Publication - Consultation paper

Bail and release from custody arrangements: consultation

Published: 15 Nov 2021
From:
Cabinet Secretary for Justice and Veterans
Directorate:
Justice Directorate
Part of:
Law and order
ISBN:
9781802015270

Consultation on the use of remand and arrangements around release from custody - two areas which we consider have the potential to contribute to a shift in how prison and imprisonment is used in a modern Scotland.

Bail and release from custody arrangements: consultation
4. Section 1: Bail

4. Section 1: Bail

4.1 Introduction

Decisions in relation to bail and remand is a key point in the criminal justice process. The bail proposals discussed are all focused on seeking to reduce the chances of future crimes being committed with the effect of fewer future victims of crime.

When a person has been accused of committing a criminal offence and a criminal justice process is underway, the question arises what should happen to that accused person as the criminal justice process proceeds.

Depending on the stage of the criminal justice process, decisions in this regard can be made by the police or the court. The person may be permitted to stay in the community – either with or without conditions – or the person may be held in some form of custody (remanded).

While it is often the case that accused persons are allowed to remain in the community without conditions (which is known as being ordained to appear), they may remain in the community with conditions. Prior to initial consideration by a court, this can be done through release by the police on an undertaking. Once a case is heard in court, release could occur through bail being granted by the court. They may also be remanded in some form of custody.

The following material explores the legal framework within which courts make decisions as to whether or not bail should be granted. This includes in relation to the operation of the legal framework for under 18s as well as for adults. Where a specific issue relates to under 18s, the text makes that clear. Otherwise, reference to the policies discussed should be taken to affect under 18s as well as adults unless the text indicates otherwise.

Associated with the legal framework for bail decisions, there is also material relating to the operation of certain processes once bail is granted[12].

The paper suggests reforms to be considered in the context of seeking to make the best and most appropriate use of custody, while continuing to take account of public safety.

In accordance with long-standing provisions of the law of Scotland, reinforced by the European Convention on Human Rights, individuals accused of any criminal offence can be allowed to remain in the community pending trial including by granting them bail. However, there are circumstances in which a presumption in favour of refusal of bail operates relating to those accused of certain serious offences and these are set out in the Criminal Procedure (Scotland) Act 1995 (the 1995 Act).

In addition, while all offences are such that a person can be bailed, the 1995 Act sets out a number of grounds which, taken individually or collectively, may give reason to the court to justify a decision to refuse bail for an accused person in any given case. These grounds are:

  • any substantial risk that the person might if granted bail—
    • abscond; or
    • fail to appear at a hearing of the court as required;
  • any substantial risk of the person committing further offences if granted bail;
  • any substantial risk that the person might if granted bail—
    • interfere with witnesses; or
    • otherwise obstruct the course of justice,

in relation to themselves or any other person;

  • any other substantial factor which appears to the court to justify keeping the person in custody.

When the court is assessing grounds that may be relevant in a given case for refusing to grant bail, the court must have regard to all material considerations including the following—

  • the—
    • nature (including level of seriousness) of the offences before the court;
    • probable disposal of the case if the person were convicted of the offences;
  • whether the person was subject to a bail order when the offences are alleged to have been committed;
  • whether the offences which the court is considering are alleged to have been committed—
    • while the person was subject to another court order;
    • while the person was on release on licence or parole;
    • during a period for which sentence of the person was deferred;
  • the character and previous behaviour of the person, in particular—
    • the nature of any previous convictions of the person;
    • whether the person has previously contravened a bail order or other court order (by committing an offence or otherwise);
    • whether the person has previously breached the terms of any release on licence or parole (by committing an offence or otherwise);
    • whether the person is serving or recently has served a sentence of imprisonment in connection with a matter referred to immediately above;
  • the associations and community ties of the person.

All decisions by the court must be made in the public interest. The law makes clear that the public interest includes the interests of public safety. This will continue to underpin the operation of the bail system.

What this consultation considers are changes in this area of law, reflecting changes that have recently been made in how sentencing policy and practice operates in the courts, especially those courts that deal with less serious offending (the non-jury courts known as the summary courts). The focus of any changes is to reduce the future chances of crimes being committed with associated fewer victims of crime.

The changes reflect wider understanding about the lack of effectiveness of short periods in custody, in terms of addressing the underlying causes of offending behaviour.

The proposed changes also reflect development of the practice of management of risk in Scotland, and recognise that the grounds that are currently relevant in respect of refusal of bail by a court conflate a number of different types of risk which are capable of being managed in different ways rather than requiring loss of liberty through refusal of bail.

There is a new recently published vision for youth justice which, along with other policy approaches, is focused on keeping under 18s out of the criminal justice system as much as possible. Where interaction with the criminal justice system arises, the bail proposals discussed in this consultation help emphasise the importance of people, including young people, being kept out of custody if at all possible.

