A.A. v. Her Majesty’s Advocate [2016] HCJAC 17

Bail appeal:- On 31 August 2015, the appellant, a foreign national who entered the United Kingdom illegally in July 2015, appeared on petition on a charge of rape. He was committed for further examination and bail was refused due to concerns about him absconding. The appellant was fully committed on 8 September when bail was refused on the same grounds as before. At that time no appeal was taken against the refusals of bail in the sheriff appeal court. The appellant was indicted to a preliminary hearing in the high court on 22 December 2015, on a charge of rape when a trial diet was fixed for 1 July 2016, with the 140 day time bar extended to accommodate that. The extension was not opposed by the appellant, however, it was stated that it was his intention to seek a review of bail in the sheriff court. On 31 December 2015 the appellant purported to appeal the original decision of the sheriff to refuse bail at full committal. 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 in which it was contended that the date of the trial diet and the fact that the appellant would have been in custody for 10 months prior to that trial was a relevant factor. The petition did not mention the sheriff appeal court decision. On 22 January 2016 a Note of Appeal to the high court was presented which purported to be an appeal from the sheriff appeal court. Here the court made clear that it was not appropriate to appeal to the sheriff court once the appellant had appeared at a preliminary hearing. Where an accused is cited to attend a preliminary hearing by the service of an indictment once the preliminary hearing has called it is the high court that decides any application for bail. Once the case has called in the high court it is not appropriate to revert to the sheriff court and any application for bail ought to be made before the judge at the preliminary hearing who will have all the relevant information for the issue to be addressed at that stage.