FEARS are mounting that only those accused of the most serious crimes will be held in police custody after being charged, under a radical overhaul of the justice system.

Currently, officers have the option to bail suspects to appear in court at a later date, but it is often only used for first offenders charged with minor crimes such as traffic offences.

Now the Scottish Government has extended this as part of the 2016 Criminal Justice (Scotland) Act – which comes into force on Thursday – to allow the police to “take every precaution to ensure a person is not unreasonably or unnecessarily held in police custody”.

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A spokeswoman added: “The police will continue to have the option to liberate individuals charged with an offence on ‘undertakings’, which sets a date for a person to make their first appearance at court.

“The act also introduces ‘investigative liberation’ as a new power for the police to facilitate a suspect’s release from custody, with conditions, allowing the police to continue to conduct their inquiries whilst realising the person’s right to liberty.”

However, legal sources have raised concerns that only those suspected of murder are expected to be denied police bail, with even repeat offenders and those suspected of offences including rape likely to be released pending a court appearance.

“The cops are saying that after January 25 no one will be kept in, apart from those for murder,” a source said.

The problem is being exacerbated because another provision of the Criminal Justice Act has seen hundreds of private practice solicitors pull out of providing advice to suspects ahead of the legislation coming into force.

At the moment, only those being formally interviewed by police have the right to ask for legal representation, but as of Thursday anyone in custody will have the right to ask to speak to a solicitor at any time. As they say this is likely to lead to a spike in demand for their services, solicitors from across the country – most of whom cover the duty rota overnight before handling their own caseload during the day – have withdrawn from the scheme.

“If you are in custody you have a right to access legal advice,” a source said. “If the police can’t provide suspects with the lawyer they have the statutory right to, then they’ll have to make sure the suspects are not in custody.”

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The Scottish Legal Aid Board (SLAB), which runs the duty rota scheme, said it will cover the work with its own directly employed solicitors, although questions have been raised about whether it currently has the capacity to do so. It is currently advertising an unspecified number of roles for its Public Defence Solicitors’ Office (PDSO), which has bases in Ayr, Dundee, Edinburgh, Falkirk, Glasgow, Inverness and Kirkwall.

Problems with the changes to the police station duty scheme came to light in December after the criminal defence members of the Edinburgh Bar Association (EBA) voted to leave.

Its president Leanne McQuillan said the association felt it could not “responsibly advise our members to undertake to service the police station duty scheme as we simply do not have the resources to do so”.

Solicitor groups across the country have since followed the EBA’s lead, citing wider concerns about the sustainability of the legal aid system with fees at their current level.

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Last week solicitors in Banff, Peterhead and Orkney voted to come off the rota, with 50 solicitors in Dundee withdrawing as of yesterday.

However, when it met yesterday Glasgow Bar Association (GBA) decided not to vote on whether to withdraw from the scheme at this stage.

Instead it has made a number of proposals to the SLAB and Scottish Government around funding that it hopes will prevent the 200 of its members who do criminal defence work also shunning the police rota.

GBA president Ron Mackenna said: “Our position is that the majority of our members were in favour of coming out but we’ve agreed to make an attempt at open dialogue. If that fails we will put it to the vote.”

A SLAB spokesman said: “It is vital there are arrangements to provide advice to those in custody and appearing in court.”