 Mae hi,аци. Welcome to the Justice Committee's ninth meeting of 2018. There are no apologies. Agenda item number one is the decision to take item three in private, which is consideration of our approach to scrutiny of the management of offender's Scotland bill at stage one. Agenda item two is an evidence session on remand, focusing on the decision-making process around the use of and remand in Scotland. The committee has previously held two sessions on remand on 16 January and 6 February. Today's session is the first of three further evidence sessions to further explore the issues that have been raised. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper. The purpose of today's evidence session is to explore further the decision-making process around the use of bail and remand in Scotland. I welcome Sheriff Liddo, Sheriff of Edinburgh, Lothian and the Borders, and the President of the Sheriff's Association. Sheriff Liddo, for your written submission, which is always very helpful and sets out the views of the Sheriff's Association, is probably worth pointing out that in Sheriff Liddo's submission paragraph 3 is just emphasised that the Sheriff's Association is a judicial body and does not debate on matters of political controversy. If I could perhaps start the line of questioning Sheriff Liddo with a question as to what you consider to be the barriers or the—for example, the committee is aware of the possible reasons for remanding a person in custody, including concerns that the person will have released on bail, fair to appeal or in court, engaging criminal activity or interfere with witnesses. I suppose the question is to what extent do these and other particular grounds feature in decisions to remand people in bail, in practice, in the courts? What I would do is draw the committee's attention to the terms of section 23B and C of the Criminal Procedure Scotland Act, which I think was fairly recently amended. It may seem fairly simple and straightforward, but what we do is apply the law that is made by politicians. You will see that it is 23B that there must be good reasons for refusing bail, as would be entirely appropriate, and that public interest and public safety are particularly mentioned in the legislation. We then go on to 23C, which sets out pretty comprehensively the grounds that are relevant to the question of bail. On each and every occasion, when bail is applied for, this is a checklist that we go through in relation to considering whether someone should be admitted to bail or not. Of course, that is a statutory checklist. We also have to take into our part of the equation the personal circumstances, and those are all different. That is why a robot could not do the exercise, because we have to take into account such a myriad of things that it would be to the exclusion of some to mention others that we have to take into account. We will be digging down as we go on with our questioning. That is the statutory considerations, as you say, of every cases on its own merit. There may well be a pattern that is formed with certain individuals who seem to repeat and are on remand certain people in certain circumstances that seem to always be on remand, but perhaps as we develop our line of questioning, then that will be flushed out. Liam Kerr. Just to follow on from that same point, during previous sessions into this area, we have been told that there is a lack of robust data on why judges are deciding to use remand in the individual cases. I can understand from what you have said to the convener what we have to consider, but there does not appear to be data on which were the main considerations and what the conclusions were. Are you able to tell me why? First of all, if I may, there is not a separate issue of remand. There is only a question of whether bail is to be admitted or not. The remand is the expression that has been used, but I think that it is worth keeping in mind that we apply the statutory criteria. As far as data is concerned, you will see within the statutes itself that we require to give reasons for admitting to bail or for refusing bail. There is data, if anyone cares to collect it, available in every single consideration of bail. Is it fair to say then that the breakdown, if I can put it that way, is in the collation of the data—the data exists in your view—that nobody has collated it up to this point? I do not know, because it is not something that I would do. It is not something the Sheriff's Association would do, because there is no point in doing that. Each case is decided on its own merits to some extent. There may be similarities in the consideration, for example, if someone is a repeater fender or if they have repeatedly breached bail conditions, that might be something that occurs in a number of cases. However, the personal circumstances change. However, I have returned to the fact that it is a statutory requirement to provide reasons for bail or for refusal. In a previous session, we heard from Community Justice Scotland that legislation requires that when bail is granted or refused, a record should be kept of that. I am aware that that happens in some cases and not in others. Do you concede that it happens in some cases and not in others? If so, how is that possible? Well, no, I do not, but it is not a question that I can answer, because it has to—I come back to it—reasons have to be given. It is a requirement, and as far as I am concerned, reasons will be given, in each case where bail is refused or someone is admitted to bail. Will you review that Community Justice Scotland appears to be mistaken? I do not see any reason why they cannot get their hands on that. I do not know if they can get their hands on that, but all I can say is that, for every case, reasons exist, and they have to be given by the sheriff. Can I perhaps tease this out a little bit? Is it not the case that reasons are given orally if the judge is going to withdraw or refuse bail, but if there is an appeal, there is a written record of the reasons and this written record is retained? It is a bit of both. Reasons are given orally. I think—I need to check this—but my understanding is that the clerk of court is obliged to keep a record that goes into the minute of the reasons for bail or refusal of bail. That may be fairly shorthand. If an appeal is lodged, there are more substantial reasons. I suppose that an expansion of those reasons is set out, because an appeal means that the sheriff has to write a note for the appeal court. Can I perhaps refer you to the submission from the Senators of the College of Justice? It says that reasons will be given orally by the judge in court in any decision to refuse a withdrawal bail. Judges only provide written reasons when a bail appeal is lodged, and that is section 32, 3C of the Criminal Proceedings Act 19. Any report will be retained with the bail appeal papers, but it is not with the indictments. I suppose that you would really have to know where to look at it. Would it be your position that might be helpful? We can learn so much from data, but it would be helpful if there was also a written record of the reasons for withdrawal or refusal of bail in the first instance. I think that there is. What is being said—I agree with that—is that, if there is an appeal, a judge will write a note. The record of what happens in court, the minute that is kept by the clerk, is a different thing altogether. The clerk has to write down whether a bail is refused or has been granted. I have just got some further information from the clerks, which said that we asked the Scottish courts. They said that reasons are given, but there is no obligation on the clerk to record them. Perhaps there should be an obligation, so there is a written record available. That is a political question. Is it a political question? I would be inclined to answer that. As far as reasons are concerned, if I make a decision on bail, I give them a reason there and then, and that is subject to appeal. If I have got it wrong, or if I am considered to have got it wrong, or if there can be an appeal on both sides, as I am sure that you are all aware, that is a matter that will require me to write a note on extended reasons. I would not want to be responsible for suggesting that there is more pressure placed upon clerks to write more and more into a minute each time a case calls in court. Frankly, that would take up a lot of time and would have a resource implication. However, it would provide somewhere that information was available. If you were coming to look at someone before you, you looked at the notes, you could see quite clearly—there was a written evidence from a previous judge—about why bail had been refused or withdrawn. Would that not be helpful for you? To whom? To you, when you were looking at this person's record, and you were deciding this? Looking at a previous decision? Not at all. No, I have to look at a decision fresh. I cannot take into account— Or when they have been charged but they are awaiting sentence. That information—the way it works, I am not sure—explain exactly what happens in court. When the question of bail comes up and the Crown wants to oppose bail, then the Crown will provide a notice of previous convictions which does not stay with the court papers. It is only handed up and then taken back. At that point in time, the court would become aware of the convictions that a person might already have. Up until that point in time, it would be entirely inappropriate for the court to be aware of previous convictions, which might happen if you know about a previous decision that has been made. If there was a gap between being found guilty and sentencing and the question of bail came up? In those circumstances, yes, the previous convictions would remain with papers. Would that be helpful then to know the reasons in another case why it has been refused? It would not influence the case that has already been decided. It is just a pending sentence. I do not think so. I think I may—those who are making that decision might be criticised for taking into account something that it should not take into account, because what we are faced with at the point of making a decision on bail is background material in relation to previous convictions. We can see if someone has been convicted—for example, if someone is a repeated housebreaker. If you look at the convictions, it is quite easy to see whether they have committed further offences while they have been on trust. It is not very difficult to read through to understand the data that is included in the previous convictions. What I then have to take into account is the snapshot in time of the personal circumstances of the individual. I might be taking into account previous. I might be allowing myself to be influenced by the decision of another sheriff if I look at what happened on a previous occasion. I have serious discomfort about going through an exercise where I looked at what a sheriff had done before and followed that lead when I am supposed to look at it afresh. I am just wondering if there would be personal things like this difficult to get this person homeless, and then there is a thread of homelessness perhaps causing the breach, or if that is the kind of way that I am thinking about. Aleem Kerr, I think that you want to come in again. Just very briefly, from my own understanding, if you would please, sheriff, when you look at record keeping, when you promulgate an oral decision, when you say that this is on whether to grant or refuse bail, what obligation is there on the court to keep a record in the same way as we would have an official record kept here? Presumably the clock is writing down the significant points, but is there a separate obligation on the court to record everything that happens in that court? If it is a summary matter, then it is not recorded. There is no digital record of it. If it is a solid matter, then everything is recorded. Staying away from small-term politics, I have been preaching for many years to have digital recording in all courts at all times, but so far I have not had much success. I can certainly understand the rationale behind the need to take each case on its own merits, and I think quite rightly your concerns about decisions being influenced by matters outwith determination on a single case. I