Decision-making on Bail and Remand in Scotland: final report - December 2023

Footnotes

1 A duty solicitor is a Criminal Defence Solicitor who helps individuals if they are suspected or accused of committing a crime. Their primary role is to represent those who do not otherwise have access to a Solicitor. If an alleged offender is in police custody or appearing at court and does not have a Solicitor, they will be given the option of speaking with a duty solicitor who is on rota at that time.

2 In Scotland, criminal cases are heard by a Sheriff and a jury (solemn procedure), but can be heard by a Sheriff alone (summary procedure) depending on the nature and seriousness of the alleged offence.

3 NICP specialises in the consideration and marking of most, but not all, summary custody reports and report level reports. Until recently almost all undertaking cases were marked in the Sheriffdoms. However, this changed in August 2022 when NICP took over responsibility for the marking of undertaking cases within the Summary Case Management (SCM) pilot courts. In summary, NICP deals with: summary level custody cases, summary level report cases and summary level SCM undertakings. NICP does not however deal with all cases reported to COPFS. Taken from: Summary of Case Marking Arrangements in COPFS, Bernard, D. (2023) Procurator Fiscal, NICP (Unpublished)

4 Members of the Judiciary who took part were all Sheriffs. While no Judges took part in the interviews, Sheriffs who were interviewed worked on both solemn and summary cases.

5 Social Work representatives included a mix of fully qualified social workers, social work assistants and court officers as well as non-social work qualified staff working in relevant support roles.

6 The National Initial Case Processing (NICP) team within COPFS works across multiple locations.

7 See: Lord Advocate’s guidelines: Liberation by the police | COPFS

8 See: Law Society of Scotland | Law Society of Scotland (lawscot.org.uk)

9 As above, the Bail and Release from Custody (Scotland) Act 2023 repeals Section 23D of the Criminal Procedure (Scotland) Act 1995.

10 Offences are considered “aggravated” - which could influence sentencing - if they involve prejudice on the basis of age, disability, race, religion, sexual orientation, transgender identity or variations in sex characteristics (sometimes described as "intersex" physical or biological characteristics). Statutory domestic abuse aggravations are also in place. For a full list of aggravators see: Criminal Proceedings in Scotland, 2021-22 - gov.scot (www.gov.scot)

11 Summary of Case Marking Arrangements in COPFS, Bernard, D. (2023) Procurator Fiscal, NICP (Unpublished)

12 Prosecution Code | COPFS

13 In similar vein, one Sheriff also suggested that there had been a proposal recently to centralise all custody courts, with remote hearings conducted by centralised Sheriffs, a move which had been, in their view, fortuitously dropped.

14 Noting that all cases are required to be dealt with within the applicable custody time limits relevant to summary or solemn procedure, as appropriate.

15 Supporting documents - Bail supervision: national guidance - gov.scot (www.gov.scot)

16 Scottish Government national guidance does, however, include an assessment template which should be used. See: Annex 4 Bail Supervision Suitability Assessment Report - Bail supervision: national guidance - gov.scot (www.gov.scot)

17 Noting that capacity of social workers to respond may vary due to differences in the availability and resourcing of services in different areas and that justice partners’ understanding and awareness of social work services also varied by area.

18 At the time of publication, legislation had been passed which, when commenced, will allow EM bail to count towards an individual's sentence.