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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> MA. R. v. Procurator Fiscal [2005] ScotCS HCJ_03(2) (04 November 2005) URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJ_03(2).html Cite as: [2005] ScotCS HCJ_03(2), [2005] ScotCS HCJ_3(2) |
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HIGH COURT OF JUSTICIARY OPINION by THE RIGHT HONOURABLE THE LORD HARDIE in BAIL APPEAL by M.A.R. Appellant; against CATHERINE DYER, PROCURATOR FISCAL GLASGOW Respondent: ___________ |
Appellant: Mackintosh, Advocate; Aitken Nairn (Gallen & Co., Solicitors, Glasgow)
Respondent: Brown, A.D.; Crown Agent
4 November 2005
[1] The appellant was charged on a petition at the instance of the respondent that (a) between 1 May 2005 and 8 October 2005 he assaulted a woman with intent to rape her and (b) on 8 October 2005 he raped a 15 year old girl. On 18 October 2005 an application for bail on behalf of the appellant was refused, despite the fact that it was not opposed by the respondent, and a warrant was granted for his imprisonment and detention until liberated in due course of law. [2] The appellant appealed against the refusal of bail by the sheriff. That appeal was not opposed by the Advocate Depute. In that situation I was prepared to allow the appeal without hearing any submissions. However, the Advocate Depute indicated that he wished to address me. He informed me that this was the second occasion within a matter of weeks in which the same sheriff had refused to follow the proper approach in regard to the granting of unopposed applications for bail. In these circumstances the Advocate Depute invited me to take the opportunity of reiterating the law on the matter and reminding sheriffs of their obligation to grant bail when it was not opposed by the Crown. In the present case the sheriff had been referred to the Opinion of Lord Wylie in G v Spiers 1988 S.C.C.R. 517 and to the Opinion of Lord Brand in Maxwell & Sillars v McGlennan 1989 S.C.C.R. 117. Notwithstanding these authorities the sheriff refused to grant the unopposed application for bail. [3] The present climate of public hostility to the grant of bail in cases such as the present does not justify the sheriff's refusal to follow the authorities to which he was referred. In the absence of any opposition by the Crown to the granting of bail the sheriff was not in a position to form a judgment. In Directors of City of Glasgow Bank v HMA (1878) 6 R (J) 4 at p.8, Lord Justice General Inglis observed:"The petitioners further appeal to the discretion of the Court to liberate them on such bail as may be sufficient to ensure their appearance hereafter to answer the charges made against them. That we possess such discretionary power cannot be disputed. But in prosecutions conducted by the public prosecutor the discretion is vested, in the first instance at least, in the Lord Advocate; and unless it can be alleged that the Lord Advocate has refused bail, not for the purposes of securing the ends of justice, but for some other and therefore illegitimate purpose, I think the Court ought not to interfere, because such interference would be nothing less than relieving the Lord Advocate of the responsibility attaching to his high office. He is subject to this responsibility, and vested with the corresponding discretion, because he has means and appliances for obtaining information and forming a judgment which are not within the reach of any other official, and are not possessed by this Court."
In Mackintosh v McGlinchy 1921 J.C. 75 at 80, Lord Justice General Clyde observed, in the context of an appeal to the court's discretion to grant bail, that "a statement made to the Court on the high responsibility of the Lord Advocate is entitled to great weight". Both of these observations were made in the context of an appeal against refusal of bail in the face of opposition by the Lord Advocate. Where the Lord Advocate does not oppose bail, it must be assumed that in the light of the information available to him it is not in the public interest to insist upon the incarceration of an accused pending his trial. In such circumstances, the court has no information adverse to the accused other than the terms of the alleged offences. In the absence of such other information the incarceration of an accused is without any basis in fact and is contrary to law.
[4] I was advised by the Advocate Depute that in refusing bail the sheriff stated that the Lord Advocate could always exercise his powers to instruct the release of the accused. That is no answer to the authorities which were binding upon the sheriff. Indeed, such a statement recognises the unique advantage of the Lord Advocate in having access to all relevant information to enable an appropriate judgment to be made and his responsibility to act in the public interest. The course adopted by the sheriff in this case has resulted in an unnecessary waste of public expenditure and I would remind him of his duty to admit an accused to bail where there is no opposition by the Crown. As was stated by Lord Brand in Maxwell v McGlennan:"If all sheriffs will adopt that simple approach, justice will be done in accordance with our well-established practice and much trouble and expense will be saved."