Bail supervision: national guidance

3. Assessing suitability and managing bail supervision

3.1 Assessment of suitability for bail supervision^[16]

3.1.1 Assessment process

• The person is arrested and charged by Police Scotland, and appears at court the next lawful day.
• Justice social work services will:
  • Receive the list of cases from COPFS where bail has been opposed, with the PF reference, CHS number, and index offence;
  • Access local information systems, the SCTS portal, and, where possible, contact any other agencies currently involved with the person for any relevant information relating to the person and their circumstances (Annex 1 outlines specific considerations when assessing children and young adults for bail supervision), including any information pertaining to public protection (including any adult support and protection concerns) and requirement for interpretation services;
  • Interview the person in the court or police cells, where information from COPFS indicates that bail has been opposed (In some areas this may take place via videolink or secure telephone from the police cell);
  • Submit a written report to the court for the person's appearance on that same day^[17], making a clear recommendation as to the suitability of bail supervision. The template at Annex 4 must be used for this purpose. The court will make the decision as to whether bail supervision will be granted.

There is one amalgamated template which should be used for both bail supervision and electronic monitoring of bail assessments for suitability (Annex 4). A PDF version of this Annex is available for ease of printing.

People made subject to bail supervision should be seen by the supervisor within 24 hours of release from custody unless an alternative arrangement has been agreed or must be made. The bail supervision assessment should contain details of the first supervision appointment which must be held within 24 hours of the individual's release.

3.1.2 Assessing suitability

Assessing suitability for bail supervision should be based on defensible decision-making and the assessment report (Annex 4) should clearly outline the factors that may render someone suitable or unsuitable. Staff should consult the following sources of information, where relevant, and outline these in the assessment report:

• Information on the index offence
• Previous convictions
• SCTS portal
• Local information systems and case file
• Previous reports, where available
• Interview with the person
• Family members, where relevant and appropriate
• Other professionals involved with the person, where relevant
• Domestic abuse advocacy services, where relevant and available^[18].

Based on the information available to bail supervision staff at the time and the short timescale involved, as a minimum standard, the written assessment of suitability for bail supervision (Annex 4) should include a review and assessment of the following areas^[19].

• Sources of information / basis of report and any limitations to the information
• Nature of the charges and any outstanding charges, including breaches of bail (and the circumstances surrounding this)
• Previous offending
• Suitability of accommodation
• Relationships, including any professional supports in place
• Health, including mental health
• Substance use
• Time commitments / responsibilities, including employment, education, caring responsibilities and so on
• Attitudes and motivation
• Compliance (likelihood of compliance with bail supervision and response to any current or previous periods of supervision
• Recommendation as to the suitability of bail supervision
• Provisional bail supervision management plan highlighting key areas.
• Views of victims, where available

The bail supervision worker should note the presence and relevance of these factors in relation to the person's suitability for bail supervision, or otherwise. A careful consideration of all factors will assist in the decision making process, which impacts significantly on both the people being assessed and victims of crime.

Special bail conditions may be under consideration which might require more detailed assessment, for example contact with domestic abuse advocacy services in cases involving domestic abuse. This could involve any condition deemed necessary by the court, such as a prohibition on contacting, or attempting to contact a specific person, or visiting a specific place.

Should the person be assessed as suitable for bail supervision, they should sign the 'Conditions of Bail Supervision' form to confirm they accept these and encourage buy-in (a pro-forma for this is included at the end of the bail assessment report template at Annex 4)^[20]. Please note that there is no penalty should they choose not to sign this; verbal consent to agreeing to comply with bail supervision will be sufficient. Where it is not possible to sign the form during the assessment process, this should be explained and signed at the first bail supervision appointment.

3.1.3 Cross-authority cooperation

• When a person is appearing at court in a certain local authority area but is ordinarily resident in a different local authority that provides a bail supervision service, bail supervision staff at court should contact the receiving authority to obtain pertinent information for the bail supervision suitability assessment. Single points of contact should be identified in each local authority in order to facilitate this.
• A desktop review of local case management systems and other relevant sources of information should be undertaken by the receiving authority, who will populate the bail supervision assessment report template with this information and return to the local authority from which the request came.
• Staff in the local authority in which the person is appearing in court should seek the consent of the person to comply with bail supervision, and – if they consent - submit the completed report to court.
• If granted, the person will then be subject to bail supervision in the local authority of their residence.

