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MM v. PROCURATOR FISCAL, AYR


HIGH COURT OF JUSTICIARY

[2009] HCJ 3

OPINION OF LORD BRODIE

in appeal in terms of section 32 of the Criminal Procedure (Scotland) Act 1995 against refusal of bail

at the instance of

MM

against

PROCURATOR FISCAL, AYR

_______

Appellant and Minuter: Shead; Mason; Patterson Bell, Solicitors.

Respondent: Prentice QC AD; Crown Agent

8 September 2009

Introduction and procedural history

[1] This is an appeal in terms of section 32 of the Criminal Procedure (Scotland) Act against a refusal of bail by the sheriff. It was agreed between parties that the sheriff had misdirected herself by accepting a defence submission to the effect that, having regard to section 23D of the Act, in order to be admitted to bail the appellant had to persuade the court that exceptional circumstances pertained. The matter being at large given the sheriff's error, having heard argument, I admitted the appellant to bail. In deference to the submissions that I heard as to the proper construction of section 23D, I propose to set out my conclusions on the question of construction as well as the basis upon which I determined the merits of the appeal.

[2] The appellant is 42 years of age. On 7 July 2009 she appeared on petition in the Sheriff Court at Ayr. The charge in the petition was one of assault on the appellant's daughter by seizing her by the hair, punching her to the head, kicking her to the body and striking her with an unknown object to her severe injury.

[3] The appellant applied to the sheriff for bail. The application was opposed by the Crown, as appears from the sheriff's report, on the ground that there was a substantial risk that, if granted bail, the appellant would commit further offences. A schedule of previous convictions was submitted to the sheriff. This disclosed that the appellant had been convicted on 32 separate occasions. The first conviction was recorded on 20 September 1988. The most recent conviction was recorded on 28 February 2008. The convictions included that recorded on 3 November 1988 in solemn proceedings in respect of five charges: assault and robbery, fraud, contravention of section 41 (1) (a) of the Police (Scotland) Act 1967, breach of the peace and contravention of section 3 (1) (b) of the Bail etc (Scotland) Act 1980 (breach of a bail condition).

[4] The sheriff refused bail. She records in her report that the solicitor appearing for the appellant accepted that having regard to the charge in the petition, the conviction recorded on 3 November 1988 and the terms of section 23D of the Criminal Procedure (Scotland) Act 1995 it was for the appellant to persuade the court that exceptional circumstances pertained. The sheriff had not been so satisfied. She further founded her decision on the appellant's considerable history of offending, the appellant having previously breached court orders, the appellant having been subject to a period of probation which came to an end as recently as January 2009, the seriousness of the charge in the petition, and the possible outcome in the event of the appellant being convicted.

[5] The appellant marked an appeal against refusal of bail on 9 July 2009 but this was not drawn to the attention of the sheriff, who had been on leave, until 20 July. The appeal had meantime called on 15 July and been continued until 16 and then to 21 July, by which time the sheriff's report was available. However, on the afternoon of 20 July two devolution minutes were lodged with the Justiciary Office in relation to the appeal, one asserting that it would be ultra vires of the Lord Advocate to continue to oppose the grant of bail having regard to the terms of articles 5 and 6 (2) of the European Convention on Human Rights and section 57(2) of the Scotland Act 1998, the other asserting, under reference to section 101 of the 1998 Act, that section 23D which had been inserted into the 1995 Act, together with sections 23B and 23C, by section 1 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007, could not be read sufficiently narrowly so as to bring enactment of the provision within the competence of the Scottish Parliament.

[6] The appeal called before the bail judge on 21 July 2009. Having heard parties the bail judge continued it for seven days in order to allow intimation of the devolution minutes to the Advocate General for Scotland.

[7] The continued appeal came before me for hearing on 28 July 2009. Mr Shead and Mr Mason represented the appellant. The Crown was represented by the Advocate depute. The Advocate General had not intervened.

[8] Mr Shead assured me repeatedly that his wish was to be of assistance to the court. He would have been content to remove the burden of decision-making from me entirely, at least insofar as it related to matters of law, in that he reminded me of the terms of paragraph 9 of Schedule 6 to the Scotland Act 1998 which provides that a court, other than any court consisting of two or more judges of the High Court of Justiciary, may refer any devolution issue which arises in criminal proceedings before it to the High Court of Justiciary. A devolution issue is defined in paragraph 1 of Schedule 6 as including a question as to whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament.

