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ANNEX 1 PRESS COVERAGE OF ELECTRONIC MONITORING AND BAIL IN SCOTLAND

By Mike Nellis

AIMS AND METHODS

The aims of the press analysis shifted during the first months of the research, as the issues became clearer. The initial primary aim was to ascertain the characteristics (themes and patterns) of newspaper reporting on the EM bail pilots, to judge the extent to which it presented, or departed from, a rational, rounded and responsible - good enough - account of this particular initiative. The secondary aim was to explain why the press coverage took the form it did. Once it became apparent that the EM bail pilots were not particularly newsworthy in themselves - but that some bail and some tagging decisions more generally were very newsworthy - the focus shifted away from appraising the papers coverage of the pilots to explaining why the coverage of tagging in particular was quite so negative - "negative" in this instance meaning inadequate and ineffective as a form of control over accused persons. The negative coverage of tagging implicitly challenged a key official assumption about EM bail, namely that it was a self-evidently "tougher rule for bail", something more demanding than ordinary bail, an "additional measure to protect the public" (Scottish Executive 2005, para 22) which would thereby facilitate the reduced use of remands to custody.

This paper covers the period March 2005 to November 2006, from the leak of some of the Sentencing Commission's key proposals on bail and custodial remand to The Herald, through the early operation of the EM bail pilots themselves to the "holiday abroad" scandal which broke in June 2006 and continued, in phases, until the accused involved were sentenced in November 2006. Most of the research involves collation and analysis of press cuttings from a sample of Scottish newspapers. The sample took in all Scotland's indigenous daily papers ( The Herald, The Scotsman, The Daily Record, The Press and Journal), and the Scottish editions of English-based papers ( The Sun, The Daily Mail, the Daily Mirror, The Daily Express and The Times). Sunday newspapers were read more selectively, with a concentration on the broadsheets: attention was paid to Sunday redtops only when a bail or tagging story was either anticipated or known to have appeared there. The inclusion of the Glasgow-based Evening Times - as opposed to any other evening paper - was determined simply by its immediate accessibility to the researcher, and the relative inaccessibility of the others. While this is not a fully comprehensive, all-inclusive study of Scottish newspapers' coverage of the EM bail pilots, there are no obvious reasons for thinking that reportage, editorialising and the cumulative narrative on bail and tagging would be significantly or substantially different in any of the excluded papers (the possibility remains of subtle and nuanced differences, but a strikingly different stance expressed in an excluded newspaper would probably have been deemed newsworthy by the others). Two local newspapers - the Kilmarnock Standard and the Stirling Observer - were periodically examined because they reported on the courts in 2 of the pilot sites.

Many of the press cuttings used in the earlier part of the analysis were supplied by the Scottish Executive, later supplemented later by cuttings collected by the researcher, together with and information from both Reliance and Serco Monitoring Services. The cuttings consisted of news items and/ or editorials, and were augmented by press releases on the Scottish Executive website. The various items were initially read with the following themes and issues in mind:

1. The specific prominence given to tagging in the context of the overall bail and custodial remand reforms.
2. The use made by the press of official press releases.
3. The identification of key "news and comment" sources.
4. The use of human interest stories to bolster particular lines of argument.
5. The use of photographs and logos.

Content analysis of the selected newspapers was augmented by 4 face-to-face interviews with journalists (2 on the local newspapers in the pilot sites, 2 on national newspapers) - and a telephone interview with a fifth - to better understand what level of knowledge prevailed in the press about tagging, and what journalists themselves saw as the key issues in reporting it. In order to gain background knowledge the Executive's perception of media issues relating to tagging, the civil servant with lead operational responsibility for electronic monitoring, and the head of communications team with responsibility for Justice Department matters were also interviewed.

Research utilising sources of this kind cannot go much further than describing and explaining why the press offers the account it does. In itself, it cannot reliably indicate what public opinion on EM bail is - or what the level of public support for it is likely to be, and it should not be read as such. (Only a public opinion survey would provide this information). Nonetheless, the kind of analysis summarised here does provide insight into the resources which have been fed into the public domain from ostensibly authoritative sources, on which "the public" then draw to make judgements. These are not, of course, the only media sources on which the public can draw - television, radio and internet news sites would have to be included in the analysis to give as full-as-possible a picture of the resources made available for the public to reflect upon. It needs also to be remembered that "the public" is segmented (to a degree) by age, gender, class, ethnicity and region - different "publics" are exposed to/ expose themselves to different media and may well interpret what is ostensibly the "same" news resource differently, according to their preconceptions, values and perceived interests. And lastly, variegated news media resources are not the only resource people draw on to make judgements - personal and local experience, and various entertainment media can play a part in shaping outlooks and judgements.

THE LIMITED PRESS COVERAGE OF EM BAIL

The first significant press reference to the EM bail pilots - before they were actually established - came in The Herald in March 2005, in a leaked story about the recommendations of the Sentencing Commission's report "Use of Bail and Remand" due for publication in April 2005, the month the pilots began. The idea of EM bail was not in fact new at this point - a scheme was already running in England and Wales, and the idea of it had first been mooted in Scotland in a wide ranging consultation document on the future potential of electronic monitoring issued in October 2000. The Executive announced that it intended to pilot EM bail, and to clarify the law on tagging as a bail condition, in the White Paper on High Court reform. ("Tagging plan for bailed suspects" - BBC Online 18th August 2003). It is perhaps surprising that when news of the Sentencing Commission's intention to endorse the idea of EM bail was first leaked to the press, a few days ahead of publication of its official report, it was treated as something novel, out of the blue, without a history - rather than as something that had been deliberated upon for a considerable time.

Although stories about bail and tagging, as separate issues, are commonplace in the Scottish press, there has been very little coverage of the EM bail pilots as a specific topic. The following account identifies 6 stories about the pilots which were covered between March 2005 and November 2006: the latter date lies outside the official research period, but is included here because it was the endpoint of a story which had first been covered by the press in June 2006, about a bailed and tagged defendant who was temporarily (and controversially) granted permission to go on a family holiday.

1. The leak of the Sentencing Commission report on "Use of Bail and Remand"
2. The release of the Sentencing Commission report on "Use of Bail and Remand"
3. The early stages of the pilots
4. The first 77 EM bail orders
5. The "Holiday Abroad" story
6. 1. The Revision of Bail Guidelines for Murder Suspects
   2. Trial and Sentence

How might one account for the limited coverage of the pilots? It is due, firstly to the fact that until June 2006 their operation had not attracted sustained journalistic attention. Few journalists in fact knew of the existence of the pilots (as opposed to tagging more generally) and, in the absence of a dramatic, "human interest" controversy associated with them, the pilots had been too small an initiative to register as newsworthy. Of the 4 journalists interviewed for this research, 2 (one national, one local) had no knowledge of the pilots, while the other 2 had only vague knowledge and neither of these had a specific desire to write about them. The local journalists would only have written about EM bail if an individual had been granted it in their local court, and at the point of interview this had not happened. The 2 national journalists were more interested in policy stories (albeit with a human interest dimension) rather than individual cases. Both took the view that stories about the imposition of community penalties on individuals - probation, community service or tagging, for example, - would only appear in national newspapers if there was something anomalous or controversial to report, i.e. if the offence was in some way peculiar or if the penalty seemed unduly lenient. Stories about policy - for example, the general pattern of use of community penalties, although even they would need a pretext (the publication of annual official statistics, a new report or an Executive press release) to trigger interest in it - were marginally more likely, and within this broad framework the EM bail pilots were not significant enough in themselves to be newsworthy.

