Evaluation of the Impact of Bail Reforms on Summary Justice Reform

7 COST EXERCISE

Introduction

7.1 The changes to bail were not intended to lead to savings and, indeed, it was envisaged that they would either be cost neutral or would incur costs. In order to assess the monetary impacts of the reforms to bail, a separate cost exercise was built into the evaluation. The evaluation had the specific remit of exploring the likely impact of the reforms to summary bail in monetary terms for breach of bail and, in particular, failure to appear in summary cases.

7.2 While increasing the transparency and consistency of bail decisions and the provision of ordinary language explanations to accused may contribute to reduced breach rates, in themselves they do not offer any direct financial benefits.

7.3 At the outset a cost-benefit type approach was preferred where the benefits could be quantified and monetised and then compared against the monetised increased costs associated with the reforms. As the research progressed, however, it became clear that there was a lack of reliable and available data to allow monetised values to be assigned to the benefits identified or, indeed, to produce an estimate of the costs associated with the reforms. This meant that a full economic analysis could not be done.

7.4 As a result, the cost exercise instead had to focus on identifying and summarising the workloads associated with the reforms to bail, and in particular the breach of bail, for each of the main agencies involved (ACPOS, COPFS, SCS, SPS and the police). Costs associated with the defence were also considered.

Main Costs Associated with Bail

7.5 The main roles of each agency were considered to be largely unchanged post-reform, with the main activity being as follows:

7.6 For COPFS, attendance of Procurators Fiscal at preliminary court hearings where bail is granted, and attendance at subsequent court hearings for breach of bail hearings which may not have been required had the accused been remanded in custody. In both scenarios, background preparatory work is required to determine if the Crown will oppose bail or not. These costs will occur regardless of whether the accused is released on bail or remanded in custody and so the only additional cost for bail cases occurs if the accused breaches bail and this requires a separate attendance (and Crown preparation and attendance) at court. Additional costs may include VIA costs to allow staff to notify vulnerable victims and witnesses of bail decisions.

7.7 For the SCS, the main costs are use of court time for the scheduling of cases appearing on first calling, which occurs regardless of how the accused appears (i.e. from custody, on citation or by way of undertaking). Costs at preliminary hearings include payment of support staff (e.g. court clerks) and accommodation costs. Administration costs include the printing and issuing of hard copies of bail orders to the accused at the time that the order is granted. Costs of subsequent court appearances by the accused for breach of bail represent additional costs which may not have occurred if the accused had been remanded in custody or released without bail. If the breach relates to commission of a further offence, the likelihood is that the case will end up in court in any event and so, as such, there is no absolute cost to SCS.

7.8 Failure to appear will only potentially impact on court time (and costs) to any significant extent in the case of trial diets. This is because if a trial is the only one scheduled for a day in court, and the accused fails to appear, this may result in wasted court time since no other business could be brought forward to fill that time (unlike pleading or intermediate diets). Interviews with professionals suggested that this would occur only infrequently since most courts will schedule a number of summary trials for each trial court on the basis that some will be 'churned' for a variety of reasons, including failure to appear by the accused. As a result, the main wastage occurs only in terms of time spent by both Procurators Fiscal and defence agents in preparing for the case that is adjourned and in preparing for a second time when it is recalled. In this scenario, SCS also incurs costs in terms of preparation for both callings in court.

7.9 Additional costs will also be incurred by the judiciary for churned cases and the other main costs to the judiciary will be bail appeal costs. The requirement of the judiciary to complete bail appeal pro formas to be sent to the High Court is something that is new post-reform and so the administration and staff time costs of this are also new. Some of the judiciary reported that they were spending additional time preparing supplementary notes or reports to be sent with bail appeals and so, although the volumes may not be large, the efforts made to ensure good quality reporting may mean that the time inputs are high per case.

