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EXECUTIVE SUMMARY
INTRODUCTION
In April 2005, the piloting of electronic monitoring as a condition of bail (hereinafter referred to as ' EM bail') was introduced across 4 courts, the High Court sitting at Glasgow and the sheriff courts in Glasgow, Kilmarnock and Stirling. The aims of the pilots were twofold:
- to reduce the use of custody for those accused deemed eligible for electronically monitored bail who would otherwise be remanded in custody; and
- to offer additional security to the general public against the likelihood of offending or intimidation of witnesses by accused people who are seen as a potential risk if not remanded in custody.
The Criminal Procedure (Amendment) (Scotland) Act 2004 introduced 2 relevant provisions: first, to allow an accused person who has been refused standard bail to apply for bail with an electronically monitored movement restriction condition under Section 24A(1); and secondly, to grant the court powers to impose an electronically monitored movement restriction condition without application from the accused, in petition cases involving rape or murder charges under Section 24A(2). The evaluation on which this report is based covers the period from April 2005 until the end of July 2006, the first 16 months of the 2 year pilot.
AIMS AND METHODS OF THE EVALUATION
The aims of the evaluation were to assess the implementation of EM bail in replacing custodial remands, and to conduct a cost analysis of EM bail in contrast to those given custody. The study included the collection of qualitative and quantitative data, matched comparison data and cost analysis. Interviews were conducted with 10 Steering Group members and 45 professionals (comprising the police, social work, procurators fiscal, clerks of court, judges, sheriffs, defence agents, advocates, the electronic monitoring companies and victims' agencies). Interviews with 16 bailees and 15 household members were also undertaken. Quantitative data were collected from various sources, namely: court pro formas, Reliance/Serco databases, court files, social work files, police records, Scottish Criminal Record Office and data provided by the Scottish Executive Justice Statistics Branch, the Scottish Court Service and the Scottish Prison Service. Data from 3 comparison sheriff courts also provided a range of information on accused remanded in custody or bailed with or without conditions in areas outwith the pilot sites to ascertain whether EM bail is being used as a direct alternative to custodial remand and to explore differences in final sentences for the 2 groups.
The data presented in this evaluation are limited in both scope and accuracy. The numbers of respondents interviewed were small and the data collected both by the Scottish Executive and other agencies were not always complete or compatible. The various agencies do not necessarily keep the same data on accused and given that each agency records information using their own unique reference number, it is not always possible to cross-reference between databases. It was therefore deemed essential to use triangulation methods to build up a more accurate and fuller picture of the numbers being processed through the various stages of EM bail, through comparing and contrasting data from, inter alia, the Scottish Executive, the Scottish Court Service, the Crown Office and Procurator Fiscal Service, complaint files held in each court and social work files.
CHARACTERISTICS OF EM BAIL APPLICANTS
In the first 16 months of operation, applications were known to have been made for EM bail in 306 out of 6,914 (4.4%) potentially eligible cases across the pilot sites: 108 in Stirling, 105 in Glasgow and 93 in Kilmarnock. All of these applications came under Section 24A(1) legislation, even though there were 11 known eligible cases of murder or rape included in these applications. Of the 306 applications, 116 were granted EM bail, comprising a reduction of 1.7 per cent of all custodial remands, while 75 were refused outright at the first hearing and 115 were refused following receipt of suitability reports.
The vast majority (94%) of applicants were men and the mean age was 26, ranging from 14 to 63. The majority of applicants presented with one or two offences and the most common of these were violence offences, breach of bail/bail aggravation offences and disorder offences. Most of the successful applications were from accused charged in summary rather than solemn proceedings. Those who were refused EM bail without the sheriff calling for a suitability report had a significantly higher number of previous offences (15.70) than those who were refused EM bail following a suitability report (9.27) and those who were granted EM bail after a suitability report had been completed (9.35). This suggests that the offenders with a higher number of previous offences are less likely to be considered appropriate for EM bail.
THE REFERRAL PROCESS
The EM bail referral process has operated relatively smoothly over the course of the fieldwork period, although numbers have not increased significantly in the first 16 months. In 75 per cent of applications, the sheriff called for a suitability report. The remaining 25 per cent were refused outright (9 per cent of Kilmarnock applications, 17 per cent of Glasgow applications and 45 per cent of Stirling applications). Where suitability reports were called for, the average length of the custodial remand pending such reports was 5.7 days.
