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CHAPTER THREE THE REFERRAL PROCESS

INTRODUCTION

3.1 Bail is a complicated legal process, not least because it has to balance the protection of the public with the rights of the accused. For the accused, it has to maintain a presumption of innocence until proved guilty with the right to privacy and freedom of movement. Adding the electronic surveillance aspect of EM bail thus requires stringent legislation and procedures. These processes were discussed and refined within the National Steering Group prior to the pilots commencing, and have since been amended and tightened following implementation and feedback from each Local Liaison Group. The referral process, as experienced and perceived by stakeholders, is the lynchpin of a successful pilot exercise of this kind. This chapter therefore explores how the procedures are working across the agencies and courts in relation to the application and granting of EM bail, outlines the characteristics of accused persons who apply for EM bail and describes the perceptions of key stakeholders about the process of referral.

APPLICATIONS FOR EM BAIL

3.2 When an accused appears from custody, the defence agent representing him/her has little time to explore the circumstances of the alleged offence and to take instruction from the client. However, it was reported that clients were often aware of EM bail with one defence agent commenting: 'many of the clients locally know about it… and they will quite often raise it with us before we raise it with them'. Nevertheless, to bolster this 'street' knowledge, posters and leaflets regarding the availability of EM bail were placed in cells and waiting areas within the courts, with the approval of the relevant Sheriff Principals, to remind not only accused but also 'out of town' defence agents about its availability.

3.3 Although the onus is on the defence to apply for EM bail if standard bail has been refused, some respondents suggested that defence agents, especially out-of-town defence agents, may not be familiar with the option of EM bail. Two sheriffs in particular suggested this may be the case, as well as one procurator fiscal. One sheriff also commented that some defence agents are more likely to suggest EM bail than others and one defence agent and 2 sheriffs suggested that visiting sheriffs may be unfamiliar with the pilots.

3.4 Defence agents suggested that there is a 'tariff' of standard bail conditions ⁴ that they will suggest to a sheriff prior to making a motion for EM bail, which they see as 'a last resort' and thus a direct alternative to custodial remand. From the start of the pilots in April 2005 until the end of the fieldwork period in July 2006, 306 applications for EM bail were known to have been made: 105 (34%) in Glasgow, 108 (35%) in Stirling and 93 (30%) in Kilmarnock. Table 3.1 shows the proportion of EM bail applications from the overall remand population per month during the first 16 months of operation. These figures fluctuate across the 3 pilot sites and it is difficult to detect any particular trends, other than a slow start in all 3 sites and an unexplained peak in early 2006. It is possible that the scoping interviews and access arrangements for interviewing professional respondents in the spring of 2006 may have prompted a heightened awareness of the pilots amongst key stakeholders.

3.5 As can be seen from this breakdown, of the total of 6,914 cases where the accused was refused standard bail and therefore potentially eligible for EM bail during the fieldwork period, 4.4 per cent applied for EM bail. Although this seems a relatively small number of applications overall, more than a fifth (21.5%) of those denied bail in Stirling made an application for EM bail compared with 10.4 per cent in Kilmarnock and 1.9 per cent in Glasgow, even though Glasgow has by far the highest number of cases potentially eligible for EM bail. Glasgow's low application rate may be because of unrelated industrial action by bail officers early on in the pilots or problems in Glasgow Sheriff Court relating not only to legal aid for defence agents and a review of criminal justice staffing, but also wider action short of a strike by the legal profession in relation to criminal court matters more generally.

Table 3.1 Number of EM bail applications per month per court ⁵

Glasgow Sheriff Court

Stirling Sheriff Court

* This figure does not include the 3 cases whose applications for EM bail were heard on the same day.

Kilmarnock Sheriff Court

* This figure does not include the 1 case whose application for EM bail was heard on the same day.

Characteristics of EM bail applicants

3.6 The vast majority of applications for EM bail were from men, notably 94 per cent in Stirling, 95 per cent in Glasgow and 92 per cent in Kilmarnock. The age of applicants varied from 14 years to 63 years with an average of 26 years. Table 3.2 gives the age of all 306 applicants.

Table 3.2 Age of applicants for EM bail

3.7 The largest group of applicants for EM bail in Glasgow and Kilmarnock were aged 20 and under, while in Stirling the largest group of applicants were aged between 21-30 years. Several sheriffs commented that young people in particular should be offered the opportunity of EM bail; while it may not be the same as a custodial remand in restricting movement generally, it might 'keep them off the streets' at night.

3.8 Of the 23 bailees included in the qualitative interviews with bailees and family members, 6 were in employment while on EM bail, 13 were unemployed and data were missing in 4 cases. In the 6 cases where the bailee was employed, restriction conditions were organised around their hours of employment, and in some cases, relatively complex arrangements had been put in place to allow for shift work. This was seen as one of the positive benefits of EM bail by all EM bailees and their families, and the professional respondents also reported that EM bail was a useful option for those who were working or had caring roles or family commitments.

