Liberation from Police custody on an undertaking

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 certain paperwork – this is called a “bail undertaking form”. Undertakings are now very common in criminal cases. If you are released on a bail undertaking then you will have signed this paperwork in the police station before being released giving an UNDERTAKING that you will turn up at court on the assigned future date. Being out on bail means you need to stick to bail conditions agreed with the Police.

Released on an Undertaking FAQ

A: Bail undertakings can be used for a wide range of offences. In deciding whether to release an accused person on a bail undertaking the custody officer in charge will consider the seriousness of the charge, the criminal record of the suspect and whether he or she has a similar previous offending history for example. If the suspect has never been in any trouble before then it is likely that they will be released on an undertaking.
A: When released on a bail undertaking a person is then subject to bail conditions which mean that they must be of good behaviour and attend court when required to do so. It is also possible for the bail undertaking to include what are referred to as "special conditions of bail " for example that the person cannot have any contact with a particular witness in the case (usually the alleged victim in domestic cases) or can't go near a particular home or property. The reasons for these special conditions of bail are primarily to protect witnesses in cases from the possibility of further violence or an escalation of the existing situation.
A: A breach of bail could result in being re-arrested and held in custody to appear at court the next lawful day and thereafter be remanded in custody at a local prison until your eventual trial. The penalty for breaching bail conditions can be a jail sentence of up to 12 months.
A: The police will write up a report about the whole circumstances of the case and send that report to the prosecutor who will then decide if the case merits a court prosecution. Although the police have assigned a court date for you its the procurator fiscal (prosecutor) who decides if this is going ahead or not. The prosecutor may write to you with a cancellation letter. If you do not receive a cancellation letter then you are legally required to attend court on the assigned date.
A: Upon your release, you should contact our specialist team of undertaking lawyers without delay so that we can begin to advise you about your case and so that you can give us an understanding about the background and your defence. We will diarise the forthcoming court appearance and ensure that one of our specialist team of lawyers attends court with you at the initial calling of your case.
A: 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.
Arrive at court around 15mins early. A court police officer may call your name outside the courtroom and have certain legal paperwork to hand out to you. This is your charge sheet and contains important details about your case and a summary of what the evidence is. Give this to your lawyer. 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 you are pleading not guilty to the charge the court will then fix future court dates to give your lawyer time to prepare your case and arrange funding through either legal aid or private funding from yourself. The court will usually set down two future court dates. A pre-trial preparation hearing called an intermediate diet and also a future date for the actual trial itself. Witnesses will not be present at the intermediate diet.
A: The Sheriff may order that the same bail conditions that the police gave you should continue or the court may alter the conditions, add to them or cancel them. It will be possible for your lawyer to argue against certain bail conditions or seek to have them altered depending on your instructions. If you are unhappy with bail conditions imposed then the lawyer can seek to apply to have them reviewed or appealed.

What is bail?

Bail is when a person accused of a crime is released from custody by the court. In Scotland bail is available for all crimes and offences.

Breach of bail when out on bail

A liberation on undertaking involves a person being subject to bail conditions. This requires a defendant to have good behaviour and ensure they attend court. There may be additional “special conditions of bail” when released on an undertaking. For example, you may not be allowed to meet with the victim of the crime or return to a certain property, as is the case in many domestic cases. This is done to ensure witnesses are protected from the possibility of further violence or an escalation of the existing situation.

What are undertakings?

If you are charged by Police Scotland with a criminal offence then they have the power to hold you in Police Custody in a cell at the Police Station until court the following day. (If you are held on a Friday this means you will hold until Monday at the earliest). Colloquially known as a “weekender”.

Very often, however, the Police will not hold you in custody but may elect to release you on what is known as an “undertaking”. Also known as “liberation from Police Custody on an undertaking”. Essentially what this means for you is that you give an undertaking to appear at court at a later date. It is a legal document which you sign and breaking the undertaking (ie failing to attend court on the specified date is a criminal offence in of itself).

In addition, the Police in Scotland can insist on “special condition of bail” in the interim period which you must adhere to under penalty of law.

Examples of Special Conditions of bail

  • Stay away from specific places
  • Do not communicate with certain individuals (directly or indirectly)

What being “Released on an Undertaking” actually means for you

You will already have spent some time in police custody and been charged with a criminal offence of some kind. Instead, they released you on a bail undertaking. Please be aware that this is a very serious issue and you will have already been notified of the date for your court hearing.

Your release on an undertaking is noted on the form given to you by the police, which you will already have signed to confirm you will be attending court. The charge(s) you are facing are also noted on this form.

It’s absolutely vital you go to court on the due date, as a warrant for your arrest will be issued if you don’t show up. Your case will normally be heard in the Sheriff Courts, although sometimes cases are heard in Justice of the Peace courts.

An undertaking is a promise and a legal obligation

Your bail undertaking is your guarantee to the police that you will behave in a lawful manner while you are on bail and that you will attend court on the due date. You will also need to follow any special conditions which have been agreed, if applicable.

Alternative to being released on an undertaking

  • Held in a Police station cell overnight and appear in court the next working day.
  • Bank Holiday’s are not working days, you will be held in a cell until Tuesday.
  • Released for “report” – This means you will be released with no court date but the case will be referred to the prosecution lawyers (Procurator Fiscal’s Office) and they will decide if there is sufficient evidence against you and you may then go on to receive a citation/summons weeks or perhaps months later.

Released on an undertaking lawyer

After your release from police custody, you should seek professional legal advice at the very earliest opportunity.

Your criminal solicitor will help you and be able to represent you in court on the date of your undertakings. This court hearing is called a bail undertaking or simply undertaking.

Instructing a criminal lawyer at the earliest opportunity allows more time for negotiations to take place with the Procurator Fiscal, as it’s possible your charge(s) can be negotiated. In some circumstances, the Procurator Fiscal may even decide not to pursue any further action.

Bail conditions may be set on this release and it is important you do not break them. Contact us immediately if you have been released on an undertaking. We will help to explain what the next steps are to ensure bail conditions are met. You may be entitled to free legal aid which can help you get the representation from our specialist lawyers that you deserve.

Would highly recommend this company and cannot thank Mathew enough for his expertise and professionalism. He got the best result possible for my future son in law who was out on bail and given an undertakings. Top lawyer. We could not have asked for better. Thanks again

Pauline Mckenna
Pauline Mckenna