At the heart of the proposals being discussed on bail law reform is the question of what is an appropriate use of custody for individuals, especially for those not convicted of any criminal offence[13]. As can be seen above, bail law operates within the public interest. Through the proposals offered, this part of the consultation explores what the public interest may be in the bail system reflecting an approach in the use of custody which could result in a necessity for sufficient public safety grounds to arise in any given case before custody can be used.

Such an approach would allow for a greater appreciation that those who pose limited or no risks to public safety, but who may need effective support and supervision, can remain in the community. This would be done in such a way to ensure risks relating to breaching non-public safety bail conditions (e.g. attending trial) are addressed through support and supervision being provided. This would be instead of being remanded in custody.

4.2 Proposals

The reforms discussed in this paper are:-

  • The need to protect public safety is a required ground that must be present to justify refusal of bail;
  • Requiring the court to have particular regard to victim safety when making their bail decision;
  • Empowering the court to rely, in all cases, on the general grounds relevant in reaching the decision to the question of bail;
  • Where a court refuses bail, requiring the court not only to give, but also to record, explanations for that decision;
  • Improving the provision of information to inform decisions in relation to the question of bail including enhanced involvement by justice social work;
  • Before a decision to refuse bail is finalised, making it an explicit requirement for the court to consider the use of electronic monitoring as a means of the accused remaining in the community;
  • A number of miscellaneous issues relating to the relationship between bail and electronic monitoring; and
  • A number of miscellaneous issues affecting the bail decision process.

4.3 Background

All persons accused of any criminal offence can be granted bail. This is set out in section 24 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act)[14]. This provision reflects the position in the European Convention on Human Rights ("the Convention"). Article 5(3) of the Convention states that "Everyone arrested or detained…shall be entitled to trial within a reasonable time, or to release pending trial"[15]. The Convention allows for remand however: the jurisprudence of the European Court of Human Rights establishes that detention may be justified by "relevant and sufficient" reasons[16].

The Scottish Parliament enacted the Bail, Judicial Appointments etc. (Scotland) Act 2000[17] to remove restrictions on bail from the law of Scotland so that judicial decision-making was an essential part of consideration in all cases[18].

Decisions on whether or not bail is to be granted involve the exercise of judicial discretion. The exercise of that discretion is, however, taken in the context of bail requiring to be granted unless there is good reason to refuse bail (see section 23B of the 1995 Act).

A decision on whether to grant bail is informed by a list of grounds, laid out in statute, relevant as to why bail in any given case may be rejected. These grounds are set out above (and in section 23C of the 1995 Act).

In addition, the decision on whether to grant bail in certain cases is informed by specific provision for people accused of certain serious offences, in the circumstances set out in section 23D of the 1995 Act.

Despite all offences being bailable and bail requiring to be granted unless there is good reason not to (subject to section 23D), significant numbers of persons are remanded in Scotland.

In the Report of its Inquiry into the Use of Remand[19], published in June 2018, the Scottish Parliament Justice Committee found that "the overwhelming view of witnesses was that, while the use of remand is necessary in certain circumstances, it is currently used too frequently".

As noted at Figure 1, the number of arrivals to remand has actually fallen since 2009-10 (from 14,751 to 11,246 in 2019-20), but the data shows that arrivals to remand comprise a rising majority of arrivals to custody over the same period. The figure was 69% in 2009-10 and 79% in 2019-20[20]. This increase means four-fifths of all arrivals to custody are remand whereas a decade prior the equivalent proportion was much nearer to two-thirds.

While this change in proportion may be largely explained by the greater reduction in sentenced arrivals to custody over the same time period, it does highlight the pressure that remand places on the prison estate and its resources.

The number of under 18s in custody overall has dropped dramatically over the last 13 years down from 223 in 2008 to just 15 on the 31 July 2021. However, the number on remand remains high as a proportion of those in custody with 9 out of the 15 under 18s in custody being there on remand[21].

In 2019-20 the proportion of the average daily prison population on remand in Scotland was around 19%. This figure is higher in Scotland than in many other jurisdictions. Comparisons across jurisdictions are not exact but published population snapshots from England and Wales suggest that the proportion of the prison population held on remand was between 11% and 12% in the same year[22], much lower than Scotland.

The World Prison Brief ranks 57 European jurisdictions in terms of the percentage of all prisoners comprised of pre-trial (remand) detainees. When comparing with jurisdictions across the world, the picture is mixed with, in February 2020, Scotland number 35 in the list in the percentage of all prisoners comprised of pre-trial detainees. England and Wales was number 52[23].

