Mm V. Procurator Fiscal, Ayr
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2009] HCJ 3 |
| Court | High Court of Justiciary |
| Date | 08 September 2009 |
| Published date | 08 September 2009 |
| HIGH COURT OF JUSTICIARY | |
| [2009] HCJ 3 OPINION OF LORD BRODIE in appeal in terms of section 32 of the Criminal Procedure (Scotland) Act 1995 against refusal of bail at the instance of MM against PROCURATOR FISCAL, AYR _______ |
Appellant and Minuter: Shead; Mason; Patterson Bell, Solicitors.
Respondent: Prentice QC AD; Crown Agent
8 September 2009
Introduction and procedural history
[1] This is an appeal in terms of section 32 of the Criminal Procedure (Scotland) Act against a refusal of bail by the sheriff. It was agreed between parties that the sheriff had misdirected herself by accepting a defence submission to the effect that, having regard to section 23D of the Act, in order to be admitted to bail the appellant had to persuade the court that exceptional circumstances pertained. The matter being at large given the sheriff's error, having heard argument, I admitted the appellant to bail. In deference to the submissions that I heard as to the proper construction of section 23D, I propose to set out my conclusions on the question of construction as well as the basis upon which I determined the merits of the appeal.
[2] The appellant is 42 years of age. On 7 July 2009 she appeared on petition in the Sheriff Court at Ayr. The charge in the petition was one of assault on the appellant's daughter by seizing her by the hair, punching her to the head, kicking her to the body and striking her with an unknown object to her severe injury.
[3] The appellant applied to the sheriff for bail. The application was opposed by the Crown, as appears from the sheriff's report, on the ground that there was a substantial risk that, if granted bail, the appellant would commit further offences. A schedule of previous convictions was submitted to the sheriff. This disclosed that the appellant had been convicted on 32 separate occasions. The first conviction was recorded on 20 September 1988. The most recent conviction was recorded on 28 February 2008. The convictions included that recorded on 3 November 1988 in solemn proceedings in respect of five charges: assault and robbery, fraud, contravention of section 41 (1) (a) of the Police (Scotland) Act 1967, breach of the peace and contravention of section 3 (1) (b) of the Bail etc (Scotland) Act 1980 (breach of a bail condition).
[4] The sheriff refused bail. She records in her report that the solicitor appearing for the appellant accepted that having regard to the charge in the petition, the conviction recorded on 3 November 1988 and the terms of section 23D of the Criminal Procedure (Scotland) Act 1995 it was for the appellant to persuade the court that exceptional circumstances pertained. The sheriff had not been so satisfied. She further founded her decision on the appellant's considerable history of offending, the appellant having previously breached court orders, the appellant having been subject to a period of probation which came to an end as recently as January 2009, the seriousness of the charge in the petition, and the possible outcome in the event of the appellant being convicted.
[5] The appellant marked an appeal against refusal of bail on 9 July 2009 but this was not drawn to the attention of the sheriff, who had been on leave, until 20 July. The appeal had meantime called on 15 July and been continued until 16 and then to 21 July, by which time the sheriff's report was available. However, on the afternoon of 20 July two devolution minutes were lodged with the Justiciary Office in relation to the appeal, one asserting that it would be ultra vires of the Lord Advocate to continue to oppose the grant of bail having regard to the terms of articles 5 and 6 (2) of the European Convention on Human Rights and section 57(2) of the Scotland Act 1998, the other asserting, under reference to section 101 of the 1998 Act, that section 23D which had been inserted into the 1995 Act, together with sections 23B and 23C, by section 1 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007, could not be read sufficiently narrowly so as to bring enactment of the provision within the competence of the Scottish Parliament.
[6] The appeal called before the bail judge on 21 July 2009. Having heard parties the bail judge continued it for seven days in order to allow intimation of the devolution minutes to the Advocate General for Scotland.
[7] The continued appeal came before me for hearing on 28 July 2009. Mr Shead and Mr Mason represented the appellant. The Crown was represented by the Advocate depute. The Advocate General had not intervened.
