Legalize / United Kingdom / Public General Act

Criminal Procedure (Scotland) Act 1995

Type Public General Act

Publication 1995-11-08

Last updated 2026-04-07

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

“specified relevant offence” means— any relevant sexual offence mentioned in paragraphs (a), (b), (f) and (i)(viii) of the definition of that expression and any such offence as is mentioned in paragraph (h) of that definition where the person against whom the offence was committed did not consent; andany relevant violent offence mentioned in paragraph (a) or (g) of the definition of that expression and any such offence as is mentioned in paragraph (e) of that definition where the assault is to the victim’s severe injury,but, notwithstanding subsection (7) below, does not include—conspiracy or incitement to commit; andaiding and abetting, counselling or procuring the commission of,any of those offences.

(6A) In subsection (6)—

(a) the references to “rape” in paragraphs (c) and (d) of the definition of “relevant sexual offence” are to the offence of rape at common law; and

(b) the references in paragraphs (ca) and (da) of that subsection to “the statutory offence of rape” are (as the case may be) to?

(i) the offence of rape under section 1 of the Sexual Offences (Scotland) Act 2009, or

(ii) the offence of rape of a young child under section 18 of that Act.

(7) In this section—

(a) any reference to a relevant offence includes a reference to any attempt, conspiracy or incitement to commit such an offence; and

(b) any reference to—

(i) a relevant sexual offence mentioned in paragraph (i) or (j); or

(ii) a relevant violent offence mentioned in paragraph (h),

of the definition of those expressions in subsection (6) above includes a reference to aiding and abetting, counselling or procuring the commission of such an offence.

Samples etc. from sex offenders

19AA

(1) This section applies where a person is subject to—

(a) the notification requirements of Part 2 of the 2003 Act;

(b) an order under section 27 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016; or

(c) an order under section 122A or 123 of the 2003 Act (which makes provision for England and Wales and Northern Ireland corresponding to section 27 of that Act of 2016).

(2) This section applies regardless of whether the person became subject to those requirements or that order before or after the commencement of this section.

(3) Subject to subsections (4) to (8) below, where this section applies a constable may—

(a) take from the person or require the person to provide him with such relevant physical data as the constable considers reasonably appropriate;

(b) with the authority of an officer of a rank no lower than inspector, take from the person any sample mentioned in any of paragraphs (a) to (c) of subsection (6) of section 18 of this Act by the means specified in that paragraph in relation to that sample;

(c) take, or direct a police custody and security officer to take, from the person any sample mentioned in subsection (6A) of that section by the means specified in that subsection.

(4) Where this section applies by virtue of subsection (1)(c) above, the power conferred by subsection (3) shall not be exercised unless the constable reasonably believes that the person's sole or main residence is in Scotland.

(5) The power conferred by subsection (3) above shall not be exercised where the person has previously had taken from him or been required to provide relevant physical data or any sample under section 19(2) or 19A(2) of this Act unless the data so taken or required have been or, as the case may be, the sample so taken has been, lost or destroyed.

(6) The power conferred by subsection (3) above shall not be exercised where the person has previously had taken from him or been required to provide relevant physical data or any sample under that subsection unless the data so taken or required or, as the case may be, the sample so taken—

(a) have or has been lost or destroyed; or

(b) were or was not suitable for the particular means of analysis or, though suitable, were or was insufficient (either in quantity or quality) to enable information to be obtained by that means of analysis.

(7) The power conferred by subsection (3) above may be exercised only—

(a) in a police station; or

(b) where the person is in legal custody by virtue of section 295 of this Act, in the place where the person is for the time being.

(8) The power conferred by subsection (3) above may be exercised in a police station only—

(a) where the person is present in the police station in pursuance of a requirement made by a constable to attend for the purpose of the exercise of the power; or

(b) while the person is in custody in the police station following his arrest ... in connection with any offence.

(9) A requirement under subsection (8)(a) above—

(a) shall give the person at least seven days' notice of the date on which he is required to attend;

(b) may direct him to attend at a specified time of day or between specified times of day; and

(c) where this section applies by virtue of subsection (1)(b) or (c) above, shall warn the person that failure, without reasonable excuse, to comply with the requirement or, as the case may be, to allow the taking of or to provide any relevant physical data, or to provide any sample, under the power, constitutes an offence.

(10) A requirement under subsection (8)(a) above in a case where the person has previously had taken from him or been required to provide relevant physical data or any sample under subsection (3) above shall contain intimation that the relevant physical data were or the sample was unsuitable or, as the case may be, insufficient, as mentioned in subsection (6)(b) above.

(11) Before exercising the power conferred by subsection (3) above in a case to which subsection (8)(b) above applies, a constable shall inform the person of that fact.

(12) Any constable may arrest without warrant a person who fails to comply with a requirement under subsection (8)(a) above.

(13) This section does not prejudice the generality of section 18 of this Act.

(14) In this section, “the 2003 Act” means the Sexual Offences Act 2003 (c. 42).

Section 19AA: supplementary provision in sexual risk order cases

19AB

(1) This section applies where section 19AA of this Act applies by virtue of subsection (1)(b) or (c) of that section.

(2) A person who fails without reasonable excuse—

(a) to comply with a requirement made of him under section 19AA(8)(a) of this Act; or

(b) to allow relevant physical data to be taken from him, to provide relevant physical data, or to allow a sample to be taken from him, under section 19AA(3) of this Act,

shall be guilty of an offence.

(3) A person guilty of an offence under subsection (2) above shall be liable on summary conviction to the following penalties—

(a) a fine not exceeding level 4 on the standard scale;

(b) imprisonment for a period—

(i) where the conviction is in the district court, not exceeding 60 days; or

(ii) where the conviction is in the sheriff court, not exceeding 3 months; or

(4) Subject to subsection (6) below, all record of any relevant physical data taken from or provided by a person under section 19AA(3) of this Act, all samples taken from a person under that subsection and all information derived from such samples shall be destroyed as soon as possible following the person ceasing to be a person subject to any sexual risk orders.

(5) For the purpose of subsection (4) above, a person does not cease to be subject to a sexual risk order where the person would be subject to such an order but for an order of a court considering an appeal against the making of a sexual risk order suspending the effect of the order pending the determination of the appeal.

(6) Subsection (4) above does not apply if before the duty to destroy imposed by that subsection would apply, the person—

(a) is convicted of an offence; or

(b) becomes subject to the notification requirements of Part 2 of the 2003 Act.

(7) In this section—

“sexual risk order” means an order under section 27 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, and also includes an order under section 122A or 123 of the 2003 Act;

“the 2003 Act” has the meaning given by section 19AA(14) of this Act; and

“convicted” shall be construed in accordance with section 19A(6) of this Act.

Power of constable in obtaining relevant physical data etc.

19B

(1) A constable may use reasonable force in—

(a) taking any relevant physical data from a person or securing a person’s compliance with a requirement made under section 18(2), 19(2)(a) or 19A(2)(a) of this Act , or under subsection (3)(a) of section 19AA of this Act where that section applies by virtue of subsection (1)(a) of that section;

(b) exercising any power conferred by section 18(6), 19(2)(b) or 19A(2)(b) of this Act , or under subsection (3)(b) of section 19AA of this Act where that section applies by virtue of subsection (1)(a) of that section.

(2) A constable may, with the authority of an officer of a rank no lower than inspector, use reasonable force in (himself) exercising any power conferred by section 18(6A), 19(2)(c) or 19A(2)(c) of this Act , or under subsection (3)(c) of section 19AA of this Act where that section applies by virtue of subsection (1)(a) of that section.

Sections 18 and 19 to 19AA: use of samples etc.

