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Criminal Justice (Scotland) Act 2003

Section 66 - Bail and Related matters

343.Section 66 makes a number of amendments to sections 103, 105 and 112 of the Criminal Procedure (Scotland) Act 1995 and inserts a new section 105A into the 1995 Act.  These amendments give the prosecutor a right to be heard in bail applications by convicted persons in solemn proceedings and a right to appeal against the grant of appeal.

344.Section 103 of the Criminal Procedure ( Scotland) Act 1995 covers appeals from solemn proceedings.  Full appeals may be heard only by the full court (a three judge bench) but certain procedures - including admitting an appellant to bail - may be carried out by a single judge under Section 103(5)(c). In practice bail courts before a single judge usually consider a mix of pre and post conviction bail applications. Section 103(6) gives the convicted person a right to appeal to the full court where his or her application for bail is refused.

345.Section 66(2) inserts a new subsection (6A) in Section 103 which ensures that where a judge has granted bail, the prosecutor also has a right of appeal to the full court (technically expressed as a right 'to have the application determined by the High Court'). The detail of how this will work is spelled out in new Section 105A (below). It also ensures that Section 103(7) (which allows preliminary proceedings and incidental proceedings for a full appeal to be dealt with by a single judge) applies to an appeal ( or 'application for determination') by a prosecutor under the new section 103(6A) as it applies to an appeal by a convicted person under section 103(6).

346.Section 105 of the 1995 Act covers the procedure to be followed once a single judge has dealt with applications in relation to pending appeals, including applications for bail.

347.Section 66(3) inserts a new subsection 4(A)in that section. This ensures that any application by a convicted person for his bail request to be determined by the full court is notified immediately to the Crown Agent, to allow the Crown to prepare for the hearing before the full court.

348.Section 66(4) inserts a new Section 105A in the 1995 Act.  This sets out in some detail the procedure to be followed where the prosecutor seeks to appeal against the grant of bail by a single judge.

349.It provides that the prosecutor shall appeal against the grant of bail (technically, apply to the judge for a determination by the full Court) immediately after the judge has granted bail under section 103(5)(c).  The Crown therefore has to be ready to appeal immediately after the bail decision but before the hearing concludes.

350.Once the prosecutor has lodged such an appeal, new section 105A provides that bail is suspended pending the full High Court hearing, but that hearing must take place within 7 days.  This is to ensure that a convicted person who has in principle been granted bail does not have long to wait for a final determination of his or her bail application.

351.Under the new section 105A the convicted person's right to attend the full determination of his or her case by the High Court will be the same when the prosecutor appeals as it is when the convicted person him or herself does so.

  • Where they are not legally represented, the convicted person may appear;

  • Where they are legally represented, their lawyer will be present, and they must seek the further leave of the court to be personally present as well. This is done by filling in and returning the form issued by the Clerk of Justiciary. When the form is returned, the application is considered by the court and the Clerk then informs the applicant and other interested parties of the outcome.

352.Finally, new section 105A simply replicates in relation to an application (appeal) by the prosecutor the existing provisions of section 105(6) in relation to an appeal by a convicted person, confirming that a judge who has taken the decision which is being appealed by the prosecutor may sit as a member of the bench which considers the prosecutor’s application.

353.Section 112 of the 1995 Act sets out the procedure to be followed when a person seeks bail pending appeal.  Section 112(1) - (5) covers applications for bail following solemn conviction.  Section 112(6) - (8) set out the procedure to be followed when in solemn or summary proceedings a devolution appeal is lodged under paragraph 13 (a) of Schedule 6 to the Scotland Act 1998. (section 177(8) of the 1995 Act, which covers post conviction summary appeals in general, specifies that the provisions of section 112 on post conviction devolution appeals apply to summary appeals as they do to solemn ones).

354.Section 66(5) makes the changes necessary to section 112 to provide for a right for the prosecutor to be heard when the court is considering an application for bail by a convicted person pending appeal.

355.Sub-paragraph (b) (new subsections (2) and (2A) of section 112) ensures that reasons for granting bail are stated in all applications for bail, whether or not the note of appeal has been lodged.  At present, reasons are required only where the convicted person is the appellant and he or she has  lodged a note of appeal or where the Lord Advocate is the appellant  The issues covered in the note of appeal can be quite different to those which might justify bail It also provides that the prosecutor has the right to be heard before the judge decides whether bail should be granted

356.In new subsection (2A), the amendment simply ensures that the 'exceptional circumstances' test (bail not to be granted unless there are exceptional circumstances) continues to apply as it does at present - to cases where no note of appeal has been lodged and to cases where the Lord Advocate is appealing a sentence he or she considers too lenient.

357.Sub-paragraphs (c) and (d) make the provision necessary to ensure that the prosecutor's new right to be heard is carried over to applications for bail pending devolution appeals -, where the appeal relates to a conviction on indictment.  Such applications must continue to state the reasons for granting bail and the 'exceptional circumstances' test will also  continue to apply in all such cases

358.Sub-paragraph (e) ensures that where a person convicted on indictment makes an application for bail pending an appeal (whether that is an appeal against conviction and/or sentence under section 112(1) or a devolution appeal under Section 112(6)) that application must be notified immediately and in writing to the Crown Agent.  The hearing must take place not less than 7 days later, to give the Crown time to prepare.

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