Official Report 685KB pdf
Welcome back, colleagues, from our short break. Our fourth item of business is an evidence session on remand and bail. In this session, we will consider the operation of the legal framework, decision making and potential opportunities to reduce the unnecessary use of remand while maintaining public confidence and safety—a point that has been raised already this morning.
We are absolutely delighted to be joined by a stellar panel of experts—Dr Hannah Graham, Tracey McFall and Dr Cara Jardine. You are all incredibly welcome to the committee. I will start off by directing a question to all three of you. We are seeing similar challenges within the remand population as in the main prison population, with increasingly complex needs that contribute to challenges with the management of prisons. You will have heard about that from the previous panel. What are your views on what needs to happen to better anticipate those needs and, where appropriate, consider alternatives to custody? We will start with Dr Graham.
On a point of clarification, is that just about how we could better respond to the needs within prison custody or is it also about how we could better respond to the needs within the community so that people do not get remanded in custody?
I would say both.
Indeed. HM Inspectorate of Prisons for Scotland has a really well-respected and detailed thematic inspection on the experiences of remand prisoners and, inevitably, a significant number of health and social care issues come up. Those issues were reflected or mirrored, perhaps inadvertently, in the series of lived experience workshops that the sentencing and penal policy commission ran for people with lived experience of the criminal justice system, including bail and remand. In some cases, family members came along to those workshops as well.
One issue was the need for timely access to the NHS—being in pain, not being able to get dentistry or not being able to concentrate, or considering substance-related options to try and escape that pain, were points that were raised. There is also the issue of mental health distress—there are a lot of issues around the availability of NHS and social care within prisons that the chief inspector of prisons for Scotland has highlighted. The commission is incredibly aware of those points.
Although our remit focused more on the different stages and what can be done at those different stages, we would associate ourselves with the chief inspector’s calls for much better—and timely—access within custody for people with those issues, not only through the public sector. We also need to bear in mind whether people feel that they can access things such as recovery cafes and support groups without fear of judgment or action when their legal status is pending and they do not want to look like a risk. I am not alleging that that happens, but if you or I were in remand, we would also be thinking, “How will this look?” as well as, “How well am I?”. There are a lot of considerations that my colleagues who specialise in what happens in prisons, including in remand custody, could comment on.
The commission was really attentive to what could happen better in communities. That could involve bail supervision, but the commission was also aware that there is a need for better recognition of more holistic bail support. In Scotland, there are also initiatives, which are not necessarily evenly available across the nation, for arrest referral schemes and custody link worker schemes, for example—you might understand that in relation to the role of a community link worker who is embedded in a high-needs general practitioner surgery. Some of these schemes work with police custody suites for people who are coming through those suites, and a lot of it is around different groups—women, young adults, first time in custody, second appearance in six months, and so on.
Separately, as a criminologist, I have done some research on this with the Highland Community Justice Partnership and Police Scotland. Across Fife and elsewhere, some things have been offered through the third sector; there has been a multifaceted response earlier on and an ability to see those issues as health needs and human rights and not only through the lens of risk. Risk matters, so we should be aware of risk and we should assess and manage risk at earlier stages, but mental health distress, trauma, alcohol and drug issues—and I imagine that we will get on to housing and homelessness later—are pervasive in this group in many cases, and not having those supports earlier on may be a factor in decision making that leads to remand in custody.
HM Inspectorate of Constabulary in Scotland has looked at arrest referral schemes nationally and how Police Scotland is working with third sector and public sector partners to deliver them, and it commented that they are not necessarily evenly available. In addition, Community Justice Scotland has done some work with partners in recent years to ask hard questions about what we could do to support people better.
11:45
I have interviewed people who are on such schemes and the workers, and I have visited a lot of places in the Highlands. It would be useful if there were more attentiveness not just to the bespoke, person-centred support that can be offered—which complements what a justice social work team can do on bail supervision—but to what our NHS and GPs could be offering. There is an awareness that more than 100,000 people pass through some of these areas within the given timeframe—I have the report with me, but I do not have the timeframe—and only 1 per cent of them are accessing arrest referral schemes. The need is recognised, and we have fairly good evidence that the benefits are quite extensive in relation to mental health distress, drug and alcohol considerations, family context considerations, suicidal thoughts and so on.
Most of the issues that will be brought before this committee—and, indeed, that were considered by the sentencing and penal policy commission—need an interdisciplinary and cross-sectoral response, because health and welfare is where a lot of those issues will be supported.
I raised a similar point—in relation to housing—with the cabinet secretary earlier this morning.
For me, there are three aspects. Pre-prison, before people go into court, the national justice social work standards state that, where possible, all relevant agencies that are involved with the person’s care should be contacted. However, at present, from a third sector perspective, there are no clear and consistent routes for how that happens. The situation is very variable across the country.
If people are in prison, ongoing assessment is critical. We have already talked about the pressures in the prison estate, and if those continue, there will be very little room for manoeuvre in relation to progression in programmes.
From a very practical point of view, thinking about when people leave prison, we need to implement section 12 of the Bail and Release from Custody (Scotland) Act 2023, because that will give us the statutory footing in relation to pre-release planning. That has been in the pipeline for some time.
There are some really practical things in the potential areas for the committee to look at. When I last gave evidence to your predecessor committee, Ms McNeill, we talked about some of those practical things that would be really helpful.
Thank you for inviting me. I am really pleased to be part of the discussion. I would echo everything that has already been said. It is worth recognising how harmful remand is. The HMIPS inspection described it as the “harshest regime” in Scottish prisons. As Hannah Graham noted, people are experiencing difficulty in accessing healthcare, and there are potential breaches of human rights around solitary confinement and the lack of access to fresh air or work. The high use of remand creates really substantial harms, including loss of income, loss of housing and impacts on families.
