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.


Have your say





News reel

Views to be sought on achieving access to justice

30 Oct 09

Council debates paper on legal aid and alternatives

Double hire for Edinburgh law firm

30 Oct 09

Davidson Chalmers attracts two specialist partners

Leading lawyer dies suddenly

30 Oct 09

Ian Cuthbertson was recognised authority on insolvency and restructuring

Perth sheriff renews criticism of early release

30 Oct 09

Sheriff Foulis concerned by court appearance of man freed after 12 weeks

Brodies hires M&A specialist

29 Oct 09

William McIntosh to join firm's corporate department

Bill will give power to disconnect illegal internet file-sharers

29 Oct 09

Mandelson says steps necessary in face of "genuine threat" to creative industries

Police Complaints Commissioner welcomes 15% rise in inquiries

29 Oct 09

Still work to be done to educate public on their rights, says annual report

Authorities "not making full use" of asset-seizing powers

29 Oct 09

Report says greater use should be made of Proceeds of Crime Act

Shepherd and Wedderburn appoints new head of employment

28 Oct 09

Neil Maclean joins from Anderson Strathern

Ferry inquiry clears Scottish ministers

28 Oct 09

EU Commission finds aid to services did not breach EU competition law

Economy could limit use of community sentences, say social work chiefs

28 Oct 09

National association warns of funding threat to Government policy

Government warned of "moral hazard" over Home Owner Bill

28 Oct 09

Insolvency practitioner says proposed law could be abused by unscrupulous borrowers

Electoral Commission urges action to improve Scottish elections

27 Oct 09

Watchdog warns of complacency ahead of UK General Election

Government launches consultation on credit card practices

27 Oct 09

Move part of drive to "give consumers a fairer deal"

Arguments over sex offender figures

27 Oct 09

Questions whether low reoffending rate shows a worsening position

Scottish law firm scoops two top awards

26 Oct 09

Harper Macleod honoured at European Practice Management Awards

SYLA debates treatment of trainees

26 Oct 09

Top speakers debate whether trainees "there to be exploited"

Fresh investigation launched into Lockerbie bombing

26 Oct 09

Crown Office says review of the case is following several lines of inquiry

Journal in awards lists again

23 Oct 09

Editor shortlisted in PPA Magazine Awards

Push against fine dodgers bringing results

23 Oct 09

Fixed penalty recovery rates up as enforcement measures bite

Judges reject appeal over police questioning

23 Oct 09

Police can quiz suspects without lawyer

"Unethical investments" case against Treasury rejected

23 Oct 09

High Court blocks request for judicial review

Blow to plan for minimum pricing on alcohol

23 Oct 09

EU opinion on tobacco puts Government proposals in doubt

Judge Lord Macphail dies after illness

23 Oct 09

Author and expert on sheriff court procedure dies at 71

Inquiry into Megrahi release announced

22 Oct 09

MPs to investigate release of Lockerbie bomber

Findlay warns over impartiality and internet use

21 Oct 09

Veteran QC calls for change in law to protect jurors

Treasury in dock over "unethical" RBS investments

20 Oct 09

High Court hears claim over "environmentally damaging" practices

Police criticised over complaints procedure

20 Oct 09

PCCS calls for transparency and consistency in decisions on further proceedings

Inspectorate of Prosecution annual report out

20 Oct 09

Area reports and summary justice reform dominated year's work

Floating sheriff appointment

20 Oct 09

Advocate Donald Corke has all-Scotland commission based in Airdrie

SNP moves to scrap ‘right to buy’ legislation

19 Oct 09

Government says policy on council houses has 'had its day'

FSA sets out reforms to the mortgage market

19 Oct 09

City watchdog plans new affordability tests

Glasgow law centre faces closure after funding switch

16 Oct 09

East End Community Law Centre loses £250,000 council grant as advice network redrawn

High Court rejects Government stance on Equitable Life

16 Oct 09

Ruling opens way for some redress for 1,000,000 policyholders

Brodies wins regional legal team award

16 Oct 09

Society of Trust and Estate Practitioners praise client service and commercial thinking

No reclaiming benefits paid in error, says appeal court

15 Oct 09

Judges uphold Child Poverty Action Group appeal in ruling that could mean billions

