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CHAPTER FOUR THE OPERATION OF EM BAIL

INTRODUCTION

4.1 Whilst Chapter 3 included all applicants for EM bail, this chapter focuses on those who completed EM bail during the pilot period, namely April 2005 to July 2006. This comprised 63 individuals, a sub-sample of 54 per cent of the total number of accused granted EM bail during the first 16 months of the pilots.

4.2 This sub-sample cannot be said to be representative of all 116 EM bailees but can give a flavour of what might happen to people on EM bail both in terms of failure to comply and outcomes of breach and trial for the original offence. They had similar characteristics, in terms of age and gender, as the overall sample of those granted EM bail. This chapter describes the types and lengths of EM bail orders, explores failures to comply/breach and gives the outcomes of trials and breaches following an EM bail order. It also explores operational issues and communication between and within the key agencies.

4.3 Once an EM bail order has been granted there are 5 ways in which it may be varied (reviewed) or brought to an end (revoked). First, it may run its course until the accused appears in court for trial and is sentenced or acquitted. Secondly, it may (but not necessarily) be terminated because of a failure to comply with its conditions - for example, as a result of breach action taken by the procurator fiscal. Thirdly, it may be varied or revoked at a bail review hearing, because of changed circumstances in the accused person's life or changed perceptions of the risk s/he poses. Fourthly, the accused may be arrested and remanded in custody on a new offence. Finally, the accused may be sentenced for an outstanding charge which may result in the EM bail order being revoked.

FEATURES OF EM BAIL ORDERS

Restriction 'to' and 'from' a place in EM bail orders

4.4 Fifty-two bailees of the 63 completed cases (83%) were given EM bail orders restricting them to a specific address; 9 were restricted from an address and 2 were restricted both to and from an address. Of the 9 restricted from an address, 8 emanated from Glasgow and one from Kilmarnock. Of the 8 from Glasgow, 4 were known to present with domestic abuse charges. The two combined orders (restricting both to and from an address) were also made in Glasgow and both were known to present with domestic abuse charges. Domestic abuse cases were sometimes dealt with by orders restricting from a particular address. It is unclear why so few orders were made which restricted from rather than to a place, given that not only domestic abuse but also arguably certain assault charges and shoplifting charges could be dealt with in this way. Bail officers and victim support agency staff voiced concerns about the usefulness of this particular condition, appreciating that it provided an additional measure of surveillance of potential offenders, but doubting that it would guarantee that the accused would abide by the restrictions imposed or that victims would feel comfortable about having the equipment in their home. It was also suggested by one respondent that often incidents of domestic abuse do not necessarily result in the victim wanting to end the relationship (by excluding the accused from her house) or even to press charges, resulting in her not being amenable to housing the equipment.

4.5 In the 52 cases where the accused was restricted to an address, the most common restriction was from 7pm to 7 am (18), and a further 6 were restricted from 6pm until 6am. In the remaining 28 cases the accused were restricted generally overnight but the curfews varied from person to person, e.g., 3 were restricted from 7.30pm to 7.30 am and another 8 were restricted from 8pm until 8am. In some cases the second half of the day was also restricted, e.g., 1.30 pm until 7.30 am and in another case, the curfew was from 3pm until 12 noon (21 hours). A further 5 accused were restricted to their home address for 24 hour periods, although one of these was granted 2 6-hour breaks in curfew 2 days a week, in order to attend college. Of the 9 accused who were restricted from a place, 8 of these cases were 24 hour restrictions and the other was between 7pm and 7am.

Reviews of EM bail conditions

4.6 Six EM bailees had been recorded as having review hearings to attempt to change the conditions of their EM bail orders, either their bail address or because of changes in circumstances (e.g., employment) and in one of these cases there were 2 review hearings. Not all of these 6 individuals had completed a period of EM bail at the time the fieldwork had ended and in none of the cases was there a record of why the change of conditions had been requested. The outcome is known in only 3 cases, and each of these was successful. Two of these review hearings were to vary the curfew times (one was held 2 weeks after starting the EM bail order and the other 8 months after starting) and the third was to change the 'restricted to' address, after 7 months.

4.7 When an EM bailee wishes to change the conditions of his/her bail order, there are specific legislative requirements which have to be followed and procedures are in place for this to happen. The defence agent should contact the clerk of court who will set a date for a review hearing no sooner than 5 days hence and will request a further suitability report. The bailee should either be remanded in custody pending this report or remain on electronic monitoring at the original address until the review hearing. The Procedure Manual states that if an accused wants to change his/her address then the bail officer must make contact with the new householder in the same way as in the original application, in case there are any problems with the new address in terms of suitability of the premises or the particular circumstances of the accused. The defence agent also needs to ensure that the sheriff knows s/he is dealing with an EM bail review request and that, pending that decision, the accused should remain at the original address where possible. It is not unusual for bailees to want to notify a change of bail address, but this not only has workload implications for the clerks of court and other court personnel (and also, down the line, for Reliance/Serco, removing and reinstalling equipment) but also cost implications as well.

4.8 It is perhaps surprising that only 6 EM bailees were known to have had review hearings out of the total of 116 EM bailees. As will be seen below, failures to comply with EM bail conditions included not being able to comply with curfew restrictions and having householders withdraw consent. It would seem plausible that requesting a review hearing could, in such circumstances, enable curfew times to be modified or potential new addresses to be negotiated. It may well be that defence agents and/or their clients are not fully aware of the option to review EM bail conditions, and that this type of awareness raising might lessen the likelihood of failures to comply resulting in breach proceedings being brought.