Presenting offences

3.9 Information on presenting offences relating to EM bail applicants was gleaned from a combination of sources: complaint files, the COP1 database of the Scottish Court Service and records kept by the social work departments when suitability reports were called for. However, it should be borne in mind that social work departments were not asked to maintain these latter records but chose to do so for their own use, although in Glasgow, only the 'main' offence was recorded by the social work department whilst in Kilmarnock and Stirling all presenting offences were recorded. Thus, in 261 applications, all the presenting offences are recorded, in 26 further cases the main presenting offence is recorded and in 19 cases (12 in Glasgow, 5 in Kilmarnock and 2 in Stirling) no data on presenting offences are recorded.

3.10 It is not possible to rank EM bailees' presenting offences by seriousness, because such categorisation is not available. Where there is more than one offence per charge sheet, the most serious is identified at the sentencing stage (only in cases where there is a finding of guilt) as the one incurring the highest penalty, and since complaint files did not always record this information (in cases where sentence had indeed been passed and a disposal given), it was not possible to gauge seriousness. Equally, the 'main' offence does not always imply the most serious offence and therefore cannot be assumed to imply higher risk. As an indicator of the types of offences accused presented with, however, all offences listed on charge sheets were grouped into six categories as per Table 3.3 below. Accused were likely to fit into more than one offence category and the percentages in brackets denote the proportion of the total number of applicants presenting in these offence categories who were granted and refused EM bail.

Table 3.3 Numbers per category of presenting offence by EM bail granted

3.11 Those accused of theft, drug and vehicle offences are least likely to be granted EM bail, whereas those accused of disorder, violence and breach of bail/bail aggravation offences were more likely to be considered for EM bail; however, there is no statistically significant relationship in these figures. Perhaps ironically, the most common category of offence likely to be granted EM bail is the breach of bail/bail aggravation category which would run counter to the perceived wisdom amongst the majority of respondents that EM bail is inappropriate for those with a history of breaching bail.

3.12 Those with one or 2 presenting offences were granted EM bail in 35 per cent and 33 per cent of cases respectively, and those with 3+ presenting offences were granted EM bail in 32 per cent of cases. The number of presenting offences appeared to have no statistically significant effect on whether EM bail was granted or refused. Procurators fiscal at interview also stressed that the number and seriousness of presenting offences are often less important in matters of bail than the previous offending history.

3.13 In order to look more closely at any potential relationship between previous offending history, age, location of court, type of court and whether granted EM bail, a log linear analysis was applied to the frequency data (see Annex 4). In situations where the data can be grouped into categories, log linear analysis is an effective way to look at associations between more than one variable. A relevant association was found between the number of presenting offences and age group and those granted EM Bail. (L.R. Chisq = 252.203, p<0.01). Table 3.4 below looks at this association in more detail.

Table 3.4 Number of presenting offences by age

3.14 The above figures suggest that for those in the older age group of 41+ years old, there seems to be no relationship between number of presenting offences and whether EM bail was granted or refused. Equally, for those in the middle two age brackets (21 - 30 years old and 31 - 40 years old), the number of presenting offences appears not to have an influence on sheriff decision making. For the youngest age group (under 21 years old), those presenting with 4 or more offences were less likely to be granted EM bail than their older counterparts.

Offending histories

3.15 The offending histories of 276 of the 306 applicants were available and these were differentiated by whether EM bail was granted, refused outright or refused following suitability reports, as in Table 3.5 below. These figures include all offences accrued since 1989.

Table 3.5 Offending histories of EM bail applicants

* Data are missing on previous offences in 30 of the 306 cases.

3.16 For those granted EM bail, the number of previous offences ranged from zero to 57, with a mean number of 9.35. For those refused EM bail where a suitability report had been called for, the mean number of previous offences was 9.27, closely matching that of those granted EM bail. However, where a suitability report was not called for - and the application was thus refused outright - the mean number of previous offences was 15.70. Using a one-way Anova, this difference in number of previous offences between those refused and those considered for EM bail was shown to be statistically significant at (F=7.858, p<0.01), a post hoc Scheffe shows that those refused EM bail outright differ from both those refused after a suitability report and those granted EM bail. Likewise, those refused EM bail outright differed significantly from those granted EM bail and those refused after a suitability report in terms of the type of previous disposal and type of previous offences. Perhaps ironically, those refused outright had received more community disposals (an average of 4.37) in the past compared to those granted EM bail (an average of 1.43) and those refused after a suitability report (an average of 1.61) (F=27.569, p<0.001). Those refused outright also had more dishonesty offences (an average of 6.77) and more violence offences (an average of 0.63) compared with those granted EM bail (an average of 3.41 for dishonesty offences and 0.33 for violence offences). For dishonesty offences, the significance was F=4.762, p<0.01 and for violence offences the significance was F=4.115, p<0.05.

