Stage 3 proceedings for the Bail and Release from Custody (Scotland) Bill are scheduled to take place on 21 and 22 June 2023. This briefing outlines the main issues discussed during Stages 1 and 2.
Part 1 of the Bail and Release from Custody (Scotland) Bill deals with bail. It sets out:
a range of measures aimed at increasing the likelihood of an accused being granted pre-trial bail, as opposed to being held (remanded) in custody, where this can be done safely
provisions 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.
Amendments agreed to at Stage 2 included ones:
requiring a court, where granting bail to someone accused of domestic abuse or stalking, to explain its reasoning if special bail conditions are not imposed
adding a new section requiring the Scottish Government to publish a report on bail and remand covering the first three years in which a new bail test provided for in the Bill is in force.
Part 2 of the Bill deals with the release of prisoners from custody. It sets out:
a range of measures aimed at improving the transition of prisoners back into the community – including release planning, prisoner throughcare, information on prisoner release to support victims, and a new form of temporary release for certain long-term prisoners
provision for a Scottish Government regulation-making power to release groups of prisoners early in emergency situations.
Amendments agreed to at Stage 2 included ones:
adding a new section providing the Parole Board for Scotland with the power to review a decision to recommend release on parole in the light of new information provided prior to the point of release on parole
adding providers of victim support services to a list of bodies the Scottish Government would need to consult when preparing or reviewing minimum throughcare standards for prisoners.
The Bail and Release from Custody (Scotland) Bill1 was introduced on 8 June 2022, setting out reforms relating to bail and the release of prisoners from custody.
An earlier SPICe briefing2 provides more detail on the Bill as introduced, as well as information on:
the current approach to decisions on bail and remand
how the average remand population has changed over time, the number of people being remanded and the length of time spent on remand
the process of preparing prisoners for release into the community and supporting their reintegration once released.
The Parliament's Criminal Justice Committee was designated as lead committee for parliamentary consideration of the Bill. Its Stage 1 report3 was published on 6 March 2023. In relation to the general principles of the Bill, the report stated:
All members agreed that there are some useful provisions in the Bill. Fulton MacGregor, Rona Mackay, Audrey Nicoll, and Collette Stevenson support the general principles of the Bill. Katy Clark, Jamie Greene and Russell Findlay do not. Those not supportive believe that there is a lack of sufficient explanation about the Bill's intended purpose, its effects and detail about how some of the provisions will be delivered. Pauline McNeill was of the view the Bill should only proceed if Ministers address the issues outlined by Members not supporting the general principles.
The Scottish Government provided a written response4 to the Stage 1 report on 14 March.
The Bill completed Stage 1 with the Stage 1 debate5 on 16 March, following which the general principles of the Bill were agreed to:
for 70 (SNP, Green, Liberal Democrats)
against 29 (Conservative)
abstentions 19 (Labour).
Stage 2 scrutiny took place at meetings of the Criminal Justice Committee on 10 May6 and 17 May.7 This was followed by publication of the Bill as amended at Stage 2.8 Supplementary financial9 and delegated powers10 memorandums have also been published.
Stage 3 proceedings (final consideration) are scheduled to take place on 21 and 22 June 2023.
On introduction, Part 1 of the Bill set out:
a range of measures aimed at increasing the likelihood of an accused being granted pre-trial bail, as opposed to being held (remanded) in custody, where this can be done safely
provisions 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.
Section 1 of the Bill as introduced sought to enhance the role of justice social work where bail is being considered by a court. This was with the aim of supporting better informed decisions on bail at the pre-conviction stage of proceedings. The section included a requirement for the court to give justice social work the opportunity to provide relevant information when the court is considering bail for the first time.
Section 1 was not amended at Stage 2.
The Criminal Justice Committee's Stage 1 report agreed that justice social work can play an important role in informing a court's decision on bail, whilst also highlighting some practical concerns. These concerns related to whether justice social work would be adequately resourced to perform this role and provide relevant information without court hearings being delayed.
In its written response to the Stage 1 report (p 6), the Scottish Government acknowledged that the availability of resources will have to be factored into plans for implementing the proposals in the Bill:
In this context, we will consider carefully how best the benefits of the Bill can be delivered in conjunction with the resourcing challenges. For example, the phasing of the implementation of the Bill in line with future budget allocations and in discussion with stakeholders will likely be necessary. As part of this necessary planning for implementation, we assure the Committee that we will continue to engage closely with Social Work Scotland and COSLA on the future resourcing requirements of the Bill.
