Decision-making on bail and remand: interim findings report

Introduction

Background

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. The research was designed to cover the adult criminal justice system only and to focus on both solemn and summary criminal cases.^[1]

The research sought to assist the Scottish Government and other justice stakeholders to:

• better understand the process of bail decision-making;
• better understand the current system's strengths and weaknesses, and hear what criminal justice stakeholders need to best be supported in their decision-making; and
• use this evidence to build on what is working well and inform improvements, if needed.

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 members of the judiciary. The surveys were the first stage of the wider study, with subsequent stages requiring interviews with key justice stakeholders to gather qualitative feedback and add breadth and context to the survey data.

Legislative Context

The Criminal Procedure (Scotland) Act 1995^[2] (the 1995 Act) provides that individuals accused of any criminal offence may be allowed to remain in the community pending trial on bail. Bail refers to a set of conditions imposed by the court with which the accused must comply. Section 22A (1) of the 1995 Act specifies that "the sheriff or, as the case may be, the judge shall, after giving that person and the prosecutor an opportunity to be heard, either admit or refuse to admit that person to bail." However, there are circumstances in which a presumption in favour of refusal of bail operates relating to those accused of certain serious offences and these are set out in section 23D of the 1995 Act. In addition, while all offences are such that a person can be bailed, the 1995 Act sets out a number of grounds which, taken individually or collectively, may give reason to the court to justify a decision to refuse bail for an accused person in any given case.

The Scottish Parliament enacted the Bail, Judicial Appointments etc. (Scotland) Act 2000 to remove restrictions on bail from the law of Scotland so that judicial decision-making was an essential part of consideration in all cases. Decisions on whether or not bail is to be granted involve the exercise of judicial discretion. The exercise of that discretion is, however, taken in the context of bail requiring to be granted unless there is good reason to refuse bail (see section 23B of the 1995 Act).

A decision on whether to grant bail is informed by a list of grounds, laid out in statute, relevant as to why bail in any given case may be rejected. These grounds are set out in section 23C of the 1995 Act. In addition, the decision on whether to grant bail in certain cases is informed by specific provision for people accused of certain serious offences, in the circumstances set out in section 23D of the 1995 Act. Despite all offences being bailable and bail requiring to be granted unless there is good reason not to (subject to section 23D), significant numbers of persons are remanded in Scotland.

In June 2018 the Justice Committee published a report 'An Inquiry into the Use of Remand in Scotland' that raised a number of concerns about the use of remand in Scotland's justice system. One of these concerns was the high level of remand prisoners, at around 20% of the prison population.

The 2021 Programme for Government subsequently included a commitment to introduce legislation to change the way that imprisonment is used and it is against this backdrop that these interim findings are presented.

Methodology

Both surveys were developed by an independent research team in collaboration with Scottish Government research and policy staff and other interested stakeholders. Representatives from COPFS and the Scottish Courts and Tribunals Service (SCTS) were also involved in reviewing and testing surveys to ensure they were appropriate for the intended respondents. While design for both surveys began in February 2020, the COVID-19 pandemic created a significant delay in finalising this, both due to Scottish Government, COPFS and judiciary/SCTS priorities in dealing with the pandemic, and due to a pause on all research fieldwork within the sector.

The COVID-19 pandemic also meant that 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.

The COPFS survey was designed to capture the views and experiences of COPFS staff on the use of bail in Scotland and on their decision-making processes when deciding whether or not to oppose bail. The questionnaire sought information on the frequency with which various grounds for opposing bail were used as well as the types of factors that would be relevant, as per Sections 23C (1) and 23C (2) of the Criminal Procedure (Scotland) Act 1995. Feedback was also sought on the use of special bail conditions and supervised bail. Separate questions were included to cover both summary and solemn cases.

The COPFS survey invitation and link to the online questionnaire were advertised on COPFS's intranet to all legal staff to attract all those with the relevant experience. The survey was live for six weeks and responses were returned directly to the independent research team. All responses were submitted anonymously.

The judiciary survey focused on factors that may feature in decisions to refuse bail, again with a particular focus on Sections 23C (1) and 23C (2) of the Criminal Procedure (Scotland) Act 1995. In addition, members of the judiciary were asked about the frequency of use of Section 23D of the Act, as well as about their views and experiences in relation to the presumption again short term sentences (PASS), post conviction bail, input into decisions from partner organisations, the bail review and appeals processes and bail options. A short set of questions on COVID-19 was also included to allow discussion of the impact (or perceived impact) this may have had, if any, on the decision-making processes. Again, separate questions were included to cover summary and solemn cases.

