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

Process and System Influences

The Criminal Procedure (Scotland) Act 1995 (the 1995 Act) provides the cornerstone of all decision making, complemented by national guidelines for different justice partners issued by their respective parent organisations. Throughout the research, however, a number of process and system factors linked to the design and management of the justice system as a whole were highlighted as interacting with or influencing bail and remand decisions.

Early Police Decisions

While not a key stakeholder in the decision making process per se, early decisions by police to liberate an accused on an undertaking to appear at court were considered to inadvertently (although never intentionally) influence decisions in relation to bail and remand. Specifically, some COPFS staff indicated that a decision by the police to release someone on an undertaking made it “challenging” for the Crown to oppose bail since the appearance at court of someone who may have been at liberty for several weeks who has remained “out of trouble” for the intervening period between release and appearance was seen as demonstrable evidence of being trustworthy and of ‘good behaviour’:

“…they’ve shown an element of good behaviour by that point. So by that time, it just makes it a bit more difficult for the Crown to stand up and oppose bail from someone coming in off the street who hasn’t offended for a month. Whereas if the person appears straight from custody, that makes it a bit more straightforward.” (COPFS)

Similarly, discussions with Defence revealed that most ‘decisions’ regarding bail were reserved for cases appearing from custody with people appearing from the community often automatically receiving bail, because they had already been released by the police and were at liberty:

“I’d probably say 60-65% of work comes from that source [custody]. The remainder will be people who have been released by the police whether to be reported and cited to attend court or given an undertaking to attend court. In those kinds of cases, bail isn’t really necessarily a relevant discussion that we’ll have.” (Solicitor)

All respondents stressed that police decisions to release on an undertaking did not explicitly bind COPFS decisions in any way, and case markers indicated that they did and often would still consider opposing bail even for those appearing on an undertaking (stressing that all COPFS decisions were made independently on review of all available evidence with the police decision to liberate being just one factor taken into account). Indeed, several of the COPFS sample also stressed that they considered the police’s view on bail as non determinative and that risk was assessed objectively by prosecutors at all times.

Section 23D cases (discussed more below) were cited as a specific example of where police may favour release on an undertaking but where bail would onwardly be opposed by the Crown:

“I have personal experience of Section 23D applying to accused yet [the accused being] released on undertaking. [The] Sheriff will occasionally state to the accused that they were very fortunate to be liberated on an undertaking.” (COPFS)

Similarly, there was disparity between Sheriffs with regards to accused appearing at court on police undertaking. Some Sheriffs suggested that police undertakings influenced them in favour of bail rather than remand, as attendance at court on an undertaking was seen as indicative of likelihood to comply (and this may also weaken any argument from the Crown that bail should be denied). For other Sheriffs, police decisions to release someone on an undertaking were seen as irrelevant to the process and, indeed, some commented that they often found police decisions to release or detain an accused to be at odds with their own ideas of what would/would not have been appropriate.

In contrast, all Sheriffs indicated that decisions by the police to hold accused in custody before their appearance made no difference to their deliberations as to bail or remand. It was noted that the person could be appearing in court from police custody for any number of reasons, and not necessarily because they posed a risk:

“So, the fact somebody has been held in custody does not influence the likelihood of me granting bail…I start with a completely clean slate at that point. It doesn’t make any difference at all.” (Sheriff)

Solicitors noted that a Sheriff may decline bail for someone appearing on an undertaking, although most felt that this was very rare:

“…it’s not unheard of that Sheriffs may say, actually, I don’t agree with this person being afforded his liberty, they would be entitled to consider remand in custody at that point. Very rare though. I’m aware of a particular case where that happened and it caught us all by surprise.” (Solicitor)

The main reported reasons that remand would be sought for someone appearing on an undertaking were if new relevant information had been received since the point of initial liberation, or if the accused had breached the conditions of their undertaking, or committed a further offence, for example. In the absence of any significant change, however, the consensus was that it was difficult to rationalise a challenge to the police decision to liberate:

“…without any further offending, we have to be influenced by the decision the police have made. I suppose if they’re [the police] on the ground thinking they can liberate and they [the accused] don’t need to be held in custody, then that’s something we have to take quite into consideration as a really significant factor when we’re making our decision of what we think should happen.” (COPFS)

This also echoed comments that police decisions at the point of arrest and charge were noted by COPFS in determining the level of risk posed by an accused, suggesting that the police play a critical first part in the overall assessment of risk, which may carry through to later stages as the case progresses:

“…keeping someone in custody, really, I think leaves the Prosecutor just to make the decision and it’s a bit more straightforward. Whereas if they’re admitted on an undertaking, that really does influence - it can influence the Prosecutor’s decision a lot more.” (COPFS)

Deputes noted that the issue of accused persons being released on undertakings in potentially inappropriate circumstances was largely related to COVID-19 and trying to keep the numbers in police cells low, and they suggested that the situation was better post-COVID, although they did still occasionally come across such instances. This was echoed by some solicitors who noted that police undertakings appeared to have increased since COVID-19, and concurrently that remands had fallen. There was a perceived wariness on the part of the police to hold people in custody cells during Covid and so police undertakings were used more frequently.

Indeed, any increase in the use of police undertakings might, inadvertently, influence the frequency with which bail and remand is being used. Specifically, if more accused are released on police undertakings, the number of releases on bail following initial appearance at court should also increase. Sections 14 and 50 of the Criminal Justice (Scotland) Act 2016 provide a fundamental position whereby accused persons should not be held in police custody unless it is necessary and proportionate to do so. The impact of this legislative change and the relevant police processes and procedures connected to it may directly account for some of the perceived increase in opposition by the Crown to bail that was noted among defence and the judiciary.

