The Covid-19 pandemic has changed much in our day-to-day lives, and the same goes for the criminal justice system. In order to keep Court business moving, while satisfying the need for physical distancing, Courts have welcomed the use of new technology. Bail appeals, for example, have made the move to an online Court setting.
Given this recent change, we are presented with the opportunity to examine the bail appeal process. The procedure remains largely unchanged; it is only until the bail appeal hearing itself that we notice small differences.
What Is a Bail Appeal?
Let’s begin with what a bail appeal is.
In the Sheriff Court, individuals have the right to apply for bail at their first appearance. If bail is refused by the Sheriff, then the accused is remanded in custody. Every individual whose bail application is refused has the right to appeal that decision.
A bail appeal is marked at the Court from which the matter is being appealed; this is usually the local Sheriff Court. The bail appeal is then passed onto the Sheriff Appeal Court. Prior to the creation of the Sheriff Appeal Court, bail appeals were heard in the High Court of Justiciary.
Once a bail appeal is marked, the Sheriff who refused bail is asked to prepare a report which outlines the reasons for the refusal. The question of bail is, essentially, a risk assessment. Section 23C of the Criminal Procedure (Scotland) Act 1995 lists grounds which are relevant to the question of bail, including any substantial risks that the accused might commit further offences, abscond, fail to appear at a diet, interfere with witnesses, or otherwise obstruct the course of justice. Other relevant matters which the Sheriff is entitled to consider include the nature of the offences, the likely disposal if there is a conviction, and the accused’s previous convictions, to name a few. If an accused has solemn sexual, violent or drug offences and is being prosecuted on petition the accused must show that there are exceptional circumstances to justify the granting of bail or it is refused, section 23D inverts the presumption of bail.
The Sheriff’s report is then made available to the Appeal Sheriff who hears the bail appeal, the Crown and the representative for the accused.
It should be borne in mind that a bail appeal is not a second bite at the cherry for the accused; it is not the case that the accused has a chance to try their luck with a different Sheriff. Rather, it is an opportunity for the matter of bail to be reconsidered, though only on the basis that, in remanding the appellant, the Sheriff exercised his or her discretion wrongly. An error on the part of the Sheriff is the test – if the Appeal Sheriff finds that the first instance Sheriff has made an error, then it is open to the Appeal Sheriff to reconsider the question of bail.
What Do We Do at Paterson Bell Solicitors?
As an Edinburgh Agent firm, we deal with matters such as bail appeals on behalf of our correspondent law firms from all over Scotland. A draft Court roll is sent to us two working days ahead of the hearings, which contains details of the cases which are due to call, including the name of the appellant, the local agents, and the Edinburgh Agents who deal with the bail appeal hearing itself. Once we receive the roll, we notify the principal agents that their client’s bail appeal is due to call and accordingly request the relevant papers and instructions. We arrange the papers and send them onto the instructed solicitor advocate or advocate, who appears at the bail appeal on the appellant’s behalf. Ultimately, we act to facilitate the bail appeal process for our correspondent law firms.
How Much of the Bail Appeals Process Has Changed?
The process up until the hearing itself remains unchanged, and even some aspects of the hearing remain exactly the same. Bail appeal hearings still take place at 9.00am from Monday to Friday, they are still heard by a single Appeal Sheriff, the appellant is not present, and no gowns or wigs are required.
The day before the hearing, the finalised Court roll is sent to us with the order of those appearing and the link to a virtual meeting room. The Clerk of Court is responsible for allowing the correct solicitor advocate or advocate and agents into the ‘meeting room’. At that stage there is the opportunity to discuss the bail appeal with the Crown, who are represented by an Advocate Depute. The offer of special conditions or new information can sway the Crown into agreeing to bail. Once all participants are in attendance, those who are not first up are moved to a virtual waiting room.
The Appeal Sheriff is the last to arrive before the hearing commences. The hearing then proceeds as it would in a non-virtual Court: the Defence puts forward its position, the Crown responds, and the Appeal Sheriff makes a decision.
Given that we are still in the midst of this pandemic, a virtual bail appeal Court may become a permanent change. However, the biggest problem with the new system? Technical difficulties! Still, we, as criminal defence agents, have adapted to huge and hurried changes for some time now. A poor internet connection certainly won’t hold us back.