Concern around about the impact that remand can have on individuals has heightened during the Covid pandemic, with the number of individuals held on remand in Scotland reaching historically high levels in 2020 and remaining so during 2021. While arrivals to custody have fallen further (both sentenced and remand) during the pandemic[24], the effect of the pandemic has generally been to increase both the percentage of prisoners on remand and the absolute numbers, with more individuals coming into the system than the relatively restricted number of trials that has taken place has been able to deal with in the same time-frame.

As at 31 March 2021, 26% of Scotland's prisoners were on remand, compared to 16% in England[25]. Data accessed in July 2021 shows Scotland's ranking on the World Prison Brief is at number 27 while England and Wales is at 46.

In all the circumstances both pre-pandemic and through the pandemic, remand prisoners form a higher proportion of the custodial population in Scotland than in England and Wales and many other jurisdictions.

In the context of Scotland's high overall prison population (i.e. remand and sentenced), there is recognition of the need to explore whether steps can be taken to move towards appropriately refocusing the use of remand as part of the criminal justice process. Any refocusing would be to reduce the levels of crime in the future so as to result in fewer victims.

As noted above, the exact reasons for the high number of remand decisions in Scotland are complex and reflect a variety of factors, including the changing nature of offending. The Justice Committee report on the use of remand set out information about decision making in this respect[26], suggesting that generally a decision to remand is not made on the basis of any single one of the criteria set out as being grounds relevant to the bail decision, but rather where several of these criteria come into play at once.

In January 2020, the Scottish Government commissioned further exploratory research which is intended to highlight the specific reasons behind remand decisions. This research was paused due to the pandemic. However, fieldwork re-commenced in Spring 2021 and is currently progressing in stages in line with ongoing restrictions.

Particular concern has been expressed in respect of persons remanded who either eventually receive a short sentence upon conviction or no prison sentence at all. For example, the Justice Committee reported that "only 30% of women remanded in custody go on to receive a custodial sentence"[27].

Looking further at custodial experiences or journeys that begin in remand, it has been shown that around one third of remand journeys in 2019-20 involve an individual entering and leaving custody as 'untried'[28]. These remand-only journeys are typically associated with short periods in custody, with a median of 21 days in 2019-20[29].

Further insight is afforded through figures provided to the Justice Committee for the purposes of the Justice Committee's report by the Scottish Courts and Tribunals Service (SCTS). These data suggest that, in the period 2014–17, 28.9% of cases where the accused was remanded in sheriff solemn proceedings, and 57.2% of those where the accused was remanded in sheriff summary proceedings, did not give rise to a sentence of detention as an outcome of the case[30].

In the period 2014-17, by combining the figures above (and reflecting proportionately far more summary cases took place) more than half of those sentenced after being on remand in the criminal courts (excluding the High Court) did not receive a custodial sentence.

Some caution should be exercised in interpreting what this data may mean. One reason why the 'conversion rate' (i.e. the proportion of remand cases that lead to a custodial sentence upon conviction) may be seen as relatively low is because the courts take into consideration the time an individual may have already spent detained on remand, when it comes time for sentencing. The court may consider that the time spent on remand is sufficient for the crime of which they have been convicted and thus do not impose a custodial sentence which would have been imposed but for the period already spent on remand. Also, the court may still impose a custodial sentence but give a shorter sentence than it otherwise would have done.

The conversion rate in the Justice of the Peace court is particularly low, at 16.6% over the period 2014-17[31]. Thus, to some extent, at least, reducing the figures of those kept on remand through more accused persons being bailed could, in part, result in either higher numbers serving custodial sentences upon conviction than otherwise would have been the case, or serving longer custodial sentences than otherwise would have been the case, or a combination of both.

Nevertheless, it is recognised that the conversion rate is not a comparison of like-for-like. It can be recognised that decisions on whether to refuse bail are appropriately arrived at on different considerations from those of sentencing. Even where an accused person is not convicted or receives a shorter or different sentence, that does not mean that the decision initially to remand that person was not justified under the current operation of bail law.

It is an inevitable and appropriate part of any justice system that some people refused bail will ultimately not be convicted or, if convicted, will not receive a custodial sentence. The aim is to ensure that the refusal of bail (i.e. use of remand) is appropriate and proportionate at the point in proceedings the decision is made for remand to be used, consistent with the law and relative to the likely final outcome of the criminal proceedings.

The Justice Committee's report on its inquiry into remand was followed on 3 October 2018 by a Scottish Parliament debate[32]. As with the report itself, contributors to this debate discussed the numbers of persons held on remand, the difficulties faced by women in particular on remand, and a concern that remand was being over-used, particularly in cases where public safety was not a major issue and instead was being used to ensure that those with 'chaotic lifestyles' attended court for trial.

