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Criminal Justice (Scotland) Act 2016

Section 26 – Release on undertaking

70.Again, in considering whether to release a person on an undertaking the police will be mindful of their obligations under section 50 of the Act (duty not to detain unnecessarily). Section 26(1) provides for a person to be released from police custody on an undertaking given under section 25(2)(a) only if they sign that undertaking.

71.Section 26(2) specifies the terms of an undertaking and section 26(3) provides for the conditions and the further conditions which may be imposed. With regard to those further conditions, these are illustrated by subsection (4), with paragraph (a) setting out the type of further conditions that only a constable of the rank of inspector or above may impose. Any other condition may be imposed by a constable of the rank of sergeant or above.

72.Section 26(6) provides that the requirement imposed by an undertaking to attend at court and comply with conditions are to be taken to be liberation conditions for the purposes of schedule 1 on breach of liberation conditions. This means that a breach of any condition may be penalised by a fine or a prison sentence as outlined in schedule 1 and a breach which would be an offence were the person not subject to liberation conditions may be taken into account in sentencing for that offence.

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