Evaluation of the Impact of Bail Reforms on Summary Justice Reform

4 TRANSPARENCY AND SUMMARY BAIL APPEALS

4.1 One of the specific bail reform objectives was to make bail decisions more transparent and consistent. In order to achieve this, there were two key changes to bail, these being:

• 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 (i.e. to provide an ordinary language explanation); and
• the Judge, Sheriff or JP is required to state the reasons for their decision in relation to bail. They are further required, under the reforms, to provide to the appellate court (the High Court) written reasons for any decision that is under appeal.

4.2 These changes impact on SJR to the extent that greater transparency is fair to victims, witnesses and the accused, which is one of the overarching objectives of SJR. Although improved consistency was not a specific objective of SJR, improved consistency that may result from these reforms does arguably impact on overall better handling of cases, which was a SJR objective.

Ordinary Language Explanations

4.3 On ordinary language explanations, most members of the judiciary commented that this was something they had "always provided", although there was perhaps a greater awareness of the need to ensure that their explanations were given consistently:

"… I spend more time now explaining bail conditions which is something I didn't do so much of before, so that's a definite change…." [Sheriff]

"Before, you would release someone on bail and they could get a copy of the conditions at the back of the room on the way out, now there is [a] process where you have got to read out all these conditions and in the past quite often if you were about to do that a lawyer would stand up and say it's ok I will explain the conditions to my client. Now you are not allowed to do that, now you go through (the conditions) and check (the accused) understand them". [JP]

4.4 Some contrary views were put forward by a small number of Procurators Fiscal that suggested that the explanations were not as clear and consistently delivered as they might be and, as a result, many accused were reliant on their defence agents to explain bail and bail conditions instead:

"Some (accused) have problems, and you can see why they don't really understand what the Sheriff is saying, no matter how much simple language they use, so it's then down to their solicitor to explain to them exactly what it means after court". [Procurator Fiscal]

4.5 A small number of Sheriffs commented that they felt that the balance of responsibility for them to explain bail and bail conditions to accused instead of defence agents was not quite right although opposing views were also put forward by Procurators Fiscal and defence agents who stated that they felt there was too great a reliance on the defence agent to provide information to clients about bail decisions:

"It has been a fetish of new legislation to put in that you'll explain things to the punter. Don't leave it to the busy lawyer." [Sheriff]

"I think there's still an awful lot of Sheriffs that just say "You're getting put on bail." A lot of them will say, "Has your solicitor explained the conditions to you?", and they [the accused] say "Yes", but we haven't". [Defence Agent]

4.6 While Sheriffs acknowledged that the legal responsibility of ordinary language explanation was falling to them, defence agents also seemed to suggest that they were still being expected to actually provide explanations, because Sheriffs were not doing so in simple enough terms. This suggests the risk of a gap in some cases if both Sheriffs and defence agents perceive that one another will provide the required information to the accused, but neither in fact do.

4.7 Where Sheriffs were meeting their obligations to provide ordinary language explanations, there was also some suggestion that this may not be the most productive use of their time. Again, this was raised by members of the judiciary and defence agents alike:

"The only changes that I'm concerned with are the ones that affect me directly. One is to explain bail to people in court which is a complete and utter waste of my time, although I do it because that's what the law says. The solicitor ought to be able to explain to them privately what the conditions of bail are and why I'm supposed to sit there and explain bail to people is beyond me, unless the government want to make it look like something is happening. It takes up a lot of my time and is a complete waste of time, because the punters don't want to know about transparency in bail conditions, they want to know "Am I getting out or am I not?'" [Sheriff]

"I think there are some Sheriffs who labour all of the conditions, but while they do that, I don't think it has any effect. Because, when you say they [the accused] are getting bail, that's all they want to hear." [Defence Agent]

4.8 Among police, the judiciary and defence agents there was general cynicism regarding the impact that clearer explanation would have on accused:

"I'm sure their solicitors go into great detail too, but many of them have been on bail before and many of them are on bail when they are granted bail again, so they know the conditions of the bail. The forms that they sign are relatively clear and they know the consequences". [Sheriff]

4.9 Although there were some comments that accused may not hear or understand explanations given regarding bail when offered, it was generally acknowledged that, where explanations were provided by the judiciary, there was little else the judiciary or defence agents could to do make the process of bail any easier to understand:

"All the Sheriffs are careful to provide a full explanation and they [the accused] get it written down too, so I'm not sure what else they can do. [Defence Agent]

4.10 Thus, despite attempts to provide greater detail, and to achieve greater transparency, it seems that this has not, in the minds of professionals interviewed, necessarily impacted positively on accused behaviour. That said, the value and necessity of clearly setting out the conditions of bail and consequences of breach were still recognised as essential to a fair system.

Number of Summary Bail Appeals

4.11 Table 4.1 shows the number and proportion of summary bail appeals at the national level for the period April 2008 to September 2011¹⁴. It shows that there has been little change in the numbers of bail orders appealed in the period since the reforms, and that, consistently, around 4% of bail orders are appealed.

