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Criminal Procedure (Amendment) (Scotland) Act 2004

New section 90D – review of orders under section 90B(1)(a) or (b)

108.Section 90D gives the court power to review orders detaining the witness in custody or releasing him on bail.

109.Subsection (1) allows the court on the application of the witness to recall the order detaining the witness in custody and to make an order releasing him on bail or liberating him.

110.Subsection (2) authorises the court on the application of the witness to review the conditions imposed when granting bail; and make a new bail order with different conditions.

111.It also provides that, on the application of the person who applied for the warrant to apprehend the witness (that is, either the prosecutor or the accused) the court may recall the bail order or make a bail order with different conditions. Subsection (3) qualifies that right by providing that the court will only review a bail order in these circumstances where new material evidence is put before it. Under subsection (5) a court receiving such an application is required to intimate the application to the witness, fix a diet and, if it considers it necessary, grant a warrant to apprehend the witness.

112.Before making a new order the court must give the accused, the prosecutor and the witness the opportunity to be heard.

113.Subsection (4) sets the time limits for applications by a witness for a review of an order detaining him in custody or releasing him on bail, which are the same as those which apply in relation to a bail review sought by an accused or convicted person under section 30 of the 1995 Act. A first application may not be made earlier than the fifth day after the order was made and any further application no earlier than the fifteenth day after the order was made. These time limits do not apply to applications from parties citing the witness.

114.Subsection (6) retains the right of any party to appeal against the terms of any order made under Section 90B(1) for a witness to be remanded in custody, released on bail, or liberated.

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