Whilst section 1 of the Bill was not amended at Stage 2, a range of proposed amendments were considered by the Criminal Justice Committee at its meeting on 10 May 2023. These included ones:
arising from concerns about the practicalities of justice social work providing relevant information to the court
seeking to ensure that the court has adequate information relating to public safety, including the safety of the complainer, when taking decisions on bail.
In relation to the latter, the Cabinet Secretary for Justice and Home Affairs, Angela Constance MSP, commented at the meeting that (col 9):
the prosecutor can and should make the court aware of any safety concerns that they think arise based on the particular facts and circumstances of the case.
Section 2 of the Bill as introduced sought to change the grounds upon which a court may decide to refuse bail:
Solemn and summary cases - adding a specific requirement that reasons for refusing bail must include a determination 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.
Summary cases - limiting the circumstances in which a risk that the accused might abscond or fail to appear can be used as a ground for the refusal of bail.
Section 2 was not amended at stage 2.
The Criminal Justice Committee's Stage 1 report (para 166) noted differences of views on the potential impact of the section:
It has not been entirely clear to some observers if the proposed change is intended to be a minor reframing of the rules, or a more fundamental reform. Some witnesses argued that a narrowing of the grounds for bail will inevitably lead to significantly more individuals being granted bail. This has been a particular concern for organisations representing the victims of crime. Others, including the Lord President, have argued that the revised bail test would make little practical difference to outcomes.
In its written response to the Stage 1 report (p 11), the Scottish Government stated that:
The new bail test in the Bill is intended to refocus how imprisonment is used to ensure that, as much as possible, the use of custody for remand is a last resort for the court, and to encourage more people to remain in the community pre-trial who do not pose a risk to public safety or a risk to the delivery of justice.
Although not amended at Stage 2, various amendments to section 2 were considered by the Criminal Justice Committee at its meeting on 10 May 2023. These included ones aimed at broadening the scope for refusing bail under the new provisions and seeking more clarity on the meaning of 'public safety' in the bail test (e.g. by having a definition in the Bill). For example, in relation to one of his proposed amendments, Jamie Greene MSP noted (col 21) that it:
would broaden the scenarios in which an individual can be refused bail. I do not think that we should be forcing our courts into a situation in which they believe that an offender could be a risk but, due to a technical interpretation of the legislation, would have to release them anyway.
And speaking to one of her amendments, Katy Clark MSP said (col 14):
On a number of occasions, fear has been expressed that the lack of certainty in relation to the definition of the public safety test is likely to lead to appeals. Even if, at the end of the day, the outcomes are the same as they are under current bail law, such uncertainty is not in the interests of justice or of victims, and, indeed, the arguments that will have to be presented in the courts over interpretation of the legislation will come at a cost to the public purse.
In response, the Cabinet Secretary for Justice and Home Affairs, Angela Constance MSP, argued that:
amendments broadening the discretion given to the courts for refusing bail would run counter to the Scottish Government's aim of having a more focused use of remand
the concept of 'public safety' is part of the existing bail test and should be left to the courts to interpret.
Section 3 of the Bill as introduced sought to repeal section 23D of the Criminal Procedure (Scotland) Act 1995 which restricts the granting of bail in certain solemn cases.i Section 23D provides that bail is only to be granted in exceptional cases if the accused is being prosecuted under solemn procedure (used in more serious cases) for:
a violent, sexual or domestic abuse offence and has a previous conviction under solemn procedure for any such offence; or
a drug trafficking offence and has a previous conviction under solemn procedure for such an offence.
With the repeal of section 23D, the courts would instead simply apply the general rules for decisions on bail and remand which are used in other cases.
Section 3 was not amended at Stage 2.
The Criminal Justice Committee's Stage 1 report highlighted conflicting evidence on whether repealing section 23D of the Criminal Procedure (Scotland) Act 1995 might lessen necessary safeguards for the safety of victims. It noted that (para 200):
The Committee's main focus in examining this proposal has been to satisfy ourselves that the repeal of section 23D will not lead to adverse effects on the safety of victims, particularly in relation to cases of domestic abuse and violence against women and girls. We have listened carefully to the reassurances we have been given from a number of organisations and individuals about the impact of the repeal. Whilst some members of the Committee are persuaded that the focus on public safety in the new bail test, including the reference to the safety of the complainer, will provide the necessary safeguards for the repeal of section 23D to go ahead, others do not hold this view given the conflicting views we heard.
