Sentencing and Penal Policy Commission - call for evidence: analysis of responses

4. Bail and remand

Question 2 - In your view, what are the priority issues affecting bail and remand? In Scotland, what needs to change and why?

Introduction

Question 2 of the call for evidence asked for views on the priority issues affecting bail and remand in Scotland. Almost six in ten respondents left a comment at this question. The most prevalent themes were improving support for people subject to bail conditions, reducing the use of remand, and improving decision-making. Less common themes included improving victim support (see Chapter 3: Community sentencing), addressing systemic issues, improving bail arrangements, and addressing non-compliance with bail conditions (See chapter 3: Community sentencing).

Improve support for people on bail

Many respondents at Q2 raised similar issues as were raised at Q1 regarding the need for improved community-based support for people on bail. Respondents called for more community support to be in place, particularly at the point of release, better joined-up working, and addressing drivers of crime, such as substance use.

“During 2023/24, there was an 800% increase in bail supervision cases in Clackmannanshire. This increase is welcome and positive, but it does have a significant impact on support services within the community. 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. The Bail Officer has built up excellent relationships with services in the area and is developing a directory to include details of the organisation and what they do, points of contact and referral processes, along with any possible exclusions or requirements. This will ensure that Justice partners will have access to up-to-date information regarding local services and how service users may benefit.” - Clackmannanshire Community Justice Partnership

“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

“There is growing evidence that bail supervision models grounded in relational, trauma-informed support improve outcomes and reduce remand use. Sacro’s AYE service which provides bail supervision alongside arrest referral and diversion from prosecution support, for example, demonstrates this in practice, supporting people to attend court while also addressing underlying support needs, resulting in better individual and system-level outcomes.” - Sacro

Reduce the use of remand

Many respondents felt that the use of remand should be reduced. Concerns over the use of remand in certain cases were highlighted, such as it being used for those who were not considered high risk, because of the nature of the accusation, or due to a lack of bail support. Respondents, including individuals, highlighted concerns with the use of remand for people before trial, given their view that such people could be found innocent or that accusations were not serious enough to warrant it.

A range of perceived impacts were noted due to the use of remand, including that:

• Prisons cannot cope with the current number of people on remand.
• People are spending too long on remand without support or purposeful activity.
• Remand can cause a significant impact on people’s lives, such as causing trauma or suicide risks, especially for young people, or can disrupt people’s lives in areas such as employment, housing, family ties and social support.
• People may get used to incarceration and prefer this to community sentences, particularly when a prison sentence deducts the time spent on remand.
• Victims may associate incarceration with safety, leading to increased fears when the person is released from prison.

Suggestions to help reduce remand use not mentioned elsewhere (e.g. enhanced support) included adopting a presumption against the use of remand for low-risk cases, such as non-violent offences, where evidence is unsubstantiated, and particularly for those where the justification is housing insecurity or a lack of support services. One respondent requested that the presumption be made mandatory. Other singular suggestions included the need to identify less restrictive alternative measures that also ensure public safety, greater use of electronic monitoring while on bail, and focusing on reducing the use of police custody.

“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)

“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

“When my son went to prison on remand, 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

Improve judicial decision-making

Many respondents suggested that judicial decision-making in relation to remand or bail conditions should be improved. Two main issues were described: inconsistent use of remand and bail, and how effectively assessments are used to inform decision-making. A lack of transparency in how decisions were reached by the judiciary were also raised.

Decisions about bail and remand were felt to vary considerably between courts, sheriffs, and judges. These differences were attributed to factors such as:

• Perceptions of risk or public concern leading to willingness to remand.
• Availability of community support.
• Limited understanding in areas such as coercive control.
• Time constraints.
• Previous convictions being used as the main way to determine current risk.
• Not following early release guidelines or the Lord Advocate’s revised guidelines around the bail test.
• Remand being used to ensure a timely court appearance.
• Electronic monitoring causing disparities in how breaches are managed, given that breaches are automatically reported through these systems.
• Variable importance placed on bail assessments.

A few respondents felt remand decisions were disproportionate or risk averse, rather than based on balanced appraisals of whether a person should be remanded. Examples given included that those accused of lower-risk crimes are remanded, while others accused of higher-risk offences who are not, or that decisions to remand are made based on previous convictions. Two respondents felt there was a lack of accountability by the judiciary, such as for decisions that lead to wrongful or unnecessary time on remand.

