Evaluation of the Impact of Bail Reforms on Summary Justice Reform

8 DISCUSSION

Main Findings

8.1 The main findings from the evaluation are that:

• The number of bail orders made by the Scottish courts has fallen year on year since 2006/07. This drop mirrors an overall drop in the numbers of persons proceeded against in court, which was also at its lowest in 2010/11 since 2002/03 (although it is not possible to say if the proportionate use of bail orders has changed over time).
• The majority of bail recipients receive only one bail order in a year, with one in four having been released on bail on more than two occasions in the same year. This percentage has remained relatively steady over time, confirming the static level, pre and post-reform, of the judiciary granting bail to those who have already previously been released on bail.
• In terms of special conditions attached to bail orders, while professional interviewees anecdotally reported an increase in the number of special conditions being granted, the quantitative data show that there has been little variance over the three year period post-reform. The lack of pre-reform data means it is not possible to say whether the reforms had any immediate impact and there is also a lack of data on the nature of special conditions awarded. Special conditions, however, are used in over half of bail orders imposed, highlighting the value the judiciary attach to being able to impose specific conditions in certain cases in addition to standard conditions of bail.
• With regard to special conditions, some accused and defence agents commented that these special conditions can be challenging to keep to, in particular, in relation to curfews. These interviewees also considered that these 'difficult' special conditions are more likely to be a reason for breach of bail conditions.
• The number of appeals has fluctuated over time, however, there has been no obvious increase post-reform. Qualitative data suggests that more feedback on the outcome of appeals would be welcomed by the judiciary who made bail decisions.
• The numbers of convictions for breach of bail overall have increased quite notably over time. Possible reasons for this include the use of special conditions, police and the courts having a 'tougher' attitude to breach, or a core of accused not taking bail seriously.
• When looking at breaches for FTA separately from other types of breach, however, it shows that there has been a drop in the numbers of people failing to appear at the intermediate, trial and sentencing diet since the reforms were implemented, which may again reflect the downward trend in numbers of people proceeded against.
• For those convicted of breach of bail, quantitative data show that most failures to appear are dealt with by way of a monetary penalty, with the average custodial sentence increasing slightly post-reform for those convicted of breach of bail other than for failure to appear or re-offending.
• Interviewees considered that ordinary language explanations and reasons behind bail decisions were more frequently given by the judiciary when imposing bail and special conditions than pre-reform, although some defence agents and members of the judiciary questioned the value in spending time providing these explanations during court time.
• While habitual offenders fully understood the reasons for bail decisions and the consequences of breach, a number of accused reported that they did not fully understand what they were being told in court. Habitual offenders also seemed less daunted by the consequences of breaching bail.
• Overall, there seems to be no change in the consistency of bail decisions, with almost all professional groups, as well as accused suggesting that decisions do still vary among members of the judiciary.

Meeting the bail reform and wider SJR objectives

8.2 The first specific objective of this evaluation was to explore if there had been a reduction in instances of breach of bail conditions (especially failure to appear) from pre-reform levels. The numerical data analysis suggests that non-FTA breach rates have, in fact, increased post-reform. There was generally a perception among interviewees, particularly the police, that breach rates were still high. Furthermore, the use of special conditions may be a factor affecting breach rates, especially where such conditions are proactively policed. This was highlighted in particular by defence agents as well as some accused who were interviewed who found their conditions to be challenging to adhere to.

8.3 When looking solely at failure to appear, rates have dropped slightly over time. It may be that reduced instances of FTA are linked to the general downward trend in cases coming to court (although this same argument cannot be applied to breach rates overall, since they have increased). If there has been a proportional drop in FTA, it may be argued that this, in part, is contributing to the wider SJR objective of more effective court hearings. That said, from the data available, it is not possible to say if this can be directly attributed to the reforms to bail.

8.4 Data from the victims, witnesses and public perceptions evaluation also supports the idea that failure to appear and breach has not decreased post-reform. Staff from victim and witness support, information and advice organisations (for example, Victim Support Scotland) who were interviewed for that evaluation suggested that tactics are still often employed by accused to try and avoid prosecution, and that failure to appear (especially in cases with multiple accused), is a strategy that is still frequently used to try and avoid justice. These staff also suggested that accused are still often perceived by victims and witnesses as breaching bail conditions, with disregard for the consequences of doing so. The same sentiment was also expressed here.

8.5 The second objective of the evaluation was to explore whether and to what extent bail decisions are more transparent and consistent post-reform. Although there is no specific KPI data that can be used to measure progress against the objective, interviews with the judiciary suggest that they are accepting of the need to provide more detailed verbal explanations (if a little sceptical about their effectiveness) and to provide written reports regarding bail decisions. There may be room, however, for further consistency in decision making.