think that we will probably come on to discuss shortly in relation to alternatives to remand. Having an evidential base that would show that there is a pattern of decisions in terms of bail that seems to suggest that there is a lack of confidence in alternatives within a sheriffdom might be more easy to dissect and to interpret on the back of having the sorts of information that the convener was suggesting might take place through the clock's minute. Is that perhaps a more useful deployment of that requirement upon clerks to record the justification for a refusal or withdrawal of bail? I do not think that we have a difficulty in having information before us. I think that there is adequate information from what we are told. If the Crown wants to rely upon and chooses to rely upon such a history, if it is relevant, then it is open to the Crown to put that forward when they oppose bail, and they sometimes do. We will put forward a number of things and say that this individual has breached bail on half a dozen occasions. Sometimes you can see that from the record, depending on whether they have been prosecuted for breach of bail or they have just breached it and it has not led to prosecution of section 271b. That information is made available usually at the hand of the Crown in the court on the day in question and, on the other hand, you might hear from a solicitor, a defence solicitor, who will say, well, that's all very well, but the circumstances have changed. He's got the offer of employment for the first time with an uncle and that starts in a week's time and he wouldn't be able to take that up. He's just got a tenancy that has started. He's been asked for a tenancy for years, being homeless. Those are the sorts of things that regularly crop up and we have to take into account. We have fed a lot of information there and then from antagonistic sides, admittedly, but I don't really see what I can feel. There's an appetite for a written record and perhaps that's because data is something that is looked upon as being important, but what I can't say is that we would find it very useful when it comes to a question of bail. As I said, I was more driving at the fact that if there were a pattern of decisions that seemed to be taken in relation to refusal of bail because there were concerns about the public safety requirements or whatever it may be, then it may be possible then to look at what provision there is in relation to housing for homeless or support services or whatever. In the sense that it's less a decision for yourself or colleagues and for the court and more a decision for other services that would be then under more pressure to up their game in terms of what they're providing. I think that perhaps I would make reference to what was said by the chief inspector of prisons when he suggested, and I thought it was all judged, that sheriffs were heavy-handed in relation to the question of bail. I think that he meant by that, heavy-handed in relation to refusal of bail, but if one looks at what he's suggesting, he suggests that refusal of bail should only be used in exceptional cases, I think he says, but it's absolutely necessary to protect the public from serious harm or with the clear evidence of a flight risk. It's open to the legislator to change what's contained in section 23C and sheriffs will simply apply it, that's what we do. It's perfectly reasonable to think that if you reduce the criteria that you provide for sheriffs to take into account when considering bail, then you can alter, of course, the amount of people that get admitted to bail and the amount of people that are remanded. That will have consequences either way, but it's not a question that I can really address. I want to go back to a couple of your previous answers. Margaret Mitchell set out a number of submissions that we've had that suggest that, essentially, the reasons for not granting bail aren't recorded, but can I just clarify with you whether or not you agree with that statement or not, because I was far from clear with your answers on that? I thought that there was more of a recording done so that rather than just admitted to bail or refused. But you don't know whether it is or not recorded. It is recorded that—well. No, I'm sorry. Do you know or not? I would have—I understand the question—I would have to go and look at minutes, because my understanding was that there is a recording of some sort. It might not be yet. I find it rather alarming that you're not sure whether that's recorded. Do you not think that it's pretty important that reasons for not granting bail are a matter of public record? It's a public court. It's open to the public. Should it be recorded, should it not? Well, it can be recorded by anyone in the court. I'm unhappy about the level of criticism that's being levelled here, because it's not a secret that's focused on in the court. It's a public hearing. Excuse me, sheriff, but this is a very serious matter. We're talking about people being deprived of their liberty, and I think it's a fundamental point of principle that if people are being deprived of their liberty, those reasons are a matter of record, a record that can be interrogated, and so far we're not clear from your evidence whether that's being recorded or not. I think that's very serious. Do you not think that's serious? You're entitled to a view where you think that's serious. I'm not here to make political comment. There's been political comments. Just be where I think that's serious. The system that exists, as you know, is a system whereby many, many decisions are made in busy courts, day in and day out. Reasons require to be given, and reasons are given in open court. The question is whether the record and then whether or not those decisions can then be interrogated as a matter of data. I think that one of the other key things that you do understand the difference between record and data. Statistical information is different from record. Statistical information is information that is gathered at the aggregate level, can be interrogated at the aggregate level, rather than in individual cases. First, do you understand the difference? Do you understand the need to have that aggregate data so that we can look at what is happening at a system-wide level? I'm not sure what you're asking me. Across the court system, is it not important to understand in terms of the generalities of how bail is either granted or not, rather than just simply within individual cases? I think that we're looking at your decision on to refuse bail. Some of the reasons there, and it may be, as Liam McArthur said, that some of the information that would then be recorded are very helpful for the services that should therefore be kicking in. Now, they may or may not be available as we continue our line of questioning, then that will come out. I think that we'll refer to your opening statement, not on political. I don't think that this is political. I think that it's an interpretation of the legislation, and perhaps the legislation could be clearer on this and give a very strong indication that they should be written down. That might be helpful. If a written record—I'd rather think that you'd be far better with a recording, to be frank about it, because a written record requires someone to take a note, and you might not get everything that was said in that. However, I come back to the point that, when a decision is made, it's made in open court, and there may be a court reporter there. There may be someone who will write that down, but they may not. Sometimes there is. The clerk takes a note. I never read the minutes afterwards because they don't come to me for signing, so a minute is taken by the clerk and it goes into the court papers, and that doesn't come back to me. I only ever see the court papers again if there's an appeal taken. If an appeal is taken, I write a note on the reasons that I've already given in court anyway. So there's something else you want to talk about? Forgive me, but I think that you're going back to record keeping, which I agree is absolutely important. That's a very different question as compared to statistical data that's available to us, which would be looking at how bail is granted across the court system at an aggregate level, which is a very different question. We are being told that that data simply does not exist. That's not a question about record keeping, that's about aggregation of that record keeping so that it can be looked at across the system as a whole about how bail is being granted or otherwise, and that doesn't seem to exist. In some courts—the courts operate slightly differently—I can tell you that in my courts I actually do—every time I make an adverse decision on bail, so every time I refuse bail, I then write the note that would form the basis of an appeal. I think that quite a lot of courts do that and it goes with the court papers, so in many cases there is actually a written record that's written by the sheriff. I just think that you don't understand the difference between statistics and record. I'm not a statistician. I think that that's a bit harsh to say the least and probably unwarranted. Rona Cymru, good morning and Sheriff Liddle. Just going back to you mentioned, you had a checklist of criteria for either granting bail or deciding on remand. I'm just wondering—I don't have that checklist in front of me, so I don't obviously know what it is, but does the fact that thinking particularly of women offenders say, for instance, a single mother, does the fact that there would be children involved in that offender's case influence your decision? All of these things are taken into account. The answer to that is—there's no point in me talking about what I would do particularly, because that's only me and how I make a decision, but everything that's said in court before a decision is made is taken into account one way or another. As far as children are concerned—as far as females are concerned—of the firm believe that there exists a positive discrimination in favour of females and on the question of bail. Children, of course, if it happens that someone turns up in court, they might well be a candidate for bail being refused because they've repeatedly offended for whatever reason. Yes, we do get told that there are two children here and they are outside the court and someone has to take care of them. Yes, it does get taken into account. I think that care would have to be given in relation to any particular group of individuals or any particular category of individuals if it was the intention of Parliament to ring fence a particular group and give them a special rise—a get out of jail free card. We know that there's a high number of women offenders who are remanded, and about 75 per cent of them don't go on to be charged. I hear what you're saying, but there seems to be a wee bit of an imbalance somewhere in that line. They are charged, so it's not a quest of going on to be charged because if they come into court, they're being charged. I don't mean to pick up on that, but quite often it's the case that we don't have control over what the Crown does, and neither should we. When the Crown decides to charge an individual, we simply present it with the individual who has been charged. We don't know anything more about the circumstances or whether the case is ever going to prove. There are occasions when, on the face of it, you have an individual who looks as though they are either half paid or the other. Bail has to be refused, but when it gets to a trial, something goes wrong. Something over which we don't have control, and neither should we have control. I don't have control over whether the Crown leads the right evidence, the right witnesses, makes a good job of leading the evidence, whether the defence is superb at defending the case. Those are matters that are out with the control of the court. You may well have statistics, and it may well be the problem with statistics that they don't tell the story. Statistics might well say that I think you've said, did you say 70 per cent? 75 per cent. There may well be that there's a statistic that I don't know that says that out of women who are remandered, and there are very small numbers compared to the whole amount of people who come through our courts, but there may well be a