[9] I was not persuaded that this was a case for an immediate reference. Any need for a paragraph 9 reference could only arise once there appeared to be a question justifying a reference to a larger court. That needed to be explored. Moreover, Mr Shead indicated that he anticipated that in fact there might not be much distance between him and the Advocate depute as to how the relevant legislation should be construed (as proved to be the case). For his part, the Advocate depute intimated that it was his position that there was no incompatibility as between section 23D and the Convention. If, on a plain meaning, the section was incompatible with the Convention then the provision could be "read down" as required by section 3 of the Human Rights Act. The Advocate depute urged me to proceed to hear the appeal. I acceded to that suggestion. I first heard both parties on the proper interpretation of section 23D. I then heard submissions on the merits of the application for bail.

Statutory and Convention framework

[10] Sections 23B to 23D of the Criminal Procedure (Scotland) Act 1995 (as amended) provide, inter alia:

"23B (1) Bail is to be granted to an accused person -

(a) except where -

(i) by reference to section 23C of this Act; and

(ii) having regard to the public interest,

there is good reason for refusing bail;

(b) subject to section 23D of this Act.

(2) In determining a question of bail in accordance with subsection (1) above, the court is to consider the extent to which the public interest could, if bail were granted, be safeguarded by the imposition of bail conditions.

(3) Reference in subsections (1)(a)(ii) and (2) above to the public interest includes (without prejudice to the generality of the public interest) reference to the interests of public safety.

(4) The court must (without prejudice to any other right of the parties to be heard) give the prosecutor and the accused person an opportunity to make submissions in relation to a question of bail.

(5) The attitude of the prosecutor towards a question of bail (including as to bail conditions) does not restrict the court's exercise of its discretion in determining the question in accordance with subsection (1) above.

(6) For the purpose of so determining a question of bail (including as to bail conditions), the court may request the prosecutor or the accused person's solicitor or counsel to provide it with information relevant to the question.

(7) However, whether that party gives the court opinion as to any risk of something occurring (or any likelihood of something not occurring) is a matter for that party to decide

23C - (1) In any proceedings in which a person is accused of an offence, the following are grounds on which it may be determined that there is good reason for refusing bail -

(a) any substantial risk that the person might if granted bail -

(i) abscond; or

(ii) fail to appear at a diet of the court as required;

(b) any substantial risk of the person committing further offences if granted bail;

(c) any substantial risk that the person might if granted bail -

(i) interfere with witnesses; or

(ii) otherwise obstruct the course of justice,

in relation to himself or any other person;

(d) any other substantial factor which appears to the court to justify keeping the person in custody.

(2) In assessing the grounds specified in subsection (1) above, the court must have regard to all material considerations including (in so far as relevant in the circumstances of the case) the following examples -

(a) the -

(i) nature (including level of seriousness) of the offences before the court;

(ii) probable disposal of the case if the person were convicted of the offences;

(b) whether the person was subject to a bail order when the offences are alleged to have been committed;

(c) whether the offences before the court are alleged to have been committed -

(i) while the person was subject to another court order;

(ii) while the person was on release on licence or parole;

(iii) during a period for which sentence of the person was deferred;

(d) the character and antecedents of the person, in particular -

(i) the nature of any previous convictions of the person (including convictions outwith Scotland);

(ii) whether the person has previously contravened a bail order or other court order (by committing an offence or otherwise);

(iii) whether the person has previously breached the terms of any release on licence or parole (by committing an offence or otherwise);

(iv) whether the person is serving or recently has served a sentence of imprisonment in connection with a matter referred to in sub-paragraphs (i) to (iii) above;

(e) the associations and community ties of the person.

23D - (1) Where subsection (2) or (3) below applies, a person is to be granted bail in solemn proceedings only if there are exceptional circumstances justifying bail.

(2) This subsection applies where the person -

(a) is accused in the proceedings of a violent or sexual offence; and

(b) has a previous conviction on indictment for a violent or sexual offence.

...

(4) ...

"violent offence" means any offence (other than a sexual offence) inferring personal violence.

(7) This section is without prejudice to section 23C of this Act."

