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

Setting the Scene

Roles and Responsibilities

The majority of criminal cases in Scotland are dealt with in the country’s Sheriff Courts, with only the most serious cases, such as murder and rape, being heard in the High Court. Cases in the High Court, and some cases in the Sheriff Courts, are heard by a Sheriff/Judge and a jury (solemn procedure), but less serious cases are heard by a Sheriff alone (summary procedure). The maximum penalties that a Sheriff can impose in any given case are set by law, with the Scottish Sentencing Council being responsible for preparing sentencing guidelines for the courts.

Anyone appearing at court has the right to be legally represented by a solicitor to help them present their case, defend their position and guide them through court procedures^[8]. Solicitors, or defence agents, may be either privately engaged by an accused appearing at court or may work for the Public Defence Solicitor’s Office (PDSO) - a national team of publicly funded, specialist criminal defence lawyers who can represent clients in any court in the country.

The Crown Office and Procurator Fiscal Service (COPFS) is Scotland’s prosecution service and death investigation authority. COPFS receives reports about crimes from the police and other reporting agencies and has responsibility for deciding what action should be taken, including whether there is sufficient evidence to prosecute someone in court. All COPFS decisions are made independently and in the public interest and all decisions follow the process set out in the Prosecution Code.

Routes to Court

Cases are reported to COPFS under three reporting procedures - custody cases, undertaking cases and report cases. An assessment by the marker to the Crown’s attitude to the accused being admitted to bail is carried out in all custody and undertaking cases and in some report cases where the police request that a warrant for the apprehension of the accused be obtained to commence proceedings.

Custodies

In relation to custody cases, there is an expectation that all custody cases will be reported to COPFS by 9am. However, cases are frequently reported later in the day, particularly those involving more serious or complex offences. The volume of custody cases reported to call each Monday is always higher in comparison to the remaining weekdays, particularly in view of the potentially higher volume of arrests over a weekend period.

These cases, once received, are moved into geographic “trays” and markers (whether from the National Initial Case Processing (NICP), Sheriff and Jury or specialist teams) access the cases via the trays to mark them.

Upon receipt of a custody report, the legal marker is responsible for:

• careful consideration of the custody report submitted to assess the facts and circumstances of the case and the evidence available
• identification, and instruction of, any further enquiries which are necessary. Further enquiries are often instructed in a custody case to address evidential issues or to provide further information to assist the legal marker in the decision-making process
• liaison with external colleagues in cases where the accused is suffering from, or is suspected to be suffering from, a mental disorder. In such cases, the legal marker requires to request any necessary mental health assessment, monitor progress of the assessment process and discuss the results of the assessment if required
• reaching a marking decision based on the facts and circumstances of the case, the available evidence and COPFS policy including the Prosecution Code
• application of the marking decision and preparation of the case electronically. Preparation of the case involves the drafting of charges, the drafting of instructions which require to be sent to the Reporting Officer, as well as the drafting of instructions to be followed by the depute dealing with the case in the custody court including in relation to the consideration of bail.

Cases assessed as appropriate for solemn proceedings are triaged by NICP legal staff and referred to relevant specialist teams across COPFS to be marked, including Sheriff and Jury teams within each of the six Sheriffdoms and National High Court teams specialising in sexual offences, major crime and homicide. If such cases are deemed unsuitable for solemn proceedings, they are returned to NICP legal staff to be reconsidered, marked, and processed.

Administrative staff assist the legal markers in the electronic processing of custody cases. This assistance includes the generation of case-related documents including those served on the accused and those used by the Depute in the custody court. If court proceedings are taken, then the case is marked and then printed in the local office so that papers can be lodged and served at court. Overall, there are a significant number of legal and administrative work steps involved in the marking of each custody case.

Undertakings

Summary undertaking cases are marked by the NICP team. This is managed through allocated resources on a rota and the marker will mark the case from an allocated tray. Local Deputes in the six Sheriffdoms currently have responsibility for the marking of all summary undertaking cases and are generally allocated time on rotas to mark undertaking cases in their area in advance of the court undertaking date.