FAILURES TO COMPLY AND BREACH

4.9 Breach of EM bail can only be decided by the court, following notification of 'failures to comply' by the monitoring company to the police and by the police to the procurator fiscal. In total, 44 (70%) of the 63 EM bailees allegedly failed to comply with their orders, while 19 (30%) undertook a period of EM bail without coming to the attention of the police.

4.10 Table 4.1 below shows the number of failures to comply with EM bail conditions during the fieldwork period per individual. As can be seen from these figures, 30 per cent of accused completed a period of EM bail without being recorded as coming to the attention of the police, whilst 33 per cent failed to comply only once.

Table 4.1 Number of failures to comply with EM bail

4.11 Because there are various elements involved in what is recorded as a 'failure to comply' with an EM bail order, it is necessary to tease these out before considering the types of action taken which may or may not result in breach. Failures to comply consist of 'voluntary' and 'involuntary' actions on the part of the bailee or the householder. Voluntary failure to comply includes:

• Failure to install the equipment because the accused is not available
• Wilful damage of the equipment (strap tamper or case tilt)
• Not returning for a curfew period
• Leaving during a curfew period
• Being absent without leave
• Entering a restricted area
• Arrest for a further offence or breach of bail

4.12 Involuntary failure to comply includes:

• Mitigating circumstances such as hospitalisation or an inability to remain under curfew because of an emergency
• Withdrawal of consent for the equipment by the householder.

4.13 If the equipment fails or is set off accidentally rather than being wilfully damaged, this is not included in our assessment of 'failures to comply', although such incidents will be reported to the police by Reliance/Serco concurrently with the monitoring company investigating a possible equipment fault. A further report will be sent to the police should equipment sensitivity or failure be confirmed as the sole reason for the alarm being triggered. Certainly, from the bailee interviews, it was suggested that a recorded failure to comply could result from over-sensitive equipment as well as from wilful damage per se.

4.14 It seems that it is the younger age group that has most difficulty complying with EM bail conditions. As one young EM bailee respondent at interview commented: "I just couldn't be bothered sticking to the terms". Twenty-three (79%) of the 29 bailees aged 20 and under allegedly failed to comply with one or more conditions of their bail order, whereas only 21 (62%) of the 34 in the 21+ age group allegedly failed to comply with one or more conditions. Those with presenting offences of disorder, violence and bail aggravation were more likely to fail to comply compared with those presenting with theft or drug offences. Indeed, those accused with presenting offences involving bail aggravation (31 of the 44 EM bailees who allegedly failed to comply) are the most likely to fail to comply with EM bail conditions.

4.15 There was no significant difference in failures to comply across the three sheriff courts, in terms of age or bail aggravated presenting offences, with Glasgow EM bailees failing to comply at least once in 62 per cent of cases, Kilmarnock in 77 per cent of cases and Stirling in 76 per cent of cases.

4.16 Forty-four per cent of initial failures to comply happened within the first 2 weeks of an EM bail order being made. Nine accused were recorded as having failed to comply within the first week, 9 in the second week, 8 in the third week and 7 in the fourth week of starting their order. Thereafter, the numbers who fail to comply for the first time reduces. These initial failures to comply consisted of leaving during a curfew time, not returning at start of curfew, entering a restricted zone, strap tamper, failure to install the equipment and householder withdrew consent.

4.17 The numbers and frequency of failures to comply of a voluntary or involuntary nature are given in Table 4.2. Often EM bailees were involved in more than one type of incident. It is not possible to gauge the extent to which these infringements were consciously made or because of mitigating circumstances (i.e., voluntary or involuntary failures to comply), since this is often not recorded by the monitoring company and cannot be cross-checked with police files.

Table 4.2 Type and frequency of failures to comply

4.18 The vast majority of failures to comply were directly linked to the electronic component of the EM bail order, either from being recorded as not keeping to electronically monitored curfew times (without the equipment such incidents of breaking a curfew would arguably have gone undetected by the police if an offence was not seen to be committed) or from interfering with the equipment. In order to ascertain whether the most common reasons for failing to comply - leaving during a curfew or failing to return for a curfew - were in any way related to more stringent restriction times (as opposed to mere electronic detection), the number of hours that these accused were restricted to an address was calculated. The majority of failures to comply with curfew times were curfewed for 84 hours per week, which was the most common curfew time given. Seventy-four per cent of these EM bailees were recorded as having failed to comply at least once compared with 46 per cent of those curfewed for 168 hours per week, but this is not statistically significant. Therefore, there was no apparent link between the number of restriction hours and an accused person's ability to comply with the curfew requirements.

4.19 It would thus seem that failures to comply were not influenced by the number of hours of curfew but merely by the fact that the equipment triggered a police notification when curfews or other conditions were infringed.

4.20 Table 4.3 below shows the weekly curfew lengths of accused persons and whether they failed to comply. The table also shows the most common curfew length as 12 hours per day (84 hours per week), most often from evening until morning, e.g., 8pm until 8am.The shortest length of time an accused was curfewed during the week was 56 hours (a curfew from 9pm until 5am) and the longest was a 24 hour curfew 7 days a week, of which there were 11 in total, although only 3 of these were restricted to an address, with the other 8 restricted from an address. One restricted from an address was only for 12 hours overnight.

Table 4.3 Hours of curfew by failure to comply

4.21 The difficulties for bailees and families alike from 24 hour curfews to an address were raised at interview, notably by defence agents. Two of the 3 24-hour orders to date have emanated from Stirling with the third from Kilmarnock. Of the 3 cases restricted to an address for 24 hours, one successfully completed his period of EM bail without any failures to comply, whereas one of the other 2 failed to comply once and the other twice. Whilst 11 bailees in total have been curfewed for 24 hours a day (168 hours a week) throughout the pilot period, 8 of these were curfewed from a place rather than to a place. Glasgow Sheriff Court granted 7 of these 8 24-hour curfews to remain away from an address, possibly as a result of the sheriffs in the domestic abuse court in Glasgow seeing the benefits of EM bail orders for victims.

