Bail and Release from Custody (Scotland) Act 2023

Section 1—Decisions on bail: relevant information

6. Section 1 enables the court to receive information from a justice social worker (referred to as “an officer of a local authority”1) to help inform its decision on whether to grant bail to a person accused of or charged with an offence.

7. Section 1(2) amends section 22A of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”). Section 22A of the 1995 Act deals with the court’s first consideration of bail. It requires the court before which an accused person first appears to give both the accused and the prosecutor an opportunity to be heard, and then either admit or refuse to admit the accused to bail. Section 1(2) adds a new subsection (1A) to section 22A of the 1995 Act. This further requires the court, before deciding on bail, to give a justice social worker an opportunity to provide information relevant to that decision. It does not impose a duty to provide information, but rather ensures that a justice social worker who has information relevant to a question of bail is automatically given the opportunity to share that information directly with the court. A justice social worker who wishes to take up that opportunity may give the information orally or in writing. However, the court must still come to a decision on bail within the time limit set by section 22A(2) of the 1995 Act (that is, before the end of the day after the accused’s first appearance).

8. Section 1(3) amends section 23B of the 1995 Act. Section 23B regulates the court’s consideration of bail, whether it is on an accused person’s first appearance (in accordance with section 22A) or in relation to a subsequent bail application made under section 23. It establishes the general entitlement to bail and sets out the decision-making process that the court must follow before granting or refusing bail. Section 23B(6) enables the court, as part of that process, to request further information from the prosecutor or the accused’s legal representative to assist it in reaching a decision on bail. But section 23B(7) makes it clear that, while the court may seek either party’s view as to the potential risks associated with granting bail, that party is not compelled to give such a view. Section 1(3)(b) and (d) extends section 23B(6) and (7) of the 1995 Act so as to allow the court to request additional information from a justice social worker to help inform its decision on bail. Like the parties to the proceedings, a justice social worker is not obliged to give a view on potential risks. Section 1(3)(c) adds a new subsection (6A) to section 23B of the 1995 Act. In addition to the court’s general power under section 23B(6), new section 23B(6A) specifically entitles the court to ask the prosecutor to provide it with information relating to the risk of harm to the complainer where that information is relevant to a question of bail in the case before it (see new section 23B(8), added by section 2(2)(c) of the Act, for definitions of “complainer” and “harm”).

9. Section 1(3)(a) amends section 23B(4) of the 1995 Act in consequence of the changes made by section 1(2) and (3)(b) and (d), enabling justice social workers to provide relevant information directly to the court. Section 23B(4) requires the court to give the prosecutor and the accused an opportunity to make submissions in relation to the question of bail. The duty is expanded to explicitly include giving the parties the right to make submissions in relation to any information provided by a justice social worker (whether under new section 22A(1A) or in response to a request under section 23B(6) as amended). This expressly entitles either party to verify, challenge or otherwise comment on any information which a justice social worker may provide that is relevant to the court’s decision on bail.

10. Section 1(5) amends section 27(1) of the Social Work (Scotland) Act 1968. Section 27(1) lists the various justice-related purposes for which every local authority must provide a service. The list is extended to include the provision of information, in accordance with section 22A(1A) or 23B(6) of the 1995 Act, that is relevant to a court’s decision on whether to grant bail to persons accused of or charged with an offence.

1

See section 307(1) of the Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk) for a definition of “local authority”.