Bail in Scotland: Who Gets Released, Who Gets Remanded — and Why

Why can someone accused of a serious crime be released on bail — and why might the detectives investigating them sometimes be pleased when that happens?

Former Scottish detectives Tom Wood and Simon McLean take an inside look at bail and remand: what bail actually means, how the system has changed during their careers, and the factors courts consider when deciding whether an accused person should remain at liberty or be held in custody pending trial.

They discuss the days when bail could literally mean putting up money for someone's release, the continuing use of bail bonds in the United States, and the underlying principle in Scots law that an accused person has not yet been convicted and should normally remain at liberty unless there is sufficient reason to keep them in custody.

Tom and Simon examine the practical reasons bail may be opposed, including:

the seriousness of the alleged offence;the risk of absconding;further offending;interference with witnesses;destruction or concealment of evidence;and obstruction of justice.Tom also reveals a less obvious reality from major investigations: detectives could sometimes be quite pleased when a person facing a serious charge was granted bail. Keeping someone in custody starts strict legal timetables and can put enormous pressure on investigators trying to assemble a complex case.

The conversation also explores how Scottish bail law developed through precedent and stated cases, changes to the modern bail test, the use of remand, and the police practice of releasing accused people on undertakings to appear at court.

Simon and Tom also refer to the recent Simon Levy case while discussing the risks associated with offending while on bail.

Later, the conversation moves to policing and drugs, as Tom discusses news he had read about advances in hepatitis C treatment. That prompts both detectives to recall the very real dangers faced by officers searching people who used injected drugs — including uncapped needles, needle-stick injuries and the routine question: “Do you have any sharps? Do you have any spikes?”

It's an aspect of criminal justice that everyone has heard of, but one that is often very different from the version portrayed on television.

Real cases. Real detectives. Real talk.

Suggested Chapters00:00 — Cold open: why detectives might actually want bail

00:52 — What bail really means