Decision-making on bail and remand: interim findings report

Reviews, Appeals and Other Comments

Key points:

Both the review and appeals processes were seen to be largely unproblematic by the judiciary although this was an area of the survey that attracted little feedback from respondents.

Some COPFS respondents viewed that the current system of bail/remand decision-making worked well, while others suggested that there were inconsistencies in the use of remand (both between areas and between individual Sheriffs, as well as over time) and between police practices in relation to undertakings (which had an onward impact on decisions).

Some COPFS respondents viewed that remand was not used in all cases where it may in fact be appropriate.

The COVID-19 pandemic was reported to have impacted more on solemn cases compared to summary (with increased propensity to grant bail).

Bail Reviews

Sheriffs and Senators were invited to provide feedback on the effectiveness of the bail review process. Only nine individuals gave a substantive response, the main feedback suggesting that the process was effective and fair with applications for review being dealt with in a reasonable time. Only one respondent suggested that reviews took time to process (which could be mitigated if the hearing could be dealt with in chambers on agreement from the Crown). Two others commented on timelines associated with reviews linked to bail conditions, and suggested that more could be done to deter an accused agreeing to bail conditions one week and then seeking a review the following week.^[6]

Reviews were also described positively by Crown respondents as an opportunity for conditions to be amended or removed, but that the initial bail/remand decision afforded immediate protections for complainers, which was considered to be vitally important:

"I find for the most part the way we oppose bail allows the sheriff to have the full details to make the best decision at that time. This can of course and often does get reviewed further down the line and conditions can be amended or removed if needed, but it provides protection for the immediate time after the alleged incident which I think is the most important time to protect complainers."

"I have not seen a Sheriff remand an accused in custody pending trial where there is no justifiable reason to do so. Their decisions are finely balanced upon the arguments put forward by both the Crown and the defence, and there have been no instances where I have disagreed with the Sheriff's decision to remand."

Bail Appeals

Similarly, judiciary respondents were invited to provide feedback on the bail appeals process. Ten individuals provided a response with most again saying that the process seemed to work well from their perspective.

Two respondents commented that there should be more responsibility placed on the defence to justify bail appeals (which often appeared to be without merit) and to present them in a timely manner, and another suggested that additional information in advance in support of an appeal would be useful.

A small number of COPFS staff indicated that they felt the current system worked appropriately, and that they had generally been satisfied with the decision of the court regarding the use of bail or remand. One COPFS respondent did, however, suggest that appeal courts could be rushed meaning that not enough time is provided to fully consider/discuss all the information and make an informed decision:

"Unfortunately, the numbers being put through court and the resources available to process them leave little time for a meaningful discussion on what is most appropriate. Often the remand court is rushed, Fiscals have little or no time to consider their papers and one court must deal with a huge amount of business, frequently hearing cases well past business hours. The appeals process is also rushed, with insufficient court time allocated to ensure that all cases are properly considered."

Consistent Practice

In other comments, several COPFS respondents suggested that there were inconsistencies or issues in the use of remand. For example, it was suggested that inconsistencies existed between areas and between individual Sheriffs, as well as over time (particularly following disruptions caused by COVID-19):

"Shrieval approaches to remand/bail conditions can and do vary which can lead to a lack of consistency and frankly quirks (and defence agents 'Sheriff shopping' so that they can increase their client's chances of being admitted to bail)…I believe that if an accused person would have been remanded pre-Covid that they ought to be remanded now too - the fact that they will have to wait longer for the case to conclude is often put forward by defence agents in support of bail which a great many Sheriffs support."

A few COPFS respondents also highlighted inconsistencies introduced by the use of police undertakings. It was suggested that Sheriffs will often not remand accused persons where they have appeared on an undertaking, even where Section 23D should apply, i.e. that bail must not be granted except in exceptional circumstances:

"S.23D cases have [increased] astonishingly over the last two years and the dawn of the police undertaking for almost everything meant that often offenders to whom s.23D applies are released on a police undertaking. When that decision is made by Inspector level and above, often the court holds the Crown responsible for that arm of the state and will not then remand."

One respondent also noted that, in comparison, there can be cases where people are remanded for breaching bail in minor cases due to further minor offending (e.g. in the case of minor shoplifting).

