Bail and release from custody arrangements: consultation analysis

Introduction

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^[1]. The consultation supported the commitment within the 2021 Programme for Government that:

"…we will introduce legislation in this parliamentary term to change the way that imprisonment is used, with consultation on initial proposals relating to bail and release from custody law this autumn"^[2].

The consultation provided the opportunity to consider how custody should be used in a modern and progressive society. It specifically sought views on options for change when people accused of, but not convicted of or sentenced for, criminal offences may enter custody, with an emphasis on public safety as the key concern. It also considered how release mechanisms should operate in future, with a focus on supporting effective reintegration so that people can move on from a period of imprisonment and make a positive contribution to their community.

The consultation contained 32 substantive questions under two sections:

• proposals in relation to bail law which focused on changing the way that bail law operates so that those who do not pose a risk of serious harm are managed safely in the community and are not remanded in custody; and
• proposals in relation to arrangements around release from prison custody which focused on ways of better enabling reintegration through providing support to people leaving prison so that they do not reoffend.

Collectively, the proposals within the consultation recognised that, while imprisonment will always be needed for those who pose a risk of serious harm, many people in contact with the justice system have already experienced multiple and serious disadvantage. This includes issues such as homelessness, substance misuse, mental ill health and domestic abuse. The consultation therefore sought views on how to respond to the harms caused by Scotland's high use of imprisonment^[3], while continuing to focus on public safety and the safety of victims. The underlying aim of all proposed reforms is to reduce reoffending, leading to fewer victims in the future.

The consultation opened on 15 November 2021 and closed on 7 February 2022. An independent analysis of consultation responses was commissioned, and this report presents the findings from that analysis.

Methodology

The majority of responses were submitted via Citizen Space, the Scottish Government's online consultation platform, and were automatically collated into a database, downloadable to Excel for analysis. A small number (n=3) who submitted an online response also sent complementary emails directly to the Scottish Government containing further detail or supporting documents to supplement their online response. A further 16 organisations submitted responses directly to the Scottish Government via email only, most of which were classified as 'non-standard' i.e. responses which did not follow the standard Citizen Space structure/format and which included more general observations and open ended text/arguments/points for discussion related broadly, but not explicitly, to the questions asked. These were incorporated into the main analytical spreadsheet.

Respondent Profiles

A total of 142 responses were received - 68 from individuals and 74 from organisations. Among the organisations that responded, there was a reasonable split between local authorities/justice partnerships and other organisations, including legal organisations, support/advocacy organisations, public bodies and academics, among others. Among the local authorities/justice partnerships that responded, there was wide geographical coverage. In addition, there was a mix of national and more local Third Sector respondents. The table below shows the breakdown of organisational responses by type.

All responses were screened to ensure that they were appropriate/valid. There were no blank, duplicate or campaign responses. While some organisational responses were very similar in content, indicating an element of collaboration in the submission process, none were duplicated in their entirety. All were also submitted on behalf of separate bodies and were therefore counted as unique responses.

Report Presentation and Research Caveats

The tables below show the number and proportion of respondents who concurred with the different proposals/reforms presented, but in many cases, large numbers of 'non-responses' were noted. In all cases, therefore, the 'valid percent' has also been shown (i.e. the proportion who 'agreed' or 'disagreed' with proposals once the non-responses were removed). This provides a more accurate account of the strength of feeling among those who answered the set questions.

Comments given at each open question were examined and, where questions elicited a positive or negative response, they were categorised as such. The main reasons presented by respondents both for and against the content included in the consultation were reviewed, alongside specific examples or explanations, alternative suggestions, caveats to support and other related comments. Verbatim quotes were extracted in some cases to highlight the main themes that emerged. Only extracts where the respondent indicated that they were content for their response to be published were used and a decision was made to anonymise all responses as part of the reporting process.

For qualitative data, as a guide, where reference is made in the report to 'few' respondents, this relates to five or less respondents. The term 'several' refers to more than five, but typically less than ten. Any views that were expressed by many respondents (i.e. ten or more) are highlighted throughout.

While it was possible to carry out disaggregate analysis of the data based on whether the respondent was replying as an individual or on behalf of an organisation, the analysis suggested that there were no quantifiable or notable differences in the main themes to emerge between the two respondent 'types' for most proposals.

It should be also noted that earlier questions in the consultation attracted a higher response rate than those that appeared towards the end, and this is reflected in the analysis presented below (i.e. there was less to report in general on questions related to release compared to questions related to bail). There was also a great deal of repetition in responses especially within the two different sections, such that views expressed in relation to one question were repeated multiple times in response to later questions. Some respondents did not answer the set questions directly and instead offered more general comments or observations, but all data were integrated into the analysis and are reported under the most appropriate sections.

It should also be noted that some people clearly misunderstood or misinterpreted some of the questions that were asked, and provided responses to the open and closed components of the same question which were sometimes contradictory. This is noted where relevant. Some also often referred to 'offenders' instead of 'accused' when discussing issues linked to bail and while this is factually inaccurate, quotes and wider sentiments have been left unedited for authenticity/transparency purposes.

Finally, although a reasonably large number of responses were received overall, it is worth stressing that the views presented here should not be taken as representative of the wide range of stakeholders invited to respond to this consultation, nor should they be generalised too broadly. They simply reflect the views of those individuals and organisations who chose to respond formally through the consultation process.