Criminal proceedings in Scotland: 2020-2021

17. Bail and undertakings

(Tables 14 – 16)

When a person is arrested or charged by the Police, the Police may decide to keep that person in custody. The police will submit a report to the Procurator Fiscal in respect of the person in custody and where the Procurator Fiscal decides that the accused is to be prosecuted, they will appear at court on the first lawful day after they were taken into police custody. At this point, the Court will decide whether the accused should be released on bail until they next need to appear in court for later stages of the proceedings.

In some circumstances, the individual is not merely cited to appear at Court at a later date, but the Police decide to release the individual on an Undertaking to appear at Court on a specified date and time.

On 25th January 2018, the law applicable to undertakings was changed, and is now set out under sections 25-30 of the Criminal Justice (Scotland) Act 2016. An Undertaking generally has conditions attached including that the person should not commit an offence; interfere with witnesses or evidence or otherwise obstruct the course of justice; or behave in a manner which causes, or is likely to cause, alarm or distress to witnesses. Any further condition that a constable considers necessary and proportionate to ensure that the undertaking conditions are observed may also be imposed. These undertaking conditions are similar to those for bail.

Please note that four additional tables on bail are published alongside this bulletin, and can be found under the “supporting documents” menu on the website for this publication. These include bail statistics by court type as well as age and sex. One of the tables presents bail aggravations i.e. offences that were committed while the offender was on bail.

Bail orders made, and by main crime type

The number of bail orders relates to individual bail orders. Unlike the number of proceedings, where we count only one ‘main’ charge per person in each proceeding, multiple bail orders can be issued to a person during one case. Bail orders can also be issued in circumstances which may not lead to proceedings. However, there is a direct correlation between numbers of bail orders and numbers of proceedings, and any overall trend is likely to be similar in both. This is the case in 2020-21, as the number of bail orders decreased by 34% from 37,516 in 2019-20 to 24,645 in 2020-21. Over the longer term, numbers have fallen by 48% since 2011-12. In the year to 2020-21, there were annual decreases in all crime categories.

Bail-related offences

Bail-related offences cover the offences of breach of bail conditions (e.g. interfering with a witness) and failure to appear in court when required to do so. There were 6,315 convictions for bail-related offences in 2020-21, a decrease of 8% on 2019-20 (6,835).

The proportion of bail-related offences as a percentage of all bail orders granted in 2020-21 was 26%. This is the highest percentage in the last ten years, and in the previous nine years it ranged between 17% and 19%. With the length of time for cases to proceed through the court process affected by the impact of coronavirus, it meant accused persons granted bail were, on average, likely to be on bail for longer. This is a relevant factor for consideration of bail-related offences.

Undertakings

In 2020-21, there were 25,073 undertakings to appear in court, an increase of 61% from 2019-20 (15,558 undertakings). This is the biggest increase from the previous year in the past ten years. This can likely be attributed to the introduction of emergency Lord Advocate’s Guidelines on Liberation during the pandemic to minimise the number of people held in custody for court.

The total in 2020-21 is 4% below the ten year high in 2011-12. This may be related to changes introduced by the Criminal Justice (Scotland) 2016 Act - Part I (Police powers), which replaced written undertaking provisions from the Criminal Procedure (Scotland) Act 1995.

More than three-quarters of undertakings (79%) were issued to males in 2020-21 (19,721 people). The proportion of young people being issued with an undertaking has declined over the past ten years, with 11% of undertakings being issued to under-21 year olds in 2020-21 compared to 21% in 2011-12.