[11] Among the provisions to be had regard to in construing legislation of the Scottish Parliament are section 3 of the Human Rights Act 1998, sections 29 and 101 of the Scotland Act 1998 and the European Convention on Human Rights. Section 3 of the Human Rights Act provides:

"3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section -

(a) applies to primary legislation and subordinate legislation whenever enacted;

(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility."

[12] Sections 29 and 101 of the Scotland Act provide, inter alia as follows:

"29 - (1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

(2) A provision is outside that competence so far as any of the following paragraphs apply -

...

(d) it is incompatible with any of the Convention rights or with Community law, ...

101 - (1) This section applies to -

(a) any provision of an Act of the Scottish Parliament, or of a Bill for such an Act, and

(b) any provision of subordinate legislation made, confirmed or approved, or purporting to be made, confirmed or approved, by a member of the Scottish Executive,

which could be read in such a way as to be outside competence.

(2) Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly.

(3) In this section 'competence' -

(a) in relation to an Act of the Scottish Parliament, or a Bill for such an Act, means the legislative competence of the Parliament, and

(b) in relation to subordinate legislation, means the powers conferred by virtue of this Act."

[13] Article 5.1 of the Convention provides:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ..."

Article 5.3 of the Convention provides:

"3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."

Article 6.2 of the Convention provides:

"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

Construction: submissions of parties

The Minuter

[14] Mr Shead's approach to instructing me as to the proper approach to the interpretation of section 23D was to read passages from DS v HMA 2007 SC (PC) 1 and R (O) v Crown Court at Harrow [2007] 1 AC 249, all of which he commended. He said that, having regard to what appeared in these decisions, he would surprised if I could not come to a Convention-compatible construction of the section but his primary position was that the provision was incompatible given the wide breadth of offences which brought an accused person in solemn proceedings within its ambit. He did not further elaborate what he saw to be the problem of construction. He accepted that, on any view, the effect of the section was that the court was bound to give weight to a previous relevant conviction but the sheriff had been wrong to think that it imposed a persuasive burden on the accused. It was always for the state to justify a deprivation of liberty. When an individual had been detained on a criminal charge and brought before a court, the default position must always be release on bail pending trial.

The Respondent

[15] The Advocate depute presented well structured and succinct submissions. They were as follows.

[16] The grant or refusal of bail to a person accused on petition or charged on complaint is now the subject of a statutory scheme which is set out in Part III of the Criminal Procedure (Scotland) Act 1995 which has as an objective the ensuring of consistency but which, according to the Advocate depute, does no more than represent what had been the common law position. Section 23C (1) identified the grounds on which it might be determined that there was good reason for refusing bail: substantial risk of absconding or failing to appear in court as required, substantial risk of committing further offences, substantial risk of interfering with witnesses or otherwise obstructing the course of justice, and any other substantial factor which appears to the court to justify keeping the person in custody. However, section 23B (1) made it clear that, subject to section 23D, bail was to be granted except where there was good reason for refusing it, regard being had to the public interest. The Advocate depute therefore agreed with Mr Shead and what appeared in R (O) v Crown Court at Harrow supra at para 35, that a grant of bail was the default position (the expression used by Elias J in R (Sim) v Parole Board [2004] QB 1288 at para 51); but that was no more than the effect of Part III of the 1995 Act. This was not altered by section 23B being subject to section 23D. Section 23D was headed "Restriction on bail in certain solemn cases" but section 23D (7) made clear that the section is without prejudice to section 23C and, accordingly, in considering an application for bail the court must always have regard to the whole circumstances of the case.

