Decision-making on bail and remand: interim findings report
Interim findings from the ‘Decision-making on Bail and Remand in Scotland’ research. The first phase of the research is presented, detailing the findings from online surveys conducted with members of the judiciary and the Crown Office and Procurator Fiscal Service (COPFS).
Presumption in Favour of Bail
Key point:
Factors important in considering presumption in favour of bail include low risk previous offending, the accused having a history of compliance with bail and whether a custodial sentence would/would not be anticipated, if guilty.
Section 23B of the of the Criminal Procedure (Scotland) Act 1995 sets out a presumption in favour of bail. Members of the judiciary were asked how important they felt a number of factors were in informing decisions on whether to grant bail (see Table 2 below).
| Not important at all | Not very important | Moderately important | Important | Very important | |
|---|---|---|---|---|---|
| Previous offending history is low risk | - | - | 7% | 37% | 56% |
| The accused has a history of compliance with bail | - | - | 11% | 37% | 52% |
| A custodial sentence would not be anticipated, if guilty | - | 4% | 7% | 33% | 56% |
| The age of the accused | 4% | 7% | 11% | 52% | 26% |
| The accused does not appear from custody | 4% | 15% | 22% | 41% | 19% |
| The employment status of the accused | - | 7% | 30% | 48% | 15% |
| The family status of the accused (including any caring responsibilities) | - | 4% | 37% | 52% | 7% |
| The housing status of the accused | - | 15% | 41% | 37% | 7% |
| The accused has no substance misuse problem/mental health issues | 4% | 30% | 48% | 19% | - |
| The gender of the accused | 59% | 15% | 19% | 7% | - |
The most important factors featuring in decisions were:
- previous offending history is low risk - 93% (n=25) of respondents indicated that this was 'important' or 'very important';
- the accused has a history of compliance with bail - 89% (n=24) of respondents indicated that this was 'important' or 'very important'; and
- whether a custodial sentence would not be anticipated, if guilty - 89% (n=24) of respondents indicated that this was 'important' or 'very important'.
The factor which was seen as least important in informing decisions to grant bail was the gender of the accused (with 59% (n=16) of respondents saying that this was not important at all). Indeed, three Sheriffs commented on the importance of gender impartiality (i.e. men and women should be treated the same) and age was mentioned as something which may feature only as it relates to perceived risk of future offending and how it may intersect with likely bail breach:
"Gender by itself does not inform my decision-making; but it is more common for women to have associations and community ties (e.g. childcare responsibilities) than for men to and it is also more common for women to play a lesser role in an incident than for a man to do so, which affects the assessment of seriousness."
"There is an underlying sense of proportionality which influences my ratings. The very old are likely to present less risk of causing harm if at liberty. The very young should not be remanded unless it is necessary [on] very strong grounds."
Two other respondents commented that the absence of bail breach and/or history of compliance were the two factors that were most likely to influence a decision to grant bail for the current offence (consistent with earlier comments on s.23C):
"An accused may have a lengthy record of offending, but if there are no instances of breaching bail or offending whilst on bail that is material which positively favours the grant of bail."
"Especially on summary, if the offender is not going to jail when guilty, why should he when presumed innocent spend time [on] remand with all the negative consequences of that. If they have shown in past they don't offend on bail or breach conditions, then they can be trusted that they appear to listen to the court..."
Respondents were asked if there were any other offence-related, demographic or lifestyle characteristics that they might consider when deciding whether to grant bail - very few provided a response and those who did generally referenced the provisions of Section 23C.
Contact
Email: Justice_Analysts@gov.scot
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