Bail and release from custody arrangements: consultation analysis
Analysis of the responses received in relation to the public consultation on bail and release from custody arrangements in Scotland, which ran from 15 November 2021 to 7 February 2022.
Bail
The first part of the consultation explored issues related to bail and remand decisions in Scotland, and included 12 questions with specific proposals for reform linked to:
- the need to protect public safety being a required ground that must be present to justify refusal of bail;
- requiring the court to have particular regard to victim safety when making their bail decision;
- empowering the court to rely, in all cases, on the general grounds relevant in reaching the decision to the question of bail;
- where a court refuses bail, requiring the court not only to give, but also to record, explanations for that decision;
- improving the provision of information to inform decisions in relation to the question of bail including enhanced involvement by justice social work;
- before a decision to refuse bail is finalised, making it an explicit requirement for the court to consider the use of electronic monitoring as a means of the accused remaining in the community;
- a number of miscellaneous issues relating to the relationship between bail and electronic monitoring; and
- a number of miscellaneous issues affecting the bail decision process.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| I agree with the proposed change | 81 | 57% | 63% |
| I disagree with the proposal | 43 | 30% | 34% |
| I am unsure | 4 | 3% | 3% |
| No response | 14 | 10% | - |
Just under two thirds of respondents agreed with the proposal that judges should only refuse bail if there were public safety grounds for doing so. This was largely on the basis that they perceived it would help to reduce the numbers of people being held on remand in Scotland, which many perceived was currently (and historically) too high.
Among those who agreed (and were unsure) with the proposal, however, several expressed the need for greater clarification over the term 'public safety' which they perceived could be open to different interpretation unless clearly operationalised. Defining 'public safety in very clear terms was seen as particularly important for victims (and one organisation suggested that the proposal could be changed to make explicit reference to safety of victims). It was felt that some crimes may affect victims and the public more widely in different ways, and so safety would need to consider the likely trauma or response among victims/the public from some types of crime compared to others:
"Public safety is an elastic term: often there are very specific individuals putatively in need of protection when a bail/remand decision is to be made (not necessarily "the public" at large)." (Third Sector/Other)
"…'public safety' is not adequately defined in the consultation. Whilst there will be some common understanding of the term, clarification is required as to whether this includes, for example, psychological factors such as fear and alarm caused by an individual remaining in the community that will have a negative impact on a victim even if there is no tangible physical risk of harm. Trauma can be created simply by the victim knowing an alleged perpetrator has been granted bail." (Professional Body)
"There are significant implications on victims' psychological as well as physical wellbeing when an accused person is bailed, including but not limited to fear of safety, threat of repeat victimisation, and emotional stress." (Advocacy/support organisation (Victims))
Domestic abuse in particular was seen as an offence which may not pose a risk to the general public, but which may require remand in the interests of specific victims (with coercive control being cited as something which may not be classified as a 'public safety' concern but which nonetheless could be hugely damaging to victims). In contrast, some people who are regularly accused of lower level offences may not pose a public safety risk but may still cause significant community disruption, distress or fear which might be better managed by the accused being held on remand (especially to prevent offence escalation):
"Recidivist offenders may not pose a significant risk to public safety however often if not remanded, particularly when they have numerous outstanding matters before the court, they will go on to commit multiple further offences." (Individual)
Clarification was also suggested around the interplay between 'public interests' and 'public safety', with the former being a broader concept already set out in the legislation and which may still allow undue use of remand unless clarified further. The way that 'risk' would be assessed and interplay with public safety would also need to be clearly explained and understood so as to be consistently applied.
Other factors (in addition to public safety) that respondents perceived should be considered when assessing risk included whether the accused had a recent history of repeat serious violence, previous and current evidence of witness intimidation and identifiable ongoing risk of violence to any group or individual. Remand on public safety grounds may be appropriate, it was suggested, for those with a long history of offences or recidivist offenders, for example, who may not be dangerous to the public, but who commit crime causing fear and alarm to their victims. Comprehensive evidence based and proportionate risk assessments were therefore encouraged to ensure a more standardised form of defensible decision-making in respect of the use of remand.
Several respondents also felt that people who have been assessed as low risk in particular should be bailed, with remand used only for people accused of the most serious or dangerous offences. A small number of respondents expressed that they felt that women and children/young people would rarely fit the profile of the 'most dangerous' individuals and so the proposal was particularly welcomed for this group as well as other 'vulnerable' groups (including accused with addictions and physical and mental health concerns, as well as those with no fixed abode).
Among supporters of this proposal, the cost of imprisonment (both financial and personal) was also frequently cited - several argued that the disruptive nature of imprisonment (including negative impacts on tenancy, employment, health (physical and mental), social security benefits, family relationships, etc.) meant that public safety concerns would need to be quite significant to warrant the disruption caused to the accused individual and their families:
"We recognise that periods in custody impacts on individual's support systems, their income/employment, housing and mental health. In order to reduce the risk of re-offending having as much stability as possible is vitally important. Therefore, unless there is an identifiable individual or group at risk, remand should be avoided." (Local authority/justice partnership)
Several respondents stressed that they viewed community interventions and community support as being more appropriate than the use of remand for those who do not pose a risk/significant risk to the public, with suggestions that there needed to be greater public awareness raising of the credibility of community options as an alternative to remand. Indeed, some argued that the link between imprisonment and 'public safety' may be false and that community interventions may in fact provide a 'safer' option than remand:
"The conflation of imprisonment with community safety, both in popular discourse and among the general public, is problematic…alternatives focus more on prevention, integration and restoration and aim to keep communities safer than custody currently does." (Advocacy/support organisation (prisoners, accused, released))
Such measures would, however, need to be properly resourced to provide the required confidence in their effectiveness:
"This change to policy will need to be resourced in terms of current bail support services and other third sector alternatives. This change in policy should also be looked on as an opportunity to link people into correct services e.g. addiction and mental health. Wherever possible, a holistic, wrap-around, whole-systems approach should be used to support the person on bail and reduce the likelihood of re-offending." (Third Sector/Other)
Others noted that this proposed change would not be sufficient in isolation and would require corresponding changes, including changes to Section 23C(1)(d): "any other substantial factor which appears to the court to justify keeping the person in custody." This ground was seen as inconsistent with a modern, evidence-led, objective and progressive model where bail is the default position. Indeed, several commented on the importance of presumption of innocence and the unsuitability of removing someone's liberty until/unless found guilty:
"Whilst everyone agrees that there are instances in which it is necessary to make use of remand, persons who are remanded because they are accused of a crime are innocent until proved guilty. Further, remand prisoners are human beings that have rights, including rights to equal treatment and to family life." (Third Sector/Other)
Several also commented on the fundamental human rights of the individual of being granted bail wherever possible.
Among those who disagreed with the proposal, the main view was that victim and/or witness safety should be paramount in decision making rather than safety of the general public alone. In contrast, a small number suggested that safety/protection for the accused may also sometimes warrant use of remand, especially if community support was lacking and a period of imprisonment may help them to stabilise. In such cases, public safety interests should not also need to be evidenced, they felt.