Table 4.1 Number and Proportion of Bail Appeals, April 2008 to September 2011, National

	April 2008/ March 2009	April 2009/ March 2010	April 2010/ March 2011	March 2011/ September 2011
Number of Bail Appeals	2557	2800	2640	1329
Proportion of Bail Appeals	4%	4%	4%	4%
Number of Orders	70,294	69,973	69,581	35,525

4.12 Interviews with professionals also did not provide any evidence of overall impact of increased transparency or consistency on bail appeals. Indeed, changes to the bail appeals process, in terms of the obligation of the court to provide verbal explanations to accused and written explanations to the appellate court, were perceived to have had only a small impact on operational practice with Sheriffs and JPs commenting only that there is now slightly more paperwork to do:

"We all complete a bail form on the day when the case is being dealt with and that is for the purposes of an appeal. It gives the reasons for refusing bail and it allows bail appeals to be dealt with easily and that is a change because we didn't do that previously. We may have thought it and followed the same sort of protocols, but we did not actually write it down". [Sheriff]

"We now have to fill in a form for every single case where bail is refused because if it is appealed to the Bail Judge in the High Court in Edinburgh, he or she needs to see why the Sheriff refused bail and that form assists that review exercise. That's the only change; in the paperwork". [Sheriff]

4.13 Despite the additional work, the process seemed to be welcomed by Sheriffs as a means of ensuring that fuller and more consistently presented evidence could be provided to assist with the appeal process and so this does suggest a system improvement as a result of the reforms.

4.14 Judges interviewed as part of the research were positive when considering this aspect of the reforms. Pre-reform, Judges would only receive an account from an Advocate who was instructed by a defence agent that the bail had been refused, which was considered by Judges to be 'third hand'.

"There was no information from the Sheriff who had refused bail which was pretty unsatisfactory". [Judge]

4.15 Post-reform, Judges report that they are receiving reports from Sheriffs outlining reasons for refusing bail, which they find useful when considering the case:

"We're now getting the reasons why the Sheriff refused bail from the Sheriff himself which is a big improvement from our point of view in helping us make a decision about whether that was justified. That's a huge improvement". [Judge]

"Now with these improvements, it's a much more reasoned appeal". [Judge]

Outcome of Summary Bail Appeals

4.16 As part of the evaluation, a request was made to the Scottish Court Service for information on the outcome of bail appeals. Figure 4.3 shows the percentage of cases over time which result in the bail appeal application being granted, refused, withdrawn or otherwise dealt with.

Figure 4.3 Outcome of Bail Appeals at the National Level

4.17 The data show that the majority of bail appeal applications are refused, and there has been no real change in that situation in recent years. The proportion of cases where bail appeals are granted is around 25% and, again, this has not changed noticeably over time.

4.18 As described in Chapter 1, all bail appeal reports go to the High Court for consideration. In interviews, it became clear that it is not always made known to the judiciary whether their decisions are upheld, such that there is little feedback for decision makers about the outcome of bail appeals.

4.19 Although procedurally the bail appeal system was perceived by professional stakeholders to be fairer now that written explanations were required, Sheriffs explained that they were reliant on happenstance to know the outcome of appeals and disappointment was expressed about the lack of feedback regarding bail appeals:

"Sadly, despite promises at the inception of the legislation, I get no feedback from the appeal court, and I have no idea whether my attitude in individual cases to bail is, in their view, right or wrong…If I'm doing something wrong, I would like to know. If I'm doing something right, I would, like everyone else, like to get some positive feedback". [Sheriff]

4.20 While recognising judicial independence, there was also some suggestion among those interviewed that some initial bail decisions may be influenced by anxieties about the likelihood of appeals, such that some members of the judiciary will support Crown decisions in order to avoid any later conflict:

"I think also, some of my colleagues who are not comfortable [with bail] simply follow the Crown every time. If the Crown oppose bail, they will refuse it". [Sheriff]

4.21 Procurators Fiscal were of the view that the number of bail appeals had not varied significantly since the reforms were introduced, and that appeal was often down to the defence agent rather than any changes to the bail process:

"You do get the agents who appeal everything regardless of whether their clients really want them to…there is nothing that makes me think that there's a lot more or a lot less". [Procurator Fiscal]

Summary

4.22 Qualitative data shows some difference in views among the judiciary and defence agents with regards to who is providing the greatest role in offering ordinary language explanations to accused. Both parties do seem to agree, however, that despite attempts to provide greater detail, and to achieve greater transparency, this may not be having the desired effect on improved offender compliance.

4.23 Neither the quantitative nor qualitative data show that there has been any real change in the number or outcome of bail appeals in the period since the reforms. Although it seems that bail appeal reports are a welcomed addition to the system among members of the judiciary, there is a desire for greater feedback to be provided to members of the judiciary on whether their bail decisions have been upheld.