Time and Volume of Business

The main process or system factor influencing the decision making process was time - specifically the time (or lack of) available to collect and process all necessary and appropriate evidence and information to inform case decisions. Shortage of time was compounded by the large volume of business and number of cases that each party was working with on a daily basis. For a number of reasons linked to pressures of time, decisions were often not being made in ideal conditions:

“[The accused’s] agent has only got the papers five minutes before the hearing. The information from the Crown is very scant because they’re busy and they’re dealing with lots of cases. So you get a five minute hearing to hear what little information that both sides can give you, so sometimes it’s very difficult to make a decision in these circumstances.” (Sheriff)

“[T]he decision maker has to make a very quick decision - on what is a very important matter - in a short period of time. The ramifications of being remanded in custody can be huge. Is the current practice for dealing with bail applications the best way?” (Sheriff)

As the sole public prosecution authority in Scotland, COPFS receives approximately 3,000 SPRs per week^[11]. The volume of custody cases reported to call each Monday is always higher in comparison to the remaining weekdays, particularly in view of the volume of arrests over the weekend period. Case markers may be dealing with multiple cases at any given time, and on any given day, depending on the nature of cases referred at any time, and there is a need for most custody cases to be marked early in the morning ahead of court starting to allow all parties a chance to read and respond to the marking as appropriate.

For COPFS, the main pressure was at initial case marking stage when a lack of information in SPRs could mean a rush to obtain further information on the same day as a court appearance:

“The volume of business can be challenging and can sometimes mean that detail is missing from police reports. This then requires urgent follow up with police so that a decision can be made. Improvements have been made recently in police reports to try and provide more background on the accused including any mental health difficulties / neurodiversity / involvement with social work, etc., but having as much detail as possible about the accused’s background assists greatly in marking a case and making decisions around issues such as whether bail is opposed.” (COPFS)

Similarly, with a large number of cases calling on any one court day, solicitors mentioned that the window was tight (“a mad rush”) between hearing about any custody cases they were representing and actually seeing the client and other relevant parties. Usually they heard about the case either the night before or first thing in the morning. The main challenges were finding time to meet/speak with the client and accessing information on the Crown’s position in sufficient time:

“I mean, quite often for a custody court starting at 12 o’clock, the first time I’ll see the charges is about half 11. If the papers came over at 10 o’clock, and there’s time to look at them, I’ll have a bit better idea about what to do about asking for bail and identifying issues. The earlier you get the information, the better.” (Solicitor)

“We normally have a phone call the night before from the police to say we’ve got so and so in custody… and they’re asking for duty [solicitor]… And then we basically just go to court the next day and then meet the client. It depends who it is. Sometimes I’ve seen my colleague go to the police station to speak to the client if it’s somebody who we know and if it’s somebody that’s vulnerable or we think would benefit from having a chat with somebody before – you know, the night before, then we would do that. But 9 times out of 10, for a custody certainly, you’re just finding out on the morning.” (Solicitor)

“…usually, you’ve been arrested the night before you appear in court the next day at most and I think that your worst possible case scenario is you could be arrested late on a Friday afternoon and appear in court on Monday. That would be the most notice I would have, would be 2 days. But even then, I wouldn’t know the bail situation until I’m at court that morning. I mean, ordinarily, you can make an educated guess, you know the client, you know what their previous convictions are, you know the nature of the offence and most times I can think, well bail’ll be OK or bail’ll be opposed. You’d be able to work that out. But say the custody court starts at 12, quite often, I won’t know the bail position till half 10, 11 o’clock, about an hour before.” (Solicitor)

There were several reported issues that may narrow that window of opportunity for solicitors even further, including delays to the accused being transported to court from custody (for example, travel time was noted to take up to two hours in some rural areas, however, urban courts also noted issues with significant delays in accused persons arriving at court from custody), or if there is a delay in centralised marking decisions arriving, or if there is a ‘queue’ of solicitors waiting to speak to the procurator fiscal about their take on bail/remand. Late arrivals of people appearing from custody was something which was seen to have escalated since the COVID-19 pandemic:

“…people aren’t even arriving until midday, 2 o’clock…if there were people who weren’t there in time for court previously, certainly prior to COVID, questions were asked. (SECURITY FIRM) officers were asked to come into the court and explain the situation. Now, it just seems to be accepted.” (Solicitor)

Another commonly reported issue (across both rural and urban courts) was the lack of physical interview space available for solicitors to meet with their clients, e.g. only three interview rooms for approximately 20 custody cases all of which are being heard within a 2-3 hour period. Time in interview rooms had also become more limited due to competition between defence and social work (who may be carrying out supervised bail assessments):

“…if for argument’s sake I was seeing somebody in the cell area, I’m conscious of the lack of space in my local court anyway, so I know that I kind of need to get in and out because (a) I might have other people to see and (b) other people actually need to get into the room as well. And we’re all sort of conscious of not holding the court up as well.” (Solicitor)

From the social work perspective, it was felt that solicitors took priority, with the situation/arrangements continually changing for when and how social work could access accused persons in order to conduct interviews/carry out welfare checks and assessments. This made it very difficult for social workers to manage their time and find a system/routine that worked:

“These booths are not only used by solicitors but they’re also used by social work as well…they’re getting interviewed by social work automatically now for EM bail or whatever. So that just by its very nature uses up more booths and reduces the time they’re available for solicitors.” (Solicitor)

One solicitor commented that interviews also often had to take place in cells rather than interview rooms, which had obvious disadvantages:

“…cells are not particularly conducive to having a long conversation. So, it makes it difficult to spend worthwhile time with somebody in - they are literally called the dungeons - and it’s cold, it’s damp, it’s noisy and we’re dealing with people who are potentially being remanded in custody.” (Solicitor)

Where an accused was on a police undertaking, both COPFS and Defence reported that this typically allowed up to 3 weeks prior to the case calling and generally allowed more time for information to be gathered. Caveats to this was where accused either did not engage with their solicitor in advance of the hearing, or did not instruct a solicitor and appeared at court on an undertaking without legal representation, in which case, a defence agent would be allocated on the day. In both situations, solicitors struggled in the same way as they did with custody cases to gather the information required:

