James Russell v. Her Majesty’s Advocate [2021] HCJAC 24

Bill of Advocation:- On 22 December 2020, at Falkirk Sheriff Court, the sheriff refused to determine the complainer’s application for a bail review of an earlier ruling not to allow him bail on the basis that he regarded the application as incompetent because the Sheriff Appeal Court had previously refused appeals by the complainer against decisions not to grant him bail. Here the complainer challenged that decision by way of Bill of Advocation, the issue for the court being whether the determination of a bail appeal by the SAC required subsequent applications for review of bail to be considered by the SAC rather than the first instance court. The circumstances were that on 6 May 2020 the complainer appeared at Falkirk Sheriff Court on petition and was committed for further examination and remanded in custody, an application for bail having been refused. On 13 May he was fully committed until liberated in due course of law, a further application for bail having been refused. The complainer appealed against that decision to the SAC. On 21 May his appeal was refused. Thereafter, an indictment was served and after sundry procedure on 22 December 2020 the case called before the sheriff at Falkirk when the complainer applied for the refusal of bail to be reviewed. The court’s minute stated 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”. In the Bill presented to the high court it was contended that the application for review of bail before the sheriff on 22 December was competent and the sheriff should have considered it on its merits. It was submitted on behalf of the complainer that the lower court retained the power to consider applications for review of bail even where there had been an appeal to the SAC. It was submitted that the role of the SAC was to consider whether the sheriff had erred in the exercise of his discretion in refusing bail and where an appeal was refused the SAC was confirming that there was no error in the sheriff’s decision and it was not the case that the SAC was considering the merits of bail afresh. It was further submitted that in circumstances where the SAC had previously refused a bail appeal, an application for a review of bail following a material change of circumstances to be made to the superior court would be overly cumbersome and inefficient. On behalf of the Crown it was submitted that the order of the sheriff on 22 December 2020 was not wrongous or oppressive and the Bill should be refused it being contended that bail having been considered and refused by the SAC it was therefore incompetent for the sheriff to review that decision with any further bail review requiring to be heard by the SAC. Here the court passed the Bill and remitted the case to the sheriff to proceed as accords. The court considered that sub-sections (1) and (2) of section 30 of the 1995 Act when read together, 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. The court considered that the ordinary and natural meaning of section 30 sub-sections (1) and (2) were that where the lower court has refused bail and the person has unsuccessfully appealed against that refusal, that decision to refuse bail is and remains the decision of the lower court. The court went on to state that where there is a successful defence appeal, in other words, where 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, the appellate court has substituted the first instance decision with its own and any subsequent review of bail would require to be considered by the appellate court rather than the court at first instance. In the circumstances here the court considered that the refusal of the sheriff to entertain the complainer’s application for bail on 22 December 2020 was erroneous.