An amendment, which would have removed section 3 from the Bill, was considered by the Criminal Justice Committee at its meeting on 10 May 2023 but then withdrawn. In arguing for the position taken in the Bill, the Cabinet Secretary for Justice and Home Affairs, Angela Constance MSP, sought to provide reassurance that the new bail test (set out in section 2 of the Bill) would protect those at risk of harm (col 40):
The bill proposes to repeal section 23D for one simple reason, which is to ensure that the same core bail test applies in all cases. In its place, the new bail test explicitly highlights for the first time the importance of ensuring the safety of victims from harm. The bill not only does that but defines safety from 'harm' as safety from both 'physical or psychological harm' in recognition of the harm that is caused by threatening or coercive behaviour, which is an insidious feature of domestic abuse.
Section 4 of the Bill as introduced sought to expand the current requirements for a court to state its reasons for refusing bail and to require the recording of those reasons.
The section was amended at Stage 2 to:
reduce the additional recording requirement imposed by the section
add new provisions extending the current circumstances in which a court, when granting bail, is required to explain why special bail conditions are considered unnecessary.
Any person released on bail is subject to standard bail conditions (e.g. to appear at court as required, not commit any offence and not interfere with witnesses). The court can also impose additional special conditions to help ensure that that the standard conditions are complied with (e.g. conditions prohibiting an accused going to a particular address or approaching a specific person).
Under current rules, a court granting bail in a sexual offence case must explain if not imposing special bail conditions. The Bill as amended would extend this to domestic abuse and stalking cases. The relevant amendment was lodged by Rona Mackay MSP. In arguing for the amendment (at the Criminal Justice Committee's meeting on 10 May 2023) she said (col 47):
Adding domestic abuse and stalking offences to existing requirements for sexual offences cases will ensure that the court must justify any decision not to put in place additional protective conditions in cases in which a victim would feel especially threatened by the risk of further offending by the accused. That is where special conditions of bail are of particular importance.
Section 5 of the Bill as introduced sought to place a requirement on courts, when imposing a custodial sentence, to have regard to any period the person spent on bail subject to an electronically monitored curfew condition. This could be pre-trial bail or bail whilst awaiting sentence.
The section generally provided for one-half of that period to be deducted from the proposed sentence, whilst allowing a court to disregard some (or all) of the time spent on such bail where it considers this appropriate.
Section 5 was not amended at Stage 2.
The Criminal Justice Committee's Stage 1 report (para 228) stated that the Committee was of the view that:
sheriffs and judges are best placed to determine the extent to which time spent on electronic monitoring should be deducted from the length of custodial sentences.
An amendment, which would have removed section 5 from the Bill, was considered by the Criminal Justice Committee at its meeting on 10 May 2023 but disagreed to following debate. Speaking in support of the amendment, Jamie Greene MSP stated (col 57):
I fundamentally disagree with the concept in section 5 that time spent being electronically monitored should be considered as part of a person's sentence.
In response, the Cabinet Secretary for Justice and Home Affairs, Angela Constance MSP, argued that (col 62):
All that we are seeking to do is give the court the option to acknowledge good behaviour by a person who is being electronically monitored. Although a restriction of liberty is not the same thing as a deprivation of liberty, it is nonetheless a restriction. If someone is sentenced, it would not be unreasonable for the court to have the option to take their behaviour into account or not to do so, as it sees fit.
At the Criminal Justice Committee's meeting on 17 May 2023, an amendment lodged by Katy Clark MSP was considered. It sought to provide an alternative to section 5 of the Bill by stating that the courts, when passing sentence, may have regard to a person's compliance with bail conditions. She argued that this would be preferable by allowing the courts more discretion. However, the amendment was withdrawn.
This section was added at Stage 2 as the result of a Scottish Government amendment. It would require the Scottish Government to publish a report on bail and remand covering the first three years in which the new bail test (provided for in section 2 of the Bill) is in force. The report would have to provide specified information.
The amendment was discussed at the Criminal Justice Committee's meeting on 10 May 2023, during which the Cabinet Secretary for Justice and Home Affairs, Angela Constance MSP, noted that it was in response to concerns expressed in the Committee's S tage 1 report about a lack of relevant data.
Another amendment, considered at the same Committee meeting, sought to add a specific reporting requirement in relation to women refused bail. The amendment, which was lodged by Katy Clark MSP, was withdrawn after discussion. However, the Cabinet Secretary offered to work with Katy Clark to see (col 53):
whether we can return at stage 3 with a workable reporting requirement that explores the characteristics of the remand population - including by gender - in a meaningful and informative way but that does not place unduly onerous burdens on the Scottish Courts and Tribunals Service and others.
On introduction, Part 2 of the Bill set out:
a range of measures aimed at improving the transition of prisoners back into the community – including release planning, prisoner throughcare, information on prisoner release to support victims, and a new form of temporary release for certain long-term prisoners
provision for a Scottish Government regulation-making power to release groups of prisoners early in emergency situations.