Sheriff Mackie referred to the research by Families Outside that found that families are spending £300 a month supporting a person on remand. That is just about the money, but the issue is also about the time that families spend. People who are being held on remand are entitled to six visits a week, and families may be travelling to prison that often. Families are spending money supporting the person on remand because they are locked up from very early on Friday evening to late on Saturday morning. They are providing food because people are hungry, and the Families Outside report shows the reality that families are going hungry. People are being pushed into very deep poverty. Remand is very harmful. As Hannah Graham described, it needs to be tackled as a wider social health issue.
The research on how bail and remand are used in Scotland shows how quickly decisions need to be made. Schemes such as the one that Sheriff Mackie described, whereby a social worker in court is able to provide the additional information that people may not have when they are making decisions, are really important. The research also shows that there is a difference between bail support and bail supervision. Supervision and support are not the same thing. People might need really holistic support to be able to comply with the conditions of their bail, and that is really important.
Housing is a key factor when we talk about the outcomes of remand. About half of people who are remanded do not go on to receive a custodial sentence, and that is particularly true of women, about 70 per cent of whom do not go on to receive a custodial sentence. We have to ask whether people are being remanded because we do not know what else to do with them and cannot find them appropriate housing in time. Housing is an absolutely crucial part of the picture.
A smaller issue is how easy or hard the justice system makes it for people to comply. How do we communicate with people? Are we sending them letters? Could we text people or provide them with more support? Can we make the system more accessible? I am sure that you can understand that some people with difficult life circumstances might find it difficult to turn up at court, but that does not necessarily justify some of the harms that I have just spoken about regarding what remand does to people and to families.
I will come back in later on, but I have a final question for now before I open the meeting up to colleagues.
GPS technology is not new in itself, but has certainly come to the fore in the Scottish Government’s pilot projects. What are the biggest barriers to the uptake of electronic monitoring? We will start with Ms Jardine and work our way along the panel.
We know from the research into decision making in that area that provision varies across Scotland. Schemes look different in different parts of the country and different pilots are being run in different places. I understand that a GPS pilot is running currently, and it would be really helpful if some level of evaluation was built into that from the outset so that we can understand what is happening.
Witnesses in the previous panel said that we need to have a wider conversation about what prisons are for and what they do. We also need a wider conversation about what GPS is for and what it does. What do we want it to do? Are we using GPS because we want to deter people or want them to comply? Is it part of safety planning for victims and survivors or could that be done differently? You need to have a plan for what you are going to do. All that GPS does is tell you where someone is, but what are you going to do when you find out that they are not where they are supposed to be?
Some really interesting research about standard electronic monitoring was done by Ryan Casey at the University of Glasgow. They found that a level of discretion is built into electronic monitoring systems. There is also the question of who is going to do it, because a lot of it is outsourced to private companies. Dr Casey spent time with those companies in their control rooms and found that there is a huge rush at 7 o’clock because the standard tagging condition goes from 7 pm to 7 am. All the people in the control room are watching where all those tags are, so they cannot possibly respond to all of them immediately, which means that they do not. That means that the people on the order do not know how the order is going to be enforced. They might be thinking, “Can I take 10 minutes longer to pick my son up from football? It was fine on Wednesday but maybe it won’t be fine today.” If people do not know the limits that they are working within, or are not clear about the purpose of the tag or what is going to do, I think that is a big barrier to that being an effective system.
I will quickly add that when we talk about electronic monitoring or GPS we also need to think about the support that people need within the process. I spoke to a woman yesterday and found out that the restrictions that GPS placed on her meant that she could not access the support she needed. That is not doing her or her family any good as part of her recovery.
For the record, can you give examples of the support that she has essentially been prohibited from accessing?
She had to look after her children throughout the day so she cannot access the recovery cafe or recovery support during the day. She cannot take a child there and there is no childcare within the area. That has meant that she can only access recovery support after 7 o’clock at night—but she cannot access recovery at 7 o’clock at night because of restrictions placed on her by GPS.
There is a whole person within the process. Risk is really important, but we are talking about humans that we want to rehabilitate. It is so important that we look at a person’s whole situation. I hope that adds a human element to the discussion, because there are human beings, communities and families in these situations.
I have had the opportunity to think about this topic because I moved from Australia a decade ago to work on European comparative research on the use of electronic monitoring and to lead the Scottish component of the research.
Our findings, which we published in 2016, showed moderate support in Scotland for the introduction of electronic monitoring on bail, which has since happened with the Management of Offenders (Scotland) Act 2019, and moderate support, too, for the use or introduction of GPS tagging technology. The research was published in 2016 and the approach legislated for in 2019. Now that we are in 2026, we are starting to see the use of GPS tagging and tracking technology being piloted, but for prisoners released on leave.
Meanwhile, electronic monitoring as a condition of bail is one of the fastest growing areas. Incidentally, I should mention that, last week, I was at the national electronic monitoring centre and now have the booklets on wearing a GPS tag. We have the statistics for electronic monitoring as a condition of bail, and it looks like it has been used in more than 1,700 cases. It is therefore being used.
There are a few considerations that we really need to think about if GPS tagging and tracking is to be introduced as a feature in some cases of electronic monitoring as a condition of bail. When it comes to an assessment of or preparation for home detention curfew, you have 10 to 12 weeks for that preparation, whereas for an assessment or preparation for electronic monitoring as a condition of bail, you have hours or days. The timeframes are a lot shorter. Such an approach also involves the rights of the child and the rights of the family, where they cohabit, because the GPS will have a home monitoring unit installed in the home and/or curfews could be used.
The exclusion zones also need to be thought through carefully where they are victim-centric; they cannot be really tight around a victim’s home, workplace and so on, because there needs to be enough time for the authorities to respond. In some cases, exclusion zones have been considered for entire towns or mass geographic areas. Others have been considered for specific times because we know, for example, that, on a Friday night on the high street, an individual routinely gets into the things that their record has told us about.
The approach is meant to complement and reinforce compliance and safeguarding efforts, but tech on its own will not stop things such as domestic abuse or reoffending in other forms. Our victim support organisations and advocates have made it clear in a really articulate way that they have different views on the subject. Some are calling for its use; in fact, there is a current campaign that was featured last week after a very distressing high-profile case.