Suitability reports

3.17 There is little difference between those granted and those refused EM bail once suitability reports have been called for, suggesting that those considered for EM bail are consistently lower tariff than those refused outright: in other words, the offenders with extensive offending histories are not being considered eligible for EM bail, and this would confirm the inference made by 3 sheriffs, 3 defence agents and 1 procurator fiscal that EM bail is more appropriate for those accused persons who are borderline between standard bail and custodial remand.

3.18 Where suitability reports were called for, 80 per cent of these were found to be suitable (see Table 3.6 below). Suitability meant that the premises were able to accommodate the equipment, the accused person's circumstances were suitable and the householder(s) had given permission.

Table 3.6 Suitable versus unsuitable reports by court

3.19 As can be seen from the above table, reports produced for Glasgow Sheriff Court were marginally more likely than Stirling or Kilmarnock to report that the accommodation, the accused person's circumstances and the other householders' attitudes were suitable for EM bail. However, given the fact that only approximately 10 per cent of pro formas stated reasons for the appropriateness or otherwise of applications (see following section), one cannot speculate on why this was the case.

3.20 The compilation and submission of suitability reports is the responsibility of the relevant social work departments in the 3 pilot local authorities, although this role has been contracted out to SACRO in Kilmarnock. Once an accused had been seen by a bail officer, the address of residence given would be checked and family members consulted either by phone or in person to ascertain the appropriateness of the property for installing the equipment. Any other relevant information from the social work database or from these interviews with the accused and household member would equally be contained in an application. The suitability report examines the feasibility of remote monitoring. Questions to be addressed in the report are as follows:

• whether the accused resides in Scotland (as long as the case is dealt with in one of the pilot courts, the remote monitoring equipment can be installed anywhere in Scotland);
• is the accommodation relatively settled for the accused and appropriate for the installation of equipment;
• does the accused have any commitments or responsibilities which might prevent him/her from complying with electronically monitored curfews;
• is the accused already tagged or serving other community-based disposals;
• where the accused is to be restricted from a particular address, is the other householder agreeable to this and is that accommodation appropriate.

Timescale between first and second hearing

3.21 Whilst the Procedure Manual advises that the accused be remanded in custody for a period of approximately 5 working days to allow for suitability reports to be compiled, in practice, as demonstrated in Table 3.7 below, the length of time between first and second bail hearings can range from 0-27 days, although the mean number of days is 5.7 days.

Table 3.7 Length of custodial remand between first and second bail hearing

3.22 The vast majority of second hearings took place within 9 days of the first hearing: 93 per cent in Glasgow, 98 per cent in Kilmarnock and 90 per cent in Stirling. Stirling held a second hearing on the same day as the custody hearing in 3 cases and Kilmarnock in one case. In one of these 4 cases, it was felt that a custodial remand would be potentially damaging to the accused person's mental health and given that a household member was in court that day and willing to accept the equipment, the case was adjourned until the afternoon to allow the bail officer time to talk to both the accused and family member.

3.23 As will be seen in Chapter 6, the estimated cost of one day's custodial remand pending suitability reports is £91, and if an accused is remanded in custody pending a suitability report for 25 days or more, there are no savings from EM bail. Whilst only two applicants spent 20 and 27 days in custody pending suitability reports, information is not available on why there can be such delays; however, it is most likely to be court business that affects the timing rather than bail officer availability to write the report. However, cases are not always adjourned for the full 5 working days, often being reconvened within 3 or 4 days.

3.24 Social Work Department and SACRO estimates of the proportion of interviews of accused conducted in court holding cells as opposed to prisons on the day of the first hearing were as follows: Glasgow - 70 per cent; Kilmarnock - 90 per cent; and Stirling - 100 per cent. Where it is not possible for bail officers to access an individual in court because of time pressures, social workers from the prison or local area could be contacted and asked to interview the accused on behalf of the bail officer, although this may not always be possible. In Glasgow, it was suggested by a Social Work Department representative that often EM bail applications come from the Petition Court and in solemn cases it is not always possible to notify the bail officers of EM bail applications while the accused is still in the court building because the proceedings are undertaken in private. In such cases, bail officers would have to do the interview at the relevant prison, resulting in increased time and money being spent on producing the suitability report. The impact of this on bail officer time and travel expenses would need to be taken into account if the scheme was made available nationally. It may well be desirable to make it a requirement that the accused is seen by the bail officer in the court as a matter of course prior to being transported to prison.

3.25 Reliance Custodial Services transport individuals to prison from court and are under obligation, once the extract licence [paper work from the clerk of court] has been obtained, to leave for the prison within an hour of an accused being remanded in custody. As with other agency requirements to interview prisoners in the court cells, they will try to accommodate bail officer requests for interviews with accused, so long as this does not infringe contractual arrangements to transport the accused to prison. Bail officers in all 3 case study areas suggested that they had developed good informal arrangements with Reliance Custodial Services and clerks of court so that, irrespective of whether the paperwork from the clerk of court, defence agent or procurator fiscal was forthcoming that day or the next working day, the bail officer would normally be notified by the clerk of court or a member of Reliance Custodial Services that an accused was about to be remanded in custody pending a suitability report. The bail officer would thus be able to talk to the accused in the court cells.

