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

Other Considerations

Decisions in Summary vs Solemn Cases

Among the judiciary, it was implied that the more serious the offence, the more likely a Sheriff would consider remand, and indeed the Act encourages remand post-conviction under solemn procedure, not least if the likely sentence is a custodial term. However, Sheriffs stressed that each case is acted upon on its merit and is a ‘nuanced’ decision in terms of weighing up the seriousness of the alleged offence versus previous record of the alleged offender (apart from in cases of exceptional circumstances in Section 23D of the Act):

“I think it’s very difficult to generalise beyond saying that, in my experience at least, I would be more likely to remand someone in a solemn case than in a summary case. I mean, in general, my personal approach in summary cases is pretty liberal when it comes to bail. Whereas in solemn cases, just because of the gravity of the offences, you have to drill down a good deal further.” (Sheriff)

Decisions for the Crown in their case marking followed much the same rules, i.e. the more serious the offence and the greater likelihood of a custodial sentence, the greater likelihood of opposing bail. One perceived advantage of the solemn procedure compared to summary, however, was the function of placing an accused on petition prior to full committal, as this often gave more time for the collection of more evidence to inform decisions on opposition (or not) to bail, i.e. petition was described as an effective tool to allow for the case to call but further enquiry to be undertaken. The lapse between petition and full committal also provides an opportunity for the Crown to gather more evidence and present a corroborated argument, and provides a ‘buffer’ in which remand is used as a low risk option while all the facts are considered:

“So, in considering whether I’m going to oppose bail, I don’t consider the weight of the evidence. I consider the risk to the public…if we can’t move to fully commit, then we can’t have that person in custody, even though there might still be a risk to the public, we would have to release that person either on bail or just liberate them, even though we know there’s a risk because we can’t hold people in custody if there is insufficient evidence against them. But at the outset, we would pursue the case on the basis of there being one source of evidence and the possibility of obtaining further evidence by instructing further enquiries and perhaps oppose bail on the basis of risk.” (COPFS)

Solicitors viewed this as a “second chance” especially if a different Sheriff was hearing the case and/or new evidence had come to light in this period to show a change in circumstance. In solemn cases, solicitors were also more likely to prepare clients that bail would be refused if a guilty plea was entered:

“If someone is pleading guilty to a solemn matter, they may have been on bail for the duration of the case but they’re now pleading guilty to a serious matter and I would be suggesting that someone ought to be advised upon pleading guilty to accepting responsibility to committing a criminal offence that is likely to attract a custodial sentence, then they should be ready for that bail to be revoked…I would always say to somebody, depending on how severe the offence was and how bad their record was, that a Sheriff in a solemn case could well be justified in saying, you’ve pled guilty to this, you’re now remanded in custody while we investigate the appropriate sentencing options.” (Solicitor)

For social work, solemn cases were also more easy to prepare for in terms of time available to collate information. Due to the system for those who appear on a petition, an accused appears initially and then again after seven or eight days (i.e. a “7 day lie down”). Therefore, if bail is refused at the first hearing it can be reconsidered eight days later, meaning social work have longer to try and source the relevant information and evidence needed to support the use of bail or any bail conditions/supervised bail/EM bail. However, it was also noted that social work is not always alerted to this to allow them the time to gather this information and they still receive very short notice requests from the defence to conduct assessments at the last minute.

One issue that was raised by social work staff was that, in solemn cases, accused persons could be subject to a supervised bail order for too long, due to the delays in the system currently and how long they would be kept on bail. They argued that reviews should be built into the process to address effectiveness and fatigue, with an aim to moving to standard bail or bail with special conditions after a suitable period of time:

“…with regard to solemn procedure…I personally have had people on supervised bail for over 2 years, which I think is outrageous, because of the backlog in the cases going through court…One guy at the end of it was found not guilty, but he could have went to prison if he failed to attend to meet up with me because it would have been a breach of bail… Now, I think what you can do on supervised bail is limited for having an impact. I think people get fatigued… I think that’s one of the things they really, really need to look at is the amount of time someone’s spending on supervised bail for it to be or remain effective. Because it’s quite clear that the longer someone is on it, the less impact you have and the more risk of going to custody they have if it’s somebody, as I said, that has not been found guilty of anything or pled guilty to anything. If you’re on community service or you’re on an SDS, Structured Deferred Sentence, a review date is set by the court after 6 weeks, 3 months, etc. I think the same thing should happen for solemn procedure.” (Social Work)

It should be noted that some respondents, including Sheriffs, suggested that the high remand populations which were often cited in different public forums could, in large part, be explained by delays in the journey time or time taken to get a case to court for solemn cases:

“Getting cases to trial more quickly would make a massive difference to the remand population. When we see reports that the remand population is very high… it’s mainly because of the backlog of solemn cases getting to trial at the moment because of the pandemic… but that means people are remanded for a much longer period. It’s not that more people are being remanded, but those that were remanded during the pandemic and those that have been remanded since are there together waiting for their trial. And until we get the backlog cleared, there isn’t an obvious answer to that. I really don’t think Sheriffs have an increased tendency to remand people.” (Sheriff)

Overall, it was considered that there was less ambiguity and less room for subjectivity regarding ‘risk’ posed by an accused in solemn cases compared to summary, and this meant that decisions to remand were often easier for all to agree with.

