Police fear too many dangerous offenders in Scotland who would normally have been remanded in custody to await trial are being bailed because of the coronavirus crisis.
Those who have been bailed in recent weeks include men accused of domestic violence and burglary, offences that cause distress and fear and are often linked to serial offending.
There are also concerns that custody cases are down by more than half, with police under pressure to release all but the very worst offenders and submit reports on their alleged crimes at a later date to avoid crowded police cells.
A police source said: “There are fewer people on the streets and crime is down but criminals are still out there causing problems.
“There is always a balance to be struck between public safety and the rights of the accused but there is a feeling that the current situation is favouring the accused.”
Sources say the Crown has been put in the position that it is hardly worth opposing bail – except for the most serious crimes, including murder and rape.
The prison population has also fallen rapidly in recent weeks from some 7800 to about 7200, taking it inside its design capacity for the first time in years following a long period of constant growth that created an overcrowding crisis.
The decline in untried prisoners has made a substantial contribution to the change.
From the first Friday of the year to last Friday, the number of men being held on remand in Scottish jails to await trial had fallen by 28 per cent, from 1344 to 965, while the number of women had fallen 29 per cent, from 68 to 48.
At the same time, the number of young offenders aged 18 to 20 being held had fallen by 19 per cent, and the number of 16 and 17-year-olds had fallen by 37.5 per cent.
There is concern that domestic abusers and housebreakers have been freed, with both especially likely to reoffend and the former also likely to try to intimidate their alleged victims not to testify against them.
Calum Steele, of the Scottish Police Federation, said: “We understand the desire to reduce the risk of spreading Covid-19 but there is a very strong sense communities and victims aren’t well served by offenders being bailed or not appearing in court due to an apparent relaxation of custody requirements.”
Defence lawyers acknowledge the Covid-19 crisis has given those accused of crime a better chance of avoiding jail.
Among the avenues open to them is to claim that while “innocent until proven guilty”, being jailed would breach human rights.
A source said: “The argument advanced is that while still untried and therefore innocent, jail would potentially expose them to the virus and possibly even death.
“The Crown has to pick its battles and concentrate on the most dangerous offenders. In my experience, this argument has been largely unchallenged by prosecutors.”
One Edinburgh defence lawyer admitted that many clients facing bail hearings were using Covid-19 to their advantage in another way, by claiming to have symptoms.
He said: “Obviously, we work in an area that is full of chancers but if your client says he has a temperature and a cough, you have to accept that and convey it to the sheriff.
"One guy I represented last week – not a serious offender but a very persistent repeat offender – asked me to tell the sheriff that he was worried about spreading the disease in jail.
“The sheriff jailed him but we appealed the next day using the same argument in front of a different sheriff and he bailed him.
“The majority of people remanded in custody, we would argue, don’t have to be there to protect the public but there has been more leniency shown in giving bail in areas like domestic abuse than we’d normally see.”
A police source said: “The courts are reluctant just now to remand anyone but the very worst offenders.
“Defence lawyers are citing human rights more often and most of the defence pleas are not being contested by the Crown, presumably because it would expect to lose.”
Another man accused of domestic violence in Ayrshire was remanded in custody this month but an appeal for bail succeeded a few days later when his lawyer claimed he had developed symptoms of the coronavirus in jail.
In Edinburgh, a persistent shoplifter was allegedly taking orders from “clients” to walk out of supermarkets with trolleys containing hundreds of pounds of high-value items.
She was bailed twice and reoffended twice before being remanded.
Assistant Chief Constable Kenny MacDonald said: “Police Scotland is working closely with partners in criminal justice to ensure people breaking the law will be dealt with appropriately, including being kept in custody when appropriate.
“Police Scotland will continue to deal effectively with criminality and report cases to the Procurator Fiscal in the usual way.”
The Crown Office said: “The decision to remand an individual pending trial is made by a judge.
"Scotland’s prosecution service is working with partners on a system-wide response to the challenges of the coming months that is focused on public safety and on maintaining the fair and effective administration of justice.”
