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CHAPTER SEVEN CONCLUSIONS
INTRODUCTION
7.1 In April 2005, the piloting of electronic monitoring as a condition of bail ( EM bail) was introduced across 4 courts, the sheriff courts in Glasgow, Kilmarnock and Stirling and the High Court sitting at Glasgow. The Criminal Procedure (Amendment) (Scotland) Act 2004 introduced 2 additional provisions to ensure that EM bail was used as a direct alternative to custodial remand rather than being used more loosely as an additional tool in the armoury of bail. First, Section 24A(1) allowed for an accused person who has been refused standard bail to apply for bail with an electronically monitored movement restriction condition; and secondly, Section 24A(2) granted powers to the courts to impose an electronically monitored movement restriction condition without application from the accused, in petition cases involving rape or murder charges. The main aims of EM bail were:
- to reduce the use of custody for those accused deemed eligible for electronically monitored bail who would otherwise have been remanded in custody; and
- to offer additional security to the general public against the likelihood of offending or intimidation of witnesses by accused people who are seen as a potential risk if not remanded in custody.
7.2 This concluding chapter looks more critically at the extent to which those 2 main aims have been achieved and explores further the take-up rate of EM bail in Scotland to date and the importance of inter-agency collaboration and communication in promoting further usage of this alternative to custodial remand.
THE USE OF EM BAIL IN SCOTLAND
7.3 In the period April 2005 to July 2006, applications were made for EM bail in 306 out of 6,914 (4.4%) potentially eligible cases. These applications were made by 270 individuals (of which 238 applied only once and the remaining 32 accused applied more than once). Seventy-five accused had their applications for EM bail refused outright whilst the remaining applications were considered, resulting in 231 custodial remands of between 0 and 27 days pending suitability reports. Those reports suggested that 186 applications were suitable and of these, 116 applications were granted. The operation of EM bail over the 16 months of the fieldwork is focused on the 63 individual accused who were granted and completed a period of EM bail during the fieldwork period. One striking facet of the pilots, readily recognised by many stakeholders in the pilots, is the low numbers compared with the numbers being remanded in custody; granted EM bail applications comprised a reduction to the remand population of just 1.7 per cent. Although many of the respondents suggested factors which may well have contributed to this, it is difficult to give a definitive explanation as to why take up of this alternative to custodial remand has not been more in evidence.
7.4 It should be borne in mind that the relatively low numbers converting to EM bail orders cannot be deemed conclusive or otherwise of either effectiveness or viability of the pilots overall. Professional respondents at interview cited several possible reasons for the persistently low numbers applying for and actually granted EM bail:
- defence agents (especially those from 'out of town') and visiting sheriffs and judges were perhaps less aware of the availability and eligibility criteria for EM bail, suggesting a lack of publicity and overall awareness of the pilots;
- sheriffs often called for suitability reports but were not on the bench for the second hearing, with the result that a different sheriff may take a different view of the appropriateness of EM bail, irrespective of the suitability report, suggesting a lack of continuity in the referral process;
- given the seriousness and frequency of offending of those likely to be refused standard bail, it was possible that sheriffs would agree with the Crown that custodial remand was the only option that would ensure public safety, suggesting that it is the Crown rather than the court that needs to be convinced of the viability of EM bail;
- there was a general scepticism amongst most of the professionals about the merits of electronic monitoring per se as a way of ensuring control over, and surveillance of, accused persons.
7.5 The so-called conversion rate from applications to granting of EM bail is 38 per cent. Given the cost implications of the court process from application, through the compilation of suitability reports and concurrent remand in custody, to the final application being granted, this conversion rate is not cost-effective. Indeed, as was seen in Chapter 3, there are significant agency resources put into the referral process which are, in 62 per cent of cases (that are not converted to EM bail orders), subsequently wasted: for example, the second hearing and associated paperwork and the compilation of suitability reports. It was possible in a small number of cases identified during the evaluation for bail officers to compile a suitability report for the same day as the first hearing, thus precluding the need for a 5.7 day remand. If this could be managed more broadly, by enabling bail officers to have access to accused in the court and by making phone-based assessments of potential bail addresses, costs would be reduced dramatically for the courts, the social work departments and the prisons and may well result in a much higher conversion rate from 'suitability' to EM bail granted.