3.26 Among the social workers and bail officers interviewed, there appeared to be differing views about the efficacy of conducting home background checks by telephone, but the National Steering Group had suggested that this was a matter for local authority social work departments to decide on. Where home visits are made, 2 bail officers may be required as a safety precaution based on prior knowledge of the householders or because of the presenting offence, where known. In Glasgow, mainly because of the wide catchment of the court and limited staff resources, addresses were verified by phone unless workers deemed it necessary to visit in person. In the other pilot areas, however, which had a smaller catchment area, home visits were more feasible in order to ensure that other family members were aware of the requirements of EM bail, understood what it was likely to entail, and were aware of their right to give or withhold consent to the installation of EM equipment in their home. However, this still had resource implications, as 2 bail officers explained:

3.27 Some bailees and family members stated at interview that they were confused about who had carried out a suitability report and were unable to distinguish between bail officers and Reliance/Serco employees, although Reliance/Serco staff display clear personal identification. There was also some confusion about whether or not family members were asked to give their consent to the installation of monitoring equipment via a telephone call or as the result of a personal visit from bail officers, although all family members reported that they had consented to allow bailees to reside in their home and to accommodate the equipment so as to prevent the latter from being remanded in custody.

The content of suitability reports

3.28 Generally the process of providing suitability reports has been relatively unproblematic and bail officers noted that sheriffs had commented on the usefulness of suitability reports. Sheriffs in particular welcomed a 'feel' for the case in terms of whether the accused and his/her family would 'engage' with the exercise. However, one Sheriff commented that if s/he were minded to restrict an accused from an address as well as to an address, more information would be needed than was presently available within the suitability report about the circumstances of the other householder and from the Crown about the circumstances of the offence/offender. Likewise, it was reported by several bail officers that information on whether the sheriff wanted a restriction from as well as or instead of a restriction to an address condition on the bail order was often unavailable which could reduce the accuracy of the information contained in the suitability report. This may have been because sheriffs did not specify when calling for reports whether they were considering restrictions from or to a given address, and such information would need to be more readily available at the time the sheriff calls for a report if EM bail was rolled out nationally.

3.29 While information on previous convictions was not required for suitability reports, some bail officers considered this to be useful information when assessing the appropriateness of maintaining a particular individual in the community and could provide information on any child protection issues, for example. Such information on previous circumstances of accused are often available from the social work database, but a court official commented that previous convictions cited in a suitability report may incriminate an accused whose case subsequently goes to trial.

OUTCOMES OF APPLICATIONS FOR EM BAIL

3.30 Of the 306 applications made for EM bail where standard bail (with or without conditions) had been denied, 115 (38%) were refused following a suitability report and 116 (38%) were granted following a suitability report. In 75 of these 306 applications (25%), the sheriff refused to consider EM bail outright at the first hearing. The granted applications comprised a 1.7 per cent reduction in the custodial remand population. In order to look for any relationship between outcome of bail application (granted EM bail, refused EM bail after reports or refused EM bail outright), age group, number of presenting offences, previous offending history, location of court and type of court, a log linear analysis was applied to the frequency data (see Annex 4). A relationship was found between the outcome of the EM bail application and the court from where this application was made (L.R. Chisq = 200.908, p<0.001). Table 3.8 shows this relationship.

Table 3.8 Applications refused outright versus suitability reports requested

3.31 The numbers of the 306 applications refused without the sheriff calling for a suitability report vary considerably between the different sheriff courts, with Stirling refusing EM bail applications outright in 45 per cent of cases, Glasgow in 17 per cent of cases and Kilmarnock in 9 per cent of cases. However, it is possible that the number of applications refused outright could be higher than that recorded on pro formas, since not all courts completed the paperwork in these instances. Equally, because a sheriff need not give reasons as to why an EM bail application is refused, it is difficult to make any inference from these figures. However, as shown in Table 3.5, those refused outright had a mean average of 15.70 previous offences compared with just over 9 for those considered for EM bail.

3.32 Table 3.9 gives the number of suitability reports requested, found appropriate and granted EM bail. The proportion of applications resulting in the granting of EM bail is termed the 'conversion rate' and this percentage is given in brackets in the final column. The conversion rate from the number of applications made to the number of EM bail orders granted was 46 per cent for Glasgow, 38 per cent for Kilmarnock and 31 per cent for Stirling, averaging out at 38 per cent across the three sites.

Table 3.9 Numbers converting from application to granting of EM bail

3.33 As mentioned above, Glasgow was less likely to find applications unsuitable and therefore had a higher conversion rate than Kilmarnock and Stirling. However, as will be seen below, the conversion rate depends on factors additional to the suitability of the premises and the accused, including changed circumstances between the first and second hearing and the views of the sheriff at the second hearing.

3.34 Figure 3.1 below gives a breakdown of the different outcomes of applications per court based on whether or not suitability reports were called for. The fact that the number assessed as suitable for EM bail (186) and the number granted EM bail (116) are not compatible, suggests that there are other criteria than 'suitability' at work which may influence decisions made about the appropriateness or otherwise of EM bail in specific cases. These are discussed in the following section.