The conversion rate from an application for EM bail to EM bail being granted is relatively low, with 38 per cent of all applications being granted; 50 per cent of those where suitability reports are called for being granted; and 62 per cent of those whose suitability reports considered EM bail appropriate being granted. Where the same sheriff presided over both hearings, sheriffs in Stirling and Glasgow tended to grant the majority of applications whilst Kilmarnock sheriffs did not. It may well be that the reasons for this are changed circumstances of the accused or additional information on the charge(s) brought to the attention of the court in the intervening period; however, it was suggested by some sheriffs at interview that a different interpretation of suitability may be a determining factor.
Initially, the relatively low application rate was suggested by respondents to be partly due to the possibly limited awareness amongst out-of-town defence agents and visiting sheriffs regarding the existence and procedures of the pilots. This report concludes, however, that it is more likely a presumption of remand by defence agents that has limited the application rate in some courts, not least because only 26 defence appeals against refusal of standard bail, EM bail or both were lodged out of the total of 116 cases granted EM bail in the first 16 months. Section 24A(2) legislation has not been used to date in respect of rape or murder charges. There have, however, been a total of 11 eligible cases of rape or murder appearing in the pilot courts in the first 16 months of operation, 5 of which were granted EM bail under section 24A(1) legislation, and 6 refused. The report concludes that giving the Crown as well as the court greater powers to impose EM bail might well strengthen standard bail in these cases.
The application rate was particularly low in Glasgow, where despite the presence of 80 per cent of all potentially eligible cases, EM bail was applied for in just one in 50 cases, as opposed to over a fifth of cases in Stirling and one in 10 cases in Kilmarnock. Glasgow's low application rate may be because of unrelated industrial action by bail officers early on in the pilot, or problems in Glasgow Sheriff Court relating to legal aid for defence agents, a review of criminal justice staffing and other action by the legal profession in relation to criminal court matters.
THE EFFECTIVENESS OF EM BAIL
A total of 63 bailees completed an EM bail order during the first 16 months of the pilots, with 46 per cent being under 20 years old. Presenting offences for accused who completed an EM bail order included bail aggravation/breach of bail offences, disorder offences and violence offences. Fifty-two of the 63 completers were restricted to a place, 9 restricted from a place and 2 restricted both to and from a place. The majority of curfew restrictions to a place were overnight, generally for 12 hours (e.g., from 7pm to 7am). Four accused were restricted to their home for 24 hour periods and of the 9 restricted from a place, 8 of these were for 24 hour periods and one was overnight. Twenty-three of the 63 EM bailees spent between 5 and 40 days on EM bail, a further 27 bailees between 41 and 90 days and the remaining 13 spent between 91 and 217 days.
Failures to comply
Failures to comply with the EM component of a bail order comprise voluntary non-compliance (e.g., failing to comply with curfew times) and involuntary non-compliance (e.g., withdrawal of consent by householders) with the EM component of the order. Two thirds (44 out of 63) of the EM bailees allegedly failed to comply with the EM component of their bail orders on at least one occasion and 36 per cent of these failures to comply happened within the first 10 days of an order. There was no significant increase in failures to comply by length of time on EM bail, and equally, although curfew times were often lengthy (mainly overnight but some EM bailees were confined for 24 hours 7 days a week), there was no apparent link between the number of hours of curfew and the ability of the accused to comply with the order. These findings suggest that failures to comply are not necessarily linked to the length or curfews of EM bail orders per se but to extraneous factors such as age, circumstances or offending history. For example, although accused aged 20 and under were more likely to be granted EM bail, they were also less likely to comply with one or more conditions (79%) than the over 21 age group (61%); likewise those whose presenting offences included breach of bail/bail aggravation were less likely to comply (72%) compared with those with no bail aggravated presenting offences. However, it is also the case that the electronic component allowed for immediate detection of infringements of curfews and tampering of equipment, which may have increased the reported number of failures to comply.
Breach proceedings were brought against 31 of the 63 EM bailees; 11 of the total of 29 in Glasgow; 9 of the 13 in Kilmarnock; and 11 of the 21 in Stirling. Fifty five per cent of Glasgow breaches, 22 per cent of Kilmarnock breaches and 36 per cent of Stirling breaches were as a result of breach of bail conditions only. In the majority of notified failures to comply, the procurators fiscal took no further action and the EM bail order was continued. EM bail orders lasted for between 5 and 217 days. Fifty-one of the 63 EM bailees (81%) had their orders revoked at the time of the trial, rather than prematurely because of breach. Where the final outcome of the trial for the original offence is known, 14 EM bailees of the 37 known outcomes received custodial sentences for the original offence.
