« Previous | Contents | Next »
Listen
CHAPTER ONE INTRODUCTION
BACKGROUND
1.1 The Scottish Executive is committed to introducing new measures in the Criminal Justice system which support safer communities, improve reintegration of offenders, support victims and witnesses, combat anti-social behaviour and increase the efficiency of court and legal procedures (Scottish Executive, 2003 and 2005b). Proposed reforms to date have included legislative initiatives and the development of existing infrastructures to expand successful community disposals in order to provide increased options to the courts to reduce unnecessary custodial sentences. Electronic monitoring was considered to have a role in developing these measures, not only post-conviction but also as a condition of bail (Scottish Executive Consultations, 2004). In April 2005, the Scottish Executive thus introduced the piloting of electronic monitoring as a condition of bail ( EM bail) across 4 courts, the High Court sitting at Glasgow and the Sheriff Courts in Glasgow, Kilmarnock and Stirling. The contract for service delivery of electronic monitoring across Scotland began in 2001 and was held by Reliance Monitoring Services Ltd. This contract expired at the end of March 2006 and the service is now operated by Serco.
THE DEVELOPMENT OF ELECTRONIC MONITORING
1.2 The electronic monitoring of offenders was introduced in the United States during the 1980s with its use increasing significantly during the 1990s due to the potential for a cost-effective way of reducing the escalating prison population. It is currently used in most US states for home detention, probation, parole, juvenile detention and bail. Use of electronic monitoring increased throughout Europe during the mid 1990s, particularly in Sweden and the Netherlands, where it is used alongside intensive supervision programmes and as a direct alternative to custody (Eley et al, 2005).
1.3 Mortimer and May (1997) calculated that there could be significant savings made by using EM curfews to displace custodial sentences. While the use of EM curfew orders has continued to increase it has been suggested that only 20 per cent actually displace custody, with 32 per cent replacing other community sentences and 43 per cent replacing fines and discharges (Toon, 2003 cited in Nellis, 2004: 233). The use of electronically monitored curfews has increased sharply in England and Wales, from 9,000 cases in 1999-2000 to 53,000 in 2004-05 (National Audit Office, 2006). It has become an integral part of the criminal justice system in England and Wales, and can be used at each stage of a criminal case (as a condition of bail, sentence or condition of early release from prison) and for young people remanded to local authority accommodation (Cassidy et al, 2005).
POST-SENTENCE ELECTRONIC MONITORING IN SCOTLAND
1.4 Electronic monitoring was introduced in Scotland in 1998 in order to monitor compliance with restriction of liberty orders ( RLOs) (under section 245 of the Criminal Procedure (Scotland) Act 1995 as inserted by section 5 of the Crime and Punishment (Scotland) Act 1997). These orders were initially piloted in 3 areas: Hamilton, Aberdeen and Peterhead. Curfews could be at a specified place (for a maximum period of 12 hours per day) and/or exclusion from a specified place (up to 24 hours per day) for up to 12 months. The evaluation of these pilots (Lobley and Smith, 2000) indicated that 40 per cent of the orders made were direct alternatives to custody and there was little evidence that EM curfews clearly improved on existing community penalties.
1.5 Respondents in the evaluation of electronically monitored RLOs (including offenders, their families and criminal justice professionals) were generally positive about the orders and the procedures and equipment for monitoring were found to be efficient. However, the report raised concerns about the type of offender for whom the order was most appropriate. Young offenders and those with serious criminal records were less likely to complete the order successfully. Fewer orders were made than anticipated and it was suggested that for RLOs to be cost-effective, the sentences they replaced would have had to have been relatively long.
1.6 RLOs were extended across Scotland from May 2002 as a sentence of the court and were made available to the High Court, Sheriff Courts and Stipendiary Magistrates Court within Glasgow District Court. RLOs can also be made concurrently with a probation or drug treatment and testing order ( DTTO). Subsequently, the Scottish Executive extended the use of electronic monitoring by introducing the Criminal Justice (Scotland) Act 2003 which was able to build on the existing infrastructure for electronic monitoring. This enabled RLOs to be used as a direct alternative to a custodial sentence; electronic monitoring to be used as a condition of a probation order or DTTO; and the use of electronic monitoring as a condition of a parole licence.