This is surprising in one sense, because EM bail brings together 2 separate issues with which the majority of Scottish newspapers have been actively concerned, and on which they nowadays have predetermined, highly normative and formulaic ways of reporting - namely offending on bail and electronic monitoring. These interests in turn are exemplars of an ostensibly deeper and broader preoccupation with offending in the context of any form of penal supervision other than imprisonment - bail, parole or a community penalty such as probation or community service. This deeper and broader preoccupation is used to signal 2 things to the Scottish public. Firstly, it is used to warn them that they are being endangered by the (inappropriate, unjustifiable and sometimes incompetent) use of these measures by various "authorities" - sheriffs, parole board officials, social workers and/or Reliance (now Serco) - sheriffs in particular being deemed out of touch with public concern about crime.

The always unpleasant, occasionally catastrophic failures of supervision on which the press dwell bear witness to the fact that failures of judgement and practice do indeed occur, although what is always lacking is any sense of context or proportion, or any reference to "good news" - successful and effective instances of community supervision against which the significance of failure might be appraised. Secondarily, the preoccupation with public endangerment is used by some newspapers as a vehicle for criticising, implicitly or explicitly, Executive criminal justice policies, in particular the perceived policy of seeking to "manage" (stabilise or reduce) the prison population.

It was always likely that if EM bail was to become spectacularly newsworthy - as it eventually did, in June 2006, - it would be framed in terms of the "formulae" that the Scottish press already apply, separately, to EM and to bail. Bail-in-general is persistently portrayed as a serious judicial/administrative problem in the Scottish press, based largely on the fact that there have been some cases of very serious offending while on bail. There is negligible defence of it as a judicial measure, and no indication that it is ever used successfully. While the broadsheets mostly avoid the blaming attitude that characterises the tabloids, they too have helped to create an expectation that certain types of offence are by definition inappropriate for bail. The cumulative impact of this sort of coverage - dwelling only on cases where serious offending has occurred - is to imbue the term "bail" with wholly negative connotations - at its weakest "leniency", and at its strongest, "risk" and "endangerment". In addition, the tabloids' accounts of bail use often imply a degree of deliberate offence or insult to the accused person's particular victim or victims, and - in the tabloids especially, but not exclusively - crime victims' voices (or their relatives) are given a special, "emotional" authority. If a crime victim can be shown to have felt let down by this or that decision of the court, the "argument" against that decision is significantly strengthened.

The image of tagging-in-general is similar to that of bail in that it too now connotes "leniency", "risk" and "endangerment" rather than the "additional degree of control" that its champions have promoted it as possessing. Its association with offending during the period of the order, coupled with the idea that merely placing people on curfew for part of the day to stop them offending seems counter intuitive to many people, has largely discredited it in the eyes of the press. Positive stories about the successful completion of tagging orders never appear in the press, as indeed, they do not appear for community penalties generally. Tagging, by dint of its ease of visualisation, has to a degree become emblematic of community supervision more generally - and criticism of tagging easily becomes implied criticism of community supervision per se. Crime victims can be found who are unhappy that "their" offender was tagged. Two broadsheet editorials have implicitly questioned tagging's viability - and by implication the continuing need for it.

The following sections summarise - in a highly condensed form - the 5 occasions (the latter occasion having 3 phases) when EM bail became newsworthy during and - for the sale of rounding off one story - after the research period. The press coverage of the EM bail pilots was part of a continuously unfolding narrative about bail and tagging as issues in their own right: the EM bail stories were instances within this narrative.

THE LEAK OF THE SENTENCING COMMISSION REPORT: "USE OF BAIL AND REMAND"

The Sentencing Commission was established in November 2003 and was asked shortly afterwards by the Executive to review the use of bail and custodial remand as a matter of urgency, as part of a strategy to increase public confidence in the criminal justice system following a controversy surrounding the sentencing of James Taylor, for raping a baby girl while on bail. The general thrust of the Sentencing Commission's proposals, and some specifics, were leaked to The Herald several days before the anticipated release of their report. The front page headline "Murder and Rape Suspects to Go Free in Tagging Plan" set the tone for what followed:

The alarmist tone of this scene-setting opening is further reinforced by a reference shortly afterwards that "the Commission, made up of judges, prosecutors and justice experts, has rejected calls to end the presumption that the accused should be given bail, even if the charge is murder or rape" (emphasis added). This serves to convey the idea that, although they had a choice, the Commission chose not to toughen up - but, by implication, to do something ostensibly lenient, the headline having already established that tagging is a form of "going free". Tagging is the first new "alternative to custodial remand" measure mentioned in the article, closely followed by bail supervision. The credibility of these measures is then impugned (allusively) by the claim that "annually almost a third of criminals offend while on bail". The Scottish Executive is described as saying that there is "no definitive figure" on this type of offending, but some (not too up-to-date) statistics from Strathclyde lend credence to the claim: "there were 1,586 crimes committed by bailed suspects in 2002, up from 1,158 the year before". More tellingly, specific cases where bail has been abused are referred to.

The effect of both the general information and the specific story is to cast aspersions - to put it no more strongly - on the credibility of EM bail and the wisdom of the Executive/Sentencing Commission's initiative. No attempt is made to cast tagging in positive light - using either statistics or stories - but 2 facts are offered by way of explanation of what the Executive/Sentencing Commission was proposing. Firstly, it is acknowledged that since 1999 Scotland has been bound to comply with the requirement of Article 5 of the European Commission on Human Rights that "all crimes and offences [are] bailable". In the past serious crimes like murder were not bailable. Secondly, it is acknowledged that "the remand population has ...increased by about 40 per cent in the past 2 years and almost half of prison admissions are of people awaiting trial". An impression is given that the "presumption of bail" - on which there are few constraints - offers only slender protection of the public. This theme is constantly affirmed by the Conservative Party's justice spokespersons, and appears consistently in all press coverage of tagging:

There was near unanimity among the other newspapers that picked up the story on the 29th March. The Press and Journal news headline "Killers could be tagged and released onto streets", and editorial headline - "It's hard to see sense in tagging suggestion" were uncharacteristically combative for that paper. The idea that tagging was in effect freedom and that bail tagging was illogical and counterintuitive was at the heart of The Daily Mail's coverage. Under a headline which read "Move to tag and free murder suspects, and a handcuff logo containing the words "Soft Touch Scotland" it stated "an expert group has now suggested tagging as an alternative to custody - despite the fact a third of all bailed suspects commit further crimes while awaiting trial". The gist of the coverage in The Daily Express and The Courier - headlined respectively "Tagging scheme to let suspected killers walk free" and "Tagging extension puts public at risk - Tories" was much the same.