4.22 Of the 9 orders restricting EM bailees from an address, only 3 failed to comply. However, numbers are too small in these cases to make any claims about the success or otherwise of the equipment in promoting compliance with exclusion zones. However, fuller information is given below on the circumstances of these 3 cases of non-compliance in restricted from orders. In all 3 cases records suggest that no proceedings were brought.

• In the first case, the accused had been charged with breach of the peace following a domestic abuse incident. He entered the restricted area for a period of 4 minutes, 30 days after being granted EM bail. No action was taken by the police and no report was sent to the procurator fiscal. This incident was the individual's only reported failure to comply throughout the bail period.
• In the second case, the accused failed to comply on 3 occasions, the first being when he entered the restricted area 6 days after being granted EM bail. He then was absent without leave a week later and was also fitted with a new tag twice, the second time to a different address.
• The third accused failed to comply once for entering the restricted area 7 days after being granted EM bail. He had initially been charged with a breach of the peace following a domestic abuse incident but was found not guilty 28 days after being granted EM bail.

Action taken by the police following failure to comply

4.23 With EM bail as opposed to other electronic monitoring orders, Reliance/Serco have to report such failures to comply to the police by telephone within 15 minutes of the alarm being triggered and by fax within 2 hours. The police have 2 courses of action available to them: a) to take no further action because the failure to comply was either involuntary or accidental or b) to arrest the bailee for voluntary failure to comply. As with breach of any other bail condition, it is up to the police whether to report the breach to the procurator fiscal. It is then the role of the procurator fiscal to mark cases as breach of bail where deemed in the public interest.

4.24 Responding to failures to comply may depend on other priorities at the time of notification, but they will be dealt with as a matter of urgency by police officers, not least because of the accuracy and immediacy of the electronic component. While it was acknowledged that there may be some instances where the police could use discretion in determining whether or not an EM bail condition had been infringed (i.e. if someone had inadvertently stepped outwith the boundaries of their restriction area), the police generally left it to the procurator fiscal to decide how to deal with it and indeed one Procurator Fiscal confirmed that the police 'do things by the book'. One police officer highlighted the sensitivity of the issue for the police when dealing with an order of the court, irrespective of the circumstances:

4.25 In order to assess the extent of police involvement in failures to comply incidents, a sample of 66 telephone calls made by Reliance/Serco to Strathclyde Police (39 calls relating to Glasgow and Kilmarnock areas) and Central Police (27 calls relating to Stirling area) were scrutinised through a search of the Police database for telephone contact between the monitoring company and the police switchboard. This search included information on the reasons for calls, timescales for responding to incidents, the number of officers involved, the time taken to resolve the issue and the outcome of the incident. The 66 calls generated a total of 77 suspected failures to comply by EM bailees.

4.26 Table 4.4 below gives the reasons recorded on police files for the notification of failure to comply. In 11 cases 2 or 3 reasons for failure to comply were recorded per case but for the majority (55 of the 66 calls) there was only one incident of failure to comply.

Table 4.4 Reason for telephone contact between Reliance/Serco and the police

* In one of these incidents, the accused was mistakenly bailed to 2 addresses at the same time, and so was always breaching at one of them.

4.27 In 36 of these calls, the time lapse between the phone call by Reliance/Serco and the dispatch of police officers to deal with the situations varied from 3 minutes to just under 12 hours (this latter time was due to the notification being about a problem with the equipment rather than an infringement by the accused). The number of police officers involved in responding to all 66 phone calls also varied from no officers being involved in 26 cases to 6 officers being involved in 2 cases, as shown in Table 4.5 below.

Table 4.5 Officers involved in failure to comply notifications

4.28 The above table shows that in 39 per cent of cases sampled, no police officers were involved beyond the switchboard operator. In the 2 cases where 6 officers were involved, both accused had absconded and in one case it took 54 hours to arrest the accused; however, it could well be that these 6 officers were involved consecutively (because of changes of shift, for example) rather than concurrently.

4.29 The length of time recorded for actual disposal and closure of a case resulting from these phone calls ranged from less than one hour (19 cases) to, in one case, 264 hours with a median average time of 4 hours. However, in the case taking 264 hours, there was a note on file that the incident was 'cleared up' in 3 hours, involving 4 officers, but actual closure of the case may have happened following the report to the procurator fiscal and disposal of the case by the Crown.

4.30 In 14 of these 66 phone call incidents, a report was sent to the procurator fiscal and in 13 cases the bailee was arrested. Fifteen such calls, however, were recorded as 'for information only' by the police. These are instances where the monitoring equipment had recorded an infringement but, following clarification with the bailee, the monitoring company verified this was not a case of non-compliance but informed the police nevertheless, as per their contractual obligations. Faults with the equipment or a power failure were recorded in 3 cases.

4.31 It should be stressed that not every failure to comply necessarily results in the police reporting the incident to the procurator fiscal or the procurator fiscal initiating breach proceedings. In a minority of cases recorded following the above 66 calls, no further action was taken by the police. In 8 of these cases, the accused apparently left the restricted to address on one or more occasions and in 6 cases, the accused was recorded as failing to return for a curfew. These would have been instances where the police used their discretion not to report incidents to the procurator fiscal presumably because of mitigating circumstances, even though these were obvious infringements detected by the equipment.