A range of considerations was provided on how assessments are used to inform judicial decision-making. Respondents’ views included that:

• Decision-making could be based on limited or inconsistent information.
• Insufficient time is available to assess a person’s circumstances.
• Time spent preparing assessments that were not then considered by the judiciary negatively affected morale.
• There is a lack of clarity regarding whether the Standard Prosecution Report^[8] prepared by police informs decisions taken.
• Professionals were too stretched or otherwise unable to provide assessment reports.
• Some providing reports were not sufficiently aware of risk.
• There was no consistent way to involve third-sector partners in informing bail reports.

One organisation described a pilot ‘test of change’ project to assess people on remand who were either not assessed at all for bail suitability or had a material change in circumstances:

“A short ‘test of change’ was put in place to assess people on remand who either were not assessed at all for bail suitability or have had a material change in circumstances. A triage approach was taken, excluding certain cases for re-assessment (nature of alleged offence or no change in circumstances). The bail review requires to be called by the defence agent, not all solicitors are prepared to do so at this stage and the numbers achieving a bail outcome from the pilot were very small.” – Social Work Scotland

Recommendations for improvement given by respondents included:

• Addressing inconsistencies in bail and remand decision-making and measures, and enhancing transparency, for instance, through exploring how decisions are made and how the use of bail can be increased.
• Providing more time to gather information as part of assessments, such as through considering a longer turnaround for bail hearings.
• Limiting remand to cases that satisfy a test of ‘imminent risk of serious harm’ where this is supported by clear evidence.
• Adopting a ‘problem-solving’ approach at court to support a shift in how Sheriffs can assess bail decisions by bringing together a range of professionals to assess risk, understand need and plan appropriate responses to keep people safe in their communities.
• Standardising bail assessments with greater access to, and use of, risk-based tools, ensuring these are used to inform who poses a risk of serious harm.
• One respondent suggested maintaining a shared understanding of the language of risk, in accordance with the Framework for Risk Assessment, Management and Evaluation. Another suggested reviewing current risk assessment practices to align them with existing national standards.
• Using oral (‘stand down’) reports, completed on the day of court, for people who regularly do not attend their sentencing hearing. It was suggested these could inform decision-making and help avoid the use of remand in certain cases.
• Ensuring certain aspects are routinely considered in decision-making, such as housing, presenting concerns, and personal circumstances. Recommendations were made to ensure social work reports are routinely included and require courts to act compatibly with children’s rights and that their best interests are at the heart of decision-making. Suggestions included ensuring the use of Child Rights and Wellbeing Impact Assessments, introducing and enforcing a procedure to ensure the relevant social worker for each court is informed about anyone appearing from custody when bail is to be opposed or when a vulnerable person is to appear, including a home visit, and introducing court-based housing liaison workers.
• Increasing accountability within the system, for instance by:
• Having a mandatory judicial review of all remand decisions within seven days of initial detention, with ongoing review every 14 days thereafter.
• Requiring courts to publicly justify any remand decision that results in custody longer than 20 days, especially if no conviction is secured.
• Firming up the process for including ‘markers’ on files to make it easier for sheriffs to call someone back on a bail hearing.
• Providing greater information, in addition to details of the alleged offence, for justice social work teams, such as access to the Standard Prosecution Report, with details of any victim issues and the site of the offending behaviour.
• Training for the Crown Office and Procurator Fiscal Service on the new test to determine bail set out in the Bail and Release from Custody (Scotland) Act 2023.

“Some Local Authorities do not have a court in their area, or an individual may have committed an offence out with their area of ordinary residence. Both scenarios can make it difficult to access the appropriate information to complete a bail assessment, or there may be no awareness that the individual is at an outside court and being considered for bail or at risk of remand. 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

“Bail continues to be opposed by the prosecution in Edinburgh Sheriff Court in the vast majority of cases. The impending repeal of S23D of the Criminal Procedure (Scotland) Act will facilitate bail applications in some cases, but bail is still likely to be opposed in those cases.” - Edinburgh Bar Association

“As the Lord Advocate acknowledged, initial 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

Address system pressures

The need to address pressures or perceived failings in the justice system was highlighted by some respondents. These mainly centred around the need to address delays, respond swiftly or address the unpredictable length of the time spent in remand or on bail. Issues raised included:

• Court backlogs leading to longer periods spent on remand.
• Increasing demand for and lengthier periods spent on Bail Supervision Orders creating resource pressures.
• The shortage of courts and court personnel.
• That people may prefer to plead guilty rather than wait for a trial.
• Long waiting lists for community supports resulting in difficulties engaging people before trial or sentencing.
• That insufficient time was available to prepare relevant information before court appearances.

