Bail and release from custody arrangements in Scotland

The 2021/22 Programme for Government [Programme for Government - gov.scot ] included a commitment to introduce legislation in this parliamentary term to change the way that imprisonment is used, with a consultation on initial proposals relating to bail and release from custody law.

The Bail and Release from Custody (Scotland) Bill consultation ran for 12 weeks closing on 7 February 2022. It included 32 questions, with a mix of both open and closed questions, allowing for more detailed feedback on proposals. As well as informing development of legislation, the consultation was designed to be a first step in a wider discussion about how custody should be used in a modern, progressive Scotland. The consultation sought views on a range of possible proposals, not all of which have been progressed in the Bail and Release from Custody (Scotland) Bill which was introduced to Parliament on 8 June. 

This consultation was separated into two parts: the first part focussed on proposals surrounding bail and remand, and the second part on proposals in relation to the release of prisoners.

The consultation attracted a response from a broad range of stakeholders. There were 142 responses to the consultation, the majority of which were received from organisations (74) and the remainder (68) from individuals. The analysis of the responses received can be found here: Bail and Release from Custody Arrangements in Scotland: Consultation Analysis (www.gov.scot)

Part 1: Bail

There was support for almost all of the proposed reforms to bail law contained in the consultation. Notably just under two thirds of respondents agreed with the proposal that judges should only refuse bail if there were public safety grounds for doing so, however, several expressed the need for greater clarification over the term ‘public safety’. Another concern raised was that some flexibility would be needed to allow for those with repeated breaches of bail and/or repeated failure to appear in order to minimise costs to the public purse of pursuing those with no regard for orders of the court. Over two thirds of respondents agreed that having victim safety as a separate consideration would be compatible with a victim centred approach to justice, however it was also suggested the legislation should be clear about whether risk of harm includes physical and/ or psychological harm to victims. The proposal that time spent on bail with electronic monitoring should be taken into account at sentencing was generally supported, however, it was felt that requiring the court to “have regard to” time spent on bail with electronic monitoring would preserve the discretion of the sentencing court.

Part 2: Release

There was considerably more divergence in the views offered in relation to the consultation proposals around release from custody, with some proposed reforms being almost unanimously supported and others attracting less support. The majority of respondents agreed with the proposal that enabling a prisoner to serve part of their sentence in the community could help their reintegration. There was considerable agreement with the proposal that releases on a Friday (or the day before a public holiday) should be restricted. The vast majority of respondents also agreed or strongly agreed that information on individuals being released from custody can be shared with third sector victim support organisations, however, there were some reservations related to GDPR concerns and prisoners’ rights expressed. Whilst the majority of respondents agreed that a ‘specific duty to engage’ in release planning was required, it was seen as important that this duty involved collaboration between all community justice partners.

Across all of the proposals it was generally felt that key to the success of the proposed changes would be collaborative working (including between statutory and third sector organisations). Overall, subject to refinement and suitable safeguards many of the proposals were seen as potentially contributing to the underlying aim of reducing crime, reducing reoffending and having fewer people experience crime.

The Bail and Release from Custody (Scotland) Bill was introduced into the Scottish Parliament on 8^th June 2022. Further details are available here: Bail and Release from Custody (Scotland) Bill – Bills (proposed laws) – Scottish Parliament | Scottish Parliament Website.

We would like to thank all who participated in the consultation process. The views offered through the consultation were extremely valuable in helping inform the approach taken in the Bill. Below are some examples of how the policy was affected by the feedback received through the consultation, as well as, other events held during the consultation period:

Part 1: Bail

• The Bill makes provision to refocus the legal framework within which bail decisions are made by a criminal court, so that the use of custody is limited to those accused persons who pose a risk to public safety, including the safety of the complainer from harm, or to prevent a significant risk of prejudice to the interests of justice.
• Prejudice to the interests of justice means the accused person evading justice as a result of either the proceedings being delayed or discontinued. It also means the course of justice in the proceedings being impeded or prejudiced as a result of the destruction, concealment or withholding of evidence, the giving of false or misleading evidence or the quality or sufficiency of evidence being diminished.
• Relating to public safety, harm is defined as meaning physical or psychological harm. Psychological harm is defined as including fear, alarm and distress.
• This approach has been taken to balance the overarching policy objective of minimising the use of short periods on remand pre-conviction, which should be reserved only for those who mainly pose a risk to public safety, whilst ensuring the court retains a power to remand those who it considers pose a substantial risk of preventing the delivery of justice if admitted to bail.
• The Bill provides that, at the sentencing point of the criminal justice process, time spent by an accused person on electronically monitored bail awaiting trial or sentence may be accounted for against any eventual custodial sentence. This will be achieved by requiring the court to have regard to any period of time spent on bail subject to a qualifying electronically monitored curfew condition with the court being required to determine if some, all or none of that time should count as time served against a custodial

Part 2 Release:

• The Bill will end liberation on a Friday or the day before a public holiday, adding these days to the existing list of ‘excepted days (Saturday, Sunday, Public Holiday).
• In recognition that enabling a prisoner to serve part of their sentence in the community could help their reintegration, a new reintegration licence will be made available to long-term prisoners (replacing Home Detention Curfew for this cohort)..
• The Bill also introduces a power for Scottish Ministers to be able to release specified groups of prisoners in an emergency situation to protect the security and good order of prisons and the health, safety and wellbeing of prisoners and prison staff. A specific duty will be placed on identified partners to engage with release planning for prisoners (including those on remand). These identified partners include local authorities, health boards, Skills Development Scotland and Integration Joint Boards (IJBs).
• The Bill introduces a requirement for Scottish Ministers to publish national statutory throughcare standards. This is intended to promote a consistent approach to the provision of throughcare support across Scotland. The Bill includes a list of named partners who must comply with these standards when providing throughcare support services.
• The Bill also enables a victim who is registered to receive information relating to the release of the prisoner in their case to nominate a Victim Support Organisation to receive that information at the same time as they do, or on their behalf. This is intended to enable a VSO to work proactively with a victim to provide support including safety planning.

Only VSOs which have been prescribed by regulations made by Scottish Ministers can be nominated by victims. This will ensure that the policy intention of facilitating better support for victims can be delivered, whilst also helping to ensure the sharing of information about prisoners is carried out in accordance with the law.