Evaluation of the Impact of Bail Reforms on Summary Justice Reform

6 IMPACT ON WORKLOADS AND OVERLAPS WITH WIDER SJR

6.1 Although the reforms to bail were not a part of the summary justice reform package as a whole, it was expected that their introduction, at the same time as SJR, may impact on SJR to the extent that bail is a core part of the summary justice process.

6.2 This chapter sets out some of the ways in which reforms to bail were perceived by those interviewed to have impacted on the wider programme of SJR as well as initially exploring the impact of the reforms to bail on professionals' workloads more generally.

Impact on Workloads

6.3 For the police, the reforms to bail were seen to have had negligible impact on their operational role and most commented that they had been more directly affected by changes to undertakings. Police did comment that they welcomed the opportunity to play a greater role in decision making regarding bail, by providing more detailed reports on the accused to the court ahead of court hearings.

6.4 Where police did provide comments on changes brought about by bail reforms, these were most often linked to the changes in conditions attached to bail. Some police officers considered that the conditions that were being imposed on accused released on bail were tougher and more diverse compared to pre-reform. Other police officers commented that bail would appear to be more structured, for example, with more conditions being imposed making it more restrictive for offenders.

6.5 Similarly, for Procurators Fiscal, the reforms were not seen to have made an impact on workload with regard to bail, with Procurators Fiscal following the same processes and procedures as pre-reform. The only way Procurators Fiscal interviewed felt that their workload had increased was assessing the additional form the police fill in with regard to the possibility of releasing an accused on a bail order. While not overly time consuming, and not a direct result of the reforms, this is another form that Procurators Fiscal have to take into account when coming to a view on whether they oppose the release of the accused on bail (albeit the final decision still lies with the judiciary).

6.6 Among Sheriffs and Justices of the Peace (JPs), only a few felt that there had been any significant changes to their practices, either in respect of decisions to grant bail or to provide the obligatory ordinary language explanations that are required.

6.7 On orders granted, some Sheriffs suggested that the reforms were influencing practice in the court, although not necessarily in a positive direction. Indeed, a view was asserted that bail was perhaps being used inappropriately to the detriment of summary justice and the wider SJR policy objective of more effective court hearings, in situations where the accused could simply have been released without bail:

"The heart of it is to use bail sparingly and tactically and proportionately, no more than necessary. Otherwise, you are creating a climate in which people will inevitably breach bail but not necessarily in a way that it is a danger to the public. And therefore, we are creating a mountain of rubbish really, or poor cases, that are clogging up the court, and preventing the authorities from dealing with the real criminals". [Sheriff]

6.8 On practice in court, Procurators Fiscal noted that post-reform, more Sheriffs were asking Procurators Fiscal to explain further, or to clarify, their reasons for opposing bail, which many noted was the main difference in the courtroom:

"We would always give the court as much information as possible and refer to reports, etc. so we don't do anything differently in court really, no". [Procurator Fiscal]

"We would have always addressed the questions of bail prior to the changes…the criteria are the same things that we may have opposed bail on before the reforms…the only exception may be when the reforms first came in and we were asked by Sheriffs to justify our decision to oppose bail a lot more, that's died down a bit now". [Procurator Fiscal]

6.9 Attitudes were expressed by several stakeholders that COPFS had hardened their attitude to bail post-reform such that more requests to refuse bail were being heard in court. This view was not shared by Procurators Fiscal who stated that they followed the guidelines in terms of supporting or opposing bail. In addition, Procurators Fiscal noted that they have on occasion not opposed the application for bail, only for it to be refused by the Sheriff:

"One wonders when a Sheriff refuses bail when we have not opposed it because they are not in receipt of the same papers that we have stating the history of the person in question. They are independent, I'm not saying that's right or wrong, it was just something we have to get used to". [Procurator Fiscal]

6.10 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 also set out in the Act.

6.11 The judiciary, Procurators Fiscal and defence agents acknowledged that there was still some considerable variation in bail decision making across the country:

"Some Sheriffs are tougher on people who have been out on bail several times, they would remand them even when we don't oppose bail, but that's very Sheriff dependent". [Procurator Fiscal]

"It's a question of risk assessment, training, confidence. I see wide disparities among colleagues". [Sheriff]

6.12 Domestic violence cases in particular were considered by defence agents to be treated very differently between jurisdictions with a lot of use of discretion by Sheriffs despite national guidelines.

6.13 Perceptions of special conditions and their utility also seemed to vary somewhat between police and the judiciary. While both police and the judiciary recognised the potential value of special conditions, the police were more likely to express views that they provided a clear operational framework in which to police accused. For the police, the use of special conditions, even where there may be an expectation that they may be breached, was still functional in allowing problematic behaviour to be identified and controlled. In contrast, some members of the judiciary perceived that accused may be being policed overzealously in some cases and put forward views that a more flexible approach to policing some special conditions may be required, to allow discretion in some cases. Both groups of interviewees did agree, however, that special conditions must be tailored to the offender.

6.14 It is interesting to note that some police expressed views that they should not get 'too involved' in understanding bail, and that the judiciary perhaps felt that police have a different understanding of bail which was leading to unnecessary re-arrests. This was considered to have improved slightly due to police being able to fill in a recommendation form to be passed to Procurators Fiscal stating whether they felt the accused should be released on bail or not. Police officers welcomed this as they often deal with the accused on a one to one basis and felt that they have a 'closer relationship' and 'insider knowledge' to better judge the likelihood of conforming to a bail order if imposed. This is where inter-agency working was seen to be working well to those involved in the process.