Likely Sentencing Outcomes

Most stakeholders agreed that the likely outcome of the case (in terms of a custodial or community sentence) would also inform, but not dictate, the decision on whether to bail or remand.

Sheriffs indicated that they would be unlikely to place someone on remand where the offence would not result in a custodial sentence should they be found guilty:

“You’re really very unlikely to remand anyone who’s not ultimately going to jail if you don’t think that’s a likely outcome if convicted.” (Sheriff)

In more serious and solemn cases, it was noted that the current delays in the system meant that the use of remand was carefully considered and weighted against the likely time that could be spent on remand before the case could conclude and the likely sentence that would be imposed if found guilty. Here however, a range of other relevant factors, such as risk to the public, risk of further offending, etc. would be equally or more important and so likely sentence would be one of many factors considered.

Solicitors too indicated that likely sentencing outcomes influenced the advice they may give their clients (and that a likely custodial sentence may result in them going against the standard rule of advising a request for bail):

“…there’s a very real occasion whereby I’ll be saying to somebody that there’s no point in asking for bail because you will get a sentence for this and any sentence that you get will be backdated. And if someone’s released on bail and then gets a sentence, then they lose the benefit of a backdated sentence. So, I do have one eye on previous convictions and the likelihood of a custodial sentence being imposed and that would play a factor.” (Solicitor)

In addition, solicitors might consider giving different advice where a custodial sentence was likely and any time spent on remand could be backdated to count towards their sentence served:

“…if somebody’s ultimately going to get the jail, then there’s not really much point in them getting out in-between times, they’re better getting a backdated sentence.” (Solicitor)

Indeed, in general terms, the factors considered for decision making at each stage in the court process were generally considered to be consistent, particularly between the first appearance and other points pre-conviction. The main change in stance for Sheriffs occurred after conviction but before sentencing (with likely sentencing outcome impacting heavily on decisions to remand where appropriate):

“The point of differentiation is at the point of conviction I would say, and that any difference of approach there relates to what’s the likely disposal. So, if it’s inevitable at the point of conviction that someone is going to get a jail sentence then, of course, I would be thinking about whether that person should be remanded at that point… you’ve got to the point where someone has been convicted, so some of the things that you might be thinking about in the context of remand in the earlier stage disappeared because you’re dealing with someone who’s not accused of an offence but has been convicted of an offence. So the balancing is perhaps rather different then.” (Sheriff)

Bail Reviews

While reviews were considered to be uncommon and require significant material change in circumstances, the only exception was where an accused had been held on remand for a significantly long time period, and particularly where this met or exceeded any likely sentence that would be given should they be found guilty - this was said to be happening with more frequency currently due to the backlog created by COVID-19.

Several solicitors viewed that, because of the increase in bail applications being accepted, and a concurrent reduction in remands (at least since COVID-19), there were fewer appeals against remand. In terms of bail review hearings, which had increased since COVID-19, one solicitor said that bail variation applications were ‘a contentious issue’ with PFs who disagreed with solicitors often on what constituted material change. Reviews, however, might be asked for where, for example, a case had been downgraded from solemn to summary and the accused had originally been remanded; because of delays by the Crown in calling witnesses or amassing evidence (e.g., CCTV evidence), gaining accommodation or employment, and the attitude of the complainer (although it was noted, in the latter case, that the seriousness of the offence would outweigh any request by a complainer that the accused should be allowed to return to the family home).

Among Sheriffs, it was felt more likely that reviews and changes during the pre-conviction stages would most likely be to amend and update bail conditions to meet changes in circumstances (e.g. to adjust curfew times to accommodate changes to working hours) rather than to fully revoke bail or release someone from remand - although the same factors would be considered as at the initial stage of decisions, e.g. nature of offence, what risks are posed, what quantity and quality of information has been provided regarding context and lifestyle, etc.