The Committee report and the subsequent debate helped to inform the Scottish Government's decision to commission the research mentioned above, which is expected to provide additional evidence and insight on decision making in relation to remand and use of alternatives.

Young people

Specifically in relation to under 18s, there is recent bail and remand research from the Children and Young People's Centre for Justice[33]. This was published in December 2020 and aimed to develop understanding of the use of remand, the decision-making process and the experience of under 18s, their families and practitioners.

This report highlighted issues that apply generally to those involved in bail proceedings e.g. ensuring the court had appropriate information. It also highlighted some specific findings such as young people requiring to be remanded should go to secure care and not to a young offenders institution.

There is also other evidence that suggests the availability and barriers to providing alternatives to remand have a particular resonance for those under 18 including a lack of credible alternatives that could manage levels of risk in the community.

Presumption Against Short Sentences

In June 2019, the Scottish Parliament approved the Presumption Against Short Periods of Imprisonment (Scotland) Order 2019[34] ("the 2019 Order"), which extended the previously-existing presumption against short sentences ("PASS") from 3 months or less to 12 months or less.

The effect of this legislation is that a court must not pass a sentence of imprisonment for 12 months or less on a person unless it considers that no other sentence is appropriate. The court must record the reasons for its sentencing decision, where it imposes a sentence of imprisonment of 12 months or less.

While the 2019 Order is relevant for all levels of court, it is most relevant in the summary courts given the general jurisdictional sentencing limit in the summary courts is, with certain very limited exceptions, 12 months. In other words, in almost every case heard in a summary court, there is a presumption against the imposition of a custodial sentence as a disposal.

In the course of his appearance before the Justice Committee to discuss the 2019 Order, on 11 June 2019, the then Cabinet Secretary for Justice Humza Yousaf MSP drew parallels with remand. He said:-

During the Committee's evidence-taking sessions, the issue of remand has been raised in recognition of the fact that its impact can be similar to that of short custodial sentences…Last year, following the committee's inquiry into the use of remand in Scotland, it made a number of recommendations and observed that, in summary cases, the conversion rate of remand to custodial sentences was relatively low. In responding to that report and in deliveringour programme for government commitments on bail supervision, guidance and funding, we have taken action. However, we are open to considering on a cross-party basis further options that could help to respond to the high proportion of prisoners who are held on remand[35].

In view of the concerns about what appears to be the relatively high number of prisoners on remand especially in the summary courts, and the appreciation of the damaging effect of short periods of imprisonment which has led to the PASS, views are sought on a number of matters both directly and indirectly reflective of the underlying policy underpinning for the operation of PASS; namely that short periods in custody can be counterproductive unless they are absolutely justified. These matters are:-

  • The need to protect public safety is a required ground that must be present to justify refusal of bail;
  • Requiring the court to have particular regard to victim safety when making their bail decision;
  • Empowering the court to rely, in all cases, on the general grounds relevant in reaching the decision to the question of bail;
  • Where a court decided to refuse bail, requiring the court not only to give, but also to record, explanations for that decision;
  • Improving the provision of information to inform decisions in relation to the question of bail including enhanced involvement by justice social work;
  • Before a decision to refuse bail is finalised, making it an explicit requirement for the court to consider the use of electronic monitoring as a means of the accused remaining in the community;
  • Introducing a requirement for people leaving remand to receive support for the process of reintegration into the community;
  • A number of miscellaneous issues relating to the relationship between bail and electronic monitoring; and
  • A number of miscellaneous issues affecting the bail decision process.

As outlined above, this consultation considers changes in this area of law reflecting wider understanding about the lack of effectiveness of spending short periods in custody including the disruptiveness of such periods of custody for individuals and the lack of effectiveness in terms of outcomes in using custody for short periods.

At the heart of the proposals being discussed on bail law reform is the question of what is an appropriate use of custody for individuals not convicted of any criminal offence. As can be seen above, decisions on whether to grant or refuse bail take place in a framework that requires regard to be had to what is in the public interest. Through the proposals offered, this part of the consultation explores what the public interest may be in the bail system reflecting an approach in the use of custody which could result in a necessity for sufficient public safety grounds to arise in any given case before custody can be used.

Such an approach would allow for a greater appreciation that those who pose limited or no risks to public safety, but who may need effective support and supervision can remain in the community. This would be done in such a way to ensure risks relating to breaching non-public safety bail conditions (e.g. attending trial) are addressed through support and supervision being provided. This would be instead of being remanded in custody.

4.4 Public safety becomes a necessary ground for refusing bail and victim safety is further emphasised as a relevant consideration

One of the grounds relevant for the question of bail, set out in section 23C(1)(a) of the 1995 Act, is a substantial risk that the person might, if granted bail, abscond or fail to appear.

