Scottish Sentencing and Penal Policy Commission report: Justice That Works

Chapter Four: Crossing the line: entering the court system

Summary

One of the defining moments in a journey into the justice system is whether a person is remanded in prison custody, rather than being ordained to appear or granted bail in the community. High use of remand continues to create substantial harm, including loss of housing, employment, income and family stability, alongside poor access to purposeful activity or support.

Remand is most appropriate only where a custodial sentence of more than two years is likely or where risk clearly cannot be managed in the community. People should not be remanded in custody as a place of safety or because they have fundamental unmet needs, such as housing.

Embedding this principle in law, strengthening bail support, improving communication with accused people and expanding access to supported accommodation would reduce avoidable detention, including cases where homelessness becomes a barrier to release. Remanding people accused of minor crimes, or those who fail to attend court due to disorganisation, is disproportionate.

More can be done in communities to support bail, leaving the use of remand for those who pose a risk to victim and public safety in cases where a custodial sentence is likely.

Remand population

The high number of people remanded in custody awaiting either trial or sentencing is a significant component of the current high prison population. Most statistics about the remand population in Scotland encompass both people awaiting trial, and those who have been convicted of an offence and are detained while awaiting sentencing. On 1 November 2025, 2,141 were on remand in Scotland, 1,769 (21%) untried and 372 (4%) awaiting sentence.⁷⁵

Between 2023-24 and 2024-25, the overall average daily population of people who are only in custody because they are remanded awaiting trial or sentence remained stable at around 1,800.⁷⁶ As the average daily sentenced population has increased, the proportion of people held on remand has fallen slightly to 21.9% in 2024-25.⁷⁷ This number remains considerably higher than before the Covid 19 pandemic.⁷⁸

Although this higher proportion is not significantly different to many Western European countries – for example, the Netherlands 29.2%, Belgium 32.6%⁷⁹ – in Scotland this percentage relates to a portion of a much larger prison population per capita.⁸⁰ A study of Scotland’s prison numbers would be remiss if it omitted to consider this sizeable body of people. This is particularly the case with a group who spend increasing time in custody awaiting trial.⁸¹ Indeed, the longest stays remain substantially longer than before the Covid 19 pandemic.⁸²

Overall, the high number of people remanded pre-trial in Scottish prisons is widely considered unacceptable – including by the prison service itself. The Scottish Prison Service (SPS) says “more attention should be invested in reducing the numbers of prisoners held in remand”.⁸³

“We have previously described the excessive use of remand in Scotland as ‘a scandal’ and remind the Commission that similar concerns have been raised by the Scottish Human Rights Commission and HMIPS over a number of years.” – Howard League Scotland, Call for Evidence.

“The Scottish Government has stated its commitment to the UN Sustainable Development Goals (SDG). One of the agreed indicators for progress towards Goal 16 is ‘unsentenced detainees as a proportion of overall prison population.’ …. This has reduced from a peak of 28.9% in 2023 but remains higher than pre-pandemic levels.” – Criminal Justice Voluntary Sector Forum (CJVSF), Call for Evidence.

Pre-trial detention

The Commission is clear that pre-trial detention is necessary in some cases. As the McLeish Commission noted in 2008, “sometimes people are remanded in custody because that is the only safe thing to do”.⁸⁴ Almost half of the average daily remand population in 2024-25 includes individuals alleged to have committed crimes of violence.⁸⁵

However, the Commission is also concerned that a large proportion of individuals remanded in prison do not end up serving prison sentences or serve ineffective⁸⁶ short sentences. As the McLeish Commission stated in 2008, if someone does not need a custodial sentence, “it is difficult to understand why they needed to be held in custody in the first place”.⁸⁷ We discuss this point later in this chapter.

Legal framework

The Criminal Procedure (Scotland) Act 1995 (‘the 1995 Act’) sets out the rules about whether or not to grant bail. Changes took effect in May 2025 through the Bail and Release from Custody (Scotland) Act 2023.⁸⁸ An accused is to be granted bail unless the court determines that there is good reason to refuse bail and it is considered to be in the public interest to remand the accused.⁸⁹ Good reasons for refusal include a substantial risk of: absconding or failure to appear; a substantial risk of committing further offences, interfering with witness or otherwise obstructing the course of justice. The public interest point relates to public safety and the prevention of a significant risk of prejudice to the interests of justice. ⁹⁰

“I haven’t done much in the past few years, but they look at my history and say ‘JAIL - oppose bail’…They just see a conviction and say ‘nah’-not interested in people’s stories.” – Lived Experience Participant.