“…people who’re appearing for a cited case have got a citation through the post or, for a bail undertaking, they will ordinarily come in and see you beforehand. So you’ll get a phone call from somebody saying, I’m due at court next Thursday, can I come in and see you? So, in those situations, I would have certainly 45 minutes to an hour if I needed it with the client beforehand…the more frequent fliers - guys with a record - will quite often just turn up at court…” (Solicitor)

Only one solicitor provided a counter view that it was sometimes harder to find space and time to speak with someone at court who was appearing on an undertaking, if they had not contacted their agent before appearance:

“You have your meeting rooms in [court] and you queue to use them. But once you’re in the room with your client, it’s yours until you have concluded your meeting and, with a custody appearance, you do have a captive audience and you’d get that private space. With say meeting someone that’s pitched up to court for their undertaking or pitched up to court for their pleading diet with the summons, it’s harder to have a constructive discussion with them in the halls of court with other people walking up and down and also just - I don’t know, it’s just - you can’t really sit down and do it.” (Solicitor)

Similarly, there was more time to speak with those appearing on citation and to inform a more holistic and person-centred account of their needs to inform any bail position:

“And cited cases obviously it’s better because we have the full citation, we’d go through the full complaint with them at that stage and take proper instructions, as it were… And you have the advantage of time as well, so that if someone is a cited case that’s a month or so away, you have the opportunity to speak with them, ask them to maybe get character references, job references, that type of thing, speak to family members if relevant, speak to GPs, that kind of thing. It gives you a lot more time to find out more about the person.” (Solicitor)

Cases being deferred to allow more information or reports to be generated was also seen as helpful as a process factor, but not necessarily helpful for the accused and/or complainer (both of whom would be looking for cases to reach a speedy conclusion).

All parties were sympathetic to the pressures of lack of time in the current system to allow respective partners the ideal space for investigation, collation and presentation of the best arguments possible and viewed this as a shared challenge impacting Sheriffs’ decisions:

“I think it’s endemic in the system that a defence agent only knows that their client is in custody that day, they only get to see them shortly before the case calls and their information is quite limited, sometimes they’re taking instructions from the dock. So, we work with what we’ve got and we continue cases for short periods to the end of the day or the following day to try and get the information.” (Sheriff)

Centralised Case Marking and Liaison with Local Deputes

All COPFS case marking decisions are made in accordance with the prosecution policies set by the Lord Advocate included in the Prosecution Code^[12] and in internal guidance to staff known as Case Marking Instructions.

In addition to this formal guidance, the main things reported to assist decision making for Crown respondents were (in order of frequency with which they were cited):

• a clear and detailed Standard Prosecution Report (SPR), containing full information regarding the nature of the offence, including antecedents
• full details of any previous convictions (including non-Scottish PCs)
• a clear understanding of the bail orders that the accused is subject to as well as any others orders of the court
• knowing the age and vulnerability of the accused
• views of complainer/(s)/witnesses in the case
• a detailed note of any comments by the accused towards the complainer/witnesses (including any evidence of attempts to obstruct the course of justice/interfere with witnesses)
• risk the accused presents to the complainer/public at large and/or risk of reoffending
• flight risk, potential to abscond or previous failures to appear
• likely disposal of the case.

The current system of case marking entails central case markers who issue instructions to local Deputes working in court, advising on the Crown’s position in relation to whether bail is or is not opposed.

One of the main strengths of the current case marking arrangements was perceived to be that there is a wealth of experience and knowledge within the team which allows for cases to be marked appropriately and also quickly given the volume of cases received. NICP deal regularly with Police Case Management Teams across the country and having a good rapport and relationship with the Police means that answers to any questions regarding a report can be timeously sought and received by the marking depute.

Some scope for more fluid communication between NICP staff and local Deputes was, however, indicated:

“The Crown provides reasoning when marking a case about why bail is opposed for the depute in court to provide the court and this usually covers all the information they have received that is relevant to the issue of bail but is only presented when the case calls. It might be there is scope for discussions prior to a case calling so that before the bail position is finalised there is discussion about what should happen but I am unsure how that could be facilitated in a custody court when the custody marker is likely working remotely and the depute in court will likely not be the person who marked the case.” (COPFS)

Indeed, there was feedback from across different stakeholder groups that there was sometimes lack of detailed understanding in court regarding case marking decisions that had been made centrally but were being presented by the local Depute (noting it is exceptionally rare that the person who undertakes initial case marking and makes a decision on the Crown position on bail is the same person that will appear in court). It was stressed that, in most cases, local Deputes would take advice from the national marking hub, on the assumption that all necessary information had already been sought and collated to inform the case marking decision.

Sometimes, local knowledge had not, however, been captured or reflected in the decision and may appear too late to allow local Deputes to present an argument that differed from the central decision - in such cases, there could be questioning in court regarding the Crown’s position in the face of evidence presented by the Defence or social work, etc. While it was always possible for the Depute in court to reassess cases based on the information that they received, the timing of such information sometimes meant there was a lack of confidence in the argument being presented by the Crown (i.e. sticking to an initial case marking decision instead of offering an alternative view):

“…most Deputes in court will heavily rely on just what has been put in their instructions and they won’t change that unless they have a very good reason for doing so because they know that the marker is the person who’s read the report in detail, maybe had liaison with the police, who’s had all the risks flagged to them and they will generally go with what’s been put there… one of the problems is the information from Defence or social work tends to come when they’re sat in the court and by which point we have already marked it. And it does put the court Depute in a bit of a difficult position because you’ve then got somebody who hasn’t fully read the report, isn’t fully aware of the circumstances being given new information but maybe less sure what to do with it because they don’t know the context of all of that and whether that’s something that the marker’s already considered or not.” (COPFS)

“I generally wouldn’t go against what the Depute who’d marked the case had instructed unless there was a really strong specific reason. But in terms of my experience, the Depute that’s marked the case has had a lot more time to look at it than the person in court. So, in court, when you’ve got a number of papers, you’re just dealing with it and getting through them.” (COPFS)