Another concern raised by a minority was that flexibility would be needed in the system to allow for those with repeated breaches of bail (and bail conditions) and/or repeated failure to appear or to comply with conditions of release to be remanded. This would be necessary to minimise costs to the public purse of pursuing those with no regard for orders of the court. It would also be necessary to mitigate against trauma experienced by victims from those who failed to adhere to court orders:
"There is a huge amount of time and resources spent trying to trace people to attend court. Court time, witness time and other expenses all get wasted when trying to trace an accused who has repeatedly failed to appear for court. There are other reasons other than public safety that impact on other people." (Individual)
"Those who pose no public risk but habitually fail to cooperate with the courts add considerable delay into the justice processes. These are often deliberate attempts to drag matters out for so long that witnesses either give up, or the Crown eventually throws in the towel. Whilst this may be in the accused's interests, it is not in the interests of complainers, victims, or witnesses, and it is certainly not in the public interest either." (Public Body)
A concern was also raised that there may be the potential for an increase in individuals failing to appear at court dates given there would be no prospect of custody as a consequence of non-attendance.
A view was also asserted that remand may sometimes be necessary as a means of maintaining public (and victim) trust in the justice system:
"While public safety should be the main reason for refusing bail, it should not be the only reason. In some cases it may be appropriate to refuse bail to maintain public confidence and the confidence of victims in the judicial process." (Local authority/justice partnership)
Comments were also made that, while reducing the remand population may be desirable, there was perhaps a false assumption that remand was being used inappropriately and, in fact, that high levels of remand may reflect the high levels of offending (including serious offending) that Scotland faces. This proposal may, therefore, be based on an unstable rationale:
"We are always reminded how the custody figures in Scotland are amongst the highest in Europe but we are not told how the offending, and serious offending rate similarly compares. We consider this to be regrettable as the totality of the picture on an issue of this significance should be provided to help inform decision making." (Public Body)
Other more general comments included that that Sheriffs/Judges were best placed to make such decisions, rather than blanket rules being applied and that decisions should always be politically impartial. Judicial independence and discretion was paramount, some felt.
Others again felt that the proposal would only work if increased/sufficient investment in alternative support and community interventions was made available. Several wished to see more clarity over what 'additional support' for accused in the community might look like if this change was made, to ensure safety of the perpetrator as well as the public. Others, who offered partial support, felt that release on bail would only be appropriate if the accused was not at risk themselves, i.e. of homelessness, physical or mental harm, exploitation or victimisation, etc. Support for persons held on remand may be better in some cases than those released on bail. While the ideal scenario would be for better provision of community support for those granted bail, it was noted that the better opportunities presented in prison for some may make remand a more supportive option in certain cases.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| I agree with the proposed change | 84 | 59% | 66% |
| I disagree with the proposal | 34 | 24% | 27% |
| I am unsure | 9 | 6% | 7% |
| No response | 15 | 11% | - |
Two thirds of respondents agreed that judges should have to have particular regard to the aim of protecting the victim(s) when making bail decisions. Many respondents who agreed with this proposal felt that it was a basic right or expectation for victims to feel safe when an accused was given bail. Consideration of victims was described as 'paramount', 'essential' and 'central', and having victim protection formally included as part of the judicial decision making process was therefore welcomed:
"The rights and needs and safety and protection of victims should be at the forefront of any decision made on bail." (Local authority/justice partnership)
This proposal was particularly welcomed for those accused of violent crimes and in cases of domestic abuse and gender-based violence, or where victims (especially women and children) may be highly vulnerable.
Having victim safety as a separate consideration was seen as congruent with a victim centred approach to justice and would also mitigate against some current concerns that the victim's voice is often lost in the justice process:
"Although current bail considerations include victim safety as part of public safety considerations, specific considerations of victim safety as an independent element may focus attention and ensure thorough consideration of elements in relation to victim safety in each case." (Local authority/justice partnership)
The proposal was also welcomed on the basis that it would bring greater transparency to the decision making process as well as assist victims, witnesses and the wider public to better understand judges' decisions. It may also improve public confidence in the criminal justice system, it was suggested:
"Whilst there is a competing balance to be struck in the rights of the alleged offender and victim, if we are to ensure everyone has the right to feel safe in their community, and especially victims, and the latter are to be put at the heart of justice, this is essential. It ensures transparency and holds judges accountable for their decisions and for considering the impact on the victim(s) and risk management planning - the safety of victims is of paramount importance." (Professional Body)
A small number of respondents again suggested that this proposal could be bolstered by the use of bail supervision and electronic monitoring to reassure victims that, in cases where victim risk is assessed but bail is still given, accused are being monitored to minimise risk of harm to others.
Several respondents indicated that it was essential that reliable and timely information was made available to Sheriffs/Judges to help inform such decisions and to reassure everyone that victims would be safe:
"It is imperative that the best information is brought before the Judge to ensure that the suitability for bail (including any risk to actual or potential victims and witnesses) is adequately assessed (by those best positioned to do so) and the narrative of this (including any specific risk considerations) is articulated in a way that is meaningful and accessible to the Judge." (Local authority/justice partnership)
There were some doubts about whether such information could/would be provided in sufficient time/at early stages of a court case. It was felt that information should include feedback from the victim(s) regarding their understanding and assessment of future risk, as well as information from the police, defence, Crown, social work and others, to allow a more accurate assessment of risk. Unless the court had access to comprehensive information around risk and vulnerability, this proposal may not be workable.
Some clarification was also sought around whether this proposal related only to the victim of the offence with which the accused was currently being charged, or future potential victims, as well as clarity around whether victim safety would take precedence over, or be secondary to, wider public safety. Questions were also asked around how the victim would be defined in cases of offences perpetrated against the wider public, or where the victim was not a readily identifiable individual. Similarly, one organisation highlighted that 'victims' may not be accurately defined as such pre-conviction, but would instead legally be 'complainers' (thus making this proposal inaccurate in its formulation).
A clear definition of risk and thresholds for risk would also need to be established, it was suggested, as well as being clear about whether risk of harm included physical and/or psychological harm to victims. Tensions may also exist between what the Crown may perceive as the necessary protection of the victim and what the victim may feel is necessary and proportionate, and this too would need to be considered in taking the proposal forward:
"We agree with the proposal to place a specific responsibility on the court for victim issues to be considered within the context of decision making in relation to bail. However, clarity is required as to the parameters of what is considered in relation to the 'safety' of victims and how this is determined." (Local authority/justice partnership)
Cases where this proposal may prove challenging included cases of familial offences (especially where perpetrators and victims live in the same household), as well as cases where there are secondary victims (including children impacted). It was suggested that it may also be pertinent in some cases to extend the proposal to include witnesses, especially vulnerable witnesses or those living in the same communities or known to the accused.
Among those who were unsure, this was largely because they felt that the notion of risk was subjective and may be hard to operationalise, potentially resulting in inconsistent practice and some individuals being bailed while others (in similar circumstances) are not.
Others were unsure or did not agree on the basis that they did not want the voice of victims to overwhelm or dominate the voice of the accused, especially young or vulnerable accused, i.e. "protecting victims is important, but so too is protecting those wrongly accused" (Individual). Victims' voices could also be very emotive, it was felt, and so it may be difficult for decisions to remain impartial and based on objective assessment of risk. It was also unclear in the consultation document how victim protection would be weighted alongside other factors which may inform bail decisions.