statistic that says out of that number that a high proportion don't end up being convicted. It would be a distortion, not an intentional distortion, but a distortion of the analysis of that data, where you have to look at that and say that means that the courts are being hard on women when they come before them and the question of liberty arises. You might have to analyse the data if that's what you're inclined to do, and look elsewhere at why it is that a conviction didn't follow, and you may find some really interesting information about how that happens. I'm encouraged if you say that at least children are taken into account when you're making your decision. Can I just ask you one other question? Ten years ago, the Scottish Prisoners Commission produced a report, and it said that sometimes people are remanded in custody because that's the only safe thing to do, but often remands are the result of a lack of information or lack of services in the community to support people on bail. I'm just wondering in 10 years on your experience if things have improved in that regard. There isn't uniformity, first of all, throughout the whole of Scotland. Do you realise that? What might be available in one place isn't available in another place? Some courts have supervised bail available, and if it's available, it can be used as an option to try and avoid. David Shrine is of the view that we are all a bunch of zealots who want to remand people. In my experience, the truth couldn't further away from that. If someone can be left at liberty, I think that the courts pretty much want to leave them at liberty, but it's a really difficult balancing act. On the one hand, with one type of case, you're looking at the danger that's involved. In Edinburgh, and I'm not sure about the other courts, we have a group called the EDACs. It's a group to do with domestic violence, which I think clearly you're familiar with. We will be provided with a report from them as well at the initiation stage of a domestic violence case. It feeds into the system another layer of information, and of course there are other layers of possible disposal. On the one hand, with EDACs telling us that there's a serious risk to this woman if this individual who's accused of something is at liberty, he's only accused, he's not been convicted of that type, but there's a serious risk to her. If you look at the previous convictions, there are three previous convictions out the last four that have a domestic aggravator attached to them, and so there's a history of domestic abuse and a number of different disposals. EDACs say that's only the tip of the iceberg, this woman needs some respite. The choice is quite a stark one. On the one hand, if Bailers refused, as you interfere with the liberty of that individual, then for two weeks, because that's what we would take for a short period of time, it's got to be within 40 days, depends on whether it's at a post conviction or not, but for a fairly short period of time he cannot offend against this woman because he's not at liberty to do it. If you decide, well, I'm not admitting to Bail, but as well as the standard conditions that you all know about, I can impose special conditions, so I can impose a special condition of Bail that he doesn't contact her or attempt to contact her, he doesn't approach her or attempt to approach her and he doesn't enter the house or the street or even the area. That, on the one hand, provides a level of protection, but it only provides a level of protection if the individual will adhere to it. If he won't adhere to it, then you can pile on as many other factors as you like. They won't work if he's inclined to breach Bail. You've already looked, but if you're going through this exercise, you look back at the record and you look at the record and you see there are a number of breaches of the Bail Act. There are a number of Bail aggravations in previous convictions that this individual has had and you can make an assessment on whether the risk is too high for that individual. That's what we do. We're kind of over time as it is, so we'll try and be brief with our questions and with the replies. Maurice Corry. Good morning, Sheriff. Professor Hutton on University of South Clyde suggests that remand is most commonly used to a person as a significant history of failure to comply with court orders and indeed probably often combines a significant criminal record, which you've just referred to in the case of the abuse. Those such people are likely to have chaotic lives as a characterised a combination of alcohol and drugs abuse, unemployment and mental health problems. In effect, the court is being asked to apply a criminal justice solution to a problem that really relates to public health and welfare issues. Do you feel that's correct and like to comment on it? In other words, doing the job with social services? In a limited way, yes, I would agree to some extent with that. It doesn't fall within. It's not something that I'm entitled to take a view on in a way, because I would be addressing a political question, I would be addressing a question of whether there's something socially wrong with the set-up, and that's entirely a matter for yourselves. However, yes, there are circumstances. I think that a better example would be more mental health individuals who come before us when it's absolutely clear that there might be another way of dealing with them. Can I follow on with that? Basically, it is related obviously to remand. What you see as the main drivers behind the current level of use of remand? Offending. Where would you use remand in relation to that sort of situation? I don't use remand. I decide whether I'm going to admit or refuse bail. Remand isn't something that we use as a tool. It doesn't exist as being used as a tool. Although perhaps somewhat anecdotally, we very regularly, certainly fairly regularly, have circumstances where an individual has been refused, this is post-conviction, refused bail, and you've deferred for two weeks for reports, and you remand them because you think it's too serious. Quite often, as it sounds like. So you do use remand? No, in those circumstances you've refused bail because, A, you wouldn't normally ask for a report unless you're considering custody, because there'd be no point. You can impose a fine there and then, you can place them on a curfew, there and then, on it's first sentence, and you can order up to 100 dollars of unpaid work from the community there and then. So it's generally speaking only if you're considering a custodial sentence or if the social circumstances are so confluated that you really need a bit more information. If it's a latter, it's very unlikely that someone would be refused bail. If it's a former, then they may be refused bail because they propose such a risk. If there's a danger to community safety, right, and you're concerned about that, would you not err in favour of remanding them in case it didn't appeal a pair of corns or it couldn't be a danger to the public? It wouldn't be an error in favour of remanding. It would be entirely appropriate if there were no circumstances to refuse bail and you have to measure it. It's measured against, if I go back to the example, the refused bail presumably means that they're going to be remanded, isn't it? Yes, but it's not... The biggest statutory evidence that you look at and being a attache to the public would be one of the things that you would have taken into account. It goes back to where I began. It's 23C and applying the criteria that the Parliament has provided, which is what we do. Okay. Fulton supplementary, thank you. Thanks, Sheriff. You mentioned in your earlier answer about mental health problems, I won't ask you what you think solutions to that would be. I think that I would probably fferds on a political issue, but can I just ask briefly then, if you and your colleagues are seen an increase in people with mental health problems through the court system? I can't speak for my colleagues because I don't know the answer to that. There's more than I think there ought to be, as well. I can't really say whether it's increased over any particular period of time. Okay. Thank you, I've got it. Okay. Thank you, Manny. I just have a couple of brief questions given the basic answers that were told before as well. One is about the appeals process. We touched on that earlier. I was just wondering if you had any sort of rough idea of the number of appeals that go through and how many of those are successful? I'm afraid I don't, although that can't be difficult to get hold of. Okay, that's fine. That was just a question. I completely understand if you wouldn't have that information to hand. Another question that I have is about young offenders in particular, because I think that we've heard about female offenders and how there tends to be a higher proportion of women held on remand. Just really in terms of young people as well, I suppose, I mean, again, I'd ideally be looking for figures and getting an understanding if you don't have that information to hand either. Just really in terms of what happens to young people when they are held on remand, is consideration given as to where they are held? For example, I asked that question because I visited Rossie Young People's Trust just in Montrose yesterday. I heard of examples of young people being held on remand in the likes of Paul Mott prison when a residential secure facility might be more appropriate where they would get more support. Just really to get your thoughts on that and what is taken into consideration when we're looking at young people in particular? It's not within my control to say what they go to one institution or not. That's a decision that's made elsewhere. I've entirely set the proposition that there's very little—I think nothing can be done with individuals when they've been remanded for another court hearing because it's either two weeks or it's less than 40 days, depending on which stage you're at. I know that you're considering short sentences being 12 months rather than three months, but the reality is that a short sentence of 12 months, although the public may think that's what it is, isn't? It's a sentence of around three and nothing can be done in that time either because, with an automatic entitlement to half, you're down to six months. With prisons having the ability, which they exercise to release someone after about three months, the reality is that there's nothing practical as far as I can understand it. It can be done in relation to reforming someone or putting them on a regime. It's different if it's a solemn matter and it's years that they've been in prison for. I think that I do have a serious concern, obviously, that we do more harm than good to our young people when we hold them on remand. Let's say if they then either don't go on to be convicted or they're given a short sentence as a result of that. I suppose it really follows on from my colleagues' questions beforehand. I'd also just like to ask—it's been suggested in an evidence that more use could be made of stand-down reports where criminal justice social input is needed. Is that something that you would agree with? It depends on the court. I do use stand-down reports sometimes, and that's partly—I tied up with a request for supervised bail, which is in some ways linked, but, yes, I combined the same thing. Effectively, if we are applying the act and we do it with private statute, we are looking to admit people to bail unless the circumstances are such that we can't reasonably do that in the public interest. Thank you, convener. Good morning, sheriff. I'll be very brief, because you've already touched on this. It's the question about the consistency of support services across Scotland. Just a couple of brief points on that, please. Has your association ever commented on that? The availability of bail supervision, for instance, means that the more ranges that you have at your disposal, the better. Is that a significant impact on the consequences of being remand if bail supervision is not available? I can't comment, first of all, on what support there is in each court, because I don't have that information available. As far as being a significant influence is concerned, I'm not sure that it's very significant. If we go back to the