The Court of Appeal has dismissed an appeal by C McD challenging the constitutionality of provisions used to refuse him bail while he awaits trial on a murder charge. The court upheld the relevant parts of the Bail Act 1997, including section 2A, which allows a chief superintendent to give evidence of a belief that refusing bail is reasonably necessary to prevent a serious offence.
The appeal arose from the High Court’s refusal in April 2016 to order the appellant’s release under Article 40.4.2 of the Constitution. His bail had been refused in December 2015 under section 2 of the 1997 Act. The Court of Appeal was reviewing that decision and the constitutional challenge; it was not deciding the murder charge.
The prosecution case, as summarised in the judgment, alleged that the appellant shot Keith Walker in June 2015, mistaking him for another intended target. At the bail hearing, Chief Superintendent Patrick Clavin testified that he believed refusing bail was reasonably necessary to prevent the appellant from carrying out a further murder. He described intelligence concerning a feud and an alleged obligation on the appellant to kill the intended target. The defence cross-examined him and argued that bail conditions and a surety could address the risks.
The trial judge refused bail under section 2, finding a probability of further serious offences. The judge said the objection based on risk of failing to attend court could potentially be met with conditions and a surety, and did not refuse bail on that ground. The Court of Appeal stressed that section 2A does not create a separate ground for opposing bail: it makes a chief superintendent’s belief evidence admissible in support of an objection under section 2.
The appellant argued that the provision undermined the presumption of innocence, made bail hearings unfair and allowed detention on the basis of untested information. The Court of Appeal said the chief superintendent’s belief evidence was not itself hearsay, although information underlying that belief could affect the weight a court gave it. The evidence could be tested through cross-examination, and the court—not the chief superintendent—decides whether refusing bail is necessary.
The appeal court also rejected the claim that bail in this case had been refused solely on the chief superintendent’s belief. It said the evidence placed the alleged threat in the context of a feud and was not bare opinion. The court left open the hypothetical question of whether bail could constitutionally be refused solely on such belief evidence. It concluded that the challenges to sections 2 and 2A had not been made out and dismissed the appeal.