8.6 The third specific objective for this evaluation was to explore whether the bail reforms had ensured that accused are given an ordinary language explanation of the conditions of bail and the consequences of breaching bail. Again, there is no quantitative data available with which to measure progress against this objective, but feedback from interviews does suggest that explanations are being given. That being said, interview data also shows that while some habitual offenders are clear on their conditions of bail, some first time offenders report not fully understanding their conditions of bail. This perhaps suggests that more can be done to improve the quality and clarity of these explanations.

8.7 For those who are convicted of breach of bail, quantitative data show that most failures to appear are dealt with by way of a monetary penalty. The average custodial sentence for breach of bail other than for failure to appear or re-offending has increased to a small degree post-reform, although the average values for all other penalties has remained largely unchanged. This is consistent with interview data, in particular with defence agents noticing a small increase in custodial sentences for offenders who breached their bail conditions. Interviews with the accused found that they mostly considered that breach of bail would be treated seriously, and would result in a custodial sentence.

Messages for Policy

8.8 Some defence agents are still undertaking a notable role in providing explanations to accused regarding their bail and bail conditions. Although this complements the work of the judiciary, and legal advice is a fundamental requirement of defence agents, the extent to which accused are relying on defence agents instead of listening to and understanding the judiciary in court may suggest that there is some scope to further improve the way in which explanations are communicated in court.

8.9 Many repeat attendees at court (including repeat offenders) are familiar with bail conditions and the consequences of breach, however, the current system of providing 'ordinary language' explanations in court does not seem to be offering the level of clarity required for those who have not had previous involvement in the court system. These accused welcomed the prospect of more targeted information, that would provide a greater understanding of the summary justice system and restrictions placed upon them, which may also make the system more efficient and effective. This information seems to be required on the system as a whole, not just on bail.

8.10 Although, procedurally, changes to the bail appeal system are welcomed as an improvement towards system transparency, it seems that there may be scope to further improve this specific component of the bail system by ensuring that members of the judiciary receive feedback on the quality and usefulness of the reports that they prepare. This feedback may allow for further improvements to be made such that these reports operate to their maximum utility.

8.11 Police, the judiciary, Procurators Fiscal, defence agents and victims all shared a view that, for some, bail conditions would always be breached and would never be taken seriously (and, indeed, the rising in breach rates may suggest that bail conditions are not being taken seriously by some). This view was also reflected in some interviews with accused, primarily those who were repeat offenders. This suggests that there may be a need for different strategies for dealing with repeat offenders other than those already set out, since their flouting of the law may act to undermine public confidence in the system.

8.12 Finally, it seems that, in some cases, the use of special conditions attached to bail may not be working to improve system efficiencies. Special conditions are undoubtedly valuable in cases where the accused would otherwise have been remanded, affording a greater degree of control over the behaviour of the accused, as well as providing a valuable victim, witness and public protection and reassurance tool. In cases where special conditions are ignored or prove too challenging, however, it may be generating an increased court workload which might otherwise have been avoided had alternative decisions to bail been used (including custody, standard conditions, supervised bail, or being released without bail conditions to await citation). It seems, therefore, that the use of special conditions in some cases may be causing tension between efficiency and public protection. The overriding message appears to be that special conditions need to be carefully considered and be relevant and proportionate to the specific case.

Conclusion

8.13 In sum, the research has shown that the reforms to bail have not impacted greatly on its use. Although there have been fewer orders granted, that may reflect wider summary justice system changes as well as a drop in court workloads per se. Convictions for breach have increased overall, contrary to the aim of the reforms to reduce breach. This perhaps suggests that bail is not being taken seriously by accused, though it may also reflect a tougher approach to breach on the part of justice professionals. There has, however, been some reduction in failure to appear, though it is unclear if this numerical drop represents a proportional drop.

8.14 There is some scepticism regarding the effectiveness of special conditions, especially in light of a core of accused who continue to breach standard and/or special conditions regardless of the perceived consequences. The value of special conditions in appropriate cases is, however, still recognised. Treating breach of bail seriously is also prominent in the minds of the judiciary and appears to be occurring in practice. The provision of ordinary language explanations does appear to be taking place but does not appear to be translating into full understanding of bail and bail conditions among all accused and there may be scope for greater clarity here. The increased transparency in the bail appeals system is, however, being perceived as a system improvement among professionals. Overall, while almost all of those interviewed viewed the current system of bail as fair, they questioned its effectiveness, especially in terms of deterring future breach amongst repeat offenders.