The nearest approximation to positive coverage came from The Scotsman and The Daily Record. Despite its headline - "Alleged Killers Held on Remand May be Tagged and Freed"), The Scotsman (29th March 2005) offered a balanced and substantial account, which, unlike so many of its rivals, at least acknowledged that "The Commission is ... understood to be calling for tighter guidelines for granting bail" (my emphasis). The Daily Record coverage, headlined "Fury at Murder Suspect Tag Plan", acknowledged that, at least in the Executive's view, "the move would tighten existing law, which at present does not allow anyone released on bail to be tagged" and anticipated that few serious offenders would actually be granted bail. Its editorial was superficially supportive of the EM bail initiative but set impossibly high standards for it - indeed, for any community-based intervention with offenders - with its headline alone: "Tagging Must Work First Time". The logic of this argument is simply that one failure would count for more than a dozen successes. Insofar as it would be impossible to guarantee that tagging would never fail, The Daily Record was simply setting up the EM bail pilots as a target for inevitable future criticism.

The Release of the Report

The Sentencing Commission's report appeared on 5th April 2005. The Executive issued 2 news releases to accompany it. The first drew attention to 6 of the reports 40 recommendations, including the recommendation for "enhanced supervision" and also called for "more investment in innovative alternatives to remanding offenders to prison". In the second news release, containing a small colour picture of a tag on an ankle, the Justice minister emphasised that the Executive's criminal justice reforms "are moving us towards the sharper, smarter system the Commission envisages" and denied that they were about reducing prison use:

The press coverage of the Sentencing Commission's Report was subtly different from that which surrounded the leaked material the week before. There was much less high profile attention to the fact that murderers and rapists were going to be released on bail, although this was usually alluded to in the body of most news reports. The Daily Mail (6th April 2005) did make it the basis of its headline - "Safety Fears over Plan to Bail More Violent Criminals". It was again accompanied by the Soft Touch Scotland logo, and a poignant 150-word case study, complete with photograph, of 21 year-old "promising student" Allen Lennox who "fell victim to Scotland's soft justice system after being stabbed to death by a drug addict who had been freed on bail". The female addict was on bail for blinding a teenage asylum seeker in a "random street attack". Towards the end of the piece Allen's "grieving mother" is quoted as saying "I feel sick to know this could have been avoided if Amy Stewart had been kept in custody."

Neither The Herald nor The Scotsman made tagging central to their coverage, and while both noted the supportive views of the Scottish Human Rights Centre both remained sceptical about the general thrust of the Commission's proposals The Herald reiterated the Conservative's view that "protecting the public, not clearing the prisons, should be paramount" (although it should be noted that The Herald sometimes does take a positive stance towards alternatives to custody - perhaps it depends on the particular editorial writer). The Scotsman (6th April 2005) rounded off its article with a "reoffending while on bail story" - the murder of a 91 year old Ayrshire woman, Margaret Irvine by a man who "embarked on a crime spree while at liberty". The Courier (6th April 2005) did not headline tagging as such but its page 3 news item paid disproportionate attention to it (given the range of the Commission's proposals) - referring specifically to the establishment of the pilot schemes, and its short punchy editorial, headed "bail tags", was explicitly sceptical "the suspicion remains, however, that the real priority is getting remand numbers down".

THE EARLY STAGES OF THE PILOTS

In early May 2005, The Sunday Herald (8th May 2005) picked up that there had been difficulties getting the EM bail pilots started, and attributed this to wider failings in the criminal justice system more generally, particularly underfunding, for which the Executive should be blamed. Under the alarmist headline "justice system faces 'meltdown' with criminal tag scheme in chaos" and the slightly more sober subheading "public safety at risk as offenders are arrested within hours of release", The Sunday Herald itemised 3 difficulties with the pilots - lack of cooperation by Glasgow social workers (who had to write assessment reports); sheriffs who were unable to use EM bail because facilities were not available; and police concerns that one of the first defendants placed on the scheme was arrested within 4 hours of the order being made. Various political and professional commentators were quoted in respect of the difficulties, the Conservative justice spokesperson concluding that:

Without asking the journalist concerned it is difficult to know the source of this story. It is not the sort of story a journalist would discover by chance; at this stage of the pilots, only the police were likely to have had information about the first EM bailed defendant. The Evening Times (9th May 2005) reiterated (without expanding upon) the Sunday Herald article the following day, heading it "Electronic tagging scheme in 'chaos'". Beyond that, the story was not widely covered, and never returned to in quite this form, even though influential police organizations continued to have reservations about the appropriateness of some bail decisions, with ACPOS (2006: 1) noting that "in recent times the attitude of some accused persons towards bail has not always been fitting".

THE FIRST 77 EM BAIL ORDERS

The next moment of press coverage arose, perhaps ironically, as a result of this research. I interviewed a journalist on The Scotsman about the coverage of tagging in general in his newspaper. He was wholly unaware of the existence of the EM bail pilots, (although they had been running for almost a year at that point), and learned of them from me in the course of the interview. He subsequently researched them and wrote a critical article whose headline "Tag rules let more murder suspects be freed on bail" used the same framing device that The Herald had done when it first leaked the recommendation of the Sentencing Commission report - namely the implied wrongfulness of releasing murder suspects on bail, either because it endangered society, or because it was wrong in principle. The article began:

The article identified the locations of the pilot schemes, described their aim as being "to reduce the rising number of remand prisoners, and give courts a wider range of options", and indicated that 29 bail suspects were currently tagged. It even conceded that EM might "significantly restrict the liberty" of people charged with the most serious offences. But its overall tone - from its alarmist headline, through its reference to the Rory Blackall case and its use of a quote criticising EM from Professor David Smith, who had researched the original EM-pilots in 1998-2000, conveyed a clear sense of scepticism about the pilots. The article ended with a quotation from the Executive, which drew attention to the fact that the pilots were being evaluated and that public safety considerations were among the issues being looked at.

Under the headline "Fury over tagging plan for high-risk suspects" The Daily Mail (17th March 2006) picked up this story the following day, repeating many of the same points as The Scotsman, although the inflections were sometimes different. It was the fact that tagging was being used on suspects who had already been remanded in custody that concerned them, although no reference was made to the fact that this was the mechanism by which netwidening was to be avoided. The pilots were referred to as "a scheme by the Scottish Executive to extend the use of tagging", as if this were an end in itself. The "fury" referred to in The Mail's headline was of its own making, insofar as it used comments from the Conservative justice spokesman, to claim that the discovery of the "plan" to allow "such potentially dangerous suspects to remain at large has sparked anger and calls for a rethink":

THE "HOLIDAY ABROAD" STORY

In Kilmarnock, in February 2006, 4 young men were given EM bail after being charged with the murder of a 51 year-old grandfather who was assaulted as he walked home from a pub in the town centre. The young men's bail conditions included a ban on entering the town. It was clear from our routine interview with the Victim Information Officer that the victim's family were unhappy with the decision to bail and tag the suspects. In April 2006, the solicitor for one of the accused, a 16 year old, applied to have the tagging restrictions removed to allow him to go on a pre-booked family holiday, abroad, in August. Permission was granted at a bail review hearing on 5th May. The victim's family were not present at this review but at some point heard a rumour that the bail restriction's had been lifted. Dismayed by this, they phoned The Daily Record to ask if this could be confirmed. The Record checked with the Crown Office and Procurator Fiscal Service who confirmed it by email (telephone interview with The Daily Record October 2006). The view was taken at The Record that this story was "a big talker" in which there would be considerable interest and on June 1st 2006 it carried a front page "exclusive" (continued prominently on page 3), accompanied by large pictures of the late victim and of his son.