19C

(1) Subsection (2) applies to—

(a) relevant physical data taken or provided under section 18(2), 19(2)(a), 19A(2)(a) or 19AA(3)(a) (including any taken or provided by virtue of paragraph 20 of Schedule 8 to the Terrorism Act 2000 or by virtue of paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019 or paragraph 18 of Schedule 6 to the National Security Act 2023),

(b) a sample, or any information derived from a sample, taken under section 18(6) or (6A), 19(2)(b) or (c), 19A(2)(b) or (c) or 19AA(3)(b) or (c) (including any taken or provided by virtue of paragraph 20 of Schedule 8 to the Terrorism Act 2000 or by virtue of paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019 or paragraph 18 of Schedule 6 to the National Security Act 2023),

(i) by virtue of any power of search,

(ii) by virtue of any power to take possession of evidence where there is immediate danger of its being lost or destroyed, or

(iii) under the authority of a warrant,

(d) information derived from a sample falling within paragraph (c), and

(e) relevant physical data, a sample or information derived from a sample taken from, or provided by, a person outwith Scotland which is given by any person to—

(i) the Police Service of Scotland (“the Police Service”),

(ii) the Scottish Police Authority (“the Authority”), or

(iii) a person acting on behalf of the Police Service or the Authority.

(2) The relevant physical data, sample or information derived from a sample may be used—

(a) for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, ...

(b) for the identification of a deceased person or a person from whom the relevant physical data or sample came,

(ca) for the purposes of investigating foreign power threat activity, or

(d) for the purposes of a terrorist investigation.

(3) Subsections (4) and (5) apply to relevant physical data, a sample or information derived from a sample falling within any of paragraphs (a) to (d) of subsection (1) (“relevant material”).

(4) If the relevant material is held by the Police Service, the Authority or a person acting on behalf of the Police Service or the Authority, the Police Service or, as the case may be, the Authority or person may give the relevant material to another person for use by that person in accordance with subsection (2).

(5) The Police Service, the Authority or a person acting on behalf of the Police Service or the Authority may, in using the relevant material in accordance with subsection (2), check it against other relevant physical data, samples and information derived from samples received from another person.

(6) In subsection (2)—

(a) the reference to crime includes a reference to—

(i) conduct which constitutes a criminal offence or two or more criminal offences (whether under the law of a part of the United Kingdom or a country or territory outside the United Kingdom), or

(ii) conduct which is, or corresponds to, conduct which, if it all took place in any one part of the United Kingdom would constitute a criminal offence or two or more criminal offences,

(b) the reference to an investigation includes a reference to an investigation outside Scotland of a crime or suspected crime, ...

(c) the reference to a prosecution includes a reference to a prosecution brought in respect of a crime in a country or territory outside Scotland , ...

(ca) “foreign power threat activity” has the meaning given by section 33 of the National Security Act 2023, and

(d) “terrorist investigation” has the meaning given by section 32 of the Terrorism Act 2000.

(7) This section is without prejudice to any other power relating to the use of relevant physical data, samples or information derived from a sample.

Use of prints, samples etc.

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Testing for Class A drugs

Arrested persons: testing for certain Class A drugs

20A

(1) Subject to subsection (2) below, where subsection (3) below applies an appropriate officer may—

(a) require a person who has been arrested and is in custody in a police station to provide him with a sample of urine; or

(b) take from the inside of the mouth of such a person, by means of swabbing, a sample of saliva or other material,

which the officer may subject to analysis intended to reveal whether there is any relevant Class A drug in the person's body.

(2) The power conferred by subsection (1) above shall not be exercised where the person has previously been required to provide or had taken from him a sample under that subsection in the same period in custody.

(3) This subsection applies where—

(a) the person is of 16 years of age or more;

(b) the period in custody in the police station has not exceeded 6 hours;

(c) the police station is situated in an area prescribed by order made by statutory instrument by the Scottish Ministers; and

(d) either—

(i) the person's arrest was on suspicion of committing or having committed a relevant offence; or

(ii) a senior police officer who has appropriate grounds has authorised the making of the requirement to provide or the taking of the sample.

(4) Before exercising the power conferred by subsection (1) above, an appropriate officer shall—

(a) warn the person in respect of whom it is to be exercised that failure, without reasonable excuse, to comply with the requirement or, as the case may be, allow the sample to be taken constitutes an offence; and

(b) in a case within subsection (3)(d)(ii) above, inform the person of the giving of the authorisation and the grounds for the suspicion.

(5) Where—

(a) a person has been required to provide or has had taken a sample under subsection (1) above;

(b) any of the following is the case—

(i) the sample was not suitable for the means of analysis to be used to reveal whether there was any relevant Class A drug in the person's body;

(ii) though suitable, the sample was insufficient (either in quantity or quality) to enable information to be obtained by that means of analysis; or

(iii) the sample was destroyed during analysis and the means of analysis failed to produce reliable information; and

an appropriate officer may require the person to provide or as the case may be take another sample of the same kind by the same method.

(6) Before exercising the power conferred by subsection (5) above, an appropriate officer shall warn the person in respect of whom it is to be exercised that failure, without reasonable excuse, to comply with the requirement or, as the case may be, allow the sample to be taken constitutes an offence.

(7) A person who fails without reasonable excuse—

(a) to comply with a requirement made of him under subsection (1)(a) or (5) above; or

(b) to allow a sample to be taken from him under subsection (1)(b) or (5) above,

shall be guilty of an offence.

(8) In this section—

“appropriate grounds” means reasonable grounds for suspecting that the misuse by the person of any relevant Class A drug caused or contributed to the offence on suspicion of which the person was arrested;

“appropriate officer” means—a constable; ora police custody and security officer acting on the direction of a constable;

“misuse” has the same meaning as in the Misuse of Drugs Act 1971 (c. 38);

“relevant Class A drug” means any of the following substances, preparations and products—cocaine or its salts;any preparation or other product containing cocaine or its salts;diamorphine or its salts;any preparation or other product containing diamorphine or its salts;

“relevant offence” means any of the following offences—theft;assault;robbery;fraud;reset;uttering a forged document;embezzlement;an attempt, conspiracy or incitement to commit an offence mentioned in paragraphs (a) to (g);an offence under section 4 of the Misuse of Drugs Act 1971 (c. 38) (restriction on production and supply of controlled drugs) committed in respect of a relevant Class A drug;an offence under section 5(2) of that Act of 1971 (possession of controlled drug) committed in respect of a relevant Class A drug;an offence under section 5(3) of that Act of 1971 (possession of controlled drug with intent to supply) committed in respect of a relevant Class A drug;

“senior police officer” means a police officer of a rank no lower than inspector.

Section 20A: supplementary

20B

(1) Section 20A of this Act does not prejudice the generality of section 18 of this Act.

(2) Each person carrying out a function under section 20A of this Act must have regard to any guidance issued by the Scottish Ministers—

(a) about the carrying out of the function; or

(b) about matters connected to the carrying out of the function.

(3) An order under section 20A(3)(c) shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

(4) An authorisation for the purposes of section 20A of this Act may be given orally or in writing but, if given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.

(5) If a sample is provided or taken under section 20A of this Act by virtue of an authorisation, the authorisation and the grounds for the suspicion are to be recorded in writing as soon as is reasonably practicable after the sample is provided or taken.

(6) A person guilty of an offence under section 20A of this Act shall be liable on summary conviction to the following penalties—

(a) a fine not exceeding level 4 on the standard scale;

(b) imprisonment for a period—

(i) where conviction is in the district court, not exceeding 60 days; or

(ii) where conviction is in the sheriff court, not exceeding 3 months; or

(7) Subject to subsection (8) below, a sample provided or taken under section 20A of this Act shall be destroyed as soon as possible following its analysis for the purpose for which it was taken.

(8) Where an analysis of the sample reveals that a relevant Class A drug is present in the person's body, the sample may be retained so that it can be used, and supplied to others, for the purpose of any proceedings against the person for an offence under section 88 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10); but—

(a) the sample may not be used, or supplied, for any other purpose; and

(b) the sample shall be destroyed as soon as possible once it is no longer capable of being used for that purpose.