It is recognised that where bail is refused, the court is likely to have a range of reasons for doing so. Nevertheless, research by Professor Neil Hutton cited in the Justice Committee's report showed that out of 60 cases examined, a single reason for remand was given in five cases. Three of those cases was where the accused was of no fixed abode, and one of those cases was that he was likely to abscond[36].

From this limited data, it would appear that a ground unrelated to public safety may be the only factor in at least a small number of cases where bail is refused. Failure to attend without reasonable excuse is a separate criminal offence – in which there would be separate consideration of whether an accused should remain in the community or be remanded in custody. Separately, the continuation of bail for the original offence would be for the court to determine.

It is proposed that use of remand should be adjusted so that any decision to refuse bail must be justified on public safety grounds.

The ground set out in section 23C(1)(a) of the 1995 Act relating to absconding or failure to appear is not directly related to public protection or safety and instead is focussed on the efficient operation of the justice system. There is obvious merit in helping ensure achievement of the efficient operation of the justice system. Helping ensure trials take place with the accused person in attendance benefits users of the criminal justice system including victims. However, this must be balanced against the negative impact of undue use of remand, given what is known about the disruptiveness of short periods of custody and, in this context, deprivation of liberty being imposed on those not convicted of any offence.

As such, it is proposed that judges should never refuse bail if their reasons for doing so are only related to the efficient operation of the courts, and the individual concerned does not pose a significant risk to public safety if they remain in the community.

In many cases, this will require enhanced support for individuals to remain in the community through the use of bail supervision schemes and the introduction of electronic monitoring for bail. This proposed policy reflects views expressed in the Justice Committee report about the use of remand, and in the subsequent parliamentary debate on the Committee's report.

While these are matters for the court, there are statutory powers available for trials to proceed in the absence of an accused. It may be a consequence of the proposal above that the court may seek to consider proceeding with trials in the absence of the accused in a greater number of cases.

In summary, it is proposed that it will no longer be appropriate that the court decide to refuse bail solely on the basis of reasons unrelated to public safety. The proposal would still allow such grounds to be included with other, public safety related grounds which, when taken together, mean the court considers refusal of bail is necessary in a given case.

Question 1

Which of the following best reflects your view on the changes proposed above regarding when judges can refuse bail:

A) I agree with the proposed change, so that judges can only refuse bail if there are public safety reasons for doing so

B) I disagree with the proposal, and think the system should stay the same as it is now, so judges can refuse bail even if public safety is not one of their reasons for doing so

C) I am unsure

Please give reasons for your answer.

As noted above, all crimes are bailable. In any given case, bail is to be granted to an accused person except where grounds exist relevant to the question of bail and such grounds, along with regard to the public interest, mean there is good reason to refuse bail[37].

When the court is considering the question of bail, the court is required to consider the extent to which the public interest could, if bail were granted, be safeguarded by the imposition of bail conditions. The public interest includes the interests of public safety.

In order to further emphasise the importance of considering the safety of the victims against whom offence(s) have allegedly been committed, a possible additional element could be added to the requirements falling on the court. Where public safety is being assessed as part of the wider consideration of the public interest, it is proposed to require the court to have particular regard to the aim of protection of the victim(s) of the offence(s) with which the accused person is charged.

While references to public safety in the current law would include the victim(s) against whom offence(s) have allegedly been committed, a new requirement for the court to have particular regard to the protection of victims would help ensure that the interests of victims were further emphasised as part of the court's consideration of whether public safety grounds require a decision to refuse bail. This is particularly relevant for certain crime types where there is more likely to be an identified victim.

In summary, it is proposed that the court would be required to have particular regard to the aim of protecting victim(s) against whom offences have allegedly been committed when assessing the interests of public safety and the wider public interest.

Question 2

Which of the following best reflects your view on the changes proposed above regarding how judges consider victim protection when making decisions about bail:

A) I agree with the proposed change, so judges should have to have particular regard to the aim of protecting the victim(s) when making bail decisions.

B) I disagree with the proposal, and think the system should stay the same as it is now, where judges consider victim protection as part of the overall decision-making

C) I am unsure

Please give reasons for your answer.

4.5 Empowering the court to rely, in all cases, on the general grounds relevant in reaching the decision to the question of bail

A key long-standing aspect of the criminal justice system in Scotland is that decision-making is undertaken by the independent agencies and bodies involved in the administration of justice. The criminal court sits at the heart of decision-making on the question of bail with the responsibility residing with the court informed by the facts and circumstances of the case before them and relevant views from key parties such as the prosecution, defence and justice social work.

The importance of this independent decision-making has been regularly emphasised over many years. The then Scottish Executive were clear in their 'Bail and Remand Action Plan' published in 2005 that independent court decision-making was an essential feature of the bail system while MSPs on all parties have commented on the importance of not unduly fettering the discretion of the court in a variety of criminal court contexts including the bail decision.

