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

Legislative Grounds

Respondents consistently reported that The Criminal Procedure (Scotland) Act 1995 is the cornerstone of all decision making in respect of bail and remand (with Sections 23C and 23D^[9] being particularly important). The Act is the central element around which all decision making is hinged and is of equal relevance and influence in both summary and solemn cases. The Interim Findings report sets out the legislation in more detail.

Section 23C Consideration

Nature (including level of seriousness) of the offences before the court

The nature (including level of seriousness) of offences was described as “highly influential” in Crown decisions to oppose bail primarily because it was seen as the key indicator of the danger that the accused may present to the public and witnesses. In some cases, the nature of the offence would be so serious that bail would be opposed on the basis of the risk to public safety even where no other factors apply, i.e. some offences would occasion an opposition based entirely on their seriousness (e.g. murder or prolonged domestic abuse):

“…this will form part of our decision making and can often be an indicator in worsening behaviour or behaviour that has become a course of conduct, e.g. against a domestic partner. This would indicate that there is a significant risk they will reoffend and if/when they do, the level of their offending will be more serious and therefore pose a greater risk to the public and/or individuals.” (COPFS)

Sheriffs also stressed that the s eriousness of the current offence was paramount in their determinations (with decisions in solemn procedure even more likely to have seriousness at their heart than summary procedures), e.g. the nature and seriousness of the offence they have currently been charged with and whether this triggers the requirement to refuse bail in line with the 1995 Act.

The nature of any previous convictions of the person (including analogous offending)

The nature of any previous convictions of the person (including analogous offending) was again described by the Crown as highly influential in their decision making, and could be sufficient for opposing bail on its sole merit (especially if previous offending was very similar to the new offending). It was noted that the nature of previous convictions could demonstrate that the accused has a preferred method of offending, as well as demonstrating risk of commission of further offending and/or being of danger to the public:

“…this is most often the first and most determinative factor in our decision to oppose bail (or not) and is often the first reason cited by Sheriffs in their refusal of bail. Analogous offending is a key indicator that the accused is continuing to offend and will continue to do so if released.” (COPFS)

Other considerations may include the disposal of any analogous cases and any corresponding increase in tariff of disposals to ascertain likely outcome in the current case.

While an accused having a detailed criminal history was seen as central to informing bail and remand decisions, it was noted that only in some cases did Standard Prosecution Reports (SPRs) contain conviction details from other UK jurisdictions and even less frequently was information available regarding any non-UK convictions. This was something which, if provided more routinely, would facilitate decisions for all parties.

The nature of any previous convictions of the person (including analogous offending), was also the second most frequently cited factor influencing Sheriffs’ decisions. Sheriffs noted that these were considered as key risk indicators when considering bail - the only exception being if there was a long delay (see following section) between earlier and current offences. This may lead Sheriffs to request further information on changes to the accused’s personal circumstances in the period between previous and current offences which may assist in decisions.

How recently other offences were committed

Again, for the Crown representatives, data regarding the recentness with which other offences had been committed was described as playing a key role in decisions as it could help to demonstrate any pattern of offending or risk of re-offending and whether the accused was targeting a single or multiple victims/complainers. This information was also described as useful insofar as it may yield arguments that certain specific sections of society are not safe if the accused was to be at liberty:

“…this is very relevant. Where an accused’s record is of some vintage this can often persuade the Sheriff that the accused can be trusted and the new offence before the court is a one-off. A period of desistance would weaken Crown opposition to bail. A very recent record, especially with analogous offending, is an important factor.” (COPFS)

Any gaps in the record might also be considered alongside any lifestyle factors which may have contributed to the latest offence (e.g. recent return to drug/alcohol use, recent death in the family acting as a trigger, etc.). Consideration of the disposal of the previous analogous convictions would again be considered, it was explained.