Temporary measures were announced by the Lord Advocate in a statement to the Scottish Parliament in October 2024.⁹¹ In order to address the prison population, the Lord Advocate instructed prosecutors “to have regard to the current pressure on prison population as a relevant public interest factor in their decision making.” However, there was no change of approach where allegations relate to domestic abuse or sexual offending.⁹²

The Lord Advocate acknowledged that the prosecution attitude to bail “can have a bearing on the court’s decision whether to detain someone in custody awaiting trial.” The revised approach sets out additional considerations for the prosecution and includes lowering the priority of the risk of failure to appear. ⁹³

“As the Lord Advocate acknowledged…decisions regarding whether or not to grant bail are often made on the basis of very limited information. The adequacy of defence advocacy (and the extent to which defence agents have the time or resources to prepare arguments against remand); the availability of background information such as criminal justice social work reports or psychiatric assessments; and the availability of risk assessments are all factors which play a role in determining the outcome of a bail hearing.” – Howard League Scotland, Call for Evidence.

Where the court has decided to refuse bail, it must state the grounds for refusal. These grounds are entered in the court record. If bail is refused solely on the ground that there is a substantial risk of absconding or failing to appear, the court is required to state why refusal is necessary to refuse bail and why no other approach (such as bail conditions and electronic monitoring) would suffice. Further limitations exist on the court’s discretion to remand an accused person at first appearance in summary cases on failure to appear grounds.⁹⁴

The court must also record reasons when granting bail to those who are accused of drug trafficking, violent, sexual or domestic abuse offences and when they have previously been convicted of such. The Commission believes that these additional new requirements of transparency are to be welcomed and anticipate that they should lead to better understanding of the reasons for bail decision making.

These recent changes attempt to take forward, many reforms that have been debated over recent years. Together they are intended to reflect the seriousness of a decision to place an accused person in custody before trial and emphasise the measures available to help support accused persons remain in the community and engage with the court proceedings.⁹⁵

As the key changes only commenced in May 2025, it is too early to determine whether they will be successful in delivering their intended impact. Except for the points made here, we are not therefore in a position to make any further recommendations. We do however note that the Act places a duty on Scottish Ministers to, as soon as reasonably practicable three years after commencement, prepare and publish a report on bail and remand. We would expect them to reflect carefully on those findings to ensure that the policy objectives of the recent changes are being achieved.

Backdating a custodial sentence

In considering the high remand population, evidence to the Commission set out the practice of backdating a custodial sentence to the start of the remand period. Just under half of the “journeys” from remand are transitions to the sentenced population.⁹⁶ Describing data in this way may be accurate but obscures the specific application to people. We would suggest it would be more helpful to record how many individuals remanded to custody pending trial are then convicted and sentenced to imprisonment; how many are not convicted; how many are convicted and a custodial sentence is imposed but backdated to the date when the remand period began. Knowing these variables would allow analysis of how well remand is working, for whom, and what other action might need to be considered. It is unfortunate that the available data does not enable a more detailed analysis of the reasons why someone might leave remand. Chapter Ten discusses and makes recommendations for how data is collected, managed and used in the criminal justice system.

“[…]many people imprisoned on remand do not go on to receive a custodial sentence, and this may be particularly the case for women. We would therefore concur with calls for the use of remand to be substantially, and urgently, reduced.” Scottish Centre for Crime and Justice Research (SCCJR) – Call for Evidence.

No real prospect of custody

The legal framework requires a court to have regard to the “probable disposal of the case if the person were convicted of the offence”.⁹⁷ Recent research on decision making in relation to refusal of bail in Scotland notes qualitative evidence from sheriffs who “indicated that they would be unlikely to place someone on remand where the offence would not result in a custodial sentence should they be found guilty”.⁹⁸

We consider that the existing provision could be reinforced. A stronger test would be whether the offence an individual is accused of has any real prospect of a custodial sentence. This would mean that a court would be obliged to consider whether the offence that someone is charged with has any real prospect of resulting in a custodial sentence.