1.7 Electronic monitoring on bail was also made available in the Youth Courts at Hamilton and Airdrie from 2003 and 2004 respectively, at the request of the agencies involved in the pilot youth courts. The use of this mechanism as a condition of bail for 16 and 17 year old offenders with extensive previous offending histories could be used at the discretion of the Sheriff and does not fall within the remit of the piloting of EM bail covered in this evaluation. Similarly, the Anti-Social Behaviour, etc. (Scotland) Act 2004 allowed electronically monitored RLOs to be used on young people under the age of 16 years dealt with in the court system, and electronically monitored movement restriction conditions to be applied by Children's Hearings in certain specified conditions.
ELECTRONIC MONITORING AS A CONDITION OF BAIL IN SCOTLAND
1.8 An analysis of the use and impact of aggravated sentences for bail offenders (Brown et al, 2004) indicated that across the 7 courts in Scotland, the overall rate of offending on bail in 2001 was 29 per cent. Although the number of women in the study was small, females were less likely to offend on bail than males and those accused of crimes of dishonesty were more likely to offend on bail than any other group. Younger accused were more likely to offend on bail than older accused. A minority of accused committed multiple offences on bail (12% of all accused granted bail). Interestingly, in courts with a high usage of custodial remand, rates of offending for those on bail were lower. Overall, Brown et al (2004) suggested that remanding a higher proportion of accused in custody is the method most likely to lower offending on bail, but they were cognisant of the need to balance attempts to reduce crime rates with keeping custodial remands within the workable capacity of the prison service.
1.9 The Sentencing Commission for Scotland reviewed the use of bail and custodial remand and made recommendations on the basis of this consultation document (Sentencing Commission for Scotland, 2004). The Commission considered the importance of balancing the rights of the accused with interests of public safety and the smooth operation of judicial proceedings. It was noted that people should not be deprived of their liberty without good reason before being found guilty of an offence. However, it was also considered necessary to protect the public where there was good reason to believe that an accused may commit further offences or attempt to intimidate witnesses while on bail. In 2005, the Sentencing Commission produced its report on the use of bail and custodial remand in Scotland and the Scottish Executive followed this up with an Action Plan (Scottish Executive, 2005a) on the use of bail and custodial remand.
1.10 Scottish Ministers have continued to emphasise their determination to implement an effective bail and custodial remand framework by tightening up the process of granting bail; ensuring the court gives reasons for all bail decisions; and that breach of bail is dealt with robustly. Respondents to the consultation (Scottish Executive Consultations, 2004) were generally supportive of the potential which electronic monitoring might have if used as a condition of bail but sheriffs at that time considered that it should not be used as a belt and braces approach on those who would otherwise have been bailed but as a direct alternative to custodial remand.
1.11 The potential for rehabilitative interventions in Scotland has been a priority for the Scottish Executive over a number of years, evidenced by the introduction of DTTOs, Drugs Courts and Youth Courts. Additionally, the introduction of RLOs demonstrated the potential which restrictive alternatives to custody can provide. The rising prison population, particularly in short term sentences and the significant increase in the number of remands (an increase of 27% in 2002 from the previous year) had led to the view that electronic monitoring as a direct alternative to custodial remand could potentially reduce the use of custody (Nellis, 2006; Scottish Executive Consultations, 2004).
1.12 To introduce electronic monitoring as a condition of bail ( EM bail) and as a direct alternative to custodial remand was considered particularly important given that there were more receptions of custodial remand prisoners in 2002 than of prisoners sentenced to imprisonment, with only half of those on custodial remand ultimately convicted and given a custodial sentence (Sentencing Commission, 2004). While the number of female accused remanded in custody was small, there was considerable variation between the number of women given custodial remands and imprisoned across courts (Brown et al, 2004). Therefore, the aims of piloting EM bail in Scotland were twofold:
- to reduce the use of custody for those accused deemed eligible for electronically monitored bail who would otherwise be remanded in custody;
- 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.
1.13 The Criminal Procedure (Amendment) (Scotland) Act 2004 introduced 2 relevant provisions: that an accused person, who has been refused standard bail, may apply for bail with an electronically monitored movement restriction condition under Section 24A(1); and that the court can 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 first provision is dependent on a court having considered and rejected the option of standard bail thus remanding the accused in custody. Its use is intended to provide the courts with an additional tool, if satisfied that the reasons for refusal to grant standard bail initially can be addressed to a certain extent by a monitored movement restriction condition. The second provision is used as a means of tightening conditions attached to bail and to act as an additional safeguard to the public and extends to accused persons pending trial and those convicted and/or sentenced pending appeal in rape and murder cases. Under this condition, if the court grants bail to an accused or a person appealing conviction of rape or murder then the court can impose electronic monitoring as a matter of course.
