Briefing to accompany the Lord Advocate’s statement: Prosecution Guidance on Public Safety and Prison Population

1. This document provides supplementary briefing to accompany the statement ‘Prosecution Guidance on Public Safety and Prison Population’ made by the Lord Advocate to the Scottish Parliament on 10 October 2024.

2. The state has various legal duties in respect of the care of persons in its custody and those who are employed in the exercise of those functions. In particular, Article 3 of the European Convention on Human Rights and Fundamental Freedoms provides that “No one shall be subject to … inhuman or degrading treatment or punishment.” The primary responsibility for meeting these obligations rests with Scottish Ministers collectively.

3. The system of criminal prosecution and the courts, acting independently of Ministers, are entitled to take into account and rely on the expectation that the state will put in place measures to ensure compliance with its legal obligations. In other words, the system of criminal prosecution and the courts are not normally to be constrained in their independent decision making by the capacity and condition of the prison estate.

4. Nonetheless, as a temporary and exceptional measure the Lord Advocate has instructed prosecutors to have regard to the current pressure on prison population as a relevant public interest factor in their decision making.

5. There will be no change of approach where the allegations relate to domestic abuse or sexual offending. Bail will be opposed where there is any risk of harm to the victim or the wider public. 

6. Guidance has now been issued setting out the approach prosecutors should take when considering the impact of the prison population on the public interest in the following situations:

• The Use of Direct Measures
• Choice of Forum
• The Crown’s Attitude to Bail
• Seeking and Executing Warrants
• Effective Management of Cases

7. The guidance to prosecutors will be kept under review.

8. In this context the relevant “risk of harm” posed by the accused is their substantial risk of reoffending and that reoffending causing harm (physical or psychological) to members of the public, witnesses or victims.^[1] This is distinct from the impact on the system caused for example by an accused’s conduct delaying a trial, or impact on communities due to repeated offending.

9. Prosecutors are instructed to take a holistic, case-by-case approach when assessing the risk  to the public or victim, and consider all sources of available information, which may include (but is not limited to) the following: 

• the Standard Prosecution Report 
• Domestic Abuse Questions (DAQ)/Risk Indicators Checklists (RICs) 
• information from an advocacy worker or social worker  
• correspondence  
• the accused’s previous convictions  

10. When considering the potential risk, prosecutors should consider the pattern, nature, and seriousness of the offending. 

11. A case-specific approach is always required, but the following factors might suggest the accused does pose a substantial (i.e. imminent) risk of reoffending and causing harm to the public and/ or specific individual:

• analogous violent, sexual or abusive conduct, particularly if recent or if the conduct is escalating in seriousness
• non-compliance with previous court orders, in particular breach of protective conditions of bail or undertakings, breaches of Non-Harassment Orders, offending whilst on bail or a Community Pay Back Order
• the nature of the alleged offence; allegations of domestic abuse, serious violence, the use of a weapon, spontaneous and unprovoked violence etc., may indicate that it is necessary to oppose bail
• the more serious the alleged offence, the greater the potential threat to the public and the victim or witness
• threats to harm or hurt specific individuals must be taken seriously

[1] Sections 23B and 23C of the Criminal Procedure (Scotland) Act 1995 provide that an individual should not be refused bail, unless they represent a substantial risk of reoffending, and it is in the public interest. The legislation also refers to failure to appear, absconding, or interfering with witnesses or otherwise obstructing the course of justice. There is further discussion of the role of these risks below.

12. Lower-level offending can quickly escalate to repeat offending, successive prosecutions, and often remand and imprisonment.

13. The consistent use of prosecutorial direct measures, along with new guidance to the police on direct measures may help to slow down this escalation.

14. Prosecutors in Scotland are provided with a range of direct measures, including Fiscal Fines, Compensation Orders, Fiscal Work Offers, which are provided by Parliament, and warning letters and diversion from prosecution, which exist as a function of the prosecutor’s common law power to determine the most appropriate outcome in the public interest.

15. Such direct measures can deliver a variety of appropriate practical outcomes promptly and efficiently in cases where the allegation is not contested.

16. These direct measures are not direct alternatives to an individual being held on remand, however there may be cases where, due to the low level nature of the
offence, an accused would otherwise be offered a direct measure for the specific case under consideration, but for their criminal history record.