The victim's son apparently took up the matter with his local MSP, who was reported as being "absolutely astounded that anyone who is on bail for such a crime has been allowed to have his tag removed just to go to Bulgaria" and believed that the case showed "how out of touch the judiciary are with the community". The SNP justice spokesperson conceded that it "appears bizarre" that the accused was allowed to go on holiday. The Conservative Party justice spokeswoman linked the incident to her party's more general concern about the use of tagging:

Although the Record story was an "exclusive" - other newspapers picked it up on the same day, but gave it less prominence, on inside pages only. Under the headline "Holiday for tagged teen" the Daily Express focussed on the sense of outrage expressed by the Drummond family. The Evening Times coverage of the story focussed on tagging rather than bail - its headline, and much of the article itself was about the apparent "leniency" associated with tagging: "Fury at holiday for murder accused: court eases tagging order to let boy join his family in Bulgaria". The Herald - under the headline "Murder accused allowed to go on holiday to Bulgaria" - quoted not only from the victim's son and the Conservative Party justice spokeswoman, but also, unlike any of the other papers, from the Crown Office and Procurator Fiscal Service, who indicated that they were unhappy with the local decision not to oppose the request for the easing of bail conditions, and that they may order an internal enquiry. The second day's worth of coverage - very extensive - in the Daily Record, The Herald, The Scotsman, The Press and Journal , The Evening Times, The Daily Telegraph, The Times, The Daily Express, The Sun and The Daily Mail reported that the First Minister was questioned on the case in Parliament and announced that the area Procurator Fiscal for Ayrshire had been asked by the Lord Advocate to report on it, and that the Crown Office and Procurator Fiscal Service was already considering whether new guidance on bail should be issued to Procurators fiscal (Scottish Parliament Official Report, 1st June 2006: col 26301). Several newspapers unearthed new "facts" about or related to the story. Most said of the 16 year old at the centre of the case that he could not be named for legal reasons, but the Daily Mail named him, identified the town he came from, described his family as "unrepentant" about the holiday they had booked, and quoted his grandfather as saying that the boy was "innocent until proven guilty". The Herald concluded its article with an attribution (not a direct quote) to the Conservative justice spokeswoman, namely that "the piloting of tagging instead of custody at courts such as Kilmarnock was wrong". Coverage in the local Kilmarnock Standard was minimal - the story was not seen as particularly special. No mention was made of it on the 2nd June (the day after most of the national papers covered it). It was covered a week later, prominently on page 3 (not the front page, which led with another youth crime story), under the headline "Court Okays Killing Suspects Holiday" ( Kilmarnock Standard 9th June 2006). The article was unsigned and was largely derivative of national newspaper coverage, complete with pictures of Mr Drummond and his son, and a concerned quote from the Justice Minister. It usefully explained at the end what the EM bail pilots were and somewhat cryptically said "It is understood in this case that the prosecution opposed both standard bail and bail with electronic monitoring", although whether this was intended to refer to the original bail application, or to the bail review hearing, is unclear (and if the latter, it is inaccurate). Despite the headline above the article, there was a sense that the Kilmarnock Standard was not wishing to over-dramatise the incident, and even a sense that the paper felt somewhat protective towards the court, shielding it from undue criticism. The story did not appear to rouse the outrage of Kilmarnock's citizens - the 5 reader's letters in the following issue (16th June 2006) did not touch upon it, covering instead improvements to the local railway, animal testing and expressions of gratitude to 2 charities and a local radio station. It was for a national rather than a local audience that the case seemed outrageous and galvanised demands for action.

Although applications to vary bail requirements are routine, an application based on a defendant's desire to go on a family holiday, and where the charge is murder, is rare. In view of this, the decisions taken by the Procurator Fiscal and the Sheriff do seem surprising, intrinsically so, not merely in terms of tabloid standards of newsworthiness. This is all the more true when it is considered that the Procurator Fiscal's Office was aware (through the VIAO) of how aggrieved the murder victim's family had been by the original EM bail decision. Hostile press comment could have been anticipated. At the very least, it would seem that a decision to permit the defendant to go on holiday required careful presentation to the media, to minimise any prospect of misunderstanding. The end result of the "unmediated" decision-making was press coverage which cast EM bail in a very negative light, gave opponents of Executive crime policies further opportunity for criticism and reinforced the prevailing tabloid press view a) that bail was routinely granted in inappropriate cases; b) that tagging both expressed and permitted leniency towards offenders in a way that custody did not; c) that crime victims were prone to being treated disrespectfully by "the system" and d) that sheriffs were out of touch with the public. It is difficult in respect of this particular issue to claim that the media coverage was unduly sensational or disproportionate to the incident - senior Executive officials readily accepted that an enquiry into the decision was needed, and implicitly vindicated the revelations in The Record.

The Revision of Bail Guidelines for Murder Suspects

The Lord Advocate issued new guidance on bail for murder suspects on 28th July. The aim of the guidance was to ensure prosecutors adopted "an appropriate and consistent position in relation to bail in murder cases and to maintain that position in the public interest throughout the life of the case". The gist of the guidance was that henceforth the Crown would always oppose bail for murder suspects, and, if it was granted, appeal against it. In the 4 pilot sites, tagging would not be opposed per se, but if it was granted against the Crown's wishes, it too would be appealed against. In addition:

The press release did not attribute the revisions to the "Holiday in Bulgaria" case, but all the newspapers who reported on it did so, reiterating the basic facts of the matter. The Herald's (29th July 2006, page 9) was the longest and most detailed coverage. Its headline "Crackdown on bail for murder cases - move follows row over suspect's holiday" was consistent with the stance it had taken on bail for murder suspects since its first coverage of the proposed pilots. The Scotsman's coverage (page 8) - "Bail guidelines reviewed after tagging lifted" - was much shorter in comparison, but relayed both SNP and Conservative spokesperson's views of the development. The Conservative viewpoint formed the basis of The Daily Mail (page 2) headline - "Anger over 'worthless' bail rules" in which Bill Aitken, the Conservative chief whip, was quoted as saying that the new Scottish bail rules were worthless because they still failed to challenge the Human Rights Act, which had made murder bailable in the first place. The Mail, incidentally, continued to name the 16 year old suspect. The Daily Express (page 34) - "Case sparks new bail rule" took the same approach, quoting Aitken saying, "Until 2000 those accused of murder were not granted bail, but Labour and the Lib Dems changed this in their rush to incorporate the Convention on Human Rights". The shortest news item (6 sentences, 3 on the guidance, 3 on the case from which it derived) was in the newspaper which originally broke the "holiday in Bulgaria" story, The Daily Record, (page 2) which might reasonably have been expected to be a little more self-congratulatory than even its headline suggested: "Murder rap bail ban bid". The Evening Times (page 12) simply summarised the press release, and like The Record did not quote from any political spokespersons.