Survey shows mixed views on judicial appointments

15 Oct 09

Judicial Appointments Board research reveals perceptions discouraging applications

Promotion as Anderson Strathern set up advocacy unit

15 Oct 09

Chris Dickson made partner and head of unit

Tods call for teams to meet fundraising challenge

15 Oct 09

"Halfway Hospice Challenge" combines cycle ride with team tasks

Judges put limits on breach of the peace

14 Oct 09

Fifty-year-old case overruled as court excludes conduct in private

RBS sets up new hotline for small businesses

14 Oct 09

"Second opinion" service seen as bid to bolster business lending to meet Government targets

Dailly appointed to FSA panel

13 Oct 09

Govan Law Centre solicitor one of three new members of consumer panel

Law firm commended for arts support

13 Oct 09

Four students now at Glasgow School of Art thanks to Maxwell MacLaurin's "clinics"

Appeal court orders review of injured servicemen's compensation

13 Oct 09

Ministry of Defence appeal over payments partly upheld

Society seeks views on Council shakeup

12 Oct 09

Proposal would see 35 constituency members on 60-strong body

Elderly abuse the next problem to tackle

12 Oct 09

Report suggests growing problem both in care homes and at home

Semple Fraser to open first office in England

12 Oct 09

Firm says Manchester move will boost its position in the full UK market

Protection proposed for unauthorised tenants

9 Oct 09

Government plans would stave off eviction on repossession of property by lender

GSPC reports house price turnaround

9 Oct 09

Year-on-year rise of 2.2% and shorter selling times as transaction numbers remain "subdued"

Murderer loses ID parade voice test human rights appeal

9 Oct 09

Court rejects argument that asking him to speak at parade infringed his human rights

Stronachs' results show effect of recession

9 Oct 09

First LLP figures show 30% profit dip

Committee calls for stronger coastal protection duty

8 Oct 09

Government should have duty to maintain health of coastal areas, says bill committee

Governments agree changes to carbon reduction scheme

8 Oct 09

Increased options for businesses faced with compliance duties

Ministers to consult on mobile home rights

8 Oct 09

Proposed package to be put out for views next year

Scottish Employment Tribunal President appointed

7 Oct 09

Shona Simon takes up office immediately

Time limits and MIB claims

7 Oct 09

Bureau will look again at cases involving nonage or disability

Reprieve appeal

7 Oct 09

Call for lawyers to donate hourly rate to help combat rights abuses

Supreme Court on camera

7 Oct 09

Court exempted from prohibition on photography

Homeowners win right to sue over share-gain mortgages

7 Oct 09

Banks braced for action over "shared appreciation mortgages"

Investors’ group calls for buy-to-let regulation

7 Oct 09

British Property Federation demands rethink on lack of controls

Phone line launched for sex abuse children

7 Oct 09

Dumfries and Galloway Council trying to track down victims

Former solicitor jailed for embezzling £413,000

5 Oct 09

Michael Karus took money for himself, court heard

Ronnie Wadsworth joins Ledingham Chalmers

5 Oct 09

High-profile addition to firm’s Aberdeen office

Draft bills unit working to capacity

5 Oct 09

Unit for Scottish Parliament members' bills booked up to end of session

Cherie Blair helps launch Scottish Human Rights Law Group

2 Oct 09

Student initiative wins support from leading QC

Bill published to help people in financial difficulty

2 Oct 09

Scottish Government launches measures for homeowners and those in debt

Council to pay £20,000 each to victims of sex abuse

2 Oct 09

Payments and apology made to former Merkland Children's Home residents

Prisoners reach settlements in solitary confinement cases

2 Oct 09

Prison Service says £2,100 payout was a purely economic decision

Legal Services Bill published

1 Oct 09

Blueprint launched for new framework for legal profession

Accountant in Bankruptcy office has new head

1 Oct 09

Rosemary Winter-Scott succeeds Gillian Thompson as Agency chief executive

Borrowing to be allowed for councils to meet equal pay backlog

1 Oct 09

Finance Secretary launches new initiative to help settle claims

Disabled people "still facing access problems"

1 Oct 09

Five years after Discrimination Act problems remain, says Capability Scotland

News Library

2012

2011

2010

2009

2008

2007

2006

2005

2004

FILLER_lawscotjobs (link opens in new window)