Decision-making on bail and remand: interim findings report

Bail Options

Key Points:

Among the judiciary, there was greater awareness of (and confidence in) special bail conditions compared to supervised bail, mainly due to concerns around capacity to deliver supervised bail. There was mixed awareness among COPFS staff of bail supervision services available.

Requests for special conditions of bail from the Crown in both solemn and summary cases typically involve 'non contact' conditions and special bail conditions were seen by the Crown as being particularly useful for those accused of domestic abuse.

Bail supervision was viewed by COPFS staff as particularly helpful for vulnerable accused (including young people).

There was reasonably strong support for alternatives to remand among the judiciary, including electronic monitoring in particular, to assist with curfews and compliance with bail conditions.

Among the judiciary, perceived lack of resources (practical and financial) was cited as the single biggest barrier to greater use of alternatives to remand.

Bail Supervision

Both COPFS staff and members of the judiciary were asked if there were local authority (or other) bail supervision services readily available in the area(s) that they worked in. The data show that the judiciary were more likely to know of bail supervision services being available in their area compared to COPFS staff (see Table 3 below).

Table 3: Known availability of bail supervision services in local area

Service available in local area	COPFS (n=64)	Judiciary (n=25)
Yes	39%	68%
No	17%	24%
Don't know	44%	8%

Where services were considered readily available, COPFS respondents were asked to describe briefly what the services entailed (with 21 respondents providing a response). Some respondents indicated that supervised bail was available (either provided by the local authority or SACRO), while one respondent said that a court-based bail address check service was available, but they did not know if bail supervision was offered locally.

A few suggested that bail supervision was only used for summary cases/was not suitable for use in solemn cases (but did not say why). Others outlined how the system for bail supervision worked in their areas. They included that social workers prepared reports for the court about the suitability of supervised bail and/or that social workers attended the custody court to assist if required. One suggested that bail supervision was a challenge for social work and the police (where breaches occurred).

One respondent suggested the supervised bail services in their area provided a "positive service", while another felt they encouraged an increase in the use of bail:

"Good service in that it supplies up-to-date and accurate information for the court users (Sheriff, Fiscal and defence) and also can assist offenders with access to services."

"It certainly seems to lead to more people being admitted to bail than would otherwise be the case as the Sheriff considers there to be sufficient oversight."

While some felt that court based social workers were proactive in their area, or that social work were keen for supervised bail to be used more often, a few respondents indicated that they felt that bail supervision services were often under-resourced, creating problems with use:

"However, they are severely unstaffed so the information is not always available timeously and cases are often dealt with without the info being available."

One respondent also suggested that bail supervision services varied widely across the country and were not always consistent.

Sixteen judicial respondents provided further comments or descriptions of the services available to them and the main feedback was that such services were only 'sometimes' or 'rarely' available. Descriptions of services offered by respondents were very limited and most simply described this as 'mentoring', 'social work supervision' or a chance to 'meet a social worker each week'.

Two respondents indicated that the COVID-19 pandemic had impacted on bail supervision services such that there was limited capacity to deliver services, and two others commented more generally that social work services were perhaps too stretched to deliver bail supervision:

"This is a service that is rarely offered and social workers are never around when such an assessment is required unless the accused is already one of their service users."

"…the social work resource is very limited and they can only cope with around 1.5 cases per month on average."

Two others commented that there were delays generally in the assessment process which perhaps prevented greater use of bail supervision:

"There can be difficulties in getting an assessment done quickly and sometimes there is not a social worker available to do it."

"[Pre-pandemic] Services were available, but not 'readily'. The sheriff had to seek a report on the suitability of supervised bail in the morning as the assessment took some time. On many occasions, nothing was known about any of the custodies until later in the day by which time it was too late to have an assessment carried out for that day."

One respondent offered a view that bail supervision worked particularly well for young people and it was therefore unfortunate that it was not more readily available:

"For young accused [bail supervision] works really well but access to the assessment and use of them could be increased - most young offenders could be assisted by a steering hand through the system and monitoring to avoid repeated offences before the first court intervention."

A further two respondents commented that services were relatively new in their area and that they therefore had little knowledge of how they operated.

