Bail and release from custody arrangements: consultation analysis

Discussion

Main Findings: Bail

The table below shows the percentage of respondents who agreed ('strongly' or 'somewhat') or said 'yes' to various proposals set out in relation to bail.

Proposal	% of Respondents
Q1. Agreement with changes proposed in relation to when judges can refuse bail linked to public safety	63%
Q2. Agreement with changes proposed in relation to how judges consider victim protection when making decisions about bail	66%
Q3. Agreement with changes proposed in relation to courts being empowered to make decisions on the question of bail in all cases using a simplified legal framework	77%
Q4. Agreement with changes proposed in relation to judges giving written and oral reasons when they decide to refuse bail to an accused person	76%
Q5a. Agreement with different options for courts considering bail decisions in cases where the prosecution opposes bail (the most popular option being that the court must ask for information from social work. Social work must provide it)	66%
Q5b. Agreement with different options for courts considering bail decisions in cases where the prosecution is not opposing bail (the most popular option being that the court may ask for information from social work, but is not obligated to. Social work may decide whether to provide it)	48%
Q6. Agreement with proposals that courts should be required to consider Electronic Monitoring before deciding to refuse bail	79%
Q7. Agreement with proposals that, when a court decides to refuse bail, they should have to record the reason they felt electronic monitoring was not adequate	86%
Q8. Agreement with proposals that time spent on bail with electronic monitoring should be taken into account at sentencing	65%
Q9. Agreement with proposals that, if time on electronic monitoring is to be taken into account at sentencing, there should be legislation to ensure it is applied consistently	81%
Q11. Agreement with proposals that legislation should explicitly require courts to take someone's age into account when deciding whether to grant them bail	60%
Q12. 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	79%

Overall, the majority of respondents supported proposals so that judges can only refuse bail if there are public safety reasons for doing so, subject to greater clarification around the definition of public safety (with a nationally agreed framework/definition to ensure that processes are consistent across the country) and more investment and accessibility of community interventions and support to underpin confidence in the use of bail. This would help to address what many (but not all) considered to be excessively high numbers of people currently and historically being held on remand in Scotland.

A simplified legal framework which is transparent and comprehensible by all those involved in the criminal justice process, particularly the accused and victims, was seen as something that would be helpful, as well as potentially speeding up the administration of justice to the benefit of all concerned.

All measures to increase consistency, transparency and accountability were welcomed, including the provision of written explanations of bail/remand decisions and considering victim protection more specifically in bail decisions. Accessibility in any communications from the court was seen as crucial, especially for vulnerable accused, victims and their respective families/supporters.

There was strong support for community based interventions for accused, and many supported the proposed reforms in relation to electronic monitoring. EM was seen by many as being much more effective (and cost effective) than custody at providing a way of 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 resource may be needed to make the proposals workable, it was felt.

More than half of respondents offered support for all but one of the proposed reforms in relation to bail (that being the requirement for courts to ask for information from social work and social work possibly providing it in cases where the prosecution is not opposing bail). Provided that any legislative change to bail is supported by increased availability of appropriate community alternatives to remand, most other bail reforms would be supported, it seems.

Main Findings: Release from Custody

The table below shows the percentage of respondents who agreed ('strongly' or 'somewhat') or said 'yes' to various proposals set out in relation to release from custody.

