Bail supervision: national guidance

1. Introduction

This document provides revised guidance for the operation of bail supervision^[1], replacing guidance issued in January 2019. It is intended for use by local authority justice social work services and other key partners involved in bail supervision service delivery, such as third sector services. It may also be of use, for information purposes, for the Crown Office and Procurator Fiscal Service, defence agents, Police Scotland, and the judiciary.

This guidance applies to any person who is made subject to bail supervision, including those under the age of 18^[2].

The guidance sets out minimum standards and expectations which should be achievable for all services involved in the provision of bail supervision.

This guidance also addresses the interaction of bail supervision and electronic monitoring (EM) as part of bail where appropriate. Specific guidance on the operation of EM as part of bail is forthcoming, at which time both sets of guidance should be used accordingly.

1.1 What is bail supervision?

Bail supervision is a social work or third sector service that supports people to comply with the conditions of their bail. It is intended to provide a robust and credible alternative to remand in custody, whereby people accused or convicted of an offence (or offences) are assessed as requiring a level of supervision, monitoring, and support to adhere to bail conditions. Those who the court may decide would otherwise be held on remand pending trial or for reports after conviction can instead be released on bail on the condition that they meet with a bail supervisor (or nominated worker from a relevant agency) a specified number of times per week, subject to an assessment of suitability and compliance management. The overarching aim of bail supervision is therefore to reduce the use of remand by giving confidence to the court that people bailed in the community will be supported to comply with the conditions of bail, and that any non-compliance will be robustly managed.

Bail supervision involves the provision of information to the court (via an assessment of suitability and progress reporting) and a package of supervision and support to the person. This can include the provision of direct support, as well as signposting and assistance to access relevant support services, including accommodation, employability, drug and alcohol services, or mental health support. Access to appropriate support services whilst subject to bail supervision will be dependent on statutory and third sector services provided in local areas. As such, local collaboration between community justice partners will be critical. Information on local support arrangements should be integrated into local bail supervision and support services and Community Justice Outcomes Improvement Plans (CJOIPs).

Providing bail supervision services orientated to the needs of the person and the community can assist in ensuring that the use of bail is maximised whilst fully protecting the rights and safety of victims, and remand is only used where there is an appropriate and evidenced need to do so - for example, in the interests of public protection. It must be noted that the court makes the decision as to whether bail supervision will be granted.

1.1.1 Objectives of bail supervision

The overarching objective of bail supervision is to provide a credible alternative to remand available for courts to use in appropriate cases which aims to:

• Provide support to people in the community, which minimises disruption to families, employment, and housing; and
• Promote positive outcomes for people and their families (where appropriate), taking account of the needs and impact on others including victims, children, family, and community members, while supporting and monitoring compliance with bail conditions and the overall criminal court process.

1.1.2 Who is bail supervision for?

Assessments for bail supervision should be undertaken in each appropriate case; however, there are specific groups of people that may be given particular consideration. Please note that this does not constitute a 'priority' list and every appropriate case should be assessed as such:

• Those with a high level of need / complexity that would require support to manage standard bail, for example:
  • Women involved in the justice system^[3]
  • People with mental health difficulties
  • People with learning difficulties or disabilities
  • People with substance use issues
  • Children and young adults
  • People with caring responsibilities^[4]
• Those motivated to comply - people being assessed for bail supervision must be made aware of the expectations and state their motivation, willingness, and ability to comply.

1.2 Legislative basis

1.2.1 Bail

The relevant statutory provisions relating to bail are contained in Part III of the Criminal Procedure (Scotland) Act 1995 ('the 1995 Act'). This provides the overall legal framework within which the court makes decisions as to whether to grant bail to a person accused/convicted of an offence or to remand them in custody. There is a general presumption in favour of bail in all cases, subject to certain exceptions. The term 'bail supervision' is not set out in this legislation.

In making decisions whether to grant bail, the court must take account of grounds which are relevant for the question of bail. These are provided for in Section 23C of the 1995 Act.

