Bail and release from custody arrangements: consultation

3. Introduction

We want to reduce crime and reduce re-offending so that there are fewer victims. That is why we are seeking views on a range of proposed reforms relating to the law governing the use of bail and remand, and release from prison custody. This is the first stage in a longer-term consideration of how custody is used in Scotland both now and in the future.

The proposals within this consultation are underpinned by a commitment to public safety and the protection of victims. Along with protection of victims being at the forefront of the operation of the reforms, the proposals are intended to lead to a reduction in the future risk of reoffending which will mean fewer victims in the future. This will be achieved by providing more opportunities for rehabilitation and improved support for reintegration, as well as considering whether remand can be used differently with an emphasis on protecting public safety.

We recognise that prison is, and always will be, necessary for those who pose a risk of serious harm. However, we also recognise that imprisonment damages the connections that prevent people from offending or reoffending, such as family relationships, accommodation and employment. Short-term imprisonment, including remand, is not effective in addressing the underlying causes of offending.

We know that for those leaving prison, effective support to enable them to reintegrate and make positive connections in their communities helps to prevent reoffending and supports more positive outcomes for them and those around them.

We believe the time is right to reassess the role that prisons and the use of imprisonment should play in a modern and progressive Scotland. A justice system which more effectively addresses the reasons why people offend and provides greater opportunities for rehabilitation benefits all of us and will lead to fewer victims in the future.

The impact of the pandemic has forced us to look differently at how the justice system operates in Scotland. We have the opportunity to take a transformative approach, delivering better outcomes for everyone involved in the justice system, as well as for communities and public services.

In order to do that, we need to ask questions about how custody could and should be used in a just and fair society.

The use of bail/remand and arrangements around release from prison custody are two areas which we feel have the potential to contribute to this shift in how imprisonment is used. This consultation seeks as wide a range of views as possible on proposed reforms in these areas.

Our proposals are aimed at making a real difference to the lives of individuals affected by imprisonment and by doing so, we can reduce reoffending, leading to fewer victims in the future. As highlighted in the Hard Edges^[1] report published in 2019, many people in contact with the criminal justice system have already experienced severe and multiple disadvantage, including homelessness, substance misuse, mental ill health and domestic violence or abuse. Individuals from the 10% most deprived areas are over-represented in prison arrivals by a factor of three^[2] – a finding consistent across the last decade. Care experienced people are disproportionally represented within the prison population. Around a quarter of the prison population in Scotland report being in care as a child, rising to just under half when looking specifically at young people in custody.^[3]

In the latest Addiction Prevalence Testing study carried out by the Scottish Prison Service in 2018/19, of the 1017 tests carried out on arrival in prison 71% were positive for illegal drugs (including cannabis)^[4]. Scottish Prison Health Care Network Data also shows that 25% of prisoners are on some kind of Opioid Substitution Therapy (OST).

Research published earlier this year found that around 78% of women prisoners in Scotland have a history of significant head injury – most of which occurred in the context of domestic abuse which lasted over several years^[5]

We also know that imprisonment has a wider impact than just on the individual. Almost two thirds of respondents (61%) to the most recent SPS Prisoner Survey reported having children themselves.^[6] There are an estimated 20,000 -27,000 children who are affected by parental imprisonment each year in Scotland^[7] – which is a recognised Adverse Childhood Experience (ACE) and is known to significantly impact long-term health and wellbeing and negatively affect both attainment in school and later life experiences.

The reforms we are proposing in this paper focus on the use of bail and remand, in recognition of the negative impact that short periods of imprisonment have – particularly for those who have not been convicted of a crime. The paper also considers arrangements for release from custody, with an emphasis on providing greater opportunities to support reintegration to reduce the risk of future offending and to enable people to move on towards more positive outcomes.

Everyone should have the right to feel safe in our communities, particularly those who have been victims of crime. We are committed to putting victims' rights at the heart of justice and strengthening how justice and wider public services support people who have been affected by crime.

Through the Victims Taskforce, individuals have told us^[8] that 'feeling safe' is a key concern following an experience of crime or during ongoing criminal justice processes. Feedback around feeling safe has also arisen with regards to decisions to do with bail, and around prisoner release and parole.

Decisions on whether an individual is released on bail or remanded in custody can have a direct impact on victims, who may fear for their safety or the threat of repeat victimisation. In addition, there can be significant emotional and practical implications for victims as a result of the release of an individual from custody.

Victims have also told us about the importance of receiving adequate levels of information about what is happening at each stage of their experience of the justice system and what support is available to them. This includes information in relation to decisions on bail and remand and on the release of prisoners and parole decisions. A lack of clear information at the right times is a significant issue of concern for victims.

It is therefore important that this consultation considers issues relating to bail, remand and prisoner release from a victim's perspective and takes into account the views of both victims and organisations who support them.

This consultation focuses on proposed legislative reform. However, we know that legislation alone cannot deliver the changes we want to see – although it provides a clear signal of intent. Any legislative reforms must be supported by the availability of consistent, robust alternatives to remand and effective and timely reintegration support for those leaving custody across Scotland. The Scottish Government is already investing in these services and we intend to continue to expand their availability, working with partners across the sector.

The recently published Programme for Government^[9] committed to a substantial expansion of community justice services supporting diversion from prosecution, alternatives to remand, and community sentencing. Expanding the availability and consistency of justice services in the community is vital to enable further shifts away from disruptive and ineffective short custodial sentences and periods of remand.

Justice agencies are critical in supporting the aims of these proposed reforms. However, they cannot do this alone. Wider partners, including NHS, local government, third sector organisations and mainstream public services play a critical role - through their decision-making, resourcing and delivery of public services. This is in line with the Christie principles^[10] of integrating service provision, prioritising expenditure to prevent negative outcomes, reducing duplication and becoming more efficient and empowering individuals and communities.

If we truly want to see reductions in reoffending and victimisation, with the associated damage they do to people and communities, then we need to drive a more decisive shift away from the use of custody, including for remand, towards community interventions which do more to address the underlying causes of offending. We also need to do more to ensure that consistent, timely services are available to support people on their release from prison – at the point that they need them. This is in line with the evidence of what works to reduce reoffending^[11] – with a focus on holistic interventions that better address the underlying causes of offending.

The reforms proposed in this consultation intend to support those aims and we would welcome as wide a range of views as possible to inform how we take this forward.

This consultation provides the starting point for a wider debate on the future use of imprisonment in Scotland, including on matters of sentencing, albeit these are not the main focus of the suggested proposals laid out here.

Nevertheless, should you wish to provide views or suggestions in relation to sentencing, or on proposals relating to bail/remand or release from custody that are not already covered in this consultation, you are welcome to do so.