There were 2,200 people in prison on remand awaiting trial on 1 November in Scotland – almost a third of the total number in jail. And there has been a significant increase in the time people are having to spend on remand.

Gemma Fraser, head of restorative justice and recovery at Community Justice Scotland, said: “Where appropriate and only where further support is also to be provided, we are advocating for the increased use of electronic monitoring to support bail over remand. We need to reduce the unnecessary remand of those with multiple and complex needs which are best met in the community, while bringing down the numbers of those in prison awaiting trial.”

Bail with the option of electronic monitoring (EM) was brought in to Scotland last year through an Electronic Monitoring Order (EMO).

West Lothian-based criminal defence solicitor Iain Smith from Keegan Smith agreed that there needs to be action to bring down remand numbers where it is safe to do so. For many, electronic monitoring with proper support for individuals could be the answer.

He said: “We’re locking up too many people awaiting trial when they could be managed safely in the community, keeping them connected to necessary support. These are people who haven’t been found guilty – but they’re waiting for long periods to go to trial. Using tags alongside bail is one way to help manage people in the community rather than prison and this should be considered more often and used.

“I’ve seen the benefits to clients on tags who have received the necessary support to help them comply with orders when kept in the community. But I’ve also seen the disruption that a short-time in prison on remand can cause to someone’s life which can have a negative impact on their ability to reintegrate back into the community.

“That said, using a tag without support may set up some individuals who struggle in life to breach bail.”

The number of 2,200 on remand (on 1 November 2023) accounts for 27 per cent of the total prison population of 8,019 and reflects an increase of eight per cent against pre-pandemic levels.

Of this figure 2,089 are men – 27 per cent of the male prison population of 7,701 and 111 women - 34 per cent of the total female population of 318 – who are untried in prison.

Since 2017/18 where the average time spent on remand was 63 days – there has been an increase of 121 per cent to the current average wait of 139 days.

Ms Fraser explained: “There are a number of reasons for the increased remand population. These include the continued use of measures within the Coronavirus (Scotland) Act 2020 to retain people on remand – untried - for longer periods, the recommencement of the criminal justice system post-Covid, and the nature of the offences people are charged with when they appear in court straight from custody.

“In some cases the use of remand is essential for the protection of the public and to reduce crime and offending in communities, but this is not the case for many individuals placed there. Remand is often used as a result of unaddressed, complex needs faced by individuals within their communities. These include homelessness, substance use, mental health issues and trauma.

“These needs would be best addressed in supported, community settings where individuals can remain connected to services and their families, without the disruption caused by short periods in prison. A short prison sentence can cost them their homes, families, jobs and have a significant detrimental impact on their recovery.”

She said there needs to be more use of electronic monitoring where it’s safe and appropriate for an individual’s case.

“Bail with the option of electronic monitoring (EM) is now available across Scotland through the imposition of an Electronic Monitoring Order (EMO) which began being gradually introduced across the country last year. This can be considered for anyone where the Crown Office and Procurator Fiscal Service (COPFS) has declared a position of bail opposed and the person is at risk of being remanded at their appearance in court.

“When social work services are made aware by the Procurator Fiscal that bail is being opposed, they can complete an assessment of suitability for both bail supervision and EM whilst the individual is held within police or court custody. A sheriff can ask for this information to assist their decision-making in cases where bail is opposed.”

Ms Fraser was also keen to highlight ways EM can be used in conjunction with bail.

“Where the sheriff is considering imposing bail with further conditions (commonly referred to as bail supervision), they can attach EM as part of that arrangement and request an additional assessment be completed for the individual prior to making a final decision on bail conditions. It is important that this assessment considers the support which would be needed in addition to EM, for example, to explore challenges which could lead to offending behaviour. This may include mental health, housing, employment and substance use services and is the basis of the support and monitoring plan for the person while they remain in the community.

“Defence agents can also ensure all information regarding bail supervision and EM is considered by the court through maintaining contact with social work during the period an individual is subject to bail supervision.”