Action taken by the procurator fiscal following failure to comply

4.32 Data on initiated breach proceedings were accessed via the offices of the procurator fiscal in each area. Whilst the monitoring company has no discretion in whether or not to notify the police of any suspected failures to comply, and police and thereafter the procurators fiscal may choose to take no further action. Thus, these data do not necessarily match the number of recorded instances of failure to comply described earlier. As outlined in Table 4.6 below, these data apply to 68 cases of potential breach by a total of 31 bailees: 11 of the 29 EM bailees in Glasgow who had completed; 9 of the 13 in Kilmarnock ⁶ and 11 of the 21 in Stirling. The percentage in brackets in the total column represents these 31 EM bailees as a proportion of the total number of closed cases per pilot area. Each instance of breach proceedings may include one or more allegations of failure to comply with bail conditions and/or of new offences.

Table 4.6 Breach proceedings brought by the procurators fiscal

4.33 Procurators fiscal initiated breach proceedings on 68 occasions relating to 31 individuals accused of a total of 124 incidents of new offending or infringements of bail conditions, although the majority of EM bailees in all areas had only one instance where breach proceedings were brought. It is not possible to identify whether these breaches, where confirmed, resulted in EM bail orders being revoked or continued until trial for the original offence. As can be seen from the above figures in brackets, Kilmarnock was the court most likely to initiate breach proceedings (69% of all completed cases), compared with Stirling (52%) and Glasgow (38%).

4.34 In terms of new offences, Table 4.7 below lists the number of new offences recorded on the Crown Office and Procurator Fiscal Service's databases for Glasgow, Kilmarnock and Stirling where breach proceedings were instigated. Again, the figures in brackets in this table denote the number of EM bailees accused of committing new offences on EM bail as a percentage of the total number of EM bailee completers per pilot area.

Table 4.7 Number of new offences associated with breach proceedings

4.35 Again, Kilmarnock had the highest proportion of new offences recorded by those who had completed EM bail, followed by Stirling and then Glasgow. Whilst Kilmarnock and Stirling had a similar proportion of cases of new offences compared with breach proceedings overall, Glasgow had a much lower incidence than the other two areas of new offending compared with breach of other conditions of EM bail orders.

4.36 Whilst the majority allegedly committed one or 2 new offences whilst on EM bail, numbers are too small and the period of study too short to make any assumptions in relation to offending on bail more generally. Likewise, it was not possible to determine whether the alleged infringements of the bail orders (e.g., new offences) which led to breach proceedings being brought were made during or outwith the periods of restriction. If failures to comply were made during restriction periods, there is obviously more likelihood of the accused being detected, not least because of a lack of an electronic alibi.

Action taken by the courts following failure to comply

4.37 Whilst Table 4.1 showed that 44 EM bailees failed to comply in 104 separate instances as recorded by the monitoring company, of these, 31 EM bailees had breach proceedings brought against them by procurators fiscal. Table 4.8 below shows the reason for breach proceedings being brought against these 31 individuals.

Table 4.8 Reason for breach proceedings being brought

4.38 The following two tables show the number of incidents and number of bailees involved in breach of bail conditions (Table 4.9) and those involved in new offences (Table 4.10), where known, for these 31 EM bailees. It should be borne in mind that these figures only relate to those EM bailees who were charged with breach of bail or a new offence within the jurisdictions of Glasgow, Kilmarnock and Stirling. Breach proceedings on those who were charged with a new offence or breach of bail outwith the pilot areas cannot be collated, since their records will be held in outlying Crown Office and Procurator Fiscal Service offices.

Table 4.9 Outcomes of breach proceedings for breach of bail

* 7 bailees account for two outcomes each, one for three outcomes and the remaining 18 bailees had one outcome only.

Table 4.10 Outcomes of breach proceedings for new offences

* 4 bailees account for 2 outcomes each, 3 for 3 outcomes and the remaining 12 bailees had one outcome only.

4.39 Where breach proceedings were brought against those charged with breach of bail conditions, such breaches related specifically to the electronic monitoring component of the order, which included leaving during a curfew, tampering with the strap, returning late for a curfew and entering a restricted area. The majority were as a result of breaking curfew conditions, although it cannot be deduced from this that the electronic monitoring component per se was the precipitating factor in these cases coming to court. It can be as likely that such failures to comply, as with standard bail curfew conditions, come to the attention of the police in the course of their duties, as a result of other police surveillance operations or possibly as a result of a 'tip off' from a member of the public. Equally, where breach proceedings are not brought, this does not imply a finding of not guilty but may mean that the evidence was insufficient or other circumstances precluded the case from going to court. Being unable to interrogate the Crown Office files in these cases, because of Data Protection issues, it is not possible to determine whether the lack of evidence or circumstances were in any way related to the electronic component of the EM bail order or because of other judicial requirements.

4.40 Table 4.11 shows the disposals following a guilty verdict for breach of bail conditions. It should be pointed out that not every breach results in a revocation of the EM bail order and outcomes of breaches can range in severity from no further action to imprisonment. Certainly, 3 sheriffs and 3 procurators fiscal at interview suggested that sheriffs' decisions in such cases depended on the circumstances of the breach as to whether to remand the person in custody, fine them, give them standard bail or continue with the EM bail order.

Table 4.11 Sentences given following guilty verdicts for breach of bail

Perceptions of the electronic monitoring component

4.41 There were mixed messages coming not only from the quantitative data about breach but also from discussions with respondents. Whilst some felt that EM bail would increase the possible breach rate, because of the fact that they were dealing with high tariff, high risk individuals, others felt that the breach rate on EM bail would be either the same or less than on standard bail because of the electronic movement restriction. Either way, most agreed that if someone was going to fail to comply, it would tend to be in the first few days of an EM bail order, although as was seen earlier in this chapter, most accused fail to comply for the first time within the first month of an order. Respondents also suggested that such failures to comply were 'transparent', in other words readily identifiable by the sophistication of the monitoring equipment.

