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

Alternatives to Remand

Bail Supervision

In May 2022, the Scottish Government published national guidance for Bail Supervision^[15] which provided revised guidance for the operation of bail supervision and set out standards and expectations to support the consistent delivery of the service across Scotland (noting, however, that there is an inconsistent service across Scotland’s 32 local authorities in respect of bail supervision services and, to a lesser extent, EM bail, which is also discussed below).

Criteria for Bail Supervision

In the case study areas selected, bail supervision was considered primarily for custody cases (as opposed to those appearing on police undertakings or on report, unless a Sheriff, Fiscal or Solicitor specifically asked for this to be done). There was, however, considerable local variation in practices with regards to screening and assessment of those held in custody. Importantly, there was no national standard screening tool that was shared by all social work teams in the different case study areas and bail assessments also included very different questions and assessment criteria^[16]. For example, some contained clear checklists of information that should be sought from different partners (such as police, defence, other social work teams, etc.) whereas others did not. Some included very comprehensive lists of ‘vulnerability’ criteria for the accused, and others were more rudimentary. There was also no consistency in the various ‘risk factors’ assessed by teams in different areas.

In one area, there was also a lack of clarity as to who would initiate a request for such a programme:

“The original consensus was the Crown should be asking social work to do supervised bail assessments in cases where bail is opposed. Then the Crown said, well we don’t care, why are we going to do that?... So then nobody really knew who was meant to be asking [for] it. The Sheriffs were saying to us we should be asking for it as defence agents. I, on one occasion… was told it wasn’t my place to ask for it and it should be the Sheriffs asking for it… So I don’t know what the rules are on it.” (Solicitor)

Despite this uncertainty, comments were also made that not all Defence agents routinely sought social work reports into the appropriateness of supervised bail and that there was perhaps scope to encourage more agents to request such assessments on a more routine basis.

Confidence in Bail Supervision

In two areas, bail supervision was carried out proactively for all (or as many as possible) custody cases, often regardless of any likely Crown bail position. In most other areas, assessments were triggered by bail being opposed by the Crown. In yet others, social work involvement was very much decided on a case-by-case basis.

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 this existed, but some did not feel knowledgeable about what it entailed.

In one area, one Sheriff only used bail supervision where a defined need was being addressed and this would make the difference between being able to grant bail or not. In yet another area, there was a perception that Sheriffs hardly ever supported supervised bail assessments and, even when they did, the assessments often did not feature in final decisions around bail or remand and this perhaps made social workers reluctant to be too proactive in this area:

“I can tell you, the majority of my cases come through (court name) and there is no account taken of bail supervision. This has been roundly dismissed by the Sheriffs as unnecessary, so it is not a factor that’s taken into account at all.” (Solicitor)

This contrasted with other case study areas where there was deemed to be a high uptake of assessment for supervised bail, high uptake among Sheriffs and strong levels of compliance.

Two Sheriffs were very positive about bail supervision reports and the use of the service, and felt this was an invaluable resource that could help (in some cases) to reduce the use of remand if it could be resourced to accommodate even higher numbers of orders. In these areas, there was regular and ongoing contact between Sheriffs and social work staff to help promote and explain the scheme. A further two Sheriffs commented on having a very clear framework for bail supervision in their area, which gave them confidence as they knew exactly what it would entail for each individual (and progress reports could also be requested at subsequent hearings and were readily forthcoming):

“I have not placed many people on supervised bail but it certainly is a useful additional resource when it’s available. My understanding is that it’s not perhaps as widely available as it could be, and I think that it would be a positive thing to have as an option in more cases.” (Sheriff)

Interviews also revealed considerable variation in the extent to which social work input was proactively sought from justice partners - while some local Deputes perceived that information from social work was “helpful” to the court, they did not deem it to be essential (with views that any relevant information could easily be imparted to Crown and Defence informally in discussions immediately prior to court appearances). Others, including some working in both NICP and local Depute roles, preferred to routinely seek informal input from social work colleagues before making decisions. Again, this was often influenced by local arrangements in court, co-location of social work and other juridical support staff within the court building, familiarity between social work staff and other stakeholders and local practices from social work with regards to screening of all or just some custody cases for bail supervision suitability^[17]:

“…most of the people dealing with these things work with each other every day, have got quite good relationships with each other. We’ll just have a discussion about it with each other and take on board any relevant information and then make a decision out of that.” (COPFS)