We do not want to see the technology used if it could appear to provide a false sense of security, as considerable victim support and safeguarding efforts will still need to be made. Does it need to be co-imposed with bail supervision, special bail conditions and so on? Those are decisions for the court but, that said, in summary cases—or alleged summary cases—where domestic abuse is the alleged index offence, not many people are remanded.
This is a live issue, and the commission decided very early on that, when it came to court decisions in individual cases, we could not, or would not, give an opinion, retrospectively and usually in what would be highly sensitive and distressing cases, on what the judiciary or the fiscal should or should not have done. However, we can speak to it thematically. We want electronic monitoring to be used proportionately. If its use is not proportionate and not well risk assessed, we can see risks of up-tariffing, net widening and so on.
Electronic monitoring is just one option, and we must ensure that there is good consideration of information-sharing issues. The electronic monitoring company can communicate with Police Scotland, and it might be able to communicate with the court, but if other things are co-imposed, can it also communicate with, say, a bail officer or a justice social work team? There are data protection and information-sharing issues to take into account, too.
There are also learnings to be had when it comes to people wanting to change their address. Unfortunately, in some cases where that has happened, it has been with malign intent, and there was, subsequently, a very serious case in that respect. Far more attention has to be given to how someone might change their address if they want to harm, but what if someone is a victim in their own home and/or in and around the places where they might go? Can they change the exclusion zones or their address in those circumstances? What is the process for that?
Forgive me—it is a passionate topic. However, the technology needs to be used appropriately and proportionately and risk assessed well, because it is not appropriate in all cases.
I may well come back to that. I will hand over to Mr Kerr.
12:00
This is a fascinating topic. I want to come back to Dr Jardine, if I may. You said that people may not know the restrictions that are applied to their bail. Please help me to understand how that is possible.
People who come into the criminal justice system often live complex lives, and the justice system is not particularly user-friendly. If we take a different example, it becomes easier to understand. Quite often, when people are being diagnosed with a serious illness, the advice is that they take someone else to the doctor with them, because it is hard for them to listen. It is hard for people to take in large amounts of information.
Is that what you meant when you said that people do not know? They have been told, but they do not retain the information.
They may not have a good understanding of what they are being asked to do.
That makes sense.
I was interested in what I think Tracey McFall said about there being a difference between support and supervision. Did you say that?
That was me.
Could you expand on that, please?
Supervision is orientated around whether someone complies with what we require them to do. It is not just limited to bail; we could think about it in terms of a community payback order—supervision might look at whether someone is turning up to all their appointments or whether they are undertaking all the hours that they are required to. It could be looking at whether they are attending court as they are supposed to.
Supervision is therefore more about compliance, but support is about what might be preventing someone from complying. We might consider whether someone needs addiction support or whether they are able to access mental health support.
That is the person-centric bit. You all seem to all have the same view—the basic premise is that there is not sufficient person-centric allowance and there is not discretion around that; there is kind of a blanket approach.
If you look at the HMIPS special report on remand, it is clear that the group of people who we are talking about have high levels of vulnerabilities and have experienced trauma. We really need to start from a person-centred position and consider what has brought someone into the situation.
If we are asking someone to comply with something, we need to consider what they will need in order to do it. When we think about having a range and suite of options for courts, it is important to remember that the more that we ask people to do, by the nature of it, the more likely it is that they are not to comply. If someone has more bail conditions, there is more that can trip them up.
If we are going to ask people to comply with more conditions, we need to give them the support that will make that reasonable. There is a moral and ethical argument, but there is also a case from a purely instrumental view. If we are trying to stop people from going to prison on remand but we give people a load of conditions to comply with without support, they will breach those conditions and end up in prison on remand.
Is the support fragmented or non-existent, depending on where you are in Scotland? What is driving the variables—is it geography?
Yes. Tracey McFall would be best placed to speak to that.
What is available in an urban city centre such as Glasgow is completely different from Argyll and Bute and the Highlands and Islands. There is a real dichotomy in what is available in rural areas compared to urban areas.
I will add to Cara Jardine’s point about why people disengage. If they are sent a letter but they cannot read or have issues with literacy, it is difficult for them to take in what it means. Decisions are usually made when they are at their most vulnerable—they may have been arrested, kept in police cells over the weekend, or have had issues with mental health, addiction or trauma.
It is important to note that sometimes the third sector is the only one that sticks alongside those people. When we are talking about information sharing and having a joined-up approach, we need to ensure that the third sector is in that space. Currently, it is very variable.
Why is it variable, given the critical nature of the involvement of the third sector, as you have described?
Let us think about Sheriff Mackie and the fact that he needs a range of information to make a decision. The experience is variable because there is currently no systematic way that the third sector feeds into the process—unless there is a really good criminal justice social worker who says, “I’m going to ask what third sector organisations you’re connected with” and then seeks out those organisations. However, when someone is in a pressurised court, that is so difficult—
As you say, the third sector is with the person all along their journey, but they are, in effect, excluded and on the outside.
Yes, and the person who has been supporting an individual might not know that they have been arrested on the Friday night. They might not know that until the Monday or Tuesday, so, again, it is about how we are joining these things up to make the process much more co-ordinated.
The third sector brings a very different perspective to a person’s life in relation to what is really happening. People are potentially more likely to be honest with a third sector provider—someone who is supporting them and who they have a relationship with—than they are with a criminal justice social worker who they have seen once in the police custody cells.
I was listening to Dr Hannah Graham talk about the fact that, if there is too much focus on the technology and we are not adequately addressing the issues that you have both described, there is a real danger that a technological asset, such as GPS, could lead to a loss of public confidence, when it should have the opposite effect.
The member has picked up very well on the interacting effects. The commission heard views and examples relating to the period from March 2023 to March 2024, during which time almost 20,000 failure to appear warrants were issued for failure to appear at court. Views were presented to us that failure to appear at court drives the use of remand in both the case in hand and, if the case looks as though it is failing, in potential future cases. One of our recommendations is to improve court communications with those on bail, including consideration of an electronic nudge or reminder service. COPFS has been doing that with witnesses to try to improve engagement.
