Decision-making on Bail and Remand in Scotland: final report - December 2023

Executive Summary

Introduction

In late 2019, the Scottish Government commissioned an independent research study into decision making in relation to refusal of bail in Scotland. The overall aim of the research was to explore how decision making works in practice, as well as to gather perceptions on bail options. The research was carried out over two phases. Phase 1 involved online surveys of members of the Judiciary and Crown Office and Procurator Fiscal (COPFS) staff, the findings from which were published in an Interim Findings report in July 2022.

This report presents findings from Phase 2 of the research which involved a series of qualitative interviews with key justice stakeholders (Sheriffs, COPFS staff, defence solicitors and social work staff) to add breadth and context to the survey data presented in the Phase 1 report. A case study approach was taken with fieldwork carried out in six different case study areas, selected on the basis of broad geographical coverage, as well as a mix of courts (from different Sheriffdoms) where historical data (provided at the outset of the project by the Scottish Courts and Tribunals Service) showed high, medium and low levels of remand. All participation was on a voluntary, self-selection basis and all interviews were carried out on a one-to-one or two-to-one basis, using either face-to-face, online or telephone interviews. A total of 60 people took part over a six month period.

Main Findings

The research highlights that the bail and remand decision making process is complex, multi-faceted and time pressured. The ‘jigsaw’ of legislation, combined with circumstance and human factors, means that no two cases are ever treated the same way and no response can ever be seen as ‘typical’. All participants across all stakeholder groups agreed that the decision making process was informed by multiple considerations in each case, and that there was never any one factor which was determinative in its own right. All cases were described as being unique and as being treated on the basis of the information available at the time and the merits of each individual case. Similarly, while some factors may carry more weight in some circumstances, all factors are still considered in their totality.

Findings from the research broadly fell under four key topics, these being: Legislative Grounds, Process and System Influences, Human Factors and Other Considerations. The main findings presented below are structured around these four topics, with a fifth separate dedicated section focusing on Alternatives to Remand.

(1) Legislative Grounds

The Criminal Procedure (Scotland) Act 1995 is the cornerstone of all decision making and was described by all stakeholders as the main framework within which all decisions on bail and remand are made, being of equal relevance and influence in both summary and solemn cases.

Most respondents concurred that a combination of all of the factors set out in Section 23C of the 1995 Act, alongside the particular facts and circumstances of a case, determined all decisions about whether an accused presents a risk of re-offending and whether bail should be opposed. In general, however, the nature of the offence (especially where the accused has a history of similar, recent offending) and previous convictions were the two factors which perhaps carried the most weight in decisions to oppose bail (by COPFS) and to refuse bail (by Sheriffs).

• The nature (including level of seriousness) of offences before the court was described as “highly influential” in Crown decisions to oppose bail primarily because it was seen as the key indicator of the danger that the accused may present to the public and witnesses. Sheriffs also stressed that the seriousness of the current offence was paramount in their determinations (with decisions in solemn procedure even more likely to have seriousness at their heart than summary procedures).
• The nature of any previous convictions of the person (including analogous offending) was described by the Crown as “highly influential” in their case marking, and could be sufficient for opposing bail on its sole merit (especially if previous offending was very similar to the new offending). It was noted that the nature of previous convictions could demonstrate that the accused has a preferred method of offending, as well as demonstrating risk of commission of further offending and/or being of danger to the public. Offence histories were also the second most frequently cited factor influencing Sheriffs’ decisions.
• Previous behaviour whilst on bail (including compliance, previous breaches and previous breaches of other court orders) was described by Sheriffs as being “very commonly relied upon by the Crown and the court”, with COPFS respondents noting that it often indicated concerns as to commission of further offences, future failure to comply with bail conditions, failure to surrender and likelihood of custody (with breach of orders suggesting contempt of same). Similarly, solicitors noted that the record of the accused alongside their compliance with previous orders played heavily in their assessment of likelihood of bail being granted. Sheriffs confirmed that previous behaviour while on bail was considered as a key indicator of likely future behaviour in the current case.
• How recently other offences were committed was described as playing a key role in decisions as it could help to demonstrate any pattern of offending or risk of re-offending and whether the accused was targeting a single or multiple victims/complainers. This information was also described as useful insofar as it may yield arguments that certain specific sections of society are not safe if the accused was to be at liberty. A period of desistance following a prolific record was not always seen as good reason to support bail, and it was noted that the weight of the record and other factors were also likely to be considered by COPFS and Sheriffs in turn.
• Evidence of escalation of offending was perhaps seen as slightly less influential than other features of an accused’s history and was often considered only alongside other features (in particular the types of offending being escalated) to present a case for opposing bail by the Crown. For Sheriffs, escalation was also not a primary determinative factor in decisions.
• Of lower importance in the order of considerations for Sheriffs was the risk of failure to appear at future court diets. While previous behaviour was seen to be indicative, Sheriffs tended to note that failure to appear would need to be severe, prolonged and prolific for this to be the reason why they would remand someone to custody.