4.42 Five of the 31 EM bailees and family members interviewed suggested that there had not been any problems with the equipment. The majority of bailee and family respondents, however, had experienced a range of problems with the monitoring equipment. In the case of 13 respondents, these problems appeared significant and ranged from false alarms being set off allegedly inadvertently by people or pets in the vicinity of the box and alleged technical problems with the monitoring boxes and/or straps themselves.

4.43 In some instances, over-sensitive EM equipment can result in Reliance/Serco reporting failures to comply where there was no obvious wilful infringement of the conditions of EM bail. From bailee and family interviews it would seem that the equipment sometimes triggered an alarm accidentally which resulted in Reliance/Serco staff and the police visiting monitored premises both day and night. For at least 3 families, difficulties with the equipment, which may arguably have resulted from their own actions, had been such that police were called out late at night. These call outs were said to be distressing to the respondents and had, in one case, led to a parent asking for the equipment to be removed. Equally, there was some criticism of monitoring staff in one area at least where certain family members felt that the staff were not particularly helpful when contacted to ask for advice regarding court appearances or other commitments during restriction periods. It should be noted that the monitoring company can only act to install or remove equipment if the company is in receipt of an order from the court and the monitoring staff are not able, therefore, to modify the periods of restriction or silence the equipment because of court appearances. The fact that the alarm was therefore triggered despite notifications to the company by the family resulted in many families feeling aggrieved or frustrated by the equipment and the process. Equally, equipment can be in place erroneously: for example, one bailee reported being tagged for several days beyond the period stipulated by the court order because the monitoring company had not removed it when required (perhaps because of a lack of notification from the court), and another bailee was reportedly tagged at 2 addresses simultaneously.

The length of EM bail orders

4.44 The length of EM bail orders varied from 5 days to 217 days for the total sample of 63 completers, with a mean average of 62 days, a median of 46 days and a mode of 29 days. Thirty-seven per cent of EM bail orders were revoked within 40 days, 43 per cent were revoked within 90 days and the remaining 20 per cent were revoked between 91 and 217 days following the start of an EM bail order.

4.45 The length of an EM bail order may have a direct or indirect impact on one's ability to comply with its conditions. Because EM bail is a direct alternative to a custodial remand, it is deemed most appropriate that summary trials be heard within 40 days and solemn cases within 140 days of an accused being granted EM bail. However, during the course of the pilots, this proved unrealistic, especially for summary cases, because of pressure of court business and subsequent prioritising of cases. Adjournments are sometimes unavoidable, and EM bail, as with any other bail condition, is required to fit in with such court processes. Reasons for such adjournments include: forensic laboratories needing longer than 40 days to test for drugs, witnesses not being contactable, the needs of vulnerable witnesses or children being accommodated, evidence or productions being amassed, videos or DVDs being prepared, more urgent cases being given priority on court time, and legal aid issues being negotiated. In practice, therefore, it cannot be guaranteed that EM bail summary cases will be heard in the stipulated 40 days.

4.46 Judges and sheriffs welcomed the additional clause in the legislation to allow a case to be heard within 40 days for accused persons on EM bail as well as those remanded in custody. One Sheriff lamented the "culture of adjournment' within the court system and felt that a 40 day limit was preferable. Whilst Glasgow is the busiest sheriff court overall, it was also in this instance able to process EM bail orders relatively timeously. Only 10 per cent of their EM bailees spent more than 90 days on bail compared with just under a third of EM bailees in Kilmarnock and Stirling. However, it was suggested at interview by one respondent that Glasgow Sheriff Court does not have a 'culture of adjournment' because they try to ensure a faster throughput of cases.

4.47 While recognising that delays to trials are necessary to ensure 'justice' for the client and victim, defence agents in particular were wary of their clients being kept on EM bail for longer than the stipulated 40 day period for custodial remand prisoners - possibly because of the potential to fail to comply, although as the figures above suggest, some accused can manage lengthy periods on EM bail without coming to the attention of the police.

4.48 There was no significant increase in failures to comply by number of days on EM bail, suggesting that failures to comply are related to factors other than length of bail - e.g., age of accused, offending propensity, current circumstances, etc. Length of EM bail orders will also vary according to how the court responds to a breach of EM bail, whether by fining the person, continuing the EM bail order or possibly remanding the accused in custody.

4.49 The 23 EM bailee respondents had been on EM bail for varying lengths of time at the time of interview although many could not stipulate the exact time. Five reported having been on an order for under one month, whilst 6 suggested it had been for between one and 2 months. Five suggested their orders were for between 2 and 4 months, and 2 for between 6 and 8 months. One of the reported difficulties facing both bailees and family members was the uncertainty about pending court cases and the length of time that the electronic monitoring equipment was likely to be in place not least because the trial date, although set at the time of the second hearing, may well be postponed for the reasons cited above. However, 2 family members indicated that when they had given their consent to have the bailee in their home, they had not envisaged that the monitoring would continue for as long as it did. If they had known the length of EM bail in advance, they reported that they would not have given their consent. Indeed, as was seen earlier in this chapter, 9 householders were reported to have withdrawn consent for the monitoring equipment in their house. Out of 44 EM bailees who failed to comply, this is perhaps not as large a proportion as one might expect, given the difficulties for household members in accommodating not only the accused on an intensive basis but also the equipment for often lengthy periods. Certainly, family members at interview indicated that if the EM bailee was unemployed and spent prolonged periods at home (particularly where curfew conditions were lengthy) then this could cause additional tensions within the household. Three EM bailee respondents, however, who themselves had responsibility within the household (e.g., as parents) indicated that they felt that the restriction to the home had been helpful, requiring them to avoid situations which may have led to potential offending. Nevertheless, the success of the pilots must certainly be attributable in part to the goodwill and resilience of the families housing the monitoring equipment.

