Sheriff Courts - remand and bail outcomes: occasional paper

1 Introduction

When someone in Scotland is accused of criminal charges and prosecuted in court, the court case may take some weeks or months to conclude. The court must decide what should happen to the person during the period the case proceeds. In particular, whether the person should lose their liberty by being put in custody or should they remain in the community either with or without conditions. The court may:

• Decide that the accused person should be remanded in prison.
• Impose bail conditions that the accused person is subject to while they remain in the community.
• Allow the accused person to remain in the community without being subject to bail conditions throughout the duration of their criminal case – in this case the person is generally referred to as being “ordained” to appear in court at a later date.

A number of factors are considered in the decision on which of these options should be deployed. In the case of whether bail should be granted^[1], all decisions are made with the public interest in mind, including considerations of public safety. There are specific grounds that the court may account for, including:

• The risk of the person absconding or failing to appear in court on the case,
• The risk of the person committing further offences while on bail.
• The risk of the person interfering with witnesses or otherwise obstructing the course of justice.

Individuals that pose a substantial risk on one of the above grounds may not be granted bail and instead could be held on remand. There are also restrictions on bail in certain solemn cases^[2] that would result in the use of remand. A range of information must be considered by the courts in reaching this decision.

This paper uses a new dataset prepared by Scottish Courts and Tribunals Services covering hearings in Sheriff courts from April 2016 to March 2021, to help illustrate some of the key trends in bail and remand decisions, as well as factors that are associated with the decision. The paper presents data on the numbers and likelihoods of accused individuals being remanded, bailed, ordained or subject to some other outcome at the first point in time when such a decision is made for each individual (from here on this is referred to as the “first bail decision point”). A discussion is provided on some of the factors that are associated with particular outcomes for the accused (such as remand), and the impact of the Covid-19 pandemic is also explored.

Key messages in this publication are:

• Sheriff Solemn (more serious) proceedings are more likely to result in an individual being remanded and are less likely to involve an individual being ordained than Sheriff Summary proceedings.
• The manner in which an individual appears in court (e.g., from police custody) is strongly correlated with likelihood of bail and remand outcomes.
• Individuals that have previously breached the terms of their bail are far more likely to be remanded than those who have not.
• There is evidence of a change in the trend of court callings and outcomes for the accused in the first year of the Covid-19 pandemic, with a notable fall in the use of remand, especially for sheriff summary complaints.
• There was an increase in the number of decisions to remand in Solemn – which was driven by an increase in the total number of solemn petitions rather than the likelihood of being remanded.
• Both the rise in solemn petitions and the rise in remand decisions for those on solemn petitions is strongly associated with breach of bail conditions.

For simplicity, only first bail decision points of criminal cases in Sheriff courts are explored in this paper. Further publications may focus on other hearing types, for example exploring transitions for the accused person between remand and bail during their criminal case.