example of the individual being told by EDAC, there's a very high risk of further offending against domestic cases. No matter how high the myriad of provisions are that you put in place, it's not going to stop the determined offender. That's through the judgment call that you have to make. It's pretty rare to find that, if only there had been an opportunity to have that provision, because we have the ability to make special conditions of bail if we believe that they'll be adhered to. If I may please go back to your checklist and sheriff that you talked about, what would the availability of bail supervision offset on that list in any way, or is it just another factor that the Presiding Judge would consider? It's usually for younger people. What it does is it keeps the provisor level of supervision that they wouldn't have. If you admit someone to bail, then nothing happens until they come back unless they've offended or something like that in the meantime. But when bail supervision, you've got someone from the Social Work Department who will be keeping an eye on them. It's usually a three-page document or a four-page document that sets out precisely what they'll be expected to do, whether to check in on a daily basis, make sure they go to interviews, make sure they go to have the social require report prepared and so on. It provides that that there's a level of supervision that you wouldn't otherwise have had. It might influence, I suppose, to some extent the question of whether you expect that the individual will be back the next time round and they will be back with the report that means that you can dispose of the case. Thank you very much. Just following on from John Finnie's question, in terms of the evidence that we've received around issues and organisations beyond the criminal justice system, not the bail supervision but other services and organisations that support the on-going rehabilitation or support, how important is it that more general services are in place, particularly to support vulnerable people? Do you agree that that's an important piece of your decision making, either anecdotally or generally, in your experience? In terms of what you said earlier about considering all the circumstances and then making a decision in the public interest? It's more a disposal question, ultimately, than it is related to the question of whether one's admitted to bail or not. Once it comes to disposal, then you take into account all the personal and social circumstances. The bail question is to a great extent a cruder consideration than that, and it is to do with public safety. As it turns out, personally, I think that the provisions in the act are particularly good because it gives us a very clear steer on what we're supposed to do and how we're supposed to apply it. Now, of course, it's open to Parliament to change what's in 23 C and put in some other provisions, take out some of the provisions. As I said earlier, those will, of course, have consequences, but that's the intention. If you change the provisions in order to adjust the number of people that might be placed or have bail refused or granted, then the consequences of that are for you and not for me. I appreciate this supplementary maybe slightly political, so if it is, I'll understand, but in order to allow more bail disposals to be made, investment and bolstering of general services required, as well as the criminal justice system, in order to provide that support to vulnerable people. Is that a policy decision rather than a judicial one? It's not really something that I can comfortably comment on. I'm sorry about that, but I don't think that I would be entitled because it depends on what you want to happen. Understood, thank you. If I could put it another way, you're here not just in the capacity of Sheriff of Edinburgh, Lothian and the Borders, but as the president of the Sheriff's Association. Are you aware of perhaps Apache, if you like? Apache is a number of alternative or suites of alternatives in the various kind of districts looking geographically that you may have certain disposals available to you, which might help decide whether Romande is the correct way to proceed or not. Other colleagues might not have the same ones. Is that problematic? I don't really think that it would make a great deal of difference if you go through the provisions of section 23C and 23B. The question is sharper than that in a way. If you are persuaded to the view that an individual cannot be trusted to be at liberty because that individual provides a danger to the public from re-offending or whatever, then it comes back to the provisions that you may put in place to try to persuade them to adhere, but— I understand. Daniel, do you want to say something? Well, thank you, convener. I recognise that some of my earlier comments were insufficiently well-tempered and, to that extent, I just want to put on the record just an apology if that was the case. Thank you for letting me do that, convener. That's completely unnecessary, but thank you very much for that. Okay. I thank you very much for being prepared to give evidence today. It's tremendously helpful to the committee to have someone that's actively on the bench and to get their view of it, which you've given us today. Thank you very much. We'll now suspend for a change of witnesses. My pleasure. I hope that it's been of assistance. We now move on to the second panel of witnesses. It's my pleasure to welcome Leanne McWilliam, President of Edinburgh Bar Association, Gillian Modsley, Policy Executive with the Law Society of Scotland and Professor Neil Hutton, University of Strathclyde. I thank the Law Society and Professor Hutton for their written submission. As always, they are very helpful to the committee. Again, if I could start with much the same question as in the previous panel, the committee is aware that the possible reasons for remanding a person in custody include concerns that the person will have released on bail, failed to appear in court, engaged in criminal activity or interfered with witnesses. Can I ask the panel, therefore, to what extent do those other particular grounds feature in decisions to remand people, those and others? Professor Hutton. I'll refer to my written submission and the very small pilot study. To call it research is probably a bit strong, but it's a pilot study that was done in a court. Those, indeed, are the reasons, along with the seriousness of the offence and previous convictions, which are regularly used by the courts to justify decisions about failing to admit bail. Would you like to elaborate a little bit more on the planets for the record? Very frequently, judges give more than one reason. One of the difficulties is if you're trying to think about why bail is not granted. Is it because of that or is it because of that? It's very frequently because of a number of reasons at the same time. Those are very often people who have significant records, who have failed to comply with court orders before, who have no fixed abode, who have breached bail and so on and have chaotic lifestyles. It's not all of them, but a significant number of them have multiple things. It's difficult to know exactly why, if there's one reason or another reason, it tends to be multiple reasons. I would seek to endorse what Professor Hutton has said. He says in his submission that it's difficult to measure the effect of any particular reason. Certainly from my practical experience, it tends to be a multitude of factors that perhaps influences one way or another. In that extent, again, I would refer to our submission when we talked about probably the majority of the cases that are clear-cut, one way or another, but the ones that you're directly concerned with are the ones that lie in the middle, where the balance could go either way. I would again echo the police's submission that, obviously, it's a breach of article 5, but that it should only be done where it's proportionate, necessary, legitimate and subject to appropriate scrutiny. Therefore, that reasoning should be the ones in which the various factors that Professor Hutton has referred to should be being able to be inscribed to. I certainly would agree that it's usually a combination of factors, and I would agree with what Ms Maudsley says. In relation to most cases that are quite clear-cut, you can generally tell if someone is definitely going to be remanded in custody, and you can usually tell if they're going to be admitted to bail. There are some in the middle that are not quite so clear-cut, but from my experience, I'd say that the main factors that would result in a remand would be someone's record of previous convictions, and that can include failures to appear and breaches of special conditions of bail previously, but, often, people appear charged with a criminal offence, and they can be on multiple bail orders already. Up to sometimes people are still being released on bail on four, five, six bail orders, and those people get to the point where, no matter what their personal circumstances, they just couldn't possibly be released on bail again. Okay, thank you very much for that. Liam Kerr. Thank you, convener. You may have heard my question earlier. Have you been concerned throughout these sessions about the lack of robust data on why bail is being refused, if I can put it that way? Do you have any view on the lack of data and what could be done? I suspect that, as the sheriff said to you earlier, a note is made in the record, and there is probably data there somewhere, but nobody actually collects it and analyses it. So we don't know whether the data is accurate, we don't know what the data is, but there may well be some information there. This little study was an attempt to try to deal with that issue of the lack of data and to try to find out what are the reasons. A larger study, I suspect, would find that in a much larger number. That is probably a fairly accurate reflection of what is going on. Can I ask you about that? I found all the papers extremely useful. I found that fascinating, the pilot study. What it suggests to me on a very small level is that the sheriffs are handing down clearly sensible and supportable decisions guided by section 23. If the committee seeks to reduce the incidence, the sheriff is quite clear that it is a decision for Parliament on section 23. Presumably, the committee needs to understand very clearly what these drivers are. If I am right on that, somebody should be collating that data and doing the study. Do you have any view on who that should be, which agency that should be, and why that hasn't been done? It's always difficult to say why something hasn't happened. So I couldn't really say why that hasn't happened. Who should be responsible for doing it? The data will be collected by the Scottish court service, as I suppose, so that they have it, whether they would not be required to analyse it by any other body. They would not be required to produce that. Do you, just sticking with the study, and perhaps if others have a view, know how much information—where a reason for refusing bail or a reason for remand for remanding someone has happened and is recorded—do you know how much information is recorded in that regard? Is there any common practice, or can it just vary across the board? I think that it varies. If bail is refused, as the sheriff has indicated, that reasons are given in open court, they can generally be quite brief just because of your record or because of this or because of that. If there is no appeal to the sheriff appeal court, then there isn't anything further done in relation to those reasons, if there is an appeal to the sheriff appeal court, which in my experience is quite often, if someone is remanded, then the sheriff will compile a report. I appear in the sheriff appeal court quite regularly and I see reports from all over Scotland as well as Edinburgh, some are a format where they will tick a box, just say risk of re-offending, schedule of previous convictions, others can sometimes give an awful lot of information going to two or three pages, perhaps when they feel that the reason to remand might need to be justified because that person might have difficulties. Part of the difficulty as well in having reliable statistics and reliable information is that there isn't the