Evaluation of the Impact of Bail Reforms on Summary Justice Reform

5 VIEWS OF VICTIMS AND THE ACCUSED

5.1 As part of the evaluation, a small number of accused and victims were invited to comment on the use of bail in cases with which they had been involved (see Appendix A for full methodology). This was considered to be essential since the reforms to bail would only have an impact if the changes were perceived and felt in real terms by the accused. The reforms were intended to directly impact on the behaviours of accused, specifically to ensure that they had a greater understanding of the stipulations of bail and to decrease breach rates.

5.2 Although a separate evaluation of the experiences of victims was carried out for SJR as a whole, it did not cover victims of crime in solemn bail cases, and so this evaluation sought to capture their views to explore how they perceived the reforms to bail.

5.3 Recognising that the samples were small (see Appendix A), the views presented here nonetheless provide a system user perspective that is missing from the data gleaned from criminal justice professionals. The data covers the views of solemn victims only and a fuller account of victims, witnesses and general public perceptions of the summary justice system overall can be found in the separate SJR evaluation report which focussed on these groups¹⁵. It is important to stress that, although the focus of this evaluation was bail, some comments about understanding of the wider summary justice system were also presented, and so are included here for context.

Understanding Bail Orders

5.4 Almost all accused remembered that they were first told about their bail order in the court. A number of accused said that they could not remember exactly what the Sheriff had said, but that this was explained further by their defence agent out of the courtroom.

5.5 Victims and supporters of victims varied in how they found out that the accused in their case had been given bail. These included a phone call by the police; seeing the accused in the street; and hearing by word of mouth that the accused had been given bail. Those who were telephoned by the police were grateful for being kept updated, while those who heard by other means were unhappy that they were not informed sooner in order to prepare themselves:

"I would liked to have heard sooner so I could have worked out how to keep away from them". [Victim]

"I wanted to know that they were released on bail so I could have looked out for them". [Victim]

5.6 Again, this reflects data from the victims, witnesses and general public perceptions evaluations, where interviewees for the most part, felt uninformed of the progress or outcome of a case. This is something that interviewees from both evaluations considered could be improved upon, though was not something that the bail or SJR reforms sought to address.

5.7 All accused stated that they understood the reason for the bail decision, and the conditions that were applied, and they felt that no further information was required. Additionally it was made clear to accused what the consequences of breaching bail would be, with most citing another appearance at court or being remanded as the most likely outcomes. Several accused stated that they had been through the court system several times and so were well aware of the process:

"I've had so many bails, I know the conditions like the back of my hand". [Accused]

"I know them [the standard conditions] off by heart by now". [Accused]

5.8 The overwhelming majority of accused thought that it was right for them to be granted bail, primarily because they were aware that the alternative was being remanded until trial:

"Of course it was right, I wanted bail, I would have been given the jail otherwise". [Accused]

"I would have got remanded if I didn't get bail". [Accused]

5.9 While most accused who were surveyed generally understood why they had received a bail order, those who were less habitual offenders commented that they found the system as whole, including the explanation of bail and its conditions, difficult to understand and often had to rely heavily on their defence agent to explain where they were supposed to go and what they were supposed to do and when (both at court and after their court appearance once on bail). In these cases, accused stated that while they may not have understood what the Sheriff said to them, their defence agent explained it to them afterwards to ensure they understood. First time accused stated:

"I couldn't hear what he [the Sheriff] said but it didn't matter because what I did hear, I didn't understand…but I was too scared to say. My solicitor explained it all anyway". [Accused]

5.10 This supported views expressed by defence agents and Procurators Fiscal who felt that, in some instances, bail could be made clearer by the judiciary, some of whom assume the accused in the dock has been through the process before and will therefore understand what they are being told, and it was down to defence agents to further explain the terms of the bail to their clients.

5.11 Whilst defence agents were not unwilling to provide this additional support, and recognised their responsibilities to do so, there was some suggestion from accused and defence agents that the level of information still being sought by accused after their court appearance was quite notable. This often meant that defence agents were having to build in additional time for meetings with clients. Given that the statutory responsibility sits with the judiciary to provide explanations regarding bail and bail conditions, and that the judiciary reported that such explanations were being given, it perhaps suggests a mismatch in what is deemed to be 'plain English' and understandable between judiciary and accused. That said, it was also recognised that, for some, even greater clarity in the explanations would not necessarily result in all accused paying attention, understanding or remembering explanations given in court and thus the demand would still be placed on defence agents.

Special Conditions

5.12 Around half of the accused interviewed had special conditions attached to their bail. Of these, the most frequently cited conditions included not being allowed to go into a specific area, street or shop and not being allowed to contact a specific person. A handful of accused also had a curfew attached to their bail.

5.13 Generally victims interviewed were unaware if the accused had been released on bail with any special conditions. Those who stated that they had been contacted (either by the police or a relevant victim and witness support, information or advice organisation) were told that there was a condition that the accused must not approach them, while the other victims interviewed only thought that this may have been a condition. It is important to note that Victim Information and Advice (VIA) - the Crown Office and Procurators Fiscal information service for witnesses and victims deemed vulnerable - does proactively provide information and advice to vulnerable victims. This may include information about whether an accused has been released on bail, as well as updates about the outcome of court diets, but only after the accused has pled not guilty¹⁶.

