Draft Bail and Release from Custody (Scotland) Act 2023 (Consequential Modifications) Order 2024

Jerome Mayhew Excerpts

Wednesday 20th November 2024 General Committees

[Martin McCluskey (Inverclyde and Renfrewshire West) (Lab)]

I beg to move,

That the Committee has considered the draft Bail and Release from Custody (Scotland) Act 2023 (Consequential Modifications) Order 2024.

It is a pleasure to serve under your chairmanship, Mrs Harris. The draft order was laid on 21 October 2024.

I welcome the new shadow Secretary of State for Scotland, the hon. Member for West Aberdeenshire and Kincardine (Andrew Bowie), to his place.

[Jerome Mayhew (Broadland and Fakenham) (Con)]

He was just in time.

[Martin McCluskey]

Yes, just in time. I also pass on the apologies of the Secretary of State for Scotland, who is appearing before a Select Committee.

The order is the result of collaborative working between the two Governments, in Scotland and Westminster, and supports the Scottish Government’s decision to implement the Bail and Release from Custody (Scotland) Act 2023. The order will be made under section 104 of the Scotland Act 1998, in consequence of the 2023 Act. A section 104 order is the most common type of Scotland Act order, and is used to make technical amendments to UK reserved legislation to facilitate the policy aims of an Act of the Scottish Parliament or secondary legislation made by Scottish Ministers. Scotland Act orders demonstrate devolution in action, and I am pleased that this is the fourth Scotland Act order put to the House by this Government.

I will explain the effect and provisions of the order. Extradition proceedings take place in summary courts, which are magistrates courts in England, Wales and Northern Ireland and sheriff courts in Scotland. Were there changes to the legal framework for bail considerations in those courts, that might impact on extradition cases. That could happen in this instance, and both Scotland’s Governments agree that that would not be appropriate, so we using the order to prevent it. The order does not make changes to extradition law across the UK or affect policy and legal frameworks for extradition in any way. It will ensure that courts in Scotland continue to be able to consider flight risk as a ground for refusal of bail in the context of extradition proceedings, in line with the rest of the UK.

The order will ensure that a limitation on the court’s ability to remand persons at risk of failing to appear in court, under the new test for bail in Scottish summary courts, does not extend to extradition cases. That will mitigate the risk of a person wanted for extradition being granted bail under the new regime when it would not have been granted under the previous regime. Without the order, individuals accused of serious crimes who are wanted for extradition could be granted bail under the new regime because the courts would not retain their current discretion to consider flight risk. That would create a risk that the requested person absconds and evades justice.

The Bail and Release from Custody (Scotland) Act was passed by the Scottish Parliament in June 2023. It seeks to ensure that, as much as possible, the use of remand for domestic criminal cases within the Scottish criminal justice system is a last resort, reserved for cases where public safety requires it, or where there is a significant risk of prejudice to the interests of justice. The Act amends sections 23B and 23C of the Criminal Procedure (Scotland) Act 1995 to limit the circumstances in which the court, in summary proceedings in Scotland, can refuse an individual’s bail application.

In particular, the amendments to section 23C include a new subsection that limits the extent to which a court may take into account any substantial risk of a person absconding or failing to appear when it is determining whether there is a good reason for refusing bail in summary proceedings. That would remove sheriffs’ ability to consider whether an individual may abscond from further proceedings, unless the individual has already failed to appear in a Scottish domestic criminal court case. It should be noted that the restrictions would not apply to judges who are considering whether to refuse bail in solemn proceedings, which are the equivalent of Crown courts in England, Wales and Northern Ireland.

The Extradition Act 2003, which applies across the whole UK, prescribes that the cases of individuals arrested, subject to an extradition request from an international partner, are to be overseen by a specialised extradition judge—in Scotland, that is the sheriff of Lothian and Borders. When hearing extradition cases, the sheriff has powers available in relation to bail as if the case were summary proceedings in respect of an offence alleged to have been committed by the person. Cases proceeding by way of summary proceedings in Scotland involve less serious crimes than extradition cases typically do.

Under existing Scottish bail legislation, the sheriff considering bail in an extradition case can consider the question of flight risk from the outset of the case. That is important, as the nature of extradition means that the individual may pose a substantial risk of absconding or failing to appear. The order ensures that sheriffs retain their discretion to decide whether those subject to an extradition request are remanded in custody while they wait for hearings.