4.50 The proportion of EM bail orders that were revoked at the time of the trial for the original offence was 81 per cent of all EM bail orders (51 of the 63 completed). In 12 cases (19%) EM bail orders were revoked prior to trial for other reasons. In 2 of these latter cases the accused died before the end of the bail period. In 5 cases the householder removed consent, in 4 cases the accused was remanded in custody on another charge and in one case the accused had the bail order revoked after breaching his EM bail order 4 times in as many weeks.

4.51 Table 4.12 below gives the number of days between the initial application for EM bail and the trial outcome for a sub-sample of EM bail completers (28) and a sub-sample of those refused EM bail and remanded in custody during the fieldwork period (45), to enable a comparison to be made for the two groups between lengths of time on bail or remand prior to trial.

Table 4.12 Time from EM bail application to trial outcome

4.52 Whilst 43 per cent of EM bail applicants and 33 per cent of those refused EM bail waited 31 - 60 days for trial, those remanded in custody having been refused EM bail were more than twice as likely to have their trials heard and sentence passed within 1-30 days compared with those granted EM bail. This suggests that those remanded in custody are at an advantage in having their trials heard sooner than those given EM bail.

4.53 In Chapter 3, it was noted that some respondents, defence agents in particular, felt that an advantage of EM bail was that the accused was in the community and thus more readily available to prepare for his/her impending trial. Whether this availability impacts on the preparedness or otherwise of the defence in gathering the necessary evidence and witness statements cannot be gauged from these data, although the longer both custodial remand and bailed individuals wait for their trials to be heard, the greater the resource implications. Further research on lengths of remands (both custodial and bail) would enable an examination of the likely impact of length of remand on preparation and timing of trials and the subsequent cost implications.

Outcomes of trials for the original offence

4.54 Data on the outcome of trials for the original offence, where trials had completed and outcomes were known, were mainly gathered through complaint files or COP1 database records, backed up by data held by Reliance/Serco. These are given in Table 4.13 below, and relate to 46 EM bailees, 36 who were refused EM bail following suitability reports and 25 who were refused EM bail outright. Outcomes depend entirely on the sheriff and the circumstances of the case, rather than on bail per se. Nevertheless, it is interesting to note the differences in outcomes between those accused granted and complying with EM bail compared with those refused it and remanded in custody.

Table 4.13 Final disposals for the original offence for those granted and refused EM bail

4.55 Those granted EM bail had fewer previous offences than those refused EM bail outright, and this is reflected possibly in the fact that the completers in this sample were less likely to receive a custodial sentence than those refused EM bail outright, and marginally less likely to receive a custodial sentence than those with similar previous offences who were refused EM bail following a suitability report. Community-based disposals were equally likely to be given to all 3 groups, whilst EM bailee completers were more likely to have a sentence deferred for good behaviour than those refused EM bail. The completers were also more likely to be found not guilty for the original offence.

4.56 However, when failures to comply are factored into the equation on final outcomes, the figures suggest that there is a correlation between failing to comply with EM bail and likelihood of custody as a final sentence for the original offence. Again it should be stressed that the numbers are small and not statistically significant. One caveat on these data is that although EM bailees are seen as potentially high risk at the time of application for EM bail, often with lengthy offending histories (up to 57 previous offences), their period on bail should bear no relation to the outcome of the final trial for the original offence. Evidence presented at trial and other potentially mitigating circumstances are the determining factors in findings of guilt or innocence and in sentencing. These data are presented only to demonstrate that many EM bailees, although high tariff in relation to bail, are often lower tariff in relation to sentencing, and that such sentencing is not consistent across or necessarily within the pilot courts.

AGENCY CAPACITY AND INTER-AGENCY COOPERATION

4.57 From the outset of these pilots, with the setting up of the thorough consultation process described in Chapter 1, it has always been emphasised by respondents that inter-agency cooperation and information sharing is crucial to the success or otherwise of the exercise. It is apparent from this evaluation that the successful implementation of EM bail has indeed been based on the close cooperation and mutual understanding of the various agencies, as described below. Inter- and intra-agency arrangements described below relate specifically to the police, social work department, the Scottish Court Service, the Crown Office and Procurator Fiscal Service and Procurator Fiscal Service and defence agents. Although the Scottish Prison Service ( SPS) is included as having cost implications for EM bail in Chapter 6, it was not deemed necessary to explore inter-agency or workload issues with SPS representatives in relation to EM bail per se.

Training and guidelines

4.58 All participants in the EM bail pilots had received relevant training, although additional training in relation to bail legislation and the implementation of EM bail was not seen as necessary for the majority of court-based professionals involved in the pilots. Discussions with judges and sheriffs revealed that they were satisfied with the advice given to them by clerks of court or other court personnel in specific procedural matters relating to EM bail. For the police, information and guidance on EM bail was largely 'cascaded' through the Association of Chief Police Officers, which compiled its own written Standard Operating Procedures, intended for use as a practice template for the pilot areas and other Scottish forces. However, no formal internal training on EM bail was currently deemed necessary within the Police Force. Equally, the Crown Office and Procurator Fiscal Service issued their own guidance to staff prior to the pilots commencing, although court personnel generally were used to adapting to changes to legislation or court procedures and tended to learn the new processes 'on the job'. Likewise, the Scottish Court Service respondents did not suggest needing further training following the initial Scottish Executive presentation (see below) and the guidance given in the Procedure Manual. Control centre staff at Reliance/Serco had to learn new procedures to deal with EM bailees, which differed from the procedures used with RLOs, for example, not least in only having 15 minutes to notify the police if and when a violation occurs. This initially created a high degree of anxiety among control centre staff, particularly as EM bailees seemed at the start of the pilots to be generating a lot of work because of failures to comply. In terms of social work training, not all bail officers were social work trained, but this was not seen as an impediment to them writing suitability reports, although where child protection issues arose during the course of assessing someone's suitability, the bail officer would double check the circumstances with a senior manager. No ongoing training was currently deemed necessary other than the standard induction of new staff.

