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

Annex A – Data flow maps

Figures 1 and 2 are available in a larger format on request, please contact futureofcustody@gov.scot.

Figure 1: The below diagram sets out the current process by which victims receive information relating to the release, and certain other circumstances, of a prisoner (blue) and the anticipated process Victim Support Organisations (VSOs) will follow to receive this information on behalf of (or at the same time as) a victim who has nominated them to do so (green).

• If a custodial sentence is given the victim is entitled to receive information under section 16(3) of the Criminal Justice (Scotland) Act 2003, How the information is able to be received and what information the victim is entitled to will depend on the length of sentence given by the court.
• The definition of victim is - a person who is: the direct victim of a crime; certain relatives of a deceased or incapacitated victim; and parents or carers of a victim under 12 years old.
• A relative of a victim or the parent or carer of a victim under 12 years old are entitled to receive information under the VNS as if they were the direct victim. Under the proposals in this Bill, a relative or parent/carer may have a right to ask a VSO to request information

Current system (for victims of offenders serving more than 18 months)

• For victims of offenders serving more than 18 months COPFS check the eligibility of the victim and provide scheme information and registration form to the victim at the time of sentence. This will involve the processing of criminal offence data (of the offender) and personal data (of the victim) by COPFS.
• If the victim (of offender serving over 18 months) is verified by COPFS and completes the registration form they will be registered for VNS with SPS. SPS run the VNS which includes receiving application forms, issuing letters and inviting victims to make representations. This involves processing of personal information (victims) and criminal offence data (offender).
• For those who are eligible and have joined the VNS, SPS will provide the following information:
  • The date of the prisoner’s release (other than being granted temporary release);
  • If the prisoner dies, their date of death;
  • If the prisoner has been transferred out of SPS custody;
  • That the prisoner is, for the first time, entitled to be considered for temporary release;
  • That the prisoner is unlawfully at large; or
  • That the prisoner who was released or was unlawfully at large has been returned to custody.
• The information is provided via letter, to the addressed provided at registration. This involves processing of the victims personal information (e.g. address) and offenders personal information (e.g. release date) and criminal offence data.
• If the offender is sentenced to 18 months or more the victim may ask to make representations about release including temporary release. In relation to licence conditions under section 17 of the Criminal Justice (Scotland) Act 2003,
• The Parole Board will inform SPS if they are considering a prisoner for release.
• For those on the VNS and who have expressed a desire to make representations, SPS will write to seek these representations no less than two weeks before any decision will be taken on release:
  • On Home Detention Curfew;
  • On temporary release (but only on the first occasion that the prisoner is considered); or
  • By the Parole Board for Scotland

Current system (for victims of offenders serving less than 18 months)

• For victims of offenders serving less than 18 months, only if the victim directly requests information from SPS will SCTS check the physical court papers for victim eligibility. SCTS will be processing criminal offence data (offender), SPS will be processing the personal information of the victim who submitted the request. This system may change after VNS review.
• If the victim (of offender serving less than 18 months) is verified by SCTS, SPS can share information about the date of release or escape of a prisoner by issuing letters .This involves processing of personal information (victims) and criminal offence data (offender).

How this will be influenced by the proposed legislation

• Under the new legislation the victim may nominate a VSO to receive the information they are entitled to under section 16(3) of the Criminal Justice (Scotland) Act 2003. Additionally the VSO will have the right to ask SPS for this information on behalf of a victim they are supporting, and will receive this information providing conditions are met.
• VSOs will be approved by Scottish Ministers through secondary legislation. They may apply to be included on the list of approved VSOs, application will include an overview of their data processes (how information will be stored and how long). If verified VSOs will be added to a list of approved organisations who can apply for the scheme.
• For victims of offenders serving more than 18 months COPFS check the eligibility of the victim and provide scheme information and registration form to victim and nominated VSO. This will involve the processing of criminal offence data (of the offender) and personal data (of the victim) by COPFS, the legal gateway for this will be provided by the Bill.
• If the victims is verified by COPFS or SCTS and has nominated a VSO to receive the information SPS will issue letters to the VSO, instead of or are the same time they are sent to the victim registered.
• For victims of offenders serving less than 18 months, only if a VSO directly requests information from SPS will SCTS check the physical court papers for victim eligibility and will confirm this with the VSO. SCTS will be processing criminal offence data. (offender).

This Bill does not propose to change the current process as it is set out below although organisations such as SCTS may take the opportunity to refresh their processes around this information sharing. The Victim Notification Scheme (VNS) is currently under review with the possibility of recommendations for change as a consequence of that review (both legislative and non-statutory).

Figure 2: The below diagram sets out the stages of the bail decision process, outlining where the court may seek information from Justice Social Work

1. Incident reported

2. Crime classified & suspect charged –Incident is reviewed by police to determine if it is a crime, police charge suspect (where possible) and issue:

• A Fixed Penalty Notice or Recorded Police Warning
• A report to COPFS
• Decide on no further action

3. Police report the case to COPFS - The accused will be:

• Kept in custody – Case called the next court day
• Released on an Undertaking – Accused told when to appear and may have bail conditions
• At liberty – If prosecuted, the accused with receive a citation stating the charge and when to appear

4. Report marked by COPFS - Prosecutor decides if accused is prosecuted:

• No action – e.g. not enough evidence
• Direct Measure – An alternative to prosecution, e.g. fiscal fine
• Summary prosecution – JP or Sheriff Court (no jury)
• Solemn prosecution – Sheriff or High Court (with jury)

5. First appearance before the court i.e. first bail decision point -

Where a prosecutor raises a summary or solemn prosecution, the first bail decision point is when the accused first appears before the court on summary complaint or petition, where the court will determine whether the accused should be:

• Remanded in custody in a Scottish prison,
• Admitted to bail (i.e. permitted to remain at liberty in the community pre-trial) subject to conditions), or
• Ordained to appear (i.e. permitted to remain at liberty in the community pre-trial without conditions other than a requirement to attend future court hearings).
• Some other outcome e.g. short deferral period to determine the question of bail as admittance to or refusal of bail shall be determined before the end of the day after the day on which the person accused or charged is brought before the sheriff or judge.

This is the point at which the court will have a duty to provide justice social work with an opportunity to provide information to the court relevant to the question of bail before a determination is made. There will also be an express provision enabling the court to request information from justice social work on the question of bail at any hearing in which bail is considered.

6. Further stages on the case – After an accused’s first appearance, the court is not required to but will be expressly empowered to seek relevant information from justice social work to inform any future bail decisions.

7. Case heard and court outcomes – If the accused is found guilty in court, or tendered a guilty plea, then they can be given:

• Custodial sentence
• Community sentence
• Monetary Penalty
• Admonished / Dismissed
• Other disposal