[17] The statutory scheme for bail has been the subject of amendment on a number of occasions. Among the amending provisions are two Acts of the Scottish Parliament and their respective subordinate legislation. These Acts are the Bail, Judicial Appointments etc (Scotland) Act 2000 and the Criminal Proceedings etc (Reform) (Scotland) Act 2007. Rule 9.3 of the Standing Orders of the Scottish Parliament require certain documents to accompany a Bill on its introduction. These include Explanatory Notes which summarise objectively what each of the provisions of the Bill does (to the extent that it requires explanation or comment) and give other information necessary or expedient to explain the effect of the Bill. In the case of an Executive Bill accompanying documents must include a Policy Memorandum which, among other things, sets out the policy objectives of the Bill and an assessment of the effects of the Bill on human rights. The Advocate depute drew my attention to the terms of paragraphs 8 to 14 and 17 and 18 of the Policy Memorandum which accompanied the Bail, Judicial Appointments etc (Scotland) Bill which was introduced on 25 May 2000 and paragraphs 5 to18 and 21 of the Explanatory Notes and paragraphs 28 to 31 of the Policy Memorandum which accompanied the Criminal Proceedings etc (Reform) (Scotland) Bill which was introduced on 27 February 2006. As these documents demonstrated, Parliament must be taken to have been aware of the need for any legislation enacted by it to conform to the provisions of article 5 of the Convention. The relevant Policy Memorandum specifically stated, at para 8, that a purpose of the 2000 Bill was to ensure that the 1995 Act was compatible with article 5.3 of the Convention. There was no indication there of any intention on the part of the Executive in introducing either of the Bills, but in particular the Criminal Proceedings etc (Reform) (Scotland) Bill, which was to insert section 23D into the 1995 Act, to create a presumption against the grant of bail which an accused person required to rebut. The expression "satisfied" which suggested that such a presumption had been created in the equivalent English provision, discussed in R (O), did not appear in section 23D. The reference to "exceptional circumstances", an expression which appeared both in section 23D and the equivalent English provision, should be understood in the way explained in R (O) at para 29. Properly construed, the Scottish legislation did not impose a burden on the accused to show exceptional circumstances before being admitted to bail. The purpose of section 23D was to remind the court of particular relevant circumstances: that the person is accused of a relevant offence and has a previous conviction on indictment for such an offence. The expression "exceptional circumstances" had been deliberately left undefined. In contrast to what had formerly been the case, admission to bail was always a question for the court. The decision of the European Court of Human Rights in Ilijkov v Bulgaria, unreported, 26 July 2001, was of no assistance. There, the complaint had been about a statutory presumption based on the gravity of the alleged offence which fettered the discretion of the court. Section 23D had to be understood in its statutory context, which included section 23C, and under reference to practice. It was always a question as to whether or not there were grounds for refusing bail. A grant of bail in a case to which section 23D applied may, having regard to its circumstances, be described as special but the section imposed no burden on an accused to satisfy the court that special circumstances existed. Because the sheriff appeared to have taken the view that there was such a burden on the accused, it was accepted by the Crown that her decision was open to review.

Discussion

[18] The construction argument, such as it was, related to whether section 23D of the 1995 Act complied with article 5.3 of the European Convention on Human Rights. I qualify my reference to the argument by "such as it was" because of the great deal of common ground between Mr Shead and the Advocate depute. However, as his somewhat faintly argued primary position, Mr Shead said that section 23D did not comply, while the Advocate depute said that it did, the point of course being that if Mr Shead's primary position is correct then section 23D is simply "not law": DS v HMA 2007 SC (PC) 1 at para 19. Section 23D was inserted into the 1995 Act by section 1 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007, an Act of the Scottish Parliament. The Scottish Parliament does not have power to enact a provision if its effect is incompatible with any Convention right. In any case it may therefore be inferred that the Parliament did not intend a provision enacted by it to have that effect and section 101 (2) of the Scotland Act requires such a provision to be read as narrowly as is required for it to be compliant with the Convention, if such a reading is possible, and the provision is to have effect accordingly.

[19] I take the Advocate depute to be correct in his observation about the relationship between the statutory scheme for bail as set out in Part III of the 1995 Act and the common law position. Paragraph 6 of the Explanatory Notes accompanying the 2006 Bill explains the insertion of the new sections 23B, 23C and 23D into the 1995 Act as codifying the current common law. Codification does not entirely exclude the possibility of some consequent innovation but generally it implies restatement rather than reform.

