J.D. and B.K. v. Her Majesty’s Advocate [2020] HCJAC 15

Appeal against the refusal of bail:- On 14 November 2019, at Glasgow High Court, the appellants were indicted to a Preliminary Hearing in relation to a number of charges including inter alia a charge of assault and robbery. Both appellants appeared from custody, having been remanded in custody on 22 July 2019 and subsequently fully committed until liberated in due course of law. In terms of section 65(i) of the Criminal Procedure (Scotland) Act 1995 the 110 day period was due to expire on 18 November 2019. At the Preliminary Hearing a trial diet was assigned for 25 March 2020 with the 140 day period under section 65(4)(ii) of the 1995 Act being extended unopposed to 2 April 2020. On 27 March 2020 the trial diet was postponed as a consequence of the COVID 19 pandemic there being no opposition to that and a new Preliminary Hearing was assigned for 19 June 2020 and the 140 day time limit was extended to 19 June 2020 (the extension of time was appealed, however, that has been superseded by the Coronavirus (Scotland) Bill 2020 (Sch 4 Part 4 para 10(3)). On 27 March 2020, the appellants moved for bail on the basis that both had been in custody on remand for a significant period and were willing to obtemper whatever additional special bail conditions the court thought appropriate to impose. The Crown opposed the appellants’ motions for bail given:- (1) the nature of the charges; (2) the appellants’ history of offending; and (3) the risk that they might interfere with witnesses. The judge at the trial diet refused the appellants’ motions for bail citing the serious nature of the charges, the likelihood of a custodial disposal if they were convicted, the nature of their criminal records which disclosed consistent and repeated disregard for court orders and there was a substantial risk that the appellants would fail to comply with whatever bail conditions were imposed, the court concluding that the public interest would be best served by bail being refused. The appellants appealed against that refusal. It was submitted on behalf of both appellants that the delay in bringing the case to trial was so significant (333 days in custody by 19 June 2020) that the refusal of bail was an error in the exercise of the judge’s discretion and that both appellants retained the presumption of innocence and additional special bail conditions including inter alia a curfew could be imposed that would protect both the public interest and the administration of justice in these exceptional circumstances. The Crown submitted in relation to JD that the judge had not erred in the exercise of his discretion in refusing bail and had been entitled, in considering his record of previous offending along with the nature of the current offences, to take the view that there was a substantial risk of re-offending and that the appellant would not obtemper conditions of bail. In relation to BK it was submitted on behalf of the Crown that his record of previous offending along with the nature of the current offences entitled the judge to refuse bail. It was submitted that section 23D of the Criminal Procedure (Scotland) Act 1995 applied to BK and, as such, exceptional circumstances were needed before bail could be granted. Here the court recognised that in the present COVID 19 crisis where it is not known when an accused person is likely to be tried the length of time a person is likely to remain on remand is a factor in deciding whether to grant bail and that factor must now be given greater weight than it was prior to the crisis. The court stated that:- “In the ordinary case, bail must be granted except where, having regard to the public interest, notably public safety, there is a good reason to refuse bail. The court must consider the extent to which the public interest could be protected by the use of bail conditions...”. The court noted that, as in the present case, where an accused is charged with a violent offence and has a previous conviction for violence on indictment (the provision also applying to sexual and domestic abuse offences along with drug trafficking), he is only to be granted bail in exceptional circumstances (section 23D of the 1995 Act). The court stated that the question is whether an accused, if at liberty, will pose a substantial risk of committing further offences in particular violent offences. The court reiterated that if there is no such risk, an accused should be granted bail. Where section 23D applies exceptional circumstances will exist if there is no such risk. In assessing risk, the court must have regard to the feasibility of imposing conditions, including a curfew, which would adequately protect public safety. The court noted that in general terms bail should be refused where the accused is charged with a serious offence and if convicted is likely to receive a custodial sentence in excess of two years and the nature of his record, or other circumstances, indicate that, if an accused was at liberty, he is likely to commit further violent offences and/or is likely to attempt to obstruct justice. The court reiterated that these are matters best suited for the judge at first instance to consider which decision ought not be interfered with unless that discretion has been exercised unreasonably. In the circumstances the appellants’ appeals against the refusal of bail were refused.