(9) Information derived from a sample provided by or taken from a person under section 20A of this Act may be used and disclosed only for the following purposes—

(a) for the purpose of proceedings against the person for an offence under section 88 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10);

(b) for the purpose of informing any decision about granting bail in any criminal proceedings to the person;

(d) where the person is convicted of an offence, for the purpose of informing any decision about the appropriate sentence to be passed by a court and any decision about the person's supervision or release;

(e) for the purpose of ensuring that appropriate advice and treatment is made available to the person.

(10) Subject to subsection (11) below, the Scottish Ministers may by order made by statutory instrument modify section 20A(8) of this Act for either of the following purposes—

(a) for the purpose of adding an offence to or removing an offence from those for the time being listed in the definition of “relevant offence”;

(b) for the purpose of adding a substance, preparation or product to or removing a substance, preparation or product from those for the time being listed in the definition of “relevant Class A drug”.

(11) An order under subsection (10)(b) may add a substance, preparation or product only if it is a Class A drug (that expression having the same meaning as in the Misuse of Drugs Act 1971 (c. 38)).

(12) An order under subsection (10) above shall not be made unless a draft of the statutory instrument containing it has been laid before and approved by resolution of the Scottish Parliament.

Schedule 1 offences

Schedule 1 offences: power of constable to take offender into custody.

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Liberation by police.

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Offences where undertaking breached

22ZA

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Evidential and procedural provision

22ZB

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PART III — Bail

Consideration of bail on first appearance

22A

(1) On the first occasion on which—

(a) a person accused on petition is brought before the sheriff prior to committal until liberated in due course of law; or

(b) a person charged on complaint with an offence is brought before a judge having jurisdiction to try the offence,

the sheriff or, as the case may be, the judge shall, after giving that person and the prosecutor an opportunity to be heard ..., either admit or refuse to admit that person to bail.

(1A) Before determining whether to admit or refuse to admit the person accused or charged to bail, the sheriff or judge must also give an officer of a local authority an opportunity to provide (orally or in writing) information relevant to that determination.

(2) Admittance to or refusal of bail shall be determined before the end of the day (not being a Saturday or Sunday, or a court holiday prescribed for the court which is to determine the question of bail, unless that court is sitting on that day for the disposal of criminal business) after the day on which the person accused or charged is brought before the sheriff or judge.

(3) If, by that time, the sheriff or judge has not admitted or refused to admit the person accused or charged to bail, then that person shall be forthwith liberated.

(4) This section applies whether or not the person accused or charged is in custody when that person is brought before the sheriff or judge.

Bail applications.

23

(1) Any person accused on petition of a crime . . . shall be entitled immediately, on any (other than the first) occasion on which he is brought before the sheriff prior to his committal until liberated in due course of law, to apply to the sheriff for bail, and the prosecutor shall be entitled to be heard against any such application.

(2) The sheriff shall be entitled in his discretion to refuse such application before the person accused is committed until liberated in due course of law.

(3) Where an accused is admitted to bail without being committed until liberated in due course of law, it shall not be necessary so to commit him, and it shall be lawful to serve him with an indictment or complaint without his having been previously so committed.

(4) Where bail is refused before committal until liberation in due course of law on an application under subsection (1) above, the application for bail may be renewed after such committal.

(5) Any sheriff having jurisdiction to try the offence or to commit the accused until liberated in due course of law may, at his discretion, on the application of any person who has been committed until liberation in due course of law for any crime or offence, . . ., and having given the prosecutor an opportunity to be heard, admit or refuse to admit the person to bail.

(6) Any person charged on complaint with an offence shall, on any (other than the first) occasion on which he is brought before a judge having jurisdiction to try the offence, be entitled to apply to the judge for bail and the prosecutor shall be entitled to be heard against any such application.

(7) An application under subsection (5) or (6) above shall be disposed of before the end of the day (not being a Saturday or Sunday, or a court holiday prescribed for the court which is to determine the question of bail, unless that court is sitting on that day for the disposal of criminal business) after the day of its presentation to the judge, failing which the accused shall be forthwith liberated.

(8) This section applies whether or not the accused is in custody at the time he appears for disposal of his application.

Bail and liberation where person already in custody

23A

(1) A person may be admitted to bail under section 22A , 23, 65(8C) or 107A(7)(b) of this Act although in custody—

(a) having been refused bail in respect of another crime or offence; or

(b) serving a sentence of imprisonment.

(2) A decision to admit a person to bail by virtue of subsection (1) above does not liberate the person from the custody mentioned in that subsection.

(3) The liberation under section 22A(3), 23(7) or 107A(7)(b) of this Act of a person who may be admitted to bail by virtue of subsection (1) above does not liberate that person from the custody mentioned in that subsection.

(4) In subsection (1) above, “another crime or offence” means a crime or offence other than that giving rise to the consideration of bail under section 22A , 23, 65(8C) or 107A(7)(b) of this Act.

Entitlement to bail and the court's function

23B

(1) Bail is to be granted to an accused person unless the court determines that there is good reason for refusing bail.

(1A) The court may determine that there is good reason for refusing bail only if it considers that—

(a) at least one of the grounds specified in section 23C(1) applies, and

(b) having regard to the public interest, and having considered the imposition of bail conditions in accordance with subsection (2), it is necessary to refuse bail—

(i) in the interests of public safety, including the protection of the complainer from a risk of harm, or

(ii) to prevent a significant risk of prejudice to the interests of justice.

(2) In determining a question of bail in accordance with subsection (1) above, the court is to consider the extent to which the public interest could, if bail were granted, be safeguarded by the imposition of bail conditions.

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(4) The court must (without prejudice to any other right of the parties to be heard) give the prosecutor and the accused person an opportunity to make submissions in relation to a question of bail (including submissions in relation to any information provided by an officer of a local authority under section 22A(1A) or in response to a request under subsection (6)).

(5) The attitude of the prosecutor towards a question of bail (including as to bail conditions) does not restrict the court's exercise of its discretion in determining the question in accordance with subsection (1) above.

(6) For the purpose of so determining a question of bail (including as to bail conditions), the court may request the prosecutor or the accused person's solicitor or counsel or an officer of a local authority to provide it with information relevant to the question.

(6A) Where relevant to a question of bail, and without prejudice to the generality of subsection (6), the court may in particular request the prosecutor to provide it with information in relation to the risk of harm to the complainer.

(7) However, whether the prosecutor, the accused person’s solicitor or counsel, or an officer of a local authority gives the court opinion as to any risk of something occurring (or any likelihood of something not occurring) is a matter for that party or officer to decide.

(8) For the purposes of subsections (1A)(b)(i) and (6A)—

“complainer” means the person against whom the offence to which the proceedings relate is alleged to have been committed,

“harm” means physical or psychological harm,

“psychological harm” includes fear, alarm and distress.

(9) For the purposes of subsection (1A)(b)(ii), “prejudice to the interests of justice” means—

(a) the accused person evading justice as a result of the proceedings being delayed or discontinued, or

(b) the course of justice in the proceedings being impeded or prejudiced as a result of—

(i) the destruction, concealment or withholding of evidence,

(ii) the giving of false or misleading evidence, or

(iii) the quality of evidence, or its sufficiency in law, being diminished.

(10) In subsection (9)(b)(iii), the reference to the quality of evidence is to its quality in terms of completeness, accuracy and probative value.

Grounds relevant as to question of bail

23C

(1) In any proceedings in which a person is accused of an offence, the following are grounds on which it may be determined that there is good reason for refusing bail—

(a) subject to subsection (1A), any substantial risk that the person might if granted bail—

(i) abscond; or

(ii) fail to appear at a diet of the court as required;

(b) any substantial risk of the person committing further offences if granted bail;

(i) interfere with witnesses; or

(ii) otherwise obstruct the course of justice,

in relation to himself or any other person;

(d) any other substantial factor which appears to the court to justify keeping the person in custody.