INTER-AGENCY COLLABORATION
7.6 The nexus of relationships between procurators fiscal, sheriffs, clerks of court and defence agents is often pivotal to decision making in respect of whether or not to remand an accused in custody pending trial. This has been demonstrated in several ways both in the referral process and in the operation of the pilots more generally, in relation to the conversion rate, the appeal rate, the use of Section 24A(2) and the relationship between Crown and court.
7.7 First, as was seen in Chapter 3, the conversion rate from an application for EM bail to EM bail being granted is relatively low, with 38 per cent of all applications being granted; 50 per cent of those where suitability reports are called for being granted; and 62 per cent of those whose suitability reports considered EM bail appropriate being granted. It may well be that the reasons for this are changed circumstances of the accused or additional information on the charge(s) brought to the attention of the court in the intervening 5 day period during which suitability reports should be compiled; however, it was suggested by some sheriffs at interview that a different interpretation of suitability by a 'second sheriff' may be a determining factor. Nevertheless, analysis of the data does not suggest that a 'second sheriff' is that much more likely to refuse or grant EM bail at the second hearing than if they had called for the report themselves. Whilst appreciating the importance of judicial discretion in these matters, there nevertheless seems to be a lack of consistency of approach to EM bail in individual cases which could conceivably be ameliorated by increased communication between sheriffs, fuller record keeping of reasons for calling for reports and increased publicity about the availability of EM bail amongst visiting sheriffs. It was also suggested from two sources that there should perhaps be a presumption of EM bail being granted in cases where the suitability report suggests that EM bail would be appropriate, assuming that there are no changed circumstances in the intervening 5 day period that would suggest otherwise. However, if the above suggestion of same-day suitability reports could be taken on board, the issue of 'second sheriffs' would not arise.
7.8 Secondly, there has been little opposition by defence agents (or indeed perhaps accused themselves) to remands in custody pending trial during the course of the fieldwork period. It may well be the case that in such high tariff complaints, accused and their defence agents assume a custodial sentence will result and therefore prefer a custodial remand, the length of which is taken into account in the final sentence. However, this does not explain why those who apply for and are refused EM bail do not subsequently appeal that decision. Of the 306 applications for EM bail, information is available on only 26 defence appeals against refusal of standard bail, EM bail or both. It was suggested at interview that there may be a 'presumption of custodial remand' in certain cases which precludes defence agents from either applying for EM bail or appealing against refusal of bail, standard or electronically monitored.
7.9 Thirdly, section 24A(2) legislation has not been used to date in respect of rape and murder charges, even though eligible cases have been heard during the fieldwork period. Again, it was suggested at interview that professional discretion or integrity suggested that if the Crown did not oppose standard bail, there was no need for the sheriff/judge to add further conditions to a bail order, since the Crown was already acting in the public interest, and a sheriff/judge would respect that judgement. One option to increase the use of Section 24A(2) might be for the Crown and indeed the court to have greater powers to impose EM bail in such cases.
7.10 Finally, and particularly relevant to appeals and Section 24A(2) legislation cited above, whilst the independence of the judiciary has to be applauded, it should not preclude the need and desirability of close communication between the various professionals involved. This evaluation has highlighted sensitivities between sheriffs and judges and other parties involved in EM bail appeals in particular, but also in theory in Section 24A(2) provision, which need to be aired more proactively in order to avoid at best 'second guessing' whether EM bail is appropriate or at worst doing nothing untoward. Much of the process of EM bail currently requires 'good faith' rather than proactive negotiation between those involved in decisions about bail and remand, a level of communication and collaboration which could prove counterproductive and inefficient in the longer term.
7.11 The following 2 sections look in greater depth at the impact of the pilots on the 2 key aims of reducing custodial remands and increasing public safety.