In line with this approach, the legal framework within which the independent court makes their decision on the question of bail lays out general grounds relevant to this question. These grounds are relevant for all bail decisions to be made.

While all offences are bailable, with legislation setting out general grounds on which a court may determine that there is a good reason for refusing bail, there is also current additional statutory provision operating in respect of accused persons who meet certain criteria relating to the seriousness of the offence with which they are accused. This provision creates a presumption in favour of remand in relevant cases (section 23D of the 1995 Act). A decision to grant bail in these cases can be justified; however only if 'exceptional circumstances' exist.

Case law has indicated that this existing additional statutory provision operates within the context of the general grounds relevant to the question of bail. The courts have indicated that: '… What the court is required to do is assess all the information before it with a view to determining whether there is good reason for refusing bail having regard to the relevant risks and the relevant level of these risks as identified in section 23C'[38].

As part of a simplification of the legal framework so as not to unduly fetter the discretion of the court in their decision-making, it is possible for section 23D to be removed. This would enhance the role of the court as the decision-maker within a simplified legal framework whereby if grounds exist relevant to the question of bail, they will inform each and every bail decision made the court without the need for additional statutory provision relating only to specific types of cases.

In summary, this proposal is to adjust the bail law framework to further empower the court to simply consider the question of bail in the same way for all cases using the general grounds relevant for the question of bail contained in provisions in section 23C.

Question 3

To what extent do you agree or disagree that the court should be empowered to make decisions on the question of bail in all cases using a simplified legal framework?

Strongly agree

Somewhat agree

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

4.6 Requirement to give written reasons for remand decisions

It is a requirement that whenever a court grants or refuses bail, it shall state its reasons (section 24(2A) of the 1995 Act). Reasons by the court are given orally.

There is reason to believe this is not a very efficient way of transmitting information. The Evaluation of the Impact of Bail Reforms on Summary Justice Reform published in 2012[39] found that accused individuals did not always listen to, or if they did listen, fully understand, what was being said to them.[40]

The 1995 Act seeks to ensure the PASS is adopted by requiring a court to, as well as stating is reasons, set out in writing its reasons for any departure from the PASS.

In the same way as is required when departing from the PASS, it is suggested that courts refusing bail for accused persons should be required to state their reasons for coming to the conclusion that no other method of dealing with the person is appropriate, and entering those reasons in the record. This will reflect appropriately the seriousness of a decision to place someone in custody even though they have not yet been convicted of a crime.

To put this into context, there is more generally a move towards setting out reasoning of decisions made by the court. For example, the Post-Corroboration Safeguards Review chaired by Lord Bonomy recommended in April 2015 that, "It should be mandatory for the presiding judge to deliver orally in open court, and have minuted, brief reasons for the verdict, whether conviction or acquittal, including on the sustaining of a no case to answer submission, in every summary case"[41].

There is a suggestion that recording reasons may potentially be prejudicial to the accused. The SCTS provided a written submission to the Justice Committee's inquiry where it observed that recording reasons could be prejudicial to the accused at a future diet[42]. It is understood this is because reference might be made in court minutes to a schedule of previous convictions prior to a trial.

It is recognised that this objection has force in the case of bail decisions that it does not have in that of sentencing decisions. However, it is suggested steps could be taken to ensure any information prejudicial to the accused is not seen by the jury in a solemn case. In addition, for summary cases, there is no danger of a jury being influenced by reference to a schedule of previous convictions, since there is no jury. It is expected courts do nothing other than to take the presumption of innocence very seriously indeed and, as such, it is not considered a reason not to proceed with this proposal.

In summary, it is proposed courts should be required to provide written reasons for decisions to refuse bail for an accused person and for these reasons to be recorded.

Question 4

Judges must give the reasons when they decide to refuse bail to an accused person. Which of the following best reflects your view on how those reasons should be communicated:

A) I agree with the proposed change, so judges must give reasons both orally and in writing

B) I disagree with the proposal, and think judges should continue to give reasons orally only

C) I am unsure

Please give reasons for your answer.

4.7 Provision of information to inform decisions in relation to the question of bail

There was a considerable focus in the inquiry undertaken by the Justice Committee on the importance of justice social work's involvement in informing decisions on the use of bail. This was to help ensure all appropriate information was available to help inform the decision.

It is proposed that justice social work services should be added to those persons from whom, under section 23B(6) of the 1995 Act, a court can request information for the purpose of determining a question of bail.

At present information may, in statutory terms, be requested only from the prosecution and/or the defence. Under section 23B(7) of the 1995 Act, it is up those parties to determine whether to provide information if requested.