Sheriffs also cited risk to public and community safety as being key to their decision making, and possibly one of the most significant factors weighing in bail/remand decisions, after offence nature and seriousness (the two often being intertwined). Assessing whether the accused was likely to interfere with victims/witnesses was also seen as important, although it was noted that interference was ‘rare’ in most types of case (the exception being domestic abuse/harassment cases). Similarly, most Sheriffs cited the nature and number of previous offences and previous non-compliance with bail and other court orders as a key consideration involved in assessing ‘substantial risk’.

Also in relation to legislative grounds, Section 23D of the Act (which sets out a presumption against bail for those accused of violent/sexual/domestic abuse offences or drug trafficking offences in solemn proceedings, where they have a previous conviction of a similar nature) was viewed as being interpreted very differently by different Sheriffs. Stakeholders viewed that ‘exceptional circumstances’ (which may allow the granting of bail in some such cases) was a (largely) undefined, fluid and subjective concept. Sheriffs and solicitors also concurred that there was a certain inevitability of bail being opposed by COPFS in Section 23D cases. It should be noted, however, that the Bail and Release from Custody (Scotland) Act 2023 (which was still being passed through parliament at the time that the research was reaching its conclusion) repeals Section 23D of the Criminal Procedure (Scotland) Act 1995.

(2) Process and System Influences

While not a key stakeholder in the decision-making process per se, early decisions by police to liberate an accused on an undertaking to appear at court were considered to inadvertently (although never intentionally) influence decisions in relation to bail and remand. Specifically, decisions by the police to release someone on an undertaking made it “challenging” for the Crown to oppose bail (since compliance with undertakings conditions was seen as demonstrable evidence that the accused was trustworthy and of ‘good behaviour’). Discussions with defence agents confirmed that most deliberations regarding suitability for bail were reserved for cases appearing from custody. Participants did, however, stress that police decisions to release on an undertaking did not explicitly bind COPFS case marking decisions, defence motions or Sheriff’s ultimate decisions which always remained independent.

While the nature and seriousness of the current offence and previous criminal record were central to assessing risk, it was recognised that there may be scope for more information to help inform such assessments, especially at case marking stage. Further information related to risk, which it was suggested may assist COPFS in their initial case marking decisions included: having clear references for previous convictions to help identify patterns/types of offending; more detail about the circumstances of the offence (which is often challenging/impossible when dealing with hostile witnesses); more detail regarding protective factors which may assist the accused in complying with a bail order (if granted); better understanding of the relationship between the accused and complainer (and any ‘non-criminal’ yet relevant previous behaviour); knowing the position put forward in supervised bail assessments at an early stage; and views of the complainer (especially in domestic abuse cases).

Across all stakeholder groups, the main reported process or system factor influencing the decision making process was time - specifically the lack of time available to collect and process all necessary and appropriate evidence and information to inform case decisions. Shortage of time was compounded by the large volume of business and number of cases that each party was working with on a daily basis. For COPFS, the main pressure was at initial case marking stage when a lack of information in Standard Prosecution Reports (SPRs) could mean a rush to obtain additional evidence on the same day as a court appearance. For solicitors, the main challenges were finding time to meet/speak with clients appearing from police custody and especially where the former were assigned as a duty solicitor^[1]. This challenge was compounded by delays to the accused being transported to court from custody, delays in centralised marking decisions arriving at court, and a lack of physical interview space available for solicitors to meet with their clients. All parties were sympathetic to the pressures of lack of time in the current system to allow respective partners the ideal space for investigation, collation and presentation of the best arguments possible and viewed this as a shared challenge.

Case marking arrangements also featured heavily in discussions around system challenges. One of the main strengths of the current COPFS case marking arrangements was perceived to be that there is a wealth of experience and knowledge within the National Initial Case Processing (NICP) team which allows for cases to be marked appropriately and also quickly given the volume of cases received. Some scope for more fluid communication between NICP staff and local Deputes was, however, indicated across the research. Both Sheriffs and solicitors noted that the existing system often led to challenges in court where local Deputes could not justify or robustly defend or explain the decisions of their case marking colleagues (noting it is exceptionally rare that the person who undertakes initial case marking and makes a decision on the Crown position on bail is the same person that will appear in court). In several interviews, there was a seeming lack of confidence by some Sheriffs in the Crown’s stance on bail: in effect, it was suggested that the Crown opposed bail too readily and without any stated justification.