[20] In Scotland the power of the court to grant bail to persons accused of crime has been subject to statutory regulation since at least 1701 but, as is confirmed both in the Policy Memorandum accompanying the 2000 Bill and the Explanatory Notes, the principles and criteria by reference to which that power is to be exercised were developed at common law: eg Smith v M 1982 JC 67. These principles and criteria were subject to consideration by a Full Bench in Mackintosh v M'Glinchy 1921 JC 75. In his opinion in that case the Lord Justice-General (Clyde) said this, supra at 82:

"It is perhaps right to make, in conclusion, the self-evident observation that, when an accused person asks for bail or appeals for bail, bail he must get, unless a sufficient ground is brought forward requiring the Court to exercise its discretion by refusing it. A good deal was said about the presumption of innocence. I prefer not to treat the matter as a question of presumption. The accused person has the right to ask for bail; he has a right to have his application considered; and, unless the Court has before it some good reason why bail should not be granted, bail ought to be allowed."

[21] Although I was not referred to this statement of the law specifically, I would not understand it to be controversial. That is the common law position which the Advocate depute, supported by the terms of the Explanatory Notes, stated has been codified in Part III of the 1995 Act: bail is to be allowed in every case unless good reason has been shown why it should not.

[22] I see the Scottish common law position, as set out in Mackintosh v McGlinchy, to be entirely compliant with article 5 of the Convention. The article guarantees a right to liberty of the person. However, the individual may be deprived of his personal law in certain cases, provided this is in accordance with a procedure prescribed by law. Among the cases in which the individual may be deprived of his liberty is when he has been arrested for the purpose of being brought before the court on reasonable suspicion of having committed an offence. Thus, having been arrested on reasonable suspicion of having committed an offence, a person may initially be detained. Having been so detained, he must, in terms of article 5.3 be brought promptly before a judge. Thereafter he is entitled to trial within a reasonable time or release pending trial. Article 5 therefore contemplates the continuing detention of someone having been arrested on reasonable suspicion after he has been brought before a judge, providing that the reasonable suspicion persists and that he is thereafter brought to trial within a reasonable time: Ilijkov supra at para 77, and providing also that the judge has power, in every case, to determine whether the arrested person should be released pending trial: R (O) supra at para 25 under reference to Caballero v United Kingdom (2000) 30 EHRR 643. Article 5 does not specifically address by reference to what criteria the judge before whom an arrested person is brought should determine whether he be released pending trial but a certain amount is clear from the judgement of the European Court of Human Rights in Ilijkov, as reinforced by what appears in the opinions of Lord Carswell and Lord Brown of Eaton-under-Heywood in R (O). Detention is an exceptional departure from the right to liberty: Ilijkov at para 85. Accordingly, continued detention must be justified: R (O) at para 7, it being for the relevant authorities to provide the justification: Ilijkov at paras 84 and 85, R (O) at para 28. Shifting the burden to the detained person in such matters by, for example, imposing a presumption against bail in certain cases, is tantamount to overturning article 5: Ilijkov at para 85. Justification must be by reference to relevant and sufficient concrete facts: Ilijkov at para 77, which, in the given case, convincingly demonstrate that the genuine requirement of public interest outweighs the rule of respect for individual liberty: Ilijkov at para 84, R (O) at para 27. Among facts which are relevant are the arrested person's previous convictions and the consequent risk that he may re-offend: Toth v Austria (1992) 14 EHHR 551 at para 70, and the seriousness of the accusation against the arrested person and the consequent risk that he may abscond: Ilijkov at para 80. However, it is for the judge to examine all the facts arguing for or against detention and make (and record) his decision accordingly: Ilijkov at para 86, R (O) at paras 25 and 28. In so doing the judge is carrying out a process of evaluation of the available facts rather than determining whether an onus has been satisfied, but the default position is admission to bail: R (O) at paras 7 and 11.

[23] With these preliminary observations I turn to section 23D. Its heading is "Restriction on bail in certain solemn cases". Subsection (1) is in the following terms:

"23D - (1) Where subsection (2) or (3) below applies, a person is to be granted bail in solemn proceedings only if there are exceptional circumstances justifying bail."

[24] It would appear from para 18 of the Policy Memorandum relating to the Bill that became the 2000 Act, that the Executive considered that introducing an "exceptional circumstances" test in more serious cases where the accused had a relevant conviction would add nothing to the clear common law position which enabled the sheriff to refuse bail in such circumstances. I have to admit that it is not clear to me why that position was departed from when it came to presentation of the Bill that became the 2007 Act and which enacted section 23D. The nearest to an explanation to be found in the relevant Policy Memorandum, at paragraph 25, is that the Executive's Bail and Remand Action Plan had

"set out a number of specific sets of circumstances - where someone on a serious sexual, violent or drug trafficking charge has a track record of conviction for related serious offences - which will count against the grant of bail."