4.59 The presentations given by Scottish Executive personnel alongside staff from Reliance prior to the pilots commencing were seen as a useful training tool in explaining the implementation of EM bail. However, in terms of the legislation and procedures, there has been a mixed reaction to the Procedure Manual produced by the Scottish Executive which laid down the stipulated practice for all agencies involved and contained specific extracts from the new legislation with explanatory notes. Whilst some respondents thought it was 'excellent', others pointed out certain inaccuracies or omissions: 'not every eventuality has been considered', as one defence agent put it. However, the Steering Group and Local Liaison Group members have worked closely with the Scottish Executive to ensure that the manual is clear, accurate and up to date, and considers as many eventualities as possible which arise during the course of the pilots.

Agency workload implications

Police

4.60 Whilst all police respondents generally felt that their current workload was manageable, they also suggested that if EM bail was applied more widely, this would have staffing and wider resource implications for the service. EM bail has created a new responsibility for the police, which when combined with other recent developments such as ASBO enforcement and multi-agency partnerships to deal with sex offenders, has put increased pressure on the force generally. It is likely that the police will have an increased workload in relation to EM bail because of the cumulative effect of increasing numbers being tagged in the community over the course of the pilot period and the subsequent impact that increasing acts of non-compliance will have on their ability to respond. However, it is a more reactive service (awaiting notification of non-compliance from Reliance/Serco) than the proactive policing required to monitor non-electronic curfews.

Social Work Department

4.61 The only agency which received additional resources from the Scottish Executive to implement the EM bail pilots was the social work department in each geographical area, because of the anticipated increase in workload for bail officers in writing suitability reports for the courts which they would not otherwise be doing in respect of accused on bail. Anticipating exact workloads was a difficult task given the uncertainty around the potential uptake of EM bail. In Stirling, (where a bail information scheme was already in place) one full-time bail officer was appointed with part-time clerical assistance. In Kilmarnock, 2 part-time bail officers were appointed to undertake the additional work and these posts were contracted out to SACRO which already had the contract to undertake bail supervision in the area. In Glasgow (which also has a bail supervision scheme in operation), 2 additional full-time bail officers and a full-time clerical worker were appointed to cover both the sheriff and the high courts. These new workers were not dedicated staff for EM bail but shared all bail responsibilities with existing bail officers. Given the lower than anticipated application rate for EM bail, new bail officers were able to diversify and work with all aspects of bail, including bail information and supervision schemes.

Scottish Court Service

4.62 One agency that stated they currently experienced increased pressure on staff resources as a result of EM bail was the Scottish Court Service, where clerks of court have increased paperwork to prepare, including Scottish Executive pro formas, whilst also trying to notify bail officers regarding interviewing accused prior to the latter being transported to outlying prisons. Clerks of court are also the first port of call for Reliance/Serco monitoring staff who need updated information on changes to EM bailee circumstances or additional hearings. The computer system ( COP1 or COP2) used by the Scottish Court Service is not designed to electronically minute additional conditions of bail as there is only a standard bail template on the system. Thus, additional conditions must be entered into the system prior to the accused leaving the court building, and this additional administrative exercise can prove time-consuming. Likewise, it was regretted by one clerk that the computerised system that they use does not have the capacity to include research-based statistical returns for the Scottish Executive, which might have eased the pressure both on time and memory for clerks of court who deal with EM bail cases. Should EM bail be rolled out nationally, and indeed if further pilots of pre- or post-sentence options are evaluated, it would certainly be cost-effective to ensure compatibility across and within the various agency databases for research purposes and for the system to be able to flag up key stages in the process.

Crown office and procurator fiscal service

4.63 Crown Office and Procurator Fiscal Service respondents suggested that their workload increased only as a result of a larger number of cases being called at the second hearing in custody courts (where suitability reports had been asked for) and marking any additional cases for breach. However, whilst one procurator fiscal considered EM bail to be 'resource-intensive' for all agencies involved, none of the procurators fiscal interviewed felt under increased pressure as a result of the extra workload currently, not least because numbers on EM bail were relatively small and because procurators fiscal were present in court anyway for all hearings, irrespective of EM bail applications or breaches. Nevertheless, the increased business of the court as a result of EM bail applications or breaches will inevitably lengthen the day and therefore have resource implications.

Defence agents

4.64 Most defence agents interviewed felt that it was easier for them to represent their clients personally in the smaller courts than the larger ones, although one defence agent suggested that, even in a court as large as Glasgow, they tend to be able to cover most eventualities and to be there to represent their clients when required, as one defence agent explained: 'The art of practising at the criminal courts is… you go into one court… ask someone to hold it back or continue it and you run to another court'. However, some defence agents were concerned that any increased numbers of EM bail applications may impact on the quality of work undertaken by the duty solicitor, who may not, in such circumstances, have the time to check potential EM bail addresses for new cases appearing from custody. Equally, in terms of second hearings, although there is a duty solicitor present in the court every day, it is not within their remit to cover second hearings for EM bail, which means a defence agent needs to represent the applicant at the second hearing. Whereas in, for example, the domestic abuse court pilots and the youth court pilots, special measures were put in place to ensure that defence agents were financially covered for any extra work entailed, this was not the case originally with the EM bail pilots. In respect of EM bail, legal aid was not amended in order to take into account the additional court hearing once the suitability report came in. As of June 2006 legal aid in respect of EM bail was introduced by the Scottish Legal Aid Board to allow defence agents to charge £50.00 for the additional hearing. Given the fieldwork for this evaluation finished at the end of July 2006, it was not possible to measure what, if any, potential impact this change had on defence practice.

