Decision-making on bail and remand: interim findings report

Input from Partner Organisations

Key points:

Decisions regarding suitability of an accused for bail appear to be 'always' considerate of the views of the Crown and defence.

There was some reported inconsistency and lack of adequacy in the information provided by justice partners to support judicial decision-making.

Sheriffs and Senators reported that they were largely unassisted in their assessment of risk, and that professional risk assessments, especially in cases involving vulnerable accused, would be welcomed.

Grounds for Crown Opposition to Bail

Based on their experience, Sheriffs and Senators were asked what three grounds they perceived were given most frequently by the Crown for opposing bail. A total of 25 respondents answered this question and the three grounds that featured most across responses were: criminal record (including analogous offending) (n=23); offending whilst on bail (n=17); and nature and seriousness of offence (n=13).

Other less frequently mentioned grounds were: risk of future offending (n=7); likelihood of failing to attend/absconding (n=7); Section 23D triggers (n=3); risk of interfering with witnesses, especially in domestic cases (n=3); risk to the public or to complainers (n=2); and compliance with court orders (n=2).

Grounds for Defence Requests for Bail

Similarly, judiciary respondents were asked, other than the presumption in its favour, what were the three main reasons given by defence agents for requesting bail. The three reasons mentioned most frequently were: the prospect of remand interfering with employment/resulting in loss of employment for the accused (n=16); lack of or limited previous record (including lack of analogous offending, old criminal records/lack of recent criminal activity) (n=12); and family responsibilities/caring commitments of the accused (n=12). Availability of and willingness to comply with Special Bail Conditions was also mentioned by a number of respondents (n=10) as well as the accused living in stable accommodation which may be threatened by remand (n=7).

Information from Justice Partners

Members of the judiciary were also asked how often information requested from different justice partners was used to help inform their bail decision-making, if at all. Among the 25 respondents who answered this question, most said that information from both the Procurator Fiscal (93%) and defence (84%) 'always' informed their decisions.

Information from other sources that was cited as featuring in decisions included:

• social work reports (including bail supervision reports and court social worker reports regarding such things as availability of secure housing, mentoring and counselling services available, etc.);
• information from the accused's employer;
• medical reports, psychiatric reports and psychological assessments;
• letters/input from complainers (especially in domestic incidents); and
• input from family of the accused.

Timeliness and Adequacy of Information

Members of the judiciary were also asked, generally speaking, if information provided by others was timely and adequate to assist with their bail decision-making.

Among those who answered these questions (24 and 25 respectively), almost all said that information from the Crown was either 'always' or 'very often' timely (96%) as was information from defence agents (92%). Almost all also said that information from the Crown was either 'always' or 'very often' adequate (88%) as was information from the defence (80%). A reasonable proportion (20%) of respondents, however, indicated that information from the defence was only 'sometimes' adequate.

More general comments were made that:

• information sometimes comes late to the defence who have had little time to look at the background before they address the court;
• there can sometimes be a lack of information in domestic cases from agencies involved with domestic matters, including social work;
• insufficient information related to housing issues for the accused can often delay decisions;
• that defence submissions are rarely vouched;
• there can be a lack of information (from both Crown and defence) to support requests for special conditions of bail;
• Crown input can at times be too generic; and
• the extent to which information from the PF and defence agent is useful may depend on the skill of the PF and defence agent involved.

Professional Risk Assessments

Members of the judiciary were asked how important, if at all, professional risk assessments were in their bail decision-making. Feedback suggests that these were rarely sought and rarely made available (particularly post-pandemic). Several, however, commented that professional risk assessments may, if more routinely available, be of great use, especially in cases involving significant sex offences or where the court has been advised of mental health difficulties of the accused, where the accused has a substance misuse history or for other vulnerable accused. Some commented that such assessments would be helpful particularly in solemn and more serious cases.