COPFS respondents recognised that there could be instances of uncertainty where information available to the central marker was not clear to the local Depute and vice versa, and that some earlier discussions might be useful. Time, again, often hindered this:

“It may be of assistance to the Defence and Court to provide information on the Crown attitude to bail to inform defence agents discussion with their clients without the need to approach the Depute in Court and make effective use of Court time. However, there may be occasions where information not available to the marker is available to the Depute in Court and they would be required to consider the matter further.” (COPFS)

Similarly, some solicitors raised reservations about central marking because of the lack of local knowledge of such markers, while others suggested that experience and seniority of Deputes in court influenced how willing or likely they were to challenge central marking colleagues’ decisions:

“Sometimes that can be a bit impactful here because they don’t know… the locality or they don’t know the individual. Whereas sometimes if it’s local Fiscals marking it, they’ll know the background to somebody or they’ll have a bit more information as to their circumstances.” (Solicitor)

“I think they’re quite good at going against the central markers…they’re - I mean, the younger ones, the more junior ones won’t, but they will normally go back and speak to a senior depute in their office if they think there’s a decent argument and the senior deputes are quite good at going against central markers because they have more knowledge normally of the accused and situations up here. And… if they say to us, look bail’s opposed and here’s why and then we’re able to offer a counter argument, even if it’s been marked centrally, they’re quite good at going against that if they think there’s a reason to.” (Solicitor)

Some solicitors indicated that they were unsure how the COPFS marking process worked in terms of when and why some cases were marked locally and some centrally:

“Truthfully, I don’t understand exactly how it works because I know that sometimes things are marked here locally but sometimes they’re marked at a central hub but I don’t know how and why that is different.” (Solicitor)

Comments were also made by solicitors that, while they would prefer a local marking arrangement, the centralised approach could work and could be more efficient than at present if it was simply better resourced:

“I don’t think there’s an issue with it being done centralised if it’s properly resourced. I mean, if you had a marking hub that had an extra 10 Fiscals in it, then no doubt that would be a lot better. But I think the difficulty at the minute is it’s under-resourced, they prioritise courts in terms of when they start and, quite often, if there’s a difficulty with a case, it gets pushed to the back of the queue and you’re there all day.” (Solicitor)

Both Sheriffs and solicitors noted that the present system often led to challenges in court where local Deputes could not justify or robustly defend the decisions of their central case marking colleagues. In several interviews, there was a seeming lack of confidence by some Sheriffs in the Crown’s stance on bail: in effect, it was suggested that the Crown opposes bail too often and without any stated justification and that this may have some connection to the recent centralisation of marking of cases^[13].

As a result, two Sheriffs suggested that the number of custody cases the Crown might oppose could be in the region of 50-65 per cent, and that Sheriffs’ lack of confidence in the Crown’s rationale for such opposition may mean that some Sheriffs (although by no means all) may grant bail despite the Crown’s stance:

“[T]he Crown too often oppose bail without proper thought being given to it. And it just delays things… and I suspect it produces inconsistency in decision making because some sheriffs will remand where others would grant bail, for example.” (Sheriff)

Another Sheriff offered a perception that, sometimes, the Crown were opposing bail because they felt they had to and did not want to be seen not to (and that bail in such cases might still be granted):

“I think there are a reasonably high percentage of cases where the opposition is unrealistic… The Crown still seem to operate on the basis that there’s almost a fear of not opposing bail I think maybe, or not being seen to oppose bail now. So, on a very regular basis, the court will grant bail when it’s opposed.” (Sheriff)

Similar sentiments were expressed by other participants too:

“When I started as a Sheriff, the Crown opposed bail far less often than they do now. So, there’s definitely a change in Crown policy in terms of opposing bail more often, significantly more often than there was a decade ago. So, 10 years ago, if the Crown opposed bail, I would have thought very carefully about whether that meant I should grant a bail order. And now, I take it as read that the Crown will oppose bail in many cases and it rarely affects my approach one way or the other.” (Sheriff)

“You know, a Prosecutor will regularly be heard to say, I’m sorry but it’s been marked that way…The Prosecutor will say, look don’t look at me, I didn’t mark the case. They’re just a conduit for the case marker who is at a computer somewhere…I can get it. You wouldn’t want to overturn a professional colleague’s decision, yeah.” (Solicitor)

Indeed, among the judiciary, lack of detail and poorly constructed arguments by either the Crown or Defence was seen as one of the main hindrances to effective decision making. Some felt that the quality of submissions from both Crown and Defence was highly variable and often linked to the amount of experience the individual practitioner had. In any case, Sheriffs stressed that all decisions remained autonomous. Sheriffs were also keen to stress that, while arguments in court could sometimes seem ill-founded, and there were some obvious cases where the nature of the offence was the main driver for opposing bail, there was never any reluctance to move against the Crown where appropriate, especially given the presumption in favour of bail.

One final observation regarding evidence gathering to inform case marking decisions was that the national case marking approach could sometimes mean that there was difficulty for central markers to have a rapport or relationship with police case management teams in all areas. Various stakeholders suggested that a structure of case marking, in which only a small number of Deputes might deal with cases from any given region, might afford better/more efficient relationships to be developed between COPFS case markers and police case management teams. Indeed, in smaller and lower workload courts there were several examples of close professional working relationships between Police, Crown, Defence and Social Work. Similarly, even some of the higher workload courts which were based outside of the cities reported that the local knowledge of each of the stakeholders involved in the process was something that facilitated system efficiency.