Proposal	% of Respondents
Q13. Agreement with the statement that, in general, enabling a prisoner to serve part of their sentence in the community can help their reintegration	78%
Q15a. Agreement with proposals that, through good behaviour, or completing education, training and rehabilitation programmes, prisoners should be able to demonstrate their suitability for early release	54%
Q15b. Agreement with proposals that, through good behaviour, or completing education, training and rehabilitation programmes, prisoners should be able to demonstrate their suitability for the ability to complete their sentence in the community	54%
Q17. Agreement with options in relation to automatic early release for short term prisoners (the most popular option being automatic early release changes to earlier in the sentence, but the individual is initially subject to conditions and monitoring, until the half-way point)	55%
Q18. Agreement with options for long-term prisoners being considered for release by the Parole Board for Scotland	51%
Q19. Agreement with proposals that the Scottish Government should ban all prison releases on a Friday (or the day before a public holiday), so people leaving prison have greater opportunity to access support	76%
Q20. Agreement with proposals regarding HDC (the most popular option being that the maximum length of time allowed on HDC should be longer)	53%
Q21. Agreement with proposals that the Scottish Government should consider whether information on individuals being released from custody can be shared with third sector victim support organisations	88%
Q22. Agreement with proposals that, in addition to information on individuals being released, victims and victims support organisations should be able to access further information	76%
Q23. Views on public service engagement with pre-release planning for prisoners (the most popular option being that existing duties are not sufficient; public services should have a specific duty to engage with pre-release planning	74%
Q25. Agreement with proposals that support should be available to enable prisoners released direct from court to access local support services in their community	96%
Q26. Agreement with proposals that revised minimum standards for throughcare should incorporate a wider range of services	94%
Q27. Agreement with proposals that revised minimum standards for throughcare should differentiate between remand, short-term and long-term prisoners	65%
Q28. Agreement with proposals that revised minimum standards for throughcare should be statutory	84%
Q29. Agreement with proposals that other changes should be made to the way throughcare support is provided to people leaving remand/short-term/long-term prison sentences	53%
Q30. Agreement with proposals that other support mechanisms be introduced/formalised to better enable reintegration of those leaving custody	71%
Q31. Agreement with changes proposed in relation to the introduction of an executive power of release, for use in exceptional circumstances	60%

There was considerably more divergence in the views offered in relation to proposals to release from custody with some proposed reforms being almost unanimously supported and others attracting very weak support.

Similar to views expressed in relation to EM as a bail option, there was consensus that many benefits could be found in allowing a prisoner to serve part of their sentence in the community (to minimise the negative impacts of custody and maximise opportunities for reintegration).

There was a strong sense that throughcare should not be voluntary but should be part of a sentence and part of every process of release - it was felt that release plans should look holistically at the social and wellbeing needs of individuals and ensure that appropriate supports are in place. Support available in the community to enable prisoners released directly from court was very widely supported as well as revised minimum standards for throughcare incorporating a wider range of services.

Early automatic release was not at all well supported, given that respondents felt that risk and behaviour in prison should determine earlier release. Robust and reliable pre-release planning was also considered essential to help tackle the issue of high proportions of returning prisoners. Indeed, collaborative working between SPS, criminal justice social work and third sector support organisations was seen as crucial in supporting release, in whatever guise.

The various proposals set out in relation to Home Detention Curfews (HDCs) were also not well supported with only two attracting support from more than half of respondents. Eligibility and suitability for HDC should always be determined by individual need/risk, it was felt, and the HDC system should not be unnecessarily constrained.

While support for accused in addressing criminogenic needs was a recurring thread in many responses, there was concurrent agreement that victim interests should be supported including very strong support for information sharing with victim support organisations when people are released from custody.

Differences in views by respondent type

Although separate analysis of feedback provided by organisations and individuals was carried out to look for any divergence in the views expressed by each group, the only qualitative difference observed was a marginally more punitive stance adopted by individuals compared to a more rehabilitative stance from organisations (although this was not evident across the board). There was also a skew towards concerns around costs, resources and practical constraints to implementation being noted more by organisations than individuals.

Some differences in the closed question responses offered by different 'types' of organisations were also noted but only in response to a small number of proposals, these being:

• victim support and advocacy organisations were less supportive of the proposed change in relation to the simplified legal framework compared to other types of organisations;
• victim support and advocacy organisations were also more likely than others to disagree with courts being required to consider electronic monitoring before deciding to refuse bail and proposals that time spent on bail with electronic monitoring should be taken into account at sentencing;
• organisations representing both accused, prisoners and released and victims were the main types of organisations to disagree that legislation should explicitly require courts to take someone's age into account when deciding whether to grant them bail;
• the majority of organisations representing accused, prisoners and released supported the change to allow some long-term prisoners to be considered by the Parole Board earlier if they were assessed as low risk (as opposed to the other options presented);
• organisations representing the interests of accused, prisoners and released as well as children and young people were slightly more likely than others to be against information being released to victims and victim support organisations (but were not the only types of organisations to disagree with this); and
• local authority/justice partnerships were the main types of organisations to disagree with the introduction of an executive power of release, for use in exceptional circumstances.

Given that the numbers of each different 'type' of organisation were relatively small, the above findings should not be generalised too widely.

