Decision-making on bail and remand: interim findings report

Opposition to and Refusal of Bail in Solemn Cases

Key Points:

Three specific provisions feature regularly and with similar frequency in Crown decisions for opposing bail in both summary and solemn cases i.e. risk of future offending, the presence/nature of previous convictions and contravention of bail orders (in general and at the time of the offence).

The most commonly cited ground for refusing bail in solemn cases was again 'any substantial risk of the person committing further offences if granted bail'.

The nature and level of seriousness of the offences before the court also feature more in solemn decisions compared to summary.

Factors that are frequently considered in determining risk include criminal record/nature and number of offences (including analogous offences and recent offences), breaching bail or other court orders, history of failing to appear and lack of a UK address.

For solemn cases, the nature of previous convictions, previous contravention of a bail order or other court order and being subject to a bail order when the offences was alleged to have been committed were the most frequently cited material considerations from Section 23C (2).

Respondents noted that they would most likely consider a combination of grounds rather than having one isolated reason for opposing bail.

The recency of Section 23D trigger convictions was seen as important when making decisions around bail in relevant cases, i.e. if offences were of considerable age with little or no analogous offending in the interim period, bail may be considered.

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

COPFS respondents who worked on solemn cases (n=49) 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 grounds appeared as the main feature in their decisions to oppose bail in solemn cases (including cases in which there are multiple grounds for opposition to bail).

Consistent with summary cases, the most common ground for opposing bail, based on these statutory provisions, was "any substantial risk of the person committing further offences if granted bail", with 98% of respondents indicating this was the main feature either 'very frequently' or 'frequently'. Similarly, the least common ground for opposing bail was "any substantial risk that the person might if granted bail abscond" where 41% stated this was 'very rarely' or rarely' the main feature in their decision to oppose bail (see Figure 5).

Judiciary respondents (n=28) were also asked to indicate how frequently each of the Section 23C (1) grounds featured in their decisions to refuse bail in solemn cases.

As with summary cases, and as with COPFS respondents, the most frequently cited ground for refusing bail in solemn cases was 'any substantial risk of the person committing further offences if granted bail, with 93% (n=26) of respondents citing that this featured either 'very frequently' or 'frequently' within their refusal decisions. The least cited ground for refusing bail was 'any substantial risk that the person might if granted bail abscond', with 63% (n=17) noting this was 'very rarely' or 'rarely' cited as ground for refusing bail (see Figure 6 below).

Substantial Risk

Judiciary respondents were again asked, for solemn cases, what factors they might consider relevant in determining that someone poses a 'substantial risk' (in relation to Section 23C (1)(a, b and c)). A total of 25 respondents gave feedback and this was, in the main, the same as that given in relation to summary cases, i.e. criminal record/nature and number of offences (including analogous offences and recent offences), breaching bail or other court orders and history of failing to appear/contempt of court convictions and lack of a UK address. Convictions for offending whilst on bail was again cited as significant:

"Where someone has a track record of failing to attend at court, particularly when in breach of bail conditions, there is a strong basis to use remand to ensure attendance for trial in a reasonable time. This is important for complainers, other witnesses and the effective administration of justice…A track record of repeated offending, particularly when on bail speaks for itself as a reason to doubt the efficacy of bail conditions in protecting the community and the integrity of the prosecution. Where the allegation is that the accused offended on bail that is plainly relevant to substantial risk of further offending."

Less frequently mentioned considerations included whether there was any indication of 'danger' if released (although it was not specified if this was to the accused or others), any threats that the accused was reported to have made and any evidence of attempts to pervert the course of justice.

Overall, the main factors were listed in roughly the same order and with the same frequency as those listed for summary cases, and several respondents explicitly said as much.

Other Substantial Factors

Respondents were again asked, for solemn cases, to specify what they considered to be the most relevant 'other substantial factors' (in relation to Section 23C (1)(d)).

As with summary cases, key areas of concern for Procurators Fiscal in solemn cases included: previous offending history (and particularly patterns of repeat analagous offending); offending while on bail or otherwise failing to adhere to bail conditions or orders of the court; and whether the accused appeared to represent a danger to either the accuser/victim, witnesses, or the general public. Again, a few COPFS respondents noted that they would most likely consider a combination of grounds rather than having one isolated reason for opposing bail.

Among the judiciary, several again said these were the same considerations as summary cases, i.e. nature of current offence, criminal record, previous breaches of bail, risk to the complainer, safety of accused and likely sentence. Again, a small number commented that they felt this provision added little, especially in solemn procedure and/or commented that they rarely (if ever) used Section 23C(d).

The only two unique comments were that the views of the complainer may be considered substantial in domestic cases and that there may sometimes be reason to hold a trial very soon if, for example, a witness or evidence was likely to become unavailable in a solemn case.

