Criminal Procedure (Scotland) Act 1995

[F1 23B Entitlement to bail and the court's function S

[F2 (1) Bail is to be granted to an accused person unless the court determines that there is good reason for refusing bail.

(1A) The court may determine that there is good reason for refusing bail only if it considers that—

(a) at least one of the grounds specified in section 23C(1) applies, and

(b) having regard to the public interest, and having considered the imposition of bail conditions in accordance with subsection (2), it is necessary to refuse bail—

(i) in the interests of public safety, including the protection of the complainer from a risk of harm, or

(ii) to prevent a significant risk of prejudice to the interests of justice.]

(2) In determining a question of bail in accordance with subsection (1) above, the court is to consider the extent to which the public interest could, if bail were granted, be safeguarded by the imposition of bail conditions.

F3 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) The court must (without prejudice to any other right of the parties to be heard) give the prosecutor and the accused person an opportunity to make submissions in relation to a question of bail [F4 (including submissions in relation to any information provided by an officer of a local authority under section 22A(1A) or in response to a request under subsection (6))].

(5) The attitude of the prosecutor towards a question of bail (including as to bail conditions) does not restrict the court's exercise of its discretion in determining the question in accordance with subsection (1) above.

(6) For the purpose of so determining a question of bail (including as to bail conditions), the court may request the prosecutor or the accused person's solicitor or counsel [F5 or an officer of a local authority] to provide it with information relevant to the question.

[F6 (6A) Where relevant to a question of bail, and without prejudice to the generality of subsection (6), the court may in particular request the prosecutor to provide it with information in relation to the risk of harm to the complainer.]

(7) However, whether [F7 the prosecutor, the accused person’s solicitor or counsel, or an officer of a local authority] gives the court opinion as to any risk of something occurring (or any likelihood of something not occurring) is a matter for that party [F8 or officer] to decide.]

[F9 (8) For the purposes of subsections (1A)(b)(i) and (6A)—

• “complainer” means the person against whom the offence to which the proceedings relate is alleged to have been committed,

• “harm” means physical or psychological harm,

• “psychological harm” includes fear, alarm and distress.

(9) For the purposes of subsection (1A)(b)(ii), “prejudice to the interests of justice” means—

(a) the accused person evading justice as a result of the proceedings being delayed or discontinued, or

(b) the course of justice in the proceedings being impeded or prejudiced as a result of—

(i) the destruction, concealment or withholding of evidence,

(ii) the giving of false or misleading evidence, or

(iii) the quality of evidence, or its sufficiency in law, being diminished.

(10) In subsection (9)(b)(iii), the reference to the quality of evidence is to its quality in terms of completeness, accuracy and probative value.]

Textual Amendments

F1 Ss. 23B-23D inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 1, 84; S.S.I. 2007/479, art. 3(1), Sch. (as amended by S.S.I. 2007/527)

F2 S. 23B(1)(1A) substituted for s. 23B(1) (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 2(2)(a), 18(2); S.S.I. 2025/52, reg. 2(b)

F3 S. 23B(3) repealed (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 2(2)(b), 18(2); S.S.I. 2025/52, reg. 2(b)

F4 Words in s. 23B(4) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 1(3)(a), 18(2); S.S.I. 2025/52, reg. 2(a)

F5 Words in s. 23B(6) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 1(3)(b), 18(2); S.S.I. 2025/52, reg. 2(a)

F6 S. 23B(6A) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 1(3)(c), 18(2); S.S.I. 2025/52, reg. 2(a)

F7 Words in s. 23B(7) substituted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 1(3)(d)(i), 18(2); S.S.I. 2025/52, reg. 2(a)

F8 Words in s. 23B(7) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 1(3)(d)(ii), 18(2); S.S.I. 2025/52, reg. 2(a)

F9 S. 23B(8)-(10) inserted (14.5.2025) by Bail and Release from Custody (Scotland) Act 2023 (asp 4), ss. 2(2)(c), 18(2); S.S.I. 2025/52, reg. 2(b)