However, having been enacted, section 23D must be given its proper construction and, if it is to be law, that must be a construction the effect of which complies with article 5 of the Convention. In arriving at that construction, having regard to the terms both of section 3 of the Human Rights Act and section 101 (2) of the Scotland Act the court has available to it the technique of "reading down" or adopting a more or less linguistically strained interpretation of the provision with a view to making it Convention compliant: R v A (No 2) [2002] 1 AC 45 at 68.

[25] In DS v HMA supra at para 24, Lord Hope, having discussed the effect of section 101 (2) of the Scotland Act, explained what should be the approach of the court when faced with the contention that a provision of an Act of the Scottish Parliament is beyond the competence of the Parliament by reason of it being incompatible with a Convention right in these terms:

"The proper starting point is to construe the legislation as directed by section 3(1) of the Human Rights Act. If it passes this test, so far as the Convention rights are concerned it will be within competence. The obligation to construe a provision in an Act of the Scottish Parliament so far as it is possible to do so in a way that is compatible with the Convention rights is a strong one. The court must prefer compatibility to incompatibility. This enables it to look closely at the legislation to see if it can be explained and operated in a way that is compatible and, if it is not, how it can be construed so as to make it so."

[26] There is authority to the effect that if a court, in exercise of the obligation imposed by section 3 of the Human Rights Act requires to read down a statutory provision it should only do so once it has worked out and made explicit the meaning it would have arrived at by applying conventional means of construction, thereby demonstrating the court's supervisory function: A-G's Reference (No 4 of 2002) [2003] 3 WLR 1153 at 1157, Wilson v First County Trust Ltd [2004] 1 AC 816, Bennion On Statutory Construction (5th edit) p1356. As I understood the Advocate depute, he submitted that reading down was unnecessary but that if it was necessary it could readily be done, adopting the same route as had been taken by Lord Carswell and Lord Brown of Eaton-under-Heywood in R (O). In R (O) at para 35 Lord Brown described whether the provision under consideration there strictly speaking required to be read down as "a question of little moment". Nevertheless, both he, at para 35, and Lord Carswell, at para 12, made clear that what they were doing was reading down in order to arrive at a Convention compatible construction.

[27] In the present case, agreeing with the Advocate depute's primary position, I consider that it is possible to come to a Convention compatible construction of section 23D without imposing such a degree of strain on the language as to require justification by reference to section 3 of the Human Rights Act. As both he and Mr Shead pointed out, the equivalent English provision that was under consideration in R (O) presented a difficulty (the requirement that the court be "satisfied" of the existence of special circumstances before granting bail in specified cases) which does not arise in relation to section 23D. The Scottish section does, however, provide that if a person charged with a violent or sexual offence who has a previous conviction for such an offence is to be granted bail, there must be "exceptional circumstances" justifying that. Following the line that was adopted in R (O), that does not contravene the guarantees provided by article 5. Having a previous conviction for the same sort of serious offence of which the person is reasonably suspected of having committed is highly relevant to assessment of the risk of further offending prior to trial and, as the Advocate depute submitted, Parliament is entitled to remind the courts of that fact. The norm will be that persons having previous convictions on indictment for the same sort of offence with which they are charged and therefore coming within the section 23D criteria, will not be granted bail and therefore if, having regard to all the relevant facts they are admitted to bail the circumstances will indeed be "exceptional" in the sense that the norm has been departed from: cf R (O) at para 29. One does not of course expect a section of an Act of Parliament to do no more than provide a commentary on the effect of the sections that have immediately preceded it. It is to be assumed that Parliament intended section 23D to have a practical application in achieving Parliament's legislative purpose, consistent with Parliament's competence. Again agreeing with the Advocate depute and following the course taken in R (O) at para 12 and 35, I consider that section 23D can and should be construed as imposing what, more commonly in England than in Scotland, is described as an evidential burden on the accused (for discussion of what is meant by an evidential burden and the recognition of the concept in Scotland see R v DPP ex p Kebilene [2000] 2AC 326, Lord Hope at 378-9; Walkers The Law of Evidence in Scotland (3rd edit) paras 2.12.4 and 2.12.16; Macphail Evidence paras 22-03 et seq; Davidson Evidence paras 4-01 fn 3 and 4-05 to 4-08; Emmerson, Ashworth and Macdonald, Human Rights and Criminal Justice (2nd edit) para 9-31). He has to rebut a presumption that bail will be refused if section 23D circumstances apply. He may do that, not by the leading of evidence because that is not the nature of the proceedings when a person appears on petition, but by laying before the court facts and circumstances which might take the case out of the norm and which in that sense may be regarded as "exceptional", but "exceptional circumstances" has no stronger meaning than that. What the court is required to do is assess all the information before it with a view to determining whether there is good reason for refusing bail having regard to the relevant risks and the relevant level of these risks as identified in section 23C. It is therefore not correct for the court to approach its task by considering whether a persuasive burden or onus has been satisfied but at the same time in every case, including those to which section 23D applies, if bail is to be refused good reason must shown for the refusal. In enacting section 23D Parliament has reminded the court of the risks normally attendant upon the grant of bail to whom the section applies: cf R (O) at para 31 where Lord Brown quotes what was said by Kennedy LJ in the Court of Appeal. Generally speaking, where the section applies good reason for refusing bail will be demonstrated but it will always be a matter of looking at all the circumstances of the case in order to determine whether the presumption so raised is displaced. The default position is admission to bail.

