Evaluation of the Impact of Bail Reforms on Summary Justice Reform

1 INTRODUCTION

1.1 In December 2009, the Scottish Government commissioned independent research to explore the impact of bail reforms on summary justice reform (SJR), and the findings are presented here.

1.2 Although changes to bail were not originally part of SJR, they occurred at around the same time, and their aims and objectives were regarded as having the potential to impact on the achievement of the objectives of SJR.

1.3 As such, the research is part of a wider package of work to evaluate SJR in Scotland, and this report sits alongside a number of other individual evaluations of reforms to: direct measures; criminal legal assistance and disclosure; fines enforcement; undertakings and lay justice. An evaluation of the impact of the whole package of reforms on the experiences and perceptions of victims and witnesses, and the perceptions of the general public was also commissioned. Each of these evaluations reported separately, and this report focuses solely on the reforms to bail.

1.4 With this in mind, the purpose of this research was not to evaluate the bail reforms directly, but to determine the impact of the bail reforms on the summary justice system.

Summary Justice Reform

1.5 In 2001, the Scottish Ministers established an independent committee, chaired by Sheriff Principal John McInnes, to review the operation of the summary criminal justice system in Scotland, and to explore ways that it could be improved. The McInnes Committee concluded that the summary justice system was in need of a comprehensive overhaul. In particular, it highlighted:

• problems with the overall speed in dealing with cases;
• wasted court attendances for victims and witnesses;
• little difference in the way that minor and more serious cases were being dealt with by the system;
• no incentives to encourage defence agents to deal with cases quickly;
• inconsistencies in the way that the police, courts and Procurators Fiscal dealt with cases; and
• waste of public funds.

1.6 The McInnes Committee report, which represented a wide range of interests and experience in summary justice, was published in March 2004. Following consideration of the Committee's report and an extensive public consultation, Scottish Ministers published Smarter Justice, Safer Communities: Summary Justice Reform Next Steps in March 2005, outlining the government's proposals for summary justice reform, with a Summary Justice System Model Paper, published in September 2007, providing further details. The reforms that required legislation formed the basis of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007. Subsequently, a package of changes or 'reforms' were introduced. These are referred to as 'Summary Justice Reforms' or 'SJR'.

Aims and Objectives of SJR

1.7 The overarching objectives of SJR were to achieve a summary justice system that is:

• fair to the accused, victims and witnesses;
• effective in deterring, punishing and helping to rehabilitate offenders;
• efficient in the use of time and resources; and
• quick and simple in delivery.

1.8 The following intended outcomes of SJR were also identified in the Summary Justice System Model Paper (2007):

• the removal of a significant number of appropriate cases from the court through a greater use of non court options or alternatives to prosecution including adult warnings, fixed penalty notices and Fiscal direct measures;
• for cases that do come to court, those cases will come to court more quickly;
• improved case handling, namely:
  • early, effective preparation of cases;
  • more effective court hearings;
  • cases will be dealt with at the earliest possible stage in proceedings;
• appropriate allocation of case to forum³, including sufficient use of better-trained lay Justices;
• to make a contribution to reducing re-offending by dealing with cases at the earliest possible stage in proceedings; and
• to reduce inconvenience for victims and witnesses.

Bail Pre-Reform

1.9 In 2003, the Scottish Executive established the Sentencing Commission, comprising experts in the legal field and people involved with managing offenders and supporting victims. One of the first tasks undertaken by the Commission, on request of the Scottish Executive, was to examine the use of bail and remand in Scotland. In 2005, the Commission reported its findings to the Executive⁴, and made 38 recommendations which sought to reduce breach of bail, promote more consistent decision making on bail and to improve public confidence in the system. Specifically, the recommendations were designed to achieve:

• a reduction in offending on bail;
• a reduction in failures to appear in court;
• a reduction in the remand population, without compromising public safety;
• a general improvement in the consistency of decision making on bail and remand; and
• greater public awareness of the way in which the bail system works.

1.10 Emphasis in the Commission's report was placed on re-establishing respect for the law, on tougher, more consistent handling of bail breaches and failure to appear, and a need for consistent implementation of existing rules, as well as of the new provisions.

1.11 In September 2005, the Scottish Executive published the Bail and Remand Action Plan⁵ which reflected the findings from the Commission report. The focus of the 25 point plan of action was on better initial targeting of bail and remand, ensuring more consistent and transparent decision making with regards to bail, to make clear to accused that bail must not be abused, to reduce the scope for re-offending on bail, ensuring a speedier and more robust approach to breach of bail and ensuring that those on bail would be supervised effectively.

1.12 The report also set out for the first time some extended measures to change bail in response to public concern around grant of bail for serious repeat offenders, as well as making provision for the use of drug treatment and testing as a condition of bail. The action plan recognised that it would not be possible to change the way in which bail operated without corresponding improvements to the criminal justice system as a whole. As a result, the plan was developed with close consideration of the Smarter Justice, Safer Communities: Summary Justice Reform Next Steps proposals.

