Bail Undertaking Procedures and Hearings in Scotland

bail undertaking scotland

A Guide to Bail Undertaking Procedures and Hearings in Scotland – Liberation After Charge from a Police Station -Criminal Procedure Scotland Act 1995 Section 21 and 22.

Bail undertaking court appearances occur normally in the Sheriff court – in Scotland the busiest Sheriff Courts are in Glasgow, Aberdeen, Edinburgh, Paisley, Dundee, Perth, Kilmarnock, Inverness, Kirkcaldy with other courts located throughout the country. Bail undertaking appearances can also take place in Justice of the Peace courts.

You, a friend or a family member may have been charged with a criminal offence in Scotland and then released from a police station with a pink form – this is called a "bail undertaking form ". This procedure is most often used for drink driving cases but can be used in a number of situations for offences such as assault, racially aggravated behaviour, football related offences and many others.

Our full guide will tell you the answers to:

What is a bail undertaking and what are they for?

If a person is charged with a criminal offence at a police station the officer in charge of the station at time must make a decision about what to do with the person. The choices are

  • To simply release the person from the station. The police will then send a report about the offence to the Procurator Fiscal who will decide whether to prosecute the person further.
  • To keep the person in police custody – either overnight or over the entire weekend – for the person then to be taken to court on the next "lawful day "which means the day the court is next open. This occurs where the charges are very serious or the accused has previous convictions which make the police think it is unsafe to release them back into the community.
  • To release the person on a "bail undertaking ". This means that the person is released from custody having signed a form stating that they will attend court on a specific date at a specific time and that they will be of good behaviour between being released from police custody and the court appearance. They are used where it is felt the accused can be trusted to be a good behaviour before the court appearance but where it is also deemed sensible to bring the case in to court quickly – meaning usually weeks rather than months.

Who decides to give me a bail undertaking?

The officer in charge of the police station will make this decision.

What type of cases is a bail undertaking used for?

Bail undertakings are used by the police routinely to release people from police stations when, for example, they have been charged with offences like drink driving. Bail undertakings though can be used for a wide range of offences. In deciding whether to release an accused person on a bail undertaking the officer in charge will consider the type of charge the person faces and whether the accused has previous convictions, especially for breaches of bail orders or for the same type of charge that they currently face - if it is thought the person cannot be trusted to be on bail then they are likely to be kept in custody. Using the example of drunk driving, many people facing such charges have never been involved in trouble before and are then likely to be released from police custody on a bail undertaking. If though the accused person has a previous conviction or convictions for drink driving or other offences the duty officer is likely to decide that liberation on a bail undertaking is not appropriate - and to order that the person stays in custody to attend court the next day.

Does this mean I am on bail?

Yes , when released on a bail undertaking a person is then subject to a bail order which means that they must be of good behaviour and attend court on the specified date – these are known as "standard conditions of bail " . It is also possible for the bail undertaking to include what are referred to as "special conditions of bail " and such conditions can state that the accused person cannot approach or contact a particular person ( often used in cases of alleged domestic violence ) or can't go near a particular home or property . If "special conditions "are to be imposed by the police the officer who decides to do so must have a rank no lower than Inspector. These "extra " conditions of bail should only be imposed by the officer where it is felt that they are required to ensure that the standard conditions of bail are met . For example , the police may impose the special condition of bail that an accused does not contact their partner where the charge is an allegation of assault as it is felt that if the accused was able to have contact with the partner before the court hearing that there might be a further incident of violence .


What does being on bail mean?

Bail means that you are in what is called a "special position of trust ". If you do not break any of the conditions of bail then there is no penalty and the bail order would come to an end when the court brings it to an end. If however you break the conditions of bail you would be charged with a specific offence of breaching a bail order which can carry a punishment of up to 12 months imprisonment on summary procedure.

What happens between being released on a bail undertaking and going to court?

Once released on a bail undertaking you are free to continue to carry on your life as before – as long as you stick to the bail conditions. In relation to, for example, drink driving you are still able to drive (as long as there is not a special condition of bail which states that you cannot drive). Your main focus should be on ensuring you are of good behaviour and on making sure you will be at court on the correct date for your hearing.