I want to make the link that is helpfully inherent in the question. When we did our lived experience workshops with people who have been on remand and bail, some of them said, “Can I have a text message?” or “Can I have a diagram or something that works for me?” That is about the immediacy of communication telling someone that they need to appear at court, but they would then get on to talking about the reality of their lives with disabilities, including learning disabilities and neurodivergence, and issues with buses and poverty in relation to getting places.
There is good research in Scotland on why people do not comply. The issue is therefore not only about paying for new technology for a reminder system or paying for GPS electronic monitoring tags—a significant amount of money would be needed for those systems, which would continue to need to be procured in the next contracts—but about who support workers are or what the relational context is.
Processes such as bail supervision typically involve three meetings with the justice social worker or a justice social work assistant per week, which can then be downgraded and involve the third sector. Those are a fraction of the larger numbers that could possibly be involved, so where are the people and the relationships that go along with the tech?
The GPS tags will pick up non-compliance. There are some considerations around faults—no technology is perfect—or the court might see that nudges have been sent alongside letters and that the person still did not respond, but we need people who have sight of and up-to-date information on where the person is at, before they tip into a more harmful or unwise decision that could be a breach for all sorts of reasons. Bail offences are quite high in Scotland. Conditions can also be breached because someone has gone on to do something very unwise, potentially including harming others.
Help me with regard to the human infrastructure and support. You talked about supervision and about reaching 7 o’clock and everything coming online. Forgive me for asking such a basic question, but what have we got right?
You are talking about the situation, and I am getting the impression that there are so many holes in the system that we are not doing very much right at all. Help me to understand how complete or incomplete the picture is with regard to the human infrastructure needed to support any technology that we talk about so that bail is—I am going to use the word—“safe”. I am thinking primarily from the point of view of victims about whether it is safe.
What is your response to my heartfelt question?
Heartfelt questions are incredibly welcome, and that question brings up a number of considerations. There is unevenness or inconsistency—or, we might say, inequality—which might be place based and localised. That could be about the funding for the service provision, or the staffing or the time that is available.
Those are all the variables. How far short are we with all that?
You could look at the numbers of people who are able to comply with bail conditions, but some of the people involved will have access to their own privately funded legal representation—they might be middle class, have a job and be very organised. In other cases, there might be a high level of need and a lack of access to resources and infrastructure.
We need to support people with the right to liberty, the presumption of innocence and all the articles in conventions that, on paper, surround the process—the articles in the European convention on human rights, and so on. How are those rights are being realised?
There are people who comply with bail conditions. However, when there is non-compliance or there are concerns, we need better information sharing, communication and HM Inspectorate of Prosecutions—
I am relieved to hear that we have people who do conform with their bail conditions.
Tracey McFall, you look as though you want to speak. I come to you.
It is really difficult to answer. I was speaking to Sheriff Mackie before the committee meeting. We can easily go down a black hole about what is not working, but there is some amazing practice happening across Scotland in relation to joined-up approaches across local authorities.
There is a bigger systems element about integration—the integration joint boards, health and social care partnerships, alcohol and drug partnerships and community justice partnerships. Where the leadership of those is co-ordinated and they are working together—
Is that across the board, between agencies, bodies and organisations?
Yes. That works better for front-line practice locally.
Is that down to individual leaders in those organisations coming together and making that happen, as opposed to the system allowing for it?
Leadership is an absolutely critical element.
Another variable could potentially help fix the issue. In local authorities, criminal justice and social work get funded through section 27 of the Social Work (Scotland) Act 1968. That money comes from Government through section 27 and is allocated in a range of different ways. Not every area uses that section 27 money to engage the third sector—it is very variable. We need to value the third sector and understand it in the space. The third sector is agile and flexible, and it can pick up the pieces. However, there is still variability in relation to the money, which is not ring fenced.
The deputy convener is going to take the questioning time away from me, and I have not asked about the Bail and Release from Custody (Scotland) Act 2023.
You might be able to come back in later on, but I want to go to Ms Chapman now.
I thank all three witnesses for their contributions so far.
I want to explore in more detail something that we have alluded to and that you have mentioned in different ways: housing instability, complex needs, mental health and neurodivergence all contribute to remand decisions in a way that maybe they should not. Are we effectively imprisoning people because they do not have a safe address or because they do not have healthcare?
The commission had a call for evidence. We received 100 submissions; and we had meetings, visits and round- table events the length and breadth of the country. One of the strongest themes was housing: “housing” is mentioned more than 70 times in the commission’s report. That comes against the backdrop not only of the prisons emergency but of 14 local authorities declaring housing emergencies between June 2023 and March 2026. The commission said:
“Stable accommodation is often flagged as a key consideration in bail decisions, working both ways: if someone has a stable address, sheriffs might consider the risk of losing a tenancy. On the other hand, the lack of a stable permanent address (‘no fixed abode’) could present a challenge to bail.”
There are also moderately high numbers of homelessness applications on people’s release from prison.
We made a recommendation to place a specific statutory obligation on local authorities to look at that. I heard the cabinet secretary mention this morning that a bail accommodation pilot is in train. I am not privy to all the details around that, but I would be interested in it.
12:15
Something that we, as a commission, would draw attention to is that not all emergencies collide and that it is not all doom and gloom. There are things that we can do. We heard examples of good practice, and we reflected those back to the Convention of Scottish Local Authorities and others when we met them.
There is really good practice in Ayrshire and in Angus. Perth and Kinross Council has done a lot of work, including a remand test of change, in which residents from Perth and Kinross who were held in prison remand had access to, for example, a complex needs co-ordinator and drop-in sessions. Ayrshire had a similar model that was delivered by a housing aid centre that is co-funded by a few of the Ayrshire local authorities, working with HMP Kilmarnock, HMP Barlinnie and HMP Greenock.
