News In Focus

8 February 2012

Bail law held ultra vires

A provision in the Scottish Parliament's Criminal Justice and Licensing (Scotland) Act 2010 has been held outwith its powers by the criminal appeal court in Edinburgh.

Three judges ruled that s58 of the Act, which makes it a condition of an accused being given bail that they take part in an identification parade, or allow a print, impression or sample to be taken from them, whenever reasonably instructed by a constable to do so, infringes article 5 of the European Convention on Human Rights and is therefore not law, in terms of the Scotland Act.

Before s58, it was up to the court or the Lord Advocate to impose additional conditions as they considered necessary to ensure that the accused took part in thses procedures.

The court accepted an argument that to complpy with article 5 (the right to liberty), bail conditions required to relate to a matter which would otherwise justify detention. Bail conditions, as with any decision to detain pending trial, required to be specifically related to the circumstances of the particular case and to be determined judicially according to those circumstances.

The Government's justification for introducing the change was that it would free up court time - a reason the Crown found it difficult to defend at the hearing. (It also admitted that the position prior to the amendment had not been satisfactory.)

Although the Crown tried to argue that article 5 was not engaged - in that it was concerned with actual detention and not release on conditions - the court pointed out that textually, article 5(3) referred to conditions of release from pre-trial detention, which, it added, was naturally interlinked with the right to liberty pending trial.

"The fundamental problem presented in this appeal", said Lord Eassie, delivering the court's opinion, "is that the amendment to section 24 of the 1995 Act which was effected by section 58 of the 2010 Act removes the opportunity for any individual consideration by a judge of whether detention might otherwise be necessary for the purposes to which the amended section 24(5)(cb) refers and thus any individual case consideration of whether that perceived necessity for short term detention might be met by a suitable condition."

Click here to view the court's opinion.


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