Bail and release from custody arrangements: consultation analysis

Executive Summary

Background

The Scottish Government ran a public consultation to seek views on proposed reforms to the law relating to bail and release from custody in Scotland. The consultation ran for a period of 12 weeks and included 32 questions, with a mix of both open and closed questions inviting feedback on specific proposals. An independent analysis of consultation responses was commissioned, and this report presents the findings from that analysis.

Methodology

A total of 142 responses to the consultation were received - 68 from individuals and 74 from organisations. Among the organisations that responded, there was a broad range of stakeholders represented from within the justice sector as well as a mix of national and local third sector organisations. There was also a good mix between advocacy/support organisations representing the interests of prisoners, accused and released prisoners, children and young people and victims and witnesses, among others.

The majority of responses were submitted via Citizen Space, the Scottish Government's online consultation platform. All responses were read and logged into a database for analysis purposes. Closed question responses were quantified to ascertain the number and percentage of respondents who agreed/disagreed with each proposal or question statement, and open question data were analysed thematically to provide an overview of the main feelings expressed by participants.

Main Findings: Bail

Just under two thirds of respondents supported proposals for the need to protect public safety as being a required ground that must be present to justify refusal of bail. This was mainly on the basis that they perceived it would help to reduce the numbers of people being held on remand in Scotland, which many perceived was currently (and historically) too high.

Two thirds of respondents also agreed that the court should have particular regard to victim safety when making bail decisions. This was seen as important in protecting the rights, needs and safety of victims as well as adding more transparency to the decision making process, potentially bolstering public confidence in the justice system. For similar reasons, there was support for requiring the court not only to give, but also to record, explanations where a decision is made to refuse bail (with some suggesting recorded explanations may be relevant for all decisions). Accessibility in any communications from the court was seen as crucial, especially for vulnerable accused, children and young people, victims and their respective families/supporters.

Empowering the court to rely, in all cases, on the general grounds relevant in reaching the decision on the question of bail was also supported by most. Again, greater clarity on what a 'simplified legal framework' may look like in practice was sought and safeguards should also be in place to protect accused and victims, ensuring that the system does not become 'over simplified'.

There was evidence across the consultation that, in taking forward many of the suggested reforms, a partnership approach would be required. While most welcomed the idea of improving and making more consistent the provision of information by social work (and potentially other partners too) to inform decisions in relation to the question of bail, there were mixed views on whether this would be achievable in practice. The main reservations were a perceived shortfall in resources and staff capacity to allow this proposal to be effectively, timeously and consistently delivered. Flexibility to allow both court and social work discretion in decisions linked to the request and release of information on accused was seen as necessary to meet the best interests of all parties involved in individual cases.

Across the consultation, there was strong support for community based interventions for accused as an alternative to remand. Many supported proposals that, before a decision to refuse bail is finalised, there should be an explicit requirement for the court to consider the use of electronic monitoring (EM) as a means of the accused remaining in the community. While there were mixed views on if and how time spent on bail with EM should be taken into account at sentencing, there was broad (but not unanimous) consensus that, if time on electronic monitoring was to be taken into account, there should be legislation to ensure it is applied consistently.

EM was seen by many as being much more effective (and cost effective) than custody at protecting the public whilst minimising interference to the lives of accused and their families. The main reservations, however, appear to be that the infrastructure (in terms of electronic tagging and monitoring equipment) as well as staff time and capacity within criminal justice social work does not (and would not for some time) exist to support the proposals. Significant additional resource may be needed to make the proposals workable, it was felt.

Although supported by more than half of respondents, there was mixed feedback on proposals that legislation should explicitly require courts to take someone's age into account when deciding whether to grant them bail. In contrast, however, there was strong agreement on the need to protect children's welfare and agreement, in principle, that courts should be required to take any potential impact on children into account when deciding whether to grant bail to an accused person. The negative and often disruptive impacts of imprisonment for both accused and their wider families was stressed by many respondents as being significant and something to be avoided wherever safe and appropriate.

Overall, there was strong support for almost all of the proposed reforms to bail. The main proviso was that any legislative change would need to be supported by increased availability and resourcing for appropriate community alternatives to remand and additional capacity to allow community based services (especially social work) to offer the appropriate level of supervision and support required.