It is important to have proactive expertise from amazing housing advisers who can contact private landlords, deal with housing associations, consider the possibility of discounts or not paying council tax for someone who is held on remand and deal with local authorities. We have heard some excellent examples. In the sustainable housing on release for everyone—SHORE—standards, one sees multiple pictures of good practice in which people with complex needs are supported. A lot of that is to do with how support is provided across the 32 local authorities and how people with multiple intersecting needs or emergencies are supported when leaving remand.
Part of the issue is whether there is a safe address for someone, and you have highlighted some of the other housing issues. That turns structural problems into individualised risk—perceived risks. As well as dealing with the issues of securing accommodation and all of the other things, including healthcare, how do we get the culture change that would shift us away from that individualised risk? How does one of the decision makers that David Mackie mentioned earlier ensure that they are not just assuming risk because of mental or healthcare instability or some other instability? I am interested in that cultural element, too.
The commission has an entire chapter on leadership, the future and the need to avoid going round the incredibly well-trodden mountain again, given that we have been talking about these issues in Scotland for a long time.
We also have a chapter on data, evidence and information sharing. In practical terms, research and evidence from a range of organisations give us a fairly good understanding of the time and workload issues that the Crown Office and Procurator Fiscal Service and that court-based justice social workers face. In addition, the information sharing that Police Scotland submits in the standard prosecution report—SPR—is quite uneven and patchy.
Those are organisations that can and should speak to one another and advance cultural change together. SHORE has helped to drive some of that change, as has, for example, the response to the drug deaths emergency. A shift to more structural approaches is starting to happen. Unfortunately, we are sometimes talking about many of the same people. Work cultures and policy-making cultures will need to change to support that shift.
There are other nations that have policy guarantees or commitments that every minister in Cabinet, not only the justice minister, has to sign off on, where multiple budgets are expected to support those commitments and where there is an outsourcing response. The most famous example is the Norwegian reintegration guarantee for sentenced people, although we need to be careful not to put it on too much of a pedestal. However, there are nations where responsibility does not fall to a single minister who, in the midst of an emergency, may be feeling a lot of pressure and doing a lot of firefighting. Instead, they can say, “Whose budget is this coming out of?”
It would take time, but the change needs to happen at much higher levels. The front-line workers would probably clap if they heard the question that you have just asked. Of course, there is plurality and diversity among front-line workers, but a lot of them would love for there to be more integration, a plan and culture change at the strategic level.
Thanks. I want to bring in Tracey McFall at this point, because, although the work of the third sector is key to all this, it has been gutted, essentially.
You need only look at the “Hard Edges Scotland” report, which was written by Glen Bramley and other academics. That describes people bouncing around with problems that are related to drug and alcohol harm, the justice system, homelessness, domestic abuse and mental health. The report was published in 2019, so the data could be updated, but it still indicates that we are talking about the same citizens. Indeed, this is not really about populations; it is about people in our communities who are being bounced around the same systems.
Therefore, I totally agree that there needs to be strategic leadership, but I would go even further and say that there is a real role for Government in ensuring that the portfolios and departments across it speak to each other and look at following the person. Right now, things get siloed when the money comes into the system.
Another huge element is local governance and accountability, but I will stop there.
Cara, do you want to come in on that, too?
For the sake of brevity, I would just add that Scotland is not alone in having difficulties with bail and bail support. Our bail support services, which were introduced around 1991, are sometimes described in research and policies as a Cinderella service.
Policy work that was carried out in Australia highlighted Scotland as having good practice in this area, because other jurisdictions provide even less support. However, that particular policy report also said that Scotland’s model promised a lot without delivering it. As a result, much of this is about implementing what we are trying to achieve and ensuring that criminal justice social work and the third sector are properly resourced to do so.
Thinking about those who are remanded, I would start by pointing out that remand is legally different from punishment, and yet I do not think that our practice always reflects that distinction. What needs to change to ensure that, for someone who is not convicted but is put on remand, the conditions of detention are not worse than those of sentenced prisoners?
As I have said, HM Inspectorate of Prisons for Scotland’s special inspection of remand concluded that remand prisoners experience the harshest regimes in Scottish prisons, partly because the thinking has always been, “Well, if you haven’t been convicted of a crime, we can’t compel you to engage in what the Prison Service would describe as purposeful activity”—in other words, work, education or rehabilitative content. There is no basis to compel people in the prison rules, either.
In the previous evidence session, Linda Pollock made the really important point that, when systems are completely overwhelmed, as the prison system is, they do only the absolute minimum. There is no legal and statutory basis for ensuring that remand prisoners have access to education or work.
In fact, the point about work is really important, because it is partly why those families are having to spend so much money. Remand prisoners do not have the same financial resource. The more recent findings on access to healthcare, fresh air and on time out of cell—that is, the fact that people are spending 23 hours a day in their cell—are really concerning, too.
In answer to your question, then, we need to bring down prison numbers. Indeed, the previous panel attested to that. Prison regimes can be as well intentioned, and staff as ambitious, as possible, but there is a limit to what people can deliver in the context in which we find ourselves.
Hannah, I have a specific question about the sentencing and penal policy commission’s recommendation that someone should not be remanded where there is no real prospect of a custodial sentence exceeding 24 months. Is this one of the most important structural reforms that we could be looking at to reduce unnecessary remand?
Different places and nations have considered the no-real-prospect-of-custody issue, so we would not be the first to think about that. The commission was very aware that there would be a diversity and plurality of views on the topic, and we wanted to ensure some coherence between what we were recommending in the sentencing chapter and what we were recommending with regard to the bail and remand system.
I can give you some international examples that go further than that. The Dutch system is lauded for all sorts of reasons, especially for closing prisons. There are all sorts of reasons why the Dutch have the system that they do. I would not necessarily say that we want Scotland to exactly emulate what they do on bail and remand, but they have restrictions on the use of remand, some of which are statutory. Where there is no real prospect of a custodial sentence of under four years, they would seek not to use remand as a form of pre-trial detention.
There can be deliberations by the Government and Parliament, and there has been a call for evidence. We want there to be consistency and coherence between the different chapters in our report. We will probably draw attention to the significant number of acquittals and of people who do not go on to be sentenced to custody.
