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CHAPTER FIVE PERCEPTIONS OF THE EFFECTIVENESS OF EM BAIL

INTRODUCTION

5.1 Although the original research specification did not stipulate short-term effectiveness as a key aim of this evaluation, the research team nevertheless investigated this at interview, in terms of public safety, potential offending on bail, and intimidation of witnesses.

5.2 As mentioned in Chapter 1, the key objectives of EM bail are:

• to reduce the use of custody for those accused deemed eligible for electronically monitored bail who would otherwise have been remanded in custody;
• to offer additional security to the general public against the likelihood of offending or intimidation of witnesses by accused people who are seen as a potential risk if not remanded in custody.

5.3 This chapter explores whether or not the various stakeholders in the EM bail pilots believed that the addition of EM bail as a direct alternative to custodial remand adequately addressed these aims, and their views are contrasted, where appropriate, with the quantitative data. This chapter is based not only on the quantitative and qualitative data from the pilot courts, but also presents pertinent data from the 3 comparison sheriff courts and can thus draw certain conclusions on the overall effectiveness of EM bail versus standard bail or custodial remand in other sheriffdoms.

PERCEPTIONS OF APPROPRIATE APPLICANTS FOR EM BAIL

5.4 At interview, professional respondents often gave their views about the appropriateness or otherwise of certain 'types' of accused, which may enhance or reduce effectiveness of EM bail. Various groups emerged as being less capable of complying with EM bail. These included problem drug users, whose often chaotic lifestyles, offending to feed a habit and state of mind were such that punctuality regarding curfew and exclusion times might present difficulties for them. Whilst there may well be no correlation between substance misuse and offences of drug possession or dealing, it was suggested in Chapter 3 that 83 per cent of those presenting with drug offences were refused EM bail, but the 17 per cent who were granted it were less likely to infringe the conditions of their EM bail order than those presenting with other offences.

5.5 Whilst some professional respondents commented on serious presenting offences being a disincentive to granting EM bail, 2 procurators fiscal, 2 defence agents and 3 sheriffs all commented that it was the previous record of the accused rather than the presenting offence which should be the determining factor in whether or not to grant EM bail.

5.6 Most respondents felt that EM bail was a useful option for those who were working or had caring roles or family commitments, as a custodial remand would inevitably disrupt employment or family responsibilities. Six of the bailee respondents were in employment at the time they were given the order, and in these cases restriction conditions had been arranged to allow them to attend their place of employment and sometimes 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 professional respondents, bailees and family members alike. Several sheriffs also felt that young people in particular should be offered the opportunity of EM bail, although in practice it seems from the data that it is young people who are less likely to comply with their EM bail conditions.

REDUCING THE USE OF CUSTODY

5.7 As can be seen from Table 5.1 below, during the same period as the fieldwork was undertaken and in the same courts, out of a total of 6,914 cases where the accused was refused standard bail and therefore potentially eligible for custody, there were 6,910 remand receptions (with 4 cases resulting in EM bail being granted on the day of application). When measured against the 306 applications from that same population who applied for EM bail (applications consisted of 4.4% of all custodial remand receptions, excluding the four individuals whose EM bail application was heard on the same day), and against the 116 granted EM bail (1.7% of all charges resulting in custodial remand), it would seem that EM bail is not having a significant impact in terms of reducing the custodial remand population.

Table 5.1 Total numbers of custodial remands and bail orders by court

5.8 In Scotland, legislation for EM bail has specifically ensured that it is only considered once a sheriff has decided to remand an accused in custody, thus maintaining it as a high tariff and strict alternative to custodial remand. Whether this is the case can only be assessed by comparing certain characteristics of those granted EM bail with those refused it and remanded in custody and through an assessment of outcomes in the comparison courts (see below).

5.9 The majority of respondents felt that EM bail was indeed a 'last resort' application, even though some respondents suggested that accused eligible for EM bail tend to be 'on the margins' or 'borderline cases' between standard bail and custodial remand. Of the 190 accused persons who did not receive EM bail (of the total of 306 original applications in the first 16 months of the pilots), 170 of these were remanded in custody pending trial, 18 were given standard bail with or without special conditions and the remaining 2 were released prior to the second hearing for EM bail. These figures certainly suggest that the majority who are refused EM bail will be remanded in custody pending trial.

