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

Human Factors

While the legislation underpins all decisions with regards to bail and remand, participants in the research identified a number of human factors which inevitably interacted with the legislative framework to influence such decisions.

Consistency and Natural Variation

Most respondents from all stakeholder groups agreed that there was a lack of consistency in decisions made by different Sheriffs, although some noted that it was largely inevitable and driven by human variation in attitudes and perceptions and how the legislation was interpreted:

“I just think a big part of it is different Sheriffs have different views about who needs to be remanded and who doesn’t. You know what certain Sheriffs that, in your view, might be more inclined towards a remand and others who wouldn’t…it’s not just their personal opinion but it’s how they interpret the legislation and they interpret risk and risk of reoffending and danger to the public and stuff. Everyone’s just got their own I suppose interpretation of what would amount to that.” (COPFS)

“Sometimes if you hear it’s a particular Sheriff that’s on the bench of the custody court that day, you will presume that most people are going to get bailed that day. And conversely, if it’s another particular Sheriff, you can presume that most people will be looking at remand that day. So, there are some Sheriffs that are more bail heavy and some that are more remand heavy, and then a few that kind of fall in the middle.” (Social Work)

“It totally depends on the Sheriffs, to be honest with you. We’ve got a lot of clients that will hand themselves in on certain days because they know that certain Sheriffs are on the bench and that there’s a much higher chance of them getting out than if they were to go in front of a different Sheriff, for example.” (Social Work)

“There’s consistency with the Sheriffs as in you can tell which Sheriff you’re more likely to get bail with than not, to some extent… There’s obviously softer Sheriffs and harder Sheriffs, Sheriffs that I’ve seen remanding clients that another Sheriff wouldn’t have done in a million years.” (Solicitor)

While appearing before a certain Sheriff was perceived as potentially working for or against some accused, all stakeholders agreed that this variation within the ultimate decision making by Sheriffs did not affect their own actions (case marking, client instruction, bail assessments, etc.). It was also something which was seen as unavoidable and unlikely to be affected by any legislative or system change.

Client Instructions

Similarly, while Sheriffs had the ultimate responsibility in bail and remand decisions, solicitors were keen to stress that their clients (the accused) also played a key role in the process which should not be overlooked. For solicitors, the instructions of their client heavily dictated the arguments that they were able to present in court and they stressed that they can only ever ‘advise’ about whether or not to seek bail (and if it was likely to be granted).

In most cases, especially where someone appears from police custody, it was noted that accused would seek bail irrespective of their agent’s advice:

“I tend to find that the clients that are held in custody tend to be those with more of a record and, realistically, their only concern is - am I getting out? If bail’s OK, they will almost always plead not guilty to get out on bail and put off the evil day basically.” (Solicitor)

Similarly, in most cases, solicitors would encourage a request for bail, even if they considered it unlikely to be granted:

“I can probably cut to the chase and say I will be guided by the client and it’s very rare that I would say to a client, you should not ask for bail. It’s always worth asking. There may be times that you know it’s hopeless, but there are times when I’ve asked in hopeless cases and it’s still been granted…the first question when you meet your client that they’ll ask you is, am I getting out today? That’s at the forefront of their mind, that they want to know are they getting out and they’re not going to get out unless you ask for bail.” (Solicitor)

That being said, several solicitors noted that some accused do not want bail, but want to be remanded because of either drug problems in the community, or for protection, or to ‘use up’ some of their months of any potential sentence:

“…you do get people that don’t want bail, particularly people who have got drug or alcohol issues. Quite often, they will want a period of enforced sobriety and you will get people that say, you know, I’m in bother with drugs, I don’t want bail, I want a period of remand. That happens more often than you would think.” (Solicitor)

Social workers also noted that some accused persons will not pursue a bail application as they would prefer to be remanded in order to have accommodation, food, access to medical and mental health services, etc.:

“I mean, a lot of people that lie out on the streets, sometimes a wee stint in the prison… it’s almost like respite. And that sounds awful, I don’t mean to say that in a way, but it’s true. I’ve had folk say to me ‘it’s alright, I’ve told my lawyer not to move for bail, I’ll just go up the road, hen. I’ll just go up the road and I’ll get sorted’… Because when somebody goes up to custody… they’re getting their three square meals a day, their methadone script, there’s housing services up there, there’s a social work service up there, there’s a gym, there’s various other things. So yeah, locking somebody up is not the answer I don’t believe, but following on from your question, yeah I do think that happens [remand being used due to a lack of support in the community].” (Social Work)

Sheriffs commented that they were aware of the duties of defence agents to follow client instructions and this was also factored into decisions, i.e. defence may seek bail even where they know that the application has little merit due to their obligation to put their client’s case.