Inter-agency cooperation

4.65 Early consultation between the Scottish Executive and the key agencies involved in the pilots was seen as crucial in developing the scheme and enabling a smooth and cooperative process of implementation. Once the model for EM bail had been established by the National Steering Group ( NSG), Local Liaison Groups ( LLGs) were set up to address any issues which may arise. The NSG and LLGs were seen very positively by all partner agencies, with one commenting that it was one of the most extensive consultation exercises he had seen in relation to a pilot exercise; whilst a number of other respondents commented on how receptive the Scottish Executive was to the concerns of, and suggestions from, the agencies involved. There was a general consensus that the LLGs were particularly helpful in dealing with local difficulties or unforeseen issues surrounding implementation or operational practice. Equally, both the NSG and LLGs were considered to be important in determining points of contact and establishing lines of communication to facilitate inter-agency co-operation. These groups were viewed as important in terms of fine-tuning, consistency of operation and the establishment of good practice across all 4 pilot courts. Nevertheless, the common denominator between the 3 LLGs was the Scottish Executive's representatives who ensured that each LLG was informed of the deliberations of the other 2. 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.

4.66 Reliance/Serco were involved from the outset in the planning and implementation of the pilots and this was seen as a positive step to include them in the preparatory work alongside other agencies. Respondents indicated that discussions were candid and open but because the membership of the different local groups varied somewhat (for example, only Kilmarnock had a Sheriff represented on the LLG), the degree and depth of mutual understanding that participants acquired varied somewhat. As one respondent mentioned:

4.67 Communication difficulties, although minimal overall, were most apparent between Reliance/Serco and the police and between Reliance/Serco and the clerks of court, mainly because the monitoring companies are unable to use their discretion and are therefore dependent on these 2 agencies for guidance and instruction. The reason for this is that the monitoring company is required to deliver the monitoring service to support the court order, and does not have statutory decision making powers. Nevertheless, all respondents felt that inter-agency cooperation generally was good, and indeed was consolidated by the good relationships and communication fostered within the National Steering Group and LLGs. Such cooperation was helped in Stirling and Kilmarnock in particular by the proximity of the various agencies to each other, and the close knit nature of the community within these relatively smaller urban areas. Although Glasgow was a much larger city, the criminal justice community itself was relatively close knit and enabled effective communication between the various partners involved in the pilots.

CONCLUSIONS

4.68 A total of 63 bailees completed an EM bail order during the first 16 months of the pilots, with the majority of these being men (58 male versus 5 female bailees), and on average 26 years old. Those aged 20 and under were more likely to be granted EM bail than those aged over 21, with 46 per cent of completers aged under 20. Although accused aged 20 and under were more likely to be granted EM bail, they were also more likely to fail to comply with one or more conditions (79%) than the over 21 age group (62%). Likewise those whose presenting offences included breach of bail/bail aggravation were less likely to comply (72%) but were more likely to be granted EM bail. Thus, EM bail may be being targeted at a group less likely to comply, may be less likely to curtail potential offending and may even exacerbate any further offending because of bail aggravation in cases where applicants are young or have a previous history of breaching bail.

4.69 Accessing quantitative data on the various reasons for revocation of an order proved difficult because such information was not kept in a readily accessible form. However, it was possible, through various databases, to gain an overall picture of the reasons for and results of failures to comply and final outcomes. Failures to comply with an order comprise voluntary non-compliance (e.g., wilful damage to the monitoring equipment) and involuntary non-compliance (e.g., hospitalisation) with the requirements of the order. Just under two thirds (44 out of 63) of the EM bailees failed to comply with their orders on at least one occasion and over two-fifths of these failures to comply happened within the first 2 weeks of an order. There was no apparent increase in failures to comply by length of time on EM bail, and equally, although curfew times were often lengthy (e.g., 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 EM bail order per se (its conditions or overall length) but to extraneous factors such as age, circumstances or offending history. Likewise, many failures to comply result from the electronic component which, if not present, would less likely be detected and result in breach proceedings being brought. There is a question, therefore, over the possibility that EM bail is creating additional conditions that are setting accused up to fail, not least if they are young and find curfews difficult to comply with.

4.70 Restricted from conditions on EM bail orders were rarely used during the period under study and it may be worth considering whether these might be more effectively promoted in respect of charges relating to an obvious victim (for example, domestic abuse) or geographical area (for example, shoplifting), rather than restricting the accused to his/her own house for stipulated periods. However, if these types of order were to be used more readily, it would be important to liaise with such householders about the circumstances of the case and their views about the accused. Again, accused persons may be set up to fail if they are excluded from the home of someone with whom they have an ongoing relationship, irrespective of whether that person was the victim of that particular charge. Likewise, it may be possible to deflect instances of failure to comply by promoting the use of reviews more with defence agents and accused alike. Reviews of EM bail conditions were rarely used and yet are a potential mediating force for changing the conditions of an order, such as the timing of curfews or the bail address.

4.71 In terms of operational issues, respondents indicated that EM bail had not significantly increased the workload of any one agency involved in the pilots, not least because numbers have overall been relatively low and manageable. However, all agencies implied that their workload would increase and become more resource intensive if EM bail was rolled out nationally and if numbers granted EM bail increased significantly. However, currently, Serco, clerks of court and the police have the greatest workload because of the potentially cumulative effect of increasing applications, orders and revocations. 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. Such coordination could well be dissipated in the event of a national roll-out and it may well be worth retaining such a national coordinating function on a permanent basis if at all feasible.

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