Decision-making on bail and remand: interim findings report

Conclusions and Next Steps

Conclusions

The survey findings suggest that there is considerable similarity in the legislative grounds that are considered with greatest frequency by both COPFS and the judiciary. There also appears to be no significant divergence in the decision-making processes and factors considered for both summary and solemn cases.

In particular, likely risk of reoffending seems key to both Crown decisions to oppose bail and Sheriffs/Senators' decisions to refuse it. Previous breaches of bail are viewed negatively and appear to hold significant weight in arguments presented by the Crown as well as featuring frequently as a factor informing Sheriffs/Senators' decisions. The nature of any previous convictions, and the seriousness of the presenting offence are also key in informing decisions for both parties.

Special conditions of bail appear to be viewed with reasonable confidence, especially in ensuring compliance with court orders and in protecting the public/complainers. There was less evidence across the two samples of confidence in supervised bail, with suggestions that more investment could be made to increase availability and maximise effectiveness of this option.

The geographical variation in bail/remand decision-making that was hinted at in the COPFS survey was not replicated in findings from the survey of the judiciary, for whom lack of consistency in information provided by the Crown/defence and other justice partners appeared to be a bigger issue.

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.

Next Steps

The surveys provided a valuable insight into the views and experiences of the Crown and judiciary and highlight a number of areas of the current bail and remand decision-making process which may merit further exploration in order to be better understood. Engagement with a wider range of criminal justice partners in the subsequent stages of the research will be key in informing understanding of the overall bail and remand decision-making journey. Defence agents, in particular, are a voice missing from the research completed to date and the findings above suggest that garnering their views and experience would be of considerable value. Criminal Justice Social Work staff and the police, to a lesser extent, may also provide context for some of observations around supports in place to facilitate alternatives to remand.