Section 6 of the Bill as introduced sought to further restrict the days on which prisoners are released from custody (e.g. prisoners are not currently released at the weekend) – thereby bringing forward release dates of affected prisoners to days on which accessing services in the community may be easier.
It would add Fridays and the day before a public holiday to the list of days where release must be brought forward. It would also bring forward Thursday releases by a day for those prisoners who, before the application of the above rules, were due to be released on a Thursday. This was intended to help avoid too great a bulge of Thursday releases (which might overload relevant services on that day).
Section 6 was not amended at Stage 2.
In its Stage 1 report (para 250), the Criminal Justice Committee stated that:
On balance, until there are adequate resources for public and third sector service providers to be adequately informed prior to release so that they can provide support whenever it is required, then Friday releases should be avoided.
Proposed amendments considered at the Criminal Justice Committee's meeting on 17 May 2023, but not agreed to, included ones lodged by Russell Findlay MSP seeking to remove the proposed limitation on Thursday releases. His concern was that this limitation, coupled with a removal of Friday releases, could put too much strain on service providers for the remaining days of the week where releases would happen. He noted that (col 4):
Witnesses told us that the key is to have proper support in place in relation to medication, housing and benefits, and not necessarily to reduce release days.
In relation to Thursday releases, the Cabinet Secretary for Justice and Home Affairs, Angela Constance MSP, argued that the provisions in the Bill were necessary to mitigate the shift of Friday releases to Thursdays.
Section 7 of the Bill as introduced sought to replace the possibility of release on home detention curfew (HDC) for long-term prisoners with a new system of temporary release under what the Bill's policy memorandum referred to as a 'reintegration licence'.
Long-term prisoners are those serving custodial sentences of four or more years (not including life sentences). Release on HDC allows prisoners to serve part of their sentence in the community whilst wearing an electronic tag. In practice HDC is mainly used for short-term prisoners.
The new form of release provided for in section 7 would cover two situations:
Prior to the Parole Board for Scotland deciding whether to recommend release on parole - the Scottish Prison Service (on behalf of the Scottish Ministers) would be able to release long-term prisoners on reintegration licence prior to the Parole Board's decision. Some long-term prisoners would be excluded from release under these provisions.
Where the Parole Board for Scotland has recommended release on parole - the Parole Board would be able to direct the Scottish Prison Service to release a prisoner on reintegration licence where it has recommended that the prisoner should be granted parole at their parole qualifying date. The period of release on reintegration licence would would take place in the run-up to the start of parole.
In both situations, release is intended to support reintegration into the community by providing for a managed system of release. In addition, in the first scenario, it is intended to provide the Parole Board with additional information to help inform its decision on parole.
Only minor changes were made to section 7 at Stage 2 by what the Scottish Government described as technical amendments.
Other amendments considered at the Criminal Justice Committee's meeting on 17 May 2023, but not agreed to, included one lodged by Jamie Greene MSP seeking to ensure that the safety of victims is taken into account when the Scottish Prison Service or Parole Board for Scotland is considering release on reintegration licence. In responding to the proposed amendment, the Cabinet Secretary for Justice and Home Affairs, Angela Constance MSP, noted that the Bill already provided that regard must be had to protecting the public. She said that this would include victims, but was persuaded that more explicit reference would be helpful. She offered to work with Jamie Greene on a relevant Stage 3 amendment, which he agreed to.
This section was added at Stage 2 as the result of a Scottish Government amendment. It seeks to deal with an issue highlighted during Stage 1 scrutiny of the proposals in section 7. In relation to that section, the Criminal Justice Committee's Stage 1 report (para 260) noted that:
Section 7 of the Bill provides for the release of long-term prisoners on reintegration licence. It provides for this in two situations – before and after the Parole Board has recommended release on parole. In relation to the second situation, the Board advised us that it will need a power to reverse its decision on parole if the offender fails to comply with the conditions of release on reintegration licence.
In explaining the purpose of the amendment, at the Criminal Justice Committee's meeting on 17 May 2023, the Cabinet Secretary for Justice and Home Affairs, Angela Constance MSP, stated that it responded to the Parole Board's point but also went further (col 24):
it provides the Parole Board with the power to review its decision in relation to the release of prisoners under part 1 of the 1993 act generally. That power is applicable when new information is provided to the board between its decision to recommend release and the point of release and when that information is considered to have a significant bearing on the individual's suitability for release.