3.35 Forty-one per cent of the 116 successful EM bail applications came from Glasgow Sheriff Court, 28 per cent from Stirling and 30 per cent from Kilmarnock. Since the vast majority of court business in Scotland is generated from Glasgow Sheriff Court, this finding suggests a relatively low number of applications overall in Glasgow. However, given early problems for defence agents and bail officers alike in this city, the application and conversion rate is perhaps not surprising.

3.36 The proportion of overall applications made in summary versus solemn courts in Glasgow is 50 per cent summary and 50 per cent solemn; in Kilmarnock 47 per cent summary and 53 per cent solemn; and in Stirling 73 per cent summary and 27 per cent solemn. The smaller number of applications in Stirling solemn proceedings suggests that defence agents in that court may be less confident of applying for EM bail in such potentially high tariff cases.

3.37 In relation to applications which resulted in EM bail orders being granted, in Glasgow, 67 per cent emanated from summary proceedings, in Stirling 34 per cent and in Kilmarnock 38 per cent. Although few applications were made in Glasgow, where they were made in a summary court, two-thirds of them were granted by the sheriff, compared with approximately one third in the other two sheriff courts. Thus, the conversion rate from applications to EM bail orders granted in Glasgow summary courts is significantly greater than in Stirling or Kilmarnock ( X² = 13.461, p<0.001).

Figure 3.1 Outcomes of EM bail applications per court

Reasons for granting or refusing EM bail following a suitability report

3.38 Currently, sheriffs are under no obligation to give their reasons for being minded or otherwise to remand in custody or bail an accused. Equally, there is no official recording of a sheriff's reasons for granting or refusing EM bail, although the Scottish Executive's pro forma has a section relating to reasons for refusal or granting of EM bail at the additional hearing. Options for refusal on the pro forma are that a) the accused was not suitable; b) the premises were not suitable; c) the householder was not cooperative and d) other (to be specified). Whilst such data on reasons for granting or refusing EM bail were not recorded in 274 of the 306 applications (90%), information on why EM bail was refused was recorded, albeit in a limited form, in the remaining 32 cases. The majority of these (23) merely recorded 'accused not suitable' and in 5 specific cases, the householder or victim were mentioned as not being willing to cooperate. Other reasons cited included accommodation being unsuitable (e.g., homeless hostel or bed and breakfast accommodation) or previous convictions/gravity of the offence. Two pilot areas suggested that their high homelessness rate amongst offenders and accused may impact on finding suitable accommodation for those wanting to apply for EM bail, although it is likely that where an area has access to bail hostels or other homelessness projects, the capacity to use EM bail will be enhanced if such premises are suitable. Indeed, hostels and other multi-occupancy premises have been able to effectively accommodate electronic monitoring equipment for both bailees and convicted offenders alike.

Changed circumstances between first and second hearings

3.39 There are several reasons why circumstances may change in the period between calling for suitability reports and granting EM bail, including a change of sheriff or a change of circumstances of the accused or the case. In terms of the former, in some courts the custody sheriff changes weekly and there is a greater chance that it will be a different sheriff who reads the report once received. Tables 3.10a and 3.10b below show the number of applications according to the sheriff both calling for and reading the suitability report. Although the pro formas contain no information on specific sheriffs, it has been possible to ascertain from a sub-sample of 83 complaint files the number of cases where the same sheriff presided over both hearings.

Table 3.10a Number of applications by sheriff at each hearing (all suitability reports)

3.40 Table 3.10a shows the number of applications where a known sheriff called for a suitability report. Although one would assume that Glasgow Sheriff Court would be more likely to have a different sheriff at each hearing, this was not the case in terms of EM bail hearings, but this may be because of a higher proportion of applications in the domestic abuse court which has dedicated sheriffs. In Stirling and Kilmarnock just under a third of applications are heard by the same sheriff following suitability reports. In Kilmarnock, it is more likely than in Stirling and Glasgow that the same sheriff at both hearings will refuse an application following his/her own calling for a suitability report. However, this may well be because the report suggests the premises or accused are inappropriate for electronic monitoring. Thus, in Table 3.10b, only those suitability reports deemed suitable are included, thus factoring out the possibility that a sheriff refused EM bail at the second hearing as a result of unsuitable reports.

