“Sometimes people are remanded in custody because that is the only safe thing to do, but often remands are the result of lack of information or lack of services in the community to support people on bail. If judges are to avoid these unnecessary and costly remands, they will need nationwide speedy access to information during bail hearings, and they need a wider range of bail options nationwide.”[1]

• When a person accused of an offence first appears in court, a judicial decision will be made whether they will be released on bail or remanded into custody. For many people, being remanded into custody is their first experience of prison.
• Although a small minority (10%) of remand prisoners have already been convicted and are awaiting sentencing, the majority (90%) of remand prisoners are awaiting trial and thus have not been found guilty. This briefing paper will focus exclusively on those untried remand prisoners who, since they have not yet been tried, must be presumed to be innocent.
• The Covid-19 pandemic has seen a significant rise of remand in Scotland, with the delay in trials causing the remand prison population to climb from 982 to 1,753 between April 2020 and April 2021.
• By the end of that period, close to 1 in 4 prisoners in Scotland (23.9%) were on remand, and 42.6% of young people aged 16-20 in prison were on remand.

1.   Statistics of Remand

On 14 February 2020, before the pandemic began to have an effect on prisons in Scotland, the prison population stood at 8,027, and the untried remand population at 1,293 (16.1%).

In the early months of the pandemic, both the overall prison population and the untried remand population reduced, for instance to 7,339 and 982 on 10 April 2020.

However, by 12 February 2021, the untried remand population had increased to 1,747 (23.6%) out of a total population of 7,394. 

By 30 April 2021, the total prison population had reduced slightly, to 7,323, while the untried remand population had increased slightly to 1,753 (23.9%).

During those 14 months, the untried remand population thus increased by 35.5%.[2]

A.  Untried Men

Men make up 96% of the entire prison population, and the same proportion of the remand population.

On 14 February 2020, the male untried remand population stood at 1,217 (15.9% of the total male prison population of 7,639).

One year later, on 12 February 2021, the total male prison population stood at 7,103, and the male untried remand population at 1,672 (23.5%). 

By 30 April 2021, the total male prison population had reduced slightly, to 7,042, while the male untried remand population had increased slightly to 1,681 (23.9%).

During those 14 months, the male untried remand population thus increased by 38.1%.[3]

B.   Untried Women

Women make up 4% of the entire prison population, and the same proportion of the remand population.

On 14 February 2020, the female untried remand population stood at 76 (19.6% of the total female prison population of 388).

One year later, on 12 February 2021, the total female prison population stood at 291, and the female untried remand population at 75 (25.8%). 

By 30 April 2021, the total female prison population had reduced slightly, to 281, while the female untried remand population had decreased slightly to 72 (25.6%).

During those 14 months, the female untried remand population thus decreased by 5.2%.[4]

C.   Untried Young People

On 30 April 2021 there were 197 young people (aged 16-20) in prison in Scotland; 84 (42.6%) of them were on remand, untried (18 of these people were aged 16-17; only 3 of these had been tried and convicted).

By comparison, on 14 February 2020 there were 305 young people in prison, of whom 74 (24.3%) had not been tried (24 of them were aged 16-17; 16 of these had been tried and convicted).[5]

D.   Grounds for Custody

According to s.23C of the Criminal Procedure (Scotland) Act 1995, the grounds for refusing bail concern “any substantial risk” that the accused might, if granted bail, abscond, commit offences,[6] or interfere with witnesses or otherwise obstruct the course of justice; or “any other substantial factor which appears to the court to justify keeping the person in custody”. In deciding on bail, the court “must have regard to all material considerations”, including the nature and seriousness of the alleged offences; the probable disposal of the case if the person was convicted; the accused’s “character and antecedents”, including any previous convictions or contraventions of bail orders, and their “associations and community ties”.

The role of the prosecution in asking the Court to refuse bail is also significant in the process of individuals being remanded. The adequacy of defence advocacy (and the extent to which defence agents have the time or resources to prepare arguments against remand); the availability of background information such as CJSW reports or psychiatric assessments; and the lack of risk assessments are all factors which play a role in determining the outcome of a bail hearing.