Section 8 of the Bill as introduced sought to give the Scottish Government a regulation-making power to release groups of prisoners earlier than would be the case under normal rules on early release. Use of the proposed power would be restricted to situations where the Scottish Government is satisfied that it is a necessary and proportionate response to the impact of an emergency situation on prisons. The Bill provides some examples of what is meant by an emergency situation, including:
the spread of an infection which could present significant harm to human health
an event which has resulted in part of a prison becoming unusable.
The section was amended at Stage 2 as a result of amendments lodged by the Scottish Government and Rona Mackay MSP. Changes included:
providing that the power cannot be used to release prisoners more than 180 days before their scheduled release date
extending the range of prisoners who would be excluded from release under the power.
The Criminal Justice Committee's Stage 1 report (para 278) had noted that:
The Committee is not wholly persuaded of the necessity to permanently enshrine the power to release prisoners early into the Bail and Release from Custody (Scotland) Bill. This power is already included in the Coronavirus (Recovery and Reform) Act 2022 and a permanent entrenchment should not be considered until this power has been evaluated as part of the post-legislative scrutiny of that legislation.
In its written response to the Stage 1 report (p 21), the Scottish Government said:
As the Committee is aware, the emergency release power within the 2022 Act is temporary and cannot be extended beyond November 2025. Furthermore, the power within the 2022 Act only permits prisoner release as a result of the impact of covid on a prison and not, for example, in the case of any other spread of infection or contamination or fire, flood or other incident which would make a prison or part of a prison unusable.
Section 9 of the Bill as introduced sets out measures seeking to facilitate the development, management and delivery of personal release plans for prisoners. A release plan would deal with elements of reintegration and throughcare for both remand and sentenced prisoners:
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).
Section 10 as introduced would require the Scottish Government to publish, and keep under review, minimum standards applying to throughcare support.
The Criminal Justice Committee's Stage 1 report (para 279) noted that sections 9 and 10 of the Bill:
are broadly related, as they both deal with the support given to prisoners to prepare for release and then are supported in the community.
It therefore considered the two sections together, commenting that (para 308):
The principles behind these provisions of the Bill were broadly supported by witnesses who gave evidence to the Committee. There was a generally shared view that a duty to engage in release planning and to set minimum standards of throughcare support will be helpful in encouraging a joined up and consistent approach to the support given to prisoners.
Whilst adding (para 310):
However, we also heard that the success of these provisions in practice will depend on adequate resources being allocated to supporting prisoners. We heard that successful reintegration into the community is often best achieved through personal one-on-one support tailored to each prisoner. This, of course, is resource intensive.
In its written response to the Stage 1 report (p 23), the Scottish Government stated that:
Ongoing consideration of resourcing to support the implementation of this Bill is a priority and, to inform that, we will continue to engage with partners in the implementation planning for both sections 9 and 10.
Section 9 was not amended at Stage 2. Amendments considered at the Criminal Justice Committee's meeting on 17 May 2023 included ones seeking to ensure that the interests of victims are taken into account in release planning.
The interests of victims were also considered in relation to section 10, which was amended at Stage 2. This included changes made by Scottish Government amendments adding providers of victim support services to a list of bodies the Scottish Government would need to consult when preparing or reviewing minimum throughcare standards for prisoners.
In addition, the Cabinet Secretary for Justice and Home Affairs, Angela Constance MSP, made a commitment to wider consultation on minimum throughcare standards, stating at the meeting on 17 May that (col 57):
I recognise that there is wider public interest in this area and that the Government should be open to hearing the views of communities impacted by throughcare. Therefore, I commit to lodging an amendment at stage 3 that would require the Scottish ministers to undertake a formal public consultation on the draft standards following the consultation and development with the listed partners.
Section 11 of the Bill as introduced provided that information about a prisoner's release, that can already be given to a victim of that prisoner, can also be given to a victim support organisation to inform the support it provides to the victim. It would also allow such an organisation to request that information.
The Criminal Justice Committee's Stage 1 report noted that the provision appeared to have been welcomed in principle, but that some victim organisations had raised concerns about information being shared with organisations without the consent of the victim. In its written response to the Stage 1 report, the Scottish Government said (p 26):
we would like to reassure the Committee that we have listened to these concerns and are having further discussions with Victim Support Organisations. We will consider what changes may be needed to the Bill as a result.
Section 11 was amended at Stage 2 by a range of Scottish Government amendments. These included ones seeking to address concerns about information being shared without the consent of the victim. The Cabinet Secretary explained that, under the amended provisions, victim support organisations would be required to secure a victim's consent before requesting any information about a prisoner on behalf of the victim.
Other Scottish Government amendments agreed to at Stage 2 extended section 11 to cover the provision of information to help victims where the perpetrator is a patient in the forensic mental health system.