Bail and Release from Custody (Scotland) Act 2023
| Jurisdiction | Scotland |
| Year | 2023 |
| Citation | 2023 asp 4 |
Bail and Release from Custody (Scotland) Act 2023
2023 asp 4
An Act of the Scottish Parliament to make provision about the determination of questions of bail; to provide for the court, when sentencing, to have regard to time spent on certain bail conditions; to ensure prisoners are not released on Fridays and certain other days; to provide for the temporary release of long-term prisoners; to enable certain prisoners to be released early in emergency situations; to require certain public bodies to engage in planning for the release of prisoners; to provide support for released prisoners; to provide for information about prisoners to be given to persons or bodies supporting victims; and for connected purposes.
[01 August 2023]
PART 1
BAIL
1 Decisions on bail: relevant information
(1) The Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) is amended as follows.
(2) In section 22A (consideration of bail on first appearance), after subsection (1) insert—
(1A) Before determining whether to admit or refuse to admit the person accused or charged to bail, the sheriff or judge must also give an officer of a local authority an opportunity to provide (orally or in writing) information relevant to that determination.”.
(3) In section 23B (entitlement to bail and the court’s function)—
(a)
(a) at the end of subsection (4) insert“(including submissions in relation to any information provided by an officer of a local authority under section 22A(1A) or in response to a request under subsection (6))”,
(b)
(b) in subsection (6), after “counsel” insert“or an officer of a local authority”,
(c)
(c) after subsection (6) insert—
(6A) Where relevant to a question of bail, and without prejudice to the generality of subsection (6), the court may in particular request the prosecutor to provide it with information in relation to the risk of harm to the complainer.”,
(d)
(d) in subsection (7)—
(i) for “that party” in the first place where it occurs substitute“the prosecutor, the accused person’s solicitor or counsel, or an officer of a local authority”,
(ii) after “party” in the second place where it occurs insert“or officer”.
(4) The Social Work (Scotland) Act 1968 is amended as follows.
(5) In section 27 (supervision and care of persons put on probation or released from prisons etc.), in subsection (1), before paragraph (a) insert—
“(za)
“(za) making available to any court, in accordance with section 22A(1A) or 23B(6) of the Criminal Procedure (Scotland) Act 1995, such information as may be relevant to the court’s determination of whether to grant bail to persons who are accused of or charged with an offence;”.
2 Determination of good reason for refusing bail
(1) The 1995 Act is amended as follows.
(2) In section 23B (entitlement to bail and the court’s function)—
(a)
(a) for subsection (1) substitute—
(1) Bail is to be granted to an accused person unless the court determines that there is good reason for refusing bail.
(1A) The court may determine that there is good reason for refusing bail only if it considers that—
(a)
(a) at least one of the grounds specified in section 23C(1) applies, and
(b)
(b) having regard to the public interest, and having considered the imposition of bail conditions in accordance with subsection (2), it is necessary to refuse bail—
(i) in the interests of public safety, including the protection of the complainer from a risk of harm, or
(ii) to prevent a significant risk of prejudice to the interests of justice.”,
(b)
(b) subsection (3) is repealed,
(c)
(c) after subsection (7) insert—
(8) For the purposes of subsections (1A)(b)(i) and (6A)—
“complainer” means the person against whom the offence to which the proceedings relate is alleged to have been committed,
“harm” means physical or psychological harm,
“psychological harm” includes fear, alarm and distress.
(9) For the purposes of subsection (1A)(b)(ii), “prejudice to the interests of justice” means—
(a)
(a) the accused person evading justice as a result of the proceedings being delayed or discontinued, or
(b)
(b) the course of justice in the proceedings being impeded or prejudiced as a result of—
(i) the destruction, concealment or withholding of evidence,
(ii) the giving of false or misleading evidence, or
(iii) the quality of evidence, or its sufficiency in law, being diminished.
(10) In subsection (9)(b)(iii), the reference to the quality of evidence is to its quality in terms of completeness, accuracy and probative value.”.
