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Criminal Procedure (Amendment) (Scotland) Act 2004

New section 90B – orders in respect of witnesses apprehended under section 90A

97.Section 90B gives the court power to deal with witnesses apprehended under a warrant issued under the preceding section.

98.Subsection (1) states that where a witness has been apprehended and brought before the court parties and the witness will have an opportunity to address the court. The court may thereafter order the witness to be detained in custody until the conclusion of the diet at which he is due to give evidence; to be released on bail; or to be liberated. Under subsection (2) the court must be satisfied before ordering the witness to be detained in custody or released on bail that such an order is necessary and appropriate to secure attendance of the witness.

99.Subsection (3) retains the power of the court to make a finding of contempt of court in respect of any witness who fails to attend having been cited and to dispose of the case accordingly.

100.Subsection (4) provides that, where a witness has been ordered to be detained in custody until the conclusion of the diet in which he is to give evidence, the trial court may recall that order when excusing the witness even if the trial is not concluded. The trial court may therefore liberate the witness as soon as they take the view that the witness's presence is no longer required. For example, the court might decide to release the witness immediately after their evidence has been given but before the conclusion of the trial.

101.Subsections (5) and (6) authorise the court, when releasing a witness on bail, to impose such conditions as it considers necessary to secure the attendance of the witness at court other than a deposit of a sum of money in court.

102.Subsection (7) provides that where the court has ordered the witness to be detained in custody it may on the application of the witness recall that order and order that the witness be released on bail subject to a condition restricting his movements together with a requirement that his compliance with that condition be remotely monitored.

103.Subsections (8) to (10) provide for the application of certain provisions of sections 24A to 25 of the 1995 Act to cases where remote monitoring requirements have been imposed on a witness under subsection (7). The provisions applied make provision—

  • requiring the parties to be given the right to be heard (section 24A(7))

  • requiring the effect of a remote monitoring requirement to be explained to the witness (section 24A(8) and (9))

  • as the matters to be considered and information to be obtained before the court imposes a remote monitoring requirement (section 24A(10) to (12))

  • as to monitoring in pursuance of remote monitoring requirements, including provision about devices to be worn for the purposes of such monitoring (section 24A(13) to (15) and section 24D)

  • enabling regulations to be made by the Scottish Ministers about the imposition of remote monitoring requirements (section 24B)

  • for the designation of persons who may monitor in pursuance of remote monitoring requirements (section 24C)

  • about specification of the conditions of bail and the witness’s proper domicile of citation (section 25)

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