3.1.4 Assessment for EM as part of bail

In providing any advice or recommendations to the court in relation to EM as part of bail, it will be important for justice social work services to consider that EM can be used to manage specific conditions, such as 'away from' location curfews, or to provide a curfew to an address. If bail is to contain a curfew that is electronically monitored, this has the potential to be a restrictive obligation to place on a person for what may be a significant period of time. Where EM as part of bail and bail supervision occur together, it is recommended that any such advice to the court provides clarity on which each are offering in terms of structure, support, assurance and management of compliance, as well as clearly identifying how each element relates to adherence to the specific conditions of bail that may be set.

Please see the forthcoming EM as part of bail guidance for further information on assessing for EM as part of bail

3.2 Bail supervision management, support, progress reporting, and transitions

3.2.1 Bail supervision management plans

A brief initial plan should be outlined in the bail supervision assessment report (detailing the main areas of need, strengths, and any initial proposed actions), with the full management plan to be agreed by the bail supervision worker in conjunction with the person during the early stages of the supervision period.

The full management plan should flow from this initial assessment and will outline:

• the expectations of the court, including any special conditions;
• contact and attendance requirements during the bail supervision period;
• specific areas of identified need and how these will be addressed (e.g. tailored interventions; partnership working with relevant agencies);
• compliance expectations and actions that will be taken in the event of non-compliance, including any potential public protection concerns that may arise during the course of the supervision period (including any potential harm posed to the person subject to bail supervision, as well as concerns regarding potential harm to others).

A Bail Supervision Management Plan template is provided at Annex 5.^[21]

It will be important for the management plan to be co-produced with the person. Where available, services may wish to make additional use of the Justice Outcomes Star^[22] to co-produce the plan, ensuring strengths and areas of need^[23] are identified and addressed as well as ensuring how compliance will be managed is also recorded. The plan should be communicated in a way that is commensurate with the person's learning style or needs, and agreed and signed to ensure their buy-in and understanding of what will expected of them, and what they can expect. Producing and implementing the plan should take any responsivity issues into account (such as age, developmental capacity, gender, health, mental health, speech, language, and communication needs and so on).

3.2.2 Level and nature of contact, supervision, and support

Contact and supervision

• This should be clearly outlined in the plan - the number of bail supervision contacts per week should be based on the assessment of the person's circumstances and what other supports are in place.
• As a minimum standard for the first month, direct contact with the bail supervision worker (or another designated agency) via in-person appointments should take place a minimum of three times per week for the first month of the supervision period (with at least one home visit in the first month). Contact levels can then be reviewed following the first month, where appropriate – however a minimum of one face-to-face contact per week must always be maintained.
• Contacts for bail supervision can also include appointments with other relevant agencies working with the person as part of the bail supervision management plan, such as an addictions worker, mentoring staff, other justice staff, children and families worker, and so on. Where this is the case, this needs to be clearly noted within the plan, and bail supervision staff should ensure they monitor compliance and engagement by obtaining updates on attendance and progress. Support to attend appointments (i.e. bail supervision appointments or other relevant appointments) should be provided by bail supervision staff and other agencies wherever possible in order to encourage compliance and positive outcomes.
• Flexibility is required where the person is in full-time employment, education/training, has caring responsibilities, is a young person, or has mental health or other difficulties affecting their ability to comply. For those who are employed, in education, or have caring responsibilities, contact should be arranged out-with these times where possible. As above, once a pattern of reporting is established and there is positive progress, contact with the bail supervision worker or other designated professionals involved could be made by telephone or other secure remote means subject to available resources. However, one face-to-face appointment per week with either the bail supervision worker or a designated professional must be maintained.
• Home visits by the supervising officer are an integral part of bail supervision. Home visits can assist in gathering and verifying information during the supervision period and assist in progress reporting.
• A lone worker home visit risk assessment, in accordance with the service's local procedures, should be undertaken to ensure staff safety. This should be recorded and stored on local information systems and updated where necessary.
• Where it is safe to do so (based on the home visit risk assessment), one home visit must be undertaken within the first month of the bail supervision commencement date. The necessity for home visits following this must be discussed and agreed by the bail supervision worker and their line manager. Where the supervising officer considers that the frequency of home visits should be increased or decreased depending on the person's circumstances and stability, as stated, this should be discussed with a line manager and should be in line with the agreed Bail Supervision Management Plan. Home visits may be planned but can also be unannounced.
• Once a pattern of reporting is established, the bail supervisor is content that the person is complying with conditions, there is positive progress with the Bail Supervision Management Plan, and there are no outstanding concerns, some contacts could be made by telephone or other secure remote means (subject to line management agreement, available resources for both services and people on bail supervision, and speech, language, and communication needs).
• Consideration should be given to sharing information with the person's family (subject to their consent and where appropriate) on the nature of their bail supervision and other reporting requirements where this would serve to support the person's compliance and engagement.
• Where the person is residing in supported accommodation or temporary accommodation such as a hostel, where home visits may be difficult for practical reasons, bail supervision staff should review whether home visits are possible, liaise with relevant accommodation staff if not (to ensure the person remains resident there and to obtain any progress updates), and ensure the frequency of office visits and other relevant support agency contacts are maintained.
• Bail supervision arrangements should be aligned with any other supervision arrangements already in place and may be liable to reduction on extended periods of bail for solemn cases, subject to line management review and an agreed change to the management plan.