A small number (both who disagreed or were unsure) suggested that the proposal may be unnecessary as bail conditions can be (and often are) already imposed that restrict a person's contact with the victim or witness(es) in a case and/or other curfews and restrictions imposed - it was therefore unclear what additional considerations or changes were being proposed. Others simply stated that judicial independence was again key.
Only a very small number welcomed this proposal on the basis that it would likely result in harsher treatment of offenders by reducing the likelihood of bail, and a similarly small number disagreed with the proposal on the basis that it may be used to justify higher levels of remand:
"We do not feel that the proposed change is necessary, given that considerations surrounding victim safety and public protection already inform decision-making around bail, and its implementation may well be detrimental. The exaggerated zero-sum logic of this question, of accused versus victims, results in a punitive logic that helps legitimise each use of remand, which has culminated in Scotland's current punitive moment. The overuse of remand damages individuals, societies, families, and communities. Its use should always be a balance of safety and security of all parties." (Academic)
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 43 | 30% | 35% |
| Somewhat agree | 52 | 37% | 42% |
| Somewhat disagree | 16 | 11% | 13% |
| Strongly disagree | 12 | 9% | 10% |
| No response | 19 | 13% | - |
The majority of respondents agreed with the proposal that the court should be empowered to make decisions on the question of bail in all cases using a simplified legal framework. There was, however, relatively little qualitative feedback in response to this question compared to other parts of the consultation. Some of this may be attributed to the fact that the proposal appeared to be poorly understood. Indeed, several comments were made by those who agreed, disagreed or were unsure that there was insufficient information provided in the consultation paper regarding the 'simplified legal framework' being proposed. Others commented that the information that was provided was unduly complicated, not entirely accessible or clear. Some who provided support for the proposal therefore did so only on the proviso that more detail/explanation of the simplified framework was provided.
Among those who provided a substantive response (and who agreed with the proposal either strongly or somewhat), the simplified framework was mainly welcomed on the basis that it would engender better communication and understanding of court decisions for all parties, particularly in cases where bail is not granted. This was particularly important for accused and their families, it was felt, as they currently often do not understand the decisions made against them:
"Section 23C and 23D provides very basic information that can be used to support families [of accused] during this time…Providing information on when remand is more likely to be used helps families to plan for the significant change in circumstances of a family member being held on remand and no longer being in the family home." (Third Sector/Other)
Other perceived benefits (mentioned by just one or two respondents each) included that a simplified framework may speed up court proceedings, reduce arguments and case delays, lead to more transparent decision making, allow more flexibility for sentencers and allow for more consistent bail decision making across the board. Two respondents who offered marginal support did, however, question what the role of defence agents would be in a simplified framework.
Caveats cited by respondents included that any adjustments to the legal framework would need to be clear about considerations of the court in ensuring victim protection, as well as being careful not to oversimplify the impact of crime on victims. It would also need to be clear about the way that vulnerable accused (including children and young people) would be considered. It was also stressed that sufficient legal safeguards would need to be in place to ensure no diminution of rights. A final caveat was that wider awareness raising/public messaging would be required for people in Scotland to understand and support these changes.
Assuming that the proposals set out at Question 1 were implemented, many considered that Section 23D would become redundant, allowing the question of bail to be considered according to the proposed new principle of public safety in all types of case:
"…empowering the courts by removing this additional statutory provision would ensure independent decision making on a case-by-case basis." (Local authority/justice partnership)
Others agreed that it was appropriate that S23D was replaced by proportionate and evidence-based decision-making (rather than offence-specific decision-making) and hoped that this proposal would remove barriers to improve appropriate access to, and appropriate use of, bail. Indeed, one organisation posited that the trend in remand identified in the consultation may be, in part, a consequence of the presumption against bail where section 23D of the Criminal Procedure (Scotland) Act 1995 applies.
There was, however, some lack of clarity around if the offences currently covered by S23D would be considered by changes proposed in Question 1 and so corresponding uncertainty around whether there were certain offences that were so serious that simply using the same general grounds would be unacceptable. Again, more clarity on what additional measures would be included in the framework relating to consideration of bail in cases currently covered by S23D of the 1995 Act was needed to inform respondents' decisions about whether this section should be retained or removed.
Those who strongly disagreed typically indicated that they felt the current framework/system was robust and worked well (and did not need to be further simplified), and that the proposed changes would interfere with judicial independence. Specifically in relation to S23D, some expressed quite strong concerns about the possible removal of presumption in favour of remand for those accused of sexual violence or domestic abuse who already have convictions for similar crimes, and felt that the current provision worked well. There were also more general concerns that a 'simplified' legal framework may not be able to capture the complexity of the decisions that needed to be made.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| I agree with the proposed change | 96 | 68% | 76% |
| I disagree with the proposal | 25 | 18% | 20% |
| I am unsure | 5 | 3% | 4% |
| No response | 16 | 11% | - |
The majority of respondents agreed with the proposal that judges must give reasons when they decide to refuse bail to an accused person, both orally and in writing. The main reason for agreement was that it would help the accused (and other parties) better understand the decisions that were made. Several respondents agreed that verbal decisions may not always be taken on board or be properly heard/understood at the time they are delivered, and that giving both accused and victims an opportunity to read, review and reflect on decisions after the event (and especially when not in the court room environment) would be beneficial:
"Being held on remand can be a traumatic experience for those involved. Consequently, the accused may not always immediately comprehend or remember an oral explanation. Written confirmation would help to mitigate against this risk." (Individual)
The proposal was also seen as potentially benefitting families/supporters of accused in helping them to understand decisions:
"…if the written reasons for the remand decisions are able to be passed on to the family shortly after this would help keep families informed of the decision made about their loved one and help them to understand why they are being held on remand." (Local authority/justice partnership)
While written reasons may be of great assistance to victims if made available, one victim advocacy organisation suggested that this proposal could also go further to include written reasons when bail is granted, not only when it is not.
Several other perceived benefits of this proposal were cited, including that:
- it would lead to more transparency, openness and accountability in the system;
- having decisions clearly presented and recorded may help increase public confidence in the justice system;
- it may enhance the opportunity for appropriate support to be identified and directed to victims and accused soon after the point of decision;
- written evidence would be useful in the case of appeals against decisions; and
- providing an unambiguous account of decisions in writing would mitigate against different (and potentially inaccurate) recall by different parties (i.e. minimise supposition).
More general comments were made that this proposal was welcomed because it reflected a Human Rights Framework, which was key to a fair justice system:
"It is recognised as good practice, in accordance with the human right to a fair trial, for reasons to be given for judicial decisions in a form that is clear and comprehensible. In order to meet this requirement, decisions should be given both orally and in writing." (Third Sector/Other)
Additional comments included that it would need to be made very clear exactly what data require to be recorded and how, including timescales for producing written decisions. A standardised approach to recording decisions in writing was suggested and one which provided assurances that all safeguards in terms of fairness, data protection, judicial process, etc. were met. Robust processes must also be in place, it was felt, around data privacy, including clear guidelines on whether victims or families would be able to access this level of information.
