Bail

“Bail” is an accused’s status when they have been allowed to remain at liberty (i.e. not imprisoned) pending the conclusion of their case, subject to conditions.

When someone appears before a court, accused of a criminal offence, there will usually be a reason why the whole proceedings cannot take place in full there and then.

In solemn proceedings, the first appearance on petition involves the accused making no plea, and the case will call again (in one form or another) on another day (potentially months later).

In summary proceedings, there’s a chance that the first appearance might also be the last, if the accused pleads guilty to something or other, and the court does not feel the need to defer sentence for any reason (such as obtaining a Criminal Justice Social Work Report). More often than not, though, there will be further hearings (either a deferred sentence, or a plea of not guilty meaning that the accused will need to attend an intermediate diet and/or trial in future).

In the meantime (in both types of procedure), the accused will either be remanded in custody (i.e. in prison), on bail, or ordained to appear (ordered to come back to court when told to).

If the accused has been brought to court by the police, and the first appearance (on petition or in answer to a summary complaint) is from custody, the most pressing issue in court is usually whether the accused will be remanded in custody or admitted to bail.

The stakes are potentially extremely high, since a long time can elapse between the first appearance and (eventual) trial, particularly in solemn proceedings. At the time of writing, Covid-related court delays, new requirements for socially-distanced courts (making it difficult to physically accommodate multiple-accused trials) and other related measures have meant that accused people could easily be sitting in prison for over a year, waiting for their trial (and, of course, being presumed innocent all the while).

The first appearance is where most arguments about bail take place, but a remanded accused is entitled to apply for bail at any time.

The law in relation to bail is found in Part III of the Criminal Procedure (Scotland) Act 1995.

Grounds for Granting or Refusing Bail

In practice, “money bail” is not a thing in Scotland (in the way that it is on TV in the USA).

The presumption is in favour of bail, as opposed to remanding the accused in custody. s24(1) of the 1995 Act provides that “[a]ll crimes and offences are bailable”, so it is possible to apply for bail regardless of what the accused has been charged with.

s23B of the 1995 Act reads as follows:

In other words, bail should be granted unless there is good reason for not granting it.

s23B(1)(a)(i) makes reference to s23C. This section sets out the “grounds relevant as to [the] question of bail”, and they are largely self-explanatory:

So, the (non-exhaustive) grounds that might constitute a “good reason” for refusing bail are any substantial risk that the accused will:

• abscond (do a runner);
• fail to turn up at their future court dates when they ought to;
• commit any further offences while on bail;
• nobble witnesses, or;
• otherwise obstruct the course of justice (whatever that might entail)

s23C(2) sets out a list of “material considerations” that the court must take into account when deciding whether there is good reason to refuse bail. The length and nature of an accused’s record of previous convictions (s23C(2)(d)(i)) is often the focus of any debate about whether bail should be granted or not.

s23D

s23B(1)(b) makes reference to s23D. This section only applies in solemn proceedings (i.e. proceedings on petition/indictment), when the person applying for bail is accused of one of the following:

• a drug trafficking offence;
• a violent offence;
• a sexual offence, or;
• a domestic abuse offence

and they have one or more previous convictions, on indictment for one of those types of offences (anywhere in the UK, or in a member state of the European Union).

It does not have to be the same type of offence (so, for example, s23D would apply to an accused appearing on petition charged with a sexual offence, who has a previous conviction on indictment for a drug trafficking offence).

The various types of offences are specifically defined in s23D(4).

Where s23D applies, “a person is to be granted bail…only if there are exceptional circumstances justifying bail“.

Establishing “exceptional circumstances” was defined by Lord Brodie in MM v PF Ayr [2009] HCJ 3 as “not by the leading of evidence because that is not the nature of the proceedings when a person appears on petition, but by laying before the court facts and circumstances which might take the case out of the norm and which in that sense may be regarded as “exceptional”, but “exceptional circumstances” has no stronger meaning than that.“

In practice, when an accused is “twenty three D’ed”, it is usually a tall order for them to be granted bail.

Bail Conditions

When an accused person is granted bail, they are released subject to conditions. The “standard conditions”, that must be imposed (s24(4)(a)) are that the accused:

• appears at the appointed time at every diet relating to the offence with which he is charged of which he is given due notice or at which he is required by the 1995 Act to appear;
• does not commit an offence while on bail;
• does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person;
• does not behave in a manner which causes, or is likely to cause, alarm or distress to witnesses, and;
• makes himself available for the purposes of enabling enquiries or a report to be made to assist the court in dealing with him for the offence with which he is charged

You will see that these reflect the “substantial risk” grounds in s23C(1).

Where the accused is charged with a sexual or domestic abuse offence, there is a further standard condition to be added to the list above: that the accused does not “seek to obtain, otherwise than by way of a solicitor, any precognition of or statement by the complainer in relation to the subject matter of the offence” (in other words, “don’t speak to the complainer”).

In addition to the standard conditions, the court can impose any additional conditions (usually referred to as “special conditions”) of bail that it sees fit. Most commonly, these order an accused not to approach or contact a named person (usually the complainer), and/or not to approach or enter a named address.

Before being released from the court cells, the accused will sign and be given a copy of the “bail order” that sets out the conditions of their bail in full. If the accused does not sign their acceptance of the conditions, they will not be released on bail.

It is an offence to breach bail conditions, in accordance with s27(1). Breaching bail is an excellent way to end up being remanded in custody (and lessen your chances of being granted bail in any future cases), so I wouldn’t recommend it.

s28 provides that the police can arrest, without warrant, an accused who has been released on bail “where the constable has reasonable grounds for suspecting that the accused has broken, is breaking, or is likely to break any condition imposed on his bail.” In these circumstances, the accused is brought back to the court that granted bail in the first place. The court has the power to recall the bail order (i.e. have the accused remanded in custody), vary the bail order or re-release the accused on the same bail order.

Just as bail can be granted at any time when an accused is remanded in custody, bail can be “revoked” by the court at any time. This regularly happens when an accused, who has been on bail throughout proceedings, is convicted of an offence for which they will inevitably receive a sentence of imprisonment or detention, and the court defers sentence for the preparation of a Criminal Justice Social Work Report

Bail Reviews and Appeals

The court has the power to review the question of an accused’s bail (either the grant or refusal of bail, or the imposition of certain conditions) on application by either the accused (s30) or the prosecutor (s31). In both cases, there must be “material information” that was not available to the court when it initially made its decision in respect of bail. Broadly speaking, the court has the power to do what it wants in respect of a bail review application, including the modification of bail conditions (which requires a new bail order to be served on the accused) or revocation of bail.

s32 provides that, if the accused has been refused bail, they have the right to appeal that decision. Similarly, if the accused has been granted bail, the prosecutor has the right to appeal.

If the Crown appeals against the granting of bail, the accused is not liberated from custody until the appeal is disposed of.

Bail appeals from the Justice of the Peace Court and Sheriff Court are heard by the Sheriff Appeal Court. The accused is generally not present at bail appeals. The appeal is heard “in court or in chambers after such inquiry and hearing of parties as shall seem just” (s32(4)). The judge who made the decision appealed against will provide the appropriate appeal court with a report setting out the reasons for their decision.