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

Introduction

Background

In late 2019, the Scottish Government commissioned an independent research study into bail and remand decision making 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 designed to cover the adult criminal justice system only and to focus on both solemn and summary criminal cases^[2].

The research was carried out in two phases. Phase 1 involved online surveys with members of the judiciary and the Crown Office and Procurator Fiscal Service (COPFS). An Interim Findings Report was published in July 2022 which highlighted that decisions were often complex and involved consideration of multiple factors (both legislative and other), with decisions always made on a case-by-case basis, considering the factors most relevant to the personal circumstances of the accused. This report presents findings from Phase 2 of that research which involved a series of qualitative interviews with key justice stakeholders to add breadth and context to the survey data presented in the earlier Phase 1 report.

Research Aims

The aims of the research were to assist the Scottish Government and other justice stakeholders to:

• better understand the process of bail decision making
• better understand the current system’s strengths and weaknesses, and hear what criminal justice stakeholders need to best be supported in their decision making
• use this evidence to build on what is working well and inform improvements, if needed

The research was a response to various justice stakeholders’ noting that the weight and combination of different factors influencing decision making were not always well understood by respective partners.

Legislative Context

In Scotland, individuals accused of any criminal offence can be allowed to remain in the community pending trial, including by granting them bail. The Criminal Procedure (Scotland) Act 1995 (the 1995 Act) provides for a presumption in favour of bail for criminal cases in Scotland and the Court must consider bail in all cases regardless of whether an application for bail is made. 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 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.

The Scottish Parliament enacted the Bail, Judicial Appointments etc. (Scotland) Act 2000 to remove restrictions on bail from the law of Scotland so that judicial decision making was an essential part of consideration in all cases. 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 refused. These grounds are set out 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 (and have historically been) remanded in Scotland.

In June 2018 the Justice Committee published a report ‘An Inquiry into the Use of Remand in Scotland’ that raised a number of concerns about the use of remand in Scotland’s justice system. One of these concerns was the high level of remand prisoners, at around 20% of the prison population.

The 2021 Programme for Government subsequently included a commitment to introduce legislation to change the way that imprisonment is used and a 12 week public consultation was subsequently facilitated which sought views on how custody should be used in a modern and progressive society, the findings from which were used to inform the development of a new Bill.

In June 2023, the Bail and Release from Custody (Scotland) Act 2023 (which was still being passed through parliament at the time that the current research was reaching its conclusion) set out new statutory limits on the use of remand so that it is a last resort for the court, reserved for those who pose a risk to public safety, including the protection of the complainer from a risk of harm, or to prevent a significant risk of prejudice to the interests of justice in a given case. The Act repeals Section 23D of the Criminal Procedure (Scotland) Act 1995 and also seeks to give a greater focus to the rehabilitation and reintegration of people leaving prison to help them resettle in their communities. Overall, the changes (once in force) are designed to lead to greater public protection and victim safety and are intended to reduce crime, reoffending and victimisation.

Further data and evidence

There are a number of published sources that provide detail on recent and historical trends in criminal justice. The Scottish Prison Population Statistics provide annual updates on the prison population and flows in and out of custody, and the Justice Analytical Services Safer Communities and Justice Statistics Monthly Reports provide monthly snapshots of the prison population. Both series provide prison population breakdowns to allow examination of trends in remand.

The Justice Analytical Services Occasional Paper ‘Sheriff Courts - remand and bail outcomes’ explores bail and remand decision-making trends from 2016-2021 and the factors associated with different outcomes for the accused in criminal cases. Statistics are also available on Journey Times in the Scottish Criminal Justice System. This series assesses an accused person’s criminal justice journey time from offence date to case conclusion or verdict, analysing the average length of journey and how journey times have been impacted by the COVID pandemic.

Taken together, these sources provide the context in which to read the views expressed within this research report.

Methodology

While Phase 1 of the research adopted a quantitative survey approach, Phase 2 involved qualitative interviews only.

Fieldwork was conducted across six different case study areas, which were selected on the basis that they provided 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. The final sample included:

• Area A: High Use of Remand, Mainly Urban
• Area B: Low Use of Remand, Mainly Urban
• Area C: Medium Use of Remand, Mixed Urban/Rural
• Area D: Low Use of Remand, Mainly Rural
• Area E: High Use of Remand, Mixed Urban/Rural
• Area F: Low Use of Remand, Mainly Rural

The only ‘gap’ identified in the above selection was a low workload court with a high use of remand but no such courts were available for inclusion in the research on the basis that to do so would make them too identifiable. In some of the sampled courts only a small number of Sheriffs, COPFS staff, defence solicitors and social work staff would have been eligible to take part in the research, thus making them too identifiable if court and place names were disclosed. To protect anonymity of all who took part, place names were removed for analysis and reporting purposes.

Following advice from a Research Advisory Group convened to oversee the research, the main stakeholders of interest that were identified to input to the research were members of the Judiciary, Justice Social Work staff (including both qualified social workers and other support staff), Defence Solicitors and Crown Office and Procurator Fiscal Service (COPFS) representatives. In each area, requests were made to gatekeeper organisations and representative bodies to share information about the research and invite up to three interviewees in each stakeholder group to take part, (recognising that in some areas the number of eligible staff available for interview was lower than this threshold). Advice was also given that recruitment of just one COPFS representative per case study area would be more appropriate for the research with local Procurators Fiscal Depute interviews being complemented by interviews with members of the COPFS National Initial Case Processing (NICP) team, since the majority of cases reported to COPFS are marked by this team^[3] (discussed more below).

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, depending on participants’ expressed preferences. Interviews were digitally voice recorded with permission of respondents and transcripts were produced for analysis purposes.