A period of desistance following a prolific record was not always seen as a good reason to support bail and it was noted that the weight of the record and other factors were also likely to be considered:

“…we would probably still oppose [bail] regardless of whether there’s been a period of non-offending. I do think a lot of the time though you can kind of guess where the Sheriff’s going to go with it if there is a significant gap, and I suppose as well, it depends on how significant your other factors are. So if you still had a case, for example, where the record for 20 years was really quite intense, a lot of analogous offending, a lot of breaches of bail and then there was a gap…it looks great. But that probably wouldn’t outweigh our decision based on everything else we know about it to then not oppose bail.” (COPFS)

Evidence of escalation in offending

Evidence of escalation of offending was perhaps seen as slightly less influential than other features of an accused’s history and one COPFS respondent indicated that, on its own, it was not necessarily a reason to oppose bail. It could, however, be used alongside other features (in particular the types of offending being escalated) to present a case for opposing bail:

“…I would suggest this is relevant and would be mentioned in Crown opposition to bail but I wouldn’t say this is one of the key reasons which the Sheriffs would cite in their refusal of bail (that I have observed). It can be more relevant in cases where the accused’s previous convictions perhaps are not as lengthy.” (COPFS)

One COPFS respondent also indicated that they used this in tandem with Section 23D arguments (discussed more below) to guard against exceptional circumstances and to demonstrate “that the accused is contemptuous of the criminal justice process” (COPFS).

Previous behaviour whilst on bail (including compliance, previous breaches and failures to appear and previous breaches of other court orders)

Again, previous behaviour whilst on bail was described by Sheriffs as being very commonly relied upon by the Crown and the Court, with COPFS respondents noting that it often indicated concerns as to commission of further offences, future failure to comply with bail conditions, failure to surrender and likelihood of custody (with breach of orders suggesting contempt of same).

Similarly, solicitors noted that the record of the accused alongside their compliance with previous orders played heavily in their assessment of likelihood of bail being granted:

“…consistently, it’s substantial risk of reoffending by virtue of their record and demonstrable failures to comply with court orders. That’s what I’ll hear frequently from the bench, that you’ve been put in a position of trust before, you’ve not upheld that trust, so I’m not going to trust you on this occasion.” (Solicitor)

Sheriffs confirmed that previous behaviour while on bail was considered as a key indicator of likely future behaviour in the current case. If an accused had complied with bail and bail conditions previously and had not committed any further offences while on bail, this would provide the Sheriff with more confidence that bail would again be appropriate. However, if an accused had multiple serious breaches of bail or bail conditions previously, or had committed further offending, then it would be felt that the accused would be unlikely to comply with bail going forward:

“Offending whilst on bail, other convictions with a bail aggravation on the record are very relevant because they indicate to me that someone in a position of trust from the court…has continued to commit offences, the bail has not been a deterrent to reduce offending.” (Sheriff)

“…if someone has a clear pattern of breaching bail and convictions for breaching bail, then that’s a warning sign… The fact that someone had a breach, or a number of breaches of bail wouldn’t be enough of itself for me to tip the balance towards remand, but it would certainly be something that I would give significant weight to in deciding whether to give someone bail or not.” (Sheriff)

Of lower importance in the order of considerations for Sheriffs was the risk of failure to appear at future court diets. While previous behaviour was seen to be indicative, Sheriffs tended to note that failure to appear would need to be severe, prolonged and prolific for this to be the reason why they would remand someone to custody. Sheriffs did not tend to feel that this on its own was sufficient reason to remand someone, but may be important in combination with other factors, or in a small number of particularly prolific cases - absconding by the accused which required extended police resources to find the accused was more likely to result in the use of remand rather than instances where accused simply did not turn up at court dates.

Overall, most respondents concurred that a combination of all of the factors set out in Section 23C of the Act, alongside the particular facts and circumstances of a case, determined all decisions about whether an accused presents a risk of re-offending and whether their bail should be opposed. In general, however, the nature of the offence (especially where the accused has a history of similar, recent offending) and of previous convictions were the two factors which perhaps carried the most weight in decisions to oppose bail (by COPFS) and refuse bail (by Sheriffs):

“[previous convictions] …demonstrates a pattern and “hard-wired” behaviour of the accused. Where the Court’s currency in determining bail is risk, a proven career offender is a greater risk of committing further offences.” (COPFS)

“It is hard to pick one as they are all balanced - but it is fair to say that the risk is greater with more serious cases where the accused has a track record of not adhering to bail.” (COPFS)

One Depute noted that these two factors (i.e. the nature of the offence and the nature of any previous convictions) often “go hand in hand”. They suggested that, more often than not, there were links between the current case and previous offences, even where they are seemingly non-analogous. It was suggested that there can often be a pattern whereby committing offences becomes a coping mechanism for some people when things are not going well or they experience negative circumstances. Even where there has been a gap in offending, this does not necessarily mean the offender has reformed, but rather indicates periods of stability or positive circumstances over that period. Some respondents indicated that the court would acknowledge reform where necessary, but would also caveat this where needed.

