Meeting of the Parliament 03 October 2018
In order to be transparent, as a practising solicitor I refer members to my entry in the register of members’ interests.
I am pleased to have the opportunity to open for the Scottish Conservatives in the debate on the Justice Committee’s report on remand and to introduce some of the themes that I am looking forward to hearing more about this afternoon. Credit goes to the clerks for the production of the report, but also to the witnesses for what was a fascinating and highly informative inquiry.
The first major learning, which bears restating, is that we should be wary of bracketing those remanded with those convicted. The remand prisoner—at least as far as the report uses the term—has not been found guilty of a crime; rather, he is accused but kept in custody prior to trial. He holds that status because a sentencer has decided, based on statutory criteria, that remand rather than bail is appropriate.
It is important that, particularly where we seek solutions to the fact that about a fifth of the prison population is on remand, we do not rush to equate those remanded with short-term prisoners. It is also important that we look at why we remand, because of the impact that being remanded has.
The average time that is spent on remand is about 25 days. David Strang, who was then Her Majesty’s chief inspector of prisons for Scotland, told the committee that it can be “disorientating, unsettling and stressful.” Those remanded may face barriers to obtaining medication or continuing services that they access in the community, and housing or employment may be disrupted.
Last weekend, I visited HMP Grampian with Families Outside, which contributed to the committee’s report. It reiterated a crucial point picked up by the committee: the impact on families, as well as on the remandee, is considerable. That is particularly the case with Peterhead. Although very impressive work is going on, particularly around visiting arrangements, getting there is still a long, potentially expensive journey for many prisoners’ families.
It is vital that the decision to remand is not taken lightly. My key point is that the decision to remand is difficult. It is a decision made at the start of the process, when someone who is accused is brought before a court and the sentencer must decide whether to release the accused on bail.
According to the law, bail is to be granted unless the court decides that the public interest warrants remand and there is a substantial risk that granting bail will lead to issues such as non-appearances or obstruction of the course of justice. The court will also have regard to matters including the nature of the offence and the likely punishment if convicted.
It is not a straightforward process in which a capricious judge takes one look at the accused and decides to remand. On the contrary, as Sheriff Liddle told us, judges
“are not eager to remand people”.
Of course they are not. They are more aware than perhaps any of us are of the issues and the impacts set out in the committee’s report. They are the experts who make the decisions daily as part of their job. Their decisions, according to Sheriff Liddle, are based on “adequate information”, provided variously by the prosecution, the defence and the criminal justice social workers, whose decisions, according to the Edinburgh Bar Association, are “justified well” and it is difficult to suggest that they are made in error.
Yet, according to the statistics, there is no significant difference in the numbers being remanded over the past ten years. The numbers feel uncomfortably high but we cannot yet say that they are inappropriately high. We cannot make any legitimate value judgment, because there is not the data to know why bail is being refused or to know which of the criteria have proved definitive in a case. There are no data because the reasons for the refusal of bail are not recorded or collected in a way that allows for meaningful analysis, and without knowing why people are being remanded, it is wrong to conclude, as the then Cabinet Secretary for Justice, Michael Matheson, did, that there is “inappropriate use of remand”. Maybe there is, but absent the data we cannot say.