Missing Information

For COPFS staff, while detailed Standard Prosecution Reports (SPRs) were cited as the main source of information that facilitated decision making, a lack of detail regarding cases was cited as something that hindered their case marking decisions. Indeed, the absence of a detailed and thorough SPR could result in significant time being spent by COPFS marking staff in trying to unearth the necessary detail of a case to allow informed decisions to be made. The quality of SPRs was described as “variable” with some reporting officers providing additional/essential information in the remarks section of a report, whilst others do not. COPFS staff noted that there was no real consistency in the format, content or quality of SPRs both regionally and nationally. The consistency of reports was also not influenced by whether cases were appearing from custody, on an undertaking or warrant, i.e. some SPRs for custody cases might be more detailed than those prepared for undertaking cases and vice versa. In particular, COPFS staff reported that they routinely noted missing information regarding the background to an offence per se (i.e. antecedents), information regarding the current and historical relationship between the accused and complainer (including whether hostile witnesses were involved), as well as lack of information relating to housing status and vulnerabilities of the accused (including any mental health concerns).

The absence of information from COPFS, or the need for solicitors to meet with their clients before papers had been received from COPFS (due to shortage of time and space, discussed above) also negatively impacted the preparation of arguments for solicitors:

“Now, there’s spending time with someone before their appearance at court and then there’s spending time with someone before their appearance in court with the court papers. Now, obviously, having the papers and having a note of the bail position from the Prosecutor makes it a much more focused discussion.” (Solicitor)

“…some people with undertakings do want to come in immediately from being released from police custody and want to talk about their case. But until we have the exact papers of what they’re exactly charged with, our information is still very vague…I can sort of estimate what the bail position is going to be and estimate what procedure they’re going to be and give them advice on that. But until we have the actual papers in front of us, which they get from the Fiscals on the day of their undertaking, you know, it’s pretty much educated guesswork.” (Solicitor)

The absence of information from Crown at the point of discussions meant that meetings were perhaps unnecessarily delayed. For example, as one solicitor noted, there may be more time to speak with an accused while they are being held in police cells over the weekend before an appearance at court on a Monday morning, but without knowing the precise charges levelled and the decision of the Crown regarding case marking, discussions with the accused may prove futile:

“I mean, a client may say - may want to speak to a lawyer but then all that he’ll be able to say to the lawyer at that point is, help, I’ve been held in custody. And I’ll be asking, what is it that you’re charged with and you’re facing? And then what he may have been charged with by the police may not amount to the same as what’s on the court papers…So, I would be reluctant to get into too much of an involved conversation at that time until we know what it is that the client’s facing.” (Solicitor)

Again, Sheriffs viewed that Defence may be in a better position to access the types of ‘personal’ information that was currently missing from arguments presented in court:

“I think the defence probably can get more relevant information because they’re directly dealing with their client. The Crown are often relying on information from colleagues who’ve made an assessment of the situation based on papers. So there’s not that personal connection. So often the Crown have a formulaic submission to make, if I could put it that way.” (Sheriff)

Despite the Defence having better access to client information, it was acknowledged by one Sheriff that the Defence “are always hamstrung. They don’t have enough time, they don’t have enough resources, particularly with the downturn or the steady erosion of legal aid fees.” (Sheriff)

Relationship Data and Views of the Complainer in Domestic Abuse Cases

Absent information regarding the relationship between the accused and complainer was seen as being exacerbated if information was missing regarding who the victim had been in similar previous convictions, especially in domestic abuse cases, i.e. whether one complainer was being targeted or whether the accused was acting more sporadically. The absence of this information hindered decisions regarding risk that the accused would present if liberated and whether this was person-specific or more generalised.

The routine inclusion of domestic abuse questionnaire responses from the complainer may also be helpful in SPRs, it was suggested, although it was noted that in some domestic cases complainers may fail to co-operate with investigations which meant that gathering this and other information was often impossible.

Indeed, complainers, especially in domestic abuse cases, may be unwilling to give evidence against the accused or to give detail on the incident or the seriousness of the incident which would allow COPFS to make a fully informed decision:

“…we would potentially know that something has happened and we might not know the seriousness of it, so if we can’t get to the bottom of how serious it is, we can’t see how serious the risk is.” (COPFS)

Several solicitors concurred that more information from complainers would be helpful, again, especially in domestic abuse cases:

“It would be useful I think if you had that, particularly in domestic cases, if you had a wee box that said, attitude of complainer, either the complainer does want this man prosecuted and wants them kept away or the complainer doesn’t want him prosecuted and wants him back home. It’d be handy to know that.” (Solicitor)

In particular, it was noted that the views of the complainer could often change between the point of initial contact with the police and the accused’s appearance at court, and so having ‘up to date’ input from complainers would be helpful:

“…you’re getting that snapshot on the custody appearance, but I think it would be beneficial if there was more views taken at various time points to see if [complainers] were still supportive of the bail conditions.” (Solicitor)

Specifically, in domestic abuse cases, it was noted that special bail conditions might be applied to bail which, in practice, the complainer may find difficult to work with but which cannot be lifted without positive intervention from the complainer:

“…once they realise that there’s going to be bail conditions in force, they realise, oh I don’t want this to take place, I don’t want to be separated from my partner. There isn’t much else that can be done after someone’s appeared at court, been granted bail on these special conditions, then the opportunity to review those special conditions is kind of taken out of the Defence agent’s hands because it needs some positive input from the complainer to say, I want these bail conditions lifted, I’m not in fear of the accused, I want to have - I want us to resume our relationship, etc.” (Solicitor)

Views were put forward that not all relevant information in this regard was always timeously disclosed to the defence:

“Often, we need to ask the Crown…if they have views from the complainer or other interested parties. These aren’t really made readily known to us, we need to actively seek that information out…It’s just a case of trying to catch the Depute before the case calls, so that could be as the court is in process or if there’s a gap in proceedings, somewhere you can try and nip in and have a word, but there isn’t a formal mechanism to find that out.” (Solicitor)

Sheriffs concurred that more information on the views of complainers in domestic abuse cases (and more generally) would be helpful in the overall decision making process, irrespective of whether this was presented by Crown or Defence:

“…actual information of the complainer’s view [would help]…for example, often the defence say the complainer is supportive of bail and the Crown say they don’t know the complainer’s view or neither side know what the complainer’s view is. Although the views of the complainer are only one factor that you would take into account, they are obviously an important factor in domestic cases.” (Sheriff)