While, in practice, it is understood some courts will on occasion seek information from justice social work, it is considered that explicit inclusion in statute would act as a clear prompt for the court to consider input from justice social work before making their bail decision.

This would be relevant in all cases, but could be especially relevant where a court was able to be assured that an element of bail supervision could be available and this information may help adjust how a court may otherwise decide the question of bail.

In addition to adding justice social work services, alongside the prosecution and defence, as those the court may seek information from, it is proposed to recast this as a requirement that the court must ask for this information. It would remain up to the relevant parties (prosecution, defence and – if added – justice social work) whether they were able to provide information relevant to the bail question in a given case. This change in emphasis would make clear that while the decision on bail remains for the court, there is a statutory requirement that key interests of the prosecution, defence and justice social work would always be asked for their views before the court makes its decision.

In cases where the prosecution oppose bail, it is proposed that there would be a requirement that justice social work always offer information to the court to inform the question of bail.

In suggesting this, it is expected that greater engagement and communication would benefit consideration being given on whether bail is appropriate in a given case. This would be directly required in respect of information provided to the court, but would also likely arise from this requirement through closer engagement and communication between the prosecution and justice social work prior to the court's consideration of the question of bail. While such engagement and communication may already occur in some occasions, engagement and communication could assist both the prosecution in informing their decision whether to oppose bail and justice social work as to what information they provide to the court.

It is worth noting that the Scottish Government encourages consultation with justice social work in relevant cases. For example, the current guidance on bail supervision, published in January 2019, recommends regular judicial engagement. This guidance is currently being reviewed (due for publication later this year), and will reinforce the importance of judicial engagement. The Scottish Government is providing £1.65m over three years across local authorities to encourage greater availability of bail, supervised by justice social work, as an alternative to remand. (N.B. Future funding to further incentivise the development of bail supervision services will be subject to review and consideration as part of budget setting processes).

In summary, it is proposed adding justice social work as a party the court seeks information from prior to making their bail decision in a case. It is proposed to require the court to always ask justice social work (and the prosecution and defence) in every case. In cases where the prosecution will be opposing bail, it is proposed that justice social work are required to provide information to the court.

Question 5a

Based on the information above, when a court is considering bail decisions, which of the following options do you consider preferable…

…in cases where the prosecution opposes bail:

-The court may ask for information from social work, but is not obligated to. Social work may decide whether to provide it

-The court must ask for information from social work. Social work may decide whether to provide it

-The court must ask for information from social work. Social work must provide it

Please give reasons for your answer.

Question 5b

Based on the information above, when a court is considering bail decisions, which of the following options do you consider preferable…

…in cases where the prosecution is not opposing bail:

-The court may ask for information from social work, but is not obligated to. Social work may decide whether to provide it

-The court must ask for information from social work. Social work may decide whether to provide it

-The court must ask for information from social work. Social work must provide it

Please give reasons for your answer.

4.8 Electronic monitoring and bail

Electronic monitoring (EM) is an established part of the justice system in Scotland and allows a reliable way of monitoring compliance with a range of orders and licences. The Scottish Government's intention is to expand the use of EM more generally, both in terms of policy of its use and through deploying newly available technology such as satellite tracking – GPS. Where an order or licence contains a particular requirement or condition, such as a curfew, then electronic monitoring can provide an enhanced capability for the monitoring of that aspect of the order or licence. The use of electronic monitoring can help support the underpinning aims of those orders and licences, across a diverse range of policy use.

It is proposed that there is an explicit requirement that the use of EM be considered, before a court decides to refuse bail in any case. The use of EM to monitor compliance with bail conditions may alleviate any concerns with granting bail in a particular case.

With the existing requirement that bail should be refused only if there are good reasons while having regard to the public interest, it is considered that an explicit requirement to consider the use of EM before a refusal of bail decision could operate as a final step before such a decision can be confirmed. Use of EM would only be expected to be considered where it was available and the circumstances were assessed as suitable.

Linked to a court providing written reasons for a refusal of bail, it is also proposed that, in any provision requiring the consideration of EM, similar wording could be used requiring reasons to be given by the court where bail is refused despite the availability of EM to monitor compliance with bail conditions.

In short, it is proposed that an explicit requirement is added requiring consideration to be given to use of EM for bail prior to a decision to refuse bail and, where EM for bail is not deemed appropriate and bail is refused, for the court to explain why the possibility of EM was not taken up.

It is acknowledged obtaining information about the suitability of a person and/or a household for EM may impact on the operation of courts considering bail and, in particular, require greater input from justice social work. This is in line with a determination for relevant information to be available for the court to inform their decision relating to bail.

