Criminal Justice Committee publish report on Bail and Release Bill

Despite members agreeing that there are some useful provisions in the Bail and Release from Custody (Scotland) Bill, the Criminal Justice Committee has been unable to form a majority view on whether to agree to its general principles.

A lack of sufficient explanation about the bill’s intended purpose, its effects and detail about how some of the provisions will be delivered meant some Committee members could not agree to its general principles.

As part of its scrutiny of the Bill, the Committee looked into the issue of remand in Scotland 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 quantifies 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.

Provisions in the Bill on prisoner throughcare on release from prison are welcomed by the Committee, but they 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, highlighting evidence from witnesses who said it isn’t clear if the proposed change is intended to be a minor reframing of the rules, or a more fundamental reform.

The Committee recognise the good intentions behind this change but conclude that it fails to address the concerns of Lord Carloway (Lord President of the Court of Session and Lord Justice General of Scotland) that the legislation will “introduce an unnecessary, cumbersome and artificial process” without changing outcomes in bail decision making.

Criminal Justice Committee Convener, Audrey Nicoll MSP, said: “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.

“We’d like to thank everyone who contributed their views and have helped inform our scrutiny of this Bill.”

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. People released on a Friday may need to wait until the following Monday for support, increasing the risk of reoffending or making them more vulnerable to others.
• Highlighting deficiencies in the current victim engagement system and calling 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 say they are not wholly persuaded of the necessity to permanently enshrine the power to release prisoners early in the Bail and Release from Custody (Scotland) Bill as this power is already included in the Coronavirus (Recovery and Reform) Act 2022.
• The Committee say more must be done by the Scottish Government to convince victims of crime of the merits of repealing section 23D of the Criminal Procedure (Scotland) Act 1995. Section 23D sets out a presumption against bail for those accused of violent/sexual/domestic abuse offences or drug trafficking offences in solemn proceedings, where they have a previous conviction of a similar nature.