(1A) When determining whether there is good reason for refusing bail in summary proceedings, the court may take account of any such risk as is mentioned in subsection (1)(a) only where—

(a) the person has previously failed to appear at a relevant diet, or

(b) the proceedings relate to an offence under section 27(1)(a) or 150(8).

(2) In assessing the grounds specified in subsection (1) above, the court must have regard to all material considerations including (in so far as relevant in the circumstances of the case) the following examples—

(a) the—

(i) nature (including level of seriousness) of the offences before the court;

(ii) probable disposal of the case if the person were convicted of the offences;

(b) whether the person was subject to a bail order when the offences are alleged to have been committed;

(i) while the person was subject to another court order;

(ii) while the person was on release on licence or parole;

(iii) during a period for which sentence of the person was deferred;

(d) the character and antecedents of the person, in particular—

(i) the nature of any previous convictions of the person (including convictions by courts outside Scotland);

(ii) whether the person has previously contravened a bail order or other court order (by committing an offence or otherwise);

(iii) whether the person has previously breached the terms of any release on licence or parole (by committing an offence or otherwise);

(iv) whether the person is serving or recently has served a sentence of imprisonment in connection with a matter referred to in sub-paragraphs (i) to (iii) above;

(e) the associations and community ties of the person.

(3) In subsection (1A)(a), “relevant diet” means a diet of the court relating to the offence with which the person is charged—

(a) of which the person has been given due notice, or

(b) at which the person is required by this Act to appear.

Restriction on bail in certain solemn cases

23D

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Bail and bail conditions.

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(1) All crimes and offences ... are bailable.

(2) Nothing in this Act shall affect the right of the Lord Advocate or the High Court to admit to bail any person charged with any crime or offence.

(2A) Whenever the court grants or refuses bail, it shall state its reasons.

(2AA) Where the court refuses bail in any proceedings in which a person is accused of an offence, it must—

(a) state in particular—

(i) the grounds on which it determines, in accordance with section 23B(1A), that there is good reason for refusing bail,

(ii) if refusing bail solely on the ground specified in section 23C(1)(a) (substantial risk of absconding or failing to appear), its reasons for considering under section 23B(1A)(b) that it is necessary to do so, and

(iii) its reasons for considering under section 23B(1A)(b) and (2) that either it would not be appropriate to impose on the accused bail conditions subject to a requirement to submit to monitoring in accordance with Part 1 of the Management of Offenders (Scotland) Act 2019 (electronic monitoring) or that doing so would not adequately safeguard the interests of public safety or justice as mentioned in section 23B(1A)(b)(i) or (ii), and

(b) have the grounds mentioned in paragraph (a)(i) entered in the record of the proceedings.

(2B) Where the court—

(a) grants bail to a person accused of an offence falling within subsection (2C); and

(b) does so without imposing on the accused further conditions under subsection (4)(b)(i) below,

the court shall also state why it considers in the circumstances of the case that such conditions are unnecessary.

(2C) An offence falls within this subsection if it is—

(a) a sexual offence (having the meaning given by section 210A(10) and (11)),

(b) an offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018,

(c) an offence that is aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016,

(d) an offence under section 39 of the Criminal Justice and Licensing (Scotland) Act 2010 (offence of stalking),

(e) an attempt, conspiracy or incitement to commit an offence mentioned in paragraph (b), (c) or (d),

(f) aiding, abetting, counselling or procuring the commission of an offence mentioned in paragraph (b), (c) or (d).

(3) It shall not be lawful to grant bail or release for a pledge or deposit of money, and—

(a) release on bail may be granted only on conditions which subject to subsection (6) below, shall not include a pledge or deposit of money;

(b) liberation may be granted by the police under section 25 of the Criminal Justice (Scotland) Act 2016.

(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; ...

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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; 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; ...

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

(cb) whenever reasonably instructed by a constable to do so—

(i) participates in an identification parade or other identification procedure; and

(ii) allows any print, impression or sample to be taken from the accused;

(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 ; and

(e) where the (or an) offence in respect of which he is admitted to bail is one listed in subsection (7A)(b), 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.

(6) The court or, as the case may be, the Lord Advocate may impose as one of the conditions of release on bail a requirement that the accused or a cautioner on his behalf deposits a sum of money in court, but only where the court or, as the case may be, the Lord Advocate is satisfied that the imposition of such condition is appropriate to the special circumstances of the case.

(6A) Subsection (6) above does not apply in relation to an accused admitted to bail under section 65(8C) of this Act.

(7) In any enactment, including this Act and any enactment passed after this Act—

(a) any reference to bail shall be construed as a reference to release on conditions in accordance with this Act or to conditions imposed on bail, as the context requires;

(b) any reference to an amount of bail fixed shall be construed as a reference to conditions, including a sum required to be deposited under subsection (6) above;

(c) any reference to finding bail or finding sufficient bail shall be construed as a reference to acceptance of conditions imposed or the finding of a sum required to be deposited under subsection (6) above.

(7A) For the purpose of subsection (5)(e)—

(a) “complainer” means the person against whom the offence is alleged to have been committed,

(b) the list is—

(i) an offence to which section 288C applies (certain sexual offending),

(ii) an offence to which section 288DC applies (domestic abuse cases).

(8) In this section (other than subsection (2AA)) and sections 25 and 27 to 29 of this Act, references to an accused and to appearance at a diet shall include references respectively to an appellant and to appearance at the court on the day fixed for the hearing of an appeal.

Bail conditions: remote monitoring of restrictions on movements

24A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulations as to power to impose remote monitoring requirements under section 24A

24B

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Monitoring of compliance in pursuance of requirements imposed under section 24A

24C

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Remote monitoring

24D

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Documentary evidence in proceedings for breach of bail conditions being remotely monitored

24E

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Bail: extradition proceedings

24F

(1) In the application of the provisions of this Part by virtue of section 9(2) or 77(2) of the Extradition Act 2003 (judge’s powers at extradition hearing), those provisions apply with the modifications that—

(a) references to the prosecutor are to be read as references to a person acting on behalf of the territory to which extradition is sought;

(b) the right of the Lord Advocate mentioned in section 24(2) of this Act applies to a person subject to extradition proceedings as it applies to a person charged with any crime or offence;

(ai) subsection (1A) of section 23C;

(i) paragraph (b) of section 24(3); and

(ii) subsection (3) of section 30; and

(d) sections 28(1) and 33 apply to a person subject to extradition proceedings as they apply to an accused.

(1A) In the application of the provisions of this Part by virtue of section 7(7) of the Extradition Act 2003 (identity of person arrested), those provisions apply with the modification that subsection (1A) of section 23C does not apply.

(2) Section 32 of this Act applies in relation to a refusal of bail, the amount of bail or a decision to allow bail or ordain appearance in proceedings under this Part as the Part applies by virtue of the sections of that Act of 2003 mentioned in subsection (1) above.

(3) The Scottish Ministers may, by order, for the purposes of section 9(2) or 77(2) of the Extradition Act 2003 make such amendments to this Part as they consider necessary or expedient.

(4) The order making power in subsection (3) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.

Bail conditions: supplementary.

25

(A1) When granting bail, the court shall (if the accused is present) explain to the accused in ordinary language—

(a) the effect of the conditions imposed;

(b) the effect of the requirement under subsection (2B) below; and

(B1) The accused shall (whether or not the accused is present when bail is granted) be given a written explanation in ordinary language of the matters mentioned in paragraphs (a) to (c) of subsection (A1) above.

(C1) Such a written explanation may be contained in the copy of the bail order given to the accused or in another document.

(1) The court shall specify in the order granting bail, a copy of which shall be given to the accused—

(a) the conditions imposed; and

(aa) that breach of a condition imposed is an offence and renders the accused liable to arrest, prosecution and punishment under this Act;

(b) an address, within the United Kingdom (being the accused’s normal place of residence or such other place as the court may, on cause shown, direct) which, subject to subsection (2) below, shall be his proper domicile of citation.