In Chapter Six, we recommend extending the presumption against short sentences from 12 months to 24 months. We consider that this would read across to the remand population. Individuals should not be remanded in custody if there is no real prospect of a custodial sentence of more than 24 months, unless specific exceptions apply.

“We support the intention of not remanding someone in custody when in all probability there is very little likelihood that the final disposal will be a custodial sentence or period of detention” – Care Inspectorate, Call for Evidence.

Recommendation 4.1: The bail framework must explicitly exclude the possibility of remanding individuals in custody when there is no real prospect of a custodial sentence of more than 24 months if they are convicted of the offence of which they are accused. Lead partner – Scottish Government.

Impacts

Being on remand means waiting in prison for a trial. During this time, someone might lose their job. They might lose their tenancy. Their family life will be disrupted. Evidence to the Commission indicated that people are likely to be unable to manage their financial affairs, for example, to make payments or pay bills, which might lead to further significant indebtedness. Even where assistance might be available – for example, council tax exemptions – few people are aware of this or able to navigate the application process from custody.⁹⁹ In short, the overall impact of awaiting trial from within prison is one of disruption.

“Remand can be deeply destabilising, particularly for people with mental health issues, addictions, caring responsibilities, or a history of trauma. It also disrupts housing, employment, and family life, and contributes to poor health and wellbeing outcomes.” – Stirling Community Justice Partnership, Call for Evidence.

Scottish research shows remand is a time of increased risk of poorer mental health¹⁰⁰ and higher risk of deaths in custody by suicide or drug death.¹⁰¹ Evidence from England and Wales highlights the elevated risk of suicide among individuals held on remand, with the suicide rate in 2022 being twice as high as that of sentenced prisoners.¹⁰² In Scotland, research has shown that suicide is much more common among those on remand.¹⁰³ The Mental Welfare Commission for Scotland has warned of the risks for this group and made recommendations on the need for better release planning in transitions to the community from remand.¹⁰⁴

“There have been deaths by suicide among the remand population in Scottish prisons in the last year. HMIPS continues to have considerable concerns about the significant rise in the remand population since 2020. This is held to be a result of a court backlog because of COVID but sees many more prisoners serving significantly longer periods than previously on remand, with the potential to be found innocent or to have served longer in custody than any final sentence imposes once the case eventually reached court.” – His Majesty’s Inspectorate of Prisons Scotland (HMIPS), Call for Evidence.

While practice varies across different prisons, His Majesty’s Inspectorate of Prisons for Scotland (HMIPS) reports regularly highlight worse treatment for pre-trial detainees than for convicted prisoners. For example, in HMP Edinburgh remand prisoners were said to “live in the least good accommodation”.¹⁰⁵ A review by HMIPS into the experience of individuals on remand supports the view that these people experience “the harshest regime” of all Scottish prisoners. Even more concerningly, the review found that “fundamental statutory minimum international standards and national prison legislation were not being met for many remand prisoners”.¹⁰⁶

“People are now routinely held in some of the harshest conditions in the Scottish prison estate, with less access to purposeful activity, fewer opportunities for time out of cell, and minimal support, for months on end, often without being convicted of a crime.” – Scottish Prisoner Advocacy and Research Collective (SPARC), Call for Evidence.

“I could not believe how prisoners are treated while on remand. They are warehoused until their court date with the basics of prison services. There is no need to hold many people on remand for minor crimes.” – Individual, Call for Evidence.

Purposeful activity such as work, work-related activities, learning and education, as well as physical education and rehabilitative programmes are mainly available to convicted prisoners.¹⁰⁷ Our engagement with people with lived experience of the justice system described remand as being “lost time” with limited access to rehabilitation or education or work.¹⁰⁸

“The uncertainty was the hardest part, not knowing how long I’d be there or what the outcome of my case would be created a lot of stress and anxiety. There was very little structured support. Basic needs were met, but there wasn’t much help with mental health, family contact, or planning for what would happen after release. So that was very stressful for me personally […] what I personally believe could have helped more would have been proper access to support services, like intensive counselling, education, and maintaining contact with my family.” – Lived Experience Participant.

