Decision-making on bail and remand: interim findings report

Post-Conviction Bail

Key point:

There were mixed views regarding factors that may feature in decisions to refuse bail post-conviction but evidence that remand was more likely once the presumption of innocence was removed (post-conviction).

Respondents to the judiciary survey were asked if there were any considerations, additional to those already discussed above, that featured in their decisions to refuse post-conviction bail. There was an even split in responses, with 42% (n=13) saying 'yes' and 39% (n=12) saying 'no'. The remaining 19% (n=6) did not provide a response.

Most of those who said 'yes' suggested that likely sentence was uppermost in considerations post-conviction since the individual was no longer subject to the presumption of innocence. Likelihood of custody as the outcome was increased and hence chances of bail being granted decreased:

"It is sometimes clear, especially following conviction on indictment, that the crime is so serious and the accused's criminal record so bad that, no matter what the social work report says, a non-custodial disposal is extremely unlikely. In that situation, I refuse bail."

Two respondents indicated that remand may also be used as a means of ensuring that social work reports could be obtained, post-conviction.

One respondent who said that no additional factors would be considered post-conviction also commented that if a custodial sentence was inevitable, the considerations may be weighted differently. Another indicated that while there may be no new considerations as such, there may be an argument that conviction may result in greater protection for the witness and/or the accused being needed, which may influence a decision to remand into custody.

Other factors mentioned by just one respondent each included nature and seriousness of the offence, potential for witness interference if released on bail, behaviour since the offence, whether or not the offender has been on bail throughout the case, compliance with things such as programmes linked to the offence (e.g. detox programmes, etc.) and changes in personal circumstances since the offence (e.g. having stable accommodation). One respondent also indicated that if an accused pleaded to reduced charges which materially affected the prospect of and length of a custodial sentence, bail may be granted.