Missing information or lack of detail regarding cases was also cited as something that hindered case marking decisions in relation to bail. In particular, the absence of a detailed and thorough Standard Prosecution Report (SPR) could result in significant time being spent by COPFS marking staff in trying to unearth the necessary detail of a case to allow informed decisions to be made. The quality of SPRs was described as “variable” across the country with no real consistency in the format, content or quality of SPRs both regionally and nationally. The consistency of reports was also not influenced by whether cases were appearing from custody, on an undertaking or warrant. In particular, COPFS staff reported that they routinely noted missing information regarding the background to an offence per se (i.e. antecedents), information regarding the current and historical relationship between the accused and complainer (including whether hostile witnesses were involved), views of the complainer, as well as lack of information relating to housing status and vulnerabilities of the accused (including any mental health concerns). Where wider situational information was available, challenges with verifying information (especially if taken verbally from the accused) were also raised at interview by Sheriffs and solicitors alike.

The points at which social work input featured in a case was also identified as a key system factor which could either ease or obstruct the decision making process. Importantly, this was one area of the current system where considerable geographical variation was noted across the six research case study areas. In two of the smaller, more rural, low/medium workload courts, examples were given of all custody cases being examined by social work teams (sometimes before case marking) to try and achieve an understanding of wider social needs presented by the accused where supervised or monitored bail could be considered. This often uncovered information which could be imparted either directly to the initial case marker or to the local Depute. In other more urban, higher workload courts, this was not achievable due to volume of business and so only certain cases (i.e. those where bail was opposed) could be scrutinised in any detail by social work staff. Views and experiences of Crown and social work interactions varied considerably by case study area and was perhaps the single biggest area in which - geographically - differences in practice affected decisions. A more consistent and direct communication route between social work and case markers would be helpful, it was suggested, and could prevent the need for some of the unstructured discussions that were sometimes played out in court where new information is brought to the court after initial case marking.

A number of system issues also arose in relation to breaches of bail orders and failure to appear, these being: concerns that the accused may not sufficiently understand bail orders and the conditions of bail; concerns that the accused may not sufficiently understand the consequences of breach; and Crown, Defence and Sheriffs often not knowing or being given information relating to breaches of historical orders. Having more information available to the court and stakeholders at all stages regarding the justifications and circumstances around previous breaches was viewed as something which may be helpful to the decision-making process to prevent breaches being viewed solely in numeric terms.

While all accused were treated on a case-by-case basis, system constraints were also seen to make it difficult for partners to adopt a person centred approach (again, given pressures of workload, time and challenges to gathering information about the lifestyle factors, personal histories of accused and complainers, and the relationship between the two). There was often very little opportunity in the system for professional stakeholders to have direct contact with the accused and/or witnesses and complainers (as appropriate). This potentially left room for interpretation bias to creep into information presented at various stages in a case.

(3) Human Factors

Most respondents from all stakeholder groups agreed that there was a lack of consistency in decisions made by different Sheriffs, although some noted that it was largely inevitable and driven by human variation in attitudes and perceptions and how the legislation was interpreted . While appearing before a certain Sheriff was perceived as potentially working for or against some accused, all stakeholders agreed that this variation within decision making by Sheriffs did not affect their own actions (COPFS case marking, solicitor’s client instruction, social work bail assessments, etc.). It was also something which was seen as unavoidable and unlikely to be affected by any legislative or system change.

Similarly, while Sheriffs had the ultimate responsibility in bail and remand decisions, solicitors were keen to stress that their clients (the accused) also played a key role in the process which should not be overlooked. For solicitors, client instructions heavily dictated the arguments that they were able to present in court and they stressed that they can only ever ‘advise’ about whether or not to seek bail. In most cases, especially where someone appears from police custody, it was noted that accused would seek bail irrespective of their agent’s advice. Similarly, in most cases, solicitors would encourage a request for bail, even if they considered it unlikely to be granted. Sheriffs commented that they were aware of the duties of defence agents to follow client instructions and this was also factored into decisions, i.e. defence may seek bail even where they know that the application has little merit other than because of their clients’ instructions.