(3) In section 23C (grounds relevant as to question of bail)—
(a)
(a) in subsection (1), at the beginning of paragraph (a) insert“subject to subsection (1A),”,
(b)
(b) after subsection (1) insert—
(1A) When determining whether there is good reason for refusing bail in summary proceedings, the court may take account of any such risk as is mentioned in subsection (1)(a) only where—
(a)
(a) the person has previously failed to appear at a relevant diet, or
(b)
(b) the proceedings relate to an offence under section 27(1)(a) or 150(8).”,
(c)
(c) after subsection (2) insert—
(3) In subsection (1A)(a), “relevant diet” means a diet of the court relating to the offence with which the person is charged—
(a)
(a) of which the person has been given due notice, or
(b)
(b) at which the person is required by this Act to appear.”.
3 Removal of restriction on bail in certain solemn cases
Section 23D of the 1995 Act (restriction on bail in certain solemn cases) is repealed.
4 Decisions on bail: duty to state and record reasons
(1) Section 24 of the 1995 Act (bail and bail conditions) is amended as follows.
(2) After subsection (2A) insert—
(2AA) Where the court refuses bail in any proceedings in which a person is accused of an offence, it must—
(a)
(a) state in particular—
(i) the grounds on which it determines, in accordance with section 23B(1A), that there is good reason for refusing bail,
(ii) if refusing bail solely on the ground specified in section 23C(1)(a) (substantial risk of absconding or failing to appear), its reasons for considering under section 23B(1A)(b) that it is necessary to do so, and
(iii) its reasons for considering under section 23B(1A)(b) and (2) that either it would not be appropriate to impose on the accused bail conditions subject to a requirement to submit to monitoring in accordance with Part 1 of the Management of Offenders (Scotland) Act 2019 (electronic monitoring) or that doing so would not adequately safeguard the interests of public safety or justice as mentioned in section 23B(1A)(b)(i) or (ii), and
(b)
(b) have the grounds mentioned in paragraph (a)(i) entered in the record of the proceedings.”.
(3) In subsection (2B)(a), for the words from “a sexual offence” to “Act)” substitute “an offence falling within subsection (2C)”.
(4) After subsection (2B) insert—
(2C) An offence falls within this subsection if it is—
(a)
(a) a sexual offence (having the meaning given by section 210A(10) and (11)),
(b)
(b) an offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018,
(c)
(c) an offence that is aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016,
(d)
(d) an offence under section 39 of the Criminal Justice and Licensing (Scotland) Act 2010 (offence of stalking),
(e)
(e) an attempt, conspiracy or incitement to commit an offence mentioned in paragraph (b), (c) or (d),
(f)
(f) aiding, abetting, counselling or procuring the commission of an offence mentioned in paragraph (b), (c) or (d).”.
(5) In subsection (8), after “this section” insert “(other than subsection (2AA))”.
5 Time spent on electronically monitored bail
After section 210 of the 1995 Act (consideration of time spent in custody) insert—
210ZA
“Consideration of time spent on electronically monitored bail
(1) This section applies where—
(a)
(a) a court passes a sentence of imprisonment or detention on a person for an offence, and
(b)
(b) the person has spent a period of time (“the bail period”) on qualifying bail awaiting trial or sentence.
(2) When passing the sentence, the court must—
(a)
(a) have regard to the bail period,
(b)
(b) specify, in accordance with subsection (3), a period of time (“the relevant period”) which is to be treated as a period of time spent in custody by the person, and
(c)
(c) unless the relevant period is nil, direct (for the purpose of executing the sentence) that the person is to be treated as having served either—
(i) the sentence in full, where the relevant period is equal to or greater than the sentence passed, or
(ii) such part of the sentence as is equal to the relevant period, where the relevant period is less than the sentence passed.
(3) The relevant period is to be the period equal to one-half of either of the following (rounded up, as necessary, to the nearest whole day)—
(a)
(a) the bail period, or
(b)
(b) the bail period less such period (whether all or part of the bail period) as the court considers appropriate to disregard.
(4) Where the court specifies the relevant period in accordance with subsection (3)(b), it must state its reasons for disregarding all or (as the case may be) part of the bail period.
(5) Nothing in this section affects the application of section 210 to any period of time which the person may additionally have spent in custody or in hospital as described in that section.
(6) For the purposes of this section—
(a)
(a) “qualifying bail” means bail subject to a condition—
(i) which requires the person to remain at one or more specified places for a total period (whether or not continuous) of not less than 9 hours in any given day, and
(ii) in relation to which the person is required to submit to monitoring in accordance with Part 1 of the Management of Offenders (Scotland) Act 2019 (electronic monitoring...
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