Housing Status Information

One of the other main types of information that were cited as frequently missing in SPRs was information relating the accused’s housing status/homelessness (with comments that the Crown has to oppose bail if the accused appears to be of no fixed abode, and the Act determines that the accused requires an address in the UK):

“…sometimes in certain cases where I’ve had to speak to social work for something…they’ve said, oh well actually, we’ve been able to get accommodation for them and that dramatically changes the position. But, as it currently is, there’s not really a channel for that information to come back to us, if that makes sense, unless we sort of go and proactively try and seek it and have those discussions. So somewhere, from either police or social work, to have that information would be really useful.” (COPFS)

Indeed, earlier communication between social work and COPFS was cited as something which may be helpful in filling this gap, in cases where the Crown opposes bail only or primarily because the person does not have an address. In such cases, earlier social work assistance in clarifying likelihood of securing/confirming stable accommodation before the case appears at court may reduce the need to remand in some cases.

Housing status was also discussed in considerably more detail in relation to alternatives to remand and supervised bail (presented below).

Other Vulnerabilities of the Accused

Solicitors also noted that information regarding such things as mental ill health or other vulnerabilities was sometimes collected by the police but either not passed to Crown and/or not shared with the Defence:

“…the police here quite often don’t pass on relevant information to the Crown. Or if they do, that’s then not fed back by the Crown to us. We often have clients who have quite serious mental health issues…[in one case] all of that information was known to the police, the family had made that known to the police, etc., etc. So those kinds of things, often there is a gap in the way that information is passed.” (Solicitor)

“…whilst we get court papers with the copy complaint and the previous convictions, the police will often write remarks which it’s in the SPR, the Standard Prosecution Report. Now, sometimes you’ll get a friendly Fiscal who will let you see what might be contained within those remarks…There may be sensitivities about the case but certainly, for as long as I’ve been doing this, the remarks section isn’t something that we would normally be privy to.” (Solicitor)

For solicitors, the barriers to gaining information around vulnerabilities included the narrow window to see the client (discussed above), the lack of a view from the complainer (especially in domestic abuse cases) and the need to gather more ‘context’ information, all of which can lead to a sense that solicitors “carry a lot more work than we’re paid for” (Solicitor).

Similarly, some COPFS respondents gave examples of cases where they had proactively engaged with social work and mental health practitioners, not specifically in relation to marking decisions, but to flag other vulnerability issues which may place the person ‘at risk’ to themselves either if released on bail or given remand (including, for example, mental health difficulties, suicidal ideation, etc.).

Overall, there were views from both Crown and Defence that for those remanded into custody, the speed with which the case returned to court may hinder the collection of satisfactory information to support the next stage of the case, i.e. where someone is remanded the case will typically be dealt with more quickly than someone on bail, and correspondingly, there is less time for all parties to prepare for the onward progress of the case^[14].

Challenges with Verifying Information

Sheriffs noted that reliable, verifiable information to provide credibility around claims of stability was clearly preferred instead of relying on anecdote/hearsay from accused. This included letters from housing providers, employers or doctors where appropriate, social work reports outlining current compliance and good progress made related to other cases/sentences, where social workers or other support workers attend court to outline what support is in place and how the accused person is cooperating with their service, etc.

For COPFS, the lack of time means it can be very difficult for defence to verify information imparted by the accused:

“So the accused can often say that they’re suffering from mental disorders and don’t have capacity in terms of the offence. Whereas as part of our responsibility in terms of acting in the public interest, we’ll instruct psychiatric reports where it says, well actually, it’s the contrary…there are going to be situations where they put information forward on behalf of their client which is not something I think we could always accept at face value.” (COPFS)

For defence, lack of time also meant that they were forced to rely on the accused’s account of such factors and present this as given in court:

“Realistically, in almost all cases, my contact’s only with the client, so it’s what they’re telling me. So if they tell me they’re working, I’m taking that at face value they’ve got a job. I’m not double checking it. If they’re telling me they can go and stay at their mum’s house then, again, usually I would take that at face value.” (Solicitor)

Discussions with defence agents revealed that this problem was compounded where an accused appears from custody and has had their property removed (including their mobile telephones):

“…a person’s mobile phone is generally taken them from, people don’t really know phone numbers, that type of thing. It can often be quite difficult to contact next of kin or other family members for things like bail addresses to be checked and things. That can present difficulties.” (Solicitor)

“If the phone is a relevant production in the case, then you won’t get access to the phone. Sometimes if the phone’s not a relevant production and it’s within their property in the cells, then you can ask the PF to authorise the opening of their property bag to switch on their phone to get a phone number, to phone somebody on the off chance that they’ll pick up to provide an address.” (Solicitor)

It was also acknowledged that the Crown often has more time than the Defence to gather relevant information in the limited window available for custody cases, although in many cases this was still deemed inadequate. One Sheriff posited, however, that if resources were available, Crown would be ideally placed to gather much of the ‘context’ data that is currently reported as missing:

“The Crown could do more because the Crown have the facilities. The Crown have had the accused in custody probably since the previous evening. The Crown could instruct the police to obtain information about employment and thereafter provide this with confirmed information about employment… [But] it’s resource driven. I think they could do that. I think that historically there’s been a reluctance to do that. To a certain extent, the Crown need to sign up to the whole idea of a presumption in favour of bail… there’s no reason why they shouldn’t make those sorts of enquiries because it’s in the public interest and they’re prosecuting in the public interest.” (Sheriff)

Assistance from the police in gathering much of this information would also be useful, it was suggested, especially if the accused is held in police custody for a period of time before their first appearance at court:

“The vast majority of the time when someone’s arrested, they’re just booked and put through the legal process, put through the police process and held for court…I wouldn’t think the police would go and get information to assist the person’s kind of prospects of bail.” (Solicitor)

Timing of Social Work Input and Sharing of Case Marking Information

In a time pressured system, it was noted by all stakeholder groups that not only lack of time presented a challenge, but also the points at which certain groups became involved in a case could be confounding. Primarily, this was linked to the time at which social work staff had a chance to review an accused’s position.

