Decision-making on bail and remand: interim findings report

Opposition to and Refusal of Bail in Summary Cases

Key points:

In relation to Section 23C (1), the most commonly cited ground for opposition to bail by the Crown in summary cases was "any substantial risk of the person committing further offences if granted bail." This was also cited as the most commonly cited ground for refusing bail by the judiciary.

The nature of the index offence and the accused's history (either repeat offences or breaches of previous bail conditions) were also often considered by COPFS staff when opposing bail.

Factors considered by Sheriffs and Senators in determining risk include offence history, custodial history, bail history (including aggravators and failure to appear), nature of current offence and information from the Crown on witness interference and perverting the course of justice.

In relation to Section 23C (2), three grounds featured as being very common in informing decisions: previous breaches of bail or contravention of other court orders; whether the person was subject to a bail order when the offence(s) were alleged to have been committed; and the nature of any previous convictions.

Section 23C (1) of the Criminal Procedure (Scotland) Act 1995

COPFS respondents who indicated that they made decisions in relation to summary cases (n=46) were asked, with regard to the statutory provisions of Section 23C (1) of the Criminal Procedure (Scotland) Act 1995, to indicate how frequently each of the specified grounds appeared as the main feature in their decisions to oppose bail in summary cases (including cases in which there may be multiple grounds for opposition to bail).

The most commonly cited ground for opposition to bail in summary cases was 'any substantial risk of the person committing further offences if granted bail', with 96% of respondents citing that this featured either 'very frequently' or 'frequently' within their opposition decisions. Risk of failure to appear (s.23C(1)(a)(ii) was also cited as a main feature in decisions, with 67% of COPFS respondents citing that this featured either 'very frequently' or 'frequently' within their opposition decisions. The least cited ground for opposing bail was "any substantial risk that the person might if granted bail abscond", with more than half of respondents (57%) saying that this 'very rarely' or 'rarely' impacted decisions (see Figure 1 below).

Similarly, having regard to the statutory provisions of Section 23C (1) of the Criminal Procedure (Scotland) Act 1995, judiciary respondents (n=28) were asked to indicate how frequently each of the grounds featured in their decisions to refuse bail in summary cases.

The most commonly cited ground for refusing bail in summary cases was 'any substantial risk of the person committing further offences if granted bail', with 93% of respondents citing that this featured either 'very frequently' or 'frequently' within their refusal decisions. Again, any substantial risk that the person might, if granted bail, fail to appear at a diet of the court as required was also reported to feature frequently in decisions, with just over half (57% of respondents) citing that this featured either 'very frequently' or 'frequently' within their refusal decisions (see Figure 2 below).

The least cited ground for refusing bail among the judiciary was 'any substantial risk that the person might if granted bail otherwise obstruct the course of justice' with more than half of respondents (64%) saying that this 'very rarely' or 'rarely' impacted decisions. Similarly, the ground 'any substantial risk that the person might if granted bail abscond', was cited by 60% as featuring 'very rarely' or 'rarely'.

Additional comments in relation to Section 23C (1) provided by COPFS staff included that the nature of the offence and the accused's history (either repeat offences or breaches of previous bail conditions) were often considered when opposing bail. These concerns were particularly paramount in decisions relating to the safety of the complainer/victim, witnesses and the wider general public:

"The history of the person's adherence to court orders is an essential element in bail application. If the person has repeatedly failed to adhere to orders of the court, it has to be questioned whether the court can place their trust in the person."

Similarly, it was also noted that, where an accused is in court for an alleged offence while they are already subject to bail conditions, this may result in opposing bail:

"I would regularly oppose bail where the accused is already subject to one or more bail orders (frequently several) or has numerous previous convictions aggravated by offending while on bail."

There were mixed views regarding the frequency with which failure to attend at court was considered. Some mentioned this as a priority consideration, while others suggested this was less important at initial hearings, but may become the deciding factor in revoking bail should an accused already on a bail licence miss a subsequent court hearing.

