I do not intend to comment on the detail of this bill. I am not arrogant enough to assume that the government would pay any attention to comments I made on the drafting. So, I will concentrate on the practicalities.

In future, for those appearing for the first time, bail hearings will require input from “an officer of a local authority” either orally or in writing. Which local authority – the one in which the court is located or the one in which the accused resides? At present, the law provides that normally bail must be dealt with on the day the accused first appears. It is unlikely that a written comment from the local authority would be available on that day, and so “the officer” will need to be present in court throughout.

A court may have 40 or more custodies to deal with in any one day. What if the court sits on a Saturday, or a public holiday, or the local authority is own strike? Even assuming that presence, what is the officer going to be able to contribute? The bill is silent on this. One assumes that local authorities have a superabundance of staff to allow an officer to be present throughout what may be a lengthy custody court.

Most bail applications will be dealt with by sheriffs, but whoever is dealing with bail will consider all the circumstances, what the Crown says and what the defence says and, possibly, hear from the accused. The family circumstances may be an important factor, e.g. there may be a family member who requires constant assistance and it is better if the accused is there to provide it.

When I sat, Crown Office had a “policy” in relation to “domestics”. The police would keep them in custody pending a court appearance, and the Crown would oppose bail, or if bail was to be granted, the Crown would insist that the accused found somewhere, other than the home of the complainer, to stay pending trial. The Crown might have denied that such a policy existed, but fiscals would routinely explain that it was “Crown Office policy” to oppose bail – and some less experienced ones would say that it was “government policy”.

The bill focuses on those who pose a risk to public safety or who fail to turn up, or where there is a significant risk to the interest of justice. “Domestics” may not fall into either category and so, are we to assume that this “policy” will no longer apply?

If members of the Scottish government ever attended such courts they would see that, not infrequently, there is no motion for bail. If that is the case, at present, bail will not be granted. In most instances, the reason is the accused’s previous convictions, but there are other reasons, e.g. the accused may fear reprisal from the complainer, or associates. The accused may be “living rough” and may welcome the security of being on remand. Is the court expected to look behind the fact that bail is not being asked for, or is the “officer” expected to contribute?

The Scottish government does not seem to appreciate that there may be an appeal against either the granting or refusal of bail. The appeal is to the High Court and the matter will be dealt with, probably on the next working day. Is the High Court going to have the benefit of an input from “an officer”, and if so, which one? If the appeal is from, say, Aberdeen, is the “officer” going to travel to Edinburgh, possibly with an overnight stay at public expense? Appeals for courts further away would necessitate such an overnight stay. Nice work if you can get it. The bill seems to be silent on what happens on conviction. Until then, the accused may have been on bail. The status of the accused pending sentence will be dealt with as it is a present, one assumes.

The bill also allows the Scottish government power to grant parole to long-term prisoners, even if the Parole Board has decided not to. The Parole Board’s decision will be based on the perceived risk of re-offending, but the Scottish government obviously thinks it would be in a better position to make this judgment. Will it consider all the papers which the Parole Board had, what the prisoner and the witnesses had to say? One hopes so!

The bill sends out two unfortunate messages. The first is that the judiciary cannot be trusted to get decisions on bail “correct” even with the appeal process and that the Parole Board cannot be trusted to reach correct decisions on refusal of parole.

Douglas J. Cusine is a retired sheriff and a respected author of articles and books on legal and medico-legal topics.