Bail and Release from Custody (Scotland) Bill: data protection impact assessment

2. Introductory information

2.1

Summary of proposal

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 refocuses the decision-making framework so that remanding a person in custody is reserved for those who post a risk to public safety (including victim safety) or for when it is necessary to prevent a significant risk of prejudice to the interests of justice in a given case. 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

The changes will continue to be compliant with GDPR.

2.2

Description of the personal data involved

Please also specify if this personal data will be special category data, or relate to criminal convictions or offences

The legislation provides and strengthens the legal gateways of some bodies to access and process some personal data, after this point operational data protection responsibility moves to the data controllers as outlined below.

The bodies who will be data controllers already process information of this nature and many have suitable controls and information sharing agreements already in place. They have their own individual responsibilities to comply with GDPR as operationally independent bodies / agencies. The bodies / agencies which will be involved in data processing are:

• Scottish Courts and Tribunal Service (SCTS)
• The Scottish Ministers (as the Scottish Prison Service)
• Local Authorities, including Justice Social Work (JSW)
• Victim Support Organisations (VSOs)
• Parole Board for Scotland

Decisions on bail: relevant information from officer of local authority-

• Justice social work must be given an opportunity to provide the court with relevant information on the question of bail on the accused’s first appearance.
• The provision does not require justice social work to provide information but ensures the court must give them an opportunity to do so.
• Additionally, the court will have the power to ask for information relevant to the question of bail at subsequent bail decision points.
• Relevant information justice social work may be able to provide, or the court may proactively request, could include matters about the accused, such as addiction issues, home life and parental responsibilities.
• The Scottish Government understands that often in practice the court may already seek information from justice social work, therefore the amendments brought through the Bill will formalise this process.

The process map for this provision is set out in Annex A.

Refusal of Bail: Duty to state and record reasons (criminal offence data) – Where the court refuses bail, it must state:

• the grounds on which it determines, that there is good reason for refusing bail;
• if refusing bail [solely] on the ground of “substantial risk of absconding or failing to appear”, its reasons for considering that it is necessary to do so;
• its reasons for considering that it would not be appropriate to grant the accused bail subject to electronic monitoring
• those grounds and reasons must be entered in the record of the proceedings.

Duty to engage in release planning (criminal offence data) –

• In preparation for an individual’s release, the Scottish Prison Service (SPS) will offer to engage with the person in release planning. Where the individual wishes to do so, SPS will work with them to identify their support needs, and which public services they will need to engage with on release.
• SPS provide information to all local authorities about planned releases of sentenced prisoners into their area 12 weeks in advance of liberation. For remand prisoners their needs will be assessed by SPS and where support is required (e.g. housing appointments etc) the local authority is informed when possible.
• There are existing duties on public bodies to provide essential services to members of the public who require them. These are the needs that will be identified through pre-release planning and this information will be shared with the appropriate services.
• The services and support provided will generally be in relation to housing, employment, education, children, physical or mental health, social welfare and any other matter which may affect the likelihood of future offending.
• The engagement by identified partners will involve acknowledging a formal response by Scottish Ministers (as SPS) and providing input into the development, management and delivery of the individual’s plan.

Provision of information to victim support organisations (criminal offence data) -

