Bail and Release from Custody (Scotland) Act 2023

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 “the bail period” and is defined in new section 210ZA(6)(b).

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 “the relevant period” and is to be calculated in accordance with new section 210ZA(3). Unless the relevant period is nil, the court must direct that the person is to be treated as having served the equivalent period as a portion of the sentence passed. The Scottish Prison Service will take account of that direction when calculating the person’s release date. Where the relevant period matches or exceeds the sentence passed, however, the court must direct that the person is to be treated as having served the sentence in full.

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.

2

See section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010 (legislation.gov.uk) for details of the affirmative procedure.