Convicted prisoners are generally required to work¹⁰⁹ but this does not apply to untried remand prisoners.¹¹⁰ A recent HMIPS review of the experience of people on remand found that “most remand prisoners said it was difficult or impossible to access work opportunities”.¹¹¹ We also note that remand prisoners do not receive cell wages, which places them at a real financial disadvantage within the prison environment and potentially on release. Research by Families Outside in 2022 showed that the average cost to families supporting someone in prison on remand was £300 per month.¹¹²

Recommendation 4.2: Ensure individuals on remand receive equal opportunity to access meaningful activities and treatment. Lead partner – Scottish Prison Service (SPS).

Alternatives to remand: bail support and supervision

The alternative to remanding an individual in custody is to release them on bail. If followed through, our recommendation on use of “no likely prospect of custodial sentence” would likely lead to a rise in the granting of bail. We acknowledge that in that case, there would be an increased reliance on those who support and supervise individuals on bail.

Release on bail is available with a range of possible restrictions, supervision and/or support. These are described as bail with conditions or special conditions, supervised bail or electronically monitored bail. There is also bail with standard conditions. The number of bail supervision cases rose by 17% between 2023-24 and 2024-25 to 1,500. This was the highest in the last ten years.¹¹³ Around 29% of these bail supervision cases involved an electronic monitoring order in 2024-25. This was over triple the number in 2022-23, when the data was first collected.¹¹⁴

However, there is significant variation in the number of bail assessments undertaken by justice social workers at the instance of sheriffs. It is of particular concern to the Commission that the number of individuals assessed as suitable for bail supervision versus the individuals who receive supervised bail varies hugely across Scotland.¹¹⁵

“There are challenges also for large courts with multiple simultaneous hearings running. Not every court will have a bail officer or equivalent or have sufficient resource to cover each court hearing where remand may be a possibility.” – Social Work Scotland, Call for Evidence.

The bail and remand decision making process is “complex, multi-faceted and time pressured”; informed by multiple considerations in each unique case.¹¹⁶ As an exercise of discretion, there is likely to be variation among decision makers. Evidence to the Commission indicated that decisions about bail and remand were felt to vary considerably among courts. Respondents to our Call for Evidence and in our lived experience engagement described what they perceived to be inconsistent use of remand and bail. There is felt to be lack of transparency about decision making, including how effectively assessments are used to inform decision-making as well as a perceived disadvantage to those with previous convictions irrespective of the current risk they might pose.

Research on bail and remand decision making processes in Scotland highlighted examples of what sheriffs considered was required in order to increase confidence in bail. Emergency housing was first and we considered this below. Next was effective supervision, which included “possibly a dedicated social worker, mandatory bail supervision, and access to more treatment and support type services.”¹¹⁷

If the variable picture across Scotland is a reflection on the lack of availability of service in some areas or inconsistency in assessments, then this needs to be remedied.

“During 2023/24, there was an 800% increase in bail supervision cases in Clackmannanshire. To support this, Justice Services recruited a new Bail Officer in December 2023 in order to carry out bail suitability assessments and work with community partners to ensure supports are in place.” – Clackmannanshire Community Justice Partnership, Call for Evidence.

We have frequently been told that better supervision and support is required for individuals on bail. It is important to recognise that support and supervision are not the same. Many accused people have complex needs that make for challenging engagement with the justice system, including bail and trial. Difficulty with comprehension and literacy, neurodiversity, addiction and mental health issues, unstable accommodation or homelessness all have a significant impact on compliance. In such cases additional support can be essential to ensure an individual’s successful engagement with the requirements of bail.

The current Community Justice Performance Framework (2023)¹¹⁸ issued by the Scottish Government appears to focus on bail supervision and not on the need for bail support more holistically in its framing of “nationally determined outcome” and “national indicator”. We were also told that the current statutory provision of bail support does not include mentoring, coaching, holistic support or signposting to other services.¹¹⁹

“We support expanding the use of bail supervision and other intensive support models, including mentoring, link workers in custody suites, and third-sector navigators. These must be delivered in conjunction with housing support where needed. Without a safe place to stay, compliance with bail conditions becomes extremely difficult.” – Stirling Community Justice Partnership, Call for Evidence.