(2) The court may on application in writing by the accused while he is on bail alter the address specified in the order granting bail, and this new address shall, as from such date as the court may direct, become his proper domicile of citation; and the court shall notify the accused of its decision on any application under this subsection.

(2A) Where an application is made under subsection (2) above—

(a) the application shall be intimated by the accused immediately and in writing to the Crown Agent and for that purpose the application shall be taken to be intimated to the Crown Agent if intimation of it is sent to the procurator fiscal for the sheriff court district in which bail was granted ; and

(b) the court shall, before determining the application, give the prosecutor an opportunity to be heard.

(2B) Where the domicile of citation specified in an order granting bail ceases to be the accused's normal place of residence, the accused must make an application under subsection (2) above within 7 days of that happening.

(2C) A person who without reasonable excuse contravenes subsection (2B) above is guilty of an offence and is liable—

(a) on conviction in the JP court, to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 60 days or to both;

(b) in any other case, to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 12 months or to both.

(3) In this section “proper domicile of citation” means the address at which the accused may be cited to appear at any diet relating to the offence with which he is charged or an offence charged in the same proceedings as that offence or to which any other intimation or document may be sent; and any citation at or the sending of an intimation or document to the proper domicile of citation shall be presumed to have been duly carried out.

(4) In this section, references to the court (other than in subsection (2A)) shall, in relation to a person who has been admitted to bail by the Lord Advocate, be read as if they were references to the Lord Advocate.

Failure to accept conditions of bail under section 65(8C): continued detention of accused

25A

An accused who—

(a) is, by virtue of subsection (4) of section 65 of this Act, entitled to be admitted to bail; but

(b) fails to accept any of the conditions imposed by the court on bail under subsection (8C) of that section,

shall continue to be detained under the committal warrant for so long as he fails to accept any of those conditions.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26

Breach of bail conditions: offences.

27

(1) Subject to subsection (7) below, an accused who having been granted bail fails without reasonable excuse—

(a) to appear at the time and place appointed for any diet of which he has been given due notice or at which he is required by this Act to appear; or

(b) to comply with any other condition imposed on bail,

shall, subject to subsection (3) below, be guilty of an offence and liable on conviction to the penalties specified in subsection (2) below.

(2) The penalties mentioned in subsection (1) above are—

(a) a fine not exceeding level 3 on the standard scale; and

(b) imprisonment for a period—

(i) where conviction is in the JP court, not exceeding 60 days; or

(ii) in any other case, not exceeding 12 months.

(3) Where, and to the extent that, the failure referred to in subsection (1)(b) above consists in the accused having committed an offence while on bail (in this section referred to as “the subsequent offence”), he shall not be guilty of an offence under that subsection but, subject to subsection (4) below, the court which sentences him for the subsequent offence shall, in determining the appropriate sentence or disposal for that offence, have regard to—

(a) the fact that the offence was committed by him while on bail and the number of bail orders to which he was subject when the offence was committed;

(b) any previous conviction of the accused of an offence under subsection (1)(b) above; and

(c) the extent to which the sentence or disposal in respect of any previous conviction of the accused differed, by virtue of this subsection, from that which the court would have imposed but for this subsection.

(3A) The reference in subsection (3)(b) to any previous conviction of an offence under subsection (1)(b) includes—

(a) any previous conviction by a court in England and Wales or Northern Ireland, and

(b) if the court considers appropriate, any previous conviction by a court in a member State of the European Union,

of an offence that is equivalent to an offence under subsection (1)(b).

(3B) The references in subsection (3)(c) to subsection (3) are to be read, in relation to a previous conviction by a court referred to in subsection (3A), as references to any provision that is equivalent to subsection (3).

(3C) Any issue of equivalence arising in pursuance of subsection (3A) or (3B) is for the court to determine.

(4) The court shall not, under subsection (3) above, have regard to the fact that the subsequent offence was committed while the accused was on bail unless that fact is libelled in the indictment or, as the case may be, specified in the complaint.

(4A) The fact that the subsequent offence was committed while the accused was on bail shall, unless challenged—

(a) in the case of proceedings on indictment, by giving notice of a preliminary objection in accordance with section 71(2) or 72(6)(b)(i) of this Act; or

(b) in summary proceedings, by preliminary objection before his plea is recorded,

be held as admitted.

(4B) In any proceedings in relation to an offence under subsection (1) above or subsection 7 below, the fact that (as the case may be) an accused—

(a) was on bail;

(b) was subject to any particular condition of bail;

(d) was given due notice of a diet,

shall, unless challenged in the manner described in paragraph (a) or (b) of subsection (4A) above, be held as admitted.

(5) Where the maximum penalty in respect of the subsequent offence is specified by or by virtue of any enactment, that maximum penalty shall, for the purposes of the court’s determination, by virtue of subsection (3) above, of the appropriate sentence or disposal in respect of that offence, be increased—

(a) where it is a fine, by the amount for the time being equivalent to level 3 on the standard scale; and

(b) where it is a period of imprisonment—

(i) as respects a conviction in the High Court or the sheriff court, by 6 months; and

(ii) as respects a conviction in the JP court, by 60 days,

notwithstanding that the maximum penalty as so increased exceeds the penalty which it would otherwise be competent for the court to impose.

(6) Where the sentence or disposal in respect of the subsequent offence is, by virtue of subsection (3) above, different from that which the court would have imposed but for that subsection, the court shall state the extent of and the reasons for that difference.

(6A) Where, despite the requirement to have regard to the matters specified in paragraphs (a) to (c) of subsection (3) above, the sentence or disposal in respect of the subsequent offence is not different from that which the court would have imposed but for that subsection, the court shall state (as appropriate, by reference to those matters) the reasons for there being no difference.

(7) An accused who having been granted bail in relation to solemn proceedings fails without reasonable excuse to appear at the time and place appointed for any diet of which he has been given due notice (where such diet is in respect of solemn proceedings) shall be guilty of an offence and liable on conviction on indictment to the following penalties—

(a) a fine; and

(b) imprisonment for a period not exceeding 5 years.

(8) At any time before the trial of an accused under solemn procedure for the original offence, it shall be competent—

(a) to amend the indictment to include an additional charge of an offence under this section;

(b) to include in the list of witnesses or productions relating to the original offence, witnesses or productions relating to the offence under this section.

(8A) At any time before the trial of an accused in summary proceedings for the original offence, it is competent to amend the complaint to include an additional charge of an offence under this section.

(9) A penalty under subsection (2) or (7) above shall be imposed in addition to any other penalty which it is competent for the court to impose, notwithstanding that the total of penalties imposed may exceed the maximum penalty which it is competent to impose in respect of the original offence.

(9A) The reference in subsection (9) above to a penalty being imposed in addition to another penalty means, in the case of sentences of imprisonment or detention—

(a) where the sentences are imposed at the same time (whether or not in relation to the same complaint or indictment), framing the sentences so that they have effect consecutively;

(b) where the sentences are imposed at different times, framing the sentence imposed later so that (if the earlier sentence has not been served) the later sentence has effect consecutive to the earlier sentence.

(9B) Subsection (9A)(b) above is subject to section 204A of this Act.

(10) A court which finds an accused guilty of an offence under this section may remit the accused for sentence in respect of that offence to any court which is considering the original offence.

(11) In this section “the original offence” means the offence with which the accused was charged when he was granted bail or an offence charged in the same proceedings as that offence.

Breach of bail conditions: arrest of offender, etc.

28

(1) A constable may 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.

(1ZA) Where—

(a) a constable who is not in uniform arrests a person under subsection (1), and

(b) the person asks to see the constable's identification,

the constable must show identification to the person as soon as reasonably practicable.

(1A) Where an accused who has been released on bail is arrested by a constable (otherwise than under subsection (1) above), the accused may be detained in custody under this subsection if the constable has reasonable grounds for suspecting that the accused has breached, or is likely to breach, any condition imposed on his bail.

