Bail and Release from Custody (Scotland) Act 2023

The Act: an Overview

3. Part 1 of the Act reforms the legislative framework for bail decisions in respect of accused persons awaiting trial. It amends Part 3 of the Criminal Procedure (Scotland) Act 1995 to (a) enable the court to receive information from justice social work or prosecutors to help inform its decisions on bail, (b) limit the circumstances in which the court may refuse bail, and (c) require the court, when it refuses or grants bail, to state and record particular reasons for its decision. Part 1 also amends Part 11 of the Criminal Procedure (Scotland) Act 1995 to require the court, when it passes a custodial sentence on a person, to have regard to any time spent by the person on certain bail conditions while awaiting trial or sentence. Finally, it requires the Scottish Ministers to prepare and publish a report that sets out certain information on bail and remand which covers the 3-year period after the new bail test comes into force.

4. Part 2 of the Act makes a number of changes related to the release of prisoners. Section 8 makes provision to avoid prisoners being released on days when there might be difficulties accessing support services to assist with their reintegration. Linked with that, sections 12 and 13 will require planning to take place for the release of prisoners and for standards applicable to throughcare support provided to prisoners from the point they are imprisoned (whether on remand or after sentencing) until after their release to be drawn up and published. Section 9 will provide a replacement, for long-term prisoners, for release on “home detention curfew” (currently provided under section 3AA of the Prisoners and Criminal Proceedings (Scotland) Act 1993), while section 11 will put on a permanent footing the Ministerial power to release groups of prisoners early in response to an emergency situation (for example, a public health emergency like the coronavirus pandemic). This will eventually take the place of the narrower and time-limited power related to the pandemic originally included in the Coronavirus (Scotland) Act 2020 and currently included in the Coronavirus (Recovery and Reform) (Scotland) Act 2022 (at paragraphs 25 and 26 of the schedule of that Act). Section 10 will provide the Parole Board for Scotland (“the Parole Board”) with power to review its decisions to recommend or direct the release of prisoners on licence in certain circumstances. Section 14 will modify the law on the provision of information about prisoners (mainly to do with their release and consideration for release) and offenders subject to certain mental health disposals (relating mainly to certain decisions about their management) to victims of crime by providing for such information to be provided to organisations supporting individual victims so that those organisations can do so more effectively. Finally, section 15 requires the Scottish Ministers to prepare and lay before the Scottish Parliament a report, about the operation of the changes to the law made by the other provisions of Part 2, covering the 5-year period after the Bill for this Act receives Royal Assent.

5. Part 3 of the Act contains general provisions about interpretation, ancillary provision, commencement and the short title.