same. If bail is granted, there isn't the same unless the crown appeal is very rare, then a sheriff doesn't have to do a report saying, here's why I granted bail, that's fine bail on your go. It really focuses on the people who are remanded. I expect that, because a lot of those cases are appealed to the sheriff appeal court, it might not be too difficult to get some more information about reasoning behind remands because I've certainly seen countless reports by sheriffs who are justifying and most of them have enough information in them so that they can clearly see their reason. Do you take a view, then, for us as a committee going forward? Do any of you feel that it would be a good idea if sheriffs were more closely guided so that they would have to give reasons and what the extent of those reasons should be? In the same way that we heard from the sheriff this morning, I have section 23, I go through that, I'm very clear about what I'm doing and why I'm doing it, do you think that we should be considering asking for the reasons to be very clearly set out and why they've come to their decision? I was going to say that I think the point is that I think the reasons are quite well articulated in open court. I don't think, I mean I agree with what Ms McQuillan said, that it will be stated by the sheriff or the judge because you must remember the extent across the judiciary, so you've got JPs making decisions in this as well, which is a factor, but it will be well articulated, I think, in open court because just for fairness to the accused if you're going to be remanded. I think that one of the problems is the correlation of statistics, so everybody has the information that you want, but it's not put from the person that's been remanded to the prison that you're not getting the statistics, so I think there's a tie-up with the criminal justice, not so much that it wouldn't be articulated but perhaps not recorded in a fashion that you can then see this person's journey through the court. I was just going to mention one other thing if I may, in my preparation for this, I found that in England and Wales there was a European Commission part of 10 countries on the practice of pre-trial detention in England and Wales. I was a search report that was reported from the University of the West of England in Bristol by Ed Capes. I will bring this to your clerk's attention, but that has got a lot of the research, Mr Kerr, that I think the methodologies of going to court gathering. I think that that document could be a useful document because it translates across. It's obviously divided, so I had discovered this last night and was going to suggest that, if the committee weren't already aware of it, that might be a useful document for you to be aware of because they have looked at a number of those provisions as part of the European Commission roadmap, and that might give you some of the methodologies that you're talking about. I think that that would be very useful, if you would. Asking judges to record the reasons for giving bail and collecting that data suggests that there's a feeling that the judges are not making proper decisions, that somehow they're making decisions without justifying them properly. That little research suggests that judges can find plenty reasons under the act for remanding people in custody. They don't do it lightly, I don't think. I don't think that they try to keep people out, of course, as best they can, but when these multiple reasons come up, there'd be no problem in judges finding many reasons to justify not granting bail. I'm not sure what you would gain by having that in those reasons given more publicly. Can I just say that the committee has no preconceived opinions on this? We are aware that the amount of remand is going up and increasing, so we're trying to delve into why that should be, and we're certainly not making any decisions about any judgment on the judicial's decision. It's to try and tease out what's available to the judge on the day. Would it help to try and reduce the number of prisoners currently remanded in custody? I'm not sure it would. That's why. In the previous session, I was asking Sheriff Lidl about decisions being taken with regard to women offenders. I was encouraged to hear that children and family are taken into account when it comes to remand, but notwithstanding the number of women being taken into remand is increasing. It's probably at an all-time high. Ms Modsley, you say in your submission that it's not known why. Do you have any kind of ideas beyond that? It's something that's obviously quite a serious issue. If you think too many women are being held in remand. If you look at the straightforward statistics, usually the number of women, if you like, convicted is less than men. If you equate that back to the proportionality, it tells me that, from the numbers that have been quoted, a number of women are being remanded. I suspect that, when you break it down, there will be multiple reasons why they're being remanded. Perhaps what Mr Curr has talked about, the breakdown of the reasons, would help to shred some greater light as to the reasons. I myself don't know. I mean, I have gone to Cônton Vale, I have met people on remand. I'm not sure why that should be the case, but I can certainly see where women have mothering duties and it's very clear from families outside and all their work just the dramatic effect on the family. I think the only thing I would say against that is what victims support. Obviously, you have to look at the other side of the equation, and decisions shouldn't be directly being influenced by, if you like, the sex, but clearly there are other family circumstances. I think that, possibly, Mr McClellan, I will have more direct recent experience in myself and may be able to assist. I don't know why the number of women being remanded is increasing, because, certainly, although, as Sheriff Little said, it's being a mother with children, it's not a get-out-of-deal free card. In my experience, I don't see females being remanded regularly when I think it's unfair. Some, obviously, females offend a lot less than males, but certainly my female clients tend to have an awful lot of issues, they tend to have mental health problems. To be honest, if one of my clients still has the care of her children, she's unlikely to be in a position where she's going to be remanded, because most of my clients, when they get to the point where they might be remanded in custody, they've lost the care of their children quite some time ago due to chaotic lifestyles, offending, bad relationships, drug habits, mental health problems. The women who offend regularly tend to have a lot more of those issues than men, I would say, but I don't know why there are more women being remanded. Does that not suggest that, from the checklist, are these women a danger to the public? Does that not suggest that more support is needed for them? There is a lot of support in Edinburgh, but I don't know about other places. There are some really good projects in Edinburgh, such as the Willow project and things like that, that are really good for vulnerable women. Whether they are a danger to the public, I don't know, but that's only one factor. As I said earlier, I was thinking of one particular client of mine who has been released on bail multiple times because she has so many issues in her life. She constantly re-offends, she gets given opportunity after opportunity, and it's not high-level offending, it's nuisance offending, it's disorderly behaviour, but I suppose if that's your neighbour or if you live in a street where someone's alcohol issues and she might get drunk and cause a disturbance, there's only so long, although she's not a danger to the public, but it can be a real nuisance and real disruption for the public. The fact that she's repeating that behaviour suggests that Rhamanda isn't helping. Well, she actually very rarely ends up getting Rhamanda, so she gets bail. I find generally sheddiffs that are very sympathetic to people with problems, and things like supervised bail. I don't think that she's ever been on supervised bail, but she's got lots of support. Even then, there's sometimes we can have all the support in the world, but it just doesn't work. As you mentioned the Willow Centre, would somebody on Rhamanda be, or as an alternative Rhamanda, be able to access the Willow Centre or would it be an alternative to imprisonment? It's a voluntary service that a lot of women access just because they want help, but often when a sentence goes to deal with the case finally, it may be a condition of a community payback order that the lady continues to engage with the Willow project. They're very good at providing reports or the sheriff could defer sentence to and one of the conditions of a defer of sentence is to engage with the Willow project. It's not particularly an alternative to Rhamanda, but in making a bail application we would tell the sheriff that this lady goes to the Willow project, sometimes someone comes along, occasionally we might have a report from them from a recent case that we can give the sheriff, so it is relevant to the question of bail, but it's not a bail condition kind of thing. So there is some latitude within the conditions to sort of get into a bit more detail of what conditions could be put in place, what kind of go to the Willow Centre or attend something else depending on the services. Is a criminal justice social work report always available? No, the criminal justice, sometimes we will have a recent, just because the person has had a recent case, we will have a criminal justice social work report, which is maybe a month old or something, and we might, if we know the person is going to be appearing from custody, we might make arrangements to have a copy of that so that we are fully aware of the woman's situation and we can sometimes give that to the sheriff as well, but this is really just an extra thing that we can do to try and make sure that the sheriff is fully aware of all the circumstances and those reports will wait reference to any agencies that the woman or the man, as the case may be, is seeing in how they're getting on with that. I make reference to the criminal work social work, because again in the recent submission from the senators of the College of Justice, they say that they are in attendance in the sheriff court and may be available should the high court request their attendance, and that's the same position in Glasgow Livingston and Aberdeen, but the situation makes access to information and options in respect of bail or remand more difficult to achieve. Certainly when I first started appearing in Edinburgh, there was always a social worker present in court, present in the custody court throughout, and if a criminal justice social work report was called for, they would make notes to be involved in that. They wouldn't particularly get involved in the decision of the sheriff, but sometimes they might have information. They changed that quite recently. Before coming to give evidence, I spoke to one of the social workers who was based in Edinburgh Sheriff Court. The reason for that is that they felt that their time could be better spent doing other things, although they are available. If asked, they can come down to court, but they are very rarely there now. They are in the building. The report would be available, most certainly, and that would presumably contain information that might help the sheriff to look at the conditions that were appropriate. A criminal justice social work report will only be called for once the person has been convicted. There will not be an actual report unless, as I said, we happen to have one. The defence solicitor happens to have one from a recent case, which could be of assistance, but that is not an official way forward. The issue of stand-down reports is, again, its post-conviction. Pre-conviction, there really isn't very much information available from the social work department unless the defence solicitor happens to be aware of it. Maurice Cawthorne That question, if I may, convener. Mr Cullen, would it not be sensible that that information was available to assist the sheriff in his deliberations to get a more accurate view of that person? Clearly, we are hearing that mental health problems, for