17. In the context of the current pressure on the prison population court proceedings ought generally to be reserved for the cases which require to be tried in a court, either because the accused contests the allegations, or because there is a requirement to obtain a disposal from the court which is not available to the prosecutor: for example disqualification from driving, non-harassment orders, community payback orders, serious crime prevention orders, or imprisonment.

Existing Guidance

18. There is presently a policy restriction on using financial direct measures for repeat or persistent offenders.

19. In addition, although existing guidance provides that repeat offenders may be offered a direct measure, the current policy approach suggests that an escalatory approach should be taken towards repeat offenders. Therefore, in practical terms, the accused’s criminal history may prove a barrier to the use of direct measures which would otherwise be appropriate.

Revised Approach

20. Subject to existing CMIs which may require a specific prosecutorial approach, where an accused does not represent an identifiable risk to the safety of the public or a specific victim, prosecutors should consider if an offer of a direct measure would be in the public interest for the specific offence under consideration.

21. Where a direct measure would be appropriate, prosecutors should consider the full range of direct measures available to them including financial measures. 

Diversion

22. Escalated offending is a particular risk where the offender has an identifiable need, and that need remains unaddressed. Prosecutors are reminded that diversion is not just open to first time offenders and indeed the public interest may be best served by offering repeat offenders an opportunity to address the issues contributing to persistent offending.

23. Police Scotland have been instructed to provide increased detail about an accused’s mental health, including addiction, to enable prosecutors to take more informed decisions about the appropriate outcome in a case.

24. Prosecutors are reminded that preventing reoffending in the long term is one of the goals underpinning diversion, but those struggling with addiction; those who have experienced trauma and adversities in their childhood a one-off intervention is unlikely to suffice. To that end, is there no limit on the number of times an individual may be offered diversion.

25. Where prosecution is required in the public interest, prosecutors should take a proportionate approach to selecting the best forum (i.e. level of court) which allows for the most effective use of court resources.

Existing Approach

26. As a general long-standing rule, cases should be disposed of using the lowest competent form of action which can achieve the prosecutor’s identified objectives. This is subject to offence specific prosecution policy requiring a certain outcome.

Revised Approach

27. Prosecutorial decisions should continue to take an outcome focused approach and the lowest appropriate forum should be selected to achieve the desired outcome. An accused’s record should not automatically require an elevated forum if the sentencing outcome sought is available in a lower forum.

28. Where possible, consolidation of live cases or outstanding charges should take place, to provide the court with as full a picture of the individual’s conduct as possible, and to allow for efficient resolution of cases.

29. The impact of the current pressures will be most evident in decisions relating to bail: where it is assessed that the prosecution decision may lead to an accused person being remanded in custody, prosecutors are instructed to balance the requirement to protect public safety with the risk of a prison system which cannot accommodate all prisoners safely.

30. As set out in section 23B and section 23C of the Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk), the accused is to be granted bail, unless they represent a substantial risk of reoffending; interfering with witnesses or obstructing the course of justice; absconding or failing to appear, and it is considered to be in the public interest for the accused to be remanded. In addition, section 23D of the Criminal Procedure (Scotland) Act 1995 provides additional requirements before bail is granted in relation to specific serious offences.

31. It is the relevant Sheriff or Judge who makes the decision on whether or not to deprive an accused person of their liberty.  The role of the prosecutor is to assist their decision making by highlighting risks based on information about the accused and the offence. 

32. It is recognised however, that while not determinative, the attitude of prosecutors to bail can have a bearing on the court’s decision whether to detain someone in custody awaiting trial.

a) Public interest assessment

Existing Guidance

33. Current guidance on Bail provides that in all cases, prosecutors should:

• Start from a position that the accused will be granted their liberty.
• Consider whether the accused can be ordained to appear at any diet or whether it is appropriate to seek to have the person admitted to bail.
• Consider whether the standard conditions of bail are sufficient, based on the specific facts and circumstances of the case.
• Where appropriate, consider what special bail conditions are appropriate to ensure that the accused complies with the standard conditions of bail.
• Decide whether to oppose bail. Prosecutors should oppose bail only where it is assessed that there is a good reason for the court to refuse bail, including where, in solemn cases, section 23D

34. In addition, there is an existing presumption in favour of opposing bail where the accused is a repeat offender.

Revised Approach

35. It remains the court (Judge or Sheriff) who makes the decision on whether an accused person should be released on bail or remanded in custody, based on the test set out in the Criminal Procedure (Scotland) Act 1995. The prosecutor’s role is to assist their decision making by highlighting risks based on information about the accused and the offence.