Under the headline "Bail Suspect Takes Trip" the Evening Times (4th August, p6) did however run a short sidebar piece about the "teenage murder suspect... enjoying a sunshine holiday [and] knocking back champagne in Bulgaria". The Record didn't cover it at that point - perhaps because so many pages of that day's edition were taken up with Tommy Sheridan's victory in a libel action against the News of the World. The Record did however send photographers to Bulgaria and had pictures which it planned to use once the case was heard (telephone interview with The Daily Record, October 2006). The Sun and The Daily Mail did publish pictures of the boy sunbathing. Upon his return from holiday, the bail and tagging restrictions were reinstated.

Plea and Sentence

The case came to the High Court at Glasgow on October 18th (after the formal period of research into EM bail had ended). All 4 young men pleaded guilty to culpable homicide rather than murder, and sentencing was put back for a month while reports were prepared. Two of the 4 did not apply for their bail to be renewed and were remanded in custody. The other 2, including the one who had gone to Bulgaria, continued to be remanded on bail. Unsurprisingly, given the earlier interest, there was widespread press coverage, and for the first time all 4 were named. The continuance of bail was the newspaper's main theme, articulated as adding insult to injury to the relatives of the murder victim. The Daily Record's full page coverage (October 19th p13) was headed "My dad's killer was let out for a holiday... now he's free again: victim's family hit out as tag row thug is bailed". The similar full page treatment in The Sun (October 19th, p13) was headed "Bail hol thug admits guilt... but is freed: what does this teenage killer have to do to be locked up?" While it might have been inferred from all the press accounts that the "bail hol thug" was marginally less culpable than at least 2 of the other 3 for the assault on Mr Drummond, he was the one of the 4 on whom the reports concentrated, because of the notoriety he had acquired earlier. Large photographs of his face (and smaller ones of him relaxing on a lounger in Bulgaria) were used in both The Record and The Sun. Perhaps surprisingly, the same photograph, large and in colour, formed half of The Herald's (October 19th p5) half page coverage; its headline "Family anger as killer allowed to go on holiday is bailed again" expressed the same sentiments as the tabloids. Rather than interpreting this as an instance of a liberal newspaper "going tabloid" it may be better to see it as an expression of just how widespread the hostility to the original decision to relax bail and tagging actually was. The Herald quoted both SNP and Conservative spokespeople to the effect that the case had brought, and continued to bring, the bail system into disrepute, although rather disingenuously, no mention was made in the paper that the Lord Advocate had already issued revised bail guidelines. The Record, whose original report on the "Holiday in Bulgaria" story had triggered the enquiry that produced the guidelines, did refer to them, but a quote from Mr Drummond's son - in respect of bail being continued even after guilt had been established - was used to imply that the judiciary had still not learned from previous errors of judgement:

The 4 young men were held equally responsible for Bryan Drummond's death and each sentenced to 9 years custody at Edinburgh High Court on November 15th. Press coverage nonetheless focussed almost entirely on the 16-year old whom the court had allowed to go on holiday, most of the tabloids again used photographs of him in Bulgaria. Only The Daily Record ran the sentence as a front page story. Half page articles in The Daily Mail and The Sun (16th November 2006) - respective headlines: "Prison at last for killer given bail to go on holiday" and "Bail Hols Killer Locked Up" ran on pages 33 and 35. The Daily Express ran half a page on page 4, while The Daily Mirror reduced it to a sidebar on page 11. The Herald and The Press and Journal ran short articles on pages 9 and 15 respectively, both mentioning "holiday" in the headline. All the articles identified the granting of bail to a murder accused, rather than the fact of tagging, as the main issue in the case. Picking up on comments from the sentencer (issued by the High Court), some newspapers, particularly The Scotsman, on page 19, criticised the Crown's reduction of the charge from murder to culpable homicide, although in the light of the eventual sentences handed down, the victim's family - heavily quoted throughout - seemed not to object to this.

CONCLUSIONS

Press coverage of Scotland's EM bail pilots has veered between sceptical and negative, erring mostly towards the latter. Nothing strikingly positive has been said or implied. In themselves, they have not had a particularly high profile, rather they have been covered as illustrative of a larger, ongoing narrative about bail and tagging. Press coverage framed the advent of the pilots in March 2005 as a misguided and ill-thought out strategy on the part of the Executive, and created particular anxieties about their use with rapists and murderers, which, as indicated below, was disproportionate given the range of offender-types who applied for and were granted EM bail. Coverage has not been rational because the idea that EM bail constitutes a toughening up of bail - made patently clear by both the Executive and the Sentencing Commission - has never been presented cogently or systematically in the press; if anything EM bail has been made to seem irrational precisely because it allows offenders who were deemed dangerous enough to be refused ordinary bail to keep their (undeserved) freedom. Coverage has not been rounded in the sense that stories about the successful operation of bail (least of all human interest stories) have been noticeably absent: the main "human interest" stories have invariably been tragedies, detailing the death of someone at the hands of a bailed defendant. Responsibility has been interpreted by the press as warning people that with this particular policy the Executive is needlessly endangering people, not as promoting rational debate about penal matters in a balanced way, although latterly, The Herald, in several editorials, has been taking seriously the need to manage prison numbers.

The main characteristics of the formats used in the press coverage of bail and tagging over the research period have been as follows:

1. An almost exclusive emphasis on the failure of bail and tagging. Success stories hardly ever appear in the press - there is no context of routine and mundane achievement against which isolated and atypical stories of failure can be set.
2. The majority of the coverage has taken the form of news items, together with a few editorials. No analytical pieces on tagging, by regular or guest columnists, appeared in the papers examined during the research period.

The main themes in the press coverage have been:

1. Bail and tagging - separately and in combination - are forms of leniency, risk and endangerment.
2. 1. Attempts to reduce the use of prison are basically wrong.
   2. The judiciary are mostly out of touch with public concern and sentiment about crime.
   3. Tagging is not a credible form of control or punishment- tagging is not seen in any meaningful way to strengthen bail, to make it more onerous than ordinary bail.
   4. Tagging is becoming emblematic of community supervision more generally.
2. The Conservative Party is deeply opposed to tagging - good at getting press coverage, and with a knack for expressing its criticism with panache.
3. There is no essential difference in the themes across tabloids and broadsheets - the latter express similar sentiments to the former, but (usually) in more refined and sophisticated ways.
4. Even where press stories on tagging are balanced - containing even-handed arguments about its use and potential - they are invariably "framed" and "stacked" negatively, first by the headline then by the order in which points are made in the article.
5. 1. The case for tagging is never made by the authorities with the panache that its critics muster to oppose it.

