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Prosecution service reviews bail procedures

11 July 2012

A review of bail procedures in Scotland has been undertaken by the Crown Office & Procurator Fiscal Service, covering its approach to opposing bail in criminal cases.

The focus of the review is to ensure that protection of the public and victims is the paramount consideration, but also to manage risks such as the accused absconding or not turning up for court hearings.

Commissioned by the Solicitor General for Scotland, Lesley Thomson QC, the review was carried out in May this year. It has resulted in new guidance for prosecutors, contained in a confidential "Bail Manual" issued for use by lawyers in COPFS and prepared with assistance and input from the police, Scottish Government and victims groups.

Following the review, the four key principles for the Crown to oppose bail and to assist the court with bail decisions are:

  • Public protection and personal safety. In this category the risk the accused poses to particular victims or the public in general is the paramount consideration. This will apply in particular to cases of violent, sexual offences and other offences against the person such as domestic abuse and stalking.
  • Public protection. Relating to offences that impact on the public and communities, this category includes offences that have both a direct and indirect effect on communities and the public, including drug trafficking, public disorder and housebreaking. The risk of reoffending which could cause harm to others and the public is the critical assessment to be undertaken for offences which fall within this category.
  • Propensity to reoffend. This category includes offences which have direct and indirect impact on communities, including economic impact. Offences which often fall into this category include offences of dishonesty such as shoplifting and car theft. The level of risk of reoffending is the critical assessment to be undertaken by the prosecutor when considering the question of bail for these types of offending.
  • Propensity to breach court orders/risk of absconding. The risk the accused poses relates to the bringing of the administration of justice into disrepute, due to delays in court hearings causing distress and inconvenience to victims and witnesses. Disregard of orders of the court has the potential to undermine the due administration of justice and public confidence. The level of risk of reoffending and failing to co-operate with the criminal justice system are the critical assessments to be undertaken when considering bail.

Guidance

Ms Thomson said: “The prosecution service has a responsibility to protect communities from persistent and dangerous offenders. Our new bail guidance will ensure that our decisions to oppose bail, and have an accused remanded in custody, continue to be fair, considered and consistent across the country.

“We cannot predict or prevent offences being committed but can oppose bail wherever there is a potential risk to victims, witnesses and the public at large.”

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