At present cases are brought to court in three ways. The person is either arrested and taken in custody to court on the next lawful day, or liberated by the police on an undertaking to appear in court on a given day [undertakings] or cited by the Procurator Fiscal. At present the vast majority of cases fall into the last category, i.e. they are cited cases. This is about to change quite significantly in two major respects and it is these aspects I wish to turn to in this article.

The intention is that up to about one third of all cases in the future will be dealt with by people being given an undertaking to appear at court. This is a huge jump in the number of these cases. Secondly, for the first time, police in Scotland will be given the power to impose bail conditions in these cases and that bail will apply with immediate effect and before the accused person appears in court.

The reasoning behind these changes is that under the current system it is taking too long to bring people before the courts and at least some of them are committing further offences in the meantime.

The major difference between a cited case and an undertaking is that in the latter the accused person must attend court personally on the given day whereas in a cited case, they do not have to appear personally. Failure to attend without reasonable excuse in terms of an undertaking is itself a further offence. Thus in an undertaking case, you must attend the court personally even if you intend to plead not guilty. In a cited case you can instruct a solicitor to appear for you or write in with your plea instead of appearing personally.

Does this matter? Yes, if you have to take a day, or longer, off work or travel to a distant court simply to plead not guilty. After all we are all presumed to be innocent unless and until we are proved guilty. As in all Scottish criminal cases, no one will recompense you for these losses if you are found not guilty. Secondly it is going to have a massive impact on court business. None of our Highland courts have adequate facilities for interviewing the number of people who attend at present let alone when the numbers to be seen significantly increase. Will you be happy to have your private and confidential matters discussed where others can hear if there is nowhere private available? Furthermore seeing people at court takes a lot of solicitor time. There are only so many defence solicitors available. Will the Sheriffs be happy to sit and wait while we see the large numbers involved? Are the police and fiscals going to be forced into giving priority to preparing court reports instead of dealing with other more pressing matters?

Like many ideas from the Scottish Executive, the difference between theory and practice does not appear to have been thought through.

At present we haven’t been told what is expected to happen under police bail. The current position is that it is a matter for a court whether or not anyone should be on bail and the conditions of that bail order, which is only imposed having heard submissions from both the fiscal and the defence agent. There is an appeal to the High court about the terms of that bail order, which appeals are dealt with very quickly. If there is a change in circumstances, the court can review the bail order. Nowhere is it even suggested there should be similar protective measures in the proposed police bail. It will be imposed by the police on conditions that they see fit without anyone being able to present argument about these conditions and continue in force until you appear in court. Bear in mind that some of our Highland courts sit monthly. Inverness is the only court sitting every weekday. How long is someone going to be on this police bail and unable to challenge or vary it?

I rather suspect this is a central belt problem with an answer being imposed on places that do not need it, such as the Highlands.

On a lighter note, I noted one judge’s response to the increasing disruption of courts by the ringing of mobile phones. He simply remarked that they are also known as cell phones. Be advised.