Table 3.10b Number of applications by sheriff at each hearing ('suitable' reports only)

3.41 From Table 3.10b, it would seem that if the same sheriff presides over both hearings, the application is granted in 72 per cent of cases (13 of 18) but if a different sheriff presides over the second hearing, 57 per cent of cases (26 of 46) are granted. Stirling and Glasgow sheriffs appear to be more likely to grant EM bail following their own calling for reports, while Kilmarnock sheriffs were less so. One Sheriff estimated that he would be on the bench to read the subsequent report in approximately 70 per cent of his cases, but where this was not possible, another sheriff suggested that they could 'alert' the second sheriff to the additional hearing (albeit more easily in a smaller sheriff court) and informally explain their reasons for calling for a report. When a second sheriff reads the report, additional factors may influence the decision making as to whether EM bail is appropriate. The second sheriff does not always have a written record on the complaint as to why standard bail was originally opposed or why the first sheriff was minded to call for a suitability report. Another Sheriff voiced concerns about whether visiting sheriffs who call for suitability reports were fully aware of the rationale and criteria of EM bail pilots per se:

3.42 However, even in cases where the same sheriff reads the report as calls for it, it is not always the case that EM bail will be granted, because of possible changed circumstances in the intervening period since the first hearing. For example, new information may come to light at the second hearing regarding new offences, warrants or changed circumstances of the accused or potential victim; the premises may prove to be unsuitable or the householder (or victim) may refuse to cooperate with the conditions of EM bail. However, there does seem to be a difference in sheriff decision making between the various courts, notably in Stirling where there seems to be less inclination to take risks with EM bail: this court has the lowest conversion rate and the lowest number of EM bail applications emanating from solemn proceedings.

3.43 It would seem that the conversion rate could be increased by improved publicity, a greater confidence in the scope of EM bail and more systematic communication between court professionals in order to maintain better continuity between decisions made at the first and second hearings, although the authors of this report are mindful that sheriffs are independent of each other and other court processes and possible changed circumstances of cases also make it difficult to sustain continuity of decision making over time.

Repeat applications

3.44 Although there were 306 applications made in the first 16 months of the pilots, 32 applicants made applications on two or more different occasions: 28 applied twice and 4 applied 3 times. These applications were made in respect of different charges brought during the 16 months of the pilot evaluation. In respect of the applications made twice, the majority of these were refused on both occasions. However, it was possible for EM bail to be granted within days of a first application having been refused, possibly because of the application being heard by a different sheriff or resulting from appeal. From the records, it would seem that 5 accused who had successfully completed EM bail the first time were given EM bail a second time, often within days or weeks of the first order finishing.

THE PROCESS OF APPEAL

3.45 The bail appeal court is held from Tuesday to Friday at 9.00am in Edinburgh High Court to hear appeals initiated both by the Crown and the Defence. Judges in the High Court sit intermittently as Bail appeal judges. This generally makes judges less familiar with the EM bail pilot scheme and thus more dependent on their clerks, or indeed the advocates depute or counsel, for guidance in relation to appeals relating to EM bail. Of the total of 306 applications for EM bail during the first 16 months of the pilots, only 2 known cases were subject to a Crown appeal (i.e., the procurator fiscal appealed against the granting of EM bail having already opposed standard bail). In one case the Crown appeal was refused after 4 days and EM bail was granted. In the other case the Crown appeal was upheld and EM bail was thus refused. Both these appeals were held within 4 days of the second hearing and during this time both accused were remanded in custody. If there were indeed only 2 Crown appeals (if database records are accurate), given that the Crown originally opposed standard bail in all 116 cases subsequently granted EM bail, it is perhaps surprising that only 2 such cases were taken to appeal by the Crown. This acceptance of the granting of EM bail suggests either a) that procurators fiscal are confident of its ability to protect the public pending trial or b) that they prefer not to appeal decisions made by the court, and in effect, therefore, defer to the judgement of the sheriff. Given the scepticism of some procurators fiscal about the value of EM bail generally (see Chapter 5), the latter reason seems more likely.

3.46 Information relating to 26 known defence appeals was examined of the total of 306 applications. In 9 of these cases, the defence was appealing against refusal of standard bail, in 5 cases against refusal of EM bail and in 7 cases against refusal of both standard bail and EM bail. In 5 cases the reason and type of appeal was not recorded. In 8 cases, appeals were successful and 6 were then granted EM bail and 2 granted standard bail with a curfew. Table 3.11 identifies the proportion of defence appeals per sheriff court.

Table 3.11 Defence appeals by sheriff court

* Two of the Stirling appellants were granted standard bail with a curfew.

3.47 As with Crown appeals above, and with the same proviso about the accuracy of the recorded numbers, defence agents did not appeal refusal of bail ( EM or standard) in the vast majority of cases where an EM bail application was refused outright or following suitability reports. Further research on defence agent perceptions of appeal procedures and their outcomes may throw some light on this seeming acceptance of the likelihood of custodial remand in many cases.

3.48 Procedurally, it is up to the clerk of court to inform the judge at a standard bail appeal hearing if an EM bail application is pending a suitability report; likewise, it is up to the sheriff court to minute the fact that an additional hearing for EM bail is imminent on the papers sent to the appeal court. Although this did not always happen early on in the pilots, the procedure had since been tightened. If the judge upholds an appeal against refusal of EM bail, the clerk of court would then phone as well as e-mail the relevant sheriff court (and through them Reliance/Serco) to inform them of that decision. The clerk of the High Court would also e-mail an EM bail order to the prison and the accused should be released that same day to await installation of the equipment.