Report Cases

Summary Report Cases are marked by the NICP team. Specific time is allocated to markers on the rota to allow them to mark report cases. NICP legal and administrative managers monitor the throughput of the marking of report cases to ensure they are marked timeously and within any legal time bar period. Where a report case is triaged as being appropriate for solemn proceedings, these cases are referred to the relevant team and are then marked and processed by those teams.

In reaching a view on the Crown’s attitude to bail, the marker will consider a number of factors including the circumstances of the case, the accused’s previous offending history, the likelihood of re-offending if at liberty and whether special conditions of bail being imposed as opposed to the accused being remanded in custody would provide sufficient safeguards against the risks present. These factors are all considered within the wider framework contained within Section 23C of the Criminal Procedure (Scotland) Act 1995.

Presentation of Arguments in Court

An accused may appear at court on several occasions - an initial hearing or first calling (the first time a case is called in court) where the case is presented, intermediate hearings where certain issues affecting the case may be considered before it goes to trial, and a trial hearing whereby decisions are made in relation to the guilt or innocence of the person involved, considering all available evidence and arguments put forward.

A separate sentencing hearing may also take place. While the law in Scotland allows anyone accused of a criminal offence to remain in the community pending trial, including by granting them bail, and the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) provides for a presumption in favour of bail for criminal cases in Scotland, there are circumstances in which a presumption in favour of refusal of bail operates. At each stage of a case appearing at court, therefore, representations and decisions regarding bail (or refusal of bail) may be made. Both COPFS (represented by a Fiscal or Depute in court) and Defence present their arguments to the court in relation to whether bail should or should not be granted.

The availability of clear, relevant, reliable and good quality information and/or submissions from both the Crown and Defence is essential for assisting Sheriffs in their decision making. This includes information on not only the context, nature and seriousness of the alleged offence and the circumstances of the accused, but also Crown/Defence attitudes to the case against the stipulations of the Criminal Procedure (Scotland) Act 1995.

• Information typically provided by the Crown includes:
  • details of the alleged offence
  • previous offences/past criminal record
  • non-compliance with court orders/information on any previous breach of bail or bail conditions, and failure to appear
  • relevant public safety information.
• Information from Defence typically includes:
  • extenuating circumstances surrounding the alleged offence
  • information about stability, i.e. in employment, housing, caring responsibilities.

Based on all the evidence provided, the Sheriff (or Judge in more serious cases) will make the final decision on whether to refuse bail for an accused person in any given case. Whenever the court grants or refuses bail, it must state its reasons for doing so.

Remand and Alternatives to Remand

Where a decision is made to refuse bail, an accused (or someone found guilty of a crime awaiting sentence), will be held in custody in the Scottish Prison Service (SPS) estate.

Where bail is granted, a number of standard bail conditions apply as set out in Section 24 (4) of the 1995, that the accused (a) appears at the appointed time at every diet relating to the offence with which they are charged of which they are given due notice; (b) does not commit an offence while on bail; and (c) does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to themselves or any other person.

These standard conditions may be supplemented by additional special conditions of bail, by bail supervision or by Electronic Monitoring on Bail (EM bail). Responsibility for assessments for suitability for supervised bail and EM bail fall to justice social work teams in each of Scotland’s 32 local authorities. Justice social work, in collaboration with partners (such as the third sector) involved in a case as appropriate, will assess people for suitability for bail supervision and EM bail based on all information available. Justice social work services also have responsibility for delivering bail supervision where granted.

Against this backdrop, the remainder of this report sets out the findings from the research. It should be noted that decision making in relation to report cases featured far less notably in discussions, not least because they were less likely to require a bail or remand decision (the court would usually ordain the accused to appear in a reported case). In contrast, custody summary cases attracted the most discussion, accounting for the bulk of court workload/initial appearances at court. It should also be noted that, while the above summary presents the ‘standard’ or ‘typical’ way in which cases get to and are handled at court, the specific inputs of different agencies to the process, and variation in local practices was something that emerged as a key finding from the research itself.