The merits of the appeal

[28] The proper construction of section 23D having been considered, Mr Shead then addressed me on the merits of the application. Drawing on what had been said already, he submitted that there was a presumption in favour of bail which was referable to the right to liberty guaranteed by article 5.1 of the Convention and the presumption of innocence set out in article 6.2. What was in issue was not punishment but risk and therefore the determination as to whether or not bail should be granted involved an assessment of risk. The conviction which led to section 23D being relevant in this case, that of assault and robbery in 1988, related to a relatively minor matter as was demonstrated by the six-month sentence of imprisonment that had been imposed for it and two other of the five charges of which the appellant had been convicted on that occasion.

[29] The Advocate depute maintained the Crown's opposition to the grant of bail. He reminded me of the terms of section 23C of the 1995 Act. He asked me to look at the appellant's whole record carefully both in relation to the number and seriousness of previous offences. The court could not be confident that the appellant would adhere to bail conditions. As had been emphasised in R (O), in enacting section 23D Parliament was reminding the court that it would be an exceptional case where someone with a relevant record of previous offending would be granted bail. Ex facie there was an issue of protection of the public. Section 23D added weight to the Crown's opposition in this case. It was unlikely that someone whose circumstances were as those of the appellant would have been granted bail at common law. However it was accepted that the age of the appellant's previous conviction might make the case an exceptional one.

[30] The sheriff having misdirected herself in law, the question as to whether the appellant should be admitted to bail was at large. I agreed with the Advocate depute that the appellant's record which includes a conviction for assault and robbery allows the reasonable inferences that she presents a risk of re-offending, breaching court orders and failing to appear at future diets. However, I also agree with Mr Shead (and, effectively, the Advocate depute) that the weight to be attached to the 1988 conviction is substantially reduced by the passage of time and its apparently minor nature as judged by the relatively modest sentence of six months imprisonment. Looking to the whole circumstances, while I accept that there are relevant risks here, I am not persuaded that they are substantial risks. The charge is a serious one, although the fact that the complainer is the appellant's daughter (who I would understand from the terms of the petition to be adult) may suggest that particular factors obtain. The bail address is one at some distance from the usual residence of the appellant and, as I would understand it, that of the complainer, although it was not suggested that the appellant presented any particular threat to the complainer. It was said that the complainer, who is a person of mature years, has to care for her husband. Thus, while I accept that because this is a section 23D case there is a presumption against the grant of bail (although not a very strong one given the date of the relevant conviction and its apparently relatively minor nature) thereby placing what is described as an evidential burden on the appellant to put forward facts and circumstances favourable to her being admitted to bail, my assessment is that the burden has been satisfied. The default position, to borrow the expression used in R (O), is admission to bail and, while I would see it as very difficult to fault the sheriff here, I have been persuaded that it is appropriate to grant the appeal and admit the appellant to bail on standard conditions at the specified bail address.