3.49 Where standard bail is granted on appeal, any EM bail order in place as a result of the initial refusal to grant standard bail will be automatically cancelled. Depending on the timing of these 2 processes ( EM bail being granted and an appeal against refusal of standard bail being upheld), there may be resource implications for not only the social work department who wrote the suitability report and Serco who fitted the equipment, but also for the Scottish Court Service who processed the paperwork. For example, the suitability report will be surplus to requirements if the appeal is upheld. Equally, the tag and equipment will have to be removed from the bailee's house if fitted prior to the appeal against refusal of standard bail. If numbers increase, an additional hearing which would otherwise have been unnecessary and the associated paperwork could prove time-consuming for court staff.

3.50 Where the Crown appeals standard bail at the first hearing and that appeal is upheld, the accused cannot then apply on appeal for EM bail. This is due to the Appeal Court in Edinburgh being outwith the pilot sites and, therefore, not currently in a position to make an EM bail order in its own right. Equally, the Appeal Court cannot impose EM bail of its own volition in cases of appeal against refusal of standard bail, unless an application for such had been made by the defence agent and refused at the time of the original hearing (although it can call for suitability reports and grant EM bail in cases where the accused appeals against the refusal of EM bail without a suitability report having been called for). One Sheriff suggested that the legislative procedures should be amended to allow EM bail to be granted by the Appeal Court irrespective of whether it was applied for in the sheriff court, although this respondent acknowledged that in the event of a roll-out of EM bail nationally, such provision would be available to the appeal court as a matter of course. It is understood that the decision to exclude the Appeal Court was taken following consultation with the Crown Office and Procurator Fiscal Service and the Scottish Court Service to avoid instances where accused from outwith the pilot courts might be inadvertently granted EM bail.

3.51 Regarding the timing of appeals, some defence agents will not appeal against custodial remand until after the outcome of the additional hearing, and they are more likely to accept the granting of EM bail rather than to appeal against refusal of standard bail. Appeals against refusal of standard bail tend to happen within 2 days although there is no stipulated time in the legislation. Crown appeals, on the other hand, have to be heard within 72 hours. Several respondents suggested a change of timing of appeals so that the standard bail appeal is heard prior to or concurrently with the application for (or the granting of) EM bail. In the early days of the pilots, sheriff courts tended to adjourn an additional hearing for EM bail if an appeal against standard bail was imminent, in order to find out the outcome of that appeal. If EM bail was then granted, defence agents may have been less inclined to pursue an appeal against standard bail. Defence agents in particular were concerned by the adjournment of a standard bail appeal pending the outcome of an EM bail application as it may be perceived as denying an accused a fair hearing for standard bail. Whilst one defence agent suggested that the appeal court 'should simply put that [ EM bail application] out of their mind' when considering appeals against refusal of standard bail, a court official suggested that:

3.52 This question of priorities and timing - whether EM bail should be granted prior to a standard bail appeal - will need to be revisited should EM bail be rolled out nationally, as it may have legal and financial implications. .

THE USE OF SECTION 24A(2)

3.53 Section 24A(2) of the Criminal Procedure (Amendment) (Scotland) Act 2004 has been inserted to allow the sheriffs and High Court judges in the pilot areas to impose EM bail ' ex proprio motu' (at their own discretion) where a person has been charged with or convicted of murder or rape and a decision has been made to grant bail. This means, in effect, that irrespective of whether or not a defence agent applies for EM bail on behalf of his/her client, the sheriff or judge can impose electronic monitoring as an additional condition of bail. This part of the legislation has not been used to date in the pilot courts, even though there have been 11 cases eligible for EM bail under Section 24A(2). These have been dealt with under Section 24A(1) and are broken down in Table 3.12 below:

Table 3.12 Murder and rape offences considered for EM bail

3.54 In one murder charge, standard bail rather than EM bail was granted following suitability reports. One Sheriff did report contemplating the imposition of EM bail in a rape case, but, because of the circumstances of the case (the accused was geographically remote from the victim), decided that such an additional safeguard was not necessary.

3.55 In terms of possible reasons why Section 24A(2) may not be used so readily in the pilot courts, one sheriff suggested that EM bail and indeed standard bail per se in murder and rape cases may not be used because of the record of offending, but s/he suggested that the accused still had the right to appeal this decision:

3.56 Although Edinburgh Appeal Court is outwith the pilot sites, it is nevertheless possible for Appeal Court judges to impose EM bail under Section 24A(2) in cases where appeal against refusal of standard bail in a pilot court has been heard. This provision has likewise not been used in the first 16 months of operation of EM bail pilots. One possible reason for this was raised by a clerk of court, namely that an accused person would need to be released from the Appeal Court sitting in Edinburgh on a non-electronic movement restriction condition (i.e. standard bail with curfew conditions) pending the suitability report. This would have implications for the accused person's guaranteed re-appearance in court for the second hearing 5 days later, but an additional condition has since been created which can be added manually to the bail order requiring the accused to return to subsequent hearings as directed by the judge.