Several respondents also made the point that several factors were important and that each case was considered on its own merits:

"Bail is rarely opposed on one ground, at summary level it is very often a combination of a history of failure to appear and a criminal record for directly analogous offending, a propensity of failure to comply with court orders…breaching special conditions of bail, or the amount [number] of offences with bail aggravations showing a disregard for bail conditions... Also, if the person is on deferred sentence and under trust of court, or if they are on licence from an unexpired prison sentence. Quite often it might be the seriousness of the offence or someone who has continued to offend against the same complainer or committing the same offences despite being placed on bail. A lot of people tick a lot of these boxes. Public safety is a significant consideration in any case and underpins all considerations… It is very case specific, every case is considered on its own facts and circumstances."

Sheriffs and Senators were also asked to provide more detailed feedback in relation to certain grounds.

Substantial Risk

For summary cases, when asked what factors they might consider relevant in determining that someone poses a 'substantial risk' (in relation to Section 23C (1)(a, b and c)), the most frequently cited factor among the judiciary was the previous criminal record of the accused. This included consideration of both the nature and number of previous convictions, including whether the accused had a history of similar offending to the current offence (including past custody for analogous offences). The nature and seriousness of the alleged offence (including number of charges) was also cited as key in assessing risk:

"The accused's record is the primary factor which informs assessment of substantial risk. The nature of the crime charged on the complaint is a significant consideration, particularly if there is a bail aggravation."

A second frequently mentioned factor in determining risk was whether or not the accused had previously breached bail or committed offences while subject to a bail order and whether the accused was subject to existing bail orders (and, if so, how recently these had been granted). Several respondents also cited consideration of previous convictions for bail aggravated offences and failure to appear on deferred sentence or offending on licence.

The third most frequently cited factor was having a record of failing to appear, whether for the specific case, or more generally:

"I take the view that the best predictor of future behaviour will often be past conduct. Therefore, I am guided by previous criminal record, extant bail orders and whether there have been any failures to appear in the proceedings to date."

Other Substantial Factors

When asked, for summary cases, what were considered to be the most relevant 'other substantial factors' (in relation to Section 23C (1)(d)) the main feedback from the judiciary included either that this was case specific or that this subsection was rarely applied. A small number of Sheriffs indicated that this subsection may apply if the accused posed a risk to themselves and/or there was evidence that they had little support available to them. Linked to this were considerations of whether the accused was of no fixed abode, had no fixed bail address and/or wider personal circumstances of the accused (including mental health and substance misuse disclosures). Nature and extent of previous offending was again mentioned as well as previous compliance with court orders. Two others commented that it was very difficult to answer this question as the subsection was used mainly only when other grounds provided weak justification for opposition.

Other factors mentioned by just one or two judiciary respondents each in relation to Section 23C (1)(d) focused of minimising risk of harm to others and included any particular risk to the public, the complainer, women and children if a domestic incident, if the accused cannot be trusted if at liberty (including where the offender has said something which would indicate this), and whether a custodial sentence is the likely disposal.

Section 23C (2) of the Criminal Procedure (Scotland) Act 1995

In assessing the grounds specified in subsection (1) above, the court must also have regard to material considerations in Section 23C (2) of the Criminal Procedure (Scotland) Act 1995, relevant as to question of bail.

COPFS respondents (n=46) were asked to consider the frequency with which the statutory provisions from Section 23C (2) of the Criminal Procedure (Scotland) Act 1995 appeared as the main feature in their decisions to oppose bail in summary cases (see Figure 3).

The most common ground for opposing bail, based on these statutory provisions, was "whether the person has previously contravened a bail order or other court order (by committing an offence or otherwise)" where 100% of respondents noted this was the main feature either 'very frequently' or 'frequently'. This was followed closely by:

• whether the person was subject to a bail order when the offences are alleged to have been committed - 98% said this was a main feature either 'very frequently' or 'frequently', and
• the nature of any previous convictions of the person (including convictions outwith Scotland) - 93% of respondents said this was a main feature 'very frequently' or 'frequently'.

The only factor which featured rarely was the associations and community ties of the person - 74% of respondents indicated that this was 'very rarely' or 'rarely' the main factor influencing decisions.

Sheriffs (n=28) were also asked the frequency with which the statutory provisions from Section 23C (2) of the Criminal Procedure (Scotland) Act 1995 appeared as the main feature in their decisions to refuse bail in summary cases (see Figure 4).

