Bail conditions and judicial discretion

The Criminal Appeal Court has struck down a provision in the Criminal Justice and Licensing (Scotland) Act 2010 that removes judicial discretion in the imposition of a particular bail condition. According to the Court, the provision is in breach of Article 5 of the European Convention on Human Rights (ECHR).

The case concerned a Mr Grant Cameron, who had been brought before the Justice of the Peace Court at Livingston on charges relating to threatening or abusive behaviour. When the question of bail arose, Mr Cameron's solicitor argued that one aspect of the standard bail conditions was invalid, because it breached the right to liberty and security enshrined in the ECHR.

In general, standard bail conditions cover issues such as appearance at trial, and non-interference with witnesses, but a new provision recently amended the existing law,  adding in a further requirement: that the accused, if he wished to be granted bail, must agree to,

whenever reasonably instructed by a constable to do so -

(i) participate in an identification parade or other identification procedure; and
(ii) allow any print, impression or sample to be taken.

This, said Lord Eassie, giving the ruling on behalf of the court, "may thus be seen as making the attachment of a condition requiring participation in an identification parade or procedure, or requiring the accused to submit to the taking of any print, impression or sample from his body, no longer a matter in which the judge hearing the bail application has any measure of discretion."

In effect, if an accused wished to be granted bail, he had to agree to the condition - even if such evidence gathering was perhaps not justified in his particular case. Was this in breach of Article 5?

According to Lord Eassie, it was.

In general terms, pre-trial deprivation of liberty is compatible with Article 5 only if it is used to avoid certain defined risks, such as the accused failing to turn up for his trial, or committing another offence, he explained.

The law also provides that, if, in the circumstances of the case, bail conditions will be sufficient to alleviate these risks, then detention is not justified. In addition, any bail conditions imposed must relate to an issue that would justify the detention in that case.

"The need for detention on one or more of the justifying criteria has to be a matter for assessment by the judicial power - ie the court - in the particular circumstances of the individual case," said Lord Eassie. "It follows, in our view, that whether a condition to be imposed on the grant of bail appropriately addresses and is properly related to one of the recognised and accepted risks capable of justifying pre-trial detention must similarly be assessed by a judge individually, in the circumstances of the particular case in question."

According to Lord Eassie, the new provision removed the opportunity for a judge to consider either of these issues and it was therefore incompatible with Article 5 of the Convention.