During this period between being released on a bail undertaking and the court date the police will send a report to the Procurator Fiscal containing information about the charge and the circumstances of the case – the Fiscal will then decide whether or not to proceed with the prosecution.

Should I see a lawyer before I go to court?

Yes - it would make sense to obtain legal advice and many solicitors will provide free initial advice. You will gain a better understanding of what lies ahead and also be given advice about whether or not you have a defence to the charge you are facing. If you have a defence the solicitor will explain the law and advise you of any steps that you should take immediately that may assist your defence – for example, obtaining a report from your GP. If you do not have a defence the solicitor can explain the likely punishments that you may face eg for drink driving the solicitor could advise you about the likely length of disqualification from driving. Crucially, you can also receive advice from the solicitor which can help reduce the penalty you receive – for example with drink driving it may be wise for you to obtain documents which show your current financial position, your reliance on your driving licence to allow you to work or a letter or report from your GP about health issues you may have and the impact of losing your licence upon you or your relatives. Such evidence can help the court ascertain your full circumstances and will assist the solicitor in performing a plea in mitigation on your behalf – basically a speech on your behalf directed to the Sheriff or Magistrate who will decide how to punish you which has the aim of explaining why the offence happened, your personal circumstances and hopes to minimise the penalty imposed by the court.

If I don't attend court on the date given what will happen?

This would be a breach of the bail undertaking and you will be charged with an offence relating to that. Usually a warrant will also be taken for your arrest

What happens when I get to court?

Your bail undertaking form outlines a date and time for you to attend court. You should aim to be at court early – arriving late can be disastrous as your case may have been heard already and a warrant will probably have been granted for your arrest.

Upon entering the court building you will be directed by a court official to the court which is dealing with bail undertakings. You should immediately go to that court. In due course your name will be called and a police officer will hand you a court citation. This is the paperwork which shows the charge or charges you are facing. The papers will also have a short summary of evidence which gives a basic outline of the case against you. If you have previous convictions then a list of these will be included in the paperwork given to you.

You should take the time to read the citation and if you have instructed a solicitor to represent you for the hearing he or she should be given all of the paperwork you have received. You will have time to consult with your solicitor about the details of the citation prior to the case calling in court.

When your case calls you will be asked to confirm your name and thereafter your solicitor will advise the court if you are pleading guilty or not guilty to the charge. (If further time is required to make some investigations on your behalf the court can be asked for a continuation for a short period – usually three weeks. A good reason for such a continuation is required and the request will only be granted if considered to be in the interests of justice)

If you are pleading not guilty to the charge the court will then fix two dates for future court hearings – a trial hearing and before that an intermediate diet . An intermediate diet is similar to a pre-trial hearing when the court must be advised about the state of preparation of your defence and the Procurator Fiscal advises the court about the preparation of their case against you. If all is ready the case will be continued to the trial hearing when evidence is heard and the court decides if you are guilty or acquitted of the charge you face ( this means you are found "not guilty " or " not proven " of the charge(s) you faced ) .

If you are pleading guilty to the charge or charges the solicitor will advise the court of this and the Sheriff or Magistrate will ask you to confirm the guilty plea. Once confirmed and then accepted by the Fiscal the court will be told the circumstances of the offence and the police investigation. The solicitor will then address the court on your behalf by conducting a plea in mitigation – when your explanation about the offence will be given along with further information about relevant matters such as the impact of gaining a conviction or losing your employment and your current financial position . If the Sheriff or Magistrate is satisfied they have enough information they will then proceed to sentence you. If though they think that the offence is sufficiently serious to require custody or "community service "the matter will be continued for a period (usually 3 weeks) to allow for the preparation of background reports.


Will I still be on bail after the court hearing?

The bail undertaking comes to an end on the day of the bail undertaking hearing. The court will then decide whether you are to remain on bail thereafter for any future hearings if there are to be any.

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Last Updated

Wednesday, 15 November 2017


Criminal Law

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