5. The voice of angry crime victims are often enlisted to criticise both bail and tagging - and this is a uniquely and emotionally powerful way of discrediting them.

The skewed, unrounded nature of the press coverage of the EM bail pilots is arguably most apparent in respect of murder cases. Of the 261 cases in which the research has details of the presenting offences in applications for EM bail - and there are 45 cases where we do not have such information - 10 involved murder (of which 5 were granted); 10 involved attempted murder (of which 3 were granted); one involved rape (and was not granted); one involved attempted rape (granted) and one involved causing death by dangerous driving (not granted). Put another way, 5 defendants facing murder charges who had been refused ordinary bail were also refused EM bail; while 7 defendants on attempted murder charges refused ordinary bail were further refused EM bail. 7 of the murder charges came from Kilmarnock Court (plus 2 from Glasgow Sheriff Court and one from the High Court at Glasgow) and included the 4 young men charged with the murder of Bryan Drummond. Despite the prominence given to this case when one of the 4 was permitted to take a 2-week holiday abroad, it can readily be seen that in the 16 month period of the research EM bail enabled only 8 defendants charged with murder (5) and attempted murder (3) to be released "on conditions" into the community rather than be remanded in custody. In both types of case, either equivalent or greater numbers (5 and 7 respectively) were refused EM bail. This is not to dispute that EM bail was used more generally for presenting offences involving violence (granted in 41 cases and refused in 76 cases), or to deny that murder and attempted murder may have figured in the 45 cases on which we have insufficient data, but it still puts the press preoccupation with murder cases - the creation of an expectation that murderers would be bailed in significantly greater numbers than hitherto because of the addition of an EM-condition - in perspective.

REFLECTIONS AND RECOMMENDATIONS

The negative press coverage of EM in Scotland serves to weaken the credibility and legitimacy of an initiative in Scottish criminal justice policy for which an obvious and reasonable case can be made. This is heightened by the absence, anywhere in the public domain, of accessible and intelligible positive images which might contextualise, counter or balance the negative ones. The Executive, reasonably enough, has seen the addition of an EM-condition to bail as a partial solution to acknowledged problems with ordinary bail, but the press, precisely because it has a pre-existing sceptical-to-negative attitude towards tagging, has simply not portrayed it in these terms. There are no simple or rapid solutions to this, and certainly no straightforwardly technical ones, but unless tagging can be given a better image (or the negative images neutralised) it will not readily be seen as a way of strengthening or augmenting any other measure with which it is associated, whether bail, probation or parole. That is not to say that nothing can be done. The following reflections and recommendations - by no means comprehensive - draw on academic research on the media coverage of community penalties, on the processes by which public opinion can be influenced, on the insights of the Rethinking Crime and Punishment initiative and on the work of the campaigning group Smart Justice. Direct referencing is kept to a minimum, for ease of reading.

The Social Context of the Scottish Press

There are a number of reasons why the cumulative press coverage of a specific topic like tagging or an issue like reducing the use of imprisonment cannot be fully understood apart from a grasp of broader press practices, and the specific political, media and commercial context in which newspapers operate. Scottish newspapers are in an evolving, not-yet-settled relationship with the still relatively new Parliament and it's Executive. Overall newspaper sales are in decline, and circulation wars are intense, both among indigenous papers and between indigenous papers and Scottish editions of England-based newspapers. Established competition with television and radio has been intensified by the advent of 24 hour "rolling" news services, and augmented by web-based information sources, which is in turn forcing "the press" itself to disseminate news in multi-media formats, perhaps targeted on niche audiences at particular times of day.

Aspects of this context affect current press practice in a number of ways. Where the relationship between government and press is (for whatever reason) generally antagonistic, stories about specific initiatives - tagging for example - may become proxies for larger targets, indirect ways of questioning the competence and integrity of the authority responsible for them. Conversely the very reasonableness of criminal justice policies may mean that in order to make them newsworthy, such imperfections as they inevitably possess may have to be amplified, and criticised more stridently than they might otherwise warrant. Newspapers are adept at manufacturing "furious" arguments by juxtaposing quotes from selected spokespeople, limiting each to soundbites which are often little more than party political points, rather than constructive contributions to rational, rounded debate about penal practice. (The same spokespeople may nonetheless contribute quite eloquently elsewhere, in feature articles rather than news items, or in fora outside the media altogether). Lastly, what may on the surface appear to be the independently formed and held views of newspaper editorial teams may in fact reflect the views of authoritative (or, at least, perceived-to-be-authoritative) respondents within the criminal justice system with whom certain journalists are regularly in contact. The police, for example, have a sophisticated public relations machine compared to other criminal justice agencies, and, given their on-the-record frustrations with the bail system are not likely to find fault with the way in which Scottish newspapers have consistently portrayed its failings.

Taking all these contextual factors into account, there is no likelihood of halting the negative press coverage of tagging, unless and until it comes to be regarded as either boring (un-newsworthy) in itself, or unless something else displaces it as a handy emblem of absurdity and failure in community supervision. It is in the very nature of newspapers to render (selected) issues of the day controversial, and for several years - after an initial honeymoon period when it was first introduced in Scotland - tagging has been one of those issues. Cynics and realists alike will point out that almost any dramatic crime and punishment story helps to sell newspapers, that (some of) the public are only being given what they want. In addition, in a competitive marketplace newspapers can legitimately claim that if they did not dramatise stories (or at least headlines) people's attention would not be caught and they would be less well informed as a result. Furthermore, no one can seriously dispute that some of what newspapers expose and dramatise is in the public interest, however uncomfortable it is for the government or judiciary, and that in granting the press the freedom to do that all of the newspapers some of the time and some of the newspapers all of the time will cumulatively report on issues in a way that is ultimately not conducive to balanced, rational public debate. The criticism remains, however, that insufficient good news stories about community supervision - as opposed to an abundance of routine good news stories about the police catching criminals, or good news stories about courts sentencing someone to prison - are too few and far between to provide a context against which the typicality of bad news stories can be judged. Only by constantly generating counter stories - of routine success in community supervision - in the hope that they too will filter into public consciousness, might one create a climate in which the perennial tilt towards negative stories will be consistently recognised for what it is, and allowance made for it when forming judgements. Before considering how good news might be generated and disseminated, however, something must be said about tagging and public opinion.

Tagging and Public Opinion

It was made clear at the beginning of this appendix that the state of public opinion about tagging cannot simply be read off the press coverage, or indeed any media coverage. Public opinion (itself a problematic concept) on criminal justice matters is a complex, nuanced affair. Research conducted for the Justice 1 Committee concluded that despite claims being made of increased punitiveness among the public there was, in Scotland as in many other jurisdictions, "significant support for community-based sanctions" (Hutton 2004:250). This support was apparent however only when respondents in a civic participation exercise (a deliberative poll) were given background information - mitigating circumstances - on individual offenders whose cases they discussed as part of a sentencing exercise. When this information was made available - as opposed to cases where it was not - there was "a significant movement towards more rehabilitative sentences and away from the more punitive sanctions (prison, electronic monitoring, fines)" (idem, emphasis added). No indication is given of what practical image respondents had of EM or of what their sources of information were, but if indeed the majority of Scottish citizens believe EM to be an unduly punitive measure, and something to be "moved away from" for that very reason, one can only infer that they are profoundly unaffected by the portrayal of it in the press, which discourages support for tagging for precisely the opposite reason, namely that it is not punitive enough.

