The Act: Section by Section Part 1: Bail Section 4—Decisions on bail: duty to state and record reasons
21.Section 4 expands on the court’s general duty under section 24(2A) of the 1995 Act to state its reasons whenever it grants or refuses bail.
22.Section 4(2) adds a new subsection (2AA) to section 24 of the 1995 Act. This requires the court, when refusing bail, to state particular reasons for its decision. Firstly, it must state the grounds on which it determines (in accordance with new section 23B(1A) of the 1995 Act) that there is good reason for refusing bail. Secondly, when refusing bail solely on the ground specified in section 23C(1)(a) of the 1995 Act (that is, substantial risk of absconding or failing to appear), it must state why it considers that the necessity test in new section 23B(1A)(b) is met. And, thirdly, it must state its reasons for refusing to grant bail subject to an electronic monitoring requirement under Part 1 of the Management of Offenders (Scotland) Act 2019 – more specifically, its reasons for considering either that imposing bail conditions subject to such a requirement would not be appropriate, given the accused’s circumstances, or that doing so would not be enough to properly safeguard the interests of public safety or justice as mentioned in new section 23B(1A)(b)(i) or (ii). The court must also ensure that the grounds mentioned in new section 24(2AA)(a)(i) are added to the record of the proceedings. This means that the specific grounds on which the court determines that there is good reason for refusing bail must be both stated in open court and recorded in the court minutes.
23.Section 4(5) amends section 24(8) of the 1995 Act. Section 24(8) provides that references to certain expressions within sections 24, 25 and 27 to 29 are to be read in a way which means these sections can apply in relation to interim liberation cases. The amendment expressly disapplies this provision in relation to new section 24(2AA). This ensures that the duty in new section 24(2AA) applies only in relation to pre-trial/pre-conviction bail decisions.
24.Section 4(3) and (4) amends subsection (2B) of, and adds a new subsection (2C) to, section 24 of the 1995 Act. Section 24(2B) provides that where the court grants bail on standard conditions to a person accused of a sexual offence, it must state why it considers in the circumstances of the case that it is not necessary to impose any additional (“special”) conditions of bail. Such special conditions of bail may include, for example, protective conditions that preclude an accused person from (a) approaching or contacting, or attempting to approach or contact, a named complainer, and/or (b) being at or entering a complainer’s home address. New section 24(2C) extends the requirement to state reasons under section 24(2B) so that it applies also where the court grants bail on standard conditions to a person accused of an offence involving domestic abuse or an offence of stalking.