Reforms to Bail and their Overlap with SJR

1.13 The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 brought forward reforms to the operation of the bail and remand system in Scotland. The main purpose of the 2007 Act was to codify, clarify and strengthen the existing law on bail in order to bring about increased transparency and improved consistency in bail decisions. The Act did not change the fundamental aspects of bail such as the presumption in favour of bail, the circumstances in which bail may be refused, and the considerations that the court will consider in determining bail.

1.14 The Act did, however, introduce a number of specific changes, these being:

• to increase the maximum penalties for breach of bail conditions so that tougher action could be taken against those who breach their bail;
• to ensure that bail decisions were entirely a matter for the court to make, even where the Crown did not oppose bail - this was a reversal of the previous position where if the Crown did not oppose bail then it was granted by the court;
• to ensure the court gave reasons for all bail decisions so that the process for judges granting or refusing bail was more transparent; and
• to tighten the process for granting bail for the most serious cases.

1.15 There were three specific objectives for the evaluation in relation to the reforms to bail, these being to explore if the reforms to bail had contributed to:

• reduced instances of breach of bail conditions (especially failure to appear) from pre-reform levels⁶;
• making bail decisions more transparent and consistent; and
• ensuring that accused are given an ordinary language explanation of the conditions of bail and the consequences of breaching bail.

1.16 It was against these three specific criteria that the evaluation of the impact of the bail reforms was carried out. The scope of the evaluation was not, therefore, of reforms to bail as a whole, but rather of these specific aspects of the reforms. The evaluation also explored the use of increased sentencing powers for breach of bail.

Bail in Operation

1.17 Bail can be granted in both summary and solemn cases in Scotland. It can be awarded by Judges, Sheriffs and Justices of the Peace (JPs) respectively at the High Court, Sheriff Court or JP court level. The award of bail involves the liberation of an accused at first calling, or any subsequent appearance, in court, on the standard conditions⁷ that the accused:

• appears at the appointed time at every diet relating to the offence with which they are charged of which they are given due notice or at which they are required by the Act to appear;
• does not commit an offence while on bail;
• does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to themselves or any other person;
• does not behave in a manner which causes, or is likely to cause, alarm or distress to witnesses;
• makes themselves available for the purpose of enabling enquiries or a report to be made to assist the court in dealing with them for the offence for which they are charged; and
• where the (or an) offence in respect of which they are admitted to bail is one to which section 288C of the Act applies (in relation to certain sexual offences), does not seek to obtain, otherwise than by way of a solicitor, any precognition of a statement by the complainer in relation to the subject matter of the offence.

1.18 The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 enhanced these conditions such that:

• when granting bail, the Judge, Sheriff or JP is obliged to explain to the court (including the accused) the effect of bail conditions imposed and the consequences of breaching those conditions. On granting bail the judiciary are also required to take into account the views of the prosecution and defence, by virtue of the 2007 Act.
• the standard condition of bail prohibiting interference with a witnesses is supplemented by a further condition which makes clear that any behaviour causing or likely to cause alarm or distress to witnesses is also prohibited; and
• where the accused changes address, they must apply to the court within seven days for permission to change the domicile of citation accordingly. Failure to do so constitutes an offence.

1.19 In addition to the standard conditions of bail, a number of 'special conditions' may also be attached to a bail order at the time it is granted. These may include, for example, restrictions on where an accused can go or a home curfew. Special conditions are often used in cases where the accused would otherwise have been remanded. Attaching special conditions to a bail order allows a greater degree of control of accused's behaviour which may prevent further criminal activity while the order is in place. Importantly, applying special conditions may afford some additional protection and reassurance to victims and witnesses (and society at large) where they curtail the movement of offenders in and around the vicinity of those affected by crime. Special conditions which preclude a person from approaching stated persons or making contact with stated persons are also often used for domestic abuse cases as a protective measure for victims.

1.20 Most police forces have plans in place specifically in relation to policing of special bail conditions. Whilst this pro-active policing of special bail conditions may, therefore, result in a higher number of breaches being detected, their use does permit detection of behaviour that is disallowed so that it can be dealt with in order to protect victims, witnesses and the public and prevent future offending.

1.21 A bail order constitutes a written notification given to the accused when bail is granted, usually at the first appearance at court. Where an accused on bail fails to appear, or breaches a condition of bail, this is prosecuted as a separate offence under the Criminal Procedure (Scotland) Act 1995. Where the person on bail commits a further offence whilst on bail, it is regarded as bail aggravation and is not prosecuted as a separate offence. Instead, the original sentence can be supplemented and enhanced penalties imposed for that offence.

1.22 A bail order is deemed to be breached if the accused fails to meet any of the conditions attached to that order. The maximum penalty available for breaching bail was increased as part of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 from 3 to 12 months imprisonment for summary cases. For solemn cases, the Act increased the custodial penalty for failure to appear or other breach from 2 to 5 years.