I also note that in Spain, where there are quite heavy restrictions on both sentencing and remand, people who are remanded in custody but do not go on to be convicted become eligible for compensation and damages, which I believe has focused the senses there.
That is not necessarily a recommendation that we have majored on here, but we want there to be an awareness of what prison custody is used for. The commission was broadly supportive of, and attentive to, the refinement of the bail test introduced by the Bail and Release from Custody (Scotland) Act 2023. Increasingly, there are conversations about what factors should feed into decisions. If people can reasonably expect a custodial sentence of more than two years, because of the nature and seriousness of the offence, or perhaps because of a significant number of previous convictions, that feeds into the recommendation about remand. There is usually a lot going on in those cases that might lead to remand being used. We would want to emphasise public protection, which includes consideration of victims’ safety, but we also want to be consistent and to say that, if there is no real prospect of custody that is an important provision. The test could be reinforced or expanded.
I hope to come back to Maggie, but I can see other members who want to come in and I want to be fair to colleagues.
Can I ask a question on that final point about victim safety?
Yes, if it can be 30 seconds long, including the answer.
I am keen not to position ideas about victim safety and about not remanding people as being in opposition to each other. What needs to exist in communities to make safer bail possible? We have addressed some of that, but would asking that question help us get to the nub of why the dichotomy and opposition between risk and safety are so apparent in all our discourse?
That is an important point.
I am not a member of the judiciary, but I associate myself with former commissioner David Mackie’s observations about prosecutions. Section 4 of the prosecution code discusses the public interest. When considering decisions on bail and remand, and then the sentencing guidelines, one sees a number of factors that derive from the Criminal Procedure (Scotland) Act 1995 and were subsequently reinforced or amended by the 2023 act.
Those things can coexist. We see that victim safety and public protection are in the public interest test as factors that prosecutors can have due regard to and be aware of, and that there are particular specifications regarding domestic abuse and violence against women and girls. HM Inspectorate of Prosecution in Scotland has also carried out important work and provided valuable critique on COPFS's handling of domestic abuse cases.
A lot of those cases will not lead to someone being remanded in custody at summary level, so the inspectorate looked at what could improve victim-oriented information, communication and support, and at the actions that police, prosecutors and others can take to try to improve that.
I also emphasise the importance of Victim Support Scotland, of Scottish Women’s Aid and of the advocacy, support, safety, information and services together project, which is known as ASSIST. We cannot champion enough the work of organisations that operate independently of the formal system but ensure that communication, victim safeguarding and support needs remain at the forefront. Victim safety and safeguarding can certainly be supported during bail, with remand being reserved for the more pressing and serious cases where there is an active risk.
12:30
Good morning. I have found it really interesting and helpful to hear about that. You have a crisis—but you had a crisis two years ago, and I do not know what you call it now.
There is one thing that I have found frustrating regarding the remand population, and I cannot seem to get an answer as to why the situation is as it is. Who are all these people we are remanding? It may be that the data is not available, and you can tell me if that is the case, Dr Graham. We may say that we should not be locking everybody up, but who, then, are the people sheriffs are remanding but should not be?
I am not asking you to answer all of that, but can you help me to find where I can read about the profile of the remand population?
There is information available on that. I have gone through official statistics about those who are remanded in custody and the types of index offences that they are accused of. We also have broader information on the demographics.
Referring to one significant group who get remanded, in a one-year period, the average daily population on remand accused of common assault was 303, which is differentiated from the index offence of more serious assault. We are seeing things around robbery and common assault, and there are some people there for serious assault.
The average daily remand population accused of an index domestic abuse offence was 60. It might come as a surprise—I can provide information on this in writing with links and references later if the committee wishes—but, when we look at the number of arrivals on to remand and at the total counts in a one-year period, we find that, according to the last available year of statistics, using the Scottish Government’s prison population app, more people were remanded in custody for shoplifting than for cases where the alleged index offence was domestic abuse. People are also being remanded for vandalism.
I do not need to explain to a committee such as this that there are quite different weights, gravities and risks. The commission would not excuse any of those things, but there would perhaps be a strong emphasis on some of them. Drugs supply is another example. There is also quite a lot related to those accused of crimes against public justice—and we do not know enough about what is going on in that black box.
It is a good question. We can provide links about who is on remand and what they are allegedly on remand for.
Thank you very much. I found that really helpful.
You have expanded a lot about the home detention curfew. Indeed, all the witnesses have given us some important things to think about. It is not so simple, as I know as I have been pursuing this point. When a sheriff is deciding about bail and remand, can they decide on their own to apply a home detention curfew? How does that work? How is that available to a court—or is it not?
Referring to what is available under the Management of Offenders (Scotland) Act 2019—there have probably been more provisions and implementations since then—sheriffs can currently impose electronic monitoring as a condition of bail, which is a decision for them. That involves a radio frequency tag. It cannot tell where you are; it is oriented around the home curfew, which can be tailored or bespoke, although it is likely to be 7 pm until 7 am, or something similar.
Where electronic monitoring is used, there will be a risk assessment. There are very good reasons to understand, sensitively, who else is affected where a home curfew is imposed. Home curfews obviously affect families or other householders; they can affect substance use or mental health distress. Having done the research for electronic monitoring, we have found that, when people who have significant drug or gambling debts are known to have a home curfew, people who would like to find them may seek to do so. There are other safety planning and practical considerations.
Currently, sheriffs can impose EM as a condition of bail, and they can co-impose it with bail supervision if they want to. They can also explore other support options if they wish. GPS is not yet available as a part of that, but I believe that the Scottish Government has said that it would consider that.
I am glad that you said that, because it is important to make that distinction. You are talking about the old tagging system, but I think that more victims would want to see GPS being used, even with all the problems, just because they would probably feel safer, generally.