Fair to Victims, Witnesses and the Accused

6.15 Although there was little dispute that bail orders were being granted appropriately, or in a way that was fair to accused, there was some suggestion among professional stakeholders that a large proportion of accused awarded bail orders simply failed to understand the explanations given or, when they did understand the explanations, were not motivated to comply due to wider personal and social challenges:

"I think they understand it…but a very high percentage of people going through the court are either of very low intelligence, have got psychiatric problems, addictions problems, which means that they don't think past the next five minutes. So, if you tell them that "If you breach these bails conditions, you're getting shot", they don't think about it. They don't have that thought process." [Defence Agent]

6.16 It was suggested by defence agents that nothing further could be done by the judiciary in this regard, but that this may be a wider system issue still to be addressed.

6.17 Interestingly, the greater role of the police in providing information to support decisions regarding bail was viewed by one officer as contributing to one of the wider overarching objectives of SJR to be fair to victims, insofar as the police may now be in a better position to inform Sheriffs and JPs about consequences/impacts of incidents on victims as part of their reports:

"I mean officers are now thinking about bail whereas they never did before and we will put in recommendations that the accused be granted bail on certain conditions which I think is something that the officers never thought of before. So it is helping them think about the victim rather than just the process." [Police]

6.18 Procurators Fiscal interviewed were of the view that, as the bail procedures are set out in a more standardised way post-reform, this brings about fairness to all those involved in the justice system, with bail decisions based on evidence and justified in an open courtroom. In this way, the specific policy objective of increased transparency and consistency that applied to bail may have contributed to the wider SJR objective of a system that is perceived as fair to all those involved.

Effective in Deterring, Punishing, and Helping to Rehabilitate Offenders

6.19 Again, although the bail reforms did not specifically attempt to improve system effectiveness, many of the accused interviewed as part of this evaluation commented that they had been given several bail orders in the past and were still appearing back at court again, which may suggest that reforms to bail have not necessarily contributed to the SJR intended outcome of reducing reoffending. This view was supported when speaking with victims who felt that the system could not be effective when so many re-offenders are "let out on bail."

6.20 This reflected interviews with professionals who considered that accused take bail orders no more seriously at present than they did pre-reform. Police in particular noted the high numbers of people they were charging with offences who already had outstanding bail orders.

6.21 Overall, qualitative evidence from the evaluation seems to suggest that bail orders are not being taken any more seriously by accused post-reform. With a core of accused receiving two or more bail orders in the course of a year (around 1 in 4) and with breach rates increasing, this suggests that reforms are not necessarily contributing to system effectiveness in deterring, punishing and helping to rehabilitate offenders.

Efficient in the Use of Time and Resources

6.22 One of the issues emerging from this evaluation is that, while it was always known that the time required in court for Sheriffs to offer a full explanation of the bail order and conditions would be time consuming, the actual time was even greater than originally anticipated among those interviewed. Sheriffs and defence agents alike commented that it can be very time consuming, especially if there are special conditions attached. This said, it was accepted that it was necessary as part of the legislation and that it was valuable in cases where the accused heard and understood what was expected of them:

"It's putting Sheriffs in a very difficult position because…it's taking forever to explain all the conditions and all the add ons, and the accused will just say 'Aye' cause they know that they're getting out of the jail. The drive to explain things almost has the opposite effect because it just confuses things..." [Defence Agent]

6.23 More generally, all interviewees (professional stakeholders as well as victims and witnesses) felt that there were often delays in the summary justice system, although equated these more to the system overall rather than the reforms to bail specifically.

Quick and Simple in Delivery

6.24 Bail reforms did not intend to improve either the speed or simplicity of the system, other than in the provision of ordinary language explanation to accused (as discussed above). Overall, interviews revealed no suggestions for how the process of bail could be quicker in delivery, other than removing the need for lengthy explanations of special conditions during court time. Overall, therefore, it seems that the bail process, in itself, is not negatively impacting on the objectives of SJR.

Meeting the Intended Outcomes

6.25 In addition to the overarching objectives, a number of specific intended outcomes were also set out for SJR (see Chapter 1). One of the intended outcomes of SJR was improved case handling, including more effective court hearings. While court hearings may have become more effective post-reform interviewees considered that there was still room for improvement. Professional interviewees expressed the view that bail and bail conditions could be explained more clearly to accused and to victims, and interviewees considered that even more could be done in court to ensure the accused understand their conditions of bail. Having said that, some interviewees were of the view that if an accused is a habitual offender, no amount of explaining will change their actions and that something else would have to be done to tackle this "don't care" attitude to the criminal justice system.

6.26 Furthermore, qualitative data from the evaluation suggests that one outcome of the reforms is that more work is coming to court due to breach of special bail conditions. Many professionals commented that they perceived an increase in cases coming to court and it was suggested that this increase was linked to an increase in the use of special conditions. Whilst it not suggested that this should be a basis for reducing the use of special conditions, it does perhaps suggest that there is a need to ensure that special conditions are always appropriate for individual cases and used as a proportionate response. The main purpose of special conditions, to provide a clear framework in which accused can act on liberation and to protect the public, victims and witnesses must, of course, remain central to any consideration of their application.