High Court considers impact of COVID-19 on bail appeals

Two accused with bad criminal records have had their bail appeals refused despite the additional time they will be held on remand due to the COVID-19 shutdown, but the High Court observed that the position "may require to be revisited" should the crisis continue beyond the currently predicted period.

Lord Justice General Carloway, Lord Brodie and Lord Woolman made the comments in refusing the appeals of JD and BK, who face charges including assault and robbery of a complainer in his home, by entering his house when he was asleep, presenting a knife against his throat, demanding money and drugs, attempting to strike him with a knife and robbing him of his phone and a sum of money.

The accused were remanded in custody on 22 July 2019. At a preliminary hearing in November, trial was fixed for 25 March 2020 and the 140 day period extended until 2 April. The trial diet was postponed on 27 March due to the COVID-19 restrictions, and the 140 day period extended until 19 June.

Both accused moved for bail, and appealed on it being refused. In the written submissions by which the appeal was decided, they stated that they had spent a significant amount of time on remand and were willing to obtemper any special bail conditions. By 19 June they would have been in custody for 333 days; there was currently no indication of when the trial was likely to proceed and they retained the presumption of innocence.

JD, aged 36, had about 90 convictions since 1999, including assault and robbery and housebreaking with numerous bail aggravations, and had been on deferred sentence for possession of a knife at the time of the alleged offences. BK, aged 39, had 55 convictions since 1997 including serious assaults and an offence of culpable homicide in 2009 for which he received 10 years. He had continued to offend since his release and also had convictions for breaching probation and bail orders.

Delivering the opinion of the court, Lord Carloway observed that it might be several months before jury trials could be resumed, and the length of time during which a person was likely to remain on remand, which was a factor in deciding whether to grant bail, "must be given greater weight than hitherto".

The statutory provisions setting criteria for the grant or refuse of bail continued to apply; and "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".

The Lord Justice General ruled: "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."

He concluded, however: "Should the crisis continue beyond the currently predicted period, the question of bail may, of course, require to be revisited."

Click here to view the opinion of the court.