As such, it is considered some additional time to assess suitability may be beneficial if that is considered necessary in a case. There is work being progressed through the implementation project for EM bail whereby justice social work offers an assessment of suitability for EM bail in cases where the prosecution intend to oppose bail. This work will benefit the court in having as much relevant information as possible available when ultimately determining whether to make use of EM bail when releasing an accused person on bail.

Question 6

To what extent do you agree or disagree that courts should be required to consider Electronic Monitoring before deciding to refuse bail

Strongly agree

Somewhat agree

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

Question 7

When a court decides to refuse bail, to what extent do you agree or disagree that they should have to record the reason they felt electronic monitoring was not adequate in this case?

Strongly agree

Somewhat agree

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

As part of the implementation of the Management of Offenders (Scotland) Act 2019 ("the 2019 Act"), a number of new uses of electronic monitoring, including use with bail, are due to be introduced. Where the use of bail interacts with other areas of the criminal justice system/process, there may be benefit in further considering whether additional legislative provision would support the policy aim of making greater and more effective use of EM within the criminal justice system.

The most significant of these relate to sentencing powers. Courts have a broad ability to take into account a range of factors at the point of sentencing. At present, time spent on remand can be one of those factors. Periods of bail subject to conditions that are electronically monitored, as a new feature, may be something that courts take into account at sentencing. Current case law suggests that periods of bail subject to curfew conditions can be considered in "exceptional circumstances" (McGill v HM Advocate, 2014 S.C.C.R. 46.)

When electronic monitoring is used to monitor compliance with a bail condition such as a curfew, that bail condition may be considered as being more restrictive than it would have been without such monitoring.

In some other jurisdictions such as England and Wales, there exists a statutory provision whereby periods of time spent on bail subject to an electronically monitored curfew condition are credited against the eventual sentence: generally 2 days on an electronically monitored curfew condition equates to 1 day time served in custody.[43]

The approach of legislating in this area would provide for a consistent approach to be taken to these questions and help to ensure no unfairness would arise in how courts determine the relevance of time spent on bail subject to electronically monitored conditions for sentencing purposes.

Question 8

To what extent do you agree or disagree that time spent on bail with electronic monitoring should be taken into account at sentencing?

Strongly agree

Somewhat agree

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

Question 9

If time on electronic monitoring is to be taken into account at sentencing, to what extent do you agree or disagree that there should be legislation to ensure it is applied consistently:

Strongly agree

Somewhat agree

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

4.9 Other Views

The Scottish Government would welcome any other views consultees may wish to offer on some other issues as detailed below.

Prospect of a custodial sentence

In England and Wales, schedule 11 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012[44] made various changes to the Bail Act 1976[45]. The effect is, in various circumstances where the Bail Act 1976 would permit the use of remand, it is not permitted where "it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings".

This policy is not proposed among the suggestions in this paper, as in practice it does not appear to have led to a notable reduction in the number of untried persons on remand[46]. It is also worth noting that the proportion of the remanded prison population in England and Wales who have been charged with a summary offence has been more than double the proportion imprisoned as a result of actually committing a summary offence[47]. It is not necessarily a straightforward exercise to forecast the development and outcome of a criminal case.

Question 10

Based on the information above, please use this space if you would like to make any comments about the idea of a law in Scotland that would prevent courts from remanding someone if there is no real prospect that they will go on to receive a custodial sentence in the proceedings.

Young people affected by the decision of bail

Currently the age of the accused is not a specific statutory consideration for decisions on the grant or refusal of bail. While consideration of the age of the accused may indirectly be relevant when, for example, considering previous convictions (as young people may generally have fewer, if any, previous convictions), it may be that age should be more explicitly included as a ground relevant to the bail decision. This is relevant in connection with the incorporation of the UNCRC into Scots law and, more generally, in seeking to advance children's rights such as through Promise Scotland[48].

Question 11

To what extent do you agree or disagree that legislation should explicitly require courts to take someone's age into account when deciding whether to grant them bail?

Strongly agree

Somewhat agree

Somewhat disagree

Strongly disagree

Please give reasons for your answer. If you agreed, how do you think age should be taken into account when deciding whether to grant someone bail?

Some decisions made within the justice system impact on children, for example a decision to refuse bail for someone with caring responsibilities for children. It has been suggested that issues of this nature should be taken into account when decisions are made. It is not clear exactly how these factors could be included explicitly within the grounds relevant to the bail decision, but views would be welcome on the principle of such a step and, if in support, any details on how it could be achieved.

Question 12

In principle, to what extent do you agree or disagree that courts should be required to take any potential impact on children into account when deciding whether to grant bail to an accused person?

Strongly agree

Somewhat agree

Somewhat disagree

Strongly disagree

Please give reasons for your answer. Do you have any comments on how such a requirement could best be brought in?


Contact

Email: futureofcustody@gov.scot