Main Findings: Release from Custody

In general, there was strong agreement with the principle of enabling prisoners to serve part of their sentence in the community, to help with their reintegration (especially those convicted of less serious offences or who were considered low risk if released). The main caveat to this was, again, the need for sufficiently robust and consistent support services being in place in the community to assist those released. This would require adequate staffing and resources (for social work supervision), collaborative planning (between the Scottish Prison Service and community based practitioners) and availability of meaningful interventions (including access to employment, education, housing and health services).

There was less overall support for giving certain categories of prisoner the ability to demonstrate their suitability for early release or to serve the remainder of their sentence in the community following successful completion of programmes, etc. Similarly, there were mixed views on whether, through good behaviour, or completing education, training and rehabilitation programmes, prisoners should be able to demonstrate their suitability for completing their sentence in the community. The main reservations appear to be perceptions that some offenders may 'play the system' and/or that completion of programmes may not necessarily be an indication of reduced risk. There was also a broad agreement that prison-based programmes were not consistently available across the prison estate.

Just over half of respondents supported bringing forward the point at which short-term prisoners are automatically released, subject to conditions, although a reasonable proportion of respondents supported 'no change' to the current model. Several respondents also did not support automatic early release (AER) in any guise. Similarly, bringing forward the point at which long-term prisoners can first have their case heard by the Parole Board was not well supported. The main reasons for lack of support in relation to AER and early Parole Board consideration was that all cases should be dealt with on a case-by-case basis and informed by robust risk assessments, i.e. an individualised rather than generic approach.

The only proposals linked to release that did receive strong (but not unanimous) support were banning all prison releases on a Friday (or the day before a public holiday), so people leaving prison have greater opportunity to access support and proposals for providing victim support organisations with information about the release of prisoners from custody to enable proactive safety planning to be undertaken.

Several proposals for amending or replacing the current model of Home Detention Curfew (HDC) were also included in the consultation and there was only moderate support for most. Again, this was mainly because respondents viewed that HDC should first and foremost be determined by individual risk and need but also that some individuals would not wish to take up the offer of HDC and should not have conditions mandatorily imposed.

Many respondents viewed that existing duties on public services to engage with pre-release planning were not sufficient and therefore agreed with proposals for a specific duty on public bodies to engage with pre-release planning for prisoners. Introducing a support service for prisoners released direct from court to enable their reintegration was very widely supported as was revising throughcare standards for people leaving remand, short-term and long-term sentences (with views that access to appropriate support should be equitable for all). Collaboration between statutory services and third sector partners was seen as key to the future success of throughcare but there were again concerns that more resources would be needed to allow relevant partners to fulfil any new obligations.

There were mixed views in relation to introducing wider powers of executive release to enable Scottish Ministers to release groups of prisoners in exceptional circumstances. A clearer definition of 'exceptional circumstances' was urged.

Other Feedback

While feedback on most of the proposals in the consultation was very positive, it is important to note that a small number of respondents (mainly legal organisations) disagreed with the need for some of the reforms to bail, mainly on the basis that they perceived the current system already worked well or that 'guidance' may be more appropriate than legislative change. In contrast, a number of mainly local authority/justice partnerships and advocacy organisations expressed views that the proposals did not go far enough and were not sufficiently radical or transformational to address the issue of high prevalence of remand, and how best to support and address individuals' criminogenic needs. In taking the findings from the consultation forward there may be a need for more clearly rationalising or explaining some of the proposals to make sure that they are understood and are embraced, and some suggested this may require ongoing stakeholder engagement.

Conclusion

The consultation attracted a strong response from a broad range of stakeholders. It was widely recognised that it would be difficult to legislate for the full range of scenarios that would be presented to the courts, and that it would not be possible to plan for all eventualities, given the complexity of human nature and needs. Many of the proposals would, nonetheless, be a step change and make progress towards more compassionate and equitable justice. Key to the success of many of the proposed changes would be collaborative working between statutory and third sector organisations, with honest and open communications that reflect the unique circumstances of individual cases. Overall, subject to refinement and suitable safeguards and appropriate resources being put in place, many of the proposals were seen as potentially contributing to the underlying aim to reduce crime, reduce reoffending and have fewer people experiencing crime.