(1B) Subsection (1A) above—

(a) is without prejudice to any other power to detain the accused;

(b) applies even if release of the accused would be required but for that subsection.

(2) An accused who is arrested under subsection (1) above, or is detained under subsection (1A) above, shall wherever practicable be brought before the court to which his application for bail was first made not later than in the course of the first day after his arrest, such day not being, subject to subsection (3) below, a Saturday, a Sunday or a court holiday prescribed for that court under section 8 of this Act.

(3) Nothing in subsection (2) above shall prevent an accused being brought before a court on a Saturday, a Sunday or such a court holiday where the court is, in pursuance of the said section 8, sitting on such day for the disposal of criminal business.

(3A) If—

(a) a person is in custody only by virtue of subsection (1) or (1A), and

(b) in the opinion of a constable there are no reasonable grounds for suspecting that the person has broken, or is likely to break, a condition imposed on the person's bail,

the person must be released from custody immediately.

(3B) An accused is deemed to be brought before a court under subsection (2) or (3) if the accused appears before it by means of a live television link (by virtue of a determination by the court that the person is to do so by such means).

(4) Where an accused is brought before a court under subsection (2) or (3) above, the court, after hearing the parties, may—

(a) recall the order granting bail;

(b) release the accused under the original order granting bail; or

(c) vary the order granting bail so as to contain such conditions as the court thinks it necessary to impose to secure that the accused complies with the requirements of paragraphs (a) to (d) of section 24(5) of this Act.

(4A) In the case of an accused released on bail by virtue of section 65(8C) of this Act—

(a) subsection (2) above shall have effect as if the reference to the court to which his application for bail was first made were a reference to the court or judge which admitted him to bail under that section; and

(b) subsection (4) above shall not apply and subsection (4B) below shall apply instead.

(4B) Where an accused referred to in subsection (4A) above is, under subsection (2) or (3) above, brought before the court or judge which admitted him to bail under section 65(8C)—

(a) the court or judge shall give the prosecutor an opportunity to make an application under section 65(5) of this Act; and

(b) if the prosecutor does not make such an application, or if such an application is made but is refused, the court or judge may—

(i) release the accused under the original order granting bail; or

(ii) vary the order granting bail so as to contain such conditions as the court or judge thinks necessary to impose to secure that the accused complies with the requirements of paragraphs (a) to (d) of section 24(5) of this Act.

(5) The same rights of appeal shall be available against any decision of the court under subsection (4) above as were available against the original order of the court relating to bail.

(6) For the purposes of this section and section 27 of this Act, an extract from the minute of proceedings, containing the order granting bail and bearing to be signed by the clerk of court, shall be sufficient evidence of the making of that order and of its terms and of the acceptance by the accused of the conditions imposed under section 24 of this Act.

Application of the Criminal Justice (Scotland) Act 2016 to persons arrested and detained under section 28

28A

(1) Section 7(2) of the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”) does not apply to an accused who has been arrested under section 28(1) of this Act.

(2) The following provisions of the 2016 Act apply in relation to a person who is to be brought before a court under section 28(2) or (3) of this Act as they apply in relation to a person who is to be brought before a court in accordance with section 21(2) of the 2016 Act—

(a) section 22,

(b) section 23,

(3) In relation to a person who is to be brought before a court under section 28(2) or (3) of this Act, the 2016 Act applies as though—

(a) in section 23(2)—

(i) for paragraph (c) there were substituted—

(c) that the person is to be brought before the court under section 28 of the 1995 Act in order for the person's bail to be considered.

, and

(ii) paragraph (d) were omitted,

(b) in section 24—

(i) in subsection (3)(c), for the words “after being officially accused” there were substituted “ after being informed that the person is to be brought before a court under section 28(2) or (3) of the 1995 Act ”, and

(ii) in subsection (4), for paragraph (c) there were substituted—

(c) that the person is to be brought before the court under section 28 of the 1995 Act in order for the person's bail to be considered.

(d) the court before which the person is to be brought under section 28(2) or (3) of the 1995 Act and the date on which the person is to be brought before that court.

Bail: monetary conditions.

29

(1) Without prejudice to section 27 of this Act, where the accused or a cautioner on his behalf has deposited a sum of money in court under section 24(6) of this Act, then—

(a) if the accused fails to appear at the time and place appointed for any diet of which he has been given due notice, the court may, on the motion of the prosecutor, immediately order forfeiture of the sum deposited;

(b) if the accused fails to comply with any other condition imposed on bail, the court may, on conviction of an offence under section 27(1)(b) of this Act and on the motion of the prosecutor, order forfeiture of the sum deposited.

(2) If the court is satisfied that it is reasonable in all the circumstances to do so, it may recall an order made under subsection (1)(a) above and direct that the money forfeited shall be refunded, and any decision of the court under this subsection shall be final and not subject to review.

(3) A cautioner, who has deposited a sum of money in court under section 24(6) of this Act, shall be entitled, subject to subsection (4) below, to recover the sum deposited at any diet of the court at which the accused appears personally.

(4) Where the accused has been charged with an offence under section 27(1)(b) of this Act, nothing in subsection (3) above shall entitle a cautioner to recover the sum deposited unless and until—

(a) the charge is not proceeded with; or

(b) the accused is acquitted of the charge; or

(5) The references in subsections (1)(b) and (4)(c) above to conviction of an offence shall include references to the making of an order in respect of the offence under section 246(3) of this Act.

Bail review.

30

(1) This section applies where a court has refused to admit a person to bail or, where a court has so admitted a person, the person has failed to accept the conditions imposed or that a sum required to be deposited under section 24(6) of this Act has not been so deposited.

(1A) This section also applies where a person who has accepted the conditions imposed on his bail wants to have any of them removed or varied.

(2) A court shall, on the application of any person mentioned in subsection (1) or (1A) above, have power to review (in favour of the person) its decision as to bail, or its decision as to the conditions imposed, if—

(a) the circumstances of the person have changed materially; or

(b) the person puts before the court material information which was not available to it when its decision was made.

(2A) On receipt of an application under subsection (2), the court must—

(a) intimate the application to the prosecutor, and

(b) before determining the application, give the prosecutor an opportunity to be heard.

(2AA) Despite subsection (2A)(b), the court may grant the application without having heard the prosecutor if the prosecutor consents.

(2B) Subsection (2C) below applies where an application is made under subsection (2) above by a person convicted on indictment pending the determination of—

(a) his appeal;

(b) any relevant appeal by the Lord Advocate under section 108 or 108A of this Act; or

(2C) Where this subsection applies the application shall be—

(a) intimated by the person making it immediately and in writing to the Crown Agent; and

(b) determined not less than 7 days after the date of that intimation.

(3) An application under this section, where it relates to the original decision of the court, shall not be made before the fifth day after that decision and, where it relates to a subsequent decision, before the fifteenth day thereafter.

(4) Nothing in this section shall affect any right of a person to appeal against the decision of a court in relation to admitting to bail or to the conditions imposed.

Bail review on prosecutor’s application.

31

(1) On an application by the prosecutor at any time after a court has granted bail to a person the court may, where the prosecutor puts before the court material information which was not available to it when it granted bail to that person, review its decision.

(2) On receipt of an application under subsection (1) above the court shall—

(a) intimate the application to the person granted bail;

(b) fix a diet for hearing the application and cite that person to attend the diet; and

(2ZA) Despite subsection (2)(b), the court may grant the application without fixing a hearing if the person granted bail consents.

(2A) Subsection (2B) below applies to an application under subsection (1) above where the person granted bail—

(a) was convicted on indictment; and

(b) was granted bail pending the determination of—

(i) his appeal;

(ii) any relevant appeal by the Lord Advocate under section 108 or 108A of this Act; or

(iii) the sentence to be imposed on, or other method of dealing with, him.

(2B) Where this subsection applies, the application shall be heard not more than 7 days after the day on which it is made.

