Bail and release from prison reform proposals published

Proposals to improve the way bail and prison custody operates in Scotland have been published for consultation by the Scottish Government.

The plans are aimed at reducing the undue disruption caused by short periods of imprisonment on remand, providing more opportunities for rehabilitation and better supporting reintegration for people leaving prison, to help them move on from their offending behaviour while ensuring public protection and victim safety.

Responses to the consultation will inform legislation scheduled for introduction to the Parliament within the coming year.

For bail the proposals include:

• the need to protect public safety becoming a required ground that must be present to justify refusal of bail;
• requiring the court to have particular regard to victim safety when making their bail decision;
• empowering the court to rely, in all cases, on the general grounds relevant in reaching the decision to the question of bail, by removing the presumption in favour of remand in certain cases;
• where a court refuses bail, requiring the court not only to give, but also to record, explanations for that decision;
• better informed decisions in relation to the question of bail, including through enhanced involvement by justice social work;
• before a decision to refuse bail is finalised, making it an explicit requirement for the court to consider the use of electronic monitoring as a means of the accused remaining in the community.

The consultation also seeks views on a range of options to improve support for people leaving prison, with a focus on reducing reoffending. These include:

• providing victim support organisations with information about the release of prisoners to enable proactive safety planning to be undertaken;
• giving certain categories of prisoner the ability to demonstrate their suitability for earlier release or to serve the remainder of their sentence in the community following successful completion of programmes etc;
• bringing forward the point at which short-term prisoners are automatically released (either unconditionally or subject to conditions);
• bringing forward the point at which long-term prisoners can first have their case heard by the Parole Board;
• amending or replacing the current model of home detention curfew;
• providing courts with the ability to determine the proportion of a custodial sentence that an individual should serve in the community whilst subject to conditions (monitored via electronic monitoring) at the point of sentencing, with an emphasis on supporting reintegration;
• altering current flexible release arrangements so that release no longer happens on a Friday or in advance of a public holiday, in order that people leaving prison can access support at the point of release;
• placing specific duties on public bodies to engage with pre-release planning for prisoners;
• introducing a support service for prisoners released direct from court to enable their reintegration;
• revising throughcare standards for people leaving remand, short-term and long-term sentences and seeking views about which services these standards should apply to in addition to justice agencies; and
• introducing wider power of executive release to enable Scottish ministers to release groups of prisoners in exceptional circumstances, with the aim of ensuring the ongoing security and good order of prisons and the health and wellbeing of prisoners and prison staff.

The proposals recognise that, while imprisonment will always be needed for those who pose a risk of serious harm, many people in contact with the criminal justice system experience multiple and severe disadvantage. A greater emphasis on rehabilitation and reintegration will do more to support people to move away from offending behaviour.

Justice Secretary Keith Brown commented: "Our overarching aim for the justice system in Scotland is to improve public safety, support victims and reduce rates of victimisation. The proposals in this consultation support that aim. We cannot simply keep using imprisonment to address wider societal harms. Indeed, in some cases such use can exacerbate the harm.

"This consultation asks important questions about how custody should be used in Scotland now and in the future, with a focus on reducing crime and reoffending and keeping people safe."

Karyn McCluskey, chief executive of Community Justice Scotland, added: "The total number of people on remand in Scotland is far too high, a situation exacerbated by the pandemic. There need to be fewer people held on remand and for shorter periods. 

"Periods of custody, especially on remand, can have devastating emotional, psychological, and financial impacts. People are separated from their communities, children, removed from support networks and can be driven into debt and homelessness.

"Remand is an essential tool but we should think carefully about how it is used. We need to look at different ways to keep people in the community and to support them to not reoffend. This includes ensuring people have access to the right support before and after they leave prison."

Click here to access the consultation. Responses are due by 7 February 2022.