COPFS respondents were also asked if knowing the outcome of a supervised bail assessment before attending court might impact on their bail decisions. One Depute felt this would not make any difference to their decisions, while others did not know because they were not aware of what these contained, but they thought it would be unlikely to have much impact:

“Honest answer is I don’t know. I would need to know probably more what’s in them. But I think 9 times out of 10, whatever the Defence position will be probably won’t change our position, even though it’ll make us more aware that the Sheriff is more or less likely to do what we’re asking them to do… it doesn’t take away any of the reasons that we’re opposing bail to start with. It doesn’t change the fact they’ve got a horrific record, it doesn’t change the fact that this is a sustained significant assault on his partner, it’s happened three times before, you know. So I think there’s probably limited assistance that that would give us. It probably wouldn’t change our mind.” (COPFS)

“I do not have much knowledge about the bail supervision service. I think it is definitely something that defence agents are involved in more than the Crown. In my experience it has varied between courts whether you get a copy of the report or not - in the courts I am currently in, we are never provided with a copy and I wouldn’t know what is involved.” (COPFS)

“I have very rarely seen a supervised bail assessment. Generally, we don’t ever get to see them. The Defence will allude to them or they’ll, you know, discuss them in their motion for bail, so I don’t actually really know what’s in them. I’ve heard the agents talk about them and I’ve heard them talk about them being suitable or not or what can be done to support them but I don’t really know enough of what’s in them, I don’t think, to say whether or not definitely it would help us.” (COPFS)

There was also considerable variation in the knowledge and confidence held by COPFS staff in different areas regarding bail supervision. As one COPFS marker of solemn cases commented:

“I know that there is a bail supervision team and that we can refer… but, no, I don’t know too much about it other than the accused has to attend appointments and the social work department will let us know if they’re not…I think bail supervision is something that’s largely considered by the court as a sort of last gasp before remand. It’s not something that I would tend to - it’s not something I’ve ever asked for, bail supervision.” (COPFS)

Whilst most solicitors were in favour of bail supervision as an alternative to remand, some were uncertain of the criteria used by their social work team for assessment. 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 but in all but one area this was no longer considered to be an issue.

One social work respondent suggested that they do not do assessments for people who are of no fixed abode, or who need a translator/interpreter, because of logistics, despite solicitors asking them to. Some implied that, despite a bail supervision assessment which was negative (i.e. the accused was deemed unsuitable), the Sheriff may grant bail supervision anyway - which in one way justified their doing the assessment in the first place, whether or not bail was opposed, but also caused them difficulties if the accused had a record of breaching supervision.

Effectiveness of Bail Supervision

Among social workers, in terms of effectiveness of bail supervision, there were also mixed views. All thought that supervised bail was a useful and valuable service, but the effectiveness of it was largely dependent on the accused person’s ability/motivation to engage and desist from further offending. It was noted that some people complied well with supervised bail, attended their appointments, etc. but still ended up on remand as they committed further offences. The system for dealing with breaches, however, was said to be confusing and difficult, and therefore had resulted in a lack of motivation to report breaches in one area, although this was being addressed.

For some Sheriffs, it was felt that bail supervision was particularly useful for young accused persons, but most had concerns (due to the lack of information they had on this and the lack of reports they had received suggesting this) over the nature and frequency of the supervision that would/could be implemented. It was felt that if this simply meant a phone call or brief check-in/meeting with the accused, or was infrequent contact, then this would not give them confidence to use it. One Sheriff said they would use it more if they could be sure the accused would comply and that there would be consequences for failure to comply.

Overall, most COPFS respondents indicated that they did not feel they were in a position to comment on how effective bail supervision may be and the lack of readily identifiable evidence or statistical data to support arguments for the effectiveness of bail supervision was also cited more by COPFS than any other stakeholder group as something which undermined their confidence in it:

“I have some knowledge of this. I am not satisfied that bail supervision makes a tangible difference, but I am not aware of the specific data on this.” (COPFS)

Solicitors noted the significant variation in the availability of supervised bail and willingness of Sheriffs to request assessments in their respective areas. Despite significant variations in local practice and significant variations in perceived support for supervised bail among Sheriffs, most solicitors were supportive of the principles of bail supervision, felt that they understood the process and what it entailed, and felt that it was reasonably effective (recognising that some accused would always breach):

“I think bail supervision’s been terrific [here]. It’s made a massive difference. Generally speaking, it’s been really good because even if a client’s found guilty after they’ve been on supervised bail, you’ll know that they’ve been engaging for however many months and it often reflects quite well on them that they’ve been engaging quite well. I know it’s perhaps seen as interventionist but I think it works.” (Solicitor)

Resourcing

While some areas were already routinely assessing all those held in custody for whom bail had been opposed, those who were not and for those working in the one case study area where bail supervision was not already operational, there was some consternation amongst bail supervision/social work staff that they would be understaffed and under resourced as the new National Guidance for Bail Supervision stipulates that all bail opposed cases should be assessed on the day.

