Bail and Release from Custody (Scotland) Bill

Closes 8 Sep 2022

Opened 1 Jul 2022

Overview

The Scottish Government is proposing a new law on how bail and custody are used in Scotland. The proposals would affect decisions made by the criminal courts and arrangements for people held in prisons and young offenders’ institutions.

The proposals do not seek to change the laws relating to people held for short periods in police custody (e.g. for questioning or before a first court hearing).

The Scottish Government wishes to change the law in relation to:

  1. Bail
    • a range of measures aimed at increasing the likelihood of the release of accused on pre-trial bail, as opposed to being held (remanded) in custody, where this can be done safely
    • provision on what account should be taken of any period a person has spent on bail subject to a curfew condition when a court is imposing a custodial sentence in the case
  2. Release from custody
    • a range of measures aimed at improving the transition of prisoners back into the community – including ones dealing with release planning, prisoner through-care, information to support victims and a new form of early release for long-term prisoners
    • provision for a Scottish Government regulation making power to release groups of prisoners early in emergency situations

Read a fuller overview of the proposed new law

MSPs on the Scottish Parliament’s Criminal Justice Committee are looking at the details of the proposals.

They want to know what people think about them.

General approach

Paragraphs 4 to 13 of the Policy Memorandum, written by the Scottish Government, sets out the policy objectives of the Bill.

The Scottish Government states that the proposals in the Bill are underpinned by a commitment to public safety and the protection of victims and are intended to lead to a reduction in the risk of future reoffending, leading to fewer victims in the future.

Do you have any comments on the general approach taken in the Bill to the following?

  1. The use of bail and remand
  2. Arrangements for the release of prisoners

Do you have any comments on the practical implementations of the proposed changes in the Bill, including resource implications?

Specific proposals

You may wish to refer to the detailed proposals in the Bill.

Input from justice social work in relation to bail decisions

Section 1 of the Bill seeks to encourage input from justice social workers in relation to court decisions on whether pre-trial bail should be granted and under what conditions.

What are your views on this proposal?

Grounds for refusing bail

Section 2 seeks to narrow the grounds upon which a court may decide to refuse bail by:

  • adding a specific requirement that reasons for refusing bail must include that this is necessary in the interests of public safety (including the safety of the complainer) or to prevent a significant risk of prejudice to the interests of justice
  • limiting the circumstances in which grounds for the refusal of bail in summary procedure (less serious) cases may include a risk that the person might abscond or fail to appear.

What are your views on this proposal?

Removal of bail restrictions

Section 3 would remove some existing restrictions on granting bail in solemn procedure (more serious) cases; thereby allowing the courts to simply apply the tests used in other cases.

The restrictions currently apply where a person, who is being prosecuted for certain offences, has a previous conviction for such an offence. In those cases, the law provides that bail should only be granted in exceptional circumstances. The relevant offences are ones involving drug trafficking, violence, sexual offending or domestic abuse.

What are your views on this proposal?

Stating and recording reasons for refusing bail

Section 4 seeks to expand the current requirements for a court to state its reasons for refusing bail and to require the recording of reasons.

What are your views on this proposal?

Consideration of time spent on electronically monitored bail in sentencing

Section 5 would require a court, when imposing a custodial sentence, to have regard to any period the accused spent on bail subject to an electronically monitored curfew condition. It generally provides for one-half of the period to be deducted from the proposed sentence, whilst allowing a court to disregard some (or all) of the time on bail where it considers this appropriate.

What are your views on this proposal?

Prisoners not to be released on certain days of the week

Section 6 seeks to improve access to services for prisoners upon release by bringing forward their release date where they would otherwise fall on certain days (e.g. Fridays).

What are your views on this proposal?

Release of long-term prisoners on reintegration licence

Section 7 seeks to replace the current possibility of release on home detention curfew (HDC) for long-term prisoners (those serving a fixed term of four years or more). It would be replaced with a new system of temporary release under what the policy memorandum refers to as a reintegration licence.

Release on reintegration licence:

  • would include a curfew condition and be subject to supervision by justice social work
  • could not occur earlier than 180 days before the half-way point of the sentence (the earliest point at which a long-term prisoner may be released on parole) and could last for up to 180 days
  • could be used prior to the Parole Board deciding whether to grant release on parole as well as in the run-up to the start of parole where this has already been granted.

What are your views on this proposal?

Emergency power to release prisoners early

Section 8 seeks to give the Scottish Government a regulation making power to release groups of prisoners in emergency situations. It could be used in relation to those serving custodial sentences, with various restrictions, but would not apply to prisoners held on remand.

Examples of emergency situations could arise where the spread of an infection might present significant harm to health, or an event leads to part of a prison becoming unusable.

What are your views on this proposal?

Duty to engage in planning for the release for prisoners

Section 9 seeks to facilitate the development, management and delivery of release plans for prisoners – both sentenced and remand. A release plan would deal with:

  • the preparation of the prisoner for release
  • measures to facilitate the prisoner’s reintegration into the community and access to relevant general services (e.g. housing, employment, health and social welfare)

What are your views on this proposal?

Throughcare support for prisoners

Section 10 would require the Scottish Government to publish, and keep under review, minimum standards applying to throughcare support for both sentenced and remand prisoners. Throughcare support covers a range of services, provided in custody and during transition back into the community, which can help in the successful reintegration of people on release. The new standards would replace existing ones which are more narrowly focused on services provided by justice social work.

What are your views on this proposal?

Provision of information to victim support organisations

Section 11 seeks to provide that certain information about prisoners that can be given to a victim (e.g. on the planned release of the prisoner) can also be given to a victim support organisation helping the victim.

What are your views on this proposal?

Other views

Do you have any other views on the Bill?

How to submit your views

Please submit your views using the online submission form, linked to below. It is not necessary to answer all the questions.

We welcome written views in English, Gaelic, Scots or any other language. 

The call for views closes on 8 September 2022.

Interests

  • CJ