5.14 There was a feeling among victims that attaching special conditions was more beneficial than having only standard conditions, although some victims were dubious as to whether the accused would pay any attention to or have any respect for the special conditions. Comments included:

"He [the accused] came straight round to my house so he ignored that he wasn't supposed to contact me. It did no good". [Victim]

"I saw them on the street but it [the special condition] was better than not having one at all. That might be why they [the accused] didn't come up to me". [Victim]

5.15 At the time of their release on bail, when the accused accepted their special conditions, a number of them highlighted that there were conditions that they thought they would struggle to keep to. In particular, with reference to not being able to go into a specific area or street, accused said that they found this difficult because a family member/friend lived in the relevant street, or because a local shop was in this street.

5.16 With reference to not being allowed to contact a specific person, this was mentioned to be difficult by accused if custody and care of children was involved, or if the accused and the named person lived in the same area and were likely to 'bump into each other'.

5.17 Curfews were cited to be difficult as accused felt it was 'impossible' to be in their home from 7pm to 7am. One accused stated:

"I breached my bail conditions because I just couldn't keep to the curfew. It's too difficult to do, there should be some leeway". [Accused]

"You can't stick to them. There's just no way you can be in by 7(pm) every night". [Accused]

5.18 In some of these instances, accused stated that they telephoned the police to inform them that they would be leaving their home due to special circumstances, however, they were then charged with breach of bail regardless. Additionally, one accused said that they had to give up a part-time job because of their curfew and found this unfair (although it should be noted that being on remand would have had the same implications).

5.19 Despite concerns about being able to comply with their bail conditions, none of these accused explained their concern to anyone, except some who spoke to their defence agent. These accused stated this was because they felt there was "no room for negotiation" with reference to the conditions the Sheriff attached, and they felt that if they did not accept the conditions, bail would not be granted. In such cases, they accepted the conditions knowing that they would not comply with them.

5.20 All victims stated that they understood why the accused had been given bail. Victims generally stated that they would have preferred that the accused was remanded. However, most also noted that they realised this was neither feasible nor fair in response to the crime committed.

5.21 With this in mind, it can be concluded that accused generally found some conditions (e.g. curfew) more challenging to comply with than other conditions (such as not to approach a particular person). It was with regard to this condition that accused felt they were more likely to breach their order.

Breach of Bail

5.22 Around three quarters of accused interviewed stated that they managed to keep to their bail order/special conditions of their bail. Self-reported compliance by accused was mostly in cases where there were only standard conditions applied to the bail order. A number of accused who had special conditions attached stated that they had found it challenging to comply with their conditions and, as a result, had a breach marked against them.

5.23 The most frequently cited reason for breaching bail was that the accused was charged with another offence whilst on bail. Other reasons included that the accused did not keep to the special conditions attached and, for example, broke their curfew, approached the victim, or entered the area they were not allowed to enter. A handful of accused stated that they had also breached their bail order by failing to appear at court.

5.24 All accused stated that they felt that breach of bail was treated quite or very seriously. Many were aware that breaching their bail conditions would most likely mean that they would be remanded in custody. It was felt that failure to appear was treated very seriously, and most accused who were surveyed knew that this would more than likely mean another charge against them.

5.25 Some accused felt that how seriously breach of bail was treated depended on the Sheriff who was sitting on that particular day, and also on the seriousness of the breach, for example, if breach was because of being charged with a serious offence.

5.26 Such views were similar to those of the judiciary and defence agents who also expressed the view that decision making varied among members of the judiciary.

Bail System

5.27 Opinion was divided on whether accused perceived the bail system to be tough. For those who did, they stated that this generally made them more likely to attend court when they were supposed to. Additionally, those on special conditions stated that they found it to be challenging and those with a curfew were more likely to say that they found the bail system to be tough in comparison to accused on standard conditions, or to those who had received numerous bail orders.

5.28 In fact, most of those accused who had several bail orders in the past stated that they did not consider the bail system to be particularly tough, especially in cases where they breached their bail condition and were given another bail order (for less serious offences). One accused stated:

"I breached my bail and was given another bail. I was lucky that time but I've been out on hundreds of bails anyway, so no, it's not tough". [Accused]

5.29 Therefore, for the most part, accused were aware of the severity with which breach of bail was treated and considered this to be important in their decision not to breach their order. This was mostly the case for those who were not repeat offenders. For others, although they were aware this was the case, a stiff penalty for breach of bail did not seem to deter them. These accused also considered themselves to be part of the group known as 'frequent offenders' being "in and out of this place all the time".

5.30 Knowledge was again mixed among victims as to whether they knew if the accused had broken their bail order and conditions. For those who stated that the accused had not breached their bail, most felt this was because they had taken the order seriously, perhaps because they knew the alternative was prison. For those who stated that the accused breached their order, they felt this was because of the lack of respect the accused had for the victim and for the justice system more generally. These victims stated that breach should be dealt with by imprisonment or at least another appearance in court and a sentence for this breach.

Summary

5.31 While most accused who were surveyed generally understood why they had received a bail order, those who were less habitual offenders commented that they found the system as whole, including the explanation of bail and its conditions, difficult to understand.

5.32 Accused seemed to find some conditions (e.g. curfews) challenging to comply with. While defence agents and Procurators Fiscal seemed to suggest that failure to comply was linked to lack of the discipline and commitment to comply with the order, accused suggested that in some cases it was for more practical reasons.

5.33 For the most part, accused were aware of the severity with which breach of bail was treated and considered this to be important in their decision not to breach their order. This was mostly the case for those who were not repeat offenders. Repeat offenders were also aware of the gravity of breaching bail conditions but some advised that this was less likely to deter them. Alternative strategies are perhaps required for persistent offenders.