It has been claimed elsewhere (Maruna and King 2004) that public education approaches to improving opinion on community penalties generally have only small scale and short-lived effects - no-one knows how long the effects of a particular time-limited educational input may last. It might be argued in policy terms, however, that even small-scale gains are worth working for, and that the possibly short-lived nature of interventions might be offset - to put it not stronger - if a constantly updated public education source was continuously available. In respect of tagging itself there is limited, mostly American, evidence that educative/deliberative techniques can indeed elicit positive and supportive responses from respondents - electronically monitored home detention comes to be seen as having a legitimate place in the spectrum of sanctions in some cases - but no evidence that it is perceived as a more superior approach to community supervision than anything else.

Creating Good News about Community Supervision (including Tagging)

Although specific things must be said and done to promote a more positive image of tagging in particular - showing that it routinely works, that it has mundane successes - this should mostly be undertaken in the broader context of promoting the principle of community supervision and the practical successes of all community penalties. Compared to good news about police and court practice (swift arrests and stiff sentences), which regularly appears in the media, and certainly in the press, there is a marked absence of good news about community supervision (which is hampered, in part, by a requirement laid on the supervising authorities to maintain client confidentiality). Although the phrase "honesty in sentencing" is not usually used in this context, getting good news about community supervision into the public domain could be regarded as an exercise in overdue truth-telling, bringing to light something too long suppressed. It is a good in itself. In addition, it has an instrumental justification: a strategy for managing prison numbers cannot be carried by tagging, or indeed any one form of community supervision, alone. Public support for a prison reduction strategy depends in part on knowing (just enough) about and having confidence in alternatives to custody. Insufficient practical attention has been given by policymakers as to how this might be brought about. The publication of official data, and estimations of effectiveness based on arcane statistical and economic formulae, intelligible only to experts, is necessary and valuable, but not enough to win legitimacy.

It is not readily in the gift of the Executive itself to improve the image of community supervision, beyond doing what it already does. The Justice Department's Communication's Team is on top of its game in every sense. Any special pleading by the Executive for their own policy initiatives, however well grounded and honest, would be dismissed by many - if not all - in the media, as spin. In any case - other stakeholders in the different forms of community supervision - the statutory and voluntary (and in tagging's case, private) agencies which deliver them should also be reflected in any positive image of them. It would, however, be useful for the Executive (and the other stakeholder's) to at least be able to point towards the availability of a reputable and independent good news source elsewhere, and to a convey a sense that, by dint of the evidence at this site, it has every reason to be confident with the broad thrust and general outcomes of its policies. The issue remains of how the various media would use Executive references to good news, but right now it is the absence of an identifiable source of good news that is the most pressing problem.

The ideal source of good news would be an independent website which explained the processes and outcomes of different forms of community supervision in an intellectually respectable but publicly accessible way. Information would need to be available both in the form of statistical evaluations and human interest stories: a premium would be placed on clarity of data and argument. Evidence would be fair and rigorous but not formally academic or unduly theoretical: it should be made audio-visually interesting in every possible way, so as to become indispensable to any journalist (or member of the public) seeking information on community supervision. Criminological, political and public relations and marketing expertise should be drawn on in its construction. Tagging should appear "in context" on this website as just one among several components of community supervision, and its strengths and limitations openly acknowledged. However, precisely because tagging has been singled out by the press as a rather problematic way of dealing with offenders, special care should be taken to show that there are many instances of offenders routinely complying with it, and benefiting from the opportunity it affords to break criminal contacts and habits. A penal reform body may well be the best placed organisation to construct, brand and operate such a website, but it would need to be properly resourced.

Nonetheless, caveats remain. Even if a good news source of the kind described here existed, there is of course no possibility, in a democratic society, in a multimedia age, of sustaining a permanently positive view of tagging across a broad swathe of citizens. There are genuine pros and cons to be aired about the ways we deal with offenders, and no sanction is viewed positively all the time; indeed prison itself is often criticised for being either too lenient or too harsh. The utility of punitive and rehabilitative measures will always be contested from one standpoint or another. It ought, however, to be possible - and it is certainly desirable - to convey a view that community supervision in general (and tagging in particular) is a sensible measure in many instances, which works for some if not for all. This would be better than permitting - in the absence of any good news source about tagging - a sense that it never works, and that it is in principle ridiculous. When press coverage of tagging reaches a level of negativity that no minister would want to speak publicly in support of it, for fear of attracting opprobrium or ridicule, then remedial action is surely necessary. Such a situation means, firstly that the media have (however temporarily) set the agenda, and secondly, that public debate cannot proceed as openly as it might otherwise do. Allowing negative images to go uncontested undermines the legitimacy of criminal justice policies and judicial practice and it may set in motion a downward spiral, in which erstwhile supporters of tagging, sensing the ebb of political endorsement, fall away.

Electronic Monitoring, Popular Culture and Public Opinion

Public opinion on something like EM may be based on fleeting impressions rather than substantial knowledge - many people will be too busy, or insufficiently interested, or both, to pursue knowledge in depth - but, that being the case, one wants positive rather than negative fleeting impressions. Such fleeting impressions might well derive from popular culture rather than news media, entertainment magazines no less than serious newspapers. Real and imaginary forms of EM already have a presence in crime fiction and science fiction - literature, comics, film and TV - and there is quite rightly no way of imposing official control on the information therein or the impressions formed as a result. In England, 2 long-running TV soaps, reaching audiences of over ten million, have both featured tagging stories. Both, as it happened, cast tagging in a reasonably positive light, but, while opportunities should be taken to insert positive impressions of tagging (or indeed any form of community supervision) into popular culture formats, the real lesson here is the ease with which absolutely uncontrollable sources of widely-seen entertainment could easily create and sustain false impressions. This points even more emphatically to the need for an independent information site about good news in community supervision.

A more focussed and controlled way in which popular culture might be utilised to promote tagging would be via occasional celebrity endorsement. This may seem at first sight like "dumbing down", and be dismissed accordingly. However, in the past decade it has not been unknown for alternatives to custody projects, and crime prevention and victim support initiatives to use this approach, and well-known politicians who, for example, use wit and panache to demolish the credibility of penal reforms are, in a sense, already using their own personal reputation or brand to tilt public perception and argument in a certain way. The truth is that modern celebrities - footballers, musicians, newsreaders and actors - will attract attention and interest among audiences who pay little or no attention to the more formal reportage of journalists or the considered reflections of penal reformers. Celebrities bestow qualities associated with themselves - intelligence, glamour, "cool", common sense and integrity - onto the product or approach in question. There is obviously an issue about choosing the right kind of celebrity - the wrong choice may further dent the reputation of the product, and again, in order to be authentic and credible, celebrity endorsement should depend on the availability elsewhere of solid evidence that tagging works and is worth supporting. The aim of celebrity endorsement would simply be to convey an impression of tagging as a smart, sensible, common sense component of a strategy designed to keep appropriately selected offenders out of custody, to make community supervision more onerous, to keep families together who might otherwise be separated, and to facilitate reintegration within the community.

