Bail Reform- Is this the Answer?

Kaitlin Dryburgh

Scotland now has the second highest prison population per head in Western Europe. We also have an alarmingly high number of our prison population on remand (people still awaiting trial). There are many elements wrong with our prison system, but this week the Scottish Government believes they have found the answer to reducing the excessive remand numbers. The new Bail and Release from Custody Bill has passed in Parliament and it has caused some backlash from victim groups and among MSPs.

Other aspects of the bill speak of common sense finally being applied to the prison system, which caused less of a stir. A welcomed reform was the way in which prisoners can be released, going forward prisoners will no longer be able to be released on a Friday or the day before a bank holiday. Which is perhaps a small change but one that could really make all the difference. The first few days after being released from prison is a crucial time period for some, for some this first couple days is all about getting suitable housing, perhaps getting benefits set up, and making contact with GPs and pharmacies. Being able to get a prisoner set up as soon as possible helps to reduce reoffending rates and helps those who may have started addiction treatments in prison to carry on with their treatment outside. The first 48 hours of release from prison is a dangerous time period for someone who suffers from drug addiction, and the chances of an overdose are heightened.

So releasing someone from prison, say on a Friday afternoon at 2pm with an £80 grant in their pocket to get transport to the relevant authorities or services which might be closing in two hours, it could mean that individuals have to wait until Monday before they can get the ball rolling. It’s without a doubt more beneficial that those being released from prison have enough time to access the services they require as soon as possible.

However, the perhaps most controversial part of the bill is aspects concerning bail. Before this Bill it was standard that any person charged with violent, sexual or domestic abuse offences would automatically be refused bail and would be remanded in custody awaiting their trial. By repealing this section of the Criminal Procedure (Scotland) Act 1995, the new Bill would mean this could be reversed if the person isn’t a cause of concern to public safety. Every case can be reviewed on an individual basis.

The Scottish Government’s reasoning is simple, to reduce the numbers sitting in Scottish prisons on remand. The qualifying factor being they don’t pose a threat to the public around them.

The Government is right to try and tackle the remand population, as it does pose a huge problem. Over a quarter of the prison population is on remand, meaning that 28% of people currently in prison are assumed innocent until proven otherwise. When examining just women this jumps to a huge 36%, over a third of the total amount of women in prison. This also correlates with an increasing amount of time that prisoners stay on remand, with the last data (2022) showing an average of 136 days, which was an increase from the year previous.

Now the highest proportion of those who have been denied bail and the court has deemed it safer that they be remanded, or perhaps they pose a risk of absconding or have broken their bail agreement previously have been accused of a violent crime, the second highest proportion is those who have committed a crime against society, this most often includes drugs or weapons possession, this is followed by sexual crimes, and very closely followed by crimes of dishonesty which is the umbrella term for theft, fraud, shoplifting etc. Yet there are people on remand for traffic offences, damage and recklessness and other miscellaneous crimes.

So it is clear that there is a large number of those on remand who haven’t been accused of a violent crime, so why should they be locked up? And even when that person does have their day in court, they may not even receive a custodial sentence. Although slightly dated, data from 2017 found that 46% of the prison population who were remanded and later convicted did not receive a custodial sentence, again this spikes when focusing solely on women, 70% of women who were on remand didn’t receive prison time. Although the time that they had already spent on remand was perhaps an influencing factor, it is interesting that a lot of those who were convicted weren’t deemed dangerous enough to be locked up, not to mention those who weren’t convicted.

That’s when it becomes a fine balance between trying to protect the public from a potentially dangerous person and becoming a country which relies on locking people up before giving them a fair trial. And unfortunately there will be people who were kept on remand when they were innocent and pose absolutely no risk whatsoever. In Angela Kirwin’s book Criminal: How our Prisons are Failing us all, in which she details her time as a social worker in prisons in the north of England, she describes the effect this had on one man who had been accused of fraud having never been in trouble with the law before. He lost his business, his house, his marriage, his sanity and nearly a year of his life before the case was thrown out. What happens when you are released from remand having being proven innocent or the case was thrown out? Nothing, you don’t receive an apology or compensation, you don’t even receive the £80 that the convicted prisoners get upon release to help with travel etc.

Although, a story like this is not an everyday occurrence by any means, it is slightly daunting in the face of rising numbers on remand.

Mental health crisis, self-harm and suicide is increased among the prison population on remand. Some put it down to the uncertainty of living in the unknown but one of the main problems is the difference between what a convicted prisoner is entitled to and what a prisoner on remand is entitled to and unfortunately those on remand don’t have access to the same programmes that those who are convicted do, they can’t access help as easy even though they will live side-by-side with those who are convicted.

Scotland needs to confront its high remand prison population, yet victim groups have rightly asked if this is the best way to do it. Groups such as Women’s Aid have said these reforms could lead to a higher probability of dangerous offenders being set free in the community with a potential risk to their victims. Many MSP’s such as Labour’s Katy Clark noted that she had significant concerns about the potential effects this could have on victims, although she does support a reduction in the use of remand.