Reducing custodial remands
When compared to a matched sample from Edinburgh, Greenock and Linlithgow Sheriff Courts in the period April 2005 to March 2006, it would seem that the pilot courts have a stronger tendency towards remand in custody for higher-tariff accused than their counterparts in the comparison courts, where 24 per cent of the matched sample were given custodial remands pending trial. This is perhaps surprising given that the levels of offending histories of both samples were matched, as were the presenting offences. Likewise, the comparison sample was at an advantage in terms of how long these accused spent on remand pending trial: whereas the pilot group spent a mean average of 70 days on EM bail, those remanded in the comparison courts spent a mean average of 48 days in custody pending trial, and these latter periods on remand would be taken into account in any final custodial sentence, whereas the EM bail period would not be taken into account. However, it should be borne in mind that accused are at liberty during their period on EM bail, which many respondents acknowledged was a definite advantage of the pilots.
Final outcomes for the comparison group were also less severe than for those in the pilot courts - 22 per cent of the comparison sample received a custodial sentence for the original offence compared with 30 per cent of the pilot sample who were granted EM bail and 57 per cent of the pilot sample who were refused EM bail. The mean average length of custodial sentences for the comparison group was 93 days (before backdating to take into account length of time on custodial remand) and 121 days for the pilot group where no backdating was available. It would thus seem that EM bailees are given longer custodial sentences than the comparison group, and are also not eligible for the backdating of such custodial sentences.
The evaluation period did not allow for the collection of substantive data regarding offending on bail or reconviction rates, and it was not possible to make detailed comparisons of offending trends between those in the pilot sample and those in the comparison sample.
INTER-AGENCY COOPERATION
Initial consultation and subsequent liaison between the Scottish Executive and key stakeholders was seen as both crucial and effective in the implementation of the pilots. Both the National Steering Group and the Local Liaison Groups were important in establishing inter-agency communication and cooperation and in keeping abreast of any difficulties or inconsistencies within and between the pilot sites. There is a fear, however, that the consistency of practice and learning from mistakes that the NSG and LLGs encouraged during the pilot period will be lost in the event of a national roll out, which could result in variations in practice, a lack of sharing of information and advice, and the potential for criticisms of inconsistency and incompatibility between sheriffdoms, police forces and local authority social work departments.
THE COSTS OF EM BAIL
The overall cost to agencies per accused on EM bail was estimated at £4,123 as compared to £5,096 per case for those refused bail and remanded in custody. This suggests an expected cost saving of £973 per accused granted EM bail. However, this apparent cost difference does not take into account the differential treatment of time spent in custody during the pre-trial period: for people in custodial remand a subsequent custodial sentence is likely to be backdated to the start of the remand period. There is no equivalent backdating for EM bail cases. When comparing costs between EM bail and custodial remand, such backdating becomes pivotal because, under all assumptions that we were able to make about the proportion of custodial remand cases that get custodial sentences at final trial diet, the cost ranking is reversed. If, for example, 50 per cent of custodial remand cases are subsequently sentenced to custody, EM bail would be £1,575 more expensive per case. Overall, therefore, we conclude that EM bail is more expensive than custodial remand.
PRESS COVERAGE OF THE PILOTS
The press coverage of Scotland's EM bail pilots tended to be both sceptical and negative, and where covered at all, they were used to illustrate a larger, ongoing - and very critical - debate about bail and tagging more generally. There are subtle 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.
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.
CONCLUSIONS
There is evidence to suggest that although the process of EM bail is relatively efficient, the outcomes are less promising. The electronic component of EM bail did not inspire great confidence amongst professional respondents and indeed may well have exacerbated the breach rate for EM bailees because of the immediacy and transparency of the surveillance equipment. Those on EM bail also seemed to be disadvantaged in terms of lengths of time on bail and the length of custodial sentences where imposed for the original offence.
This evaluation suggests that the pilots have not fulfilled their aims of either increasing perceptions of public safety or reducing the custodial remand population in any significant way. This report is not saying, however, that EM bail has no value. On the contrary, it has intrinsic value as a means of imposing greater and more verifiable control over a defendant than ordinary bail. In this regard, EM bail can work, not least because individuals pending trial can maintain social commitments and family contacts that they might not otherwise have done if remanded in custody. However, unless a way can be found to make it more cost-effective, it is difficult to make the case for its continuance or expansion.
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