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

COPFS respondents working with solemn cases (n=49) were also 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 solemn cases (see Figure 7).

Again, similar to summary cases, the main factors featuring most frequently in COPFS decisions in solemn cases included:

• the nature of any previous convictions of the person (including convictions outwith Scotland) - with 96% stating this was the main factor either 'very frequently' or 'frequently' (with most citing it as a very frequent factor that was considered);
• whether the person was subject to a bail order when the offences are alleged to have been committed - with 96% stating this was the main factor either 'very frequently' or 'frequently' (but with a more equal split between the two ratings);
• the nature (including level of seriousness) of the offences before the court - with 94% stating this was the main factor either 'very frequently' or 'frequently'; and
• whether the person has previously contravened a bail order or other court order (by committing an offence or otherwise) - with 90% stating this was the main factor either 'very frequently' or 'frequently'.

Provision (e) "the associations and community ties of the person" was again noted to feature rarely, with 55% stating this was the main factor either 'very rarely' or 'rarely'.

Sheriffs and Senators (n=28) were also 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 refuse bail in solemn cases (see Figure 8). As with summary cases, three grounds appeared to feature frequently in decisions, these being:

• 'the nature of any previous convictions of the person (including convictions outwith Scotland)' - 100% (n=28) said that this featured either 'very frequently' or 'frequently';
• 'whether the person has previously contravened a bail order or other court order (by committing an offence or otherwise)' - 97% (n=27) said that this featured either 'very frequently' or 'frequently'; and
• 'whether the person was subject to a bail order when the offences are alleged to have been committed' - 97% (n=27) said that this featured either 'very frequently' or 'frequently'.

The only factor which again featured rarely was the associations and community ties of the person - 48% (n=13) of respondents indicated that this was 'very rarely' or 'rarely' a factor influencing solemn decisions.

Level of Seriousness

Respondents were again asked, for solemn cases, 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). For COPFS respondents, the most frequently mentioned factors were:

• the risk the accused posed to the public, the accuser and any witnesses;
• the nature of the offence, and whether violence was involved or weapons were used;
• the severity and impact of any injuries sustained by the victim(s);
• for drug offences - the quantity/volume, value and nature of drugs involved and the accused's position in the supply chain;
• whether the offence(s) have been repeated or sustained over a long period;
• the level of vulnerability of the victim(s) or the accused's relationship to the victim(s);
• the level of premeditation or planning involved or links to organised crime;
• attempts to obstruct or pervert the course of justice, including witness intimidation; and
• the likely sentence that would be imposed.

Several judiciary respondents suggested that factors determining level of seriousness would be the same as for summary cases and would typically include the character of the offence and circumstances, schedule of previous offences, nature, level and degree of violence associated with the offence (including use of weapons), the level of planning involved (including if organised crime), impact on the complainer (including any injuries sustained) and impact on the community (including public perceptions of the offence).

Three respondents also again cited the likely disposal if convicted as something they would consider, including whether the charge was likely to result in a substantial prison sentence, the jurisdiction in which the case would be heard and the risk to the public if the accused was at liberty:

"The very fact that it is a solemn matter deems it to be serious in nature. In respect of the 'level', I may consider whether the matter is likely to end up in the High Court or not."

Presumption Against Short Term Sentences

For solemn cases, judiciary respondents were again asked if the Presumption Against Short Sentences (PASS) had impacted their decision-making around 'probable disposal of the case if the person were convicted of the offences'.

Among the 27 who responded to this question most (85%, n=23) said that it had not and only four (15%, n=4) said that it had. The main feedback amongst those who said that PASS did not feature in their decision-making was that, if the charges were proved in solemn cases, the custodial sentence would probably exceed the PASS requirements (with solemn disposals usually being in excess of 12 months):

"If the procurator fiscal's decision-making is sound, the accused only appears under solemn procedure if a significant prison sentence…is thought likely. In that situation, the presumption has no relevance."

Again, one respondent indicated that they always made decisions on a case-by-case basis and another indicated that prison was only ever used by them if there were no other reasonable alternatives (and so their thinking was already aligned to PASS). Others commented more generally that the same considerations as summary cases would apply (as in the previous section).

Character and Antecedents of the Person

Judiciary respondents were asked, for solemn 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 again cited factors similar to those cited in relation to summary cases, i.e. criminal history, analogous and similar previous convictions, especially if recent; offending on bail/breach of bail (especially breaching special conditions) and failing to comply with court orders; family circumstances, employment status and health of the accused.

Associations and Community ties of the Person

Respondents were also asked, for solemn 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 COPFS respondents simply stated that the considerations were the same as outlined above for summary cases, while others specifically noted the key factors as being involved in serious and organised crime or gangs (and the role/position the accused has within this), risk posed to the complainer or key witnesses or being a threat to the local community. A few again noted that 'community ties' would involve factors such as whether the accused lived in the area, had family in the area (including dependents) or worked in the local area, all of which may provide an indication as to the likelihood that the accused would abscond. Only one respondent suggested that the risk of retribution against the accused from their associates or rivals might also be considered, and that the accused may be remanded for their own safety.