5.10 As was seen in Chapter Four, Table 4.10, in terms of custodial sentences, 30 per cent of EM bailees who complete their orders are given custodial sentences, compared with 53 per cent of those refused EM bail following a suitability report and 64 per cent of those refused EM bail outright. However, without being able to disaggregate the original offences and previous offending histories, it is difficult to make any conclusions from these figures as to whether EM bailees are less or more likely to be treated differently than their counterparts on custodial remand.

5.12 In terms of the length of custodial sentence for those subsequently imprisoned for the original offence, Table 5.2 below shows the breakdown for those granted and those refused EM bail. These recorded lengths of custodial sentences were stipulated by the sheriff at the point of sentence and do not take into account any backdating of sentences to allow for periods on remand.

Table 5.2 Stipulated length of final custodial sentence

5.13 There is a marginal difference in length of custodial sentence for those granted (29%) and refused (37%) EM bail where sentences were under 90 days, but little difference between the two groups for those given 90-180 day sentences. However, assuming that the majority of those refused EM bail would have had their sentences backdated to when they were first remanded, then it would seem that those refused EM bail spend less time overall in custody for the original offence. This is discussed in greater detail in Chapter 6 in relation to costs.

OFFERING ADDITIONAL SECURITY

Improving public safety

5.14 Nine professional respondents (3 sheriffs, 3 clerks of court and 3 procurators fiscal) suggested that EM bail was unlikely to increase public safety, although defence agents were generally confident that it could. Among the minority of those who thought it may increase public safety, 2 believed it was more beneficial to the immediate victim than to the wider public. Whilst one Sheriff suggested that EM bail was 'a much more formal method of policing' than standard bail, s/he did not feel it offered greater reassurance to the general public in this context. One Sheriff was at pains to dispel the false expectations of public safety that might be created by EM bail, because of misplaced confidence in its ability to protect:

5.15 Comparing it more to custody than to standard bail - which indeed was a more accurate comparison given its role as a strict alternative to custodial remand - one respondent suggested that EM bail could potentially increase the risks to the public:

5.16 It is not only time outwith curfew periods, however, that poses a risk. It is arguable that tagging is not incapacitative even in respect of the times when the accused is officially confined to their home: the tag does not physically constrain them as custody does and if EM bail is not deemed effective in curtailing offending, it will not necessarily be considered favourably by sheriffs. As one Sheriff commented:

5.17 The strongest support for EM bail as a means of increasing public safety came from police officers, defence agents and bail officers. Three police officers thought that it was more likely to increase public safety than standard bail:

5.18 One bail officer suggested that imposing restrictions from a place was a particularly useful way of improving public safety (although as noted in Chapter 4, these were little used in the EM bail pilots with only 11 orders of this type being completed in the first 16 months):

5.19 As will be seen in Annex 1 which explores the press coverage of electronic monitoring and bail, electronic monitoring generally does not have a good public image and its credibility has been seriously undermined by negative press coverage of rare cases where things have gone wrong. This was exemplified during the course of the pilot evaluation when one EM bailee who was charged with murder was taken off EM bail in order to spend time on holiday abroad. This case stirred up fears about public safety and a questioning of public confidence in bail generally.

Reducing offending

5.20 Although bail is a pre-sentence order of the court where the accused has yet to be found innocent or guilty of the specific offence with which s/he has been charged, there is nevertheless a broad assumption that giving an accused bail is likely to result in 'further' offending, whether this be perverting the course of justice by intimidating witnesses or committing an offence whilst awaiting trial. There is an inherent assumption amongst professionals and the public alike that bail should therefore be as incapacitative as possible.

5.21 For example, it was suggested by a sheriff and a bail officer that a 5 day custodial remand pending a suitability report (irrespective of whether EM bail was subsequently granted) impressed upon the accused how serious their situation was, and made it more likely that they would comply if granted EM bail. The bail officer explained: 'I think maybe the custodial experience does bring it home to people that it is a direct alternative', and this point was reiterated by the Sheriff:

5.22 This view suggests that EM bail could be used as a deterrent to the accused rather than as a precautionary measure for public protection, even though guilt has not as yet been verified. It would thus have the potential to 'netwiden' in such cases. However, that said, the majority of EM bailees did have a history of repeat offending which EM bail could possibly curtail pending trial. As was seen in Chapter 3, those granted EM bail had an average of over 9 previous offences on their record, although 9 per cent had no record of previous offending.