Other respondents who welcomed the proposal stressed that the reasons should be recorded in clear, accessible language to make it easy for people to understand. This was seen as especially important for young and otherwise vulnerable accused, including those with learning difficulties, impaired communication, poor literacy skills and those who do not speak English as their first language:
"In the interests of transparency and equity, the provision of bail refusal reasons, both orally and in writing, will be likely to provide consistency of, and confidence in the shrieval decisions. Such reasons must be provided in clear, understandable language which can be easily understood by those upon whom the decision impacts." (Advocacy/support organisation (prisoners, accused, released))
A large number welcomed the proposal on the basis that it would provide useful evidence for future research, monitoring and evaluation, as well as future service planning and improvement purposes (acknowledging that data safeguards would need to be in place if made available for public/research use):
"…this would provide a richer and [more] accurate stream of data than is currently available in regard to bail decisions which has been identified as a gap for many years." (Advocacy/support organisation (prisoners, accused, released))
The main caveats to support were that communication should always take into account the safety of victims, particularly in domestic abuse cases (i.e. so that additional blame is not directed at victims) and that all personal data must be kept secure. One respondent suggested that there should be an option for defence solicitors to advise the court that written reasons are not necessary and oral reasons would suffice (although they did not specify why this would be beneficial).
Only a very small number of respondents were ambivalent and suggested that they could see no benefit to be gained from written reasons compared to verbal. A point was also raised that providing explanations to the accused of verbal reasoning was arguably a role for the defence agent, rather than Judges.
Those who disagreed did so mainly on the basis that verbal decisions were already recorded (in most cases) in written notes of court proceedings (and was already necessary in case of later appeals). Therefore, it was felt this would result in duplication of effort: i.e. the stating of reasons for granting or refusal of bail (orally, in court) is already a matter of law (Section 24(2)(A) of the 95 Act) so arguably no legislative change is required to effect this so long as court notes are reliable.
Other arguments against the proposal included that having judges give reasons in writing would be time consuming and may slow down the court process and cause more backlog/case delays (especially given the volume of cases heard in court each day which would be subject to this change) and that this process could be costly in terms of staff time and resources. Comments were also made that the current system already worked well.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| The court may ask for information from social work but is not obligated to. Social work may decide whether to provide it | 29 | 20% | 24% |
| The court must ask for information from social work. Social work may decide whether to provide it | 12 | 9% | 10% |
| The court must ask for information from social work. Social work must provide it | 81 | 57% | 66% |
| No response | 20 | 14% | - |
When a court is considering bail decisions in cases where the prosecution opposes bail, two thirds of respondents preferred the option that the court must ask for information from social work and that social work must provide it.
Among the qualitative feedback given, there was some duplication in themes presented by those who had answered the closed question differently, with similar justifications being forward for why the court 'may' and 'must' ask for information as well as similar justifications for why Social Work 'may' and 'must' provide it. The qualitative data could not, therefore, be neatly clustered.
Those who indicated that they preferred the option that information must be requested and must be provided typically commented that involvement from Social Work usually meant that more evidence-based, proportionate and appropriate decisions could be made and better outcomes achieved for all:
"By always having information on accused's background…this improves the understanding of the individual and what works best for them. It can help to find suitable alternatives to bail and what would help the accused." (Individual)
Social Work information provided in this way was seen as benefitting not only decisions regarding bail but would also provide critical insights into an individuals' unique personal circumstances which could inform necessary supports being put in place if bail is granted:
"The information from justice social work can help inform not just whether bail is granted, but the conditions upon which it is granted. It is imperative that conditions must be doable, make sense to the person who has to follow them and be properly communicated to the individual." (Advocacy/support organisation (prisoners, accused, released))
Social work reports could also help anticipate and identify considerations relating to experiences of remand which may have unintended consequences for the accused which the court may otherwise fail to anticipate, it was suggested.
Comments were made that this option would help to build consistency into the bail decision making process, with perceptions that the involvement of Criminal Justice Social Work (CJSW) in bail decisions was, at present, based on a "postcode lottery". If adopted, this proposal may also help to bring standardisation to the information that CJSW teams expect to be requested, rather than considerable existing differences in what Judges/Sheriffs require. It may also help to establish shared standards for what should be provided.
This model was supported in particular for children and young people (i.e. accused under 25) and those with issues relating to addiction, trauma, learning difficulties/disabilities, mental health issues, etc. to help ensure that decisions relating to bail were in their best interests.
This option was also supported on the basis that it could help to ensure that the views of families of the accused are considered in bail decisions (via communication with CJSW representatives).
Others who said that information must be provided if requested felt that this would need to be mandated in order for it to be fulfilled, and that Social Work may opt not to provide information if there was any room for discretion set out legislation (and may excuse or defend this on the basis of lack of time/resource). Comments were made that any discretion in application would defeat the intention of the provision.
In general terms, among those who preferred the option that the court may ask for information from social work but is not obligated to and social work may decide whether to provide it, the main reasons given linked to the need for flexibility and for all cases to be treated differently. Others welcomed that the court may request the information but was not required to do so, as they felt this would unduly delay the process of justice in some cases. A suggestion was made that existing reports rather than new reports would often suffice if asked for and that requesting 'new' information in all cases would also be unmanageable for Social Work services. There may also be cases where other factors may mean that remand was inevitable and so in such cases requesting Social Work information would seem irrelevant:
"Sometimes there are very obvious grounds for opposing bail where additional information from social work will not add anything. Asking for the Court to consult JSW in these cases seems an unnecessary complication for all parties." (Local authority/justice partnership)
"There will be plenty of cases where it is plain that bail is not appropriate and social work needs then not be consulted. Adding needless layers of mandatory bureaucracy is wholly unnecessary." (Individual)
Among those who supported the option that the court must ask for information from social work and social work may provide it, this was because sometimes the court may request information that was outwith the remit of CJSW or that the timescales for gathering and providing the information may be unreasonable, making a refusal to provide the information seem reasonable. A view was also offered that provision of information must be a decision left to Social Work based on the staff and resources available to them at any given point in time to be able to deliver what was required (whilst also maintaining services such as bail supervision, etc.) Others offered support for Social Work discretion on the basis that it would depend on what information was being sought (and that greater clarity was needed in the consultation on exactly what information would be sought from social work).
Other reasons for preferring a model where Social Work could refuse to provide information included that it may prevent some accused/service users from sharing important information with CJSW if they had concerns that the court could access any/all information held without restrictions:
"There may be barriers to service users sharing information with social work services if they understand court services would have unreserved access to this. Further consideration would need to be given to what information was requested and how we would resource such requests. Currently this would not be manageable with the current staffing compliment." (Local authority/justice partnership)
Other comments were made that it was right that Social Work services retained the discretion to decide when it may/may not be in the best interests of the individual or a case to share the information held (although this was a minority view).
Several provided more general comments at this question. In the interests of being case led, suggestions were made that the proposal should not be limited to Social Work only, and that the court should be able to request information from any source it believes to be relevant in assisting a decision, and that the person or institution should be obliged to provide it. This included information provided by Police Scotland and several suggested that third sector organisations in particular should be included as a potentially valuable source of information:
"…third sector providers that are working with the individuals concerned may be well placed to also provide up-to-date, credible information which could help to inform bail decisions." (Third Sector/Other)
Flexibility may be needed, it was suggested in how this proposal would apply where people appear from custody, and where a short extension of a temporary custody arrangement may allow for more reliable information to be gathered and presented to the Judge.