In one rural case study area, there was no capacity for bail supervision or EM bail at all:

“Bail supervision is… not happening here… I have pushed Sheriffs here before [to ask for it] but criminal justice don’t seem to be set up for various reasons to handle bail supervision cases at the moment… resources I think.” (Solicitor)

In other areas where bail assessments were already taking place routinely, it was also suggested that the new guidance requiring all bail opposed cases to be assessed was unrealistic without more resources (and that this requirement may only exacerbate existing pressures on justice social work):

“I would love bail supervision to not just be as restricted as it is at the moment. So I would like to be able to go for most young people who are in conflict with the law, not just the ones that are bail opposed... but right now… that would be impossible. They wouldn’t get a good enough service.” (Social Work)

Some social work respondents were concerned that they would not be able to see individuals three times a week, that there was limited support available from the voluntary sector, and that a successful term of bail supervision might leave accused ‘up tariffed’ when it came to final sentencing:

“… in theory, if someone were on bail supervision and they were on bail supervision for say six months, you could do some work with them and if that work were effective, it might then mean when they came to sentencing, you would say, there’s no need for them to be on supervision because we’ve done the work that we would have done on supervision. So you’re actually narrowing sentencing options, aren’t you?” (Social Work)

Finally, one social work respondent suggested that supervised bail clients who were also concurrently on a CPO order could ‘double up’ with that supervision for economies of scale.

Electronic Monitoring (EM)

Uptake

Among solicitors, awareness of both the availability and operation of EM bail varied, both between and within areas, with some feeling informed and knowledgeable about this, and others thinking this was only available in pilot areas or not fully rolled out within their area yet. 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). Again, EM bail was also not available in one of the case study areas at the time of interview, although it was expected that this may change in the foreseeable future. In another, it was available, but it was perceived that Sheriffs lacked sufficient knowledge of/confidence in it:

“I’m not confident because I don’t think enough recognition has been made of the benefits it provides…I think certainly the Sheriffs in (court name) would require some more education that this is of benefit.” (Solicitor)

Since social work respondents were involved in administering the assessments, they felt knowledgeable about this and confident in advocating for EM bail. While respondents did not know officially how often EM bail was being used, as they do not receive this type of feedback/information, there were mixed perceptions on its use. Some felt that EM bail was being assessed, suggested and used quite a lot, particularly instead of or to support curfews, while others felt it was not being used as often as it could/was expected and that bail supervision was used a lot more often than EM bail:

“I think it [EM bail] has been getting used quite a lot, to be honest, recently. I think it’s definitely, from what I’ve seen, getting used more than [police monitored] curfews now because I think [police monitored] curfews are monitored solely by Police Scotland, so that’s them going… to the door. So, I think they have been using it more maybe to take a bit of the pressure off the police.” (Social Work)

“I don’t think it’s getting used as often I think as we thought it might be.” (Social Work)

Effectiveness

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, etc.). Most noted that the ‘old’ system relied on the police to check whether an accused was complying with such conditions, but that the police could not check up on all bailed persons every day/night (and Sheriffs generally felt this was not a good use of police time). However, it was believed that the ‘new’ EM bail would provide automatic recording and notification of breaches, and would therefore be a better and more effective way of monitoring conditions and reducing the risk of reoffending as accused persons would know that breaches would be detected:

“I wasn’t a great believer in curfews per se, pre-electronic monitoring, because I’m not sure it’s a great use of police resources to be sending police to check on people and taking them away from other things, and they’re difficult to monitor. I wasn’t sure either how much protection they provided or whether they were a particularly good use of police resources. But with electronic monitoring, that I think does beef them [curfews] up significantly.” (Sheriff)

One Sheriff also suggested that more advanced EM could be used to support conditions to abstain from alcohol or drugs whilst on bail. Whether this would make a difference to the bail/remand decision however, was less clear, with one respondent highlighting that this would simply monitor the bail conditions that are already imposed, it would not provide any new alternative to remand.