(3) On ... an application under subsection (1) above the court may—

(a) withdraw the grant of bail and remand the person in question in custody; or

(b) grant bail, or continue the grant of bail, either on the same or on different conditions.

(3A) In relation to an accused admitted to bail under section 65(8C) of this Act—

(a) an application may be made under subsection (1) above only in relation to the conditions imposed on bail; and

(b) paragraph (a) of subsection (3) above shall not apply in relation to any such application.

(4) Nothing in the foregoing provisions of this section shall affect any right of appeal against the decision of a court in relation to bail.

Bail appeal.

32

(1) Where, in any case, bail is refused or where the accused is dissatisfied with the amount of bail fixed, he may appeal to the appropriate Appeal Court which may, in its discretion order intimation to the Lord Advocate or, as the case may be, the prosecutor.

(2) Where, in any case, . . . bail is granted, or, in summary proceedings an accused is ordained to appear, the public prosecutor, if dissatisfied—

(a) with the decision allowing bail;

(b) with the amount of bail fixed; or

may appeal to the appropriate Appeal Court, and the accused shall not be liberated, subject to subsection (7) below, until the appeal by the prosecutor is disposed of.

(2A) The public prosecutor may, in relation to an accused admitted to bail under section 65(8C) of this Act, appeal under subsection (2) above only in relation to the conditions imposed on bail.

(3) Written notice of appeal shall be immediately given to the opposite party by a party appealing under this section.

(3A) A notice of appeal under this section is to be lodged with the clerk of the court from which the appeal is to be taken.

(3B) When an appeal is made under this section, that clerk shall without delay—

(a) send a copy of the notice of appeal to the judge whose decision is the subject of the appeal; and

(b) request the judge to provide a report of the reasons for that decision.

(3C) The judge shall, as soon as is reasonably practicable, provide that clerk with the judge's report of those reasons.

(3CA) The clerk of the court from which the appeal is to be taken (unless that clerk is the Clerk of Justiciary) must—

(a) send the notice of appeal without delay to the clerk of the appropriate Appeal Court, and

(b) before the end of the day after the day of receipt of the notice of appeal, send the judge's report (if provided by then) to the clerk of the appropriate Appeal Court.

(3F) The clerk of the appropriate Appeal Court shall, upon receipt of the notice of appeal, without delay fix a diet for the hearing of the appeal.

(3G) The clerk of the appropriate Appeal Court shall send a copy of the judge's report to—

(a) the accused or his solicitor; and

(b) the Crown Agent.

(3H) In a case where the Sheriff Appeal Court is the appropriate Appeal Court, if the judge's report is not sent as mentioned in subsection (3CA) above—

(a) the appropriate Appeal Court may call for the report to be submitted to it within such period as it may specify; or

(b) if it thinks fit, hear and determine the appeal without the report.

(3I) Subject to subsection (3G) above, the judge's report shall be available only to the appropriate Appeal Court, the parties and, on such conditions as may be prescribed by Act of Adjournal, such other persons or classes of person as may be so prescribed.

(4) An appeal under this section shall be disposed of by the appropriate Appeal Court or any judge of the appropriate Appeal Court in court or in chambers after such inquiry and hearing of parties as shall seem just.

(5) Where an accused in an appeal under this section is under 21 years of age, section 51 of this Act shall apply to the appropriate Appeal Court or, as the case may be, the judge of the appropriate Appeal Court when disposing of the appeal as it applies to a court when remanding or committing a person of the accused’s age for trial or sentence.

(6) In the event of the appeal of the public prosecutor under this section being refused, the court may award expenses against him.

(7) When an appeal is taken by the public prosecutor either against the grant of bail or against the amount fixed, the accused to whom bail has been granted (other than an accused to whom subsection (7B) below applies) shall, if the bail fixed has been found by him, be liberated after 72 hours from the granting of bail, whether the appeal has been disposed of or not, unless the appropriate Appeal Court grants an order for his further detention in custody.

(7B) Where, in relation to an accused admitted to bail under section 65(8C) of this Act, the public prosecutor appeals against the conditions imposed on bail, the accused—

(a) may continue to be detained under the committal warrant for no more than 72 hours from the granting of bail or for such longer period as the appropriate Appeal Court may allow; and

(b) on expiry of that period, shall, whether the appeal has been disposed of or not, be released on bail subject to the conditions imposed.

(8) In computing the period mentioned in subsection (7) above, Sundays and public holidays, whether general or court holidays, shall be excluded.

(9) When an appeal is taken under this section by the prosecutor in summary proceedings against the fact that the accused has been ordained to appear, subsections (7) and (8) above shall apply as they apply in the case of an appeal against the granting of bail or the amount fixed.

(10) Notice to the governor of the prison of the issue of an order such as is mentioned in subsection (7) above within the time mentioned in that subsection bearing to be sent by the clerk of the appropriate Appeal Court or the Crown Agent shall be sufficient warrant for the detention of the accused pending arrival of the order in due course of post.

(11) In this section—

“appropriate Appeal Court” means—in the case of an appeal under this section against a bail decision of the High Court or a judge of the High Court, that Court,in the case of an appeal under this section against a bail decision of the Sheriff Appeal Court, the High Court,in the case of an appeal under this section against a bail decision of a sheriff (whether in solemn or summary proceedings) or a JP court, the Sheriff Appeal Court,

“judge of the appropriate Appeal Court” means—in a case where the High Court is the appropriate Appeal Court, judge of that Court,in a case where the Sheriff Appeal Court is the appropriate Appeal Court, Appeal Sheriff,

“the clerk of the appropriate Appeal Court” means—in a case where the High Court is the appropriate Appeal Court, the Clerk of Justiciary,in a case where the Sheriff Appeal Court is the appropriate Appeal Court, the Clerk of that Court.

(12) In a case where the Sheriff Appeal Court is the appropriate Appeal Court, the references in subsections (3G)(b) and (10) to the Crown Agent are to be read as references to the prosecutor.

Bail after conviction: prosecutor's attitude

32A

(1) Where—

(a) a person has been convicted in any proceedings of an offence; and

(b) a question of bail (including as to bail conditions) subsequently arises in the proceedings (whether before sentencing or pending appeal or otherwise),

the prosecutor and the convicted person must be given an opportunity to make submissions in relation to the question.

(2) But the attitude of the prosecutor towards the question does not restrict the court's exercise of its discretion in determining the question in accordance with the rules applying in the case.

(3) Despite subsection (1) above, the prosecutor need not be given an opportunity to make submissions in relation to a question of bail arising under section 245J of this Act.

(4) This section is without prejudice to any other right of the parties to be heard.

Bail: no fees exigible.

33

No clerks fees, court fees or other fees or expenses shall be exigible from or awarded against an accused in respect of a decision on bail under section 22A above, an application for bail or of the appeal of such a decision or application to the High Court.

PART IV — Petition Procedure

Warrants

Petition for warrant.

34

(1) A petition for warrant to arrest and commit a person suspected of or charged with crime may be in the forms—

(a) set out in Schedule 2 to this Act; or

(b) prescribed by Act of Adjournal,

or as nearly as may be in such form; and Schedule 3 to this Act shall apply to any such petition as it applies to the indictment.

(2) If on the application of the procurator fiscal, a sheriff is satisfied that there is reasonable ground for suspecting that an offence has been or is being committed by a body corporate, the sheriff shall have the like power to grant warrant for the citation of witnesses and the production of documents and articles as he would have if a petition charging an individual with the commission of the offence were presented to him.

Petition proceedings outwith sheriffdom

34A

(1) Where the prosecutor believes—

(a) that, because of exceptional circumstances (and without an order under subsection (3) below), it is likely that there would be an unusually high number of accused persons appearing from custody for the first calling of cases on petition in the sheriff courts in the sheriffdom; and

(b) that it would not be practicable for those courts to deal with all the cases involved,

the prosecutor may apply to the sheriff principal for the order referred to in subsection (2) below.

