Bail and Release from Custody (Scotland) Bill: business and regulatory impact assessment

Bail and Release from Custody (Scotland) Bill

Purpose and intended effect

Background:

The Programme for Government 2021-22 included the following commitment "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."^[1]

Objective:

The Bill introduces a number of reforms designed to deliver on the Scottish Government's commitment to refocus how imprisonment is used. They are intended to ensure that, as much as possible, the use of custody for remand is a last resort for the court when a risk of serious harm arises. The Bill is also intended to give greater focus to the rehabilitation and reintegration of individuals leaving prison custody. The Bill is underpinned by a commitment to public safety and the protection of victims, and is intended to support a reduction in future risk of reoffending, fewer victims and improved outcomes for individuals and their families.

Bail Law

For those accused of criminal offences, the Bill to refocuses the legal framework which is used to make decisions as to when custody is able to be imposed by a criminal court, so that accused persons who do not pose a risk of serious harm should be admitted to bail as the criminal justice process proceeds. All bail decisions will remain a matter for the independent courts in each case.

Provisions in the Bill relating to bail can be broadly split into four distinct areas. These are:

• Reform to the legal framework within which bail decisions are made;
• Enhanced role for justice social work in provision of information to the court;
• Recording of reasons when bail is refused;
• How periods on electronically monitored bail conditions affects time served for custodial sentences

Release from prison custody

The Bill will also include reforms on arrangements around release from prison custody, with an emphasis on providing greater opportunities to support the reintegration of people leaving prison to reduce the risk of future offending and to enable people to move on towards more positive outcomes.

The provisions cover four broad areas:

• Point of release
• Improved support for people leaving prison
• Provision of information to victim support organisations on prisoner release
• Early release of prisoners in emergency situations

Rationale for Government intervention:

The Scottish Government supports the use of prison as being necessary for those who pose a risk of serious harm. However, it is also recognised that imprisonment damages the connections that prevent people from offending or reoffending, such as family relationships, accommodation and employment. Short-term imprisonment in particular, is not effective in addressing the underlying causes of offending.

For those leaving prison, effective support to enable them to reintegrate and make positive connections in their communities helps to prevent reoffending and supports more positive outcomes for them and those around them. A reduction in reoffending also means less crime and fewer victims.

In order to see reductions in reoffending and victimisation, with the associated damage to people and communities, there needs to be a more decisive shift away from the use of custody, including for remand, towards community-based interventions which do more to address the underlying causes of offending. More also needs to be done to ensure that consistent, timely services are available to support people on their release from prison at the point that they need them.

The proposals contribute towards the following objectives of the National Performance Framework: "live in communities that are inclusive, empowered, resilient and safe" and "respect, protect and fulfil human rights and live free from discrimination".

The proposals recognise that there is already support provided by local authorities and the third sector to people on bail and leaving prison custody. There are existing duties on public bodies to provide essential services to members of the public who require them, these duties are not specific to those leaving prison. There are good practice examples of services engaging in pre-release planning but this is not a consistent picture across Scotland.

Similarly local authorities currently have a duty to provide voluntary throughcare support to prisoners leaving custody following a period of remand or a short-term sentence (less than four years) should the individual request it within 12 months of leaving prison. Short-term prisoners may also receive throughcare assistance from a range of third sector services. Local Authorities must provide statutory throughcare for prisoners leaving long-term sentences (four years or more). However it is felt that revised minimum standards for throughcare should encompass a broader range of services reflecting the need for holistic support for people leaving prison.

Therefore the proposals may have some business impact on these local authority and third sector services including increased demand for bail support services and revised standards of throughcare.