Again, there was notable variation in views from COPFS from different case study areas regarding EM bail. Some perceived it was a valued ‘go to’ for Sheriffs whereas others described it more as a ‘last resort’:

“I think the Sheriffs in this jurisdiction will generally use a sort of bail supervision, electronic monitoring as a sort of - I think - I mean, I can’t speak for the Sheriffs but as a sort of last resort before remanding.” (COPFS)

Some Deputes felt they did not know enough about how EM bail worked, and because it was newer than supervised bail, they felt they probably knew less about EM bail than 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, i.e. “if there’s electronic monitoring, there’s no ambiguity.” (COPFS)

Others felt fully aware of the EM bail service in their area, 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).

Some solicitors viewed EM bail as effective and perceived that breaches were less likely to be a function of the nature or operation of the scheme itself, and always more likely to be linked to human default:

“I think knowing some of my clientele and the lifestyles that they lead, I would have my reservations that they’d be able to keep to it but, you know, that’s their problem in a sense that if I get you bail with an electronic tag and you breach it, well, you know, that’s your fault.” (Solicitor)

Again, social workers reported different views on effectiveness and uptake of EM bail. Specific concerns included that in rural areas, bail supervision is less easily operationalised than EM bail:

“I think there’ll be an increase in uptake for EM bail… I don’t see there being a huge increase in supervised bail, quite frankly… EM bail is, I think, a more realistic way of… the sheriff has that reassurance [that] that person has to stick to that curfew and it will be known if they’re not.” (Social Work)

Similarly, social work respondents were unsure about how effective EM bail was as they did not manage the order, and they had no feedback on breaches, etc. unless they were managing a supervised bail order which also had EM bail. However, it was generally expected that this would be fairly effective as breaches are immediately recognised, logged and investigated either by G4S in the first instance or elevated to Police Scotland if the person is either not contactable or is not present in their property when they are meant to be:

“I think it is quite effective. I don’t have any hard and fast facts in front of me with the amount of breaches and stuff, but certainly most people that I’ve had on it have got through it, if I’ve had it as part of a combined order. And I think it’s more palatable as well to the accused because they can get on with their daily lives, especially if they are in employment and things like that. If they are offending when it’s after hours at night, they know they can’t go out and if they do go out, it’s an automatic breach.” (Social Work)

Other comments

A small number of Sheriffs also commented that combined use of supervised bail and EM bail was effective, i.e. electronic monitoring monitors the accused’s whereabouts so as to identify any breach of curfew or of stay-away conditions, while supervision (if run well) allows the accused to address wider criminogenic needs. While electronic monitoring was unlikely in its own right to tackle the cause of offending, dovetailing it with supervision may help.

In contrast, one Sheriff raised concern about the possible overuse of EM bail and potential for up-tariffing if not properly considered:

“We have to be careful about not upgrading existing bail conditions unnecessarily. I think we ought to be looking at additional conditions where, but for that, you would have been remanding the person. Otherwise, what you’re effectively doing is simply imposing punishment on somebody that’s not been convicted…” (Sheriff)

One social work respondent perceived that EM bail counted towards one’s sentence, whereas bail supervision did not, which they felt was an anomaly^[18].

The only other issue of note was that there were occasions where Sheriffs ordered the use of EM bail without a social work assessment. While this was recognised as being within the Sheriffs’ rights to do so, it was flagged that sometimes the social work assessment can identify issues or that an address is not suitable where the court would not have had access to this information. Making social work input a mandatory part of all EM bail decisions may be worth considering, it was suggested.

Special Conditions of Bail

The main reasons why the Crown typically seek additional or special conditions of bail include:

• to protect the complainer or witnesses - such as not to enter a street, or not to approach, contact, communicate or attempt to approach, contact or communicate in any way with them
• where the accused is targeting a specific premises/area, a condition to stay away from the premises/area
• to allow the police to monitor an accused - such as a curfew or having the accused sign on at a police station, especially where the accused’s conduct is escalating.