Importantly, this was one area of the current system where considerable geographical variation was noted across the six research case study areas. In two of the smaller, more rural, low/medium workload courts, examples were given of all custody cases being examined by social work teams (sometimes before case marking) to try and achieve an understanding of wider social needs presented by the accused. This often uncovered information which could be imparted either directly to the NICP team or to the local Depute. In other more urban, higher workload courts, this was not achievable due to volume of business and so only certain cases (i.e. those where bail was opposed) could be scrutinised in any detail by social work staff.

In all areas, social work receive the bail opposed notifications from the Crown, either throughout the day or a complete list each morning (the latter being preferred, if possible). Notifications typically contain the accused person’s name, the offence and their SCRO number. Any further contact with the Fiscal then tends to be via email where the social work team have any follow-up questions or areas for clarification. It was suggested that for more serious cases, the court based Fiscal will have marked the case, in which case the social worker can go and speak with the Fiscal, but in most other cases it has to be email contact with NICP as the case will have been marked centrally/by someone not based in the court.

Delays in receiving the bail opposed cases/lists were considered to be problematic, not only for social work (in respect of the time available for them to undertake interviews and assessments, liaise with other organisations, etc.), but also for others involved in the case:

“…we’ve seen some after 5pm at night in some cases…It’s been like that for years though, I mean, defence solicitors hang about for hours waiting for the papers… it’s very consistently bad that way… So before I even get any notification, I’d start gathering all the information and I’d speak to the solicitor, even if they’ve not had the papers yet, you know. I think it’s good to just sort of pre-empt things and be organised, given the delays that we often get. Yeah, it’s definitely in the client’s best interests but I really wish it was a lot faster. It’d make a massive difference, a massive difference.” (Social Work)

One Depute working in a high workload, urban area indicated that they tended not to liaise with Justice Social Work at the point of considering bail/opposition to bail as their input at this point would not likely impact on their considerations/decision:

“I have not engaged with CJSW [justice social work] on the consideration of bail. I assess the case from a risk-based perspective and am mindful of risks posed by repeated offenders and those who are subject to bail orders. I would unlikely be persuaded by CJSW information given the court’s currency is risk (my view being that past behaviour is the best indicator of further behaviour).” (COPFS)

Another Depute working in a more rural and lower workload court highlighted that they did not engage with Justice Social Work directly as they were not marking the case, but noted that case markers did liaise with social work:

“I personally do not generally engage with them as I am not the one marking the cases and preparing the bail instructions. I understand that custody case markers do liaise with social workers in the morning to organise CPN [Community Psychiatric Nurse] assessments/bail supervision assessments etc… From a court Depute’s perspective, any engagement is limited and has never (in my experience) affected the bail instructions I already have.” (COPFS)

A more direct communication route between social work and case markers would be helpful, it was suggested, and could prevent the need for some of the unstructured discussions that are currently played out in court where new information is brought to the court after initial case marking:

“Quite often social work visit the accused in the cells before a custody calls and have helpful discussions about issues such as housing or identify concerns about the accused if they were to be remanded. However, social work are often not advised of who is marking the case and therefore this information is not fed back and it might be useful to have a channel of communication in the event that social work wish to flag a specific consideration.” (COPFS)

Again, the main barrier to getting the right information from the right people was time - that narrow window when custody cases become apparent to justice social workers doing bail supervision or EM bail assessments, and the volume of cases to process. Some workers will prioritise those considered to be ‘vulnerable’ and those which they think are most appropriate for bail supervision, not least given an assessment can take an hour or more to complete for bail supervision/EM bail.

Additional suggestions for process improvements included the need for bail supervision to be based on a fixed period of time, rather than indefinite periods. Better communication between sheriff clerks and social work teams was also encouraged regarding updated court appearances, other charges, etc.

Breaches of Orders and Failure to Appear

Three system issues arose in relation to breaches of bail orders and failure to appear, these being:

• concerns that the accused may not sufficiently understand bail orders and the conditions of bail
• concerns that the accused may not sufficiently understand the consequences of breach
• Crown, Defence and Sheriffs often not knowing or being given information relating to breaches of historical orders.

Understanding Bail Orders and Conditions of Bail

Solicitors in particular noted that there may be some issues around accused not understanding bail orders and the conditions of their bail:

“…by the time that someone’s been granted bail, then they’ve got one eye on the door and they want to get out and they don’t want to listen to me saying, now it’s very important that you don’t go into that street or it’s very important that you must not reply to any phone calls that she may make with you…They get it in writing from me. A letter will follow once I’ve done my court clean-up, so that’d be about 3, 4 days by the time it comes out in the post [and]…Clerks will print off a bail order…It’s very wordy though. I think that’s something that if my voice was to be heard elsewhere, then I’d be saying, what they leave court with, the explanation of the bail conditions, is not very user friendly.” (Solicitor)

For social work staff this point was not negligible and discussions focused on how easy it could be for some accused to inadvertently breach conditions of bail or have sound justifications for doing so which might be overlooked in the current process.

As an aside, some defence agents also noted that the Crown often did not have up to date information on the number and status of bail orders that an accused may currently be subject to - this occurred frequently, it was felt, and could sometimes cause confusion in court.