Adversarial Nature of the Justice System

Across interviews, comments were also made which highlighted a seeming lack of collegiality in the bail and remand decision making system, which in part was necessary and inevitable given the adversarial nature of the justice system. For example, views were put forward that while information from social work teams was undoubtedly valuable and important in informing a Sheriff or Judge’s final decision, it should not necessarily influence the Crown’s position as public prosecutors:

“…the Crown have got a duty to protect the public and the Crown have got a duty to say if someone should be remanded and put the arguments forward for that…I personally never have been given a bail supervision report and went, right on the basis of that report, I no longer think that I need to oppose bail. I’ve always kind of taken the view - right OK, that’s that. I’ll put the Crown’s position on bail up, the Sheriff will have that, they have the Defence submission, they’ll have the bail supervision report and that will all be assistance to the Sheriff.” (COPFS)

It was noted that difference in views around the gathering and sharing of relevant information between stakeholders could introduce bias to the system. The clearest example of this was that most COPFS respondents viewed that there was no room for discussions between Crown and Defence ahead of the first appearance/hearing, such is the adversarial nature of the system. It was indicated that the information put forward by the defence in the court room would be unlikely to change their decisions over bail and opposition to bail. Indeed, some COPFS respondents also noted that it would be inappropriate for them to liaise with the defence before consideration of bail as it was the court’s decision to make and they should not attempt to subvert this:

“I am not minded to accept defence submissions before considerations of bail. The Sheriff is constitutionally charged with making the decision; the PF acts in the public interest as a responsible public prosecutor in assessing risk and making submissions. To acquiesce to defence submissions outwith Court could amount to a usurpation of the function of the Court.” (COPFS)

One Depute and several solicitors and social workers did, however, note that there may often be human factors that only the defence may be aware of, due to the unique nature of the relationship that they develop with their client. In such cases, pre-court interaction between Crown and Defence may be appropriate if there was specific information that may be usefully shared. While informal sharing of information existed in some areas, this was often relationship specific and boiled down to familiarity and closeness of individual practitioners working in different courts.

Again, COPFS respondents stressed that risk was assessed objectively on the basis of the information from police, the accused’s record, pending cases, etc. Interestingly, for Crown respondents, evidence presented by the police was described (both explicitly and inferentially) as being “objective” compared to that provided by, for example, Defence or social work (both of which was perceived to be more intuitive, personalised or ‘accused-focused’). Information from the police was not, however, always shared in equal part with Crown and Defence (some informal relationships between the police and Defence were noted, which sometimes eased the transfer of information, but this was not routine).

The adversarial nature of the system also means that partners are each contributing only ‘in part’ to the whole process (i.e. lack of a whole system approach). Inevitably, the decision-making process requires everyone to play a unique part and while the informing of decisions falls to the court as a whole, rather than any one entity, it was noted that the Sheriffs/Judges make the final call, in essence removing any final accountability or sense of ownership on behalf of other parties:

“I’m not the one making the decisions. I mean, at the end of the day, it’s not my decision about whether that person is remanded. All I do is decide whether to oppose bail or not - you know, it’s down to the Sheriffs.” (COPFS)

Social Work Presence and Input

Across the case study areas, there were also different models of social work access available, with some areas having a physical social work presence in court rooms each day, and others providing social workers in the court room only on request, or when giving verbal feedback would be quicker than waiting for an assessment report to be written (e.g. at the end of the day). Where social workers were not physically present, it was speculated that they were too busy to be able to spare someone to be based in the court room, with a few social work respondents suggesting that it had been considered not a very good use of social workers’ time. Where staff were based in courts routinely, there was consensus across all groups that their physical presence in the court room did (or could) provide clear benefits.