Impact of COVID-19

Respondents to the judiciary survey were asked if the effect of the COVID-19 pandemic had had any impact on their decision-making in respect of both solemn and summary proceedings. In solemn cases, 72% of respondents (n=18) said that there had been an impact compared to only 22% (n=5) who said it had impacted on summary cases.

Explanations included that, in solemn cases, long delays in cases had meant that decision makers were more inclined to grant bail especially if the likely sentence was less than 2 years. Most referenced the High Court guidance in this regard and explained that they had taken into account the likely longer period on remand and followed the High Court guidance accordingly:

"It is plain that accused persons in solemn cases are liable to be on remand for longer than pre-covid, and in some cases, for a significant period of time. This has been the subject of consideration by the High Court of Justiciary Appeal Court, and one is mindful of what that court has said about that. Thus, in cases where a custodial sentence of less than 2 years is a likely outcome, there will need to be more compelling reasons to refuse bail. Such reasons do present in some cases, but the point is that the balance may have to be struck in a different way from pre-covid times."

The nature of the allegations, criminal record, likely length of a custodial sentence if found guilty and interference with the accused's family/work/housing and wellbeing were all important in such considerations, but may not of themselves dictate a grant of bail (with public interest concerns still remaining). Overall, however, most stressed that the likely period to be spent on remand had to be proportionate, therefore bail may be more likely to be granted during the pandemic, in some cases.

Comments were also made that there had been less availability of information to support decisions during the pandemic (for example, no mental health, supervised bail and domestic abuse advocacy services in court) and that this had directly impacted on decisions.

Two respondents commented that there were safeguards in place which allow review of bail to be considered if necessary.

For summary cases, most said that COVID-19 had not impacted on decisions and this was largely because most custody trials were still operating within 40 days as a matter of practice and likely remand periods were short.

Where people said that COVID-19 had impacted on decisions in summary cases (n=4), one respondent said they were now more likely to remove special bail conditions if it would mean separation from the family setting over a period of time (i.e. over a year), another said that they were more likely to grant bail because of social distancing requirements in multiple accused cases and another said that remand would be less likely if they perceived there to be a public health risk associated with COVID-19 outbreaks in prison. The final respondent again stressed that the absence of support from mental health, social work, supervised bail and domestic abuse advocacy services during the pandemic impacted on their decisions.

The only other comments offered in relation to COVID-19 and impact on bail and remand decisions were that mental health and general well-being of the accused may feature more in decision-making compared to pre-pandemic:

"In some cases, I take into account the toll on the mental health of accused persons the pandemic may have had, and I have regard to this when assessing their overall situation in relation to bail and any special conditions."

"Much more sensitive to time scales and risk of accused being on remand for unfairly long time. Therefore, a little more likely to grant bail, especially in cases of lower seriousness."

One respondent again stressed that each case must be considered on its own facts to address how long a person may be on remand.

Other comments

Respondents to both surveys were invited to provide any additional feedback on bail/refusal of bail in Scotland, and/or alternatives to remand (bail options) that was not covered elsewhere in the survey.

Some COPFS staff reiterated the key areas for consideration when considering whether or not to oppose bail, particularly around safety and risk of harm:

"The overriding question is one of safety, to a particular complainer or the wider public, based on the previous convictions of the accused, propensity for offending, breaching conditions of bail, all taken in light of the nature of the offence itself."

"…remand is a significant step in my view and opposition to bail should only be sought to achieve a particular aim; not just because an accused has a 'bad record', but because a 'bad record' along with new allegations and other antecedents suggests there is a risk of harm to others or that public order has to be maintained or to ensure an accused's attendance at any future diets, and can only be achieved by the accused being remanded."

Similarly, two Sheriffs suggested that Section 23B(1)(a)(ii) ('having regard to the public interest') was a key factor influencing decisions (although not covered by the current survey), and was something which could be explored in more detail to better understand its influence:

"[s23B(1)(a)(ii)] requires consideration whether there is good reason for refusing bail having regard to the public interest…It is not enough that the situation is within one of the s23C(1) grounds. Separate consideration must also be given to whether that is good reason for refusal of bail having regard to the public interest."

