Explanatory Notes
2023 asp 4
1 August 2023
The Act: Section by Section
14.The second part of the test, however, limits the circumstances in which the court may refuse bail. If the first part of the test is met, then under new section 23B(1A)(b), the court may refuse bail only if it considers it necessary to do so for one (or both) of the public interest reasons specified. The first reason is that it is necessary in the interests of public safety. Although not defined, the reference here to “public safety” essentially has the same meaning as the existing reference in section 23B(3). It continues to take the ordinary dictionary meaning of “public” and “safety” combined. Except that the interests of public safety are explicitly stated to include the protection of the complainer from a risk of harm. In this context, “harm” means physical or psychological harm and “psychological harm” includes fear, alarm and distress (see new section 23B(8), added by section 2(2)(c) of the Act). The second reason is that it is necessary to prevent a significant risk of prejudice to the interests of justice. The expression “prejudice to the interests of justice” is defined to mean either (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 various adverse outcomes relating to the availability, veracity, quality and sufficiency of evidence (see new section 23B(9) and new section 23B(10), which further defines what is meant by the “quality” of evidence, both added by section 2(2)(c) of the Act).