In particular, section 23C provides that the following are grounds on which it may be determined that there is reason for refusing bail:

• Any substantial risk that if the person was granted bail they may:
  • abscond;
  • fail to appear in court as required;
  • commit further offences;
  • interfere with witnesses;
  • otherwise obstruct the course of justice;
• Any other substantial factor which appears to the court to justify keeping the person in custody.

In assessing these grounds, the court must have regard to all material considerations. Such considerations include (but are not limited to) the following:

• Nature and seriousness of the offence;
• Probable disposal of the case if convicted;
• Whether the person was subject to a bail order, other court order, on licence, or on a period of deferment of sentence when the alleged offences were committed;
• The character of the person, including:
  • previous convictions;
  • previous breach of bail or licence;
  • whether they are currently serving a sentence or have recently served a sentence;
  • associations and community ties of the person.

Section 23D of the 1995 Act sets out in solemn proceedings, where a person is accused of drug trafficking offence, a violent offence, sexual offence, or domestic abuse offence and has a previous conviction on indictment for such an offence, a person is to be granted bail only if there are exceptional circumstances justifying bail.

In determining a question of bail, section 23B of the 1995 Act provides that the court is to consider the extent to which the public interest could, if bail were granted, be safeguarded by the imposition of bail conditions (with the public interest including the interests of public safety).

Under the statutory provisions contained in Part III of the 1995 Act, when a person is released on bail, conditions are imposed. There is a list of standard bail conditions that are imposed in all cases at Section 24(5)^[5] of the Act. In addition, Section 24(4)(b) allows the court or Lord Advocate, in granting bail, to impose 'further conditions' considered necessary to ensure that standard bail conditions are observed. The court may decide to add bail supervision as one of these further conditions of bail in order to support compliance with the standard conditions.

1.2.2 Electronic monitoring as part of bail - legislation

Part 1 of the Management of Offenders (Scotland) Act 2019 (soon to be commenced) allows for electronic monitoring (EM) as part of bail. This legislation changes the way in which curfew restrictions as part of bail can be monitored – it does not change the underpinning bail legislation or the criteria for determining the suitability of the person for bail. This remains a decision for the court based on the information before it as outlined above.

Bail supervision may be imposed along with EM as part of bail if a court wishes to do so (EM as part of bail can also be imposed without bail supervision, and there is the option of a standalone bail order). Please see section 2.3 for further considerations in relation to EM as part of bail, and refer to the specific forthcoming 'EM as part of bail' guidance.

1.3 Principles of bail supervision

The following key principles for bail supervision are highlighted for the purposes of this guidance. These principles should reflect the practice and underpinning ethos of all of the services provided by justice social work and partners and are not intended to be an exhaustive list.

Integral to court social work services

Bail supervision is, and should be developed and promoted as, an integral part of social work services provided to the court. It should therefore be an option available to every court for use where deemed appropriate by the judiciary in a given case.

A credible and robust alternative to remand

The priority for justice social work services is to work closely with key partners to provide and operate a bail supervision service. The expectations of courts therefore need to be clearly understood by all parties, and operational arrangements should not unduly delay court procedures. There should be clear, consistent processes in relation to timely information-sharing between all parties involved in custody court processes, assessment, compliance, and monitoring. Justice social work services will submit a bail supervision assessment report to the court for consideration – this should also be shared with COPFS and defence agents via the court.

Accessible and visible

Justice social work services should provide sheriffs, the Procurator Fiscal, and defence agents with regular updates on the bail supervision services that have been made available in their area, including the supports offered and how people will be monitored. The approach taken to bail supervision services should reflect local priorities and should include services commissioned from third sector organisations where appropriate. Roles and responsibilities should be clearly delineated (please see section 2.2).

Individualised and responsive

The support offered as part of bail supervision should be individualised and person-centred, with no 'one size fits all' approach. Bail supervision management plans should be co-produced with the person, taking into account their family circumstances and any relevant supports and/or gaps in support.