Two respondents expressed the view that legislation introduced to counter pressure during the Covid-19 pandemic continued to impact the system, while two other respondents felt this could not fully explain the increasing use of remand or system delays.

Fewer suggestions for improvement were given by respondents at this theme, though these were:

• Allow more time to gather information before making decisions and record witness views around the time of the incident, in the same way that the police record the interview of the person accused. Such interviews could be transcribed rather than relying on a handwritten or digital note by the sheriff.
• A criminal justice organisation suggested increased resourcing to provide for 6- or 7-day custody hearing courts to reduce demand for remand hearings.
• To consider diverting certain cases to alternative dispute resolution by trained mediators, such as those cases where conviction rates are low and the victim and accused are known to each other, such as rape or sexual assault.
• Greater use of ‘problem-solving’ courts.
• Debating whether juries are required for many trials, which would bring Scotland more in line with much of mainland Europe.

“One consistent challenge facing bail in Scotland is the unpredictable length of time that young people remain on bail. This uncertainty and unpredictability is counterproductive in encouraging young people to adhere to their bail conditions and can have a detrimental effect on their mental health and feelings of security and purpose.” – Includem

“Issue: Delays in processing cases extend remand periods unnecessarily. Change Needed: Streamline court processes, increase use of virtual hearings, and invest in early resolution mechanisms.” - Individual

Electronic monitoring

Comments on the use of electronic monitoring (EM) as a bail condition were made by some respondents, though the topic could be considered more broadly, for instance, in exploring alternatives to custodial sentences. There was support for increasing the use of EM and further exploring developments in this area, as it was felt to be an effective way to reduce the need for police visits and provide automatic notification of breaches. It could also be useful for older people or younger people, so their needs can be met through community supports. However, respondents highlighted that EM needed to be supplemented with supervision, support, and regular reviews to ensure that it worked well and that victims were protected. One respondent felt that victims were not informed of EM breaches, which was perceived to increase their risk, while another cited research that found EM can be experienced as punitive among those subject to it.

A few commented that GPS tracking could be further rolled out in EM solutions. One noted that GPS was currently only available for Home Detention Curfews, not for CPOs or bail orders. Two highlighted that alcohol bracelets or drug use monitoring measuring sweat rather than urine, as is currently the case, could be used more frequently.

“GPS tracking is not mass surveillance. It is conditional, targeted, and time-limited, and it can be subject to independent oversight. In the right framework, it’s not only ethical but necessary—a less invasive and far more constructive alternative to incarceration.” - Individual

“Ethnographic research into electronic monitoring in Scotland (Casey, 2023) supports findings from UK and international research in suggesting that, while EM can support short-term compliance, it can also create problems for employment and family relationships. Employment needs (e.g. shift workers or contractors) may not readily fit the stable pattern required for EM monitored curfews, and the tag may be a source of stigma in the workplace. Families can be adversely affected by the extension of surveillance and criminal justice agencies in their own home, and escalating family tension due to the space restrictions.” - Scottish Centre for Crime and Justice Research (SCCJR)

“Electronic monitoring bail and bail supervision should be available as standard options in all sheriffdoms. Support must accompany monitoring to be effective.” - Sacro

Improve conditions for people on remand

Some respondents highlighted poor conditions in prison for people on remand and felt this should be addressed. Long remand periods, overcrowding, trauma and suicide risks caused by being placed in remand, and the lack of access to purposeful activities or support, were the main considerations noted. Other comments included:

• That prison rules act against those on remand, such as not being permitted to work or a shortage of work options, potentially leaving people without funds, which could have adverse consequences. One of these respondents also highlighted a lack of entitlement to a release payment for those on remand if they are released without being convicted.
• That in one prison, people on remand had been housed alongside convicted prisoners due to overcrowding, in violation of the Nelson Mandela rule that states remanded and convicted prisoners should be housed separately.
• Research soon to be published by His Majesty’s Inspectorate of Prisons Scotland (HMIPS) on the perceptions of those on remand, based on findings from their pre-inspection prisoner surveys which will highlight that people on remand report more negative experiences than convicted prisoners about their opportunities to access education, training and employment.