The main concerns raised in relation to this proposal (across different respondent types) were costs and time associated with generating the requested information and agreement that significant additional investment/resource would be needed to allow CJSW both to provide this function and to provide necessary training for CJSW staff to respond:
"…such a change to the current system will require a significant investment in Social Work resources to provide such services. This would be in respect of physically-located court teams, community-based activity, training, development work in processes and procedures, etc." (Local authority/justice partnership)
While some welcomed the recognition and support for additional funding within the consultation, robust information gathering, analysis and oversight were also seen as necessary to ensure that funding is sufficient to sustain efficient and effective services (including monitoring any negative impacts of this change on existing services such as Electronic Monitoring bail assessments, bail supervision, etc.) Comment was made around the time/resources involved in interviewing the accused to inform such reports, as well as conducting home visits, etc. This would be particularly problematic in Sheriffdoms serving remote communities, or large Sheriffdoms where travel, etc. may impact on resources required to collect the information required for reports.
Many respondents concurred that there may be challenges in always accessing the required information quickly enough in court proceedings to make this a viable proposal. If information could not be provided timeously, the proposal would fail:
"There is great value in seeking information from Social Work. While we support information being gathered, research has shown that it is very difficult to gather meaningful information in a short space of time. As the consultation focuses on remand decisions, the time available will be very short, in order to avoid people being held awaiting a remand decision for significant periods of time." (Advocacy/support organisation (prisoners, accused, released))
One way to mitigate against this would be for the Crown, in cases where they plan to oppose bail, to discuss the information required from social work ahead of the appearance at court:
"It might be an idea for cases where the [Procurators Fiscal] PF plan to oppose bail, to be discussed with social work in advance of the individual's appearance in court. That could prevent unnecessary delays." (Local authority/justice partnership)
"…an obligation on COPFS to inform Social Work of a decision to oppose bail in advance of any court hearing may allow for a more speedy production of relevant information to the court and reduce the need for continuations of hearings and any consequent unnecessary deprivation of liberty." (Local authority/justice partnership)
A slow and phased introduction of this change may also be necessary to ensure that resources could be built up over time to respond to any increase in demand for information.
Other caveats raised across the board included that consideration must be given to sourcing information without increasing risk to the victim, and there were also some suggestions that this proposal wrongly placed the needs of the accused ahead of those of the victim (i.e. administering justice in an accused-led way). Clear messaging around defence/Crown roles and responsibilities in relation to requests for information and the need to collaborate with criminal justice social work would also need to be provided, it was felt.
A small number of respondents said that they would like to see the option that a court may request information and in such cases social work must provide it and were unsure why this had not been offered as an alternative:
"In my view it would be better to for the court to have the option of asking for further information from Social Work only in cases in which it is deemed necessary. In such instances Social Work must provide what has been asked for." (Individual)
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| The court may ask for information from social work, but is not obligated to. Social work may decide whether to provide it | 55 | 39% | 48% |
| The court must ask for information from social work. Social work may decide whether to provide it | 13 | 9% | 11% |
| The court must ask for information from social work. Social work must provide it | 48 | 34% | 41% |
| No response | 26 | 18% | - |
When a court is considering bail decisions in cases where the prosecution is not opposing bail, there was less agreement among respondents around the preferred option. Almost half of respondents instead urged that flexibility should be included in such cases with both the court and social work having discretion to act (i.e. the court may ask for information from social work, but is not obligated to. Social work may decide whether to provide it).
The main reasons for this difference (compared to cases where bail was opposed) was that, if bail is not being opposed it was presumed that the risk to victims and the public would be low, and so the information may be superfluous (and thus the additional work associated with generating reports may be unwarranted):
"Where there is no identified threat to public safety from the granting of bail, and it is not therefore opposed by the prosecution, there will be no need, in most circumstances, to add to the work of the court and of justice social work by requesting further information." (Third Sector/Other)
Only if the court was actively considering remand should this be considered, some felt. Others suggested it may also be useful for the court to request information in specific types of cases, including domestic abuse cases and contact sexual offences, or where there were concerns for the accused or others.
Suggestions were also made that requesting reports in cases where bail is not opposed may assist if the Judge is considering the imposition of further conditions to support compliance with bail conditions (and in such cases, a request may be made which social work should fulfil in the interests of appropriate support/supervision measures being put in place for the accused):
"Where the Judge is considering the imposition of further conditions, it is critical that those personal circumstances, etc. of the individual appearing before them - as compiled by social work - detail any vulnerability or complexity and, particularly, on the nature of support the person would require in the community….This amended proposal would ensure that in such circumstances, the Judge is afforded the opportunity to make a more informed decision when granting bail (with whatever conditions they deem necessary) which would ensure that people, where appropriate and necessary, are afforded the support they need." (Local authority/justice partnership)
Others indicated that where bail is not opposed by the Crown, they would like to see greater flexibility afforded to the courts and to social work based more on the perceived risks/vulnerabilities of the accused - where risk and support needs were low, reports would not be needed and may be a waste of time and resources (and decisions about risk, time and resources would be best determined by the judge on a case-by-case basis).
Some who supported this more flexible approach also commented that mandating the request and provision of reports in cases where bail was not opposed may undermine the presumption of innocence and be an unwelcome intrusion into the life of an accused.
Where respondents agreed with the option that the court must ask for information from social work and that social work may decide whether to provide it, this was largely because it was perceived that social work may hold information that would bring into question the prosecution position of not opposing bail. They, therefore, would be best placed to determine if disclosure was appropriate and relevant.
For those who indicated that the court must ask for information and that social work must provide it, the same reasons were given as those for cases where bail was opposed, i.e. that it was always preferable to consider all information which helps see the accused in the context of their social circumstances, including risk and needs and the provision of support to address the issues underpinning their offending. Others again mentioned that this option would maximise fairness, consistency and transparency in the decision making process and make the process more individualised. This approach would also mitigate against cases where the prosecution had 'missed' or not been given crucial information relevant to the case which may have otherwise changed their position regarding bail.
Again, many who answered this question gave the same caveats shared in response to Question 5a, i.e. that more clarity was needed on the type of information that would be sought and reassurances offered that additional funding would be provided to social work to allow this proposal to be implemented. Concerns were again raised that additional time would need to be built into court cases for any option as it would be difficult for social work to gather meaningful information in a short space of time. Flexibility to provide pre-written/existing reports instead of generating 'new' reports was again encouraged as well as the gathering of information from third sector organisations and others to inform decisions, rather than social work alone.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 68 | 48% | 55% |
| Somewhat agree | 30 | 21% | 24% |
| Somewhat disagree | 14 | 10% | 11% |
| Strongly disagree | 13 | 9% | 10% |
| No response | 17 | 12% | - |
Around three quarters of respondents who answered this question agreed (either 'strongly' or 'somewhat') with the proposal that courts should be required to consider Electronic Monitoring (EM) before deciding to refuse bail. Among those who 'strongly agreed' the main reasons given for support were that EM used in appropriate cases could provide a credible and cost-effective alternative to custodial remand, potentially nullifying the negative impacts of remand to an individual and their family:
"We strongly support this proposal for electronic monitoring where it is assessed as safe and proportionate to do so. This would limit the negative impacts on positive and protective factors in the alleged offender's life such as family and work whilst ensuring victim and community safety." (Local authority/justice partnership)
EM was particularly welcomed for young accused as a way of protecting the public whilst also supporting them to address their behaviour and wider needs:
"All opportunities for someone to remain in the community must be considered and evidence provided as to why this would not be suitable, to ensure arrival at remand is the only option and clarity as to why. Specifically articulating the consideration of EM within this decision-making and why not suitable or why suitable would be welcomed. This ensures it does not become a 'tick-box' exercise and is fully considered." (Advocacy/support organisation (Children and Young People))
EM was seen as providing accused with an opportunity to demonstrate compliance with court orders/bail conditions as well as offering reassurances to judicial decision makers. It was also seen as an asset in higher tariff cases where ordinarily bail would be refused. Others simply stressed that all alternatives to remand should be considered, with remand being the last resort.
