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

Discussion

This 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 no one factor routinely carried more weight than another, rather multiple factors were considered in their totality.

Understanding of the Process

Among those who took part in the research, the legislation was well understood and provided a clear framework in which decisions operate, with only some exceptions, most notably Section 23D of the Act which was seen as being very open to interpretation. The main factors influencing decisions appear to be the nature of the offence before the court, the record and previous convictions of the accused and previous breaches: in other words, remand is most likely where there is a perceived high risk of reoffending, risk to others and non-compliance with orders of the court.

The different roles and responsibilities of different justice partners in the process is also well understood, although there was not necessarily always agreement with how the process works at present and with the justifications presented by different stakeholders for their arguments: the main questions were around clarity of communications between national case markers and local Deputes in court and when in the process it may be appropriate or necessary to involve social work staff and other agencies in informing risk and bail decisions. The research suggests that there is perhaps scope for greater transparency in arguments presented by the Crown (especially in relation to cases where bail is opposed and where local Deputes may be unable to easily understand or justify the decisions of central case marking colleagues) and for more information from the Defence (around client instructions and personal circumstances). Both would help to mitigate some of the current lack of confidence reported by Sheriffs in both the Crown and Defence stance on bail.

Understanding and awareness of alternatives to remand was perhaps the main area where lack of clarity in relation to process was detrimental to decision making. Indeed, differences in experiences and understanding of alternatives to remand (both bail supervision and electronic monitoring) proved to be one of the biggest geographical variations and it seems that this is directly affecting Sheriffs’ decisions. There appears to be scope for more communications around both availability and suitability of different options for accused, how they can be monitored and how effectiveness can be evidenced to achieve greater national consistency (noting that some examples of good practice in this regard already exist around the country). A better feedback loop, including routine provision of statistics evidencing the outcomes of judicial decisions, including bail breaches and compliance with alternatives to remand would also be helpful to decision makers going forward, it seems.

Strengths and Weaknesses

The main strengths of the current system appear to be the flexibility that the legislation affords and the involvement of social work staff to provide contextual information to triangulate with offence data. There may be scope for more national consistency in social work availability and involvement in the pre-court process as well as physical presence in court, as this was very welcomed in cases where it already operated.

The main weaknesses appear to be system factors, most notably the volume of criminal business in the courts and the lack of time available to allocate to each case before the accused appears at court (especially for those held in police custody). Time is perhaps the biggest challenge faced by all and Sheriffs were keen to stress the very tight ‘window’ in which bail and remand decisions were made, especially in custody cases. Several Sheriffs commented that the time available for information to be gathered to inform decisions is often very limited due to the nature of the system and how quickly people appear in court. Lack of time (especially in respect of pre-court liaison) can lead to an absence of person-centred practice.

The second main weakness was lack of information to support decisions - the main additional information that might be helpful includes more consistent and detailed information from police on the relationship between the accused and complainer/witnesses, the position of the complainer (including any changes in position over time) and more consistent and readily available information about the accused’s personal circumstances, including any issues relating to mental ill health or unstable housing status. All parties acknowledged the gaps in provision in the community which may influence Sheriffs’ decisions to remand for the accused’s own safety or welfare, but stressed that remand should never be used in cases of unmet community need.

Geographical variation also appears to be evident from the research. While views from all stakeholder groups were largely consistent between case study areas, there were some notable differences in the views and experiences shared by defence solicitors and social workers based in different case study areas in particular. In the main, these differences related to perceptions of a less collaborative approach in the larger, urban and higher workload courts compared to the smaller, more suburban, rural and lower workload courts.

The backlog in court business (brought about by COVID-19) was also seen to have exacerbated perceptions of over-use of remand. This was relevant both in relation to how long a person may be held on remand (and the risk that this could equal or exceed the length of any likely custodial sentence for the offence), and also in the ability of accused persons to comply with bail conditions. It was argued that the high number of individuals currently being held on remand was largely due to the delays in solemn cases proceeding to trial and the system becoming backed-up with people held on remand for longer periods. It was thus felt that Sheriffs per se have not developed an increased tendency to use remand but that the ‘system’ was creating a perception of such.

As above, lack of understanding of alternatives to remand was noted in some areas. The main barrier to more effective delivery of alternatives to remand appear to be difficulties in securing accommodation for those with no fixed abode, access to mental health assessments and services and also lack of recourse to public funds/facilities for some of the most vulnerable accused.

Though out of scope of the current research, underinvestment and lack of funding in the justice system was something which was discussed by several respondents across all stakeholder groups. Concerns included insufficient numbers of Advocates to defend and prosecute in the High Court, insufficient solicitors to defend in the Sheriff Court, lack of in-court facilities (including interview rooms and court rooms), lack of resources in justice social work departments to provide detailed reports to court and/or to have a presence in court, lack of legal aid for vulnerable accused/legal representation of custody cases and lack of resources for social work departments to operationalise alternatives to remand. Perceptions of a “huge underinvestment in the criminal justice system” permeated much of the feedback that was given and this emerged as a general theme. Under-resourcing was, it was felt, directly hindering the bail and remand decision making process.

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.