36. The Scottish Government has legislated for a new test for bail, focusing primarily on the risk posed to the public and the complainer. The relevant sections of the Bail and Release from Custody (Scotland) Act 2023 are not yet in force.

37. As a temporary measure meantime, as instructed by the Lord Advocate:

• Prosecutors should oppose bail generally only where there is a substantial risk of reoffending and causing harm to the public, victim or witness, and this risk cannot be mitigated by imposition of bail conditions.
• This applies whether an individual is reported in custody, either as a new case or on a
• In the current circumstances, if the accused represents a risk of reoffending, but it is unlikely to pose a risk of harm to an individual, bail will not generally be opposed.
• Equally, the risk of an accused failing to appear at the next scheduled diet will require to be given lower priority in making any decision regarding opposition to bail. It will however remain open to the prosecutor to oppose bail in exceptional circumstances, such as to secure attendance at trial involving vulnerable witnesses or where the accused is deliberately attempting to evade or disrupt proceedings by failing to appear.

38. The approach will not change in relation to allegations of sexual offences or domestic abuse where the risk to the victim is often highest following a report to the police.

b) Electronic Monitoring/ Bail Supervision

Existing Guidance

39. Prosecutors should consider what special bail conditions may be appropriate to ensure that the accused complies with the standard conditions of bail.

40. Whilst the term special condition is not used in legislation it is commonly used to reference any additional condition which is imposed to ensure the standard conditions are complied with.

41. Any special condition, or means of monitoring that condition, requested by the prosecutor should relate to the particular accused person or the nature of offending involved and must be necessary to secure that the standard conditions are observed.

42. Thereafter, the requirement for enhanced monitoring of special conditions (for example Electronic Monitoring to assist with enforcing a curfew, or special condition to stay away from a particular place) is a matter for the court and will not in most circumstances alter the position of prosecutors in relation to bail. Prosecutors do not currently routinely request these enhanced monitoring

Revised Approach

43. Prosecutors, either when marking  a case, or when considering the bail position at court in the light of any further information or representations,  should continue to consider whether based on the information available, an accused might be a candidate for a curfew or a special condition to stay away from a particular place.  

44. Electronic Monitoring should not automatically be suggested in every case as an alternative to remand. However, prosecutors should consider whether based on the information available, and the nature and extent of the risk posed, an accused might be a candidate for a curfew or a special condition to stay away from a particular place or person, supported by Electronic Monitoring of bail; or, alternatively, where it is considered that bail supervision may assist an accused to comply with bail, and this should be highlighted  to the Court.

45. It will remain for the court to determine if the proposed approach is sufficient to mitigate any risk raised by the prosecutor, even where a bail supervision or electronic monitoring bail assessment allows prosecutors to reconsider the Crown opposition to bail.

46. It should be clear however that COPFS officials do not bear responsibility for requesting or arranging for assessments to take place.

c) Defence Bail Reviews

47. Decisions on bail, are made in short timescales, with limited available information, reviews based on further information obtained in slower time, for example an assessment for the accused’s suitability for release on bail with conditions monitored by supervision bail or electronic monitoring of bail by a local authority.

48. Bail reviews may provide a mechanism to reduce the remand population. Such reviews cannot however be initiated by prosecutors on behalf of the accused

Existing Guidance

49. For accused already on remand it will remain for the accused’s solicitor to bring forward an application for bail on their

 Revised Approach

50. Local Authorities have been taking proactive steps to assess individuals currently on remand for suitability for Electronic Monitoring or Supervised Bail.

51. Defence Bail Reviews on the basis of an assessment for Electronic Monitoring of Bail or Supervised Bail received, or completed, after the accused was initially remanded should be considered carefully by prosecutors.

52. It will be for the court to determine if the risk posed by the accused can be mitigated by these measures, but prosecutors must consider if, on the basis of the information provided in the assessment(s), if it remains appropriate to oppose bail.