Additionally senior judge Lord Carloway believes that these reforms could actually slow down the justice system as it puts more pressure on the courts to determine whether or not an accused is dangerous or not. For many the reason we have such a high remand is exactly that, the backlog from an under-funded and under-pressure justice system means people are waiting record time periods (out with Covid times) to be taken to trial. Perhaps if the government focused it’s time towards this the time people sat locked up waiting would start to drop. The Howard League also points to the lack of information or services in communities which help to support people on bail and the information available to the courts who decide on bail. There are alternatives to those who are perhaps not dangerous but the court wants to keep an eye on and we should be doing our upmost to encourage those changes.

The justice system like many of our public bodies is being pushed to brink so if this Bill does exasperate it even more, we could be in trouble. It often feels like we should knock it down and start again (if only) when it comes to Scottish prisons. Yet one thing is certain we need a big push to reduce our prison population and stop our over reliance on locking up the accused before a trial has even taken place.

3 thoughts on “Bail Reform- Is this the Answer?”

  1. The option to reease prisoners one or two days before a Friday has been available to the Scottish Prison Service for approximately 8 years but, for reasons known only to the SPS, it has hardly ever been used. A disproportionate number of people are released on Fridays because sentences that finish on weekends must end on the Friday before. This is due to the fact that any sentence laid down in a Scottish court cannot be extended by the SPS. People released on Fridays are more likely to reoffend (thereby increasing victim numbers), suffer overdose, self harm or commit suicide.

    I suggest the Freedom of Information requests regarding actual use of the ‘Not on Fridays’ legislation should lodged with the SPS and HM Inspectorate of Prisons for Scotand as an urgent matter over the coming weeks and months.

    BACKGROUND INFO: In my role as originator and CEO of Positive Prison? Positive Futures… SCIO (PP?PF…) I was, alongside others with lived experience of imprisonment in Scottish prisons, actively involved in discussions and meetings from 2013 to 2015 with civil sevants and politicians (most effectively with then Justice Secretary Kenny Macaskill), to promote the benefits of ‘Flexible’ release.

    Unfortunately, PP?PF…was closed down just over a year after I suffered a stroke which left me with impaired mobility. I am now technically retired not inactve or unconcerned.

  2. Ian Davidson

    As with other policy failure areas, Scot Gov attempts distraction via more legislation. The criminal justice system is under-resourced at all levels/functions: police*, COPFS, courts (administration + judicial), legal rep etc, prisons etc. Many basic and advanced errors occur every day but are hidden from public scrutiny. As stated, if processing delays reduced, long remands would reduce. Courts lack time to properly risk assess ‘re bail requests so errors get made, whether too lenient or too harsh. The presumption of innocence is critical but victims of violence/witnesses deserve protection from potential intimidation (or worse) pending trial. Some communities (e.g. parts of Inverclyde, are enduring horrendous levels of casual violence). Women’s Aid historically under resourced so limited options for women pending trial of alleged violent partners? As with sentencing guidelines, judicial decision making may appear inconsistent? Eg: Whilst I support the new under 25 sentencing guidelines, they are only guidelines! Some judges are quoting the guidelines as if they were rigid rules to justify non custodial sentences in serious cases e.g. rape! Judges need to be independent of undue influence but they also need to be accountable for their bail and sentencing decisions, assuming they actually have the necessary training and background reports etc to make “correct” decisions? Cheap justice is looking more like poor justice? The bail reforms look like another panic response to a broken system?

    *in numbers but also quality of recruitment, training and supervision of young, inexperienced officers plus dealing with consequences of lack of resources in “partner” agencies for mental health, domestic violence, addiction, community/youth work, supervised community service.

  3. Jennie Robertson

    “Innocent till PROVEN Guilty” should be an inviolable principle – especially regarding pre-conviction jail-time. But, as a victim of sexual attack & domestic abuse & stranger violence, I see it as a potentially dangerous – even fatal – principle. Only PROTECTION of accused’s victims or witnesses or wider public can justify Remanding before trial. Found “NOT Guilty” people can’t get weeks or months or even years of their lives back – disruption to family, employment, reputation – not to mention trauma of Prison EXPERIENCE. The disproportionately high % of FEMALE Prisoners on remand will correspond to majority also being of Little or NO Danger. CLASS-bias needs to be seriously considered – higher % of Black & Minority Ethnic accused are remanded before trial but also high number of Young White Working-Class men, especially from deprived housing-estates or coastal/rural areas. Guilty or innocent, few people released after a few weeks/ months behind bars will come out the same person that went in – the innocent may become bitter & angry or timid & withdrawn or have mental-health or substance- abuse issues …… wider community/society will suffer effects of this as much as people close to them. What’s the point of 21st Century if we still rely on 18th Century methods to contain or discipline ….. including the often innocent

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