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:

“This has the purpose of bolstering the standard conditions of bail by imposing specific conditions targeted to the most likely cause of any future reoffending.” (COPFS)

There were mixed responses in relation to whether Crown would liaise with the Defence in advance about special conditions being sought. One Depute (based in an urban, high workload court) indicated that they would be unlikely to engage with the Defence in advance but this would be done in the court room with the Sheriff, while two (one urban/high workload and one sub-urban/medium workload court based Depute) noted that the defence were typically informed of special conditions that will be sought in court in advance so they can take instructions from their client. Decisions regarding if, when and what special conditions were often not collaborative, however, with Crown taking a lead, with often limited/no discussion of what might be workable or acceptable to the defence:

“Before the case calls I would always advise the defence of the special conditions sought by the Crown. The defence sometimes approach us advising that the complainer is not supportive of bail conditions prohibiting contact but this usually does not change our mind.” (COPFS)

“It’s just more a dialogue to advise the Defence, and sometimes streets are very long, so they might narrow to sections of streets, or the curfew times, perhaps… he works till say 6 o’clock at night and it takes him an hour and a half to get home, so we’d maybe seek maybe say from 8 or 9 o’clock till 7 o’clock the next day. We’re a wee bit flexible with things like that. That’s generally all the negotiations - occasionally the Defence will oppose these special conditions but it’s up to the court to decide eventually.” (COPFS)

The main view expressed by COPFS staff in relation to special conditions was the need for conditions to be more clearly explained or defined, specifically in relation to curfews and non-contact conditions. They noted that such conditions would usually simply be communicated verbally in court by the Sheriff and, although provided in writing to the accused, there was still scope for vagueness and lack of understanding. Several interviewees (from different stakeholder groups) commented on confusion regarding contact via social media as something which was increasingly leading to breaches of special conditions, i.e. an accused maintains physical distance from the complainer but may send messages via Facebook, Snapchat, What’s App or Messenger, etc. Being more explicit regarding the scope and reach of non-contact was seen as something which would be helpful when special conditions are communicated at court (recognising, however, that there was a fine line between being specific and not making it confusing for the accused):

“…and they say, I didn’t realise I wasn’t supposed to contact them on Facebook. I thought I wasn’t supposed to meet up with them or I wasn’t supposed to go round to the house. So, some Sheriffs will be very specific and they say, don’t approach or contact this person and that includes via text message and social media. But I wonder if that should kind of always be in it, just given how much - how many breaches are that kind of contact.” (COPFS)

Among solicitors, there was concern around the potential for replication of standard conditions within special conditions:

“[In] domestic cases. Even if a person has no previous convictions and it’s the first time they’ve ever been in court, the court will always impose special conditions on their bail order. So, they will always impose a condition that they stay away from the house and they’ll always impose a condition that they stay away from the complainers. Now, I think that’s wrong and there’s case law that says that’s wrong because you should only impose special conditions of bail when you’re not assured that the standard conditions will suffice. But that is what the courts do now, they always impose them.” (Solicitor)

Other Alternatives, Access to Services and Unmet Needs

While most Sheriffs viewed that there were no other alternatives to remand (other than bail with conditions/special conditions, supervised bail or EM bail), a small number suggested that certain additional input might persuade them to grant bail rather than to remand, including curfews, reporting to a police station, more information on EM bail and on the complainer’s views, and bail beds/hostels. Having social workers or other support workers who could accompany an accused directly from court to access appropriate services (e.g. interventions for addictions or mental health interventions) was also mentioned by some as something which may increase their confidence to grant bail to someone with complex needs.

Examples Sheriffs cited of what needed to be in the community to give them greater confidence in bail included, first, emergency housing (in other words halfway houses, bail hostels or bail beds), effective bail supervision or EM bail, with possibly a dedicated social worker, mandatory bail supervision (including signing in at a police station - although not all Sheriffs were supportive of such signing in practices as they felt they offered little confidence that the accused was not committing other offences while on bail), and access to more treatment and support type services.

Similarly, most solicitors could not think of any alternatives, other than bail supervision and EM bail, although some suggested bail hostel equivalents and greater support with housing, such as employing an ‘accommodation officer’ in each local authority as a means of increasing options.

Suggestions for ‘other’ alternatives put forward by social work staff included diversion from prosecution (at the bail/remand stage), Restriction of Movement Orders, deferring the case for good behaviour, bail hostels and residential rehab units.

