Three Appeal Court judges have decided that amendments made to Section 24 of the Criminal Procedure (Scotland) Act 1995 are not compatible with an accused person’s Convention Rights under Article 5 ECHR.  The provision in question was amended by Section 58 of the Criminal Justice and Licensing (Scotland) Act 2010.  That Section amended Section 24  to include in the standard conditions of bail two further conditions – (1) that the accused comply with any request for an identification parade and (2) that the accused provide prints, impressions or samples.  The conditions are mandatory.  The judge dealing with the question of whether to admit an accused person to bail has no discretion as to whether or not to impose theses conditions.  The accused who refused to accept the conditions would, on the motion of the Crown, be remanded in custody.

Pre-trial detention is, of course, justified in certain circumstances.  The Appeal Court was referred to and quoted from the Law Commission of England and Wales report ”Bail and the Human Rights Act 1998″ (Law Com No.269) which conveniently summarises the position as follows: -

“The ECtHR has recognised that pre-trial detention may be compatible with the defendant’s right to release under Article 5(3) where it is for the purpose of avoiding a real risk that, were the defendant released,

(i)                  he or she would

(a)                fail to attend trial;

(b)               interfere with evidence or witnesses, or otherwise obstruct the course of justice;

(c)                commit an offence while on bail; or

(d)               be at risk of harm against which he or she would be inadequately protected; or

(ii)                a disturbance to public order would result”.

It follows that justified pre-trial detention is a result of the exercise of judicial discretion in the evaluation of the risks of releasing the accused.  The amendment to Section 24 has the effect of removing such discretion.  As Lord Eassie, delivering the opinion of the Court, states at paragraph [19]: -

“…the fundamental problem presented in this appeal 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. The amendment effected by section 58 of the 2010 Act removes all elements of judicial discretion and supervision of the question whether the particular accused may be required to submit to evidence gathering or other investigatory procedures as a counterpart for his obtaining pre-trial liberty. As was pointed out in the discussion before us, while an accused who has not been in custody may be required to participate in an identification procedure by virtue of section 267B of the 1995 Act, whether he should be subjected to that requirement is a matter of judicial decision in the individual circumstances of the case and provision is made for his having an opportunity to make representations to the court. The taking of prints, impressions or samples from such an accused would, of course, require judicial warrant. To that extent we have come to the view that the inclusion of the condition in question as a mandatory condition on the grant of bail is incompatible with the rights secured to the citizen by Article 5 ECHR. As earlier indicated, the Crown frankly indicated its difficulty in advancing to us any comprehensible reason for the amendment effected by the 2010 Act which might require to be weighed in any assessment of its compatibility with the Convention.”

The Court further concluded that the statutory provision could not be “read down” in a way to make it ECHR compatible.  Accordingly, the Court declared that the amendment to Section 24 was, pursuant to Section 29 of the Scotland Act 1998, “not law.”

Notes:

1. Case citation – Cameron v PF Livingston [2011] HCJAC 19

2. Intimation has been given to the Advocate General for Scotland under Section 102(4) of the Scotland Act to allow him an opportunity to make submissions as to whether the ruling should have prospective effect.

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