Support

• The nature of support offered during the supervision period will be tailored to the management plan agreed as part of the bail supervision. Where appropriate, this may also include signposting or referrals to, and/or facilitating engagement with, other agencies for guidance and support on issues such as housing, benefits, health, substance use, and so on.
• A bail supervision management plan should be dynamic and flexible to allow for further needs or issues that may emerge (or be sufficiently addressed) during the relationship-building and support period, which can be added to or removed from the plan. Any changes to the plan should be agreed by line management.
• Any potential specific areas of risk to victims, the public, and/or the person should be identified in the management plan, with clear contingency plans outlined. Partnership working with relevant agencies to highlight and address any risks should also be outlined.
• Along with bail supervision staff, examples of the types of services involved in supporting people to address areas of change in management plans could include:
  • Drug and alcohol services
  • Health
  • Mental health
  • Accommodation services
  • Employability, education, and training services.
• Where possible and appropriate, and where informal supports are not available, bail supervision workers (or other relevant agencies involved as part of the management plan) may accompany people to appointments such as court appearances or other key meetings, where they might otherwise struggle to attend (for example, due to age, mental health or cognitive difficulties).
• It must be noted that bail supervision periods will be time-limited and may be short-term in nature. Therefore any agreed actions or planned interventions must take this into account, with consideration given as to whether (and how) the actions, interventions, and outstanding needs can be continued or addressed beyond the bail supervision period. For example, referring to relevant agencies, and/or ensuring the management plan is communicated to key agencies and professionals (with consent).
• Should there be an alleged breach of a bail order, where possible (i.e. in circumstances where the person is not remanded in custody), the person's continued attendance at voluntary bail supervision appointments and meeting with other agencies, where relevant, should be encouraged in order to continue engagement with the areas in the management plan. Any engagement in such appointments should be reflected in the final report to the court and noted at any breach hearings.
• If the bail supervision is continued following the breach being dealt with by the court, the supervising officer must review and update the management plan no less than five working days following the person's breach of bail hearing to address any additional factors arising from the circumstances of the breach, where relevant.

3.2.3 Progress reports

Bail supervision progress reports are provided for the court when a person is attending court for their intermediate diet. They can also be submitted to the court if the person is charged with further offending. The aim is to provide the court with an update on the person's progress during the bail supervision period to date. A completion report would be submitted when the person is appearing for trial or deferred sentence, when the bail period ends.

Progress during the bail supervision period will be measured against the factors in the management plan (i.e. any changes identified) and set out in a progress report to the court (please see Annex 9 for the bail supervision progress report template to be used). Report authors should obtain information from any partner agencies working with the person to inform the report.

3.2.4 Change of bail address

Where a person wishes to, or must, change their bail address during the period of bail supervision, an application for bail review must (generally through a legal representative) be made to the court in terms of section 30 of the 1995 Act. The person should notify their bail supervision worker of their application to change address as soon as is practicably possible, and the worker should assess suitability of the new proposed address where possible. On receipt of the application, the court must intimate the application to the Procurator Fiscal (PF), and before determining the application, give the PF an opportunity to be heard. The court may grant the application without having heard the PF if they consent. Should a curfew condition be attached to the original bail address, an application to change this address can only be permitted with the prior agreement of the court – in such cases, a bail review should be sought by the person through their solicitor.

3.3 Compliance and breach

A consistent and equitable approach to compliance with bail supervision assists the person to understand that it operates within a clear framework of legally enforceable conditions in relation to bail, and maintains its credibility.