example, are featuring more greatly and probably not being understood. I suppose that it is a logistical and practical issue. In Edinburgh, the custody has gone down recently because of the new act, but prior to January, there can be 30-plus custody's a day. Not all of those will have a problem with bail, although a lot of them will not be opposed. However, to have that information available for everybody would be really difficult. A lot of the time, the sheriff depends on the defence solicitor to advise them of the situation, but our information can be outdated as well. It is often difficult to get a clear picture from and accused to perhaps not in the best frame of mind when they are in the cells and they are being told that they might be getting remandered in custody. The Crown obviously has a decision whether to oppose bail or not. I know that the sheriff ultimately makes the decision, and it does not really—if the Crown does not oppose bail, the sheriff can remand, but that very rarely happens. It is very rarely exceptional. I have thought that the procured fiscal in court is not the person who has made a decision as to whether to oppose bail in the case. The case is marked sometimes in a different city, in a central marking hub, or at best upstairs in an office, and the papers come down to court and the fiscal just right says bail opposed, bail opposed. Sometimes defence agents try to speak to the procured fiscal and say, look, this person has got these mental health problems, they have seen a psychiatrist, I have got this report, any chance you could change your mind and not oppose bail. Years ago, the procured fiscal in court felt that they had a discretion. I would say, okay, that's fine, or they would speak to someone else. Now, they feel, whether or not it's the case or not, I wouldn't like to say, because I don't want work for Crown office, but they feel that they have no discretion and they say, no, I'm opposing bail, and then you have to put the position to the sheriff, and the sheriff may or may not grant bail, but if the Crown felt they had a little bit more discretion because we can give them information just while the court's adjourned, we can have a chat and say, this person's really, I know they've got a bad record, but they've gone through this, they've got children, and they can change their mind, but I think the perception is that they don't want to get into trouble if they do change their mind. I would just like to sort of principally address this question to Neil Hutton. The reason that we are looking at this is in terms of the aggregate picture, where in terms of the average daily prison population, 18 per cent of the prison male population are remand prisoners, as opposed to convicted prisoners, and likewise, 24 per cent, certainly, in figures from 1617. That coupled with the evidence from the Prison Reform Trust that the proportion of prisoners on remand in Scotland is higher than England and Wales, those things combined lead us to conclude that we are doing things differently in Scotland, but that is a very high proportion given that a significant number of those prisoners won't be given custodial sentences or even found guilty. Is that reflection a correct one, given what you were saying earlier about if we had more data, it might not show us anything or point to any areas where we might be able to reduce the levels of remand? I was on the Sentencing Commission for Scotland, which we wrote a report on bail remand when was that, 2006, a long time ago. I don't think that the situation has changed a great deal since then. If you ask why we are greater than England than Wales, if we are, it is not by much. There are other European countries who manage to make use of remand less frequently than we do. I am not quite sure how they manage that, but I suspect you will find that the countries where they make less use of remand will also make less use of imprisonment generally and they will have a greater proportion of their domestic product spent on welfare than they do on corrections on the criminal justice system. For this Scandinavian country, for example, there is not a simple easy answer. We will take this policy and transfer it over here. It is a matter of long histories of cultural change that has been going on in different places. I am rambling answer, but this is a very tricky problem that you are dealing with here. It has been around for a very long time. The legislation, the way in which it is set out, gives judges lots of reasons why they should not grant bail. As the sheriff said to you before, if you wanted to change that, it is for you to look at those reasons and say, are there any of those reasons in particular that you would like to downgrade and say that they are maybe less important than we used to think they were? To follow on questions from that, given the aggregate data and the comparative data, do you think that it is correct to be examining whether or not we are overusing remand? I suspect that the current Government is trying to reduce the use of short prison sentences, and the two things are very closely related. Very much the same people who are remanded in custody are of a similar group of people who are getting short prison sentences. We use short prison sentences in Scotland disproportionately more frequently than in other countries. It is the population of people who want to interview sheriffs when there was an evaluation of the community payback order when it was first introduced. I managed to get a few questions in there to ask sheriffs what did they mean by prison being a last resort. There were only a couple of questions and there were 24 sheriffs I interviewed, so again it is a small study. There were two groups of offenders, one which I called willful non-compliers and the other feckless non-compliers. The feckless non-compliers are people who simply cannot manage to comply with orders for one reason or another. For whatever reasons their lives are so chaotic they simply cannot comply with the orders of the court, whether it is a community payback order or a bail order or a licence or whatever, they just keep re-offending, breaking bail and so on. Giving them an order with more conditions is not going to help because they just cannot seem to comply with them. The others are willful, people who just say, I am not doing it, I am not going to turn up. Willful non-compliers. Ultimately the court then has to say, well this is a court of law, it is not a welfare institution. There has to be an unavoidable consequence at some point and so prison is the unavoidable consequence that happens for that. Those are not necessarily always two distinct groups, they may well overlap from time to time. That is the complexity of the problem and I think it is the same for short prison sentences as it is for the decisions about remand. It is what we do with people who will not comply with orders. What can the court do? Julian Modsley, do you want to come in? No, no, no, no. Can I just ask one final question? My concern and the last evidence session was about the consistency of record keeping and how it is ability to be interrogated. The reason I am concerned about that is whether or not the decisions are being made consistently or not. Given your work and the insight that you have into that, are you confident that those decisions around the granting of bail or otherwise are being made consistently in the courts? I cannot answer that because there is no benchmark against which one might compare practice. Even if you had the data, we would not have a benchmark against which to compare practice. What does consistency mean? Consistency means that our judge is complying with the legislation accurately or something like that. According to this little study, judges are using reasons that are legitimate and lawful. It is very difficult to say whether they are being consistent or not. Anecdotally, you can speak to people who know who are more familiar with the day-to-day in the system, and they might have different and anecdotal answers. Liam McArthur, a supplement. Thank you very much, convener. Good morning. I am interested in the responses that you have given Professor Hutton to Daniel Johnson. One of the things that has changed since 2006-07 is that crime levels have reduced and, therefore, I suppose that it has thrown into starker relief what is happening in relation to remand. Obviously, we are being told that all the evidence that is underpinning the argument of extending the presumption against short prison sentences is the same sort of evidence that underlies the concerns around increasing remand. The process of re-offending is more likely on the back of the short spells in prison. On the basis of that, on recognising what a naughty problem it is to unravel, what would you say is a correct policy response to that? It is all very well said that there are quite chaotic lifestyles there, and it is not for the criminal justice system to try and unravel. I think that all of us accept that. However, you may not be bound by the same strictures as the sheriff previously, in terms of what you can comment on. However, where are the policy remedies in that? This is a criminal justice issue that we are dealing with. It is not in the sense that we are talking about decisions that are made by the courts. Could the court's decisions be different? Possibly, the courts could be more tolerant, more patient of people who do not comply with orders, but how that is going to work is very difficult to see. For example, I am talking to Sheriff's, they would say that I am very sympathetic, I know that this person is very likely to not turn up for their supervision, but if I give them a community payback order so that they do not turn up for their supervision, that means that somebody in the social work has to go and find them, write a report about them, come back. If I give that person a community payback order, I am just creating extra work for somebody else to do. It would keep the person out of prison, we would get them out of court, but is that in the public interest to have social workers chasing up people who I know are not going to comply with orders? Is that a good use of their time? If the evidence is suggesting those short stints in prison, whether on remand or whether under custodial sentence, as a heightened risk of re-offending, the counterargument is that the alternative to this rather unsatisfactory situation is even more costly and negative in terms of public interest than the alternative. The other thing is that we have very strict guidelines for what happens if you breach an order. There is very little discretion left to community payback supervisors or social workers, if people do not comply with orders. In times past, we might have trusted their judgment and said that, if somebody has not turned up, they have not got a really good reason for that, but they are trying the best to comply with the order, but they mess up and give them another chance. It is harder to do that now when they tend to come back to court more frequently. In our efforts to try to make community payback orders appear to be tough sentences, which have a consequence for people. The downside of that is that, if people fail to comply and apply those conditions very strictly, they are back in court again. I would like to cover a couple of other areas that I raised with our previous witnesses. I wonder whether any of you had any sort of information as to the success of appeals against those who are being held on demand. By and large, when the High Court used to hear bail appeals, they would not be granted routinely, but they would be granted. The problem is that you do not go into an appeal and say to the judge that this person should have got bail. You have to say that the original decision-maker was in error. The judges have a wide range of discretion and, although the judge sitting on the appeal may think that I would have given the person bail, you have to point to an error in the original decision-maker's reasoning. Generally, I think that sheriffs, when they do remand in custody, justify it fairly well, and it is difficult to point to an error. Occasionally, people will be released on appeal, but it is certainly not the norm. The Crown occasionally peal against people being granted