Cross-cutting themes

Specifically for proposals linked to bail legislation, some legal organisations and public bodies suggested that some of the reforms were unnecessary (as existing legislation already worked well) and lacked robust justification. Judicial independence should be protected, it was felt, and changes to the way that bail and remand operate should remain politically independent. 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.

Comments were also made throughout that reforms to the bail and release system may only be possible if embedded in a more holistic and inclusive idea of justice. Several argued that wider social and systemic change was needed to policies in health, education, employment, housing, etc. in order for justice reforms to also succeed and, without these wider changes, bail and release reforms would inevitably fail to achieve their wider aspirations. Tackling wider social issues around inclusivity and social equality was also needed, it was felt.

Another common theme throughout the consultation was for the justice system to better balance the needs of victims and the accused. Many of the proposals in relation to bail were welcomed on the basis that they would promote the needs of both offender and victim which many saw as a core aspect of the justice system. Others, however, argued that the proposals needed to be accompanied by more fundamental change throughout the whole justice system to improve the picture of justice for both offenders and victims.

There was also an inherent conflict in responses from those representing accused, prisoners and released prisoners, as well as victims, with some offering views that the former were clearly in need of support and assistance (evidenced by their involvement in crime) while in respect of the latter, it was felt that the proposals largely moved away from victim centred approaches to placing perpetrators' needs ahead of victims. Others posited that the questions in the consultation framed the discussion around justice reform in a way that contravenes principles of social justice, setting the victims' rights against the accused. While the quantitative data presented appears to show more weight or support for the majority of proposals (than against), this may reflect the interests of those who responded (with fewer victims organisations represented than other groups, for example) and this must be considered when interpreting the findings.

This being said, there was consensus regarding the importance of safeguarding particularly vulnerable accused and victims (especially victims of domestic abuse) as well as children and young people (as accused, offenders and victims).

The final significant theme to emerge was the need for more investment and resources to boost capacity to deliver the proposed changes. Existing services would be unable to deliver what was being proposed (especially criminal justice social work services) and while many supported the policy aspirations, these would come at significant costs to the public purse, it was suggested.

Feedback on the consultation

While all responses were treated with equal weight in the analysis (in the interests of fairness), it is important to note that some views may have been more evidence- and experience-based compared to others. It should be noted that several respondents commented in response to certain questions that they did not feel sufficiently knowledgeable or experienced to be able to provide an informed response, yet still gave a response based on conjecture.

Several respondents also commented that they felt they could only offer 'cautious support' for many of the proposals, sometimes because they felt the proposals still needed some further thought or development before being finalised. Although the sample was fairly representative of the criminal justice sector, this (and the perceived lack of respondent expertise noted above) points towards a need for more clearly rationalising or explaining some of the proposals to make sure that they are understood, as well as ongoing engagement and consultation with the broad range of stakeholders to ensure that changes, if introduced, are embraced. Indeed, a vocal minority expressed that they viewed the consultation as an inappropriate medium by which to address the considerable challenges at hand, instead viewing it as a 'tick box exercise'. Wider and different forms of engagement were therefore suggested to ensure that points of critical importance are not missed as the legislative change process moves on.

A further observation was the questioning by a small number of organisations and individuals of the evidence presented to support some of the proposals, including the effectiveness of HDC and EM (without supervision) and assumptions that prison programme attendance/completion may evidence rehabilitation. Others urged clearer linkages in the consultation with other policy developments, guidance and research in aligned fields (including recent and ongoing changes being made by the Scottish Sentencing Council).

Finally, several noted that the consultation was quite lengthy and a more accessible version of the document may have been welcomed, particularly for gathering views of children and young people. While some support and advocacy organisations had engaged with their service users/members to inform their response, a medium which would have allowed them to contribute more directly would have been welcomed. Despite the fact that the Scottish Government did, in fact, engage with a range of stakeholders concurrent to the online consultation process (including those with lived experience), some respondents were unsure of this and suggested that engaging with victims, witnessed, accused, offenders or supporters of these groups may be helpful in taking the proposal forward to the next stage. Separate and dedicated engagement with young people was also suggested.

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.

Next Steps

The responses to the consultation, summarised above, will be used alongside other evidence to inform legislation which is expected to be introduced to Parliament in mid-2022.