MSP committee unable to back Bail and Release Bill
Question marks over the Bail and Release from Custody (Scotland) Bill have been raised by Holyrood's Criminal Justice Committee in its stage 1 report, with members unable to form a majority view on whether to agree to its general principles.
Despite agreement that there are some useful provisions in the Scottish Government's measure, a lack of sufficient explanation about the bill’s intended purpose, its effects and detail about how some of the reforms will be delivered meant some committee members could not support the bill.
As part of its scrutiny of the bill, the MSPs looked into the issue of remand and why Scotland’s remand population has increased in recent years to one of the highest in the UK and EU.
While acknowledging the impact of Covid on increasing overall remand numbers, they say they have not been provided with data which properly quantify what the bill’s impact may be on the efforts to reduce the number of individuals on remand.
All members identified the need for adequate resourcing if the bill is to meet its policy objectives. While the committee welcome the opportunity for justice social workers to input into each bail decision by a judge, concerns are raised around the resources being provided to meet this potential change, with out which the bill's objectives will not be achieved and courts might even become more risk averse about granting bail.
Provisions on prisoner throughcare on release from prison are welcomed, but the MSPs warn that unless sufficient resources are made available, the policy objective of reducing reoffending and supporting reintegration into the community will not be achieved.
The committee also scrutinised a potential change to the bail test to put more emphasis on public safety, highlighting evidence from witnesses who said it is not clear whether the proposed change is intended to be a minor reframing of the rules, or a more fundamental reform.
Members recognise the good intentions behind this change but conclude that it fails to address the concerns of Lord Carloway, the Lord Justice General, that the legislation will “introduce an unnecessary, cumbersome and artificial process” without changing outcomes in bail decision making.
Other conclusions in the report include:
- Releasing a prisoner on a Friday should be avoided until adequate public and third sector services can be provided to support prisoners, as there is a risk that access to housing, healthcare and benefits support is challenging on this day of the week. If people need to wait until the following Monday for support, that increases the risk of reoffending or making them more vulnerable to others.
- There are deficiencies in the current victim engagement system. The report calls on the Scottish Government to consider whether further information can be provided to victims to give them confidence that bail conditions are being policed and necessary action taken in the case of a reported breach.
- The committee is not wholly persuaded of the need to enshrine permanently in this bill the power to release prisoners early, as this is already included in the Coronavirus (Recovery and Reform) (Scotland) Act 2022.
- More must be done by the Scottish Government to convince victims of crime of the merits of repealing s 23D of the Criminal Procedure (Scotland) Act 1995, which sets out a presumption against bail in solemn proceedings for those accused of violent/sexual/domestic abuse offences or drug trafficking offences, where they have a previous conviction of a similar nature.
- It is not clear that a case has been made to require a written statement of reasons in all cases where bail has been refused.
In the result, four members support the bill's general principles, three do not, and one is of the view that the bill should only proceed if ministers address the issues outlined by those who do not.
Committee convener Audrey Nicoll MSP commented: "Our committee see the merits of many aspects of this bill; however concerns from some members over its overall purpose, its impact and around adequate resourcing mean we have not been able to reach a consensus on its general principles at stage 1.
"The bill would make a number of changes to the bail and release system in Scotland and it is fundamental that the rationale for these changes is made clear, and that detail of how these changes will be delivered and resourced is outlined.
"It’s now up to Parliament as a whole to decide whether this bill proceeds to stage 2."