There is research on that in other nations where it is used extensively. We have to be very careful not to homogenise victims but, in some places, victims can opt into carrying a device—it is not on their body; they carry it—so that the GPS can pick up if somebody is approaching. That works not only in their home. Rather than feeling that they have to stay home, go to work, then stay home, some victims want to be able to carry a device that can tell monitoring authorities if that happens. There is variability in how victim support organisations and advocates feel about that and whether they feel that there is enough capacity to respond and react should there be an alert.
The Inspectorate of Prosecution has said that, with other forms of bail, when there has been what looks like non-compliance or breach but a tougher form of action was not taken in response, victims of domestic abuse felt as though that might have emboldened the accused, because they then knew that they could do some things without there being a response. It is about checking that standard conditions and special conditions are being met, but it is also about having a wider understanding around the home, the relationships and the safety considerations in relation to the tech.
My final question might be for the panel generally. I hear what everyone is saying about the remand population and the question of purposeful activity and all that. We are becoming very alive to all the pressures on the prison staff who are trying to manage all this, but I am deeply disturbed that we might not get any answers on how to relieve the pressures and we might not be able to do anything at all in the short term.
I do not know what the answer is, but I want to finish by asking about that. The fact that a remand prisoner would not get access to fresh air every day—a basic—because of the pressures of overcrowding makes part of me think that maybe we should just legislate for some of the human rights around this. I am not arguing for that per se, but surely something can be done to improve the conditions that remand prisoners in Scotland face before we can start to make some changes to the prison system. Alternatively, do you feel that nothing can be done?
That is a really good question. Sometimes, people refer to the slopping-out cases as one of the biggest drivers of penal reform in Scotland, because there was very clear legislation. Because we were found to be in breach of upholding people’s human rights, action had to be taken and money had to follow that, so in some ways I have some sympathy with the case that you are making—that if we had a legislative basis, that would be another lever to pull and perhaps more money and investment would follow.
Something that has not come up in the discussion but which we need to understand is that the rise in the remand population is being driven by how long people are spending on remand. This is not the case for everybody—there are still people who are coming into remand for seven, 14 or 28 days, or whatever—but the data shows that there is a significant rise in people spending longer and longer on remand, so there is perhaps a lever to be pulled there. That issue came up in the HMIPS specialist report, as well. We have now returned to the pre-Covid limits on how long we can hold people, but we need to enforce those, because they can still be extended in individual cases by application. We need to create a culture where we say that the limits of 80 or 140 days are the time that you have. That might be one way to address some of the issue.
If there is no way that we can reduce the prison population or increase capacity, we need to look at what we can do when people come out of prison. That is a lever that we could use now. For example, the 2023-24 HMIPS report shows that there were 5,125 liberations from remand, 79 per cent of which were liberations from court. That is an added complication, because it means that someone who is on remand goes to court not knowing whether they will get a sentence and is released that day from court with no support. We could do something relatively quickly on that. Again, the third sector has a critical role to play in that, because it is already present in the communities that we are talking about, so there are some quick wins to be had in this space with regard to scaling up what the third sector can do. The third sector is ready to pick that up and start going with it, but we need resource.
My line of questioning has mostly been covered. I wanted to know what more could be done and what more is needed. Also, given your experience, I wanted to find out about other areas of good practice outwith Scotland—for example, in other European countries. If you have any examples, please share them with the committee. If you do not have any, that is okay and I will hand back to the convener.
The commission considered international examples. Obviously, we were small, did not have an extensive budget and were very mindful of public finances, so we did not go on public tours, unlike the independent sentencing review down south, which involved a lot more travel. We had an internal paper on international comparisons with countries that already have a lower prison population and features of a justice system that we might want to look to or countries that have drastically reduced their prison population, with some features that we might want to look to. We do not fully believe in penal policy import or a copy-and-paste approach, because those systems will not necessarily work particularly well here.
Some of the comparative or international insights were more around sentencing reform, early release, the provision of rehabilitative options, the use of electronic monitoring, and prison sentences not actually being served but converted to community-based responses. There were some moderately tight restrictions on the use of remand in nations such as Germany, the Netherlands and elsewhere. They also had really interesting and significant prosecutorial discretion and leadership. In the Netherlands, the prosecution can look at cases that might attract a sentence of up to six years and do things that might look like a fine or diversion from prosecution. I understand that that will feel outrageous in some contexts, but I would not hold the Netherlands up as a particularly wild outlier.
Approaches to prosecution have also involved prosecution leadership, working with community groups, and investment. Also, an approach that tried to be pragmatic about workload and bureaucracy in the German system led to things that did not necessarily need to be dealt with in courts being dealt with in communities with prosecutorial leadership. Dealing with things a bit more upstream in that way means that the matters that the courts deal with are things that people might reasonably expect should be there. Numerous nations also have different stipulations and apply juvenile legislation to young adults. The ages to which that applies can vary, so there are considerations in relation to that. Thankfully, that is not necessarily a really large group in the Scottish prison population any more, but I am sure that we still have progress to make.
We looked at processes internationally and considered that evidence alongside what we heard here. A lot of bail support just looks like really good relationships and more preventative focus, rather than cleaning up the mess. Cleaning up the mess is profoundly important—I am speaking very candidly, but this is also about trying to get more to the roots of the circumstances. Other places, such as the Netherlands, have early intervention, too. In the Netherlands, their approach uses the Dutch equivalent of our acronym ASAP, which involves multidisciplinary rapid responses that look at whether an individual even needs to be considered through the system for bail and remand or whether prosecutors could work with other authorities.
I should emphasise that, in most, if not all, of those nations, they have really strong provisions in relation to victims’ rights, victims’ interests and victims’ access to legal advice, including their own counsel and support, so the binary idea just does not work—two things can be true at once.
Scotland has obligations to address and prevent violence against women and girls as well as violence against all victims, and it also has an obligation to ensure the lawful and humane operation of custody. There is plenty of evidence that the latter obligation is being breached at the moment, so the question is: how can we hold these two things in the same space? Much could be said about Finland, but that has already been commented on by the earlier panel.
12:45
Can you share the paper with the committee? That would be helpful to us.
Indeed I can.
I would be interested in seeing it.