The support offered as part of bail supervision should be flexible and responsive to the needs of people subject to bail supervision, whilst balancing any monitoring requirements, the rights and needs of victims and communities, and the necessity for robust compliance measures when appropriate. Responsivity^[6] considerations should be taken into account such as gender, age/developmental capabilities^[7], ethnicity, family or caring responsibilities, mental health needs, learning disability, communication and literacy needs, learning styles, and so on.

Relationship-based practice will be key – bail supervision staff should build relationships with people based on a person-centred, pro-social modelling approach, engendering trust, an open dialogue, and supporting any change processes.

Needs-led and outcome-focused

Whilst there is a focus on supervision, monitoring, and managing compliance, bail supervision should also be needs-based. The support provided should focus on the areas of need (as well as managing compliance) identified by the person in collaboration with the bail supervision worker – these may be dynamic and any support plan should be responsive to emerging needs, whilst balancing the rights and needs of victims.

Bail supervision should also focus on identifying and building upon the strengths^[8], capacity, and resilience of the person (and their networks, where appropriate), with a focus on achieving positive outcomes during the bail supervision period.

It should be noted that there should be no attempt by bail supervision staff or third sector providers to engage in offence-focused work relating to domestic abuse or sexual offending, either pre-trial or post-conviction.

It must also be noted in general that those subject to bail supervision may not have been convicted of an offence therefore any direct offence-focused work may not be appropriate.

Trauma-informed

The Scottish Government's Mental Health Strategy (2017-2027) acknowledges the need to ensure that interventions for people involved in the justice system are informed by an understanding of the impact of trauma.

The Scottish Government have produced the Trauma-informed practice: toolkit (2021) as part of the National Trauma Training Programme, to support all sectors of the workforce (including justice social work services) in planning and developing trauma-informed services. This helps ensure that services are delivered in ways that reduce barriers and prevent further harm or re-traumatisation for those who have experienced psychological trauma or adversity at any stage in their lives (both in terms of the needs of people accused or convicted of offences, and victims). This toolkit, along with NHS Education Scotland's Transforming Psychological Trauma framework^[9] (the 'Trauma-Informed Practice' level, p28) must be taken into account when developing and delivering bail supervision and considering staff training.

Please see Annex 2 for a summary of the principles of trauma-informed practice.

Partnership working

The provision of effective bail supervision will require strong partnership working^[10] between:

• The person subject to bail supervision
• The family of the person subject to bail supervision (with consent from the person and where appropriate, noting that families may not wish to engage in the process or have any contact with the person)
• Justice social work services, including partnership working between local authorities where cases are heard in courts out with the local authority in which the person is ordinarily resident
• The bail supervisor (they may be based in either a justice social work team or a third sector service)
• Police Scotland
• Scottish Courts and Tribunals Service (SCTS)
• Crown Office and Procurator Fiscal Service (COPFS)
• The judiciary
• Defence agents
• Staff from statutory and third sector organisations that provide relevant support and services (e.g. housing, mental health, substance use, employability, victim support organisations^[11]).

As well as partnership working with the person subject to bail supervision, working with the third sector, health, housing, and other statutory and non-statutory partners as outlined above and where appropriate is integral to the delivery of bail supervision.

It may be, in some areas, that a third sector service provides bail supervision. Many justice social work services will already have strong links with local third sector organisations; however, local Community Justice Partnerships and Third Sector Interfaces should be able to help identify potential third sector delivery partners where this is not the case^[12]. Some local areas also have established networks of third sector services that could provide support for the person subject to bail supervision, and their family where relevant.

The provision of bail supervision should be directly informed by the Community Justice Outcomes Improvement Plan in local areas (or at least the anticipated direction of the plan). Members of the Community Justice Partnership (CJP) should be aware of the range of services available for bail supervision and support. This will ensure that CJPs are in a position to effectively plan and make provision to implement the necessary elements of bail supervision and support at local levels as this requires local strategic planning and operational delivery.

All relevant parties should be aware of bail supervision and bail support services. Engagement with, and buy-in from, the local judiciary will be imperative when setting up bail supervision and raising awareness in relation to existing services, as well as similar engagement with COPFS, Police Scotland, and defence agents where necessary.