Serco, the Business Community and Public Opinion

The fact that EM is delivered via the private sector - and in Scotland by an organisation which prides itself on contributing to technological innovation - could be capitalised on. Serco Monitoring Services could promote itself as a successful enterprise within Scotland's high-profile "Silicon Glen" industries, and in its business community more generally. In addition media coverage should be sought in the science and technology sections of newspapers and broadcasting - as indeed it was in the early days of its introduction. Its novelty has now worn off, but innovation is ubiquitous in this field, and new ways of attracting the attention of science and technology media could surely be found. Tagging needs to appear periodically in the media alongside such developments as (for example) nanotechnology, ipods and mobile phones as a "smart" and socially useful technology, albeit not as something "complete in itself" as a mechanism for regulating or changing offender behaviour. People who read, hear and inform themselves about EM in their capacity as business people or technophiles are still likely to talk informally - spread word - about it in a range of intersecting social networks.

Electronic Monitoring and Victim Support/Advocacy Organisations

Some support for EM needs to be cultivated among victim organisations, showing clearly how EM can be used to augment, if not guarantee, their protection from particular types of offender. Victim advocate and support organisations must ultimately be left free to form and promote their own view of EM but they too need to be sufficiently well informed about its ordinary routine successes and to be at least capable of contextualising claims made in the media by angry victims that because they feel let down when their offender is tagged that the whole practice of tagging is therefore flawed. Emotive claims by angry, grieving victims, or by their representatives, that they have been unfairly or insensitively dealt with by courts can be potent ways of denting the credibility and legitimacy of any form of community supervision. The voices of crime victims, angry or otherwise, are legitimate and desirable contributions to mature debate about crime and punishment in any country, but it is not sensible to allow their likely amplification by the media to distort the broader realties of otherwise defensible policies and practices. Other voices - respectful of their grief and anger, but more moderate and less emotive - must be heard alongside them.

Prosecutors, Sheriffs and the Press

While judicial decision-making must be independent of all media pressure, decisions need to be intelligible and defensible to a range of parties. The fact that the press had from the outset - the publication of the Sentencing Commission's report - played up anxieties that EM bail would be used routinely with "murders and rapists" should arguably have made court personnel especially reflective in their dealings with the very small number of applications from murder-charge defendants for EM bail was imposed - and also in their dealings with relatives of murder victims. The decision to suspend bail and tagging to enable a defendant to go on a 2 week family holiday signalled clearly that these measures afforded legal possibilities to defendants that a remand in custody would clearly not have done; no-one could apply from custody to go on holiday without attracting derision and ridicule. Within a 24 hour period, a court's decision to suspend bail and tagging to allow a defendant to go on holiday had put senior politicians on the defensive, and an enquiry - in itself a concession that something needed to be done - had been announced. The press coverage was triggered by an angry victim and in the final analysis angry victims cannot be stopped from going to the press. It is unclear whether the victims were equally upset that bail and tagging had been suspended for the defendant who had been to visit his ailing grandma in England. Certainly the press made nothing of this compared to what they made of the suspension in respect of a foreign holiday, suggesting that they accepted some kind of "moral" distinction about the defensibility of the 2 decisions, rendering the "bad" one newsworthy and the other not.

The report of the enquiry into the Kilmarnock decision is not in the public domain, and this research did not explore the incident itself with any of the key players, other than to confirm some basic facts. But let us assume for the sake of argument that the Procurator Fiscal did have sound reasons for not opposing the request for a temporary suspension. Firstly, he had more detailed knowledge than anyone else of the defendant's actual involvement in the crime. Secondly, the defendant was technically innocent till proven guilty. Thirdly, the Procurator Fiscal could have reasoned a) if the defendant was in Bulgaria he could not by definition do any of the things that his bail and tagging conditions prohibited him from doing in Kilmarnock and b) that if the suspension was denied, and the defendant barred from travelling abroad, he would - if his family went without him - be left at home unsupervised, perhaps a potentially worse option in public safety terms. This reasoning is, admittedly, entirely hypothetical. The point however is that the reasons are intelligible and (to a degree) defensible and had they or something like them been put in the public domain they may have made the Procurator Fiscal and the Sheriff look somewhat less defenceless than the press, in actuality, made them appear. In addition - bearing in mind the Executive's (2005 para 19) desire that "bail decisions must be fair to the accused, but also fair for victims" - if reasons of this kind had been given to the relatives of the victim (by the Victim Information and Advice Officer) they may have felt less let down, and been less likely to take their concerns to the press.

A practical model for making judicial decision-making more publicly intelligible already exists in the Scottish High Court. Its appointment of a Public Information Officer, who helps draft public statements about particular judicial decisions, has been welcomed by newspaper editors, including the editor of The Daily Record, as a basis for more accurate and informed reporting. While the scale of sentencing in the lower courts precludes press statements even in the case of all serious crime, there is something to be learned from the High Court experience as to what might need to be said, in court or subsequently, to make a particular and perhaps awkward, decision intelligible. The failure to give good reasons when good reasons can be given simply makes it easy for the press to find fault with judicial decisions.

SUMMARY

The press coverage of Scotland's EM bail pilots veered in the 16 month research period between sceptical and negative, erring mostly towards the latter. There were only 5 incidents in which the pilots became news. Nothing strikingly positive was ever said or implied. There are subtle (and useful) differences between tabloids and broadsheets, but the thrust of the argument in each is much the same. Much of the early news focussed upon the anticipated impact of EM bail in murder cases - and latterly, on an actual murder case - although murder represented only a small proportion of the cases in which EM bail was granted.

In themselves, the pilots did not have a particularly high press profile, rather they were covered as illustrative of a larger, ongoing - and very critical - narrative about bail and tagging. The credibility of EM as a condition of bail will only be taken seriously as an enhancement of bail if the image of tagging more generally is improved. The image of bail itself is a problem - by dwelling on cases of serious offending that have occurred on bail, the press use it to connote leniency and incompetence on the part of legislators and courts.

The negative press coverage of EM in Scotland serves to weaken the credibility and legitimacy of an initiative in Scottish criminal justice policy for which an obvious and reasonable case might otherwise be made. This is heightened by the absence, anywhere in the public domain, of accessible and intelligible positive images which might contextualise, counter or balance the negative ones. The creation of a good news website about community supervision generally, in which tagging is set in context, lies at the core of a number of steps that could usefully be attempted to redress this. The availability of a good news website will not guarantee that the press reporting of atypical cases - the acknowledged failures of community supervision - becomes more balanced. Nonetheless, in an increasingly multi-media, web-oriented age (in which news papers are gradually becoming less important) it will constitute a new sort of reference point, and ensure that better, more rounded, information is at least available as a resource for public and media discussion.

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