Perceived Effectiveness of Bail Supervision

When asked about the perceived effectiveness of bail supervision services and support in helping to address a range of different needs, there was mixed feedback from the judiciary (see Figure 9 below). In most cases, around 40% of respondents said they were 'unsure' how effective bail supervision services were in addressing needs, including ensuring that the accused appears at court, stabilising accommodation, reducing further offending and stabilising health/mental health issues. Just over a third (36%) felt they may be 'quite' or 'very' effective at helping to stabilise accommodation and just under a third (32%) perceived they might be 'quite' or 'very' effective at ensuring the accused appears at court.

Bail supervision and support was seen as perhaps less effective overall at helping to reduce further offending or helping to stabilise health/mental health issues, although the small sample size means that differences in ratings between categories can be attributed to the views expressed by just one or two respondents.

Only one respondent provided a comment which explicitly reflected current confidence and/or satisfaction and this was linked to bail supervision reports:

"Bail supervision reports are frequently available and provide a valuable resource in the decision-making process. It gives me confidence that the accused will be supervised/monitored/supported through the process."

Comments received elsewhere in the survey suggested that the effectiveness of bail supervision was entirely dependent on individual accused and their compliance:

"Effectiveness of the order depends entirely on compliance by the accused - or otherwise."

Use of Special Bail Conditions

All COPFS respondents were asked, in cases where bail is not opposed but standard bail conditions are not considered sufficient to mitigate any perceived risk, what types of special conditions of bail they found themselves asking for most often (with responses split by summary and solemn workloads, as appropriate). A large number of respondents (55/64) provided information regarding summary cases and 53/64 gave information about solemn cases.

Table 4 shows the most common requested bail conditions noted by COPFS respondents by case type. While this was asked as an open question, there was significant consistency in responses both within and between the two different case types. The data show that conditions around protecting the complainer (or witnesses and other named individuals) were asked for most often, closely followed by conditions to stay away from a particular locus. Curfews, the need to sign on at a police station, and for the accused to surrender their passport, however, appear to be used more frequently in solemn cases compared to summary cases.

Table 4: Bail conditions requested by case type

Special Bail Condition	Summary	Solemn
Do not approach, contact or attempt to contact the complainer, witnesses or other named individuals	54	49
To stay out of certain addresses, locations or areas	49	41
Curfew	19	34
Sign on at a police station	4	10
Present at the door when visited by police	3	3
Surrender passport	2	6
Stay out of City Exclusion Zones	2	1
Surrender electronic devices/internet devices	1	2
Total Respondents	55	53

Judiciary respondents were also asked what types of special conditions of bail they used most often. In summary cases, the main special conditions were:

• keeping away from complainers, witnesses or other named persons (n=19);
• keeping away from particular locations/locus (n=17);
• curfews (n=16);
• signing on at a police station regularly (in particular where there may be a risk of failing to appear (n=5); and
• internet restrictions (for example, in online child pornography cases) (n=1).

In solemn cases, the main special conditions were the same as those mentioned for summary cases. Conditions to stay away from victims, witnesses and other significant individuals (including family or associates of the complainer) featured slightly more prominently as special conditions in solemn cases. The only additional conditions for solemn cases (each mentioned by just one respondent each) were protective conditions of the complainer and surrender of passport.

Perceived Effectiveness of Special Conditions

Judiciary survey respondents were also asked how effective they thought special conditions were in addressing a range of factors (see Figure 10 below).

Respondents appeared more confident in their understanding of how effective special conditions could be (compared to bail supervision) with between 24%-40% of respondents indicating they perceived special conditions to be moderately effective at addressing all factors. Special conditions were seen as most effective at helping to reduce further offending (with 28% indicating they may be either 'quite' or 'very' effective in this regard). Again, however, small numbers of respondents overall means that variation between ratings for different categories can be attributed to ratings of just one or two respondents.

Among COPFS respondents, cases where special bail was seen as particularly useful were those where the perpetrator was accused of domestic abuse (n=34). Less frequently mentioned were sexual offences/stalking (n=3), supervised bail for younger offenders (n=13) (where it was felt that additional intervention and support would result in better outcomes, especially if the young person had additional support needs), and those with conditions or issues where they might need support to comply with bail (n=4). Assault cases were also mentioned by several respondents as a case type where special bail conditions or supervised bail might be useful. A wide range of other case types or particular circumstances were also mentioned by just one respondent each.