COPFS respondents posited that there was a level of variation between different Sheriffs/members of the judiciary with regards to reviews, with some seen as more ‘lenient’ and others less likely to grant bail on review, but with most in the middle ground:

“In my experience I would say, for the most part, there is a consistency and you can generally guess what the decision will be, however, there are a small number of individual Sheriffs at either end of the spectrum who tend to be more lenient or stricter respectively.” (COPFS)

A final specific area in relation to existing practice which some solicitors viewed as potentially problematic was miscommunications in domestic abuse cases where complainers wished to see special conditions of bail removed, but this was not communicated to the accused’s defence team:

“…if a complainer was so minded to seek or to support the bail conditions being removed, then we’re reliant on that complainer contacting the PF, contacting their own lawyer and then that filtering back to us, to say, this person does not support these bail conditions, you may wish to lodge a bail review. Now, I’m sure there are many, many times that I don’t get wind that that is what they want to do and I think that’s a difficulty in the system.” (Solicitor)

Bail Appeals

Bail appeals were noted to be rare. Instances which might cause the Crown to appeal a decision to admit an accused person to bail, tended to focus on ‘exceptional circumstances’ and threats to others from the accused being on bail/in the community:

“Where there are exceptional circumstances suggesting that the accused poses a truly significant and serious risk to a witness(es) and there is specific intelligence to that effect from the police, or there is a significant, sustained, serious course of conduct being perpetrated towards a witness. I haven’t often come across cases where the Crown bail instructions note that any decision to bail an accused should be appealed…” (COPFS)

Demographic and Social Factors which Impact Decisions

When asked about other factors which may influence decision making, demographic and social characteristics were largely seen as secondary to offence histories and the risks posed by the accused to others, and they were generally not considered to be the determining factors in Sheriff’s decision making. It was said that these would only be considered in borderline cases in order to help assess the risk posed and whether there were mitigating circumstances for/against the use of bail/remand. The main nuances were:

Gender/Sex

This was not typically considered to be a major factor in the decision-making process. It was noted that the types of crimes which men and women are generally accused of varied and therefore this created differences in decision making, but this was linked to the nature of the offence rather than the accused person’s gender. A person’s caring responsibilities (discussed below) were also considered, and as women more often had significant caring responsibilities, this may also generate a gendered difference, but again the decisions would be driven by the caring responsibilities themselves, rather than gender:

“A female accused is more likely to have childcare responsibilities… Female accused tend to have less serious records, shorter records and tend to be less involved in violence. These things, do tend to follow a pattern with their gender but… it’s not their gender per se.” (Sheriff)

Age

Most Sheriffs indicated that the age of an accused would be a relevant consideration where the accused was either very young or very old (i.e. generally aged under 21 or over retirement age):

“…all other things being equal, I might give a young person the benefit of the doubt at a particular level of seriousness of the offence, which I wouldn’t necessarily for an older person. So it’s relevant to some extent.” (Sheriff)

Several Sheriffs expressed a reluctance to remand ‘young’ people mainly because of their perceived immaturity and also some questions around breach intent (i.e. whether the consequences of previous breaches of bail or other court orders were sufficiently well understood by young people and/or if they had been breached inadvertently through lack of understanding of the severity of such breaches, etc.). The nature of offences committed by younger accused was also described as being often ‘less serious’ and, the presumption against shorter prison sentences meant that young people would be less likely to get a prison sentence and therefore less likely to be remanded. It was also again noted that younger accused tend not to have built up significant offending histories.

For adults at the other extreme of the age spectrum, several Sheriffs commented that criminal activity was often accompanied by co-existing issues such as homelessness, drug addictions or physical and mental health problems. These factors might often be taken into account when deciding that bail was more appropriate, especially if conditions could be put in place to ensure access to and compliance with the necessary help support required to address these wider needs.

Despite those at the lower and higher end of the age spectrum being described by several Sheriffs as being less likely to be subject to remand than those in other age groups, participants again stressed that age was never considered in isolation or as the sole determining factor.

Housing status (including homelessness)

Several Sheriffs commented on the stability of someone’s housing as being an important (yet never determinative) factor and decisions would often entail consideration of the risk to someone losing a tenancy if they were remanded. Several Sheriffs noted that they may remand someone in the short term (usually overnight of for a day or two) so that housing enquiries can be made and a bail address secured:

“…to be on bail, you need a stable address… What I have done in a small number of cases is to remand an accused person until accommodation that is suitable for that person is available.” (Sheriff)

Several others (across a range of stakeholders) commented that the lack of a permanent address can present a challenge to bail. Some noted that defence agents would often use their own business address as a means of helping an accused to secure bail, however, others suggested this was no longer allowed by Sheriffs in their area/certain Sheriffs, or that the time allowed for the use of such a temporary address had reduced significantly making it difficult to secure a more permanent bail address in the interim. This highlights a possible inequity of likelihood of bail depending on the ability and willingness of solicitors to engage in such an arrangement.

Another issue, raised in connection with excluding alleged offenders from a house/street/area because of domestic assault, was that the individual in question may be deemed voluntarily homeless by the local authority, and hence not be a priority for alternative housing. One Sheriff noted that the term ‘voluntarily homeless’ can be open to interpretation by some local authorities more than others. Another questioned whether making somebody homeless because of special conditions on a bail order was ‘proportionate’.