Caveats outlined by those offering marginal agreement included that EM conditions would need to be sufficiently flexible to accommodate people's often challenging lifestyles/circumstances, and that suitable solutions would need to be found to allow those with no fixed abode to also be considered for EM.
For female accused, there was a suggestion that the court would also need to take into account the impact of EM in relation to stigma, impact on family life and the potential for women to be electronically monitored and restricted to an address where they are at risk from a partner. Some more general concerns around human rights and use of EM to ensure that it used only to capture necessary data were also raised. Potential negative impacts of EM on family members of the accused would also need to be considered if its use was to increase. In addition, consideration to victim and witness safeguarding would need to be clearly evidenced in all cases of use, it was felt, and the proposal may also need to be accompanied by clear public messaging to increase public confidence in the credibility of EM. Several also commented that GPS tracking (rather than relying only on Radio Frequency (RF) EM) should be implemented at the earliest opportunity as this would also bolster confidence in its effectiveness.
Many respondents also highlighted that they perceived EM was only effective if supported by robust supervision as the technology itself may not change behaviour or guarantee compliance, and was also likely not to address wider criminogenic or personal needs:
"EM however should be used in the context of a package of support in conjunction with other measures to assist compliance and desistance. EM used as a stand-alone measure is likely to be ineffective." (Local authority/justice partnership)
Additional staff and other resources would be required to put this support in place, it was stressed, if the proposal was implemented. This would include time and resources for social work staff and others involved in drawing up the necessary paperwork to support decisions on EM and its use. Plans would also need to be put in place to ensure that EM was consistently available to all accused (including those living in rural and remote areas) so that this proposal was fair to all. Others stressed that while they supported this proposal, EM should still be considered as only one option from the full suite of possibilities open to the court:
"We would encourage that all alternatives to custody are fully considered by the courts and not just electronic monitoring. Again, as alternatives to custody take time and resources, it will need properly funded to be successful." (Third Sector/Other)
Support for the proposal was also contingent on explanations being given to those made subject to EM (or refused) about the reasoning for such decisions, as well as clear information being given about the consequences of breach. Others supported this proposal only if it did not mean that those previously unlikely to receive EM bail would now do so (to removed risks of 'net-widening' where EM is added more regularly to bail where its use is not clearly justified and necessary).
Among those who 'somewhat disagreed' the main reason was that all cases should be dealt with on a case-by-case basis with due regard to risk and public safety. If bail was being refused, it was likely that there was a safety reason for doing so and, therefore, EM would likely be inappropriate. Similarly, there was concern that assessing suitability for EM could take time to ensure that safety of victims and the public were fully considered.
Those who 'strongly disagreed' mainly did so on the basis that the effectiveness of Electronic Monitoring was not sufficiently well evidenced. Some perceived that it did not reduce or prevent re-offending and others indicated that it may have negative impacts on accused. Again, those who strongly disagreed also suggested that EM was expensive and labour intensive to manage and oversee.
Other reasons for not supporting this proposal included perceptions that it was too offender-focused rather than victim focused, and that it was not always effective at preventing witness and evidence interference:
"We also know that perpetrators take on more sophisticated methods of contacting their victims e.g. through social media, mobile contact, etc. which falls outside of what Electronic Monitoring records." (Advocacy/support organisation (victims))
One respondent suggested that bail was currently only refused after consideration of all other options (including EM) and so this proposal in itself was not 'new'.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 79 | 56% | 62% |
| Somewhat agree | 30 | 21% | 24% |
| Somewhat disagree | 5 | 3% | 4% |
| Strongly disagree | 13 | 9% | 10% |
| No response | 15 | 11% | - |
There was considerable agreement with the proposal that, when a court decides to refuse bail, they should have to record the reason they felt EM was not adequate. Many reiterated comments made in response to previous questions that there should be accountability, openness and transparency in all bail and remand decision making, not only in relation to EM decisions.
Suggestions were made that, in order for this proposal to be workable and reliable, a set criteria and framework should be developed to allow consistency across all Sheriffdoms around the use of EM, that explanations should be given both verbally and in writing, and should be presented in an accessible way. Clarifying what was meant by 'not adequate' (as opposed to 'not appropriate') was seen as particularly important to avoid any room for different interpretation. Clarity was also sought around whether decisions linked to 'adequacy' would also be person-centred (rather than being based on availability/quality/capacity of EM).
Again, having reasons recorded may help with concurrent decisions around wider support needed for victims or the accused and may allow these to be responded to more effectively. It would also help with appeals, monitoring, evaluation, research and service planning in relation to EM provision and its effectiveness, it was felt.
As with responses to earlier questions, some also agreed on the basis that a decision in writing may allow all parties an opportunity to reflect on, and understand, a decision rather than in the often stressful environment of a court hearing where things may be misunderstood.
Caveats included that records of decisions in one case should not be used in subsequent cases for the same accused, i.e. an assessment should relate only to the case at hand, and this should only be implemented if it did not unduly delay the progress of a case through court.
Those who disagreed felt that Judges should not be continually questioned, as it was their job to independently 'judge' and as such they should be trusted to use their discretion. A small minority disagreed because they did not support EM per se.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 59 | 42% | 47% |
| Somewhat agree | 23 | 16% | 18% |
| Somewhat disagree | 11 | 8% | 9% |
| Strongly disagree | 33 | 23% | 26% |
| No response | 16 | 11% | - |
Proposals were set out that time spent on bail with electronic monitoring could be taken into account at sentencing. While most agreed with this proposal (either 'strongly' or 'somewhat'), a larger proportion 'strongly disagreed', compared to earlier proposals.