It is not currently possible to find solid data on the reasons why Courts in fact refuse bail.[7] Exploratory research[8] commissioned by the Scottish Government into the reasons behind decisions on bail and remand to support work to reduce the number of people on pre-trial and pre-sentencing remand was announced on 25 January 2020, but as a result of the pandemic, has been put on hold. Whilst there is limited published data concerning the types of offences remand prisoners have been accused of committing, the most recent statistics, for March 2021, show that a significant proportion of the remand population were accused of non-violent offences, including housebreaking, vandalism and drug related offences.[9

E.   Average Duration of Custody

In the present COVID-19 pandemic, there is limited published data on how long remand prisoners can remain in custody until being tried. In 2019-20 the median length of time spent on remand was 21 days, however longer periods on remand were associated with individuals who were transitioning from being untried to awaiting sentence (a median of 37 days), or into the sentenced prison population (a median of 53 days), or through all three stages (a median of 112 days).[10] Additionally, the average duration of time spent on remand has significantly increased from 2009-10, where stays of more than 120 days accounted for 6% of those on remand, to 2019-20, rising to more than 17% for the same period of time.[11] It is probable that during the pandemic, the length of time spent on remand has increased significantly.

There have also been reports from the Law Society of Scotland’s Criminal Legal Aid Committee,[12] that the significant increase in time spent on remand might be  beginning to skew the outcome of cases: accused persons who might spend 12-18 months on remand if they pleaded not guilty might choose to plead guilty in the expectation of a discounted sentence of circa 6 months, rather than wait to go to trial.

F.    Likelihood of Receiving a Custodial Sentence

Between 2014 and 2017, 57.18% of remand prisoners who were later convicted in summary proceedings, and 28.9% of remand prisoners who were later convicted in solemn proceedings, did not receive custodial sentences;[13] earlier figures for 2012 showed that 70% of women who were remanded in custody did not ultimately receive a custodial sentence.[14] A significant proportion of people who are convicted after being remanded in custody thus receive a non-custodial sentence (although one reason for imposing a non-custodial sentence could of course be that the accused had already spent significant time in prison on remand).

2.    Conditions of Custody for those on Remand

A.    Access to Programmes

The time people spend on remand is often unproductive, with limited opportunity to engage with support services, such as education and rehabilitation programmes. With no requirement to work, and the need to be separated from the convicted prison population, remand prisoners can feel especially isolated. If they are able to participate in these services, the short period of time and the sheer ‘churn’ of remand prisoners moving in and out of custody makes it difficult to meaningfully engage them. Such services are also prioritised for long-term convicted prisoners as a matter of statutory obligation; this limits the resources available for remand prisoners.[15]

B.    Family Visits

Since remand prisoners have less access to available structured programmes whilst in custody, family visits become a primary source of support, to alleviate stress and depression for those imprisoned. Remand prisoners are allowed more personal visits than convicted prisoners, but with the increased pressure on families to provide such support, the need to visit regularly, often at a considerable distance and expense, can put enormous pressure on families, especially for those who may not be in a position to travel regularly.[16]

There are also knock-on effects for prisoners on remand who do not receive family visits. Describing the situation for some young people:

“That even goes as far as their benefits. They get no money - nothing at all. In fact, the chaplains have told me that they have often provided deodorants, clothes and stuff to wash their clothes. If those boys - and girls, I assume - do not have family going in to visit, they have nothing at all. Unless they have been convicted, they have no access to anything that is going on in the prisons.”[17]

3.   Impact of COVID-19 on Scottish Prisons

The global pandemic has seen a significant increase in the use of remand in Scotland, with the national lockdown causing substantial constraints on Scottish courts and delays in sentencing those remanded to custody. The growing backlog of court cases has had a significant impact on the numbers on remand and is increasing the time spent on remand.