THE OPERATION OF EM BAIL
1.14 Figure 1.1 below charts the process of EM bail, from application to revocation. When standard bail is refused and the sheriff has decided to remand the accused in custody pending trial, the defence agent can apply for EM bail, at which point the Crown can oppose this. A suitability report is requested from the social work department on the day of the first hearing and a second hearing is set for 'not earlier than 5 days' from the date of the first hearing. If EM bail is subsequently granted, the Crown can appeal, and if not granted, the applicant can appeal.
1.15 When an accused person is granted EM bail, there are 8 conditions imposed on the bail order as a matter of course. Additional conditions may or may not be added as the sheriff sees fit. The fixed conditions for EM bail are that the accused:
- appears at all further hearings as directed by the court;
- does not re-offend;
- does not intimidate witnesses or otherwise obstruct the course of justice;
- is available for the compilation of reports;
- remains at the 'restricted to' address during stipulated hours;
- cooperates fully with electronic monitoring during those hours;
- continuously wears an electronic monitoring device; and
- does not tamper with or damage the monitoring equipment.
Figure 1.1: The process of EM bail
1.16 The monitoring company must fit the device within 4 hours of receipt of the confirmation of an EM bail order. An unobtrusive transmitter (a tag) is fitted to the accused person's ankle or wrist. It emits a signal which is picked up by a monitoring unit ( MU) when the accused is within range. The MU is sited at the place to or from which the accused is restricted and is linked by a telephone line to a central computer system, where the information about the accused person's presence or absence is permanently stored. The computer will alert monitoring staff if an accused is present at a place from which he or she is restricted or is not at a place to which he or she is restricted during the restriction period. The MU has a roughly circular range (depending on the nature of the building) which can be adjusted. Typically, subject to any specific instructions from the Court, it would be adjusted to be as close as possible to the boundaries of a dwelling. Outwith the hours of restriction, however, the accused is free to go where s/he chooses and is not monitored. If the accused or anyone else attempts to tamper with the MU, or it is moved accidentally, it alerts the central computer system and the electronic monitoring company must investigate. If the accused removes, or attempts to remove the tag within range of the MU, there will be a 'tamper alert'. Again, the company must investigate. Should the tag be removed outwith the range of the MU, the unit will not be able to detect the accused person's presence.
1.17 Finally, in order to oversee the implementation of the pilots and to devise a Procedure Manual for all parties involved, a National Steering Group was set up in 2004, comprising one representative from each of the key agencies. These were: the Sheriffs' Association, the Crown Office and Procurator Fiscal Service, the Scottish Court Service, the Association of Directors of Social Work, the Police, Reliance Monitoring Services and the Law Society of Scotland. A representative from the Scottish Executive's Social Research unit was also present, and the Group was chaired by representatives from the Scottish Executive's Community Justice Services Division. In each of the 3 geographical areas, a Local Liaison Group ( LLG) was established following the completion of the model for EM bail, in order to further refine the Procedure Manual and to iron out any local teething problems arising as a result of the implementation of the pilots. These LLGs comprised representatives from each of the partner agencies cited above, but members who could offer a local rather than a national perspective. These local groups were also chaired by a member of the Scottish Executive's Community Justice Services Division.
LAYOUT OF THE REPORT
1.18 This Chapter has explored the context within which electronic monitoring, EM bail and the pilots were developed and briefly describes the processes of application for and imposition of an EM bail order. Chapter 2 describes the methods used in evaluating EM bail across the 4 pilot courts, and Chapter 3 explores the referral process in terms of applying for EM bail, including Section 24A(1) and 24A(2) distinctions, and describes the characteristics of applicants. Chapter 4 looks at the operation of EM bail once an EM bail order has been granted and explores the levels of and reasons for failure to comply and the conditions under which breach of bail occurs. This chapter also explores inter- and intra-agency issues. Chapter 5 looks in greater depth at professional and bailee perceptions of effectiveness of EM bail in fulfilling the objectives of the pilots in terms of reducing custody and improving public safety. Chapter 6 describes the economic model for estimating the costs of EM bail and analyses the results in terms of cost. Finally, Chapter 7 draws together the conclusions of the evaluation in respect of the overall implementation and operation of the pilots to date. A detailed description and analysis of the press coverage of EM bail and electronic monitoring more generally is given in Annex 1.
« Previous | Contents | Next »