The most common ground for refusing bail, based on these statutory provisions, was 'whether the person has previously contravened a bail order or other court order (by committing an offence or otherwise)' where 100% of respondents noted this was the main feature either 'very frequently' or 'frequently'. This was followed closely by:

• 'the nature of any previous convictions of the person (including convictions outwith Scotland)' - 96% of respondents said this was a main feature 'very frequently' or 'frequently';
• 'whether the person was subject to a bail order when the offences are alleged to have been committed' - 96% said this was a main feature either 'very frequently' or 'frequently';
• the 'probable disposal of the case if the person were convicted of the offences' - 85% of respondents said this was a main feature 'very frequently' or 'frequently';
• whether the person is serving or recently has served a sentence of imprisonment in connection with a matter referred to in (d)(i) to (iii) - 82% of respondents said this was a main feature 'very frequently' or 'frequently';
• 'the nature (including level of seriousness) of the offences before the court' - 79% of respondents said this was a main feature 'very frequently' or 'frequently';
• 'whether the offences before the court are alleged to have been committed while the person was subject to another court order' - 75% of respondents said this was a main feature 'very frequently' or 'frequently'; and
• 'whether the person has previously breached the terms of any release on licence or parole (by committing an offence or otherwise)' - 64% of respondents said this was a main feature 'very frequently' or 'frequently'.

The only factor which featured rarely was the associations and community ties of the person - 50% of respondents indicated that this was 'very rarely' or 'rarely' the main factor influencing decisions.

Level of Seriousness

Respondents were also asked to explain what factors they might consider relevant in determining the 'level of seriousness' of the offences before the court in relation to Section 23C (2)(a)(i).

Among COPFS respondents, common considerations included the use of violence, the level of injury sustained, the nature/vulnerability of the victim(s), and whether weapons were used. Considerations mentioned less often included the level of harm and/or disruption to others, value of damages, accusations of domestic abuse, whether the accused was in a position of power/trust, level of recklessness or callousness, duration and/or persistence of the offence, level of premeditation or planning, and whether drugs or alcohol were a factor. One respondent highlighted the link between offence seriousness and the risk to public safety, whilst another respondent specifically noted that this was not an important factor for them when opposing bail:

"This is not an important factor for me. All offences are 'bailable' and the person is entitled to the presumption of innocence. Bail opposition is not a punitive measure. The level of the offence should not therefore be an important factor."

Most Sheriffs and Senators suggested that considerations would include a combination of factors including:

• the general nature of the current offence;
• whether or not a weapon had been used;
• level of violence shown (particularly in domestic cases) and whether violence was unprovoked;
• damage/injuries to the complainer/impact on complainer;
• relationship to the victim(s);
• if perpetrated against a stranger;
• number of people affected;
• wider impact of the offence on the general public/public attitude to the type of offence;
• age of accused;
• whether there were multiple charges and whether there were aggravations;
• the level of planning involved;
• time and location of offence;
• persistent analogous offending; and
• whether the offence was committed while subject to an existing court order:

Three Sheriffs stressed that considerations would be entirely case specific and four suggested that they would consider the likely sentencing disposal in assessing seriousness.

Presumption Against Short Term Sentences

For summary cases, respondents to the judiciary survey only were asked if the Presumption Against Short Sentences (PASS)^[4] had impacted their decision-making around 'probable disposal of the case if the person were convicted of the offences'.

Just under a third (32%, n=10) said that it had, almost half (45%, n=14) said that it had not, and one in ten (10%, n=3) indicated that they did not know. The remaining four respondents gave no response (13%).

Among those who said that PASS had impacted on their decisions, several said that they were generally less likely to use remand or impose a custodial sentence unless absolutely necessary:

"Except in cases in which a remand is necessary to get the accused to come to court, I do not refuse bail if I do not think that a custodial sentence is very likely in the event of a conviction. The presumption against short sentences makes custodial disposals less likely in summary cases and therefore informs that assessment."

One explained that PASS had impacted on the level of explanation given to the accused, i.e. that there was a positive requirement to consider and explain decisions to the accused and that this may/may not favour the person, depending on all the circumstances.

Overall, those who said that PASS had impacted indicated that the presumption was taken into account when deciding on the issue of a custodial sentence being a likely outcome and that this normally operated in favour of the accused.

