Part 1: Bail
Section 1—Decisions on bail: relevant information
6.Section 1 enables the court to receive information from a justice social worker (referred to as “
7.Section 1(2) amends section 22A of the Criminal Procedure (Scotland) Act 1995 (“
8.Section 1(3) amends section 23B of the 1995 Act. Section 23B regulates the court’s consideration of bail, whether it is on an accused person’s first appearance (in accordance with section 22A) or in relation to a subsequent bail application made under section 23. It establishes the general entitlement to bail and sets out the decision-making process that the court must follow before granting or refusing bail. Section 23B(6) enables the court, as part of that process, to request further information from the prosecutor or the accused’s legal representative to assist it in reaching a decision on bail. But section 23B(7) makes it clear that, while the court may seek either party’s view as to the potential risks associated with granting bail, that party is not compelled to give such a view. Section 1(3)(b) and (d) extends section 23B(6) and (7) of the 1995 Act so as to allow the court to request additional information from a justice social worker to help inform its decision on bail. Like the parties to the proceedings, a justice social worker is not obliged to give a view on potential risks. Section 1(3)(c) adds a new subsection (6A) to section 23B of the 1995 Act. In addition to the court’s general power under section 23B(6), new section 23B(6A) specifically entitles the court to ask the prosecutor to provide it with information relating to the risk of harm to the complainer where that information is relevant to a question of bail in the case before it (see new section 23B(8), added by section 2(2)(c) of the Act, for definitions of “complainer” and “harm”).
9.Section 1(3)(a) amends section 23B(4) of the 1995 Act in consequence of the changes made by section 1(2) and (3)(b) and (d), enabling justice social workers to provide relevant information directly to the court. Section 23B(4) requires the court to give the prosecutor and the accused an opportunity to make submissions in relation to the question of bail. The duty is expanded to explicitly include giving the parties the right to make submissions in relation to any information provided by a justice social worker (whether under new section 22A(1A) or in response to a request under section 23B(6) as amended). This expressly entitles either party to verify, challenge or otherwise comment on any information which a justice social worker may provide that is relevant to the court’s decision on bail.
10.Section 1(5) amends section 27(1) of the Social Work (Scotland) Act 1968. Section 27(1) lists the various justice-related purposes for which every local authority must provide a service. The list is extended to include the provision of information, in accordance with section 22A(1A) or 23B(6) of the 1995 Act, that is relevant to a court’s decision on whether to grant bail to persons accused of or charged with an offence.
Section 2—Determination of good reason for refusing bail
Changes to the bail test in section 23B of the 1995 Act
11.Section 2 reframes the test which the court must apply when considering whether to grant bail to a person accused of or charged with an offence. As mentioned in paragraph 8 above, section 23B of the 1995 Act sets out that test. Section 23B(1) entitles an accused person to bail except where, by reference to section 23C (grounds relevant to question of bail) and having regard to the public interest, there is good reason for refusing bail. This is subject to section 23D of the 1995 Act, which restricts the granting of bail in certain solemn cases (this is explained further in paragraph 20 below).
12.Section 2(2)(a) amends section 23B of the 1995 Act. It replaces subsection (1) of that section with new subsections (1) and (1A). New section 23B(1) restates the general entitlement to bail. It provides that bail is to be granted to an accused person unless the court determines that there is good reason for refusing bail. New section 23B(1A) sets out the sole basis on which the court may determine that there is good reason for refusing bail. Although it involves a similar two-part test to the one that currently applies under section 23B(1), it narrows the court’s discretion to refuse bail.
13.The first part of the test remains the same. Under new section 23B(1A)(a), the court may refuse bail only if it considers that at least one of the grounds specified in section 23C(1) of the 1995 Act applies. Section 23C(1) lists specific grounds for refusing bail. The list is exhaustive and contains grounds which fall into two categories. The first category requires there to be a “substantial risk” of something adverse happening if the accused were to be granted bail – namely, the accused absconding or failing to appear at court, committing further offences, interfering with witnesses or otherwise obstructing the course of justice. The second category requires there to be some other “substantial factor” which justifies remanding the accused in custody. In assessing the grounds for refusal, the court must have regard to all material considerations. Section 23C(2) of the 1995 Act provides an illustrative list of examples. They include: the nature of the offences before the court; the probable disposal of the case if the accused were convicted of the offences; the question of whether the accused was subject to a bail order, or some other court order, when the offences are alleged to have been committed; the character and antecedents of the accused; and the associations and community ties of the accused.