The Commission is clear that supervised bail ought to work for victims. Evidence to the Commission indicated that this is not always the case. SACRO told us that people with lived experience of domestic abuse highlighted “persistent gaps in how victim safety in cases of domestic abuse is considered within the bail process.”¹²⁰ For SACRO, this reinforces the need for specialist advocacy and trauma-informed practice to be embedded in all stages of bail decision-making.

The Commission agrees with the need for specialist practice in bail decision-making. Overall, we must ensure that bail is properly supervised when necessary; that individuals on bail are properly supported; and that confidence in bail is maintained. A well-managed bail system should contribute not only to a reduced remand population, but to lower recidivism and to better outcomes for all involved.

“There is growing evidence that bail supervision models grounded in relational, trauma-informed support improve outcomes and reduce remand use.” – SACRO, Call for Evidence.

“Support to comply with bail conditions and court appearance is an effective way of improving court attendance and reducing remand. This could lead to Improved victim confidence in the justice system and its timely function” – Community Justice Scotland, Call for Evidence.

Recommendation 4.3: Improve the application of national standards for bail supervision to ensure greater consistency, and to increase confidence of victims and judiciary. Lead partner – National Social Work Agency.

Bail – administration of justice

Evidence to the Commission indicated that at present, a significant number of people fail to attend court. Community Justice Scotland told us that this was because of “a lack of information and the poor design of court summons, difficulties with comprehension and literacy, addiction and mental health issues, and changing accommodation”.¹²¹

The extent of people failing to appear at a hearing has a significant impact on the efficiency of the justice system. Between March 2023 and March 2024, almost 20,000 Failure to Appear warrants were issued for failure to attend court.¹²² Community Justice Scotland told us that failure to appear at court drives the use of remand, both for the case in hand and potentially in any future cases where previous failures to appear might be considered sufficient grounds to oppose or deny bail.¹²³ They cited evidence from the New York Criminal Justice Agency that outreach services to support attendance are an effective way of reducing non-attendance warrants.¹²⁴ The New York Criminal Justice Agency sends court date reminders via text message, email, phone calls and letters. There is a helpline to answer questions, for example about court dates and warrants.

The Commission sees the benefits of better, more modern court communications that do not rely on physical post. This is particularly the case given the numbers of people arriving in prison with no fixed abode (11.4% of all prison arrivals in 2024-25).¹²⁵ We see the possibility of using an electronic ‘nudge’ and/or tailored outreach to increase attendance. COPFS already uses texts to remind witnesses to attend on trial dates. Extending this approach to those accused would reflect growing public reliance on electronic communications, particularly modern mobile phone usage as is already used elsewhere, including by the NHS, to ensure that appointments are kept. However as some of these modern means of communication rely on internet access it should not be forgotten that there may be issues around equality of digital access. Any introduction of such means should, of course, not be at the expense of those who cannot access it but provision by the criminal justice system of communications that the accused can access is essential. Reminding the accused of key dates, such as court appearances, helps to reduce delays and inconvenience to victims and witnesses, as well as reduce costs to courts, COPFS and the police. Reminders could also lower the cost, time, and resources involved in issuing and executing warrants, detaining individuals, and processing them through the court.

Recommendation 4.4: Improve court communications with those on bail, including consideration of an electronic “nudge” service and supportive outreach advice. Lead partner – Scottish Courts and Tribunals Service (SCTS).

Accommodation

Homelessness and housing merit specific mention. Stable accommodation is often flagged as a key consideration in bail decisions, working both ways: if someone has a stable address, sheriffs might consider the risk of losing a tenancy. On the other hand, the lack of a stable permanent address (‘no fixed abode’) could present a challenge to bail.¹²⁶

“It is not uncommon for people of no fixed abode to be remanded in prison rather than because they fail to meet any of the other requirements for bail, but simply because of their homelessness. As a society, we are misusing the very expensive resource of imprisonment, as well as being unjust and damaging to the individual. The Commission should consider whether the use of bail hostels can be increased.” – Professor Cyrus Tata, Call for Evidence.

This suggests the need to consider the assessment for, and provision of, appropriate emergency accommodation prior to any bail decision. However, we also heard that previously available supported accommodation is no longer an option, for example supervised bail hostels.