Across interviews, comments were also made which highlighted a seeming lack of collegiality in the bail and remand decision making system, which in part was necessary and inevitable given the adversarial nature of the justice system. It was noted that differences in practice around the gathering and sharing of relevant information between stakeholders could introduce bias to the system. While informal sharing of information existed in some areas, this was often relationship specific and boiled down to familiarity and closeness of individual practitioners working in different courts. The adversarial nature of the system also means that partners are each contributing only ‘in part’ to the whole process (i.e. lack of a whole system approach). Inevitably, the decision making process requires everyone to play a unique part and while the informing of decisions falls to the court as a whole, rather than any one entity, it was noted that the Sheriffs/Judges make the final call, in essence removing any final accountability or sense of ownership on behalf of other parties.

Across the case study areas, there were also different models of social work access available, with some areas having a physical social work presence in court rooms each day, and others providing social workers in the court room only on request, or when giving verbal feedback would be quicker than waiting for an assessment report to be written. Where social work staff were based in courts routinely, there was consensus across all groups that their physical presence in the court room did (or could) provide clear benefits and lead to better informed and more person centred decision making.

Similarly, attention to social work input was flagged as something which may account for local variation in decision making quality. While in most areas social workers reported that their input was usually valued by justice partners and they felt ‘heard’, this was not unanimous and in one area social workers reported that they were not convinced that Sheriffs and other court officials actually ‘listened’ to their reported assessments.

(4) Other Considerations

The reported principles and practice of decision making varied little between summary and solemn cases. Among the judiciary, it was implied that the more serious the offence, the more likely a Sheriff would consider remand, and indeed the 1995 Act encourages remand post-conviction under solemn procedure, not least if the likely sentence is a custodial term. However, Sheriffs stressed that each case is acted upon on its merit and is a ‘nuanced’ decision in terms of weighing up the seriousness of the alleged offence versus previous record of the alleged offender (apart from in cases of exceptional circumstances in Section 23D of the Act). The main issue of concern was that the high remand populations which were often cited in different public forums could, in large part, be explained by delays in the journey time or time taken to get a case to court for solemn cases. Overall, however, it was considered that there was less ambiguity and less room for subjectivity regarding ‘risk’ posed by an accused in solemn cases compared to summary, and this meant that decisions to remand were often easier for all to understand.

Most stakeholders agreed that the likely outcome of the case (in terms of a custodial or community sentence) would also inform, but not dictate, the decision on whether to grant bail or impose remand. Sheriffs indicated that they would be unlikely to place someone on remand where the offence would not result in a custodial sentence should they be found guilty. Again, in more serious and solemn cases, it was noted that the current delays in the system meant that the use of remand was carefully considered and weighted against the likely time that could be spent on remand before the case could conclude and the likely sentence that would be imposed if found guilty. Here, however, a range of other relevant factors, such as risk to the public, risk of further offending, etc. would be equally or more important and so likely sentence would be one of many factors considered.

While bail reviews were considered to be uncommon and require significant material change in circumstances, the only exception was where an accused had been held on remand for a significantly long time period, and particularly where this met or exceeded any likely sentence that would be given should they be found guilty - this was said to be happening with more frequency currently due to the backlog created by COVID-19.

Bail appeals were reported to be pursued only when there was perceived to be a real risk to the public of serious harm.

Demographic and social characteristics were largely seen as secondary to offence histories and the risks posed by the accused to others, and they were generally not considered to be the determining factors in Sheriffs’ decision making. It was said that these would only be considered in borderline cases in order to help assess the risk posed and whether there were mitigating circumstances for/against the use of bail/remand. The main characteristics were: gender/sex; age; housing; employment; health; substance misuse; and family/caring responsibilities.

(5) Alternatives to Remand

There was notable variation between areas both with regards to understanding, uptake and use of bail supervision among partners (set against the context that there is an inconsistent service across Scotland’s 32 local authorities in respect of bail supervision services and, to a letter extent, EM bail). Responses were mixed among Sheriffs who were asked if they were aware and knowledgeable of bail supervision services in their area - all were aware that they existed, but some did not feel knowledgeable about exactly what they entailed. Similarly, there was considerable variation in the knowledge and confidence held by COPFS staff in different areas regarding bail supervision. Whilst most solicitors were in favour of bail supervision as an alternative to remand for clients in appropriate cases (as long as there was no evidence of ‘up tariffing’), some were uncertain of the criteria used by their social work team for assessment.