Some Sheriffs agreed that diversionary activity may be the best way to work with low level repeat offenders but noted that significant resources would be required to establish the types of intervention required, especially those that required mental health support. Indeed, several Sheriffs 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. Sheriffs suggested that more resources were needed to facilitate social work support, better mental health support, community and psychiatric nurses, support from hospital based psychiatric services, support with drug and alcohol problems in the community and availability of drug treatment and testing orders, etc. Having better and more reliable information from mental health professionals was also urged:

“…one of the big difficulties we have in the courts is the availability and the standard of community psychiatric nurse support. In my view, there is a huge gap in the people who are falling between the cracks and really need some sort of intervention in the community…but the psychiatric nurses are saying, well they’re fit to plead and that’s an end to it. And I think perhaps a more joined up approach might be helpful with that.” (Sheriff)

One Sheriff also suggested that developing a method to enforce a ‘no alcohol’ restriction as part of bail conditions would be helpful. It was suggested that electronic monitoring was used in other jurisdictions to facilitate this, and it was felt this could/should be introduced in Scotland. It was also suggested that similar restrictions for cocaine and heroin were also needed due to the prevalence of these drugs and the high levels of violent crime associated with cocaine. It was felt that such technological solutions, combined with community-based supports would be a significant help.

However, it was felt by some that the level of funding required to develop such community-based services and infrastructure would be so huge it was unrealistic:

“If you want to keep people out of prison, keep them in the community, you have to set up the same kind of conditions, mainly control of the person and their behaviour, supervision of the person and their behaviour and support of the person whilst they’re in the community if you’re going to in any way try and replicate the controlled environment of a prison setting… if you are really serious about keeping people out of jail and remand, you have to replicate the control and the support and supervision in the community - that’s a big job and very resource-intensive.” (Sheriff)

Another Sheriff noted that quite a lot was already available via supervised bail, although they conceded that this may be more relevant to post-conviction [and pre-sentencing] as more time was available to put a package of support in place rather than necessarily when implementing bail at the first hearing. They also noted that remand may be used for a short time in such circumstances while the court waits for the report to be provided and for community-based support to be put in place. It was felt that the time spent on remand could be shortened if social work were supported to provide the reports more quickly.

Among Crown respondents, there was also a desire to see more mental health and homelessness support for people both released on bail and released back into the community pending any period in custody. Deputes highlighted there was sometimes a need to remand someone due to a lack of a bail address or to arrange/confirm the input of medical or other support services, although it was noted that use of remand in such circumstances was often short-term and only until addresses and other support could be put in place:

“The only occasions I have seen this happen on (that I can think of) have been short term remands (usually) overnight for their safety but options are more fully explored the next day. This is usually when it is too late in the day for the particular agencies to assist - i.e. housing assistance/last minute CPN/bail supervision, etc.” (COPFS)

Similarly, for defence solicitors, it was noted that much needed to be done to improve access to psychiatric assessments, mental health services and stable housing for many accused, especially repeat offenders:

“These are people who perhaps should not be at large. There are reasons these people shouldn’t be in the public in general but the difficulty is jail is not the place they should be. They should be in a secure ward in a hospital but there are so few spaces in secure wards now that unfortunately people tend to be remanded these days.” (Solicitor)

Indeed, homelessness was the main factor which solicitors experienced as being responsible for some otherwise avoidable instances of remand:

“…not often but we also see quite frequently clients being remanded because of lack of housing, stable housing, they don’t have an address to go and sofa surf or, by virtue of the offence, can’t go back to their home address. And I’ve seen a few clients over the years remanded for that and, again, the systems aren’t in place to try and find alternatives to that because Sheriffs don’t want to bail people to sort of care-of addresses, they want them bailed to a solid address that they know they can be found at. So, you do find clients sometimes kept in custody for that. The same often with foreign individuals, that’s happened a few times as well and it’s not really satisfactory.” (Solicitor)

Overall, while one Sheriff stressed 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:

“Our impression is there’s a very overstretched community provision and where there is desperate need for support of those with chaotic lifestyles, those with mental health or drug problems, the services are just not there to be able to meet their needs.” (Sheriff)

“Remanding somebody in custody because they have nowhere else to live… should not be happening but it does happen and it happens regularly”. (Sheriff)

In particular, it was felt that the long waiting lists and lack of robust community assessment, support and treatment options for both drug/alcohol issues and mental health issues meant that individuals could not be suitably monitored and supported, thereby increasing the risk of them reoffending while on bail, and therefore made the use of remand more likely. All agreed, however, that the criminal justice system should never be used as a replacement for the care system:

“The lack of provision for people with mental health problems is appalling… We are remanding people who are mentally ill routinely when they should be getting treatment and help… support services in the community for people with mental health issues are completely and utterly underfunded, inadequate and failing these people” (Sheriff)

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.