Assessing Substantial Risk

Having regard to the statutory provisions of Section 23C (1) of the Criminal Procedure (Scotland) Act 1995, both Sheriffs and COPFS respondents were asked what were the main types of information that were sought in relation to assessing ‘substantial risk’ (i.e. to the accused/offender, victim/witnesses, and/or the public). Responses were common between the two groups and included:

• a detailed understanding of previous convictions
• the accused’s pending cases for which s/he is on bail/any current bail orders
• a detailed understanding of (for example) the injury caused in the current matter, or the value of property stolen
• any comments to police that the accused is going to seek retribution are relevant to potential interference with witnesses/further offending
• information regarding whether offences are aggravated^[10]
• any intelligence that the accused is a flight risk will be relevant to the risk of absconding
• previous reports to police
• information provided by witnesses or complainer.

Sheriffs cited risk to public and community safety as being perhaps the main consideration, and possibly one of the most significant factors weighing in bail/remand decisions, after offence nature and seriousness. Assessing whether the accused was likely to interfere with victims/witnesses was also seen as important, although it was noted that interference was ‘rare’ in most types of case (the exception being domestic abuse/harassment cases).

When asked what further information might assist them (if available) when assessing ‘substantial risk’, COPFS respondents suggested:

• having clear references for previous convictions to help identify patterns/types of offending
• more detail about the circumstances of the offence, which is often challenging/impossible when dealing with hostile witnesses
• knowing the position put forward in supervised bail assessments at an early stage (discussed more below).

Further information regarding protective factors was also seen as something which might be helpful if it was made more routinely available:

“Although not often included in the report, it is helpful if police highlight any protective factors which may assist the accused in complying with a bail order e.g. the accused now has settled accommodation, the accused resides with a parent / partner who is supportive of court proceedings and of ensuring the accused complies.” (COPFS)

Similarly, better understanding the relationship between the accused and complainer and any ‘non-criminal’ yet relevant previous behaviour was seen as something which may be helpful in SPRs to assist Crown assessment of risk:

“…sometimes victims make comments to police about previous incidents that potentially don’t prove or don’t constitute offending behaviour, however, it would be useful to have this information in the remarks section so that it can be considered in terms of the accused’s likelihood to reoffend.” (COPFS)

Generally, however, COPFS respondents indicated that there was little more than is already available which would assist with assessing risk:

“It really boils down to the current allegation and the accused’s track record to be honest.” (COPFS)

Similarly, most Sheriffs cited the nature and number of previous offences and previous non-compliance with bail and other court orders as the main considerations involved in assessing ‘substantial risk’. Most Sheriffs concurred that decision making at the first hearing (mainly at custody courts) was “fast, quick, very short, done under pressure” and they could not rely on or did not want or need additional risk assessments or guidance from external sources: i.e. “we’re the risk assessors and that’s what our job is." (Sheriff)

In terms of mitigations to manage risk in the community, both Judiciary and Crown respondents typically felt there was little more available - or conceivable - than bail supervision and EM bail, namely some form of monitoring or support. Some solicitors also viewed that remand was used as the best way to manage risk:

“…even though they’re presumed to be innocent, there’s the risk and the risk has to be managed and sometimes the Sheriff will say, the best way of managing that risk, I’m afraid, is a remand.” (Solicitor)

The main parties who perceived that they could offer more to existing assessment of risk were social work staff (in some, but not all case study areas). Suggestions were made that ‘risk’ could be built into the standard assessments/information checks being undertaken by social work staff, so that it is considered in a more consistent manner. One respondent felt that social work will often hold significant amounts of information on accused persons which the court does not always ask for, so information was not always being provided in a consistent manner:

“…we can hold a lot of information that the court doesn’t have, especially if there is social work involvement, if they’re on orders already or if they do have Children and Families [involvement] or if they’re on [particular programmes] or anything like that, then we can hold quite a lot of information that the court doesn’t have access to but don’t always ask for. And depending on how busy it is on different days, then if it’s not asked for sometimes… maybe they could have got more information on the decision that they’re making on that day.” (Social Work)

It was felt that perhaps having more contact with different agencies would be helpful in ensuring more social work input could be provided in the assessment of substantial risk. The current system tends to mean that social work liaise mostly with defence agents, whose aim/priority is to get their client released on bail. As such, defence agents do not always want social work to provide certain, potentially negative, information and therefore will not request it:

“I suppose it’s difficult because I think, the main professionals that we deal with in the court are the defence agents, they don’t always want certain information that we would hold about their clients to be shared with the court because that could be detrimental for them in court and it might affect their chances of getting out or going back to their home address or something like that.” (Social Work)

Social work representatives were, however, mindful of the additional time and resources that would be needed to add further considerations to the information gathering and assessment process. Particularly where cases are being dealt with at the end of the day and assessments are sought late, there was little time available to undertake the current requirements so this would place an additional burden and time delay on the process. One also noted that GDPR requirements impacted on social work and other organisations’ ability to share information in some circumstances. Another respondent highlighted particular conflicts where information is marked as confidential and not to be shared, making it difficult for social work to share highly relevant risk-based information with the court.

A few also noted at various points in interviews that social work staff try to keep reports and assessment information short and succinct, whilst including all relevant information, to ensure they are easily accessible for Sheriffs, and one was concerned that adding more information to these might not be welcomed by Sheriffs.

Section 23D

Section 23D sets out a presumption against bail for those accused of violent/sexual/domestic abuse offences or drug trafficking offences in solemn proceedings, where they have a previous conviction of a similar nature. Where an accused has an indictment conviction for violence and is appearing on petition for a violent offence, s/he will only be granted bail in exceptional circumstances. Further detail regarding Section 23D can be found in the Interim Findings report.

This aspect of the legislation was described as facilitating COPFS case marking by removing any ambiguity around how such cases should be marked (i.e. bail will generally always be opposed), leaving decisions in the hands of the court:

“At Court, the Crown simply advise the Court what the qualifying convictions are and then it is for the defence to put forward the exceptional circumstances that the accused should be granted bail.” (COPFS)

That being said, it was recognised that Section 23D cases could still be handled very differently by different Sheriffs/Judges and that ‘exceptional circumstances’ was a (largely) undefined, fluid and subjective concept:

“…[Section 23D] just moves the goalposts so that what the Defence have to do before bail can even be considered by the court is they have to make out exceptional circumstances…And it’s open to interpretation of a particular Sheriff what those exceptional circumstances are.” (COPFS)

This flexibility/subjectivity was not, however, necessarily viewed in negative terms and indeed it was suggested that it would be inappropriate to invite a more specific definition of ‘exceptional circumstances’ as Shrieval differences were part of the nature of the judicial system and it would be difficult to legislate for all possible occurrences/circumstances.

Solicitors concurred that there was an inevitability of bail being opposed in Section 23D cases and that this was likely to account for some of the recent perceived increase in the number of cases where bail was refused:

“23D’s a very real issue…over the passage of time, obviously the more people that are convicted on indictable offences, the more relevant 23D becomes because then bail’s only granted in exceptional circumstances. So maybe that’s accounting somewhat for the remand figures as well, that now we’ve got a generation’s worth of people convicted of indictable offences who are always going to be up against it.” (Solicitor)

Again, it should be noted that the Bail and Release from Custody (Scotland) Act 2023 repeals Section 23D of the Criminal Procedure (Scotland) Act 1995. Part 1 of the Act also makes changes to the bail decision making framework under the 1995 Act. This includes changes to the bail test so that remanding a person in custody is reserved for those that pose a risk to public safety (including the protection of the complainer from a risk of harm) or to prevent a significant risk of prejudice to the interests of justice in a given case. At the time of writing, work was underway to ensure that remand is focused on those that pose the greatest risk to public safety and that improved support is available for people leaving prison.