Bail and Release from Custody (Scotland) Bill passed

New laws to change how imprisonment is used in Scotland, while ensuring victims are at the heart of the justice system, have been passed by the Scottish Parliament.

The reforms will establish one new bail test and set into law the circumstances in which courts should remand someone in custody or grant them bail ahead of trial – or sentencing following a conviction. For the first time, courts will be required to specifically consider the physical and psychological safety of victims when making decisions on bail.

The Scottish Government’s Bail and Release from Custody (Scotland) Bill aims to ensure that, apart from in the most serious of cases where people pose a risk to public safety or the delivery of justice in a case, remand is a last resort for the court.

The legislation also seeks to improve the support provided to people leaving prison, helping them resettle back into their communities, reducing their risk of reoffending.

The Bill, once brought into force, establishes a new release planning duty so that planning starts at an earlier point during an individual’s time in custody. Ministers will also be required to develop national standards to ensure that support is consistent.

The legislation will also:

• allow the Scottish Government to collect more information on why remand is used;
• end scheduled release on a Friday or the day before a public holiday, so former prisoners are better able to access the support they need;
• allow victims to nominate a victim support organisation to receive information about the release of the prisoner in their case, or certain information about the treatment of the perpetrator where they are subject to a mental health order – to support a more trauma-informed approach for victims.

Cabinet Secretary for Justice and Home Affairs Angela Constance said: “These reforms recognise that remand will always be necessary in some cases – it plays a vital role in protecting the public and protecting the operation of the justice system.

“However, we know that short periods of imprisonment, including for remand, can be damaging and often disrupt the very things that help prevent reoffending, such as a person's family life, their health, employment opportunities and housing.

“This legislation delivers on our wider commitment that custody should be reserved for public protection and where someone poses a risk to delivery of justice in a case and that prison should not be used to address wider societal harms.

“By improving release planning, providing more consistent support and a safe transition back into the community, the reforms in this Bill can reduce the risk of reoffending, thereby helping to keep crime down and communities safe.”

Background

Part 1 of the Bill makes changes to the current law relating to bail in five main areas:

1. requiring justice social workers to be allowed to provide information to the court when it is making decisions about bail
2. providing a new single core bail test that the court must apply when making decisions about bail
3. requiring the court to record reasons for imposing remand
4. allowing time that individuals have been subject to electronically monitored bail conditions to be counted as time served against a custodial sentence
5. requiring the Scottish Government to publish data on bail and remand

Part 2 of the Bill makes changes to some prisoner release arrangements and the support provided to those returning to the community. These include:

• preventing prisoners from being released on Fridays or the day before public holidays (adding to the existing requirement that prisoners are not released on Saturdays, Sundays and public holidays) and Thursdays in some circumstances
• replacing home detention curfew for long-term prisoners with a new system that will allow them to be temporarily released to support their reintegration – subject to risk assessment and consultation with the independent Parole Board
• giving Scottish Ministers power to release certain prisoners early in emergency situations to protect the security and good order of prisons or the health, safety or welfare of all those working, visiting and detained in prison
• requiring certain public bodies (for example local authorities and health boards) to engage in release planning for prisoners
• requiring Scottish Ministers to produce minimum standards for throughcare support, provided to prisoners throughout their time in prison and during their transition back into the community