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High Court limits effect of bail decision

22 February 2012

The criminal appeal court has limited the retroactive effect of its decision that a recent enactment of the Scottish Parliament relating to bail was beyond the Parliament's powers.

Earlier this month, in the appeal by Grant Cameron (click here for report), the court ruled that s 58 of the Criminal Justice and Licensing (Scotland) Act 2010 infringed the right to liberty in the Human Rights Convention, by making it part of the standard conditions of bail that an accused take part in an identification parade, or undergo certain other procedures, on being reasonably required by a constable. The breach of rights lay in not relating the condition to the circumstances of each case, and in leaving no room for judicial consideration of the condition.

The Crown then asked the court to make an order under the Scotland Act, s 102 that the decision should only apply to cases where bail had been granted but the trial had not yet begun, or was still in progress, and to any appeal brought timeously and not yet concluded. That would preclude any possible claims or appeals arising out of cases already concluded.

While that would be the normal effect of a decision at common law, as the Supreme Court held in the Cadder case in 2010, the Crown asked the court to put the matter beyond doubt. Today Lords Eassie, Brailsford and Osborne granted the Crown motion "in the interests of clarity and legal certainty". 

Click here to view the decision. 

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