Bail and Release from Custody (Scotland) Bill: children's rights and wellbeing impact assessment

5. How will the policy/measure give better or further effect to the implementation of the UNCRC in Scotland?

The provisions of the Bill are underpinned by a commitment to public safety and the protection of victims, and are intended to lead to a reduction in the future risk of reoffending, leading to fewer victims in the future and improved outcomes for individuals and their families.

Amending the framework within which courts make decisions about bail so that: the need to, with some limited exceptions, protect public safety is a required ground that must be present to justify refusal of bail, empowering the court to rely on the general grounds relevant in reaching the decision and making it an explicit requirement for the court to record the reason they consider the use of electronic monitoring as a means of the accused remaining in the community unsuitable in the case, will help support in general terms Article 37(b), accepting that decision-making in individual cases will remain with the court.

If more people are kept in the community to be supported while on bail, with additional supports and supervisions, than remanded in custody, this will apply to all individuals, including CYP appearing before the court. This will ensure that all accused individuals, including CYP are only remanded in custody “as a measure of last resort”.

Where a court refuses bail, requiring the court not only to give, but also to record, explanations for that decision and to improve the provision of information informing decisions in relation to the question of bail including, enhanced involvement by JSW will support Article 12. This will ensure that CYP are supported to be fully involved and understand the process.

Evidence has been provided during the public consultation that CYP in particular can have difficulties understanding the processes they are subjected to when prosecuted in court and struggle to remember or understand what has been said to them. Therefore requiring written reasons to be provided for the bail decision provides reasoning that can be explained to the CYP after their court appearance by supporting services.

Seeking further information from JSW may provide information about the types of supports and supervisions that would allow someone, including CYP, to remain in their community and ensure that bail conditions are reasonable and achievable. Evidence has been provided through the consultation that currently bail conditions for CYP may in certain cases be inappropriate as a means of keeping them within the community as they have less control over their own lives, for example housing, than adults.

The legislative changes proposed to release from custody arrangements are designed to give people, including CYP, the best possible chance of reintegration and dissidence from offending. This support will have a positive impact on CYP who are being released from prison custody or whose parents are being released from prison custody.