Criminal Appeal Court confirms correct forum for bail applications

Once a diet has called when an indictment has been served citing an accused to a preliminary hearing in the High Court, the appropriate court to decide any applications for bail is that court and not the sheriff court, appeal judges have stated.

The Criminal Appeal Court said it was “inappropriate” to revert to a sheriff once the case has called in the High Court.

The circumstances arose in a bail appeal by an accused, “AA”, who appeared on petition on a charge of rape along with two co-accused in August 2015.

The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Drummmond Young, heard that the accused was committed for further examination and bail was refused due to what was minuted as “a risk of absconding and of failure to appear”.

AA, a foreign national who entered the United Kingdom illegally with no documentation about a month earlier and who had no ties with the UK, was fully committed on 8 September.

Bail was again refused for the same reasons, but no appeals were taken against the refusals of bail at the time.

The accused was then indicted, along with his co-accused, to a preliminary hearing in the High Court on 22 December 2015, on a charge of repeated rape, and a trial diet was fixed for 1 July 2016.

The 140-day time bar was extended, unopposed, although the accused appeared to have stated to the court that it was his intention to seek a review of bail in the sheriff court, but there was no application for bail being made at the preliminary hearing.

Then on 31 December 2015 the appellant purported to appeal the original decision of the sheriff to refuse bail at full committal over three months previously.

The appeal went to the Sheriff Appeal Court, but was refused on 8 January 2016 and three days later the appellant lodged a petition for bail to the High Court, arguing as a relevant circumstance the date of the trial diet and the fact that he would have been in custody for 10 months prior to that trial.

However, the petition did not mention the Sheriff Appeal Court process or decision, nor did the note of appeal which was presented to the High Court on 22 January, which purported to be an appeal from it.

The appeal judges observed that this procedure was “inappropriate”.

Delivering the opinion of the court, the Lord Justice General said: “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.”