• Section 16 of the Criminal Justice (Scotland) Act 2003 (“the 2003 Act”) introduced the right for a victim to be provided by the Scottish Ministers with certain information in relation to the release of the person who perpetrated (and was convicted and sentenced for) the offence against them in certain circumstances.
• The victim has to intimate to the Scottish Ministers that they wish to receive this information.
• The information to be provided under section 16 of the 2003 Act is:
  • the date on which the convicted person is released (other than being granted temporary release);
  • if the convicted person dies before the date of release, the date of death;
  • that the convicted person has been transferred to a place outwith Scotland;
  • that the convicted person is for the first time entitled to be considered for temporary release by virtue of the prison rules;
  • that the convicted person is unlawfully at large from a prison, young offenders institution or hospital;
  • that a person who has been released has subsequently been returned to a prison, young offenders institution or hospital;
  • where the convicted person is liable to be detained in a hospital under a hospital direction or transfer for treatment direction, that a certificate has been granted for the first time which suspends the person’s detention and does not impose a supervision requirement, or that that certificate has been revoked.
• Section 27A of the Victims and Witnesses (Scotland) Act 2014 provides a further route by which a victim can obtain information in relation to the release of the perpetrator of the offence against them. This applies only in cases where the convicted person is sentenced to fewer than 18 months’ imprisonment or detention. The victim may request that Scottish Ministers notify them of the convicted person’s release and any conditions imposed on them which are for the protection of the victim. The victim may also request that they be advised of the convicted person’s escape from prison.
• In practice, victims who have requested to do so receive the above information from SPS. Under this section of the Bill, victims will be able to nominate a Victim Support Organisation (VSO) to receive the same information provided to the victim under sections 16 and 17 of the 2003 Act and section 27A of the 2014 Act.
• Any VSO which receives information about an offender under this Bill will need to have in place the mechanisms required to process that data in accordance with the law.
• In order to provide a safeguard against offender information being released to an inappropriate organisation, the Bill makes provision for VSOs which victims can nominate to receive information to be prescribed in secondary legislation by the Scottish Ministers after undergoing a vetting process in which they will be required to demonstrate that they satisfy this criteria.

The process map for this provision is set out in Annex C.

Information Sharing Agreements (ISAs)

We are confirming that there are ISAs already in place between:

• The Scottish Prison Service (SPS) and Sottish Courts and Tribunal Service (SCTS)
• SPS and Scottish Social Security Agency
• SPS and Risk Management Authority (RMA)
• SPS and Parole Board for Scotland
• SPS and Local Authorities
• SPS and some third sector throughcare organisations

New ISAs may need to be established between SPS and VSOs and between the Parole Board and VSOs.

Scottish Government will recommend that all ISAs should be reviewed to ensure they remain sufficient for this particular legislation. This should include a review of the technical and organisational measures that should be in place to satisfy the requirements of the UK GDPR and the DPA 2018 (with consideration given to Part 3 for criminal offence data). However each data controller will be responsible for their own ISA review.

2.3

Will the processing of personal data as a result of the proposal have an impact on decisions made about individuals, groups or categories of persons?

If so, please explain the potential or actual impact. This may include, for example, a denial of an individual’s rights, or use of social profiling to inform policy making.

Yes. The provision of information by JSW to the court, which already takes place but will be enhanced by virtue of the Bill, will inform decision making on the question of bail. This will impact on a person’s liberty. Either through the bail conditions imposed or decision by the court to remand the person in custody. It will also inform/impact upon the support a person may be offered while subject to bail e.g. through bail supervision.

The provision of information from SPS to the Local Authority in advance of a person’s release will impact on the planning which is put in place to support them.

The provision of information about the release of a prisoner to a VSO may have an impact on decisions made by that VSO about the type of support which is offered.

2.4

Necessity, proportionality and justification

What issue/public need is the proposal seeking to address?

What policy objective is the legislation trying to meet?

Were less invasive or more privacy-friendly options considered, and if so why were these options rejected?

Are there any potential unintended consequences with regards to the provisions e.g., would the provisions result in unintended surveillance or profiling?

Have you considered whether the intended processing will have appropriate safeguards in place? If so briefly explain the nature of those safeguards and how any safeguards ensure the balance of any competing interests in relation to the processing.

Legislating is a well-considered, necessary and proportionate measure to adjust how courts make decisions relating to the liberty of people accused of offences. The legislation will also support the aim of reducing future offending and rates of victimisation by providing more opportunities for reintegration and support upon release from custody. Preparation for release will also include people who are being released from a period on remand as well as after sentencing.

Less invasive options were considered, but in most cases these reflected the current system of practice, which raise a number of issues and are therefore not considered appropriate to continue e.g.:

• When a decision by the court to remand a person is made, oral reasons are given in court (where brief minutes are generally taken). There is no formal requirement to record the full explanation for the remand decision in writing in the court record of proceedings. The nature of this method of delivery means that the accused, who can be overwhelmed by the court process, does not fully understand the reasons for the decision to remand.
• When requested Justice social work provide information to the court to inform decision-making on bail but this information is not requested consistently across Scotland, meaning some courts may not have access to full information around available alternatives which may result in the court making a different decision.
• Public sector bodies already have a duty to provide support to someone upon release from custody although this engagement is not consistent across the country meaning some partners do not engage until after a prisoner has been released, which can lead to problems with the individual’s reintegration
• Currently VSOs are only provided with information on a prisoner’s release via the victim once they have received it – we know that many victims have found the current practice re-traumatising and would prefer an option where the VSO receives the information instead and is able to support them through the process from the start.

