Bail and Release from Custody Bill: In Context

What is it?

The Scottish Government wants to “change the way that imprisonment is used”. The bill includes a raft of reforms which aim to “refocus” the use of custody for remand and put greater emphasis on the rehabilitation and reintegration of those leaving prison.

If it passes, and if it works, it’ll achieve the aim of reducing the number of people in prisons by limiting the use of remand, other than for cases in which there is a specific safety risk. And it will end the release of prisoners on Fridays, a practice which can leave some floundering for want of access to support services over weekends. The bill also includes provisions for a new approach to risk assessment and monitoring.

Tell me more

The bill was published in June, following a 12-week consultation which drew mixed views. It introduces the new concept of “public safety” to Scots law and states that bail can only be refused when there is a good reason for this.

Lord Carloway, the Lord President of the Court of Session and Lord Justice General, is amongst those to raise concerns about its provisions, telling the Justice Committee it could slow up the system. “The prescriptive nature of what is proposed is likely to make submissions to the local sheriffs lengthier, increase the time taken to determine the issue of bail and result in some accused persons being detained unnecessarily while inquiries are carried out, introduce more errors, increase the opportunities for appeals and add to the heavy burden on the sheriffs and the staff who are tasked with the management of what can be extremely busy custody courts,” he wrote.

Scottish Labour has also raised concerns about the public safety test, which it says lacks definition in the bill and is likely to lead to uncertainty.

However, justice secretary Keith Brown says the reforms are in the public interest. These include providing information about prisoner release to victim support organisations, and making complainer safety a specific factor in how court decisions on bail are reached.

On the specific issue of remand, this would be reserved for individuals who pose a threat to themselves or others and who fail to appear for trial.

“We know that short-term imprisonment in particular disrupts families and communities, adversely affecting health, employment opportunities and housing,” Brown said when the draft legislation was published, “the very things that we know prevent reoffending.

“This bill recognises prison will always be necessary for the most serious cases, but we need to look again at how custody is used.”

What are the details?

If passed, the bill will see justice social work given the change to provide information to the court when bail decisions are made, and reasons for the refusal of bail will have to be recorded. Time spent by an individual on electronically-monitored bail will be counted as time served against a custodial term.

As well as ending Friday release, the bill will stop the release of prisoners on the day before public holidays, and, in some cases, on Thursdays. It will replace home detention curfews for long-term prisoners with a new system allowing their temporary release to support their reintegration to society, if they pass risk assessments and the Parole Board is satisfied. Scottish ministers will also gain the power to release some prisoners in “emergency situations” to “protect the security and good order of prisons or the health, safety or welfare of those in prison”.

Councils, health boards and other specified public bodies will have to engage in release planning for prisoners and the Scottish Government will have to produce minimum standards for the throughcare support provided to inmates.

In its Judged on Progress report of January 2022, the Scottish Parliament’s Criminal Justice Committee raised concern about the lack of support available to prisoners before, during and after their custodial terms and recommended action on housing, health care and addiction report, where required.

Housing charity Crisis says it “strongly supports” the principles of the bill. “Spending time in prison increases the risk of homelessness, and lack of stable accommodation can increase the risk of (re-)offending,” it said in a written consultation submission. “This can lead to a self-perpetuating negative cycle, with repeated episodes of homelessness and imprisonment.”

However, Scottish Conservatives have called it “reckless”, with Jamie Greene MSP saying that “with one in eight crimes being committed by people on bail, it doesn’t take a genius to work out that increasing the number of criminals allowed to roam the streets again might lead to a rise in crime”. Labour’s Katy Clark said her party “strongly supports attempts to reduce the numbers of prisoners on remand”, but called the legislation “ill thought through”.