bail. I find more and more that the Crown appeals are being upheld, so those people are being remanded in custody when sheriffs were granted bail, but that is just from my day-to-day experience. The sheriffs are good at justifying why they remand people, because I honestly do not think that sheriffs remand people lightly. Thank you. It was really useful to get that information. Do any of you have any information as to how we compare with other countries in terms of the populations that we have on remand? I do not have numbers with me, but I suspect that, from memory, we do remand more than many jurisdictions, many European jurisdictions, as we also use short prison sentences more than other European jurisdictions. I just follow on from my colleague Rona Mackay's questions that she raised earlier about women who are being held on remand. One of my concerns is also about the numbers of young people that we have on remand. I do not know if we have quite high numbers of young people who are held on remand. As I was saying in the last session, I am concerned that we do more harm than good, especially with young people who are held on remand depending on where they are held on remand and the impact that that can have on their lives. I do not have information about that, but I share your concerns. Poelment is a bit of a shock for some of the young boys who go there. I think that they go round Edinburgh and they cause trouble and then they go into poelment. I think that sometimes they do get the shock of their lives and that can sometimes be a good thing for certain people who maybe just need a little bit of a fright, but it can also have them mixing with a lot of—because it services a wide geographical area—there are people from all over central belt in poelment. They have gone from a 16-17-year-old to think that they are an adult and they go in with some of those people who are in some serious trouble and I think that they do find it very much a culture shock and some of them probably should not be there. However, having said that, there is a problem in various areas of Edinburgh with certain younger boys, particularly who do constantly re-offend. You can see some 17-18-year-olds who have already got more than one page of previous convictions they are on bail and I think that the courts do take account of their age when making a decision to remand them, but there does become a point when they really do not have much choice. I think that that goes back to some of the issues that we were talking about earlier, too. It is just the fact that, well, why are they carrying out that behaviour? What is it that is happening in their own lives that leads them to that point? I do just think that by imprisoning them, because what would the average day of remand be, are we doing more harm than good with them there? Especially if they are putting the likes of poelmont rather than a residential secure facility where they have at least access to proper care and education during the time that they are in there, where they can start to address some of the problems that have led the young people to that point in their lives? Most of them certainly do have—it is very rare that a child who does not have any problems in their background just goes on this massive crime spree—most of them have got multiple issues and they are only children. I agree with that. I think that the places that they have in secure units are limited and they tend to use those for under-16s who cannot go to poelmont and there are still, unfortunately, some under-16-year-olds who end up being remanded to secure units, but it certainly can cause more harm than good. If it is a summary complaint, they will only be there for a matter of weeks. I would say that it is more likely that a young person will be remanded if they appear on petition. It is a lot longer of a remand period, but because they are still presumed, if it is pre-conviction, they are still presumed innocent, so they are not really the educational opportunities that there may even be if they are in poelmont as a convicted prisoner. I think that some of them think that it is all a great laugh for a while and then they realise that a few years later they might say, I have wasted so many years just thinking that it was great fun going to poelmont and I am missing out on school and education. I think that it should be avoided, if at all possible, but sometimes, if someone is on multiple bail orders, there are not very many alternatives. John Finnie? The Sentencing Commission for Scotland just started preparing a guideline on the sentencing of young offenders, which should outline a new policy for sentencing young offenders. I have forgotten we had a supplementary. Liam Kerr? Professor Hunt, just on the point that you made about we remand more than some European jurisdictions, and I accept that you were not basing that on data in front of you, but two questions on that. Why do you think that that is the case if our remand decision or refusal of bail is an objective decision based on criteria in section 23? Is it that our legislation is more prescriptive? Is it more robust? The second part of that question is, do you think that we remand more individuals or do we remand the same individual multiple times? That could well be the case. It could well be the case that there are multiple, the same individual being counted several times. I do not know why remand is less. Again, I suspect that there are probably different services and options available in other jurisdictions. I mentioned to the sheriff about bail supervision, and he clearly outlined the criteria that the sheriff required to consider in relation to bail. We have heard from a number of witnesses about concerns about the consistency of the availability of services, particularly bail supervision. Do you share those concerns? Do you have a view on whether that inconsistency ultimately affects decisions on bail and therefore remand? I can only speak for Edinburgh where we have bail supervision. We used to have sacral bail, which was quite widely used. I was always referring people to be assessed for sacral bail. One service that they used to provide was a bail hostel situation, because often someone is homeless or they are staying between addresses and just staying with friends. Sacro used to provide a service that they could get a bail address through Sacro, but they do not do that any more due to the lack of funding or lack of services. They now have a supervised bail scheme, which I think is still a little underused in Edinburgh. I think that there is maybe a bit of lack of awareness, because I asked some of my colleagues before coming here when was the last time you referred someone for supervised bail. I think that maybe it could be used a bit more. Defenselessers can refer people, sheriffs can refer people, which happens rarely, and procurator ffiscals can refer people, which happens even more rarely. The problem with that and it can help some people because one of the aims is to try and help people to co-operate with turning up at court and turning up for reports. One of the criteria is that you have to have a stable address. One of the main reasons for failing to comply with court orders and turning up and so on can be a chaotic not having a fixed address. That is a limitation. I am not sure that it might help some people to get bail, but there are certain people who, if they could be assessed as suitable for supervised bail, the sheriff is still not going to grant them bail because the negative points outweigh the fact that they are now suitable for supervised bail. I do think that there is certainly not a capacity in Edinburgh because I asked the social worker and they could take more referrals. Can I just ask on that point, then, as a defence solicitor? Is that something that you would make to the sheriff prior to the decision that you have taken on granting her otherwise of bail? I think that if there were somebody in custody who the crime were opposing bail and respect of and who I thought were particularly vulnerable, it might be a female or perhaps someone with mental health problems, although one of their criteria is that they cannot take someone who has got two serious mental health problems because they have to still be able to comply the supervision is quite onerous. It starts off, I think, three times a week, but I would go to the social work department and ask the social workers to assess the accused there and then. If they are assessed for suitable for supervised bail, then, when you applied for bail, you would say to the sheriff, I have a supervised bail report and they are assessed as suitable for that, and that would be a factor that the sheriff would take into account. Forgive me, I know the other panel members. Is that something that you would understand the Crown would do as well? Would they make a similar reputation? It can do, but they don't. My experience was Glasgow, again a big city with a very busy court, and the Crown just wouldn't have the time. I was a procurator fiscal deputy and it wouldn't have the time of the number of custody's to have detailed, if you like, referral, but what they would do would be if somebody was in that category where there might be background. There used to be availability of social workers in the court and there were certainly a number of projects like 218 comes to mind in Glasgow. I think that across Scotland there are different projects that are different, and I think that the sheriff is just as the sheriff alluded to. He will be aware of them in their area more collectively as part of judicial education. I am fully aware that a number of those initiatives are talked about and used in judicial training. I think that what is not available—and this is a personal opinion rather than professional—is that all the good practices across the country, all the initiatives, nobody is actually looking at them all together and saying, what is good here, what is good there, and trying to develop a model. I think that that is possibly a role for the community justice organisations, and it is obviously a big and perhaps that is something. I think that the provisions are there, and I think that there is evidence that supervised bail, and I referred to community courts in the background of alcohol and drug dependence, where people are going through the system, where sheriffs are developing relationships and being able to encourage and support. There is a lot of very good work, but perhaps it is not always being spread about, if that is at all helpful. The research evidence suggests that bail supervision schemes can make a very modest difference to the use of remand, but not a huge difference. One of the reasons for that might be that judges will use supervised bail where they would use bail anyway and not use supervised bail instead of remand. It is the same with introducing community penalties as alternatives to imprisonment, and judges are very keen to use community penalties and use them in Scotland much more than they ever did before, but they still use prison to roughly the same extent as they always have done. The community penalties have not replaced prison sentences, and that is the issue with supervised bail, as well, I suspect. Gale Fulton, supplementary. I was going to be a bit of a bit of a following on from that point. Leanne McWilliam, you mentioned earlier that you know when somebody is going to get remand, or not remand, and then there is that sort of gray area. Do you feel that bail supervision is just using the gray area, or are you finding that it is more and more used when somebody would have been more likely to get remand? Or, in conversely, are there situations arising where people would get bail supervision, where previously they might have just got normal bail, and that actually came up in a previous session as well? I think that, certainly in Edinburgh, and I practice mainly in Edinburgh, but I think that bail supervision is definitely underused, so there aren't very many cases where there's not a situation where every day there's three or four people being assessed for supervised bail. It's not used that often, but I think that there could possibly be a situation where, because you see their bails going to be opposed before the case calls, I might think, right, I'm going