Immediate Support for People Released on Bail

A very specific issue raised by Sheriffs, defence and social workers was the issue of accused travelling to court from a police custody suite in another town/city and the problems that this could create for bail decisions (several rural police custody suites were closed during COVID-19 and never reopened). This issue was especially acute in rural areas, where it could take hours for accused to arrive in court. They would then not be offered a means of travelling back to their home town again, causing problems with public transport costs:

“I was in contact with the [local police force] just a few weeks ago to say, if you’re going to be taking folk up to [court], can you please give them the opportunity to get their bank cards so that they’ve got money to come back because sometimes they’ll turn up - well, they were turning up at the criminal justice team in the court asking for a travel warrant. We can’t give them a travel warrant unless they’re open to us.” (Social Work)

“They’re either on an order and they’re entitled to [a travel warrant] or they have clear needs, i.e. mental health etc. If that fails, we are telling them to go to the Scottish Welfare Fund and ask for [an emergency payment]… I mean, there’s an option for people who are stranded to go to a railway station and say, I’m a stranded person, this is who I am and they’re obliged to provide them one way transport.” (Social Work)

A social worker in a sub-urban court also noted that this problem could exist for those appearing on warrants, including those brought to court from different geographical jurisdictions:

“…a lot of people get arrested in England, it tends to be warrants, they get taken from England to Scotland to the court, you usually have to wait all day for them to get there or not even the same day but the next day. They appear, they’re bailed and that’s it, they’re in [court], what do I do now? They’ve been arrested from their house with no money, no shoes even. I’ve had people in slippers, I’ve had people in their pyjamas, it’s ridiculous. They don’t have their glasses with them, so they can’t see because the police have not taken them and the police have told them just to keep them calm - don’t worry, they’ll pay for your return trip when you get to Scotland. And that’s not by any means automatic at all.” (Solicitor)

While welfare funds were available to assist with such instances in some areas, access to this money was not always easily achieved and there was again a sense amongst some respondents that a more considered approach was needed to support those released on bail once they left the court (the absence of support often meaning that breach of bail or bail conditions was a strong possibility).

Balancing Bail and Remand

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:

“It allows the accused to keep their employment without interruption and lessens the chance they will lose their job - the same goes for their tenancies which I understand can be difficult for them to obtain and keep, especially if they are vacant for some time. Similarly it allows them to maintain relationships with friends/family/children who can continue to provide support to them. It also allows their children (if any) to maintain relationships with the accused as their parents which is often best for them in the long run. This can assist in preventing the cycle of reoffending.” (COPFS)

“Anything that allows someone to be at liberty and have those opportunities to work on themselves, I think that is always a very good positive thing. I don’t think prison is particularly helpful in taking people away from their support system, taking people away from their homes. I don’t see how that helps someone’s wellbeing.” (Solicitor)

In addition, a secondary benefit (but never a determinative factor in decisions) was that release on bail often afforded all parties more time to prepare for a case before calling in court. This did not, however, mean that bail was the preferred option and, indeed, views were also put forward that the time requirements for remand cases to come back to court quickly could also be of benefit, i.e. requiring faster action and ensuring that the accused could be easily located.

Importantly, across all justice partners, there was also consensus that not everyone was suitable for bail, bail supervision or EM bail and that in some cases remand was the most appropriate option. Accused either posed too great a risk to the public or the complainer if they were to be released, or they had highly complex needs which could not be supported via the limited contact and scope available with supervised or other bail options.

There was also congruence across the stakeholder groups that most remand decisions were defensible and where bail was refused it was almost always for very good reason (as evidence by the low numbers of bail appeals in general) and that most Sheriffs “get it right” most of the time:

“…most Sheriffs are looking for ways not to remand people but, at the same time, you’re very aware that it’s on you to try and protect the public from further offending or issues. So, you don’t want to find out you’ve given someone bail, then they’re back the next week having done something really serious and someone’s been hurt.” (Sheriff)

“…the concept of remand I don’t think should be demonised. The vast majority of people that get remanded are remanded for the right reasons.” (Solicitor)

“You’ve got to be realistic. Some people pose a real, real danger to some of the victims. In supervised bail, somebody coming to see me once a week isn’t going to have any effect on his behaviour when he leaves his appointment, when he goes home and gets drunk and kicks off.” (Social Work)