Bail, Undertakings and Remand in Scotland: 12 questions answered
In Scotland police can release you on an undertaking to appear at court or on investigative liberation, and courts decide bail. Since May 2025 courts can refuse bail only where it is necessary for public safety or to prevent a significant risk to the interests of justice.
Law checked as at 25 September 2026. Legal information only, not legal advice. See how we check this page and recent changes.
What is the difference between an undertaking and bail in Scotland?
An undertaking is a signed promise given to the police, under section 26 of the Criminal Justice (Scotland) Act 2016, to appear at a named court on a set date and to follow any conditions attached. It is used when police charge you but release you rather than keeping you for court. Bail is granted by a court, usually at your first appearance, and lasts while your case continues. Both come with conditions, and breaking either without a reasonable excuse is a separate criminal offence.
What conditions can police put on an undertaking in Scotland?
Standard undertaking conditions are that you do not commit an offence, do not interfere with witnesses or evidence or otherwise obstruct justice, and do not behave in a way that causes, or is likely to cause, alarm or distress to witnesses. Police can add further conditions that are necessary and proportionate, such as staying away from a place or person. A curfew requiring you to be at a set address needs an inspector's authority. The Procurator Fiscal can change or cancel an undertaking, and you can ask a sheriff to review extra conditions.
What is investigative liberation and how long does it last?
Investigative liberation is release from police custody without charge, but with conditions, while police continue investigating, under section 16 of the Criminal Justice (Scotland) Act 2016. Conditions must be necessary and proportionate to protect the investigation, such as not contacting certain people, and cannot include a requirement to be at a particular place, like a curfew. They end no later than 28 days after first being imposed, or earlier if removed, if you are arrested or charged, or if a sheriff removes them on review.
What happens if I am kept in custody to appear at court in Scotland?
You must be brought before a court, if practicable, on the first day the court sits after you are charged, and you may appear in person or by video link. In less serious cases you appear on a complaint and are usually asked to plead. In serious cases you appear on petition in private, normally without pleading, and the sheriff decides whether you are committed for further examination or fully committed. At that first appearance the court decides whether to grant bail or remand you in custody.
How does a court decide whether to grant bail in Scotland?
Since 14 May 2025, under changes made by the Bail and Release from Custody (Scotland) Act 2023, section 23B of the Criminal Procedure (Scotland) Act 1995 says bail must be granted unless there is good reason to refuse it. A court can refuse only if a recognised ground applies, such as a substantial risk of reoffending or interfering with witnesses, and refusal is necessary for public safety, including protecting the complainer, or to prevent a significant risk of prejudice to justice. The court must consider whether bail conditions could manage the risk, and must give reasons.
What are the standard bail conditions in Scotland?
Under section 24 of the Criminal Procedure (Scotland) Act 1995, every bail order includes standard conditions. You must attend every court hearing you are told about, not commit any offence, not interfere with witnesses or obstruct justice, not behave in a way likely to cause alarm or distress to witnesses, take part in identification procedures and allow prints or samples to be taken if police reasonably instruct you, and make yourself available for reports. In certain sexual and domestic abuse cases you must not try to get a statement from the complainer yourself.
Can bail be electronically monitored in Scotland?
Yes. Courts can add a condition that you wear an electronic tag, for example to monitor a curfew, under the Management of Offenders (Scotland) Act 2019. If a court refuses bail, it must explain why electronically monitored bail would not be suitable or enough. Since 1 July 2024, if you later receive a custodial sentence, the court must count half of the time you spent on qualifying monitored bail, meaning a curfew of at least 9 hours a day, as time already served, unless it gives reasons for disregarding some of it.
What happens if I break my bail conditions in Scotland?
Failing without reasonable excuse to appear at court or to follow a bail condition is an offence under section 27 of the Criminal Procedure (Scotland) Act 1995. The maximum penalty is a fine of up to £1,000 and 12 months in prison, or 60 days in a justice of the peace court. In solemn cases, failing to appear can bring up to 5 years. If the breach is committing a new offence, the court must take into account that it happened on bail and can increase the sentence. Police can arrest you if they suspect a breach.
What happens if I break an undertaking or investigative liberation conditions?
Breaking a condition of investigative liberation, failing to turn up at court as your undertaking requires, or breaking any other undertaking condition without reasonable excuse is an offence under schedule 1 of the Criminal Justice (Scotland) Act 2016. The maximum penalty is a fine of up to £1,000, or imprisonment of up to 60 days in a justice of the peace court or 12 months in the sheriff court, and any sentence can be added on top of the sentence for the original offence. Police can also arrest you if they suspect you will breach an undertaking.
How long can I be remanded in custody before trial in Scotland?
In summary cases, you cannot be held for more than 40 days after the complaint is brought unless your trial starts, and if the limit passes without an extension you must be released and cannot be prosecuted for that offence. In solemn cases, once fully committed, the indictment must be served within 80 days, the preliminary hearing or first diet held within 110 days, and the trial started within 140 days, or you become entitled to bail. Courts can extend these limits on cause shown. Longer temporary Covid-era limits still apply only to some older cases.
Can I appeal if bail is refused in Scotland?
Yes. Under section 32 of the Criminal Procedure (Scotland) Act 1995, you can appeal against a refusal of bail, or against the conditions. Appeals from a sheriff or justice of the peace court go to the Sheriff Appeal Court, and appeals from the High Court go to the High Court. The prosecutor can also appeal against a decision to grant bail. If they do, you stay in custody while the appeal is heard, but you must be released after 72 hours, not counting Sundays and public holidays, unless the appeal court orders otherwise.
Can I ask to change my bail conditions or apply for bail again?
Yes. Under section 30 of the Criminal Procedure (Scotland) Act 1995, you can ask the court to review a refusal of bail, or to remove or vary conditions, if your circumstances have changed materially or you have important information the court did not have before. The prosecutor is given a chance to respond. In solemn cases, if bail was refused at your first appearance on petition, you can apply again once you are fully committed. A solicitor can advise whether an application is likely to be worthwhile.
Official sources
Primary sources and official guidance on this topic, for anyone who wants to read the underlying rules directly.
- Criminal Procedure (Scotland) Act 1995, section 23B (entitlement to bail)
- Criminal Procedure (Scotland) Act 1995, section 27 (breach of bail conditions)
- Criminal Procedure (Scotland) Act 1995, section 65 (prevention of delay in trials)
- Criminal Procedure (Scotland) Act 1995, section 210ZA (time spent on electronically monitored bail)
- Criminal Justice (Scotland) Act 2016, Part 1 Chapter 3 (police liberation and undertakings)
- Bail and Release from Custody (Scotland) Act 2023 (Commencement No. 2) Regulations 2025
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