An invitation inviting all currently serving Sheriffs and Senators was issued by SCTS staff working in each sheriffdom, and by the Lord President's office. Initial email invitations were staggered throughout October, November and December 2021, with reminder emails issued in each area at later dates.

Both the COPFS and judiciary surveys were designed to take no more than 30 minutes to complete and were anonymous, with no personal data being sought. Participation was voluntary. Paper copies of the questionnaires were available on request, but this option was not taken up by any respondent.

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, with verbatim quotes extracted to demonstrate the sentiments expressed. All data were analysed at the aggregate level in order to uphold anonymity of respondents.

Respondent Profiles

A total of 64 usable responses were received from prosecution solicitors employed by COPFS. This represents a 9% response rate, based on the number of legal staff employed by COPFS (n=685) at the time of the survey. It should be noted, however, that not all of these staff would have been routinely involved in the marking of cases or have had relevant experience in making decisions related to bail or remand. This means that the 9% is likely to be an underestimate as the total number of eligible respondents would be less than 685 (the precise number, however, is not known).

A total of 31 valid responses were received to the judiciary survey, with responses from 24 Salaried Sheriffs, 5 Summary Sheriffs and 2 Senators. This represents a 19% response rate from Sheriffs but only a 6% response rate from Senators (i.e. 17% for the judiciary as a whole).

Of the 64 COPFS respondents, most (n=40, 62.5%) had worked for COPFS for 11 or more years, eight (12.5%) had worked for them between six and 10 years, and 16 (25%) for between one and five years. Among the judiciary who responded, there was also a reasonable spread in professional experience, with around a third having 6-10 years' experience (35%, n=11), a quarter having 11 or more years' experience (26%, n=8) and the same number having 1-5 years' experience (26%, n=8). Only four respondents said that they had less than one year of experience in their current primary appointment (13%).

Nearly half of all COPFS respondents (n=31, 49%) reported that they made decisions on both summary and solemn cases, while 28% (n=18) dealt only with solemn cases and 23% (n=15) dealt only with summary cases. All Sheriffs said that they worked on both Summary and Solemn cases in their current role.

All sheriffdoms were represented by at least one respondent in each survey (see Table 1 below).

Report Presentation and Research Caveats

While many of the questions asked across both surveys were similar in nature, they were necessarily tailored to accurately reflect the different roles fulfilled by each stakeholder group. Several questions were asked of the judiciary only, recognising that the Crown play a smaller overall role in the bail and remand decision-making process when compared to Sheriffs and Senators. Some questions were also only included in the Judiciary survey and not the COPFS survey on advice from the Crown, including questions relating to Section 23D of the legislation. In such cases, insight is only available from one viewpoint, resulting in some bias in the findings presented below. Questions which may have invited speculation about the decisions or intentions of justice counterparts were also avoided. Questions linked to COVID-19 were also excluded from the COPFS survey on the basis that the Lord Advocate's Guideline's clearly set out the Crown's operating position during the pandemic.

Similarly, the data presented below is largely descriptive rather than explanatory in nature. Again, additional context will be garnered from subsequent qualitative stages of the research, and this will include collection of data from other partners in the decision-making process, including defence agents, criminal justice social workers, police and others, to ensure that these initial findings can be contextualised and better understood.

Despite helpful support from COPFS and Scottish Courts and Tribunals Service staff in distributing the surveys, the response rates were lower than anticipated overall. This may have been due to a number of factors, including that both surveys ran in the period following significant COVID-19 interruptions across the justice system, which may have meant that courts, and members of the Crown and judiciary, were busier than they would usually have been (and had less time to dedicate to research activities). The judiciary survey was also administered at the same time as the Consultation on Bail and Release from Custody arrangements^[3], which may mean that some respondents opted to take part in either the survey or the consultation, rather than both. The judicial survey was also 'live' over the Christmas and New Year period, meaning that some staff may have been absent from work. Given the relatively small number of respondents, any percentages presented are shown alongside the number of respondents who answered each question, to provide context.

While the small samples mean that the survey findings cannot be generalised too broadly, the qualitative nature of many of the questions included in the surveys, and the fact that detailed feedback was provided by those who did take part, means that the findings nonetheless provide a valuable insight into current bail and remand decision-making in Scottish courts. The remainder of this report sets out the findings from the surveys.