Indeed, one respondent suggested that the fact social workers were no longer present in their local court room could have potentially eroded the relationship between the Sheriffs and the services provided by social work. They noted that Sheriffs could no longer ask quick questions or seek instant clarification, rather they would have to suspend the hearing to get social work into the court room, and this could be creating a barrier to use:

“I think if you’re there and you’ve got a visible presence, then [the Sheriff will] say, this is what you’re doing. And if they’ve got any kind of questions in the back of their mind that they would like to ask, they’ve not got the forum to ask because you’re not there - they don’t want to recall the case to get you to come in, for you to go through for a case to be recalled. Court time’s really valuable.” (Social Work)

There was also some notable variation in the frequency and nature of interactions between Defence and social work in different case study areas. In some cases, social workers were rarely called upon on first hearing, other than perhaps to get contact details for family members (if the accused’s mobile phone had been taken from them on arrest). In others, there was regular pro-active contact from social workers to defence agents and pre-emptive action with regards to bail supervision assessments:

“…we’re a relatively small jurisdiction and they will literally pick up the phone and ask us whether or not we believe our client should be assessed for bail. So, it actually comes down to us. Ordinarily, I would say yes because it’s worthwhile because most people want to ask for bail so yeah, we normally would have a discussion either on the telephone or if we see them at court early enough on, social workers would then go down and see the person.” (Solicitor)

In yet other areas, contact between solicitors and social workers was described as following no regular pattern or routine:

“This could be quite hit and miss…yes, there’s a regular court social worker who will have updates as to how someone’s performed on CPOs and it’s useful to know if someone’s complying on a CPO, then there’s a good chance that they will comply with a bail order. So [here] is a bit hit and miss because the criminal justice social workers aren’t as regularly in attendance at custody court as they are [elsewhere]. I think it’s a scale issue. There’s more bodies going through [this court] than there will be at [elsewhere], so they can free up someone from the social work team…(Solicitor)

In most case study areas, however, solicitors spoke very highly of their interactions with social work and perceived no challenges in accessing the information needed to inform their arguments. Again, in areas where there were dedicated court social workers either in the court building or in the court room on the day, this was cited as particularly good practice which facilitated the bail and remand decision making process:

“…we have got very good and experienced court social workers. They know their job. They themselves are very good at being proactive in coming to speak to us about issues. They prepare bail supervision reports, electronic monitoring reports and there’ll often be a lot of useful information in those. Yeah, it’s a good relationship and it’s a very helpful thing.” (Solicitor)

Among social work staff, there was said to be much more engagement from the Defence compared to the Crown, as solicitors actively sought out social work to provide input for their client, either in assessments for supervised bail or EM bail, or to ask for updates on how their client was engaging with any existing order which social work was involved in. However, it was said there were sometimes conflicts in the priorities and interests between defence agents and social workers, with some defence agents trying to have cases heard quickly and before social work have had a chance to submit their reports if the defence knows they might find something which would count against their client. This aside, there were no explicit calls for more or better communication between defence and social work than is currently the case.

While in most areas social workers reported that their input was usually valued by justice partners and they felt ‘heard’, in one area social workers reported that they were not convinced that Sheriffs and other court officials actually listened to their reported assessments:

“I still think that there’s potentially been occasions where I’m like, has this report been read? But I don’t have any control over that because I don’t know what happens when they close the [court room] door. Because there’s sometimes these… occasions where some people have been given bail supervision where we have stipulated that they were unsuitable.” (Social Work)

The importance placed on social work input was also described as being variable between Sheriffs:

“It varies between Sheriffs. Some Sheriffs we’re aware of are more on board with what we can offer and what our remit is. Some are just pretty much ‘absolutely not’ and will only seek our advice if absolutely legally necessary. For the most part, more Sheriffs will consult us and look for what we can offer…For some Sheriffs though, they just maybe have never really got on board with social work being involved in these kinds of things…There are just some very old-fashioned - not very many, maybe one or two Sheriffs that just would prefer not to include social work in any of their decision making. They just want to make them on their own.” (Social Work)

Most, however, felt that, overall, social work input was valued and taken into account where it was requested and provided, even if the Sheriff ultimately decided on another outcome.