5.23 However, there was scepticism amongst court-based professionals in particular about compliance and offending rates on EM bail, and procurators fiscal in particular were concerned that EM bail could not give the kind of assurances that remand in custody could. One procurator fiscal commented:

5.24 Bailees themselves seemed more positive about the effectiveness of EM bail in ensuring compliance with bail conditions, as the following young EM bailee commented:

5.25 Ten of the EM bailees or family members interviewed indicated that the monitoring equipment made it more likely that the accused would comply with the conditions of bail:

5.26 However, 6 reported significant difficulties in meeting the conditions of the order, either due to offending or failure to comply with the restrictions imposed and information is not available for the remaining cases. Twelve EM bailees indicated that they had not committed any offences whilst on EM bail, although a further respondent stated that s/he had committed an offence on bail and was subsequently remanded in custody.

5.27 Four police respondents suggested that EM bail exerted more control than standard bail because of the transparency of the electronic component, and 2 believed that it would produce greater levels of compliance with restriction periods, which might in turn result in lower rates of offending, as one police officer explained:

5.28 However, 3 police respondents questioned whether EM bail would be adhered to any more readily than standard bail especially by those with a chaotic lifestyle. Frustration was expressed about individuals being granted any kind of bail when they were likely to continue offending, especially in relation to cases of domestic violence:

REDUCING INTIMIDATION OF WITNESSES

5.29 The vast majority of respondents considered that accused people would intimidate witnesses if they wanted to, irrespective of wearing a tag, although one suggested that if a bailee was restricted from a victim's address, this may offer an added incentive to stay away from him/her. It was suggested by various professional respondents that intimidation could happen in various forms: through third parties or via text messaging or phoning; from the confines of a prison, while on custodial remand; and within the court prior to trial. For one professional who had knowledge of intimidation occurring from within prison using proxies, being out on bail, tagged or otherwise, nonetheless was felt to make it easier 'to actually manage that intimidation'.

PERSPECTIVES OF VICTIMS' REPRESENTATIVES

5.30 Victim Information and Advice ( VIA) is part of the Crown Office and Procurator Fiscal Service. It provides information and advice to victims and witnesses about how the criminal justice system works and what they should expect when going to court; it keeps victims and witnesses informed of progress on their cases; and puts victims and witnesses in touch with other agencies where appropriate.

5.31 VIA workers at interview doubted whether EM bail benefited identifiable victims or the general public. Perceptions of tagging more generally left these workers with low expectations of its effectiveness:

5.32 VIA workers were sceptical of the value of EM bail in protecting victims of crime, but one victim agency worker tried to see both sides of the argument, and considered that EM bail in a domestic violence context could prove to be a positive step towards rehabilitation, because it left the accused with more scope for changing his behaviour than prison:

5.33 Several respondents raised the issue of victims' rights, sometimes generally, sometimes in relation to privacy and intrusion issues in particular. Two procurators fiscal suggested that EM bail may have the potential to infringe householders' or victims' rights, given the intrusion of having equipment in their own homes. Respondents who represented victims often felt particularly strongly about the message that granting EM bail sent to victims, however unintentionally, and that the implications of EM bail should be explained more clearly to them. In one incident, the victim misunderstood the curfew conditions imposed on the accused and was unhappy about seeing the accused in a restaurant, albeit outwith the restriction period. The VIA worker explained:

5.34 A further incident involved the tagging of someone accused of murder which severely coloured the understanding of EM bail by both the victim's family and VIA, with the latter commenting in that respect that 'the human rights of victims are being hung out to dry'. However, in cases where the victim is asked to have monitoring equipment in their home also (to restrict an accused from an address), they have the opportunity and the right to refuse to agree to such a condition. It is then up to the sheriff to either refuse EM bail or to impose a restricted to condition only.

5.35 Victims' views of electronic monitoring and bail generally tend only to be drawn upon by the media in particular when such views are negative. As highlighted in Annex 1, this is an emotionally powerful means of criticising the philosophy and practice of electronic monitoring and bail. Any assessment, therefore, of the effectiveness of EM bail needs to bear this in mind: notably that the press puts a particularly negative slant on stories about EM bail and these in turn influence the views of the public at large.

COMPARISON COURT OUTCOMES

5.36 As mentioned in Chapter 2, a matched sample of 191 individuals from Edinburgh (130), Linlithgow (36) and Greenock (25) was drawn upon in order to ascertain the extent to which the availability of EM bail in the pilot courts influenced sheriff decision making in terms of granting bail versus custodial remand, breach proceedings and final outcomes of cases. The comparison sample was matched with the 116 individuals granted EM bail in the pilot courts on age, gender, type of court (summary and solemn), presenting offence(s) and previous offending history.

