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A Guide to Bail Conditions in Scotland

The courts in Scotland impose bail conditions on a daily basis and the decision to grant bail by a Judge, Sheriff or Magistrate can often be considered controversial depending on the circumstances of a case. An accused person requires to be fully aware of the implications of being on bail and the consequences should the bail order be breached in any way. Charles Drummond of The Glasgow Law Practice has produced a helpful guide on this topic.
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UNDERSTANDING BAIL CONDITIONS.

An accused person is admitted to bail in the event that the judge has been persuaded by their lawyer that they can be trusted to adhere to certain conditions. This is an alternative to the unsatisfactory alternative of a person who is presumed to be innocent being kept in prison during the course of what will often be a lengthy process. If they breach these conditions it is almost inevitable that they will go to prison. They must also be aware that they will have committed a criminal offence and accordingly they will be punished for that offence even if they successfully defend the original allegation.

Bail conditions, read to the accused by the judge and described in the paper work provided to them by the Court and signed by them originate in The Criminal Procedure Scotland Act 1995, sections 24(4) and (5). This is the law.

S: 24 Bail and bail conditions.

(4) In granting bail the court or, as the case may be, the Lord Advocate shall impose on the accused—

(a) the standard conditions; and

(b) such further conditions as the court or, as the case may be, the Lord Advocate considers necessary to secure—

(i) that the standard conditions are observed; and

(ii) that the accused makes himself available for the purpose of participating in an identification parade [F3or other identification procedure] or of enabling any print, impression or sample to be taken from him.

(5) The standard conditions referred to in subsection (4) above are conditions that the accused—

(a) appears at the appointed time at every diet relating to the offence with which he is charged of which he is given due notice;[F4 or at which he is required by this Act to appear]

(b) does not commit an offence while on bail;

(c) does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person; F5...

[F6(ca) does not behave in a manner which causes, or is likely to cause, alarm or distress to witnesses;]

(d)makes himself available for the purpose 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[F7; and

(e)where the (or an) offence in respect of which he is admitted to bail is one to which section 288C of this Act applies, 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.]

If you are the accused then it is critical that you understand the law. Some of it might not be as obvious as you might imagine.

Firstly, you must come to court every time your case calls. These dates will be given to you at court by the Clerk of Court and must always be carefully noted by you.

Secondly, you must not engage in any criminal behavior while on bail. If you do, the nature of this second offence will be considered to be more serious by the court. This is described as being an ‘aggravation’.

Thirdly, you must not interfere with witnesses or any other party involved in the case. This includes parties involved in relation to another person other than you. It may be that another person is co-accused. You must not obstruct the course of justice. For example you must not dispose of items which may be relevant to the case.

Fourthly, you must not threaten witnesses or intimidate them.

The third and fourth points would likely attract additional criminal charges. It is critical, as we shall discuss later, that you understand that this would mean any act direct or indirect and by any means of communication including face to face, by telephone, by text message, by email, by letter or by online social networks. This list is not exhaustive.

Fifthly, you must be available to assist with the gathering of information relevant to the manner in which the court will ultimately deal with your case. This will typically involve taking part in the preparation of Social Work Reports. It is essential that you comply with the appropriate agencies. They may not be court officials, but failure to take part in the preparation of any report requested by the judge will result in you having breached a condition of bail.

Finally, an accused person is of course entitled to test any evidence against them or provide any evidence which they may have which will support their position. However an exception is made in relation to sexual offences where an accused person cannot take a statement or test the recollection (precognition) of their accuser personally. This must be done by way of a third party, usually a solicitor or precognition agent. This extends to representation in court, where a person is entitled to represent themselves however serious the charge, with the exception of a charge relating to an alleged sexual offence.

‘Such further conditions as the court or, as the case may be, the Lord Advocate considers necessary’ are usually referred to as ‘special conditions’. These will sometimes be imposed in addition to the standard conditions already described. Special conditions can be anything deemed necessary in the circumstances, however they will usually involve a prohibition of contacting or attempting to contact or approaching or attempting to approach a particular person or persons or visiting a particular place or places. The geographical reach of prohibition can be extensive.

It is absolutely essential that a person admitted to bail understands what ‘contact’ and ‘approach mean. You will be in breach of your bail conditions if you respond to the prohibited person contacting you. Again the method of communication is absolutely irrelevant. You must not respond. Similarly, if that person or persons approaches you, you must remove yourself from the situation. If you have concerns that your adherence to the bail conditions may be compromised as a result of the actions of a person or persons you are prohibited from communicating with or approaching you should contact the police.

It is possible for a decision to refuse bail to be subject to appeal. It is also available to the Prosecutor to appeal against a decision to grant bail. In either case the procedure demands to be considered by the High Court promptly and an intention to appeal must be expressed immediately.

One other form of bail frequently used is that of a ‘bail undertaking’. This will often be applied when a person has been detained in custody at a Police Station. The person is released on the condition that they undertake to appear of their own volition at a particular court at a particular time and a form providing those details as well as the details of the alleged offence is required to be signed by the accused. On so doing the standard conditions of bail already discussed apply and a failure to appear at court constitutes a criminal offence potentially attracting imprisonment of up to either 60 days if dealt with by a Justice of the Peace Court or 12 months is dealt with by a Sheriff Court. Alternatively, or in addition, a fine of £1000 can also be imposed.

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