Lord Justice Clerk

Appellant: A Ogg, Solicitor Advocate; Drummond Miller

Respondent: Brodie, QC, AD; the Crown Agent

28 March 2013

[1] The appellant was fully committed on 8 March 2013 at Glasgow Sheriff Court on a charge of, amongst other things, attempted murder. Bail was refused. This is an appeal against the refusal of bail, which has been referred to this court by the single judge, who first heard it on 19 March.

[2] The judge reports that at the hearing before him, the appellant moved the court to "quash" the petition warrant upon which the appellant had been fully committed on the basis that there was "manifestly not a prima facie case". The contention was that the decision of this court in Jie Lin and Others v HM Advocate [2012] HCJAC 151, authorised the challenge of warrants for committal in the course of a bail appeal. At least it was said that there was "a wide-spread view amongst defence solicitors" that that was the effect of the decision.

[3] Jie Lin is authority for the proposition that it is competent before the sheriff, and by way of appeal by Bill of Suspension, to challenge the grant of a warrant for full committal, either on the basis that it is defective in form (there being three necessary requisites) or because the granting of the warrant would amount to oppression. The court held that the Bills of Suspension in that case were not competent because they did not contain contentions that the warrants were either defective in form or oppressive. The court did not hold that there was any alternative way of challenging the warrants other than by Bill of Suspension. Although sufficiency of evidence may be taken into account as a factor in determining whether bail ought to be granted, there is no suggestion in Jie Lin that a warrant can be suspended in the course of a bail appeal. Such an appeal is a statutory one under section 32 of the Criminal Procedure (Scotland) Act 1995. It is, as it says, an appeal against the refusal of bail. It is not a competent procedure by which to challenge a committal warrant. This appeal, on that ground, is refused.

[4] In relation to the merits of the decision to refuse bail, this was a matter for the discretion of the sheriff. What was argued on appeal was that the sheriff had placed too much or too little weight on certain aspects, both in connection with the appellant's personal circumstances and in relation to the quantity of evidence against him. Nothing was said which could have persuaded the court that it ought to interfere with what was a discretionary decision. The appeal is accordingly, on that ground, also refused.

DL