14.The second part of the test, however, limits the circumstances in which the court may refuse bail. If the first part of the test is met, then under new section 23B(1A)(b), the court may refuse bail only if it considers it necessary to do so for one (or both) of the public interest reasons specified. The first reason is that it is necessary in the interests of public safety. Although not defined, the reference here to “public safety” essentially has the same meaning as the existing reference in section 23B(3). It continues to take the ordinary dictionary meaning of “public” and “safety” combined. Except that the interests of public safety are explicitly stated to include the protection of the complainer from a risk of harm. In this context, “
15.In considering whether the “necessity test” under new section 23B(1A)(b) is met, the court must still have regard to the wider public interest. In doing so, it must continue to consider the extent to which the public interest could (if bail were granted) be safeguarded by imposing bail conditions (see sections 23B(2) and 24(4) and (5) of the 1995 Act). So, where one of the grounds for refusal in section 23C of the 1995 Act applies, the court may refuse bail only if it considers that imposing bail conditions would not adequately safeguard the interests of public safety or (as the case may be) justice as set out in new section 23B(1A)(b)(i) or (ii).
16.Finally, as a consequential amendment, section 2(2)(b) repeals the definition of “public interest” in section 23B(3) of the 1995 Act. It defines “public interest” as including the interests of public safety. The definition is no longer required, however, given that it has been incorporated into the necessity test in new section 23B(1A)(b)(i).
Change in how section 23C(1)(a) of the 1995 Act applies in summary cases
17.Section 2(3) limits the extent to which the court may refuse bail, in summary proceedings, on the ground specified in section 23C(1)(a) of the 1995 Act. The section 23C(1)(a) ground is based on a substantial risk that the accused, if granted bail, might abscond or fail to appear at court diets as required.
18.Section 2(3)(b) adds a new subsection (1A) to section 23C of the 1995 Act. This provides that, when deciding on bail in summary cases, the court may only consider the section 23C(1)(a) ground of refusal in two sets of circumstances. The first is where the accused has failed to appear at a previous hearing of the case, having been granted bail or been ordained to appear (such a hearing is referred to as a “
19.Section 2(3)(c) adds a new subsection (3) to section 23C of the 1995 Act. This defines “
Section 3—Removal of restriction on bail in certain solemn cases
20.Section 3 repeals section 23D of the 1995 Act. Section 23D makes special provision in relation to certain solemn cases, which fall into two categories. The first category covers those cases where a person is accused of a violent offence, a sexual offence or a domestic abuse offence and has a previous conviction on indictment for an offence of that kind. The second category covers those cases where a person is accused of a drug trafficking offence and has a previous conviction on indictment for that offence. Section 23D provides that, in those cases, a person is to be granted bail only if there are exceptional circumstances justifying bail. The repeal of that section means that the general bail test in new section 23B(1) and (1A) will apply to those cases instead. Accordingly, in applying that test, the court may refuse bail in those cases (as in any case) if it determines that there is good reason for doing so.
Section 4—Decisions on bail: duty to state and record reasons
21.Section 4 expands on the court’s general duty under section 24(2A) of the 1995 Act to state its reasons whenever it grants or refuses bail.
22.Section 4(2) adds a new subsection (2AA) to section 24 of the 1995 Act. This requires the court, when refusing bail, to state particular reasons for its decision. Firstly, it must state the grounds on which it determines (in accordance with new section 23B(1A) of the 1995 Act) that there is good reason for refusing bail. Secondly, when refusing bail solely on the ground specified in section 23C(1)(a) of the 1995 Act (that is, substantial risk of absconding or failing to appear), it must state why it considers that the necessity test in new section 23B(1A)(b) is met. And, thirdly, it must state its reasons for refusing to grant bail subject to an electronic monitoring requirement under Part 1 of the Management of Offenders (Scotland) Act 2019 – more specifically, its reasons for considering either that imposing bail conditions subject to such a requirement would not be appropriate, given the accused’s circumstances, or that doing so would not be enough to properly safeguard the interests of public safety or justice as mentioned in new section 23B(1A)(b)(i) or (ii). The court must also ensure that the grounds mentioned in new section 24(2AA)(a)(i) are added to the record of the proceedings. This means that the specific grounds on which the court determines that there is good reason for refusing bail must be both stated in open court and recorded in the court minutes.
23.Section 4(5) amends section 24(8) of the 1995 Act. Section 24(8) provides that references to certain expressions within sections 24, 25 and 27 to 29 are to be read in a way which means these sections can apply in relation to interim liberation cases. The amendment expressly disapplies this provision in relation to new section 24(2AA). This ensures that the duty in new section 24(2AA) applies only in relation to pre-trial/pre-conviction bail decisions.
24.Section 4(3) and (4) amends subsection (2B) of, and adds a new subsection (2C) to, section 24 of the 1995 Act. Section 24(2B) provides that where the court grants bail on standard conditions to a person accused of a sexual offence, it must state why it considers in the circumstances of the case that it is not necessary to impose any additional (“special”) conditions of bail. Such special conditions of bail may include, for example, protective conditions that preclude an accused person from (a) approaching or contacting, or attempting to approach or contact, a named complainer, and/or (b) being at or entering a complainer’s home address. New section 24(2C) extends the requirement to state reasons under section 24(2B) so that it applies also where the court grants bail on standard conditions to a person accused of an offence involving domestic abuse or an offence of stalking.
