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

Respondent Profiles

A total of 60 people took part in qualitative interviews over a six month period across the six case study areas. Table 1 shows the distribution of the sample by case study area and respondent type.

Research Caveats

The main focus of the research was to better understand the process of bail decision making and the research was, by design, an exploratory study. As a result there was no attempt to evaluate or review current practice, rather to describe and present the nuanced details around how the decision making processes operate day-to-day.

While comment was made on the perceived strengths and weaknesses of the current process among those who took part, and respondents were invited to share views on what criminal justice stakeholders needed to best be supported in their decision making, the research stopped short of attempting to make recommendations for system or legislative change. Instead, it was always intended that the research would contribute to and complement wider existing evidence to allow justice partners to understand what ‘works well’ and inform improvements, if needed.

In a similar vein, no attempt was made to position the findings from this qualitative exercise in the context of statistical data that is already regularly and independently published with regards to such things as the current and historical number of accused released on police undertakings around the country, numbers of accused being held on remand, the number of people subject to bail supervision, EM bail, bail with special conditions, etc. or cases subject to bail review or appeal. Contextualising the findings in this way was outwith the scope of the current work but it is nonetheless stressed that the findings should be considered alongside already published evidence in the field to provide a holistic understanding of the nature and use of bail and remand.

In the absence of reliable independent data, most participants were reluctant or unable to comment on such things as the proportionate split in decisions in favour of bail and/or remand, or to offer firm estimates of their respective use between Summary and Solemn cases. Instead, much of what respondents reported was experiential learning built up over a significant number of years of shared professional practice. Where respondents presented views on the perceived use, uptake, effectiveness, etc. of various alternatives to remand, for example, this was not challenged but nor should any assumptions reported here be taken as fact.

While the research was successful in reaching a broad range of justice professionals working in key roles in the bail and remand decision making process, there was no engagement from Police Scotland. A decision was made early on that they played no substantive role in the bail and remand decision making process since all involvement would be before cases were marked by the Crown. Given some of the findings that emerged, however, it may have been useful to have included a view from the police, specifically in relation to what informs their early decisions to hold an accused in custody or release on an undertaking^[7], as well as any variations in local practices regarding the format and content of reports submitted to the Crown and the sharing of information between the police and other partners, e.g. social work teams and solicitors. This is recognised as a gap in the research.

The research commenced pre-COVID and was paused during lockdown restrictions, with significant changes to the legislative context being made in the period over which the research ran. Similarly, initial hopes to triangulate survey data from Phase 1 of the research and qualitative data from Phase 2 alongside independent observation of cases progressed through court did not go ahead. This was largely due to some of the restrictions put in place during COVID-19 which prevented in-court fieldwork. Although these were removed at the time that qualitative interviews finally got underway, the project had already been re-scoped with observations being excluded due to time and practical constraints. Again, this means that it was not possible to verify some of the practices reported by staff working in local courts.

As with all qualitative exercises the number of people who took part was relatively small in comparison to the eligible population of judiciary, Crown, defence and social work. With the exception of interviews with defence solicitors (who were contacted via a public call for participants), numbers of interviews with judiciary, Crown and social work were controlled by their respective gatekeeper organisations in line with agreed protocols for government research and were deemed to be sufficient to provide representative coverage of the wider professional groups’ views and experiences (whilst minimising burdens on each organisation through their involvement with the work). While the views presented are diverse and offer a valuable and rare insight into the day-to-day practices of those involved in bail and remand decision making, they should not be interpreted as fully representative, especially given that a sampling approach to the work was undertaken.

Finally, for ease of reporting, terms used by respondents with reference to other stakeholders were left unaltered, however, this means that presentation of findings is not always consistent. For example, terms including Crown, Prosecution, Fiscal, Depute and Procurator Fiscal were all used interchangeably at times with reference to Crown Office and Procurator Fiscal (COPFS) staff. Similarly, terms including Defence and Agent were used interchangeably with reference to solicitors acting on behalf of accused (also referred to as ‘clients’ by both defence and social work staff). While the term ‘judiciary’ has also been used, in most cases, this refers only to Sheriffs as no Judges took part in the research. Appendix A provides a list of Key Terms.

With these caveats in mind, the remainder of this report sets out the findings from the research.