New Section 23B
6.New section 23B relates to the role of the court in determining questions of bail for an accused person at the pre-conviction stage.
7.Subsection (1) makes it clear that bail is to be granted except where certain grounds for refusing bail (set out in more detail in new section 23C and section 23D) apply and where the court having regard to the public interest considers there is good reason to refuse bail. This reflects the position in relation to detention of an accused person set out in Article 5 of the European Convention on Human Rights, the general principles of Scots common law and the case law of the European Court of Human Rights. For example, McIntosh v McGlinchey 1921 JC 75 provides that bail must be granted unless “in the exercise of its discretionary right of refusal and looking to the public interest and securing the ends of justice, there is good reason why bail should not be granted”. See also Young v HMA, 1988 SCCR 517 and Smirnova v Russia application No 46133/99 and 48183/99 July 24th 2003.
8.Subsection (2) makes it clear that in determining the question of bail, the court must consider whether the public interest could be secured by the imposition of bail conditions rather than detention. In applying the ‘public interest’ test the court will take into account the interests of justice, since it must be in the broader public interest that individual court decisions reflect the interests of justice.
9.Subsection (3) makes it clear that references to the public interest include reference to the interests of public safety.
10.Subsection (4) provides that the prosecutor and the accused have the right to make submissions to the court on the question of bail pre-conviction.
11.Subsection (5) makes clear that the decision on bail (and the imposition of bail conditions) is for the court and the court alone, and that the attitude of the prosecutor (who has a right to be heard and who can oppose bail) does not restrict the exercise of the court’s discretion. This provision reverses the currently understood position in Scots law set out in Spiers v Maxwell 1989 SLT (N) 282 and the more recent decision by the High Court of Justiciary in M.A.R v Dyer, 4 November 2005 where the court concluded that if the prosecutor did not oppose bail it should be granted.
12.If the prosecutor does not oppose bail the court will have only limited information about the accused recorded on the petition or complaint, although they will be able to see from the terms of the complaint alleged bail aggravations and any bail breaches with which the accused is charged. Subsections (6) and (7) therefore place beyond doubt the right of the court to seek information relevant to the bail decision of the prosecutor or the accused’s legal representative. Examples of relevant information might be the accused’s previous convictions, which would show whether s/he has previously breached bail. Subsection (7) gives those parties the right to decide whether or not to offer any opinion on the risks attached to the bail decision. This is designed to give them discretion where they wish to express an opinion, but to ensure that they cannot be pressed into giving one where they do not wish to do so, risk being a matter for the court to determine.