Those who agreed felt that EM was still a restriction of liberty and as such should definitely be counted, in the same way that time spent on remand would be taken into account, so as to bring parity:
"…any time already spent with a reduction of liberty should be taken into account at the point of sentencing. In the same way that time spent in custody on remand is taken off a custodial sentence, time spent on bail with Electronic Monitoring should also be taken into account." (Local authority/justice partnership)
"Any activity compelling people to comply with certain requirements before being convicted should be taken into account at sentencing. This would support a consistent approach since time spent on remand is taken into account during sentencing. Taking those factors into account may also incentivise compliance." (Local authority/justice partnership)
"In the same way that time spent on remand is taken into account when a custodial sentence results from a case, it should naturally follow that a period of restriction on bail subjected to Electronic Monitoring should also be taken into account. Bearing in mind that even if granted bail with an EM order, an individual remains innocent until proven guilty, therefore having to spend a period on bail with an EM requirement must be viewed as having a punitive element and should not put an individual at a disadvantage in the event of a custodial disposal." (Advocacy/support organisation (prisoners, accused, released))
Several suggested that this proposal would work as an incentive for compliance, and several also viewed that compliance with electronic monitoring during the bail period bail could provide evidence of an individual's likely engagement with community based sentencing. A caution was given, however, that if a community sentence was given, it should not be shortened so much as to become ineffective at addressing criminogenic need:
"…consideration would need to be given to the length of community-based sentences that may subsequently be made to ensure that meaningful, relationship based interventions can take place and that there is sufficient time to complete programme work to address issues and reduce risk to prevent the pitfalls of short-term custodial sentences being repeated with community sentences." (Professional Body)
Others welcomed this proposal specifically because it would bring comparability with other jurisdictions, which they felt was important in the interests of fairness. One organisation suggested, however, that 'regard to' EM rather than the 'requirement to' may be more appropriate in Scotland, and be more consistent with other legislative provisions:
"[Organisation's] view is that the legislation should simply require the court to "have regard to" time spent on bail with electronic monitoring, rather than (as in England) requiring the court to apply a specified arithmetical formula to its assessment. This would preserve the discretion of the sentencing court. It also recognises that quantifying the impact of a period spent on bail with electronic monitoring can be complex, and gives the court flexibility in doing so. And it would be consistent with the terms of section 210 of the Criminal Procedure (Scotland) Act 1995, which require courts to "have regard to" time spent in custody awaiting sentence if imposing a sentence of imprisonment or detention." (Public Body)
Those who offered less stringent support felt that flexibility was perhaps needed with this proposal so that reductions could be applied if the accused had shown good compliance and progress whilst on EM (e.g towards stabilising employment, housing, relationships, address substance misuse, no further offending, etc.) and that reductions may also be relevant for low level offences which attract shorter sentences. Those who receive longer sentences for more serious offences (including violent crimes) should not, however, be afforded the same flexibility, it was felt. Respondents also suggested that the exact nature of EM and level of restriction imposed during the EM period should feature in the decisions:
"…we believe each case will require to be carefully considered on its merits taking into account the particular circumstances and the impact on the accused's liberty and freedoms. For example, electronic monitoring which includes curfew conditions might be considered more impactful on those which exclude someone from a particular geographic area i.e. a 'stay away' alarm with no restrictive curfew element." (Public Body)
Clarity was required around what might constitute 'exceptional circumstances' for this proposal. Some also felt that more thought needed to be given to how much reduction in sentence would be fair for time spent on EM, with concerns that these calculations would be complex and difficult to apply in a consistent way (with no straightforward formula). Not counting time spent on EM could also impact on statutory and voluntary throughcare decisions, it was suggested, and this had perhaps not been well thought out.
Those who disagreed (both 'somewhat' or 'strongly') mainly did so on the basis that EM was only a partial removal of liberty and thus not comparable with time spent in prison. This could be viewed very negatively by victims and members of the public for whom EM bail may not be considered a 'punishment', it was suggested:
"Electronic monitoring is to try to keep them from committing more crime, it is not a punishment or a way of restorative justice." (Individual)
"Bail still allows the person to live their life, potentially with a few restrictions, but effectively they are 'free' while the victim still battles on. Only time served on remand should be taken into account." (Individual)
"We are unclear what the perception/impact on victims of an offence would be in these circumstances and think that there would need to be some way of ensuring they understand the sentencing decisions." (Public Body)
Others felt that EM bail should not be treated differently from any other form of bail (e.g. curfew without EM where similar reductions were not applied), and that considerations made on time spent 'pre-sentence' and 'post-sentence' should be kept separate.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 78 | 55% | 63% |
| Somewhat agree | 22 | 16% | 18% |
| Somewhat disagree | 6 | 4% | 5% |
| Strongly disagree | 17 | 12% | 14% |
| No response | 19 | 13% | - |
Most respondents agreed with the proposal that, if time spent on electronic monitoring was to be taken into account at sentencing, legislation should be drawn up to ensure it is applied consistently. This was because 'consistency' was seen as essential to ensure equity for accused and to build public confidence in the justice system.
Others who supported the idea did caution that legislation of this nature may take time to be implemented and, as such, urged more immediate action to address consistency in practice, including guidance. Even longer-term, some who agreed and some who disagreed suggested that guidance (rather than legislation) may suffice.
Those who disagreed, again, stressed the importance of judicial independence and stated that legislation in this regard was futile as safeguards for consistency already existed through the Appeal Courts and Scottish Sentencing Council. Section 23C(2)(a) of the Criminal Procedure (Scotland) Act 1995 may also apply. Others (both who agreed and disagreed) felt that legislation in itself would not guarantee consistency and that all cases should always be dealt with on a case-by-case basis.
Q10: Based on the information above, please use this space if you would like to make any comments about the idea of a law in Scotland that would prevent courts from remanding someone if there is no real prospect that they will go on to receive a custodial sentence in the proceedings.
A wide range of feedback was provided in response to this question, but the main emergent themes among those who supported such a law in Scotland appeared to be:
- support for never taking away someone's liberty unless absolutely necessary, and especially not where a custodial sentence was unlikely;
- the need for more creative and flexible community based alternatives for remand to support any such law;
- the need for consistency in the way that any such law is applied and measures in places to monitor consistency in the interests of all accused receiving equitable treatment;
- that decisions must always include a focus on likely reoffending and how best to break the cycle of offending (and that this would typically not be supported by use of remand):
- that such a law would minimise disruption and the considerable negative impacts of remand that has been evidenced in research over the years, and so should be supported;
- that such a law would be particularly helpful for addressing the criminogenic needs of women and children/young people; and
- a law which may reduce unnecessary use of remand could have widespread social and economic benefits (including keeping accused in employment, reducing prison costs and possibly reducing re-offending).
Those who did not support such a law generally expressed that:
- remand should always be an option where all alternatives have been exhausted;
- that remand (even for short periods) may, in some cases, have a preventative effect with regards to future offending and so should remain as an option;
- flexibility should always remain that allows the specifics of a case to be factored into decisions (including nature of the offence);
- latitude must remain for courts as opposed to strict statutory interpretation of factors that are not flexible enough to deal with human nature;
- policy aspirations should never interfere with judicial independence;
- that such a law would pre-empt decisions made in court (and that there can be many cases where the totality of evidence is not available at the initial stages of a case); and
- that a clear presumption against remand would be damaging to victim confidence.
Other more general comments were made about the necessity for many of the changes discussed to be written into legislation, with views that policy intentions might be achievable with the introduction of 'guidelines' (instead of a lengthy process of legislative change).
Others suggested that more reference to existing research and evidence may be needed before any such legislative change was drafted, and that engaging with people with lived experience of bail and remand would be valuable in assisting taking forward/redrafting many of the bail and EM proposals included in the consultation.