Section 5—Time spent on electronically monitored bail
25.Section 5 adds a new section 210ZA to Part 11 of the 1995 Act (sentencing). This makes similar provision to section 210 of the 1995 Act. Section 210 requires the court, when passing a custodial sentence on a person for an offence, to have regard to any period of time which the person has spent in custody awaiting trial or sentence and to backdate or reduce the term of the sentence as appropriate. New section 210ZA similarly requires the court, when passing a custodial sentence on a person, to have regard to any period of time which the person has spent on “qualifying bail” awaiting trial or sentence. That period is referred to as “
26.New section 210ZA(6)(a) defines “qualifying bail” by reference to two criteria. Firstly, to qualify it must be bail subject to a curfew condition – that is, a condition which requires the person to remain at one or more specified places for a total period of at least 9 hours in any given day. The total (minimum 9-hour) period need not be continuous, as the curfew hours will likely straddle different days by running through the night and into the next morning. Secondly, the person’s compliance with that condition must be electronically monitored in accordance with Part 1 of the Management of Offenders (Scotland) Act 2019.
27.New section 210ZA(2) requires the court, when passing a custodial sentence, to have regard to the bail period and to specify a period of time which is to be treated as “time served” towards the sentence. That period is referred to as “
28.New section 210ZA(3) sets out what the relevant period to be specified by court is to be. It may be one-half of the bail period (this effectively treats a day spent on qualifying bail as the equivalent of half a day spent in custody). Alternatively, it may be one-half of whatever portion (if any) of the bail period that the court decides is appropriate to specify. The court has discretion, therefore, to disregard all or part of the bail period if it considers it appropriate to do so in the circumstances of the case. Where it does disregard all or part of the bail period, the court must (under new section 210ZA(4)) state its reasons for this.
29.In cases where a person has additionally spent a period of time in custody (or detained in hospital) while awaiting trial or sentence, new section 210ZA(5) makes it clear that section 210 of the 1995 Act is to continue to apply to that period in the usual way.
30.New section 210ZA(7) and (8) enables the Scottish Ministers to amend the section by regulations subject to the affirmative procedure.(2) In particular, it confers a power to modify the meaning of “qualifying bail”, “the bail period” and “the relevant period”. This allows the Scottish Ministers to extend new section 210ZA to apply to other types of bail, or to change how the period to be treated as “time served” is to be calculated. It also confers a power to further modify new section 210ZA, or to modify any other legislation, to make any additional provision that is considered appropriate. To ensure the effectiveness of any future modification, the regulation-making power includes the power to make ancillary provision.
Section 6—Report on bail and remand
31.Section 6 imposes a duty on the Scottish Ministers to prepare and publish a report setting out certain information on bail and remand. They must do so as soon as reasonably practicable after the end of the reporting period, which is the 3-year period after section 2 (which reframes the bail test) comes into force.
32.Section 6(2) lists specific information which the report must set out for each year of the reporting period. In relation to remand, this includes: the average daily remand population; the number of individuals who entered the remand population by reference to particular factors; an analysis of the length of time that individuals spent within the remand population; and certain information regarding women within the remand population. In relation to bail, it includes: the number of bail orders made by reference to the offence or type of offence in respect of which bail was granted; the number of bail orders made in respect of individuals who would otherwise have been subject to the restriction on bail in section 23D of the 1995 Act (but for its repeal by section 3 of the Act); the number of convictions for bail-related offences; and the number of convictions for offences committed while on bail. Section 6(5) and (6) defines specific terms and expressions used in the list of information, including “remand population” and “bail-related offence”.
33.However, section 6(3) enables the Scottish Ministers to include additional information in the report. They may report on how the legislative changes made by Part 1 of the Act, including in particular the repeal of section 23D of the 1995 Act, have worked out in practice. Where they do so, they must consult the persons listed in section 6(4) when preparing the report. The consultees listed are those who can provide relevant information on the experiences and perspectives of the police, prosecutors, the courts, justice social work and victim support organisations. The Scottish Ministers may also include any other information (including gender-specific information) that they consider appropriate. Section 6(3) further gives them the discretion to prepare and publish the report in whatever form they think is most appropriate, including publishing it as part of another document.
Section 7—Recording of reasons for granting bail in certain solemn cases
34.Section 7 makes temporary provision in connection with the Scottish Ministers’ power under section 6(3)(a) to report on the effect of repealing the restriction on bail in section 23D of the 1995 Act. It applies only in relation to those individuals who would otherwise have been subject to that restriction (as described in paragraph 20 above). So, where the court grants bail to such an individual, section 7 requires the court to state its reasons and have them recorded in the court minutes. This is a time-limited duty, which applies only during the 3-year reporting period (as defined in section 6(5)). The recorded reasons will allow for the report on bail and remand to include information on how the new bail test has operated, during that period, in relation to those cases that previously would have been decided in accordance with section 23D.
See section 307(1) of the Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk) for a definition of “local authority”.
See section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010 (legislation.gov.uk) for details of the affirmative procedure.