In relation to the proposal for the recording of reasons for refusal of bail (which includes why electronically monitored (EM) bail is not considered appropriate) the processing of personal data is considered necessary in order to improve transparency and general understanding of this part of the court’s decision making process at a critical point when a person not convicted of any offence loses their liberty and to emphasise to the court the importance and gravity of a decision to refuse bail. The recording of reasons will not mean details of individual cases are released, but will allow for improved statistical understanding of the reasons for remand across Scottish courts.

In relation to the proposal that Justice Social Work (JSW) are provided with the opportunity to share relevant information about the accused with the court on the question of bail, this happens already but the Bill seeks to make it a more consistent practice. It is considered necessary to process personal data this way in order for the court to be as fully informed in their decision as possible when determining whether to grant a person bail. As noted, this is not new data processing as JSW already carry out this role in various courts in Scotland but this practice is inconsistent and can be dependent on certain factors, such as the availability of a justice social worker in the court. The measure therefore formalises on a statutory footing existing practice with the aim of making it happen on a more consistent basis.

In relation to the processing of personal data when exercising the new duty to engage in pre-release planning, it is considered necessary in order for public bodies to provide appropriate and timely access to the right support services to a person on their release from custody. These changes will engage these public bodies at an early stage of planning for a prisoners release, to improve the provision of this support.

In relation to the processing of personal data by providing information on a person’s release etc. from custody to a VSO, this is considered necessary in order for those VSOs to proactively support victims in a trauma informed way. This will include allowing them to proactively safety plan with the victim of the person being released and to assist the victim in making representations to the Parole Board or the Scottish Ministers on the proposed release. These changes will allow for a more trauma informed approach.

Safeguards.

For data shared between SCTS and SPS safeguards are already in place through ISAs. For the pre-release planning, ISAs should already be in place. This duty will move engagement to an earlier stage in the process but the engagement itself is not a new power. ISAs will also be developed between SPS and VSOs and between the Parole Board and VSOs as appropriate. The process for sharing information with victims about a prisoner’s release is already set out through the Victim Notification Scheme (the VNS). The safeguards for this scheme such as victims eligibility checks will remain in place. VSOs eligible for the scheme will be identified through secondary legislation and checks will be carried out to ensure the VSO is acting on behalf of, or has been nominated by, a person already entitled to information through the VNS and the legislation underpinning it. The type of information which can be provided is limited to the information currently shared with victims and the legislation will set out the limited purposes for which it can be used.

2.5

Will the implementation be accompanied by guidance or by an associated Code of Conduct?

If the latter, what will be the status of the Code of Conduct? (statutory or voluntary?

SCTS, JSW and VSOs already have robust policies and procedures in place for their current extensive responsibilities and are well versed in the sensitivities and legal requirements for handling this type of information. Therefore it should be possible to incorporate the handling of new information / processes for requesting this information into these existing processes.

VSOs already handle information about prisoner release, albeit that information is acquired via the victims sharing with them when engaging themselves in relation to support.

We will consider the need for guidance relating to data sharing and management under the Bill in collaboration with statutory delivery partners and VSOs. This is in recognition that some VSOs which will be responsible for data protection may welcome voluntary guidance to help them apply controls consistently. This engagement will take place post-introduction: the Scottish Government will share the relevant provisions with VSOs and actively seek their views on what support might needed to help them comply with their GDPR responsibilities and their new role under this legislation.

This will enable VSOs to develop an understanding of the practical implications of the provisions, and clarify whether they would benefit from any guidance. Should such guidance be deemed beneficial, the intention that it would be in place in advance of the commencement of the provisions on information-sharing.

To ensure the information handling is consistent information sharing agreements will be developed where they do not already exist.

In relation to this Bill we would favour guidance over a code of conduct approach.