Chamber and committees

Scottish Government submission of 20 July 2021

PE1882/A - Remand anyone charged with a sexual offence against a child

Thank you for your email of 22 June, in which you requested the Scottish Government’s written response to the issues raised in petition PE1882.

The Petitioner, Laura Steel, calls on the Scottish Parliament to “urge the Scottish Government to ensure that any person charged with a sexual offence against a child is remanded in custody.”

The Scottish Government acknowledges the bravery of victims of sexual abuse and appreciate that is takes great courage to come forward and report crimes of this nature. We are committed to tackling the sexual and physical abuse of children, young people and adults. These crimes can have a devastating impact on victims and their families and will not be tolerated.

Supporting victims is a priority for the Scottish Government and I have attached a link which lists a number of organisations that may offer help and emotional support: https://www.mygov.scot/rape-assault/support-for-female-victims/.

It may be helpful to the Committee’s consideration of this petition for me to set out the current law as it relates to decisions on remand and bail, and the reasons it has developed as it has. The European Court of Human Rights has developed case law that requires decisions on the remand of individuals accused of offences to be made on a case-by-case basis.

While individuals can of course remanded, individual consideration of the circumstances of each case is required. The Scottish Parliament therefore enacted the Bail, Judicial Appointments etc (Scotland) Act 2000 to provide for judicial discretion in relevant cases where previously remand would have been mandatory.

Within this context, it would not be possible for the Scottish Parliament to legislate so as to require that all individuals accused of certain offences such as sexual offences to always be remanded in custody prior to trial.

Following these events, the then Scottish Executive enacted the Criminal Proceedings etc (Reform) (Scotland) Act 2007, on the basis of the Sentencing Commission for Scotland's 2005 report. This Act forms the basis of the current law on bail. It was drawn up with the requirements of the ECHR specifically in mind.

Within an overarching presumption in favour of bail, the current law provides that courts are explicitly informed by statute that they would have good reason to remand an individual for various reasons. These are:

• there is any substantial risk that the person might abscond or fail to appear at court; any substantial risk of the person committing further offences;
• any substantial risk that the person might interfere with witnesses or otherwise obstruct the course of justice; or
• where there is any other substantial factor which appears to the court to justify keeping the person in custody.

In addition, the presumption in favour of bail is reversed in the case of individuals who are accused on indictment of drugs, sexual, violent or domestic abuse offences, and they already have a conviction in solemn proceedings on such a charge. Crucially, this law does not remove judicial discretion, but does indicate that such individuals should be awarded bail only in exceptional circumstances.

Any person who is released on bail has what are called the 'standard conditions' imposed on him or her. These include conditions not to commit offences, interfere with witnesses or behave in a manner which causes, or is likely to cause, alarm or distress to witnesses. "Witnesses" include the alleged victim. There may be further conditions imposed by the court to enable the standard conditions to be met. Breach of any condition is itself a criminal offence.

I can also advise that the Crown Office and Procurator Fiscal Service (COPFS) may seek to vary bail conditions, including having special conditions imposed. Providing these special conditions are imposed to ensure that the standard conditions are complied with, what they may be is a matter for the court. They may include curfew arrangements or bans from owning devices with which they can access the internet. COPFS would seek to do so by means of a bail review, which may take place at any time after a court has granted bail to a person, where the prosecutor puts before the court any material information which was not available to it when it granted bail to that person.

In any individual case the prosecutor may also appeal against the decision to award bail. It is entirely a matter for the prosecutor to decide whether to appeal, or to seek a review; and in the event that the prosecutor does so, it will be a matter for the court to decide whether an accused person should be remanded or have additional conditions applied.

Within this overall framework as described above, it is ultimately for the independent courts to determine whether a person accused of a sexual offence should be remanded in custody or bailed in the community. The Scottish Government supports courts having such powers to make decisions in individual cases.