Decision-making on bail and remand: interim findings report

Executive Summary

Introduction

In late 2019, the Scottish Government commissioned an independent research study into decision-making in relation to refusal of bail in Scotland. The overall aim of the research was to explore how decision-making works in practice, as well as to gather perceptions on bail options.

This report presents interim findings from the research. Specifically, it outlines the results of two online surveys - one conducted with Crown Office and Procurator Fiscal Service (COPFS) staff and one with currently serving members of the judiciary.

Methodology

Two separate online surveys were developed by an independent research team in collaboration with Scottish Government research and policy staff and other interested stakeholders. The research was staggered with the survey of COPFS staff taking place in Spring/Summer 2021 and the survey of judiciary taking place in late 2021 into early 2022. Both surveys were anonymous, and participation was voluntary.

A total of 64 COPFS staff took part and 31 members of the judiciary, including 24 Salaried Sheriffs, 5 Summary Sheriffs and 2 Senators. While the response rates for the two surveys were low, there was considerable detail and range in the feedback provided by those who did take part. There was also reasonable representation within the two samples in terms of professional experience and tenure. All sheriffdoms were also represented by at least one respondent to each survey.

The surveys included a mix of both open and closed questions. Tables and charts summarising the quantitative data were produced and qualitative data were analysed thematically to identify the main themes to emerge. All data were analysed at the aggregate level in order to uphold anonymity of individual respondents.

Key Findings - COPFS

Overall, feedback from COPFS staff working on both summary and solemn cases was fairly consistent, with similar factors identified as being the 'main' factors for opposing bail in relation to both sections 23C(1) and 23C(2) of the Criminal Procedure (Scotland) Act 1995. The other main findings include:

• the risk of the accused committing further offences if granted bail, along with evidence of previous breaches of bail, having committed the offence while on bail for another offence, the nature of any previous convictions, and the seriousness of the offence were all flagged as key factors by the Crown in considering whether to oppose bail;
• respondents also highlighted the importance of protecting accusers, victims, witnesses and the general public when decisions are made to oppose;
• COPFS respondents reported that opposition to bail usually results from a combination of factors rather than as a result of just one ground;
• the most common special bail conditions requested included having no contact with named individuals (typically the accuser/victim or witnesses), having to stay away from specific locations, having a curfew, or having to sign on at a police station;
• awareness of bail supervision services was variable and bail supervision services were perceived as perhaps not being used to maximum effect in the justice system at present;
• the use of special bail conditions was considered to be particularly beneficial in domestic and sexual abuse cases; and
• supervised bail was seen as useful for younger accused persons and those who may need support to adhere to bail orders.

More general feedback from the Crown included systemic issues influencing decisions such as variation in practice around the use of police undertakings, a lack of time and resources to consider all the information available in a case, and a perceived lack of resourcing within social work services to offer greater capacity for supervised bail.

Key Findings - Judiciary

The judiciary who responded appeared to view past behaviour of the accused as the best predictor of future behaviour with previous analogous offending and breaches of previous orders of the court featuring strongly in decisions to refuse bail.

Grounds for refusing bail

• the various Section 23C grounds for refusing bail appear to be considered with similar frequency for both summary and solemn cases;
• the most frequently considered provision from Section 23C (1) in decisions to refuse bail in both summary and solemn cases was 'any substantial risk of the person committing further offences if granted bail';
• assessment of 'substantial risk' typically involves an assessment of previous convictions/criminal record, alongside previous compliance with bail orders and previous failures to appear;
• assessment of 'level of seriousness' typically involves reference to the level of violence used in the index offence, whether weapons were used, the level or harm caused and wider impact of the offence on the general public;
• Section 23C (1) (d) appears to be used only rarely;
• the material considerations set out in Section 23C (2) of the Criminal Procedure (Scotland) Act 1995 which appear to feature most in judicial decision-making (for both summary and solemn cases) are those that relate to previously contravened bail orders or other court orders, whether the accused was subject to a bail order when the offences are alleged to have been committed and the nature of previous convictions;
• the age of Section 23D trigger convictions seems important in decisions to grant bail for those accused on violent/sexual/domestic abuse offences and drug trafficking offences (where there might otherwise be a presumption against bail); and
• Presumption Against Short Term Sentences (PASS) was perceived to have impacted to some degree on decisions made at the summary level, but not in solemn cases (where sentences are typically longer) although, for many, PASS simply reinforced existing practice around use of custody only where no alternatives are suitable.

Presumption in favour of bail

• a history or no/low risk offending as well as a history of compliance with bail are most likely to feature in decisions to grant bail alongside the Section 23B presumption in favour of bail;
• bail is also likely to be granted in cases where a custodial sentence would not be anticipated, if guilty; and
• there was very little evidence of age/gender of the accused influencing decisions, with caring responsibilities, employment and housing stability instead appearing to feature more in considerations.

Post-conviction bail

• roughly half of the sample noted the same considerations would feature in decisions to refuse bail both pre- and post- conviction; and
• there was some evidence that remand was more likely once the presumption of innocence was removed (post-conviction).

Input from justice partners

• most judicial decision makers reported that they were 'always' considerate of the views of the Crown and defence in assessing suitability of an accused for bail, but there were some reported limitations with the information provided by justice partners; and
• respondents were largely unassisted in their assessment of risk, and commented that professional risk assessments, especially in cases involving vulnerable accused, would be welcomed.

Bail options

• members of the judiciary appear to have greater awareness of and confidence in special bail conditions compared to supervised bail, with concerns that supervised bail services may be unable to meet demand if this was requested more frequently;
• there was reasonably strong support for alternatives to remand including electronic monitoring in particular, to assist with curfews and compliance with bail conditions; and
• perceived lack of resources (practical and financial) was seen as the single biggest barrier to greater use of alternatives to remand.

Reviews, appeals and other comments

• both the review and appeals process were seen to work well by the individual members of the judiciary who took part in this survey;
• COVID-19 was perceived to have impacted more on decision-making in solemn cases compared to summary cases;
• there may be merit in further exploring Crown guidance in relation to opposition of bail, especially as it relates to Section 23D, as well as more generally; and
• there may be merit in further research to explore how Section 23B is interpreted and applied, as it relates to remand (sometimes) being in the 'public interest'.

The judiciary survey findings suggest that Sheriffs and Senators seek to use remand only where absolutely necessary and minimising unnecessary and potentially damaging disruption to the lives of accused is a key factor in decisions (especially where the accused has caring responsibilities, stable housing/employment or is vulnerable).

Conclusions and Next Steps

Overall, respondents to both the COPFS and the judiciary survey highlighted that decisions were often complex and involved consideration of multiple factors, with decisions always made on a case-by-case basis, considering the factors most relevant to the personal circumstances of the accused.

The surveys provide valuable initial insight and learning around decisions to oppose and refuse bail and highlight a number of areas which may merit further qualitative exploration with key stakeholders in the next phase of the research.