to the appeal
court"
5
[10]
The sheriff drew attention to what was said on the issue by sheriff C H Johnston QC
in HM Advocate v Jones 1964 SLT (Sh Ct) 50 at 51:
"There can be no doubt that the determination of the High Court on an appeal from a
decision of this court is a decision in the general sense ... but I do not find warrant in
... (section 37(2) of the Criminal Justice (Scotland) Act 1963 - the predecessor of
section 30 of the 1995 Act) for the view that a judge in an inferior court has power to
review either the amount of bail fixed by the Supreme Court, or, as in this case where
a material change of circumstances has taken place, the ultimate determination as to
the allowance or refusal of bail. Such a course would offend against all established
practice, and could be pursued only upon the clearest legislative warrant. This is
absent".
[11]
The sheriff considered himself to be bound by the judgment of Lord Cameron in
Ward v HM Advocate 1972 SLT Notes 22 which, in the sheriff's view, could be read in one of
two ways. The first possible interpretation was that where the appeal court had not
interfered with the decision of the inferior court, the appeal court had not made a decision in
the general sense and the inferior court's decision stood. In that case it was for the inferior
court to review its own decision. The second possible interpretation was that the appeal
court, in refusing the appeal, had made a decision in the general sense, and that decision
could only be reviewed by the appeal court.
[12]
The sheriff's view was that the second interpretation was more in line with Jones
which involved an appeal to the appeal court in respect of a decision to refuse bail in the
inferior court. The sheriff's decision having been upheld by the appeal court, it was found
that any subsequent review was a review of a decision in the general sense of the appeal
court. The sheriff added that he was not aware of Ward having any received any judicial
treatment which altered the clear view expressed in Jones.
Submissions for the complainer
6
[13]
The principal submission for the complainer was that the lower court retained the
power to consider applications for review of bail even though there had been an appeal at
some stage to the SAC. If that proposition was thought to be too wide, then the lower court
had power to consider any application for a review of bail unless the outcome of a bail
appeal had been that the SAC itself decided to allow bail.
[14]
The role of the SAC was to consider whether the sheriff had erred in the exercise of
his discretion in refusing bail. Where an appeal was refused the SAC simply confirmed that
there was no error in the sheriff's decision; it did not consider the matter afresh. The court
that refused bail for the purposes of section 30 of the 1995 Act was the Sheriff Court. As
such, the application made to the sheriff on 22 December 2020 had been competent and
should have been addressed on its merits.
[15]
In dealing with an appeal by an accused person, the SAC will either refuse the
appeal, thereby affirming the decision of the sheriff (in which case it normally states that
there was no error in the sheriff's decision) or it will grant the appeal and admit an accused
to bail. In granting such an appeal the SAC was considering matters on the basis of the same
factual background as the sheriff. It was not considering new circumstances or information.
It was considering the same information presented to the sheriff and generally referred to in
the report provided by the sheriff in the course of the appeal process. The SAC was not
considering any new facts nor was it considering a change of circumstances.
[16]
The 1995 Act does not stipulate that reviews of bail can only be undertaken by a
superior court in circumstances where a superior court has considered it. Section 30 refers
to "a court" as opposed to "the court".
[17]
A court considering whether there was a material change in circumstance could do
so by simply ascertaining the reasons minuted for the original decision, the alleged change
7
of circumstances relied upon and when the change of circumstances arose. In the event, for
example, of a prosecution being further postponed as it had had to be in the present case, it
would be obvious that this was a material change in circumstances. The SAC in resolving an
appeal essentially confirmed that the decision of the sheriff was correct and ought not be
interfered with. It affirmed the decision of the sheriff rather than reaching its own
substantive decision.
[18]
When an application is made for a review of bail, after a material change of
circumstances, the lower court is not being asked to review a decision of the superior court;
rather it is being asked to exercise its own power to consider the grant of bail in respect of
the circumstances then presented to it.
[19]
It is unnecessary, unduly burdensome and not cost-effective to require all persons
who have appealed against a bail refusal, or who seek a variation of conditions imposed on
bail, to apply to the superior court where it could be shown to the lower court that there was
a material change in circumstances. If that was not the case then it would mean that even
incidental matters such as applications for variation of bail, such as a change of address, or a
change of hours of curfew to accommodate employment, would require to go to the appeal
court in both summary and solemn matters.
Submissions for the Crown
[20]
In its answers to the Bill the Crown submitted that the order of the sheriff on
22 December 2020 was not wrongous or oppressive and as such the Bill should be refused.
[21]
The sheriff did not err in reaching the decision that it was not competent for him to
consider bail on 22 December 2020. The SAC had previously refused bail on 21 May 2020
and again on 2 November 2020. Bail having been considered and refused by the SAC, it was
8
not competent for the sheriff to review that decision. Any further bail review required to be
considered by the SAC.
[22]
The existing law did not support any inference that where a bail appeal has been
refused the sheriff can subsequently review the decision of the relevant appeal court. Jones
and Ward both vouched the proposition that a decision to refuse a bail appeal constitutes a
"decision" on bail for the purposes of any review under section 30. The circumstances of the
present case were similar to those in Jones where an accused appealed to the High Court
against a refusal of bail and his appeal was refused. The sheriff-substitute correctly held
that it was incompetent for him to review that decision and any review had to be
undertaken by the High Court. The Court in Ward confirmed that the decision in Jones had
been correct.
[23]
Notwithstanding what was said in the Crown's written submissions, in his oral
argument the advocate depute acknowledged that there would be practical disadvantages in
interpreting section 30 of the 1995 Act so as to mean that in any case where there had been
an unsuccessful bail appeal by an accused person the court of first instance was disabled
from considering an application for a review of bail where there had been a material change
of circumstances or where new information had become available. He invited us to give
guidance on the point.