Consultation

Within Government:

A number of Scottish Government departments/agencies and non-departmental public bodies (NDPBs) were engaged in the development of the consultation proposals, prior to publication of the consultation, throughout the 12 week consultation process and after. These included:

• Community Justice Division (Scottish Government) on impact of proposals on alternatives to remand, prison policy, throughcare provision and expansion of electronic monitoring;
• Criminal Justice Division (Scottish Government) on impact of bail law proposals and consideration of victims' issues;
• Civil Law Division (Scottish Government) on impact of bail law proposals on legal aid.
• Crown Office and Procurator Fiscal Service on impact of bail law proposals.
• Justice Analytical Services Division (Scottish Government) for evidence and analysis surrounding the proposals;
• Youth Justice Division (Scottish Government) on how proposals may impact children and young people and interaction with further planned legislation;
• Areas within Scottish Government with responsibility for equality, health (inc mental health), housing and homelessness, fair work, substance misuse and social security;
• Executive Agencies including Scottish Prison Service and Social Security Scotland on potential financial and operational impacts of the proposals;
• Executive, Advisory and Tribunal NDPBs including, Community Justice Scotland, Parole Board for Scotland, Risk Management Authority, and Scottish Sentencing Council.

Public Consultation:

Prior to publication of the public consultation, informal consultation was carried out with a number of organisations and fora including COSLA, the Criminal Justice Voluntary Sector Forum, HM Inspectorate of Prisons for Scotland, Police Scotland, Scottish Courts and Tribunals Service, Social Work Scotland and the Victims Organisations Collaboration Forum Scotland.

The Cabinet Secretary for Justice launched a public consultation entitled 'Bail and Release from Custody Arrangements in Scotland' on 15 November 2021. The consultation contained a number of specific questions around proposed reforms relating to the law governing the use of bail and remand for those accused of criminal offences, and the release from custody of those serving sentences following conviction. The consultation had an emphasis on both addressing the underlying causes of offending and protecting public safety and was intended as the first stage in a longer-term consideration of how custody is used in Scotland.

The public consultation was published on 15 November 2021 and closed on 7 February 2022, receiving 142 written responses in total. A total of 68 responses were received from individuals (48%) and 74 responses from organisations (third sector bodies, public sector and partnership bodies and other organisations).

Among the 74 organisations that responded, there was a reasonable split between local authorities/justice partnerships and other organisations. 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.

The analysis of responses summarised that there was strong support for almost all of the proposals in relation to bail reform. Many respondents caveated that legislative change in this area will need to be supported by an increased availability of community alternatives to remand and throughcare support. It was also suggested that collaborative working between statutory and third sector organisations would be essential for the delivery of the proposals.

There were concerns expressed about the impact improved provision of information by justice social work may have, including on resources and staff capacity of the social work and court service. Similar concerns were expressed about the use of EM bail. It was felt that resource may be required in order to support the infrastructure needed for the success of EM bail proposals.

There was general agreement to the principle of enabling more prisoners to serve part of their sentence in the community. Many respondents viewed that existing duties on public services to engage with pre-release planning were not sufficient and therefore agreed with proposals to place specific duties on public bodies and revise throughcare standards.

While the consultation was running, the Scottish Government continued to engage with external stakeholders, largely on a virtual basis due to Covid restrictions. Scottish Government officials attended a number of meetings with stakeholders and interested parties in order to highlight the contents of the consultation and how the proposals within may impact them.

In addition to the responses received from the consultation, engagement with those with related experience was conducted via a supported survey. The survey was shared through the Public Social Partnership networks with organisations who provide support and mentoring to people who have been released from custody after serving a short sentence. These organisations could support their mentees to complete the survey.

80% of respondents strongly agreed that it would be beneficial if voluntary throughcare support was offered to remand and long-term prisoners. A key message from the responses was the importance of engagement with all necessary public services prior to release. The respondents to the survey detailed which supports and services they felt would make it easier for people being released from prison custody. The most frequent supports to be highlighted were: access to housing, access to benefits, being linked in with any necessary health or addiction services and having a photographic ID and bank account set up before release.

Businesses:

As stated above, the Scottish Government consulted widely. Government officials actively brought the consultation process to the attention of a wide range of stakeholders, encouraging them to participate.

A number of organisations from the third sector, who have a particular interest in the delivery of throughcare, provided responses to the consultation including Apex Scotland, The Wise Group, Shine (Public Social Partnership) and Sacro. Additionally a number of advocacy/support organisations for victims provided responses including Scottish Women's Aid and Victim Support Scotland. Some professional bodies, such as Social Work Scotland, and legal organisations also provided responses.

