Report and Recommendations - Scottish Government

may be possible to challenge these under the Convention in certaincircumstances 4 .Liberation Post Charge5.3.7 Pending court appearance, the criteria used by the police to decide whether toliberate suspects charged by them are those set out in the Lord Advocate’sGuidelines to Chief Constables on Liberation by the Police 5 . These followupon the provisions in the 1995 Act 6 , which allow the police to liberatesuspects, on or without undertakings, pending court appearance on a specificday no later than twenty-eight days after liberation. The provisions do notapply to murder or rape cases and, where it is likely that the case will notproceed on a summary complaint, the police are requested to consult theprocurator fiscal. The Guidelines provide that there should be no release on anundertaking where there is a substantial risk that the suspect will fail to appearat the court diet, commit further offences, interfere with witnesses, obstruct thecourse of justice or fail to comply with the undertaking. Obviously, where it isthought that the suspect poses a danger to the public or the investigationprocess, he/she should not be released under these provisions. Where asuspect has been arrested on a non-appearance warrant, there is a presumptionthat he/she will not be liberated pending appearance, but this is rebuttablewhere exceptional circumstances exist.5.3.8 Breach of an undertaking is a criminal offence with a maximum penalty oftwelve months imprisonment. Any undertaking can include compliance with4 e.g. SF v Switzerland (1994) DR 76, at para 135 http://www.copfs.gov.uk/sites/default/files/Publications/Resource/Doc/13547/0000523.pdf6 s 22(1), (1A) and (1B)127