“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)

“Those without work or ‘outside’ funds supplied by friends or family will have no money for canteen purchases. According to CAB advisers, the result of lack of funds can lead to illegal money lending schemes within the prison, for example, prisoners being pressured to sell medication or become indebted to ‘well-known bullies’.” Parkhead Citizens Advice Bureau

“Those who are considered to present a risk of harm to the public and as a consequence are remanded need to have access to programmes, education, support and wellbeing services. They should also have the ability to engage in work within the establishment…Prison Rules should be amended to allow equal opportunities for remand as well as convicted prisoners. Encouragement will be appropriate rather than compulsion.” - Aid & Abet

Improve bail and remand arrangements

Some respondents provided comments regarding the need to improve remand and bail arrangements, with the need for greater consistency across Scotland and improvements to bail supervision being the main considerations. Inconsistent provision highlighted by respondents included in areas such as social work availability; alternatives to remand; quality of reports; access to community supports (considered throughout this report); poor communication between services (see ‘Improve multi-agency working’ in Chapter 2: Overarching themes); and unexpected releases. Other issues highlighted included:

• A lack of clarity around expectations for people on bail.
• Vulnerabilities not consistently considered, or indeed counting against people.
• Restrictive bail conditions impacting people’s lives, for instance, their ability to undertake employment, or on relationships.
• The length of time being spent on bail, leading to people feeling ‘forgotten’ within the system.
• Current statutory provision of bail support does not include mentoring, coaching, holistic support or signposting to other services.
• Problems with bail supervision, such as:
• No clear or consistent process to request a review of a Bail Supervision Order in cases where certain conditions are no longer required and less intensive supervision is appropriate as progress is made.
• People being subject to standard bail arrangements despite recommendations made in assessments by justice social work for supervised bail.
• People are only assessed as suitable for bail supervision if an unmet need is identified, while others could also benefit from this.
• A lack of opportunities to assess for bail supervision as police are using ‘undertaking to appear’^[9] more frequently.

Recommendations for improvement included using a wider range of bail conditions to help avoid the use of remand, using the least restrictive bail conditions necessary, and investment in bail support and supervision. Investment could then facilitate supports such as mentoring, coaching, signposting to community services, and trauma informed approaches. These could be incorporated into the supervision role. Another respondent suggested considering including backdated supervised bail as counting towards the sentence served, as occurs with custodial and community sentences.

However, some also commented positively on recent developments impacting bail and remand. Supervised bail was perceived a useful way to reduce reoffending and the use of remand, that it was considered particularly effective with women and young people, when it involved monitoring a person’s drug abstinence, or when a trauma informed approach was adopted. It could also enable people to engage with social workers before a case concluded, so that, should they be convicted, it would allow for more effective sentencing. One membership/forum/professional organisation perceived inconsistencies in the availability of information to courts were improving.

“An accused vulnerable by reason of their mental health can also find themselves remanded. The EBA has recent experience of accused with a definable treatable mental illness being remanded to prison as no bed was available in a Psychiatric hospital. This is another example of the Justice System having to accommodate individuals where other services cannot.” - Edinburgh Bar Association

“Alternatives to remand should be consistently available across Scotland.” - Care Inspectorate

“Although under the Whole System Approach all children should have access to support before, during and after court appearances, there is still local variation in the use of bail. This may relate to a number of factors, including the confidence of sheriffs in the ability of local authorities and their partners to deliver comprehensive, robust packages of support throughout periods of bail. The quality of bail assessments offered to the court may also impact upon any decision to use or not use bail, alongside the natural variation commonplace amongst an independent judiciary.” - Children and Young People's Centre for Justice (University of Strathclyde)

“Current statutory provision of bail support does not include mentoring, coaching, holistic support or signposting to other services.” – Includem

Other issues

Several respondents raised the need to better protect and involve victims from people on bail, and some identified the need to address non-compliance, improve multi-agency working or address data/research gaps (see Chapter 2: Overarching themes). A few felt existing policy recommendations should be implemented (see Chapter 6: Implementation of recommendations) and that more awareness raising was required (see Chapter 2).