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Criminal Justice (Scotland) Act 2016

Investigative liberation
Section 16 – Release on conditions

48.Section 16 applies where: a person is in police custody by virtue of the authorisation under section 7 (that is, where a person has been arrested without warrant and not charged, including a case where authorisation has been reviewed and continued under section 13), a constable has reasonable grounds to suspect that the person has committed a relevant offence and the period of 28 days calculated in accordance with section 17(1)(a) has not expired. As explained further below, the effect of section 16 is to enable the police to release such persons from police custody on conditions which may be applied for a maximum period of 28 days following the conditions being imposed. It follows, that a person could not be released again on investigative liberation if arrested again after those 28 days have expired. The meaning of “relevant offence” is given in subsection (6).

49.Subsection (2) provides that a constable of the rank of sergeant or above (subsection (5)) may authorise the release of a person from custody on any condition which is necessary and proportionate for the purpose of ensuring the proper conduct of the investigation into a relevant offence. The meaning of “relevant offence” is given in subsection (6).

50.Section 16(4) ensures that any condition imposed is treated as a liberation condition for the purposes of schedule 1. This means that a breach of any condition may be penalised by a fine or a prison sentence as outlined in schedule 1 and, a breach which would be an offence were the person not subject to liberation conditions may be taken into account in sentencing for that offence.

Section 17 – Conditions ceasing to apply

51.Section 17 provides when conditions imposed on a person under section 16(2) cease to apply: namely, (under section 18) if the condition is removed by the police by notice, if the person is arrested in connection with a relevant offence (“relevant offence” as defined by section 17(2)), if the person is officially accused of committing a relevant offence, at the end of the 28 day period or (under section 19) if the condition is removed as a result of an application for review made to a sheriff against the conditions.

Section 18 – Modification or removal of conditions

52.Section 18 enables a constable, by notice, to modify or remove any condition imposed by the police under section 16(2). A modified condition may be more or less onerous than the condition originally set. Under section 18(2) a notice about the modification or removal of a condition must be given in writing to the person who is subject to it and must specify the time from which the condition is modified or removed. Any modification or removal of a condition requires to be approved by a constable of the rank of an inspector or above. This power gives the police the flexibility to adjust conditions in light of changed circumstances.

53.Section 18(3) provides that a constable of the rank of inspector or above must keep under review whether or not there are reasonable grounds for suspecting that a person who is subject to a condition imposed under section 16(2) has committed a relevant offence (as defined in section 18(8)), and whether the condition imposed remains necessary and proportionate for the purpose of ensuring the proper conduct of the investigation into a relevant offence. If the inspector is no longer satisfied that there are reasonable grounds for suspecting that a person who is subject to a condition has committed a relevant offence, the person must be given notice of the removal of the condition. If no longer satisfied that a condition is necessary and proportionate, again the person must be given notice that the condition is being modified or removed.

54.Section 18(6) provides that any such notice must be given in writing to the person as soon as practicable. The notice must specify the time from which the condition is modified or removed and the time at which the duty to give the notice arose, i.e. the time at which the decision is made by an appropriate constable to remove or modify the condition.

Section 19 – Review of conditions

55.Section 19(1) provides that a person who is subject to a condition imposed under section 16(2) may make an application for review to a sheriff.

56.Section 19(2) requires the sheriff to give the procurator fiscal an opportunity to make representations before the review is determined.

57.Section 19(3) provides that where the sheriff is not satisfied that the condition imposed is necessary and proportionate, the sheriff may remove it or impose an alternative condition which the sheriff considers to be necessary and proportionate for that purpose.

58.Section 19(4) provides that a condition imposed on review by the sheriff under section 19(3) is to be regarded as having been imposed by a constable under section 16(2). This provides that the conditions set by the sheriff have the same effect and are to be taken as having taken effect when set by the police, i.e. the 28 day period is calculated from the date on which the police conditions were set. Conditions imposed by the sheriff can be modified or removed under section 18(1) in the same manner as police conditions.

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Text created by the Scottish Executive department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills

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