Engagement has focussed primarily on the public and third sector, given that they will be most affected by the provisions contained within the legislation. It is unlikely that the provisions will have significant impact on the private sector.

Uptake of Electronic Monitoring, which is a demand-led service through a private contractor, will continue to be monitored.

Community Justice Services:As we move towards a greater of use of community-based disposals, an additional £11.8m has been made available to support community justice services in recovering from the pandemic in 2021-22. This investment will be increased to £15m for year 2022-23, in addition to around £119m of continued funding for community justice.

Electronic monitoring contracts: The electronic monitoring service is demand-led and the exact cost of the service depends on usage, as such, it depends on the numbers of orders or licences given by the Courts, Scottish Prison Service, and the Parole Board. Scottish Government spend on the electronic monitoring contract has averaged at around £3m a year for the last five years. This spend will vary dependent on use and future technology developments and policy uses.

The electronic monitoring provision is delivered on behalf of the Scottish Government by G4S (service provider). All contract variation will be discussed with the service provider to ensure contractual requirements are agreed and in place for the introduction and expansion of any new electronic monitoring policy and subsequent uses.

Bail Supervision services: In 2022/23, the Scottish Government are investing an additional £3.2m to further increase bail assessment capacity, helping develop bail supervision services across all parts of Scotland and supporting the implementation of electronically monitored bail. This builds on ongoing support, including additional investment of £550,000 per annum to bolster existing provision for supervised bail as an alternative to remand and a ring-fenced allocation of £1.5m for bail support for women. In May 2022, updated national guidance on bail supervision was published to support the consistent establishment and delivery of bail supervision across Scotland.

Throughcare services: Scottish Government work with partners in the SPS, Local Authorities and third sector service providers, to deliver throughcare services in Scotland. £3.7 million in funding is provided annually to third sector partnerships to support throughcare services for men, women and young people leaving short-term prison sentences. We also provide funding to local authorities to support the voluntary and statutory throughcare services they provide people leaving custody.

Victim Support Organisations: 4 VSOs responded to the public consultation. While the consultation was running, the Scottish Government continued to engage, largely on a virtual basis due to Covid restrictions, with the Victims' Organisation Collaboration Forum Scotland as well as VSOs on an individual basis. Victim Support Organisations currently receive £16m funding p.a. from the Victim Centred Approach Fund (VCAF). This includes funding to support the direct provision of advice and support to victims of crime.

Options

Option 1: 'Do nothing'

The policy impact of this option is likely to be:

• Continued rise in prison population/remand population,
• Current rates of re-offending likely to continue,
• Continued release from custody on a Friday meaning support is likely to not be available until after the weekend,
• People placed on remand who are not identified as posing a risk of serious harm,
• Disruption of children and young people's lives when parents are placed into custody, which has been shown to result in increased poverty, offending and poor academic performance.

Option 2: 'Non–legislative option to encourage change through policy/ funding'

The policy impact of this option is likely to be:

• Limited impact on the in prison population/remand population,
• Continued limited information available about the bail decision where the person is remanded,
• Continued release from custody on a Friday meaning support is likely to not be available until after the weekend,
• People placed on remand who are not identified as posing a risk of serious harm,
• Inconsistent availability of pre-release planning and throughcare support.

Option 3: 'Introduce a Bail and Release from Custody Bill'

The policy impact of this option in likely to be:

• Limiting the use of remand to those that pose a risk of serious harm, with a particular emphasis on a risk to public safety, and in all other cases

removing the unnecessary disruption of remand to a person's life, relationships, employment and other supports,

• Improving the information available to the court when making the bail decision through the enhanced role of justice social work.
• Increased transparency of remand decisions through the recording of reasons for refusal of bail with an increased emphasis on custody as a last resort.
• Ending release from custody on a Friday or the day before a public holiday – so that there is an availability of services when needed, reducing the likelihood of reoffending and/or drug related death or other harm.
• Increasing throughcare support and pre-release support so that those leaving custody have their housing/ accommodation needs considered, can have support with applying for benefits or employment and assistance with medication or other health needs.
• Reducing the likelihood of reoffending, and therefore reducing the number of victims of crime in Scotland.