53. The current situation provides an opportunity to review the Crown’s use of warrants for individuals who do not attend court.

Existing Guidance

54. Existing guidance states it will be appropriate for prosecutors to seek warrants for the accused in the following situations:

•  If the case is liable to become time barred before the next available court date, consideration should be given to moving the court to grant an apprehension warrant.
• Where the accused has been ordained to appear at the diet, and there is proof that the notice has been served on the accused the court may be asked to provide a non-appearance warrant.

55. Whether a warrant is appropriate will depend upon the nature and circumstances of the offence and character of the accused.  

Revised Approach

56. As a short-term measure, pre-conviction warrants should not normally be obtained and executed by the police unless there is no immediate alternative to securing the accused’s attendance, or where the accused represents an immediate risk to others.

57. It will however be appropriate to seek a warrant where:

• there is no other way of ensuring proceedings can be commenced or maintained, e.g. where the accused’s present whereabouts are unknown, where the accused has continued to fail to respond to a citation and has not instructed a solicitor on their behalf, or where a case is approaching time bar and there is no evidence of the complaint being served
• a warrant is required to preserve protective conditions imposed by a police undertaking
• it would result in a delay to seeking a petition warrant
• there is information that the accused is aware of a requirement that they must attend court and they have provided no information to their solicitor, the court or COPFS regarding their failure to attend and where any further delay due to the accused’s absence would adversely impact on victims or witnesses or the public interest

58. Where the above circumstances do not apply, continued diets should be sought wherever possible.

Executing warrants

59. Before a warrant is sent to the police for execution, careful consideration should be given to inviting them to respond or attend court as appropriate, and discussions may take place with a defence agent to determine if the accused can be invited to attend. Those discussions should also provide an opportunity to discuss resolution of the case. Such consideration and discussions should be informed by a review of all outstanding cases for the accused.

60. It will however be necessary to issue the warrant to the police for execution:

• Where there is a risk the accused will cause harm to the victim, a witness or any other member of the public, and/or
• There is no other way to secure their attendance in court.

61. In any case where the accused person fails to appear at a court diet, including where imprisonment is not otherwise a competent disposal in the case, and there is no information to suggest that the accused person had a reasonable excuse for failing to attend the diet, prosecutors must consider serving a new complaint or adding a charge to any indictment relating to the separate offence of failing to appear at the diet.

62. Once a warrant is executed, bail should not generally be opposed where the accused does not represent a risk to the safety of the public or a specific victim or where it is considered, on the full circumstances of the cases including any previous failure to appear in the relevant proceedings and any previous conviction(s) relating to failure to appear or offences relating to the obstruction of justice, that the accused is deliberately attempting to evade or disrupt proceedings by failing to appear

63. In any case where the accused person fails to appear at a court diet, including where imprisonment is not otherwise a competent disposal in the case, and there is no information to suggest that the accused person had a reasonable excuse for failing to attend the diet, prosecutors must consider serving a new complaint or adding a charge to any indictment relating to the separate offence of failing to appear at the diet.

64. Prosecutors should be aware of the potential for trials to proceed in the absence of the accused and take proactive action to facilitate that occurring. Further detailed guidance will be provided in short course.

65. In the context of the current pressure on prison population, and the need to reduce journey times for those in the system, there is a clear and necessary duty to take decisions promptly.

Existing Guidance

66. In relation to summary cases, prosecutors should be aware that:

• The requirement for, and value of, early and firm decision making cannot be overstated.
• Decisions by prosecutors to accept lesser pleas or to discontinue the case should be made at as an early a stage as possible, and wherever possible before resources are expended preparing the case for trial.

Revised Approach

67. The focus of all prosecutors must be the potential resolution of cases as early as possible. The principles underpinning summary case guidance should apply to all cases.

68. All colleagues involved in marking cases, including those involved in indicting cases should ensure that they are consider what a potential acceptable plea may be.

69. Local court teams across the country have increased plea surgeries to progress more pleas under section 76 of the Criminal Procedure (Scotland) Act 1995. Effective use must be made of such surgeries.

70. Similarly, prosecutors must be proactive in the resolution of summary cases, the summary case management pilot will continue to be rolled out across the country.