Opinion: Andrew Ormiston

The Bail and Release from Custody (Scotland) Bill was introduced to the Scottish Parliament in June 2022, following a consultation process, and has just entered stage 2. Part 1 relates to bail, while part 2 deals with release from custody. This article considers whether the changes proposed in part 1 will have a significant impact on the myriad bail decisions made daily across Scotland.

In reviewing the current legal framework, the stated purpose of the Scottish Government was to ensure that remand in custody is a last resort. Part 1 would (1) require the court to allow criminal justice social work an opportunity to provide information relevant to the question of bail; (2) change the test the court must apply; (3) remove the restriction under s 23D of the Criminal Procedure (Scotland) Act 1995, so that bail in all solemn cases is subject to the same test; (4) limit consideration of previous failures to appear in summary proceedings to failures directly connected to the case; (5) require that grounds for refusing bail be formally minuted; (6) require a sentencing court to consider whether time spent on electronically monitored bail should be regarded as a period in custody.

Proposed changes (3) to (6) above are all to be welcomed. Repeal of s 23D may at first blush suggest a less restrictive bail regime, and no doubt that was part of the Government’s intention, but it is likely that accused who fall within s 23D would be considered generally to present a greater risk of harm because of the triggering conviction in any event. Often courts may accept that, due for example to the passage of time, s 23D is not engaged, but refuse bail on the merits. Arguably, therefore, repeal may not result in many more accused being granted bail, but would simplify the procedure, which was another stated aim. It is unlikely that any other reforms in this group will significantly affect determination of bail.

The second most significant change is the test to be applied. Currently the court requires to grant bail unless, having regard to the public interest and a number of factors in s 23C(1) of the Act, there is good reason to refuse. The new test requires the court to be satisfied that one of the s 23C(1) grounds applies and that it is necessary to refuse bail in the interests of public safety, including the complainer’s safety, or to prevent a significant risk of prejudice to the interests of justice. There is certainly some overlap between the s 23C criteria and these new elements. For example, an accused who poses a substantial risk of failing to appear, or of interfering with witnesses, is almost always going to pose a significant risk of prejudice to the interests of justice. It is perhaps hard to see what impact the new test would have. Maybe having a good reason to refuse bail is a lower test than only refusing bail where it is necessary to do so for safety or prejudice to justice reasons? Time will tell.

Perhaps the most significant change is the requirement that the court must grant a local authority officer an opportunity to provide information relevant to bail. The potential impact could probably be the subject of its own article. The impact of this reform will depend on the manner in which it is implemented and the resources made available. It is fair to say that our criminal justice social work departments are already stretched. If the proposed bail reports are to be similar to post-conviction court reports or parole reports, it will place a huge burden on those drafting them: these reports are prepared over a number of weeks with the assistance of digital risk assessment tools. Even then the authors occasionally question the results. Bail risk assessment reports would have to be prepared on a staggeringly shorter timescale (time bars relating to determination of bail are not being amended). How is that going to be achieved, and to what level of detail and accuracy? 

Government has already accepted that adequate funding will have to be made available. Rapid risk assessment may require specialist resources and training. With budgets already stretched, it does raise the question whether this reform, if implemented, will be a help to the court or a hindrance due to inadequate resourcing leading to unnecessary delay. Further delay is something all with an interest in the criminal justice process are keen to avoid.

In closing, it seems likely that most of the proposed changes will have a limited impact on the determination of bail. Granting local authority officers an opportunity to provide information is the reform that is most likely to have a significant impact, but whether that is a beneficial or detrimental one remains to be seen.