There were also mixed views with regards to effectiveness of bail supervision. Some Sheriffs felt it was an invaluable service that could help (in some cases) to reduce the use of remand if it could be resourced to accommodate even higher numbers of orders. For others, there was scepticism regarding if such services would ever receive the necessary backing required to be effective. Defence and social work staff agreed that supervised bail was a useful and valuable service, but stressed that effectiveness was largely dependent on the accused person’s ability/motivation to engage and desist from further offending. The main thing that had caused some reservations among some solicitors in the past was a perceived limited amount of spaces in their local bail supervision scheme although in all but one area this was no longer considered to be an issue.

There were also mixed views and experiences with regard to Electronic Monitoring on bail (EM bail) in terms of its availability, suitability and effectiveness (while not noted in the majority of areas, respondents in some rural courts noted that bail supervision and EM bail were often not available in the geographical areas in which they worked). Sheriffs generally perceived that EM bail (including curfews) was a useful alternative to remand, especially where conditions not to enter particular areas were applied (including monitoring to ‘stay away’ from the complainer’s/victim’s home).

Some Deputes felt they did not know enough about how EM bail worked or knew less about EM bail compared to supervised bail. Other Crown respondents felt that EM bail was more effective than supervised bail, i.e. breach of bail conditions with electronic monitoring could be much more easily detected whereas breach of bail supervision may be more ambiguous. Others felt fully aware of the EM Bail service in their area and understood how an electronic monitoring order is imposed, but could not comment on its effectiveness. Some Deputes cited the presence of repeat breaches of EM bail that they witnessed in court as something that undermined their confidence in its efficiency (although it was not clear if this related to the efficiency of electronic monitoring of bail as an alternative to remand or efficiency of the monitoring per se).

Among solicitors, awareness of both the availability and operation of EM bail varied, both between and within areas. EM bail was, however, generally seen to be a useful alternative to remand and less intrusive and more flexible than police monitored curfews (which were dependent on limited police resources).

Where bail with special conditions was used, all stakeholder groups concurred that this was most effective only if the conditions were very clearly defined and stipulated (with ‘vague’ conditions perceived by some as “setting an accused up to fail”). Overwhelmingly, Crown respondents agreed that special conditions were a useful addition to the bail and remand process but could be more clearly explained or defined, specifically in relation to curfews and non-contact conditions (for example, not to contact a complainer via social media/text message, and not to make contact through a third party.) Among solicitors, there was concern around the potential for replication of standard conditions within special conditions. More general comments were also made in relation to the need for special conditions to be enforceable, achievable and properly monitored.

There were few suggestions put forward for other alternatives to remand, although some stakeholders posited that more intensive supervision, controlled housing or diversionary activity may be the best way to work with low level repeat offenders. Various stakeholders noted the need for better access to mental health and homelessness support for people both released on bail and released back into the community pending or following any period in custody. Several Sheriffs, COPFS staff and solicitors suggested that the under-resourcing and over-stretched nature of psychiatric/mental health services was restricting the number of people that community-based services could accommodate i.e. finite resources had to be used on those with the most acute and severe need, with borderline cases not admitted to services. While most Sheriffs concurred that a lack of community support was never a reason to place someone on remand, others did indicate that the current lack of, and overstretched nature of community-based services did mean that remand was sometimes the only realistic option available and that Sheriffs were left with no choice but to use remand for some accused persons. All stakeholders agreed that there was a need for more proactive support and more protective measures to assist accused (especially vulnerable accused) and to prevent the cycle of reoffending including immediate support for people released on bail. Though out of scope of the current research, underinvestment and lack of funding in the justice system was something which also featured in discussions as directly hindering the bail and remand decision making process.

Finally, justice partners concurred that the main potential benefit of being released on bail as opposed to being held on remand was the stability it afforded to the accused. Importantly, however, there was consensus across all justice partners that not everyone was suitable for bail, bail supervision or EM bail and that in some cases remand was the most appropriate option.

Conclusions

The research shows that decisions to remand, while often time pressured, are not made easily and there was shared acknowledgement that the legislative presumption in favour of bail should always guide decisions to keep accused in the community wherever possible, subject to suitable risk mitigations being in place. Those who took part in the current research highlighted a range of system and process changes which may better support them in their respective decision making, and these related mainly to more or better quality of information, better information sharing and more time being allowed for the same. Achieving system efficiencies would be challenging, it was noted, given the volume of criminal business being dealt with in the courts, (and insufficiency of justice partners’ resources, in some cases) but continued efforts to increase transparency in the decision making process may assist in contributing to the shared goals of reducing crime, reoffending and victimisation.