Analysis and decision
[24]
In Ward there had been an earlier unsuccessful Crown appeal against the allowance
of bail. When the accused later appealed against the amount of monetary bail fixed by the
lower court Lord Cameron held that the question of the amount of bail was still within the
9
purview of the court which initially fixed the amount of the bail and whose decision in that
respect had not so far been subjected to review. His Lordship continued as follows:
"As the High Court dealt only with one particular point then, the case stands thus:
the appellant was admitted to bail by the competent court: its decision in so doing
was upheld on appeal and the initial statutory power of review of the amount of bail
fixed by that court was not affected, as no determination on that point was made by
the High Court. It therefore appears to me that it is still open to the court which
originally fixed the amount of bail to exercise the power of review in that regard
which is specifically provided for by section 37(2) of the Act of 1963 and
consequently that this appeal is incompetent as being premature."
[25]
Lord Cameron went on to observe that Jones was a somewhat unusual case. There
the sheriff-substitute, far from being invited to review his own decision, was being invited to
review a decision of the High Court. The issue in Jones was in effect whether the sheriff-
substitute had power to reverse a decision on appeal from a sheriff-substitute. His Lordship
considered that the sheriff-substitute in Jones had been correct to hold that such a review by
him was incompetent.
[26]
From this it would appear that Lord Cameron proceeded on the footing that, as a
matter of principle, a lower court could not review a substantive decision made by a higher
court. We respectfully agree. However, the ratio decidendi of Ward was that the lower court
could review the amount of bail notwithstanding the fact that there had been an
unsuccessful Crown appeal against the allowance of bail. This was because there had been
no substantive decision made by the higher court on that particular matter; thus the
operative decision on that aspect remained the ruling of the lower court. Again, we
respectfully agree. Insofar as Lord Cameron's further remarks appear to endorse the
conclusions of the sheriff-substitute in Jones, we consider that the remarks were obiter dicta.
To that extent, we respectfully have to differ.
10
[27]
In our opinion, the question in the present case is governed by the terms of section 30
of the 1995 Act. Read together, sub-sections (1) and (2) make clear that "a court" has power
to review "its decision" inter alia to refuse bail if the accused person's circumstances have
changed or the person puts before the court material information which was not available
"to it" when "its decision" was made. In circumstances where (such as in the present case)
the lower court has refused bail and the accused person has unsuccessfully appealed against
that refusal, we consider that the decision to refuse bail is and remains the decision of the
lower court. It follows that the lower court has and continues to have the power to review
its original refusal of bail, even though there has been an unsuccessful appeal brought
against the refusal of bail by the accused person. This seems to us to be the ordinary and
natural meaning of the language used in sub-sections (1) and (2) of section 30 of the 1995
Act. Looking at the matter through a slightly different lens, there is no decision by the
appellate court to refuse bail; instead there is a decision by the appellate court to refuse an
appeal against the refusal of bail. The original decision by the lower court to refuse bail has
been affirmed by the appellate court; it continues to stand and is amenable to review under
section 30 in the lower court.
[28]
This makes practical sense and appears to us to be faithful to the statutory scheme.
Otherwise, the mere fact of an unsuccessful defence appeal would mean that the appellate
court remained seised for the entire subsistence of the proceedings of all matters relative to
bail so that, for example, an application for a change of bail address or for a modification of
curfew conditions would have to be brought before the appellate court. So would an
application for a review of bail where a trial was adjourned mid-stream through no fault of
the accused. All this would be cumbersome, unduly expensive, and liable to create
avoidable delay and ultimately injustice.
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[29]
Where, on the other hand, the appellate court has sustained a defence appeal it has
thereby substituted for the first instance decision its own allowance of bail. In such
circumstances we consider that there has been a decision by the appellate court of the type
covered by sub-sections (1) and (2) of section 30 with the consequence that subsequent
applications for review of the appellate decision to allow bail, for example by varying the
conditions of bail set by the appellate court, would fall to be considered by the appellate
court rather than by the court of first instance. In such circumstances there has been a
substantive new decision by the appellate court rather than a mere affirmation of the
original decision made by the lower court.
[30]
We note that the approach we favour is consistent with what is stated in paragraph
4.1.5 of the Criminal e-Bench Book published online by the Judicial Institute for Scotland.
The paragraph says this:
"Care must also be taken where a bail review is sought following an earlier appeal
against the sheriff's decision on bail. Where the appeal did not succeed (and the
sheriff's original decision was upheld) the sheriff can, of course, determine any
subsequent application to review the original order. However, where an appeal
against the sheriff's original decision succeeded, the order admitting the accused to
bail, or remanding him in custody, is an order of the Sheriff Appeal Court and
cannot, therefore, be reviewed by the sheriff. In that situation any application for
review should be made to the Sheriff Appeal Court."
[31]
It follows that we consider the reasoning and decision of the sheriff-substitute in
Jones to have been misconceived. To the extent that Lord Cameron in Ward approved the
decision in Jones we are unable to agree with his Lordship's view. The statement in
paragraph 1.20.1 of Renton and Brown's Criminal Procedure is inaccurate in stating that "once
an appeal has been disposed of" a lower court will not entertain an application for review
which must be made the appeal court. The position is more nuanced than that; it is
correctly set out in the passage we have cited from the Criminal e-Bench Book.
12
[32]
It follows also that the reasoning and decision of the sheriff on 22 December 2020 in
refusing to entertain the complainer's application for a review of bail was erroneous. The
application was competent and should have been addressed on its merits. We shall
accordingly pass the Bill and remit to the sheriff to proceed as accords.
