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Decision-making on bail and remand: interim findings report

Interim findings from the ‘Decision-making on Bail and Remand in Scotland’ research. The first phase of the research is presented, detailing the findings from online surveys conducted with members of the judiciary and the Crown Office and Procurator Fiscal Service (COPFS).



In late 2019, the Scottish Government commissioned an independent research study into decision-making in relation to refusal of bail in Scotland. The overall aim of the research was to explore how decision-making works in practice, as well as to gather perceptions on bail options. The research was designed to cover the adult criminal justice system only and to focus on both solemn and summary criminal cases.

The research sought to assist 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; and
  • use this evidence to build on what is working well and inform improvements, if needed.

This report presents interim findings from the research. Specifically, it outlines the results of two online surveys - one conducted with Crown Office and Procurator Fiscal Service (COPFS) staff and one with members of the judiciary. The surveys were the first stage of the wider study, with subsequent stages requiring interviews with key justice stakeholders to gather qualitative feedback and add breadth and context to the survey data.

Legislative Context

The Criminal Procedure (Scotland) Act 1995 (the 1995 Act) provides that individuals accused of any criminal offence may be allowed to remain in the community pending trial on bail. Bail refers to a set of conditions imposed by the court with which the accused must comply. Section 22A (1) of the 1995 Act specifies that "the sheriff or, as the case may be, the judge shall, after giving that person and the prosecutor an opportunity to be heard, either admit or refuse to admit that person to bail." However, there are circumstances in which a presumption in favour of refusal of bail operates relating to those accused of certain serious offences and these are set out in section 23D of the 1995 Act. In addition, while all offences are such that a person can be bailed, the 1995 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 for an accused person in any given case.

The Scottish Parliament enacted the Bail, Judicial Appointments etc. (Scotland) Act 2000 to remove restrictions on bail from the law of Scotland so that judicial decision-making was an essential part of consideration in all cases. Decisions on whether or not bail is to be granted involve the exercise of judicial discretion. The exercise of that discretion is, however, taken in the context of bail requiring to be granted unless there is good reason to refuse bail (see section 23B of the 1995 Act).

A decision on whether to grant bail is informed by a list of grounds, laid out in statute, relevant as to why bail in any given case may be rejected. These grounds are set out in section 23C of the 1995 Act. In addition, the decision on whether to grant bail in certain cases is informed by specific provision for people accused of certain serious offences, in the circumstances set out in section 23D of the 1995 Act. Despite all offences being bailable and bail requiring to be granted unless there is good reason not to (subject to section 23D), significant numbers of persons are remanded in Scotland.

In June 2018 the Justice Committee published a report 'An Inquiry into the Use of Remand in Scotland' that raised a number of concerns about the use of remand in Scotland's justice system. One of these concerns was the high level of remand prisoners, at around 20% of the prison population.

The 2021 Programme for Government subsequently included a commitment to introduce legislation to change the way that imprisonment is used and it is against this backdrop that these interim findings are presented.

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