Most Sheriffs cross-referenced their earlier responses in relation to summary proceedings. The only comments specific to solemn cases were that the gravity of the crimes which feature in the High Court may mean that such considerations often carry little weight. Overall, however, as with summary cases, the majority of respondents to both surveys noted that the associations and community ties of the person were not factors that featured often in decisions to oppose or refuse bail in solemn cases.

Section 23D of the Criminal Procedure (Scotland) Act 1995

Section 23D of the Criminal Procedure (Scotland) Act 1995, sets out a presumption against bail for those accused of violent/sexual/domestic abuse offences or drug trafficking offences in solemn proceedings, where they have a previous conviction of a similar nature.

Members of the judiciary only were asked to indicate how frequently this ground featured in their decisions to refuse bail in solemn cases. Just under two thirds said that it featured either 'frequently', or 'very frequently' (60%, n=17) and a further third (36%, n=10) said that it featured 'occasionally'. Only one respondent said that this featured 'very rarely' in their decision-making (4%).

Respondents to the judiciary survey were also invited to list any exceptional circumstances which might lead them to consider granting bail in these cases and, as far as is possible, to explain why these circumstances would give them the confidence to consider bail.

The main theme to emerge was linked to the recency of the Section 23D trigger conviction. Members of the judiciary reported that, if the trigger offence was quite old/of considerable age and there had been little or no analogous offending in the interim, this may give rise to bail being given (especially if the accused was a young offender at the time of the qualifying offence but was now more mature and/or the accused had shown apparent reform):

"The most common exceptional circumstance raised by the defence is passage of time - if the accused has remained offence free since then I consider that is a factor; if not I do not consider there are exceptional circumstances."

"There has to be a point where the accused is given the same opportunity to show that he can comply with bail conditions as other accused persons."

Other exceptional circumstances (mentioned by two or three respondents each) included:

• the existence of verified or well supported evidentially extenuating personal circumstances, such as significant caring responsibilities, illness/terminal illness or significant medical needs (of the accused or someone in their care/close family member); and
• evidence of good compliance with community orders/disposals and strong likelihood of compliance with bail conditions.

Other factors mentioned by one respondent each were significant lifestyle changes (e.g. substance misuse treatment, rehabilitation), COVID and the likely sentence being less than two years, and if the accused had supported accommodation or a high level of engagement with community supports that would be lost if they were remanded. One respondent stressed that a number of factors would be considered and must be present for bail to be granted:

"[Factors] are neither exclusive nor determinative on their own and each case will turn on its own facts and circumstances, applying a holistic approach in assessing the risks set out in Section 23C."

One respondent perceived that the attitude of the Crown to Section 23D was a major factor in bail decisions in solemn cases. They perceived that the Crown were apt to oppose bail in all matters involving either a domestic abuse offence or an offence with a domestic aggravator, even when the granting of bail for exceptional circumstances might be appropriate.

Again, three respondents commented that all cases must be dealt with on a case-by-case basis and in accordance with case law. Overall, however, the granting of bail in Section 23D cases was most likely to be linked to length of time since qualifying offence, conduct since qualifying offence and the sentence imposed in respect of qualifying offence.

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

Across both surveys, few provided additional comments in relation to Sections 23C (1), (2) and Section 23D as they relate to solemn cases.

One member of the judiciary commented that existing legislation was seen to be "perfectly satisfactory" and another commented that Judges are expected to evaluate the weight to be given to any and all considerations of the particular case before the court to inform their decision-making. Another stressed that protection of community was likely to be something which featured more in solemn cases.

Three judiciary respondents commented specifically on Section 23D suggesting that it could perhaps give a time limit on the age of the qualifying initial conviction and that it was perhaps a somewhat "blunt tool":

"Previous solemn convictions for violent or sexual offences may be indicators of likely future offending, but they do not of themselves indicate invariable bail risks. The Crown invariably invokes s23D, and sometimes the submission is simply that there is a qualifying prior conviction. In my view, that is more compelling if the prior conviction is directly analogous and relatively recent (say within the past 7-10yr)."

Two other comments were made by the judiciary to suggest that the nature of offences heard in solemn court may be indicative of the suitability of bail or remand for the accused, but also that the decision-making process itself was the same for both solemn and summary cases.

Most COPFS responses to this question again reiterated that multiple factors are often considered to be relevant in solemn cases where bail is opposed. In addition, however, a few respondents noted that Section 23D^[5] of the Criminal Procedure (Scotland) Act 1995 often also plays a role in solemn cases.