Prison population and penal reform: working towards sustainability
Section 5: Bail and remand
The Scottish Government is clear that we must take a holistic approach to achieve a sustainable prison population and justice system that focuses on reducing reoffending. This includes bail and remand, the extension of PASS and reforms to community payback orders.
Some of the potential reforms considered have specific implications for bail and remand policy. It therefore makes sense that these are considered alongside each other to ensure a holistic, coherent approach is taken. In most cases, it would not make sense to remand a person if they are unlikely to receive a custodial sentence.
Current bail arrangements in Scotland
The Criminal Procedure (Scotland) Act 1995 sets out a presumption in favour of bail for criminal cases so that typically an individual accused of a criminal offence can be allowed to remain in the community before their trial. The presumption sets out that an accused person is to be granted bail unless the court determines that there is good reason to refuse bail. The court may determine that there is good reason for refusing bail only if it considers certain grounds apply and having regard to the public interest, it is necessary to refuse bail in the interests of public safety or to prevent significant risk to the interests of justice. The court must consider bail in all cases regardless of whether an application is made.
The Act sets out a number of grounds which, taken individually or collectively, may give reason to the court to justify a decision to refuse bail in any given case. Grounds for refusal include a substantial risk of: absconding or failure to appear; a substantial risk of committing further offences, interfering with witness or otherwise obstructing the course of justice. The public interest point relates to public safety and the prevention of a significant risk of prejudice to the interests of justice. The legal framework requires a court to have regard to material considerations including the nature of the offences and the “probable disposal of the case if the person were convicted of the offence.”
The decision to grant bail, or not, is an exercise of judicial discretion. If an individual accused of a criminal offence is not granted bail, they will be remanded to custody to await trial.
Numbers on Remand
In recent years there has been an acknowledgement that the numbers of people being remanded to custody pending trial is high. In June 2018, the Scottish Parliament’s Justice Committee published a report ‘An Inquiry into the Use of Remand in Scotland’ that raised a number of concerns about the high use of remand in the justice system.
Today, the remand population is even higher. The share of the prison population on remand on an average day increased from 19% in 2019-20 to 22% in 2024-25. There was a spike in the number of people remanded to custody awaiting trial due to the onset of the Covid-19 pandemic in 2020. Over half a decade later, the remand population remains considerably higher than before the pandemic.
Further information on bail and remand
In late 2019, the Scottish Government commissioned independent research into bail and remand decision making in Scotland with the aims assisting the Scottish Government and other justice stakeholders to:
- better understand the process of bail decision making.
- better understand the current system’s strengths and weaknesses, and hear what criminal justice stakeholders need to best be supported in their decision making.
- use this evidence to build on what is working well and inform improvements, if needed.
The main findings of the final report published in December 2023 were that the bail and remand decision making process is complex and time- pressured. The nature of the offence charged, and an individual’s previous convictions, were the two factors “which perhaps carried the most weight in decisions to oppose bail (by COPFS) and to refuse bail (by sheriffs).” There was acknowledgement that the exercise of judicial discretion inevitably leads to a variation in attitude, perception and thus also outcome. Among all stakeholder groups the main reported process or system factor was time, specifically the lack of time for partners including judiciary, defence, and justice social work to collect and process all the necessary and appropriate evidence and information to inform case decisions. High volume of business compounded the issue, as did missing information, such as the absence of a detailed Standard Prosecution Report (SPR) which might require COPFS to spend considerable time trying to determine necessary information.
The 2021/22 Programme for Government included a commitment to introduce legislation to change the way that imprisonment is used. A consultation on initial proposals relating to bail and release from custody ran during 2022.
Following the consultation, the Bail and Release from Custody (Scotland) Act 2023 (“2023 Act”) reframed the test which the court must apply when considering whether or not to grant bail to someone accused of or charged with an offence. The general presumption in favour of bail applies subject to particular exceptions. Section 1(2) of the 2023 Act also amended the 1995 Act to require the court to always give an opportunity to justice social workers to provide information to the court to inform the bail decision and the court is also required, when refusing or granting bail, to state and record particular reasons for that decision. The core bail provisions of the 2023 Act came into force in May 2025 and their impact on remand rates is not yet clear. The 2023 Act requires the Scottish Government to publish a report assessing the effectiveness of the new bail test three years after its implementation.
The Sentencing and Penal Policy Commission
In 2026, the Sentencing and Penal Policy Commission acknowledged that “sometimes people are remanded in custody because that is the only safe thing to do” while in its view also setting out the substantial harm that this can cause to individuals. For example, people held on remand may lose employment and housing, and be unable to manage everyday responsibilities such as paying bills, which can strain family relations, and lead to financial hardship or homelessness. These impacts can be particularly acute for those with existing vulnerabilities such as mental health issues, addictions, or caring responsibilities, and suicide rates are notably higher than among sentenced prisoners. They also have wider societal harms through family breakdown, loss of employment, and homelessness
More Information
The Commission also raised a concern that a large proportion of individuals remanded in prison before trial do not end up serving prison sentences or serve ineffective short-term sentences.
In the Commission’s view, a stronger test would be whether the offence an individual is accused of has any real prospect of a custodial sentence of more than 24 months. This would mean that a court would be obliged to consider whether the offence that someone is charged with has any real prospect of resulting in a custodial sentence of more than 24 months, and that that individual might receive such a sentence.
The Commission stated that specific exceptions would apply when the court is making remand considerations. As set out in this consultation, existing reasons for refusal of bail include absconding or failure to appear; a substantial risk of committing further offences, interfering with witness or otherwise obstructing the course of justice.
Strengthening the bail test
The Scottish Government agrees that there is further work to be done to reduce the use of remand. In considering the above proposal to strengthen the bail test, we are mindful that reducing the use of remand would require careful consideration to be given to ensuring victim safety and avoiding interference with witnesses. There is also a risk that failure to effectively deal with people who abscond or fail to appear could bring increased ‘churn’ into the system - when trials cannot go ahead because the accused is not present. This could result in increased delays and distress for victims of crime
Improvements to the system of electronic monitoring could help mitigate these risks and provide communities and victims of crime with increased reassurance. Use of GPS capability may increase confidence in managing individuals in the community where risks relate to specific locations, while introducing alcohol monitoring could support bail supervision for individuals where alcohol is a driver of risk.
Questions in this section
This section seeks your views on proposed changes to current bail and remand arrangements.
You may find it useful to read or refer to section five of the consultation paper while responding.