Outcome of first hearing for the comparison sample

5.37 Whilst 116 accused were granted EM bail in the pilot courts, having been refused standard bail in favour of custodial remand, the matched sample in the comparison courts were remanded in custody in only a small proportion of cases. Of the 191 accused in the comparison courts, 45 (24%) were remanded in custody. The remaining 146 accused were either given standard bail (in 100 cases - 52%) or were ordained to appear for trial (in 46 cases - 24%). Table 5.3 gives this breakdown by court.

Table 5.3 Comparison courts: Remand status by outcome of first hearing

5.38 Although these comparison courts, like the pilot courts, have a relatively strong tendency towards the use of custody rather than community-based alternatives, the above figures suggest that being bailed or ordained is generally preferred by sheriffs for accused pending trial.

5.39 When the type of proceedings are taken into account, namely whether summary or solemn proceedings, there is still a high propensity towards the use of bail for those accused appearing in solemn proceedings, with 75 per cent being bailed pending trial compared with 25 per cent being remanded in custody. There were no matched accused in the comparison courts who had been charged with murder or rape between April 2005 and March 2006. However, there were three attempted murder charges, all of which were granted standard bail with conditions; these conditions included not to approach the victim, not to approach a specific area and to attend an identity parade when requested.

5.40 Table 5.4 below shows the number of presenting offences for 188 of the 191 accused in the comparison courts.

Table 5.4 Comparison courts: Number of presenting offences by outcome of first hearing

5.41 The above figures suggest that there is no link between the number of presenting offences and the sheriff's decision whether to remand the accused in custody, grant standard bail or ordain the accused to appear. As was seen in Chapter 3, several professional respondents suggested that the number and seriousness of presenting offences were not necessarily influential factors in sheriff decision making, but that the previous offending history was more likely to influence the decision as to whether to remand an accused in custody or grant bail, with or without conditions. Indeed, when a loglinear analysis was applied to the frequency data in the comparison sample using categories of age group (4), no of presenting offences (4), previous offending history (4) and outcome of first hearing, the analysis found an interaction between number of previous offences and the outcome of the first hearing where the Sheriff decided to remand, bail or ordain an accused.

5.42 In the comparison sample, in an attempt to examine any potential relationship between age, number of presenting offences, previous offending history and the outcome of the first hearing (remanded in custody, bailed or ordained), a loglinear analysis was applied to the frequency data (see Annex 4). A relevant association was found between number of previous offences and outcome of first hearing (L.R. Chisq. = 133.124, p<0.05). Tables 5.5 and 5.6 below show in more detail the numbers of previous offences by outcome of the first hearing for the comparison and pilot courts respectively.

Table 5.5 Comparison courts: Number of previous offences by outcome of first hearing

5.43 Table 5.5 shows that in the comparison sample those accused who had an offending history of 6+ previous offences are more likely to be remanded in custody (37%) pending trial than those who present with 1-5 previous offences (13%) or no previous offences (11%). This difference is statistically significant ( X_ = 18.879, p<0.01).

Table 5.6 Pilot courts: Number of previous offences by whether EM bail granted

5.44 However, whilst the same pattern emerges in the pilot courts (Table 5.6) - namely that there was a pattern between the number of previous offences and whether EM bail was granted - this was not statistically significant. It would thus seem that the comparison sample follows a pattern of higher numbers of previous offences leading to remand and lower numbers of previous offences leading to standard bail. By looking at a cross-tabulation of those who were granted EM bail versus those who were refused EM bail according to their offending histories, it would seem that in the pilot courts there was a pattern of higher numbers of previous offences leading to remand, and that those accused were more likely to be refused EM bail. However, this was not statistically significant.

Final outcomes for the comparison sample

5.45 Tables 5.7 and 5.8 below show the length of time from first hearing to trial outcome for those in the pilot sample who were granted and refused EM bail compared with those who were ordained, bailed and remanded in custody in the comparison sample.

Table 5.7 Pilot courts: Length of time from first hearing to trial outcome

5.46 There was no statistically significant difference between those granted EM bail and those refused EM bail when the mean lengths of time from first hearing to trial outcome were compared. It should be borne in mind in this analysis of length of time on bail or remand that although the trial might start within the stipulated time period of 40 days for those remanded or on EM bail, the trial itself may take longer and if reports are called for pending disposal, the period until eventual trial outcome could be weeks rather than days hence.

Table 5.8 Comparison courts: Length of time from first hearing to trial outcome

5.47 A one-way Anova Test compared the mean length of time from first hearing until trial outcome and showed a significant different across the 3 groups in the comparison courts (F = 13.819, p<0.001). A post-hoc Scheffe Test showed where these differences lay. There is a significant difference (p<0.001) in the number of days awaiting trial outcome for those granted standard bail and those remanded and between those remanded and those who were ordained to appear.