Justice social work services (bail supervision staff) have a responsibility to take reasonable steps to:

• support people to comply with any conditions as part of their bail supervision; and
• deal with any non-compliance issues swiftly and robustly.

All means of available technology should be used throughout the bail supervision period to ensure that compliance is encouraged and directed, particularly for groups such as children and young adults, or those experiencing mental health difficulties. The bail supervision officer may make use of a variety of means of doing so, for example:

• Regularly confirming house and/or mobile phone numbers and recording these on case files so that contact can be maintained by phone where necessary;
• Use of phone calls/texts to remind people of appointments, court appearances, and to instruct contact where there has been an agreed absence;
• Use of e-mails to people (where they have the technology to support this form of communication). This will require the person's permission. E-mails must be kept concise and not disclose personal information about the person.

3.3.1 Non-compliance and reporting of alleged breaches

A breach report should be submitted where there has been a breach of the agreed terms of bail supervision (subject to the warning system as outlined below, where appropriate).

Should a person fail to meet any other conditions of bail, whether standard conditions or any additional special conditions, the police should be notified.

Failure without reasonable excuse to comply with a condition of bail may be an offence under section 27(1)(b) of the 1995 Act and should be followed up as soon as the alleged breach comes to the bail supervisor's attention.

• Restrictions intended to prevent access to a victim/potential victim

In cases involving domestic abuse, stalking and other serious offences including sexual and/or violent offending, a breach of a bail condition which is intended to prevent access to victims should be acted upon immediately. In cases involving a serious concern for public safety (such as increased risk to a victim), immediate direct contact with Police Scotland will be warranted (such as a 999 call). The safety of any potential victim is paramount and the police must be made aware of such a breach as soon as possible in order to ensure appropriate victim safety considerations.

• Significant occurrences

An occurrence is regarded as 'significant' when it is deemed to compromise the safety of another person (including staff members), or where a condition of bail which was imposed for the purpose of preventing access to victims has been breached. A significant occurrence that constitutes a breach of a bail condition should always be responded to by promptly contacting Police Scotland. As above, in cases involving a serious concern for public safety (such as increased risk to a victim), immediate direct contact with Police Scotland will be warranted by telephoning 999. All reasonable additional measures should be taken in order to protect the safety of, and support for, a known victim such as contacting the police, as stated, or a victim support organisation^[24].

• Reporting

Any failure to comply with a condition of the bail order must be followed up as soon as the bail supervisor becomes aware of it by notifying Police Scotland.

Breaches not involving the commission of another offence, or harm / threat of harm to others i.e. consistent failure to attend for bail supervision, should be instigated by telephoning 101, explaining there has been a breach of bail then sending the template report for forwarding on to the investigating officer. As stated, should there be any indications of imminent risk to others, a 999 call should be made. The breach report using the template at Annex 10 should be submitted.

Third sector services commissioned by the local authority to provide bail supervision will report any alleged breaches to justice social work services as soon as the responsible bail supervisor in the third sector organisation becomes aware of the alleged breach^[25]. Justice social work will submit the breach report to Police Scotland, as per above.

The responsibility for reporting a breach of bail to COPFS will then be a matter for the police as the relevant reporting authority.

• Acceptable reasons for non-attendance

In circumstances not involving direct breach of a bail condition, the following reasons may be considered acceptable for a person's non-attendance at bail supervision appointments:

• an explanation provided in advance by the person and agreed with the supervisor, with an alternative date agreed in line with the management plan and contact levels;
• ill-health (the person can self-certificate for seven days, after which time they must obtain a medical certificate from a GP);
• unforeseen requirements placed on the person by an employer, which are considered reasonable;
• any unforeseen crisis arising from other responsibilities or circumstances.

Bail supervision staff and line managers must consider the circumstances of each case to determine the course of any follow-up actions.

3.3.2 Use of warnings

There is no legislative provision for bail supervision warnings; however, in circumstances where a breach of a bail condition has not occurred, warnings may offer the opportunity to review the bail supervision management plan without escalation to the police. Consideration should therefore be given to the use of warnings in appropriate cases to encourage continued engagement with bail supervision.

The use of warnings, where appropriate, supports the principles of bail supervision in that it allows a flexible, individualised, tailored approach which takes into account the particular complex needs and circumstances that those subject to bail supervision may have.