This puts additional pressure on Scottish prisons, requiring significant resources to process the reception, induction and release of remand prisoners. The increased ‘churn’ of remand prisoners revolving throughout the SPS will distract prison staff from constructively supporting convicted prisoners in their care. A “… high level of remand prisoners contributes significantly to overcrowding, which means staff are overwhelmed with managing crisis situations”.[18]

4.    Effects of Remand

The negative consequences for those imprisoned on remand are very like the effects for those serving short-term custodial sentences, impacting their physical and mental health, employment, housing, and family relationships. Additionally, remand causes financial repercussions for the individual if they are subsequently acquitted or receive a non-custodial sentence. These adverse effects are exacerbated during the pandemic by uncertainty about how long detention will last, and the lockdown conditions implemented within prisons.

A.  Physical Health

Once remanded, medication is routinely removed from prisoners upon entry into prison until they have been assessed by a prison-based NHS staff member;[19] remand prisoners face particular barriers in accessing prescription medicine, or continuing vital medical services, including drug or mental health treatment, previously accessed within the community. Barriers to information sharing between local authority health boards, public bodies, and the prison service, such as the incompatibility of different systems, may delay the prison receiving the individual’s health records, causing breaks in necessary treatment.

B.   Mental Health

“Too often, prison is used as an alternative to a mental health facility.” [20]

The decision to remand can be influenced by the individual’s perceived danger to themselves and/or the community due to their mental health problems.[21] But once they are imprisoned, it is often not possible to create individualised treatment plans for them, further exacerbating the consequences for those suffering from poor mental health; even if treatment plans can be worked out, the period on remand might not be long enough to complete the plan.

C.   Family Relationships

Being remanded to prison can have direct effects on the individual’s family: this is especially true for women who are remanded. With the requirement for arrested individuals to be brought from their police custody to court by the next working day,[22] remanded prisoners have limited opportunity to make childcare arrangements, posing a real risk that their child or dependent will be taken into care. The families of remanded prisoners may experience considerable stress (quite apart from the stress and expense of visiting, noted above); their income and housing may be put at risk; this can lead to a breakdown in trust, and divisions within the family; all these factors are compounded by the uncertainty of release and increased duration of remand. Even if a parent spends a relatively short period of time on remand, parental imprisonment can have severe adverse effects on the children.

“Imprisonment fractures families, with younger children particularly sensitive to sudden and traumatic separation from a parent or other family member. A young child will not draw a distinction between custody for remand or sentence - only that they have had their family taken away from them, with consequences as serious as removal from home, school, friends, and placement in care. This Adverse Childhood Experience (ACE) has proven and potentially long-term negative impacts on health and wellbeing.”[23]

D.   Employment and Housing

With remand potentially lasting for months, without the individual knowing when they will be tried, remand prisoners find it challenging to plan ahead. This can have repercussions on their employment and housing: they might well lose their job and be unable to continue meeting the requirements of their housing contract, including paying rent and maintaining the property.

E.   Financial Repercussions

The challenges remand prisoners face are compounded by the absence of support upon release. Whether they have been acquitted or received a non-custodial sentence, remand prisoners receive no financial support or compensation from the prison service on their release. Unlike those who are released after serving a custodial sentence, remand prisoners receive no discharge grant or travel warrant to support them after being imprisoned.[24]

5.   Alternatives to Remand

An obvious way to reduce the courts’ use of remand is to ensure the availability of, and to raise courts’ awareness of, viable, realistic and cost-effective alternatives to custody. Possible alternatives include:

• Supervised and Supported bail
• Electronic Monitoring
• Community-Based Bail Accommodation

A.  Supervised and Supported Bail

Bail supervision and supported bail schemes provide real alternatives to remand in custody. Consisting of monitoring, supervision, and support within the local community, these schemes seek to address issues including addiction, mental health, homelessness, and financial debt, taking a more holistic approach compared to an over-reliance on custodial options.[25] Anne Pinkman of the Scottish Working Group on Women's Offending stated:

“…the most recent figures that are available are for 2014-15, when just over £1 million was invested in bail supervision across Scotland. To be precise, that paid for 402 bail supervision cases, at a unit cost of £2,636. When we compare the cost of bail supervision with the cost of imprisonment, which is currently more than £36,000 per prisoner per annum, the figures speak for themselves.”[26]

Despite its cost-effectiveness, the use of supervised bail has been decreasing in recent years. Between 2015 and 2016, Scottish courts made 7,300 requests for bail information which may have been used to implement bail supervision, and a total of 360 bail supervisions were commenced during the same period; both were the lowest recorded level in the previous 7 years.[27] A possible factor contributing towards this under-utilisation is a general lack of awareness of available programmes, compounded by a scarcity of short-term funding.[28]

B.     Electronic Monitoring

Electronic monitoring presents a direct alternative to the use of remand, and provides a real opportunity to improve the effectiveness of community-based options.[29] Implementation under the Management of Offenders (Scotland) Act 2019 and corresponding secondary legislation means that electronic monitoring could be used to support supervised bail, assisting the stability of the accused and drastically decreasing the number of those remanded to custody.

In 2015, the Scottish Centre for Crime and Justice Research published a report, ‘Scottish and International Review of the Uses of Electronic Monitoring’.[30] The research showed that electronic monitoring achieved greater compliance with bail conditions, being most effective when accompanied by wider programmes of supervision and support, rather than being used as a stand-alone measure. Although the effectiveness of electronic monitoring reduced over a prolonged period of time, it would provide a significantly cheaper alternative to custody.[31]

C.    Community-Based Bail Accommodation

Another alternative to remand is the use of community-based bail accommodation. This can help to avoid the harms of remand in prison, especially for young people who may come from a disruptive family or community environment. For example, the now closed East Port House in Dundee consisted of a 16-bed residential unit with 2 on- duty social workers who provided daily supervision and directed the individuals to appropriate services. Residents who attended these units had to observe a strict routine, including helping out with housework, cooking evening meals and cleaning up together, as well as returning to the accommodation by a set time every night. As this option requires sufficient resources and the provision of suitable staff members, community-based bail accommodation has seen a gradual decrease over the past two decades. However, a new commitment to funding and supporting such programmes would give Sheriffs access to more community-based options.

6.   What Should be Done?

The earlier sections of this briefing paper have highlighted some of the harms of remand, as well as the availability of alternative ways of dealing with accused people awaiting trial.

By way of conclusion, here are some steps that could and should be taken to begin reducing the system’s reliance on remand, and the harms caused by remand:

• In keeping with the presumption against custodial sentences of less than 12 months, ensure that remand into custody is reserved for offences which are likely to attract a prison sentence on conviction.
• Invest substantial resources in the alternatives to remand noted above, and ensure that courts are aware of their availability and efficacy.
• Ensure that when bail is opposed, the court is presented with a full account of the accused person’s situation, and of any considerations that militate against remand.
• Critically re-examine the grounds on which bail can be refused, in particular the “risk of the person committing further offences if granted bail”.
• Provide structured activities, as well as appropriate health and welfare support, for remand prisoners, so that their time on remand is not simply wasted.
• Provide more support for the families of those on remand, including increased support to visit prisoners.
• Provide appropriate financial and welfare support for remand prisoners leaving prison after being acquitted or receiving a non-custodial sentence.

Some of these steps require an immediate investment of substantial resources. Given the significant harms caused by remand, to those remanded and to their families, and given the significant financial costs not just of remand itself, but of dealing with the harms it causes, it could be argued that such investment would be worthwhile even in purely financial terms: but it would anyway be justified as a way of reducing the human costs of remand.

Above all, it is important to bear in mind that the costs of remand are likely to fall especially on people who are already in various ways seriously disadvantaged; and that those who are remanded to await trial are still to be presumed innocent of the charges they face.[32]