New Section 23C
13.New section 23C sets out the grounds for refusal of bail. These reflect the grounds recognised under Scots common law and ECHR case law. In each case the grounds for refusal apply only where there is a ‘substantial risk’ of an adverse outcome; the ECHR case law makes clear that a risk must be identifiable and supported by evidence (for example, evidence relating to the previous conduct of the accused).
14.The grounds listed are that a person might, if granted bail;
Fail to appear at a future court hearing;
Commit further offences;
Interfere with witnesses or otherwise obstruct the course of justice.
15.Subsection (1)(d) gives the court the right to refuse bail on the grounds of ‘any other substantial factor which appears to the court to justify keeping the person in custody.’ This is designed to ensure that the court has sufficiently flexible discretion, but exercise of that discretion will be constrained (as it already is) by ECHR case law. Other factors recognised by ECHR case law, although they will rarely be applicable, include the preservation of public order and the protection of the accused. These factors might, for example, apply where individuals on serious terrorism charges appear before the court.
16.Subsection (2) gives an illustrative and non – exhaustive list of material considerations to which the court must, where they exist and are relevant, have regard when taking the bail decision. The considerations identified are;
The nature and seriousness of the alleged offences;
The probable disposal of the case if the individual were convicted (a strong likelihood of a serious custodial sentence, for example, would be relevant here);
Whether the individual was on bail, or was subject to other court orders or sentences, when the offences with which they are charged were allegedly committed;
The individual’s character and antecedents, including the nature of any previous convictions (including convictions from outside Scotland) and of any previous breaches of court orders or the terms of any release on licence or parole; and
The individual’s associations and community ties (for example whether there is a secure potential bail address and family support for the accused).
17.These reflect the considerations already taken into account under Scots common law. The subsection makes it clear that the court can also take any other material considerations which it identifies into account.