to get this person assessed for supervised bail. Now, that person might have got bail anyway if I had explained to the sheriff the particular difficulties, so they might be getting supervised bail as an extra layer on to what they would have just got ordinary bail. I don't know if that's a bad thing because it will give the person a bit more support, but I don't think there would be very many people who, if there might be some people who are on the cusp of being remanded and the supervised bail might just tip the balance in favour, and some sheriffs are more kind of more amenable to things like supervised bail, but someone who has a terrible record for violence in my experience wouldn't be assessed as suitable for supervised bail anyway. Okay, thanks. And Ben. Thank you, convener. Before I ask him a substantive question, I just want to go back to some of the responses to Mary Gougeon's questions around youth offending. I think that, as MSP for Edinburgh Northern Leith, there are some difficulties that we have in this city, particularly around dangerous and anti-social joy-riding of motorbikes. Is that not a good example of how the community safety versus—sorry, not versus—that's very adversarial, but balanced with the considerations around trying to use alternatives to remand is quite an acute example and quite a meaningful one. Anti-social riding of motorcycles in recent years has become a real problem, and young people are appearing on petition for some horrendous examples of dangerous driving. Yes, because they can be given bails so many times, but because at the point of bail it's not like a post-conviction where sheriffs have a lot of choices of community payback orders with various conditions, drug treatment and testing orders. There are all sorts of options available to a sheriff post-conviction. There aren't the same as available pre-conviction. Some of those young people might fall into the category of perhaps willful non-compliers with court orders, which is a bit of a problem. Usually, they will be given bail, and if it happens again, they might look at a curfew or something like that. Overuse of special conditions bails is one thing that might have something to do with increased levels of remand, but, for example, a 17-year-old on a curfew is probably going to breach it, and then they appear for breach of curfew, and once they appear for breach of bail order, they are much more likely to be remanded. If there was electronic monitoring, that would be one thing, but at the moment, it relies on the police to go round to the house in the middle of the night and bang on the door and check that the person is in. They might have young siblings and mum and dad who have got work in the morning, so it's a problem. The antisocial behaviour is a problem that we have specifically in Edinburgh with the young people. I just thought for the benefit of the committee that it might be worth others hearing that, because my experience as a constituency relates to many of the points that you raised. Going back to my substantial question, convener, I note, Professor, that you very pertinently say in your evidence that offenders are likely to have chaotic lives characterised by combinations of alcohol and drug addictions, homelessness, unemployment and mental health problems, and that the court is, in fact, being asked to apply criminal justice solution to a problem that many would see as a public health or welfare issues. Similar vein to the question that I posed to the chair of Lidl in the last session, given that the committee has received evidence arguing that significant reductions in the use of remand would require action beyond the criminal justice system, for example ensuring that general services are in place for vulnerable people. Is that a position that you support or have anything that you would like to elaborate on? Personally, I would support that, but I'm here to answer questions about the criminal justice system. I think that the criminal justice system still has to respond to those people. As you just said, to the willful non-compliers, there has to be some kind of criminal justice. It's an order of the court. Sheriffs would say, well, you simply cannot let people go on and on and on, not complying with court orders. So much as I would like to say, as there are welfare solutions, I'm sure there are welfare solutions that would be around, there's still going to be a criminal justice issue to be decided as well. I would wider focus on how the criminal justice system dovetails with those general services if we're looking seriously at trying to reduce the use of remand or not granting bail to put it there. I'd go back to the point that I made earlier. If you look at the big picture that jurisdictions that spend more money on welfare tend to spend less money on criminal justice and vice versa, so it's a question of shifting, a cultural shift in the jurisdiction. My personal opinion is that the Scotland over the last, I mean I've been around a long time, at the last 10, 15 years, things that are a lot of positive signs in Scotland. So I'm not negative about this or pessimistic about the potential, but these are very difficult problems. I think that there are ways in which they can be addressed, it'll be a slow process but I'm not pessimistic about it. Okay, thank you for that. Any other witnesses want to respond to that point? No, I mean it's obviously part of a much more complex problem and I'm already aware in a lot of judicial education etc. The question of health and indeed has been linked into the question of poverty which links into social welfare and links into all these problems. So I know certainly from my experience there that these are aspects that are very fully addressed in education and obviously education of the judiciary is one of the aspects that would relate to decision making and justification of decision making that you've been looking at earlier. Thank you. That concludes our questions, but I just wondered before you go if there was anything that we haven't covered that you might want to say to the committee in relation to this whole subject or have we really covered everything now? I wonder if I could say something a little bit more about special conditions of bail. In recent years generally special conditions of bail are used a lot more. Often in the domestic context and I've mentioned curfews and the problems with curfews it's easy to breach a curfew and once someone starts breaching bail conditions then their bail will automatically be opposed and they are unlikely to get bail. As far as special conditions of bail and domestic circumstances are concerned and Sheriff Lidl mentioned that there is often somebody from EDACS in the court who can give a bit of information about that and often it will be entirely appropriate to impose special conditions of bail in domestic abuse cases but there are cases where the procurator fiscal will automatically ask for special conditions of bail in most cases but if I'm just using domestic abuse cases as an example and sometimes it's a situation where a couple have been married for 25 years, they've got children, they both work, say the man's offender and he has no record, he has a job and he appears from custody and he's told by the solicitor you need an alternative address and he might think I don't have anywhere to go but he'll probably say oh I'll go to stay with my mum or I'll go stay with a friend so he'll give another address, the conditions will then be imposed, now it could be if it's a serious defence of violence then absolutely but it could be a situation where there has been an argument, it's got out of hand, a neighbour's phone, the police and all of a sudden both the male and the female are in a situation where the man can't contact her, he can't go home, he can't get his clothing, she's maybe thinking I didn't want this to happen, I just wanted, I just, it was an argument and then so she might text him and say look just come round and we'll sort it out so he goes round and the neighbour phones the police and he has breached bail and then becomes a situation where bail will be opposed. Now this is from somebody for somebody who basically has no record, he might have a good job, he might be a breadwinner in the family with children and I think that that sort of situation can cause an awful lot of problems because sometimes in a situation where people breach bail and absolutely they should immediately be remanded but sometimes it's not as simple as that but I think because of certain policy issues in Crown Office bail will be opposed if you breach a special condition of bail and sometimes the complainer, it could be the lady, it could be a man, might be in court and might want to speak to the procurator fiscal and say look I'm not, I don't want this but nobody will speak to her and even if they do speak to her and she said and she's quite clear that she does not want this situation to happen they won't listen because it's public interest which a lot of time absolutely yes but sometimes I think it's maybe a little bit unnecessary and it can cause people who shouldn't be getting remanded to be getting remanded in custody. I think we came across the same problem when we looked at the Crown and Procurator Fiscal that sometimes where they would maybe like to use their discretion for some reason they don't feel able to and it is something in the context remand that we can also keep in mind and kind of I think that's definitely if the procurator fiscal felt they had more discretion I think that would have an effect that just my personal view but I think it would have an effect on the number of people being remanded. That's very helpful. Anything else that anyone would like to add? Yes. Very briefly I mean I obviously reflect in the 2016 act which we understand is reducing the number of custody's at the moment now whether that continues but I think it will be interesting the work of your committee in this area to look at the effects of things like investigative liberation etc as that goes forward so I would just mention that point the second is to endorse what's been said about addresses that was one of the problems certainly when I was a deputy fiscal of the fact you've got to have a bail address and what are you going to do about it in a busy custody court if there isn't an address readily available the cases were continued without plead the following day to try and get a bail address and I would hope that that's not such a problem as it used to be but it was certainly one reason I would say that we had to oppose bail because we didn't have an address and the third thing is I reflected again on this English and Welsh report and I think there are just one conclusion that I would draw to the committee's attention it says in the same courts depending on the particular day of the court hearing this is talking about the practices it says there's a lack of sufficient bail hostel places lack of routine monitoring of compliance with certain bail conditions and timely reporting of breaches and that was tied to the consistent provision of information so that was some that these were some of the conclusions and I will obviously send a report in that might be useful because they seem to reflect much of what your discussions have been today that that would be helpful just on the bail address did you did you say or someone say in the past sacro could provide an address before and that's no longer the case that's no longer the case and I know that in Glasgow they had the Hamish island centre which was essentially a bail hostel which is still there but it's just a homeless accommodation now so the court where the social worker could get addresses for people who bail wrote if bail was only being opposed because they didn't have an address that's not something that we have anymore and I think that would make a difference if there was that's helpful and anything you'd like to ask professor well can I thank you very much that's been an excellent session thank you all for attending we'll now suspect oh no we now move into private session and our next meeting will be on Tuesday 20th of March when we'll take further evidence on romance so I now suspend to allow the witnesses to leave and the public gallery to clear and to have a five-minute comfort break