Employment status

Similarly, having stable employment was seen as a positive factor which was linked to stability, reduced offending, and providing community benefits. Sheriffs would typically consider whether the accused would be likely to lose their job if held on remand:

“If someone who has a pattern of offending and is possibly on the cusp where they might make a difference in their life and they have a stable tenancy and their first job in a while, that might mitigate in favour of granting them bail because those are the things that might anchor them to a different future. So if I’m told someone’s going to lose their tenancy and their job if they’re remanded and it’s a borderline case, then that might tip me in favour of bail.” (Sheriff)

The main caveat raised by Sheriffs was the reliability of information currently presented by the Defence in relation to employment, i.e. scepticism around Defence agents saying that their client was due to start employment “next Monday”, with nothing to back that up (echoing findings linked to problems with verifiable information, discussed above). Employment status alone would never dictate a decision.

Mental or physical health concerns

Most Sheriffs agreed that mental and physical health concerns would always be taken into consideration, providing the conditions were “genuine and serious”. It was also noted that, if somebody was receiving ongoing treatment in the community for mental or physical ill health, Sheriffs would be reluctant to disrupt that treatment in favour of remand (unless in exceptional circumstances and unless the commensurate care could be offered in the custodial setting). However, a lack of community and custody based services to assist with mental health needs was noted by many (discussed more below). Overall, having a physical or mental health issue did not rule out the use of remand, however, especially if provisions were available within the custodial setting and visits to hospital facilitated for treatment, etc.:

“It might be that if someone is in the course say of medical treatment, that might make it more likely that they will get bail, all other things being equal. Again, it may not be the sole determining factor, but it’s certainly relevant. The issue with mental health is even more complicated because if accused persons have complex mental health problems, what I want to know about is what, if any, treatment are they receiving and how is that going to be managed while this case is live.” (Sheriff)

Drug/alcohol problems

Several Sheriffs noted that drug and alcohol problems were endemic amongst the cases before them. While again, most suggested that addictions would never be the determining factor in their decisions, this would be considered (and was likely to impact/interplay with the other legislative and demographic factors above), and the current situation could help to inform bail/remand decisions. For example, it was noted that if an accused had recently sought help for their addiction and was currently involved with support services/treatment then this could indicate greater stability and encourage the Sheriff to lean more towards the use of bail (all other things being equal):

“I suppose it’s more about how it’s interplaying with the person and their behaviour. So if you’re someone who has a bad record for violence and it’s an offence of violence and you’ve got drug and alcohol problems that you’re not addressing, it’s a kind of aggravating factor. But if you’ve got drug and alcohol problems and in some way in a sense you’re vulnerable because of them and you’re thinking about - and you’re open to rehabilitation opportunities, then it’s a factor in favour of granting bail. So, it can increase or decrease their chances of bail depending on whether it’s increasing the risk or decreasing their risk really.” (Sheriff)

However, if the accused had done nothing to address their addictions, it was felt they were less likely to comply with a bail order and were more likely to reoffend. Some Sheriffs also noted that treatment can be provided in the prison while they are held on remand (although they stressed they would never be remanded for this reason).

Family commitments/caring responsibilities

Sheriffs noted that having family or caring responsibilities was used quite often by accused persons or their defence as a mitigating factor in support of bail and against the use of remand, but that this was often not well substantiated. It was again said that the situation would need to be acute for this to have an impact on decision making: for example, that an accused was a single parent and that their child(ren) would end up in care if they were to be remanded. Sheriffs typically sought information on the extent of caring responsibilities, whether anyone else was able to undertake these responsibilities, whether other services could be brought in to provide suitable care, etc. Overall, however, this was not cited as a factor which would generally weigh heavily in Sheriffs’ considerations.

Again, Sheriffs stressed that demographic factors did not ever drive decisions in their own right, and that legislative criteria were always dominant in decisions:

“All of these [demographic and personal factors] are secondary to record and risk. If the record is so bad that either Section 23D applies or there’s a substantial risk of offending under S23C, it is unlikely that any of these factors would be sufficient to result in a grant of bail. If they were likely to get bail anyway, these factors wouldn’t sway the decision either way. So the factors are relevant but they’re relevant to a band of cases that are in the middle ground, if you like, where discretion is exercised about bail.” (Sheriff)

Other stakeholder representatives concurred that decisions were typically driven by the nature of the offence in any given case rather than by demographic features of the accused. Some perceived that men possibly tended to end up on remand more frequently than women, simply due to the higher number of men going through the justice system, and because their offending tended to be more serious in general. Some comments were also made that young people tended to be remanded more often than older accused, although this was purely anecdotal and counter to the majority view offered by Sheriffs.