(2) For the purposes of subsection (1) above, the order is for authority for petition proceedings against some or all of the accused persons to be—

(a) taken at a sheriff court in another sheriffdom; and

(b) maintained—

(i) there; or

(ii) at any of the sheriff courts referred to in subsection (1) above as may at the first calling of the case be appointed for further proceedings.

(3) On an application under subsection (1) above, the sheriff principal may make the order sought with the consent of the sheriff principal of the other sheriffdom.

(4) An order under subsection (3) above may be made by reference to a particular period or particular circumstances.

(5) This section does not confer jurisdiction for any subsequent proceedings on indictment.

Judicial examination

Judicial examination.

35

(1) The accused’s solicitor shall be entitled to be present at the examination.

(2) The sheriff may delay the examination for a period not exceeding 48 hours from and after the time of the accused’s arrest, in order to allow time for the attendance of the solicitor.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4A) An accused charged with an offence listed in subsection (4AA)(b) shall, as soon as he is brought before the sheriff for examination on the charge, be told—

(a) that his case at, or for the purposes of, any relevant hearing ... in the course of the proceedings may be conducted only by a lawyer,

(b) that it is, therefore, in his interests, if he has not already done so, to get the professional assistance of a solicitor; and

(c) that, if he does not engage a solicitor for the purposes of the conduct of his case at or for the purposes of the hearing, the court will do so.

(4AA) For the purposes of subsection (4A)—

(a) “relevant hearing” is to be construed in accordance with section 288C(1A) or (as the case may be) 288DC(4),

(b) the list is—

(i) an offence to which section 288C applies (certain sexual offending),

(ii) an offence to which section 288DC applies (domestic abuse cases).

(4B) A failure to comply with subsection (4A) above does not affect the validity or lawfulness of the examination or of any other element of the proceedings against the accused.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) Where the accused is brought before the sheriff for further examination the sheriff may delay that examination for a period not exceeding 24 hours in order to allow time for the attendance of the accused’s solicitor.

(6A) In proceedings before the sheriff in examination or further examination, the accused is not to be given an opportunity to make a declaration in respect of any charge.

(7) Any proceedings before the sheriff in examination or further examination shall be conducted in chambers and outwith the presence of any co-accused.

(8) This section applies to procedure on petition, without prejudice to the accused being tried summarily by the sheriff for any offence in respect of which he has been committed until liberated in due course of law.

Judicial examination: questioning by prosecutor.

36

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Judicial examination: record of proceedings.

37

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Judicial examination: rectification of record of proceedings.

38

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Judicial examination: charges arising in different districts.

39

(1) An accused against whom there are charges in more than one sheriff court district may be brought before the sheriff of any one such district at the instance of the procurator fiscal of such district for examination on all or any of the charges.

(2) Where an accused is brought for examination as mentioned in subsection (1) above, he may be dealt with in every respect as if all of the charges had arisen in the district where he is examined.

(3) This section is without prejudice to the power of the Lord Advocate under section 10 of this Act to determine the court before which the accused shall be tried on such charges.

Committal

Committal until liberated in due course of law.

40

(1) Every petition shall be signed and no accused shall be committed until liberated in due course of law for any crime or offence without a warrant in writing expressing the particular charge in respect of which he is committed.

(2) Any such warrant for imprisonment which either proceeds on an unsigned petition or does not express the particular charge shall be null and void.

(3) The accused shall immediately be given a true copy of the warrant for imprisonment signed by the constable or person executing the warrant before imprisonment or by the prison officer receiving the warrant.

PART V — Children and Young Persons

Age of criminal responsibility

41

A child under the age of 12 years cannot commit an offence.

Prosecution of children under 12

41A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Prosecution of children.

42

(1) A child aged 12 years or more but under 16 years may not be prosecuted for any offence except on the instructions of the Lord Advocate, or at the instance of the Lord Advocate; and no court other than the High Court and the sheriff court shall have jurisdiction over such a child for an offence.

(2) Where a child is charged with any offence, his parent or guardian may in any case, and shall, if he can be found and resides within a reasonable distance, be required to attend at the court before which the case is heard or determined during all the stages of the proceedings, unless the court is satisfied that it would be unreasonable to require his attendance.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) For the purpose of enforcing the attendance of a parent or guardian and enabling him to take part in the proceedings and enabling orders to be made against him, rules may be made under section 305 of this Act, for applying, with the necessary adaptations and modifications, such of the provisions of this Act relating to summary proceedings as appear appropriate for the purpose.

(5) The parent or guardian whose attendance is required under this section is—

(a) the parent who has parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the Children (Scotland) Act 1995) in relation to the child; or

(b) the guardian having actual possession and control of him.

(6) The attendance of the parent of a child shall not be required under this section in any case where the child was before the institution of the proceedings removed from the care or charge of his parent by an order of a court.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) Where a local authority receive notification under section 24 of the Criminal Justice (Scotland) Act 2016 they shall make such investigations and submit to the court a report which shall contain such information as to the home surroundings of the child as appear to them will assist the court in the disposal of his case, and the report shall contain information, which the appropriate education authority shall have a duty to supply, as to the school record, health and character of the child.

(9) Any child ... being conveyed to or from any criminal court, or waiting before or after attendance in such court, shall be prevented from associating with an adult (not being a relative) who is charged with any offence other than an offence with which the child is jointly charged.

(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Arrangements where children arrested.

43

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Detention of children.

44

(1) Where a child appears before the sheriff in summary proceedings and pleads guilty to, or is found guilty of, an offence to which this section applies, the sheriff may order that he be detained in a residential establishment for such period not exceeding one year as may be specified in the order in such place (in any part of the United Kingdom) as the appropriate local authority may, from time to time, consider appropriate.

(2) This section applies to any offence (other than, if the child is under the age of 16 years, an offence under section 9(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) or that section as applied by section 234AA(11) of this Act) in respect of which it is competent to impose imprisonment on a person of the age of 21 years or more.

(3) Where a child in respect of whom an order is made under this section is detained by the appropriate local authority, that authority shall have the same powers and duties in respect of the child as they would have if he were subject to a compulsory supervision order.

(4) Where a child in respect of whom an order is made under this section is also subject to a compulsory supervision order or interim compulsory supervision order, subject to subsection (6) below, the compulsory supervision order or interim compulsory supervision order shall be of no effect during any period for which he is required to be detained under the order.

(5) The Secretary of State may, by regulations ..., make such provision as he considers necessary as regards the detention in secure accommodation of children in respect of whom orders have been made under this section.

(5A) Regulations under subsection (5) may, in particular, make provision about the circumstances in which such children may remain in secure accommodation despite attaining the age of 18 years (provided that no person may remain in such accommodation after attaining the age of 19 years).

(5B) Regulations under subsection (5) are subject to the affirmative procedure.

(6) Where a child is detained in a residential establishment in pursuance of an order under—

(a) subsection (1) above, he shall be released from such detention not later than the date by which the period mentioned in subsection (6A) has (following commencement of the detention) elapsed but, without prejudice to subsection (7) below, until the entire period specified in the order has so elapsed may be required by the local authority to submit to supervision in accordance with such conditions as they consider appropriate;

(b) subsection (1) above or (8) below, the local authority may at any time review his case and may, in consequence of such review and after having regard to the best interests of the child and the need to protect members of the public, release the child—

(i) for such period and on such conditions as the local authority consider appropriate; or

(ii) unconditionally.

(6A) The period referred to in subsection (6)(a) is—

(a) where subsection (6B) applies, one-half of the period specified in the order,

(b) in any other case, two-fifths of the period specified in the order.

(6B) This subsection applies where the offence to which the order relates is—

(a) an offence listed in paragraphs 36 to 60 of schedule 3 of the Sexual Offences Act 2003, or

(b) a domestic abuse offence.

(7) Where a child released under paragraph (a) or (b)(ii) of subsection (6) above is subject to a compulsory supervision order or interim compulsory supervision order, the effect of that order shall commence or, as the case may be, resume upon such release.

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