Repeat offenders denied bail appeal due to COVID-19 uncertainties over trial diet

The accused persons, JD and BK, moved for bail on the basis that they had spent a significant amount of time on remand, following an initial extension of the period in November 2019. Their trial was originally fixed for March 2020.

The appeal was heard by Lord Carloway, the Lord Justice-General, sitting with Lord Brodie and Lord Woolman.

Substantial records

The appellants had been accused of entering a man’s home when he was asleep and holding a knife against his throat while demanding money and drugs. They attempted to strike him with the knife and left with his phone and a sum of money. They were originally remanded into custody on 22 July 2019, with the custody period to expire in November.

At the preliminary hearing, the appellants and the Crown indicated readiness for trial, and the period was extended until 2 April 2020. The trial diet, which was originally scheduled for 25 March 2020, was postponed on 27 March because it was not possible to ballot a jury in light of Scottish Government advice on the COVID-19 pandemic.

The appellants moved for bail on the grounds that they had spent a significant period of time in custody, and said they were willing to obtemper any special bail conditions that might be attached. The Crown opposed this motion due to the nature of the charges, the appellants’ previous convictions and the potential for witness interference.

JD possessed a criminal record of about 90 previous convictions dating back to 1999 including theft, robbery, housebreaking, and several road traffic offences. He had previously committed bail aggravations, as well as breaching probation four times, with one conviction for perverting the course of justice. At the time the alleged crime was committed he was on deferred sentence for possessing a knife in a public place.

BK possessed a criminal record of about 55 convictions going back to 1997. These included theft, assault to severe injury and permanent disfigurement, and misuse of drugs. He had also previously served a 10-year sentence for culpable homicide. He continued to offend after his release. He also possessed several convictions for breaching bail orders.

Both appellants were originally refused bail at the preliminary hearing due to the serious nature of the crimes, the likelihood of a custodial sentence if convicted, and the consistent and repeated disregard for court orders shown by their previous convictions. There was a substantial risk that the appellants would not comply with bail conditions.

The appellants both submitted that in refusing to grant bail the judge had erred in the exercise of his discretion in light of the delay in bringing their case to trial. There was currently no indication of when a trial would take place, and they retained the presumption of innocence. Bail with special conditions requiring them not to approach the complainer would have been appropriate in the circumstances.

The Crown submitted that the judge was entitled to take the view that there was a significant risk of re-offending if bail were to be granted. In relation to BK, it also submitted that the address provided was not suitable, as it had a notice from the electricity suppliers on the door stating that the locks had been changed and that it possessed the keys. The address had been previously occupied by JD but was no longer available to him.

Public interest

The opinion of the court was delivered by Lord Carloway. He began by addressing the ongoing pandemic, saying: “In the present COVID-19 crisis, it is not known when accused persons are likely to be tried. In solemn cases, it may be several months before jury trials can be resumed. Meantime there may be an increasing number of those remanded in custody. The length of time during which a person is likely to remain on remand is a factor in deciding whether to grant bail. This factor must be given greater weight than hitherto.”

He continued: “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. A good reason may arise if there is a substantial risk of the accused: absconding or failing to appear for trial; committing further offences; and interfering with witnesses or otherwise interfering with the course of justice. Where, as here, an accused is charged with a violent offence and has a previous conviction for violence on indictment, he is only to be granted bail in exceptional circumstances. In the current crisis, the emphasis must be, albeit not exclusively, on whether bail should be refused on the grounds of public safety.”

Addressing the likelihood of re-offending in this case, he said: “In practical terms, bail ought not to be granted where: (1) the accused is charged with a serious offence which, if he were to be convicted, is likely to attract a substantial custodial terms (e.g. one in excess of two years); and (2) the nature of his record, or other circumstances, indicate that, were he to be at liberty, he is likely to commit further violent (including sexual and domestic abuse) offences and/or is likely to attempt to obstruct justice(including approaching witnesses). These are matters primarily for the judge at first instance to assess. His or her decision should not lightly be interfered with by the appellate courts. Applying this guidance, the appeals are refused. Should the crisis continue beyond the currently predicted period, the question of bail may, of course, require to be revisited.”