3.57 Although Section 24A(2) has been described by one respondent as 'an additional tool to strengthen bail', it was suggested by several respondents that the high risk and serious nature of murder and rape offences are such that this additional condition would be unlikely to be well used by sheriffs and some sheriffs themselves confirmed this.

3.58 Another issue raised by one sheriff in particular was the fact that where standard bail is not opposed by the Crown, it was less likely that sheriffs would be minded to impose an additional condition ex proprio motu. As one defence agent argued, imposing EM bail following the acceptance by the Crown of standard bail would only amount to 'tinkering', and would not be deemed appropriate by many sheriffs and/or judges. So it is implied that sheriffs will concur with the view of the procurator fiscal in relation to bail, as one sheriff clerk depute explained:

3.59 In that respect, it was raised by one sheriff and one counsel for the defence that perhaps the Crown should actively raise the issue of Section 24A(2) with a sheriff or judge, rather than vice versa. As the Sheriff pointed out:

3.60 It was suggested by one sheriff during the course of the evaluation that the Criminal Proceedings etc. (Reform) (Scotland) Bill which has been passed by Parliament will firmly place the final decision on bail in the hands of the court. This means that even in cases where the Crown does not oppose bail, the court can decide to impose custodial remand. Arguably in such circumstances, Section 24A(2) could more readily be used by sheriffs as an additional tool of standard bail in cases of rape and murder where they are minded to impose bail. However, in the meantime it may be worth considering how greater discretion can be given to the Crown, as well as to the sheriff, to put forward a motion for EM bail under Section 24A(2) in offences of rape and murder. Whilst it was not possible in this evaluation to tease out the reasons why Section 24A(2) has not been used to date, the Scottish Executive may wish to consider this suggestion as one possible way of tightening bail conditions in these cases.

CONCLUSIONS

3.61 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. The application rate was particularly low in Glasgow where despite having 80% of all potentially eligible cases, EM bail was applied for in just one in 50 cases, as oppose to over a fifth of cases in Stirling and one in 10 cases in Kilmarnock.

Of those 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. All of these applications came under Section 24A(1) legislation and included 11 cases of murder or rape which, although eligible, were not subject to Section 24A(2) restrictions. Section 24A(2) legislation was not deemed altogether necessary by professional respondents, indeed was described as 'tinkering', where the Crown does not oppose standard bail in murder and rape charges.

3.62 The vast majority (94%) of applicants were men and the mean age was 26. Those with fewer presenting offences and those with charges of violence, disorder and breach of bail were more likely to be granted EM bail, and most of the successful applications were from accused charged in the summary rather than the solemn courts. 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 offenders with more extensive offending histories are less likely to be considered appropriate for EM bail. Ironically, however, those with a history of breaching bail are more likely to be considered appropriate for EM bail.

3.63 The process of referral for EM bail has operated relatively smoothly over the course of the fieldwork period, although numbers have not increased significantly in the first 16 months. The relatively low application rate over the 16 months of the fieldwork period was suggested by some respondents to be a result of limited awareness amongst out-of-town defence agents and visiting sheriffs regarding the existence and procedures of the pilots. Such criticism could be stemmed by increased publicity amongst relevant agencies and increased liaison between sheriffs and defence agents about the availability of EM bail. This could also apply to the Appeal Court sitting in Edinburgh, where EM bail applications could perhaps be more accessible both for the prosecution and defence agents in cases going to appeal.

3.64 Where suitability reports were called for, the average length of the custodial remand pending such reports was 5.7 days, although it was possible in four cases to complete suitability reports on the day of the first hearing. Although requested in 75 per cent of cases, some 67 per cent of all suitability reports were in effect surplus to requirements because of the low conversion rate, which will have cost implications. However, suitability reports serve an important function in determining the suitability of the accused and the premises as well as confirming the cooperation of the householder. To reduce the time spent on remand in custody pending reports, it may be worthwhile exploring whether more reports could be collated on the day of the first hearing, thus precluding the need for a custodial remand. Were this not feasible, then arrangements within the court setting could be formalised to allow bail officers to conduct interviews with accused prior to their being transported to prison pending the second hearing, in particular in relation to those applications emanating from solemn proceedings where the bail officer may not know of the application until the accused has been remanded in custody pending a suitability report.

3.65 The conversion rate from an application for EM bail to EM bail being granted is also relatively low. EM bail is granted in 38 per cent of all applications; in 50 per cent where suitability reports are called for; and in 62 per cent where suitability reports considered EM bail appropriate. A change of sheriff between the first and second hearings may have an impact on whether or not EM bail is granted following a suitability report and one suggestion which might increase the conversion rate is for there to be a presumption to grant EM bail at the second hearing if the suitability report is satisfactory, unless extenuating circumstances to do with the case or the accused have arisen between the first and second hearing which make EM bail subsequently inappropriate. Certainly, if EM bail is to become an option for the courts in reducing the custodial remand population across Scotland as a whole, this conversion rate needs to be increased as a matter of priority.

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