[8] Mr Shead assured me repeatedly that his wish was to be of assistance to the court. He would have been content to remove the burden of decision-making from me entirely, at least insofar as it related to matters of law, in that he reminded me of the terms of paragraph 9 of Schedule 6 to the Scotland Act 1998 which provides that a court, other than any court consisting of two or more judges of the High Court of Justiciary, may refer any devolution issue which arises in criminal proceedings before it to the High Court of Justiciary. A devolution issue is defined in paragraph 1 of Schedule 6 as including a question as to whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament.
[9] I was not persuaded that this was a case for an immediate reference. Any need for a paragraph 9 reference could only arise once there appeared to be a question justifying a reference to a larger court. That needed to be explored. Moreover, Mr Shead indicated that he anticipated that in fact there might not be much distance between him and the Advocate depute as to how the relevant legislation should be construed (as proved to be the case). For his part, the Advocate depute intimated that it was his position that there was no incompatibility as between section 23D and the Convention. If, on a plain meaning, the section was incompatible with the Convention then the provision could be "read down" as required by section 3 of the Human Rights Act. The Advocate depute urged me to proceed to hear the appeal. I acceded to that suggestion. I first heard both parties on the proper interpretation of section 23D. I then heard submissions on the merits of the application for bail.
Statutory and Convention framework
[10] Sections 23B to 23D of the Criminal Procedure (Scotland) Act 1995 (as amended) provide, inter alia:
"23B (1) Bail is to be granted to an accused person -
(a) except where -
(i) by reference to section 23C of this Act; and
(ii) having regard to the public interest,
there is good reason for refusing bail;
(b) subject to section 23D of this Act.
(2) In determining a question of bail in accordance with subsection (1) above, the court is to consider the extent to which the public interest could, if bail were granted, be safeguarded by the imposition of bail conditions.
(3) Reference in subsections (1)(a)(ii) and (2) above to the public interest includes (without prejudice to the generality of the public interest) reference to the interests of public safety.
(4) The court must (without prejudice to any other right of the parties to be heard) give the prosecutor and the accused person an opportunity to make submissions in relation to a question of bail.
(5) The attitude of the prosecutor towards a question of bail (including as to bail conditions) does not restrict the court's exercise of its discretion in determining the question in accordance with subsection (1) above.
(6) For the purpose of so determining a question of bail (including as to bail conditions), the court may request the prosecutor or the accused person's solicitor or counsel to provide it with information relevant to the question.
(7) However, whether that party gives the court opinion as to any risk of something occurring (or any likelihood of something not occurring) is a matter for that party to decide
23C - (1) In any proceedings in which a person is accused of an offence, the following are grounds on which it may be determined that there is good reason for refusing bail -
(a) any substantial risk that the person might if granted bail -
(i) abscond; or
(ii) fail to appear at a diet of the court as required;
(b) any substantial risk of the person committing further offences if granted bail;
(c) any substantial risk that the person might if granted bail -
(i) interfere with witnesses; or
(ii) otherwise obstruct the course of justice,
in relation to himself or any other person;
(d) any other substantial factor which appears to the court to justify keeping the person in custody.
(2) In assessing the grounds specified in subsection (1) above, the court must have regard to all material considerations including (in so far as relevant in the circumstances of the case) the following examples -
(a) the -
(i) nature (including level of seriousness) of the offences before the court;
(ii) probable disposal of the case if the person were convicted of the offences;
(b) whether the person was subject to a bail order when the offences are alleged to have been committed;
(c) whether the offences before the court are alleged to have been committed -
(i) while the person was subject to another court order;
(ii) while the person was on release on licence or parole;
(iii) during a period for which sentence of the person was deferred;
(d) the character and antecedents of the person, in particular -
(i) the nature of any previous convictions of the person (including convictions outwith Scotland);
(ii) whether the person has previously contravened a bail order or other court order (by committing an offence or otherwise);
(iii) whether the person has previously breached the terms of any release on licence or parole (by committing an offence or otherwise);
(iv) whether the person is serving or recently has served a sentence of imprisonment in connection with a matter referred to in...
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