Accused has no right to be present at bail appeal
6 Sep 07
Judge rules that proper adversarial procedure could take place in his absence
An accused person on remand has no right to be personally present in court at a hearing of an appeal against a refusal of bail, a judge has ruled.
Lady Smith gave her decision in the case of an accused person referred to as DL, charged with murdering his wife. After bail was refused at Paisley Sheriff Court, the Crown turned down a request that he be brought to the High Court in Edinburgh for the appeal hearing, taking the view that he was not entitled to be present.
It was argued before Lady Smith that the accused, who was studying for a law degree, considered that it would assist his case if he was present; and that there had been occasions in the past when the court had allowed accused persons to be present at the hearing of bail appeals.
The judge referred to article 5(4) of the European Convention on Human Rights, which provides that everyone who is deprived of his liberty by detention shall be entitled have the lawfulness of his detention decided speedily by a court. She pointed out that European cases had decided that bail hearings were not a determination of rights or of a criminal charge under article 6.
The key consideration was whether or not the accused had been afforded a proper adversarial procedure in a hearing before a judicial authority.
She added that the circumstances where an accused might be present were where they represented themselves, or where the court considered it was in the interests of justice that they should be. Here, DL was represented by solicitors and counsel who were familiar with his case.
"The accused was thus able to be afforded the benefit of a proper and full adversarial procedure", and justice did not require that he be present.
Lady Smith's decision can be read at http://www.scotcourts.gov.uk/opinions/2007HCJ08.html .