“SACRO’s supervised bail hostel has long since gone. Such a place, with residency, curfew and conduct requirements would seem to address a number of issues in one, should the resources be available.” – Edinburgh Bar Association, Call for Evidence.

We had hoped to hear more about supported accommodation options in Scotland, particularly as recent research suggests sheriffs might be persuaded to grant bail on the basis of bail beds/hostels; and solicitors suggested bail hostel equivalents and greater support with housing, such as employing an “accommodation officer” in each local authority.¹²⁷

We received almost no information about how supported bail accommodation might work in practice. For example, whether an individual might be allocated a third option: neither remanded to custody pending trial, nor granted full bail (or supervised bail). Instead, a middle ground of remanded in supported accommodation, or bailed to supervised premises, might be worth pursuing. Such premises might be run by local authorities, third sector organisations approved for the purpose or by SPS using their knowledge of dealing with the remand population.

It is clear that any such service would require funding however, the Commission does consider supported bail accommodation is an option worth pursuing, while noting the necessity of individualised support and interventions alongside accommodation.

Recommendation 4.5: Place a specific statutory obligation on local authorities to provide, on basis of need: (1) appropriate emergency accommodation prior to any bail decision, and (2) longer term accommodation for all those who require it after being released on bail. This may include the provision of bail hostels, residential rehabilitation establishments or similar accommodation, along with the necessary support and interventions. Lead partners – Scottish Government and local authorities.

For those who do have housing, the impact of being remanded in custody can be severe. Evidence to the Commission highlighted difficulties maintaining tenancies, and in receiving assistance to maintain a family home.

“Those not on benefit who are owner occupiers or living in rented property receive no assistance in maintaining their home. These factors coupled with the length of time spent on remand heightens the housing crisis and without intervention increases the likelihood of homelessness on release. Having a home to go to on release and maintaining contact with family and friends are two crucial factors in preventing re-offending.” – Citizens Advice Bureau Parkhead, Call for Evidence.

“I lost my house and wasn’t given any advice – who to call, who to get in touch with, I didn’t have a clue...I came out to homelessness.” – Lived Experience Participant.

There are existing statutory duties in respect of pre-release planning and duties to cooperate¹²⁸ and to help prevent homelessness.¹²⁹ The Commission also recognises the SHORE (Sustainable Housing on Release for Everyone)¹³⁰ standards developed to try to ensure that individuals in custody have access to sustainable housing on release. SHORE standards seek to address the issues around homelessness and protecting existing tenancies before and during imprisonment.

However, the standards are not fully embedded across the country. Given the importance of housing as a protective factor against reoffending¹³¹ it is the Commission’s view that there is scope for more work to promote consistent, good practice in this area. In that regard, we note the good work between SPS and its partners in housing associations.¹³²

Time limits applicable to remand

The Covid pandemic created a backlog of criminal court cases, which has a significant impact on people on remand.¹³³ The various time limits applicable to remand were extended and did not return to the pre-pandemic time limits until 30 November 2025.¹³⁴ However, these were not “maximum periods of remand” as each relevant time limit was, and remains, capable of being extended by way of application on cause shown.¹³⁵ The impact of the expiry of the extended time limits remains to be seen. The Commission has not had time to consider remand time limits in detail but there may be scope for subsequent work in this area and whether there is scope for more innovative approaches to prepare these cases more expeditiously.

While significant progress has been made to reduce the backlog and the number of scheduled trials outstanding is lower than it was pre-Covid, case levels in the High Court and Sheriff solemn level currently sit at twice their 2019/20 level.¹³⁶ Experimental modelling by the Scottish Courts and Tribunal Service (SCTS) indicates that High Court backlogs will continue to grow, with scheduled High Court trials predicted to increase from 743 in March 2025 to 2,412 by March 2030. The associated average wait for a High Court trial to begin will rise from around 10 months in 2025 to more than two and a half years by 2030.¹³⁷

The Commission is clear that the work being done to reduce the criminal case backlog is critical. We understand the need for sufficient time for cases to be prepared but this must be balanced against the need for justice to be delivered swiftly for those that are victims as well as those accused of offences.

Recommendation 4.6: Regularly review the courts’ power to extend the period of remand to ensure that its use does not become established as routine practice. Lead partners – Scottish Government and SCTS.