Criminal Proceedings in Scotland, 2021-22 – Updated

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 25 January 2018, the law applicable to undertakings was changed, and is 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. The number of bail orders decreased by <1% from 24,645 in 2020-21 to 24,538 in 2021-22. Over the longer term, numbers have fallen by 44% since 2012-13 with decreases across 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 7,208 convictions for bail-related offences in 2021-22, an increase of 14% on 2020-21 (6,331).

The proportion of bail-related offences as a percentage of all bail orders granted in 2021-22 was 29%. This is the highest percentage in the most recent 10 years. In the eight years pre-pandemic (2012-13 to 2019-20) 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, 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 2021-22, there were 24,615 undertakings to appear in court, a decrease of 2% from 2020-21 (25,073 undertakings). This is the second largest total in the most recent 10 years. This may be attributable 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.

Four-fifths of undertakings (80%) were issued to males in 2021-22 (19,610 people). The proportion of young people being issued with an undertaking has declined over the most recent 10 years, with 12% of undertakings being issued to under-21 year olds in 2021-22 compared to 19% in 2012-13.