Judge reaffirms Crown bail say
8 Nov 05
Sheriff wrong to refuse bail where unopposed by Crown
The court cannot refuse bail where the application is unopposed by the Crown, a High Court judge has reaffirmed.
Lord Hardie made this ruling in allowing an appeal by an accused, identified only as M A R, charged with assaulting a woman with intent to rape between May and October this year, and with rape of a 15 year old girl on 8 October.
The sheriff had refused an application for bail despite it not having been opposed by the Crown. The Crown did not oppose the appeal but invited the court to restate the law.
Lord Hardie said that the present climate of public hostility to the grant of bail in such cases did not justify the sheriff's refusal to follow the cases laying down the established rule. 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.
"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", he continued. "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."
The sheriff's decision had resulted in unnecessary waste of public expenditure.
Lord Hardie's opinion can be read at http://www.scotcourts.gov.uk/opinions/2005HCJ03.html .