Among those who said that PASS had not impacted on their decision-making, some indicated that they had always sentenced on the basis that a custodial sentence was the last resort even before PASS:

"[PASS] has had very limited effect on my sentencing practice because I have always regarded custody as being a sentence that should only be imposed if no alternative was suitable. PASS, in effect, simply reflects widespread pre-existing sentencing practice in my view. Thus, it has a very limited effect on the bail decision-making practice."

Most other members of the judiciary indicated that PASS was only one consideration alongside many others that factored into decisions around bail and remand or indicated that their actions were guided instead by an assessment of whether a custodial sentence was/was not likely or appropriate per se, an assessment of likely re-offending and/or the availability of alternative disposals:

"Strictly speaking there is no presumption against short sentences. The test for any summary custodial sentence has merely been made the same as the test for sentencing someone to custody for the first time (i.e. 'no other method of dealing with [the accused] is appropriate'). My sentencing has been negligibly affected by the so called PASS."

Character and Antecedents of the Person

Judiciary respondents were asked, for summary cases, to explain what factors they might consider relevant in determining 'the character and antecedents of the person' (in relation to Section 23C(2)(d)). Most (n=25) gave a response and the main themes (in order of frequency with which they were mentioned) were:

• accused's criminal record/previous convictions/previous custodial sentences (including analogous offending);
• history of non-compliance with court orders/offending on bail;
• personal background including whether the accused is in employment, has stable accommodation, has a partner/family and/or children or family ties (and, in domestic cases, the relationship between the accused and complainer);
• engagement or otherwise with support agencies and/or criminal justice social work and involvement in the community; and
• mental health or addiction issues or anything that may mean the accused will not be able to follow the standard conditions of bail.

Again, three respondents suggested decisions were case specific.

Associations and Community Ties of the Person

Respondents were also asked, for summary cases, to explain what factors they might consider relevant in determining 'the associations and community ties of the person' (in relation to Section 23C(2)(e)).

Many Crown respondents noted that they had never used this clause, or that it was rarely a factor for opposing bail in summary cases. Others, however, noted potential risks, such as whether the accused associated with gangs, organised crime groups or other known offenders in the area, as well as the risk of further offending, witness interference/intimidation or retribution if they were not removed from the community. A few noted that community ties were more likely to be an issue used by defence solicitors to seek bail rather than for the prosecution to oppose it. In particular, it was felt that the impact which bail/remand might have on other family members (such as children) and/or where an accused had specific caring responsibilities might be a consideration.

Among the judiciary, the main factors (in order of frequency with which they were mentioned) included:

• family support available (and caring responsibilities);
• employment status of the accused;
• roles in society, including volunteering, help given to others, etc.;
• presence of stable accommodation;
• whether the accused has clear links to Scotland and the local community;
• whether the accused has a fixed/stable address;
• gang membership/criminal ties;
• drug and alcohol issues or mental health issues leading to a chaotic lifestyle;
• religious and community associations; and
• education of the accused.

Three respondents indicated that this was a provision that they had either never used or used only once and two suggested that they perceived this provision to be unfair/irrelevant.

Other comments on Sections 23C (1) and 23C (2)

Comments from Crown respondents reiterated that opposition of bail was usually based on a combination of factors and that multiple grounds would likely apply:

"The theme is that a number of factors are normally considered together, rather than one specific ground being the main ground for opposing a person's bail."

The only other COPFS comment in relation to Section 23C was that, in summary cases, where the accused is under 21, there is a greater likelihood that bail will be granted, even if already subject to bail orders (although there was no explanation given as to why this may be the case).

Only three Sheriffs provided additional feedback in relation to Section 23C (1) and (2) as it relates to summary cases. This included one comment that an important consideration when considering bail or remand is the public interest, protection of the community from the activities of those whose record demonstrates that they will persistently offend despite the existence of the criminal law, threat of penal sanctions and bail or other court orders:

"There are some offenders who cannot be restrained from offending and harming the community interest except by detention."

Another commented that they perceived the existing legislation to work well and allowed for the rights and reasonable expectations of the accused, the Crown and the public interest to be fairly balanced.