"Bail/remand decisions involve a consideration of the interests and rights of the accused as well as the public interest and especially protection of the public and particular individuals. That is a judicial decision which I believe is done well on the whole."

A third Sheriff suggested that public interest and protecting the community from harm was often a necessary reason for use of remand:

"Proportionality is important in decision-making, but so is protecting the integrity of prosecutions and ensuring that prosecutions are concluded without delay. Remand can be necessary to ensure that the prosecution can be brought to a conclusion as well as for protecting the community from harm from the accused."

A few COPFS respondents outlined additional options to support/complement the bail or remand options. One suggested that supervised bail needed to be more readily available as this provided "a good halfway house" between remand and bail, with them suggesting that, if it helped to rehabilitate and re-educate offenders then it was "clearly the better way to deal with those awaiting trial". Another respondent suggested that interim GPS tagging should also be legislated for to provide another option and to allow greater numbers of people to be granted bail.

One judiciary respondent also again stressed that improvements and investments in alternatives to remand may be welcomed:

"…this is not to say that there are no improvements possible, some of which are probably capable of both reducing the rate of remand while adequately safeguarding the public and private interest. Those improvements include: bail hostels, tagging, alcohol tagging and (if feasible) drug tagging. But that all requires money and political commitment. If done, all well and good. I for one would be pleased."

Several COPFS respondents felt that remand was not being used enough, that bail was used in sometimes inappropriate cases thus allowing those accused of serious offences to commit further offences while on bail, that bail conditions were not enforced or that breaches incurred with no real consequences, and that defence agents frequently sought to review and change special bail conditions:

"…very often it does appear as though it is nigh on impossible to have some people remanded; some people who have breached a bail order while being subject to 6/7/8+ bail orders who are then further admitted to bail tends to completely undervalue the purpose of the conditions."

"Not enough people are remanded by Sheriffs these days… The sanctions often applied for breaching bail conditions undermine bail and its importance and effectiveness. Agents are too keen to accept special bail conditions and then seek to review these shortly afterwards."

Other comments from COPFS respondents (raised by just one respondent each) included that issues with an accused's housing stability/status can sometimes result in periods of remand, even where bail is not opposed and that there was a need for more creative and innovative bail conditions to ensure the use of bail can be managed safely:

"I…have seen attitudes change to take domestic abuse more seriously but the drive to prevent short sentences is working against this and is giving Sheriffs an excuse not to imprison dangerous males…There is so much that can be done if we are more creative but the attitudes from the bench need to change."

While not a key emerging theme, one judiciary respondent suggested that, if remand was seen as being 'over-used', there may be merit in exploring further the Crown's reasons for opposing bail, as well as encouraging PFs to more frequently use their flexibility to support bail:

"Procurators Fiscal… are sent into court with instructions to oppose bail…and the arguments they are required to advance are usually very one-dimensional. I understand that there is concern about the number of people who are remanded. It would be not a bad start if COPFS - which is part of the Scottish Administration - opposed bail much less frequently, especially in summary cases and allowed procurators fiscal in court a discretion to depart from their peremptory instructions if they see good reason to do so once they have heard about the accused's situation."

Finally, one judiciary respondent also outlined that, while research to better understand bail and remand decision-making was important, caution was needed not to overstate nor oversimplify the problem of remand in Scotland:

"…it is quite wrong to jump from figures showing a rate of remand higher than many other countries to a conclusion that our rate is too high. The figures show that the great majority of accused are either bailed or ordained to appear. Remand is no more than about 15% of all cases. In my view, the law is sound. The processes for determining bail are sound in my view. All have skilled legal representation. There is a quick effective appeal process. Those who believe that too many are being remanded would profit from spending a few solid weeks in a busy sheriff court and familiarise themselves with the large daily workload sheriffs have to deal with. They would do well to carefully examine the cases that we deal with and the circumstances of those appearing before us. They may, after a while, well conclude that on the whole, sheriffs only remand for sound reasons which usually stand up to appeal (which are not common in any event)…There ought to be a healthy amount of respect for judicial decision-making applying the law laid down by Parliament."