5.48 For those appearing on summary proceedings, of which there were 120 known cases in the comparison courts, the mean number of days pending trial outcome was 105 days, in the range 0 - 415. For solemn proceedings, of which there were 11 known cases in the comparison courts, the mean number of days pending trial outcome was 147 days, in the range 0 - 413.

5.49 In terms of the length of custodial disposals, which were known in 45 cases in the pilot courts and in 26 cases in the comparison courts, it would appear that the pilot sample of accused who received custodial sentences for the original offences were given significantly longer sentences (a mean of 121 days) compared with those in the comparison courts (a mean of 93 days). This difference was statistically significant at p < 0.05). Given that those remanded in custody will have their sentence backdated to the start of their period on remand, they will thus serve much shorter sentences in custody following trial than EM bailees. This is discussed further, from a cost perspective, in Chapter 6.

5.50 The matched sample in the comparison courts were more likely to be given a monetary disposal of a fine (44% compared with 11% granted EM bail) or a community-based disposal (probation, for example) (33% compared with 20% granted EM bail), and less likely to be given a custodial disposal (22% compared with 30% granted EM bail). It is difficult to gauge whether the culture of these comparison courts was such that community-based or monetary disposals were used more often, but it should be borne in mind that both the pilot courts and the comparison courts were matched partly because they all have a relatively high rate of custody.

CONCLUSIONS

5.51 Given that 116 of the total of 306 applicants for EM bail were granted, there was a reduction in the custodial remand population of 116 during the fieldwork period. The 116 granted applications comprised just 1.7 per cent of the overall custodial remand population during the period of the fieldwork. However, of the 190 who applied for but did not receive EM bail, 170 of these were remanded in custody pending trial, thus suggesting that EM bail is operating as a direct alternative to custodial remand even if its impact is minimal overall.

5.52 Whilst EM bail could be seen as a direct alternative to custodial remand at the application stage, if someone is found guilty of breach, they may not necessarily be given a custodial sentence but could be granted standard bail or fined, depending on the circumstances of the breach and/or the views of the presiding sheriff. Likewise, the original EM bail order may still continue until the trial for the original offence. Where the final outcome of the trial for the original offence was known, those who had completed a period of EM bail were more likely to receive fines or have their sentence deferred for good behaviour than those who were refused EM bail. However, 30 per cent of EM bailees are given custodial sentences, compared with 57 per cent of those refused EM bail. Without being able to disaggregate the original offences and previous offending histories, it is difficult to make any conclusions from these figures as to whether EM bailees are less or more likely to be treated differently than their counterparts on custodial remand in terms of final outcome.

5.53 The evaluation period does not allow for the collection of substantive data on offending whilst on bail, or reconviction rates. Accordingly, it is not possible to evidence that EM bail increases public safety through a reduction of offending and intimidation of witnesses. However, only a minority of respondents felt confident at interview that bail with an additional condition of electronic monitoring was able to reduce offending or intimidation of witnesses.

5.54 When compared to a matched sample from Edinburgh, Greenock and Linlithgow Sheriff Courts in the period April 2005 to March 2006, it would seem that the pilot courts have a stronger tendency towards remand in custody for such accused (56% of applicants were subsequently remanded in custody) than their counterparts in the comparison courts, where 24 per cent of the matched sample were given custodial remands pending trial. This is perhaps surprising given that the levels of offending histories of both samples were matched, as were the presenting offences. In the absence of the unlikely event that sheriffs in the pilot courts are 'up-tariffing' accused so as to be able to take advantage of the EM bail option, it can only be surmised that there is a different culture of remand in the comparison courts, one that favours bailing or ordaining accused pending trial.

5.55 Likewise, the comparison sample were at an advantage in terms of how long they spent on remand pending trial. Whereas the pilot group spent a mean average of 70 days on EM bail, those remanded in the comparison courts spent a mean average of 48 days pending trial, and these latter periods on remand would be taken into account in any final custodial sentence, whereas the EM bail period would not be taken into account. Final outcomes for the comparison group were also less severe than for those in the pilot courts - 22 per cent of the comparison sample received a custodial sentence for the original offence compared with 30 per cent of the pilot sample. This issue of the length of time on EM bail and the length of any custodial sentence has quite striking implications for the cost effectiveness of EM bail, as will be seen in the following chapter.

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