Several respondents also caveated responses or highlighted that the use of special bail conditions or supervised bail would depend on the severity of the offence and the nature of the offender, i.e. whether they could be expected to comply with the court order or have a history of breaching bail conditions:

"Supervised bail is more often a consideration for the Sheriff and usually features in cases with young offenders. Special conditions are useful in all cases but very frequently used in relation to domestic offending or any offending where there is an established relationship between the accused and the victim (family/friends/ partners). Again, it is difficult to quantify and depends very much on the specific accused and the offence. The PF will need to consider if risk can be realistically managed by seeking special conditions."

Barriers to Use of Bail Supervision and Special Conditions

Members of the judiciary were asked what (from a list of presented factors) they thought may act as a barrier to greater use of bail with special conditions or supervised bail in Scotland (see Table 5 below).

Table 5: Perceived barriers to greater use of supervised bail and bail with special conditions (n=23)

Potential Barriers	% of Respondents
Lack of resources to deliver alternatives to remand	74%
Lack of compliance with alternatives among accused	52%
Lack of available alternatives at the local level	48%
Lack of awareness of alternatives among procurators fiscal	22%
Lack of awareness of alternatives among judiciary	17%
Lack of research on compliance with alternatives	9%
Negative public perceptions of alternatives to remand	4%
Negative professional perceptions of alternatives to remand	-

The main perceived barrier was a lack of resources to deliver alternatives to remand, with almost three quarters of respondents citing this as an obstacle (74%). This was followed by lack of compliance with alternatives among accused and lack of available alternatives at the local level, each mentioned by roughly half of respondents as barriers to greater use. Nobody indicated that negative professional perceptions of alternatives to remand prevented their use and only one suggested that negative public perceptions may be a factor.

Three respondents cited 'other' barriers to use of supervised bail or special conditions. For one, likely future conduct was the biggest barrier:

"Likely future conduct of the accused judged by his/her history and characteristics. That is the biggest single reason for refusal of bail. For many, only incarceration can prevent further offending and another [reason is] actions against the public interest, such as intimidation of witnesses (which is rife and leads to many cracked trials)."

For the other two, lack of tagging/electronic monitoring facilities were cited as a barrier:

"Tagging for curfews has been enacted but not brought into force. This would make curfews far more effective, as breaches would be detected automatically without the huge resource of random police checks."

"Use of electronic tags to secure curfew and/or not approaching complainer's property might be useful additional resource - i.e. one that might in some circumstances enable the grant of bail subject to special conditions where it would not otherwise be possible."

When asked what they perceived was the 'biggest barrier', lack of resources was again cited by many:

"Additional resources are required for existing criminal justice social work. Any extension of supervised bail, which would be worth exploring, would be dependent on sufficient additional resources being available to make it work."

Specifically, some mentioned insufficient resources to ensure compliance, with lack of compliance (and wider criminal record) also being seen as something that would render use of supervised bail or special conditions unlikely. Lack of awareness and resources for supervised bail was also cited:

"It is important to distinguish between special conditions and supervised bail. Bail with special conditions is very common in my experience; supervised bail is much less common. I think that is partly a matter of awareness, but more significantly, one of resources."

Views were also put forward that remote monitoring (especially GPS tags) would increase effectiveness of curfews, and that increased availability of electronic monitoring (EM) for curfews would be welcomed:

"In this jurisdiction, so far as I am aware, there are no bail options other than bail itself, with or without special conditions, other than bail supervision. Electronic monitoring would be a helpful addition."

Indeed, when asked what (from a specified list of options) may allow for greater use of bail with special conditions or supervised bail in Scotland, most respondents (83%) indicated that increased availability of EM bail would be of assistance (see Table 6 below).

Table 6: Factors perceived to allow for greater use of supervised bail and bail with special conditions (n=24)

Factors	% of Respondents
Increased availability of Electronic Monitoring (EM) bail	83%
Increased capacity of local authority bail supervision services	63%
Introduction of bail hostels or equivalent accommodation	63%
Increased availability of Remote Alcohol Monitoring (RAM)	58%
Increased capacity of third sector bail services	42%

Over half of judiciary respondents indicated that they would welcome the full range of additional supports listed (the exception being increased capacity of third sector bail services).