7.10 For the Scottish Prison Service and their escort contractors the main costs of bail are in the transport of accused to court for their first (bail) hearing, where they have not been released by the police to be cited to attend or released on an undertaking. This cost is incurred regardless of whether the accused was subsequently released on bail or returned to custody. Additional costs would have to be borne by the SPS if the number of bail orders reduced significantly and were replaced by prison remands but the KPI data do not suggest that this is the case (nor should it be expected to be).

7.11 The main additional costs to the SPS will occur therefore in cases of refusal of bail by Sheriffs or JPs such that accused require to stay in custody on remand ahead of their trial, as well as in cases of breach where prison sentences may be imposed. Indeed, the KPI data show that there has been a slight increase in the use of custodial sentences for breach other than offending on bail or failure to appear in recent years, possibly as a result of the bail reforms, and so this cost would be borne by SPS.

7.12 For the police there is little operational involvement in the administration of bail, and the main costs associated are managing prisoners held in police custody ahead of bail hearings. Evidence from interviews suggests that the police proactively police bail conditions, and so the costs here are likely to increase if bail orders and use of conditions also increase. The other main area of costs for police is the execution of failure to appear warrants for bail recipients. The KPI data shows that there has been no notable change in the number of warrants issued for failure to appear and so, again, there are likely to be no additional costs or savings from the reforms in this regard.

7.13 When speaking with defence agents, views were put forth that they may be spending considerable time speaking with accused to try and explain bail and bail conditions. Accepting that it is their duty to provide legal advice to clients, and to provide pre- and post-court appearance advice, the additional time spent repeating explanations of bail and bail conditions (even where this had already been provided by the judiciary) was nonetheless a resource intensive task. Some defence agents also perceived that custodial sentences or higher monetary penalties may be being used for breach of bail conditions. This may have contributed to an increase in the overall costs in legal aid terms of cases involving breach of bail.

Potential Savings

7.14 The reforms to bail sought to reduce breach of bail. Although the data from the evaluation suggests that FTA has reduced, overall, a reduction in breach has not been achieved. Had there been a reduction, potential savings would have been reduced custody costs for prison sentences given for breach, reduced costs of re-offending on bail, and reduced police and court costs associated with administering some breach of bail cases. The reduction in FTA does, however, potentially mean reduced costs in issuing warrants for failure to appear and some avoided churn, along with the associated costs.

7.15 Feedback from a small number of interviewees, primarily defence agents, also suggests that, in some cases, granting bail may not be necessary at all. Instead, there was some appetite for releasing some accused without bail, which may save money both in terms of initial administration costs, but also in terms of likely future breaches (since there would be no conditions to breach). These things are difficult to quantify but it seems that among some members of the judiciary and defence agents, it is deemed that some 'low risk' offenders could be removed from the cycle of bail and breach of bail if the conditions of their release were relaxed. This would clearly only be appropriate, however, in low risk cases.

Data Items Required for a Cost Analysis

In order to attach some tangible measure of costs and savings which may result from changes in the number of bail orders, appeals, FTAs and other breaches, it would be necessary to generate monetary figures for:

• custody costs (per day) to consider the additional expense of keeping an accused in custody instead of releasing them on bail as well as additional costs incurred for prison sentences given for breach of bail;
• costs of preparing and issuing bail orders in court (administration, accommodation and staff costs, excluding judicial costs) as well as administering new cases in court for breach of bail;
• legal aid costs for accused released on bail;
• costs of preparing bail appeal reports for submission to the High Court (staff time); and
• cost of preparing and issuing warrants for failure to appear whilst on bail.

7.16 Other items which would allow a greater picture of the overall costs and savings associated with bail may include an analysis of the financial penalties that are imposed on accused for breach which are actually recouped by the courts. A better understanding of levels of offending whilst on bail would also allow values to be placed on the likely cost of offending to society for people released on bail who may otherwise have been remanded in custody. It would be interesting to explore if these costs outweigh those of custody costs.