A minority also expressed very clear and strong views that they offered no support for the proposals linked to bail mainly because they perceived the current system already worked well:
"We agree that the use of bail and remand have to be carefully considered, not least as the difference between suspect and convicted criminal is, or ought to be, abundantly clear; we have seen no evidence to suggest the current approaches to bail and remand do not currently receive this careful consideration." (Professional Body)
What was clear in responses to this question, however, was support that all decisions must be carefully balanced considering the risk of harm for victims, witnesses, accused and the public.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 58 | 41% | 46% |
| Somewhat agree | 18 | 13% | 14% |
| Somewhat disagree | 18 | 13% | 14% |
| Strongly disagree | 32 | 22% | 26% |
| No response | 16 | 11% | - |
There was less consensus among respondents for this question compared to earlier questions in the consultation. While many respondents believed it was vital for legislation to explicitly require courts to take someone's age into account when deciding whether to grant bail, a reasonable number considered that legislation was not necessary as current guidance and court judgement was sufficient.
Many respondents believed that no-one under 18 should be refused bail except in exceptional circumstances. Custodial experiences were considered particularly traumatising for children and young people, with bad behaviour being normalised, and heightened risk of suicide. If essential, remand should be in line with UNCRC, requiring a placement in a secure unit, ideally in close proximity to the young person's support network, it was felt. If restriction of liberty was deemed necessary, this should be done in as safe an environment as possible, for the minimum possible duration, prioritising a young person's rights.
Bail (with electronic monitoring if appropriate) was again considered particulalry effective for children and young people. Bail supervision for young people was also seen as key, as well as mentoring to assist with compliance.
Among those who disagreed with this proposal, comments were made that a person's age was immaterial and the nature of the crime and associated victimisation was a more important consideration:
"The safety of the victim should be at the forefront of consideration surrounding releasing a perpetrator/accused person on bail, rather than the age. It is imperative that there is equity within our justice system in that you should have access to the same level of support and information irrespective of the age of the perpetrator." (Advocacy/support organisation (victims))
It was repeatedly highlighted that all available relevant information, not only age, should be considered to inform sentencing and bail decisions, including:
- nature of crime/seriousness of offence/risk of harm/safety issues;
- likelihood of reoffending/offending pattern;
- supports in place and the capacity of these (e.g., social, community, external agencies, and partners);
- gender;
- caring responsibility;
- individual's attitudes, cognitive maturity, and developmental capacity, with recognition that experiences and contexts, can also delay or disrupt development;
- disruption and loss of opportunities related to employment/training courses/accommodation; and
- vulnerability/communication difficulties/trauma experiences/care-experienced individuals.
It was suggested that many of the victims of perpetrators under 25 may be in the same age category as the accused and, therefore, may be more adversely affected if the perpetrator was not remanded. It was argued that focusing a remand decision on someone's age may also potentially result in discrimination against other age groups and encourage criminal behaviour among children and young people:
"We are already plagued by youngsters thinking that the courts won't punish them because they are too young. This message needs to be reversed." (Individual)
Others raised concerns that younger people may be more likely to cause public harm, and therefore believed leniency related to age was inappropriate.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 83 | 58% | 65% |
| Somewhat agree | 18 | 13% | 14% |
| Somewhat disagree | 9 | 6% | 7% |
| Strongly disagree | 17 | 12% | 14% |
| No response | 15 | 11% | - |
The majority of respondents agreed either 'strongly' or 'somewhat' with the proposal that courts should be required to take any potential impact on children into account when deciding whether to grant bail to an accused person. Overall, there was consensus that children's welfare should always be prioritised, but that the balance must remain primarily on risk and the course of justice. Again, there was agreement that the gravity of crime, public safety, and previous offending should be the paramount considerations when decisions about bail are made. It was argued that, if other earlier proposals in the consultation were enacted, a high bar would be set, meaning that a person would only be deprived of their liberty if they presented a sufficient level of risk to the public. Impact on children should/would therefore have no bearing on the bail/remand decision.
Suggestions were made that situations should be recognised where bail refusal may be in the child's or the other parents' best interests (e.g., where domestic abuse is occurring). Several others expressed views that, as children suffer when a parent carries out a criminal act, it may be in the child's best interests to be removed and relocated to a place of safety.
Several respondents commented that there could be a lasting impact of parental imprisonment and, as a result, incarceration (particularly prior to conviction), was not believed to be conducive to breaking the cycle of crime 'within' families. Several respondents highlighted that having a parent in custody should be recognised as an Adverse Childhood Experience (ACE) which can have traumatic repercussions for young people. A range of potential impacts on children of remanded parents were highlighted, as listed below, and it was considered essential that these issues be addressed/compensated for by the system:
- child being accommodated in care of local authority with little preparation time;
- disruption to children's education;
- disruption to employment;
- financial burden (disruption to payment of rent and utilities/access to welfare benefits/a discharge grant is not provided following remand);
- disruption to relationships within the family;
- mental wellbeing; and
- community stigma.
Clarification was sought about what parameters would be considered in relation to the impact on a child if an adult in a significant caring role in their life is remanded.
Several respondents also raised concerns that a system prioritising child welfare could be open to abuse by offenders using children as pawns:
"This provides a get out of jail free card and does nothing to ensure the law is applied fairly across the board." (Individual)
Concern was raised about the potential lack of consistency in decision making related to those with and without caring responsibilities, with the specific question "if an individual does not have children does it mean they may be more likely to be remanded?" being posed. Further issues of discrimination were highlighted in relation to gender, and it was suggested that the current system values women more than men in relation to childcare. It was proposed that being a biological parent does not guarantee, and is not the same, as being involved and engaged in the caring for one's children. Similarly, it was highlighted that individuals who have caring responsibilities for a child may not be their biological parent (e.g., a sibling, aunt/uncle, or close family friend). It was also highlighted that the accused may have other unpaid caring responsibilities, for example adult children with disabilities or elderly parents with dementia.
It was emphasised that consistently assessing and applying determined impacts on children would be extremely challenging and require multi-agency involvement and collaboration:
"In the space of a 5-minute appearance how do you judge/assess that - highly unlikely to be achieved in the working court day." (Individual)
Clarification was sought on how young people will be provided with the opportunity to voice their views and for them to be represented to the court, rather than the reporting of impact being based solely on a professional's assessment. The criminal justice social work assessment and Child Rights and Wellbeing Impact Assessment (CRWIA) were considered useful risk-assessment tools.
Where bail was determined to be the best course of action, improved support was again considered crucial to help with planning for the future and to address issues with chaotic lifestyles. Suggestions for how this could be logistically managed included:
- consistent bail supervision input (e.g. meetings or home visits);
- social work advocacy workers being involved to ensure the children are in good health, attend school, have an opportunity to express their preferences/needs, and do not have their routine disrupted;
- planning for the event of a custodial sentence, collating information about the suitability of prospective carers (finances, age, and health), visitation plans, decisions to separate siblings; and
- exploration of the option of paid kinship care fostering as an alternative to placing children in institutions.
Suggestions were also made that, if a parent was to be refused bail, the judge should provide a written explanation of why the child(ren)'s welfare needs were insufficient to avoid a remand in custody.
Contact
Email: futureofcustody@gov.scot
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