1.23 Where a custodial sentences is imposed for the main offence for which the accused appears at court, section 27 (9A) of the Act sets out that a consecutive sentence should normally be imposed for related bail breaches.

1.24 The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 sets out that bail is to be granted unless there is a good reason for refusing. This presumption in favour of bail is regarded as necessary to fulfil European Convention of Human Rights responsibilities. The grounds for determining whether there is a good reason for refusal are set out in the Act.

1.25 In terms of the decisions on whether an accused is granted bail, the Act makes it clear that the decision on bail (and the imposition of bail conditions) is for the court alone and that the attitude of the prosecutor (who has a right to be heard and can oppose bail) does not restrict the exercise of the court's discretion. This is a reversal of the previous position where, if the prosecutor did not oppose bail, then the court concluded that bail should be granted.

1.26 The prosecution and defence may appeal bail decisions. Where an appeal is lodged, the judge granting or refusing bail must send a report to the High Court for consideration at the appeal. All bail appeals are dealt with by the High Court of Justiciary (the appellate court).

Methodology

1.27 Four case study areas were selected for the research, these being Ayrshire, Central, Lothian and Borders, and Glasgow and Strathkelvin Local Criminal Justice Board (LCJB) areas. The areas were chosen primarily to reflect different geographies as well as different workload volumes and characteristics. All areas handled both summary and solemn business.

1.28 An evaluation of undertakings was also commissioned, and the data for this and the undertakings evaluations were collected simultaneously. This was because bail and undertakings are relevant to the same part of the summary justice system (i.e. pre-court up to first hearings - although bail can extend through to the sentencing diet), involve similar processes, and, in the main, affect the same principal stakeholders.

1.29 A combination of methods were used to collect data to inform the evaluation including analysis of performance data held on the Scottish Government's Criminal Justice Board Management Information System (CJBMIS) and the Monitoring Workbook. This includes data from all partner agencies involved in the administration of summary justice including Association of Chief Police Officer in Scotland (ACPOS), the Scottish Court Service (SCS) and the Crown Office and Procurator Fiscal Service (COPFS). Additional data that was not held on the system was also obtained from the SCS and the Scottish Government to inform the work.

1.30 Secondary data analysis was complemented by collection of primary qualitative data from interviews with a number of stakeholders. Interviewees included Judges, Sheriffs, Justices of the Peace (JPs), Procurators Fiscal, defence agents and the police. A short face-to-face survey of accused who had previously been given bail orders was also carried out at a number of court sites.

1.31 Unlike the summary justice reforms, the bail reforms also applied to solemn cases (including sheriff and jury trials). As a result, attempts were made to canvass the views of a small number of victims who had been involved in (now closed) solemn cases where the accused had been given bail. Short one-to-one interviews were carried out with victims, and the data was considered alongside data generated from victims involved in summary cases (reported separately as part of the SJR Victims, Witnesses and Public Perceptions evaluation).

1.32 A full methodology is presented in Appendix A.

Research Caveats

1.33 The research used both quantitative and qualitative data, and limitations of both sets of data must be recognised. Although a considerable volume of data exists around bail orders, bail breaches, failure to appear and convictions and sentencing for bail breaches, data was not available in all cases to allow pre and post reform comparisons to be made. Specifically, data relating to use of special conditions, warrants for failure to appear at the local level and bail appeals was not available pre-reform and so the analysis is restricted to the period following the implementation of the reforms. Similarly, much of the data that is available in different units of analysis and it was not possible to always consider the proportionate use of, for example, bail orders against the numbers of persons prosecuted in court or the number of bail breaches as a proportion of all orders granted. Again, this is recognised throughout the report and attempt is made instead to compare broad trends between different datasets.

1.34 The qualitative data that is reported comes from representatives from various criminal justice agencies. It was not possible to recruit equal numbers of participants from each agency in each of the four selected case study areas and the sample was biased by an element of self-selection that occurred as the research progressed. This means that, for some groups (particularly Procurators Fiscal), there is no geographical spread of views and comments made reflect only those of the group who took part and do not necessarily reflect those of the agencies represented. As with all qualitative research, however, the key aim was to generate understanding of the issues. To this end we report the range of perceptions we found from interviewees and do not aim to report these views as being representative of all such participants in the justice system.

1.35 A cost exercise was initially planned as part of the work, but this proved difficult to achieve given a lack of data available on costs associated with various aspects of summary justice process delivery. As a result, the researchers have only been able to reflect on possible costs and savings that may occur in different bail scenarios and it is recognised from the outset that there will be many assumptions in this analysis.

1.36 Finally, it is important to stress that the interpretation and reflections on the research findings set out in this report are those of the researchers, and not of the Scottish Government. Further, the views put forward by the various respondents which are presented in this report are those of the individuals who took part, and should not be taken as being representative of the organisations for whom they worked. With these caveats in mind, the remainder of this report sets out the findings of the evaluation.