Understanding the Consequences of Breach

In a similar way, among solicitors, there were some concerns that some accused may not fully understand the nature and seriousness of bail orders, and that in some cases, this resulted in them being set up to fail (although little more could be done by Sheriffs or solicitors in this regard, it was stressed):

“I think they understand what bail means, I don’t think they understand the consequences of failing to follow bail orders. I don’t think many people understand that…I think some Sheriffs will go into quite a bit of detail about what’s expected of them in terms of being a privilege of the court which has then been extended to them but further to what’s really written down, they need to read the bail order and they need to understand that they could be prosecuted for failing to follow it and could face custody as a consequence of failing to follow bail orders. I don’t know what else could be done really.” (Solicitor)

Understanding Historical Breaches

While Sheriffs noted that breaches of previous court orders (including bail orders) and failure to appear were significant in influencing decisions to bail or remand, other stakeholders noted that there was often little understanding of the reasons for previous breaches, and this wider context information might, in some cases be helpful). For example, COPFS marking staff would often not receive information about the nature or reasons for previous breaches and, while it was posited that defence would be responsible for providing information regarding mitigation around the offence, solicitors would often not have sufficient time to discuss this with clients in advance of their court appearance (unless the client and their offence history was already well known to them):

“I don’t think it’s that often that we would look into the circumstances of in what way they breached the bail. It’s more about the fact they have done it previously.” (COPFS)

“…[multiple previous breaches of bail] would suggest to me that they can’t be trusted to adhere to a bail order - they continue to offend, they continue to breach bail, be that a curfew or contacting somebody. So, the more and more they’re on bail, I do think there comes a point where they can’t get bail again but…I wonder if the court’s maybe taking into account how vulnerable the accused is or maybe their age, they might have a real lack of previous convictions?” (COPFS)

At present, only solicitors sought to obtain information on the ‘reasons’ for previous breaches, and this information was often collected only if time was permitting:

“…we often have this issue with clients between bail and the Sheriffs will say, are we anticipating that they’re going to say they’ve not obtempered court orders in the past or failed to engage supervision, etc. or bail orders in the past. So those are things we need to understand from clients as to why they didn’t engage and why they now say they would engage.” (Solicitor)

Suggestions were made that more routine information on the background/nature of breaches in any police report may be helpful to case markers (especially in relation to domestic abuse offences). At present, COPFS staff reported that they may need to spend additional time proactively seeking such information to inform their decisions:

“It just says that it’s a breach, it doesn’t say like any specifics. But as I say, we can go on and look through their cases, it just takes longer.” (COPFS)

“…if they’ve been convicted of it, then we think that, in the circumstances, there must have been enough to convict them of a breach of bail and we don’t really look much further beyond that, to be honest.” (COPFS)

Similarly, solicitors noted that an accused’s record would be explicit in showing breaches of previous court orders but that this was not balanced with information about previous compliance:

“…a record will quite clearly show when you breached court orders. It doesn’t so obviously state when you’ve complied with them. I mean, you can see somebody got a community payback order 3 years ago and there’s no breach on the record, so you can kind of make an assumption that they did it. But it’s harder to actually state with any certainty that’s what happened.” (Solicitor)

Overall, having more information available to the court and stakeholders at all stages regarding the reasons and circumstances around previous breaches was viewed as something which may be helpful to the decision-making process to prevent breaches being viewed solely in numeric terms.

Non-Person Centred Approaches

At all stages of the bail and remand decision making, there were observations that, while all accused were dealt with on a case-by-case basis, it was difficult to be ‘person centred’ (again, given pressures of workload, time and challenges to gathering information about the lifestyle factors, personal histories of accused and complainers, and the relationship between the two).

From the very first point of police detention, it was suggested that the system and parties’ decisions within it could be too “formulaic” and it was often very possible to predict police decisions (to liberate or hold in custody) and Crown marking decisions regardless of the ‘person’ involved (the focus being very much on the nature of the offence committed):

“I think because they’re marked centrally now, there’s a lack of human touch to the way that cases are marked. It’s very - the policies are quite blanket - in terms of how they’re applied, it’s like a blanket put over it. I don’t think the way that the cases are marked really lends itself to that kind of human element, as it were.” (Solicitor)

Crown, in particular, were perceived to adopt non-individualised approaches:

“…they’re not seeing people as individuals…they are seeing Mr John Smith, domestic assault, here’s what we want from the Sheriff. Sheriffs, as much as I fall out with them every now and then, generally speaking, do deal with people as individuals and they are doing more so now as the years go on. And most lawyers, including myself, will deal with all our clients individually. No two are the same...” (Solicitor)

The most frequently cited example of non-tailored arguments was the perception that the Crown would almost always oppose bail in domestic abuse cases and there was perceived to be a ‘blanket policy’ which often gave little notice to the individual circumstances of the specific case involved:

“I think there’s a wariness from them as to, if I do not oppose bail, this complainer in this case may complain that I did not oppose bail…So they would rather say the words, ‘oppose bail’, than have the Sheriff grant bail.” (Solicitor)

“The main Crown opposition to bail is when it suits the government policy…That’s it. Fiscals in court at the stage of bail are puppets for government policy. So, for example, the Scottish Government is taking a robust approach to domestic offending. That’s a fantastic thing to hear. What that means is then domestic offending, bail opposed.” (Solicitor)

Only Sheriffs, who were privy to all information, were seen as adopting a more holistic approach. As a result, there were some ‘norms’ which all parties seem to have accepted as inevitable, and which act as informal precedent in making decisions, especially at short notice:

“I think, in time, you end up becoming sort of accustomed to what is likely to happen. You’ve become used to how Sheriffs behave, how they read certain things, how they might deal with certain things, you kind of become used to it all, I think.” (Solicitor)

“A good Sheriff knows the bail submission before you’ve made it, you know, he knows what you’re going to say about the person sitting in the dock.” (Solicitor)

The lack of person-centred approaches was compounded by the fact that there is often very little opportunity in the system for professional stakeholders to have direct contact with the accused and/or witnesses and complainers (as appropriate). This potentially left room for interpretation bias to creep into information presented at various stages in a case.

The wider system itself, and the nature of legislation directing bail and remand decisions was also seen to work against a more person-centred approach:

“It’s not really a criticism of the court as such but legislation, criminal legislation doesn’t lend itself well to dealing with people’s mental health issues. It’s quite clumsy and it’s quite black and white, it’s quite difficult to navigate.” (Solicitor)