Certain aspects of the bail supervision management plan (such as non-attendance at a voluntary appointment with a support agency, or lateness) may not automatically result in breach procedures and may be dealt with by a warning. Non-engagement with these aspects of the plan should be explored with the person by the bail supervision worker and the plan adjusted where possible.

• All warnings must be put in writing to the person^[26] by recorded delivery and recorded in the case file and on local recording systems. Please see Annex 9 for an example warning template.

A breach report should always be submitted in the event of a person having already received two written warnings and failing to comply on a third occasion without an acceptable reason. Warnings should also be referred to in the final report that is sent to the court following the end of the bail supervision period.

Please see the flowchart at Annex 7 outlining the warnings process.

Please also see Annex 1 for compliance considerations when working with children and young adults subject to bail supervision.

3.3.3 Bail supervision non-engagement and compliance process

1. First non-engagement (e.g. not attending an appointment, without reasonable excuse) – first written warning issued.

2. Second non-engagement (without reasonable excuse) – final written warning issued.

3. Final non-engagement identified.

4. Telephone 101 and report to Police Scotland, and submit the breach report. This should be prepared as soon as the bail supervision service becomes aware. Please see Annex 10 for a bail supervision breach report and witness schedule template which should be used.

5. Police Scotland will endeavour to apprehend the person and bring them before the court, along with a report of the circumstances. Should the person be arrested the police will notify the bail supervision worker (as noted on the report template) by email or telephone.

6. If the police cannot trace the person within three days, a report outlining the circumstances will be submitted to the PF.

7. Once the report is submitted to the PF, they will consider the case on its own facts and circumstances and decide what action, if any, to take in the public interest.

8. If the PF decides not to initiate court proceedings, the person's bail supervision should continue.

9. If the PF decides to initiate court proceedings, the person will appear before the court to enter a plea of guilty or not guilty. If they plead not guilty, further court dates will be fixed and the court will consider the person's status – they may be admitted to bail or remanded in custody pending trial. If the person pleads guilty to the breach of bail, then the court may proceed to sentence them.

Once the matter is reported to the police, it will usually result in the arrest of the individual, a report to the PF, and their appearance from custody the next lawful day. The breach matter will not necessarily be dealt with by the court on first appearance from custody - this will depend on the plea and the decision of the court. Given bail supervision is aimed at those where bail is opposed, any breach reports may result in the court deciding to remand the accused, which will inevitably impact on bail supervision appointments. Where the person is not remanded, voluntary appointments should continue to be offered and support continued wherever possible.

3.4 Transitions from bail supervision

As outlined above, a comprehensive management plan tailored to areas of assessed need/risk should be undertaken for all people made subject to bail supervision, and addressed as far as possible during the supervision period utilising a partnership approach. When the bail supervision period comes to an end, for whatever reason, the person may have ongoing needs that require continued support Therefore, it will be important to pass on any ongoing concerns relating to specific victims or the community to relevant agencies. Where COPFS' Victims Information and Advice (VIA) service is involved, they will inform victims of the outcome of relevant cases.

3.4.1 Exiting the justice system

Where a person will have an ongoing need for support or other services beyond the bail supervision period, continuation of support must be ensured where possible by the bail supervision worker. This should involve signposting or referrals to relevant statutory and/or third sector services and, where appropriate, facilitating engagement with these services and supporting the person during the transition period as the bail supervision period ends. This will be especially important should the person be exiting the justice system with no further requirement for statutory involvement, particularly where they have additional support needs (for example, those aged 16-26).

3.4.2 Preparing a Criminal Justice Social Work Report (CJSWR)

Where a CJSWR is being prepared for the person, information on their circumstances, compliance, and progress on bail supervision (and EM bail, where relevant)^[27], should be communicated to the CJSWR author by the bail supervisor to inform the report.

3.4.3 Community order / supervision

Should the person be made subject to a community order such as a Community Payback Order, or a deferral involving social work intervention such as a Structured Deferred Sentence, there should be early communication between the bail supervision worker and new Supervising Officer / worker (such as a transfer meeting) in order to ensure continuity of any ongoing work and identification of outstanding needs and risks.

3.4.4 Remand or custodial sentence

Should the person be remanded in custody or receive a custodial sentence of any length following the period of bail supervision, it is expected that bail supervision staff will:

• Ensure that the custodial establishment receiving the person is aware of risks such as self-harm, mental health concerns (including suicidal ideation), or threats from third parties.
• Where relevant and with consent, inform people or agencies involved with the person that they are in custody (this may include liaison with family members, where already established and appropriate).