It is very academic and anoraky. It has many references—I got very excited. There have also been comparative studies of the use of bail and pre-trial detention across Europe, and there is a handbook of good practice.
We can also look outside of bail and remand at other analogous examples within Scotland that speak to what Hannah Graham was saying about the importance of upstream work and prevention. We need only look, for example, at what we have achieved in Scotland with regard to young people; we have had success with the whole-system approach and have reduced numbers of young people in custody as well as removing children from custody.
We can make change—it can be done—and preventative work is really valuable and important in that respect. Even though it is not some immediate lever that we can pull, it will have benefits—and more longer-term benefits—than we would get trying to build our way out of a prisons crisis. It is a criminological adage that, if you build a prison, you’re gonna fill it. That will not help you in the long term, whereas preventative work will.
Thank you.
Last, but by no means least, I call Ms Bland.
Thank you for outlining some really detailed arguments for avoiding unnecessary use of remand. However, I want to continue to focus on the victim’s perspective and go back to some of the points that the panel members raised in relation to the accused, and their potential vulnerability, with high need and a lack of literacy skills.
As a result of those things, the accused might not understand their bail conditions, with curfews depriving them of potential rehabilitation activities, or access to drugs and alcohol support and mental health opportunities. Moreover, when breaches of bail occur, whether deliberately or due to a misunderstanding, there might be a lack of response from a control room, if electronic monitoring is involved.
That lack of response is potentially dangerous for the victim, and there might be consequences for the accused. On the other hand, the breach might not have been deliberate; the person might not have been informed, so they might have breached their bail conditions simply because they did not understand them.
The whole system feels very erratic, with, as I think Mr Kerr said, lots of holes in it. I am sitting here, wondering whether, if I were a victim listening to this, I would be right to be scared that the system was not going to work for me. Can the panel members comment on that?
What we know is that victims really deserve advocacy and support all the way through—that is one of the biggest things that you can do. It is very difficult to plan for every eventuality, and every set of circumstances will be unique and varied, but you can give victims advocacy and a named person to whom they can speak all the way through the process and who can raise and escalate their concerns.
I think that that would be a really basic place to start when it comes to supporting victims and survivors in the sort of adversarial criminal justice system that we have in Scotland. It is not very user friendly by design. Indeed, one of the problems with having very long periods on remand is that victims and survivors have to live with really long periods of uncertainty, wondering, “What’s going to happen? How is this going to be resolved?” and with the possibility of having to appear in court hanging over them.
Therefore, as a baseline, we have to think not just about what we put around the accused person. What we put around the victim and survivor is really important, too.
It sounds as if you are talking about the future, and what can be done, while my question was about the here and now.
Those services certainly exist.
They may exist, but do they function effectively? That is what I am asking.
Those issues have been surfaced extensively in bills that have become acts of this Parliament. The commission held multiple victim support organisation round tables, and the chair held meetings with leaders in the area. From our perspective, we wanted to ensure—throughout our process and any subsequent parliamentary or Government decision process—that victims, survivors and their advocates, as well as families, including bereaved families, are fully and carefully heard. There has already been some attentiveness to that.
I will also remember to say that the commission recommended that there could be an inspectorate function for the Scottish Courts and Tribunals Service. One of the things that could be picked up is consideration of the experiences and perceptions of victims. Some really good work has been done by the Inspectorate of Prosecution from 2024 and, currently, there is a focused follow-up inspection.
That is ideal-world thinking. My question was quite clear.
I will move on to the next question. I would like some clarification on electronic monitoring. You spoke about what happens in the case of breaches. There would be a trigger in a control centre but, because they would all happen at, say, 7 pm, it sounds as though the resources do not have the capacity to address them. Could you talk me through the system and what happens when breaches occur?
Electronic monitoring in Scotland is provided end to end by a private service provider that is tightly managed by a Scottish Government contract team, which would hold very good data on what happens and what does not happen. There is a national centre and a team that works with electronic monitoring. The team could be making or taking phone calls and monitoring the information that is available to them about home curfews or location monitoring. My understanding is that the authorities can be alerted quite quickly in an emergency and that alerts go to Police Scotland. There are report writing teams that report to the courts, which make decisions about what to do with bail, remand and sentencing, and there are tables in their booklets that outline the managing authorities for each order. The private company does not have the authority to make decisions; it merely has to collect and understand evidence.
From what I am hearing, there is a real potential that nothing will happen. Am I correct?
The reporting is quite proactive in this nation and others. It is up to the decision makers as to what they want to do about it. The reason that might be given for the breach could be, “I was disorganised”, or “The bus was late”. That is a very different level of gravity to a notification that someone might be going to their ex’s house.
For clarity, if I were a victim and I thought that the curfew was from 7 pm to 7 am and the person was five minutes over that, I would like to be informed that they were in breach of their curfew.
I think that that was something that I said, which is that the system would have a level of discretion built into it. That does not mean that it is wrong or that it is not working. In prison work and police work, we know that there it is what we call a skilled use of discretion. The point that I was trying to make is that when you tag someone, it is not as simple as being able to absolutely guarantee that they will be where they should be from 7 pm to 7 am. There may be valid reasons why they are not. That is what I mean by being clear about what something does and what you want it to do.
There are good reasons as to why discretion is built into the system, because people might be dependent on public transport or there might be exceptional circumstances. Equally, some circumstances are not acceptable, in which case, the processes that Hannah Graham has outlined would be followed. By saying that there is discretion, I am not saying that the system does not work; I am just saying that, when we are talking to victims and survivors about what we can provide, we need to be clear about what we expect something to do and what it can do realistically.
Dr Jardine, Ms McFall and Dr Graham, you have been incredibly generous with your time. I realise that we have gone over time somewhat, so it has been a very long evidence session today—but a very rich one. Thank you for your attendance today—we really appreciate it. This is a new committee, and I am sure that we will continue to take evidence from you in future. Thank you for your forbearance today.
Before we move to the next item of business, I will suspend the meeting for about 30 seconds, just to allow our witnesses to leave.
12:55
Meeting suspended.
12:55
On resuming—
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