REDUCING CUSTODIAL REMANDS
7.12 As was seen in Chapter 5, there was a reduction in the custodial remands of 116 accused during the fieldwork period. These 116 granted applications comprised just 1.7 per cent of the overall number of custodial remands in the pilot areas during the period of the fieldwork, which suggests a minimal impact of EM bail on the overall custodial remand population. The pilot courts were purposefully chosen because they had a high custody rate and comparison courts were matched on this criterion also. Therefore, there was always the risk that these courts would be difficult to influence in terms of their possible remand culture. However, from the comparison data collected outwith the pilot sites, it would seem that there is a remand culture in the pilot courts which is not matched in the comparison courts, given that the latter gave custodial remands to just 24 per cent of those appearing before them compared to the notional 100 per cent who applied for EM bail in the pilot courts.
7.13 It was noted in Chapter 5 that there was no evidence of netwidening or up-tariffing of accused in order to make use of electronic monitoring and that those given EM bail and those refused following suitability reports were similarly matched in being relatively high-tariff accused with lengthy offending histories, although less so than those refused EM bail outright. There is no reason why sheriffs would specifically seek to remand someone in custody so as to take advantage of the EM bail pilots; indeed there was overwhelming condemnation of such a practice and the low numbers would support such condemnation. However, it does seem that in the pilot courts compared to the comparison courts there was a much greater tendency to remand higher tariff accused in custody pending trial. This suggests that perhaps Glasgow, Kilmarnock and Stirling have a lower tolerance threshold for those accused with a lengthy offending history than their counterparts in Edinburgh, Greenock and Linlithgow, even though both sets of jurisdictions have a similar pattern of use of custody overall.
7.14 At the first hearing, it is likely to be the offending history of the accused that is the defining feature of those applications that are refused outright which suggests that accused with a higher number of previous offences are not being considered eligible for EM bail, even though it is a high tariff remand option for those refused standard bail. However, at the second hearing, because there is little difference between those granted and those refused EM bail once suitability reports have been called for, it can only be a) the suitability of the premises, the circumstances of the accused and/or the agreement of the householders, or b) the opinion of the sheriff reading the suitability report, that is the defining feature of successful applications. Thus, the criteria for decision making must change between the first and second hearings, suggesting an inconsistency in practice which may conceivably account for the low conversion rate. Since option a) was not seen as an issue according to the completed pro formas, option b) - the attitude of sheriffs as to whether or not to grant EM bail following a suitability report - seems the most likely factor in determining the success or otherwise of EM bail applications.
INCREASING PUBLIC SAFETY
7.15 While it is not possible to provide the views of the general public on the operation and/or effectiveness of EM bail within this evaluation, an analysis of press coverage given in Annex 1 provides a strong flavour of the way in which this initiative is seen by the press, and how the public is informed - or misinformed - about EM bail. While the soundness of the principles behind bail and electronic monitoring are sometimes acknowledged, complementary and balanced accounts of actual success on bail or electronic monitoring are virtually non-existent in the press.
7.16 The most damaging press coverage received by the bail pilots - the relaxation of bail and electronic monitoring requirements so that a young man accused of murder could go on a pre-booked family holiday - arose as a result of the victim's family going to a tabloid newspaper to say how upset they had been by this decision. The pilots could have done without such coverage, which reinforces the already prevalent sense that bail and electronic monitoring are misused (although in this instance the fear of offending on bail was not seen as an issue so much as being 'soft on crime'). Single cases can have a disproportionately negative influence in the press and this must in some significant ways influence the attitudes not only of the public at large, but also the professionals involved, not least because one of the key roles they play is to protect the public. It is perhaps not surprising, therefore, that court-based respondents were sceptical of the ability of electronic monitoring to increase public safety, not least because an accused is still at liberty to offend irrespective of the imposition of an electronically monitored curfew. However, EM bailees and their families were more optimistic that the equipment and movement restrictions encouraged a more law-abiding lifestyle, although it was not possible in the time allowed and with limited access to the relevant databases to systematically monitor or analyse breach rates for those on EM bail compared with those on standard bail. However, the following section concludes on the propensity of the electronic component of EM bail to promote compliance with its conditions.
COMPLIANCE WITH EM BAIL
7.17 Eligible applicants for EM bail have an average of 9 previous offences and a high propensity for bail aggravated offending, and it is perhaps not surprising, therefore, if they fail to comply with one or more of the conditions of EM bail, not least when it tends to be a younger age group that is granted EM bail. In 31 of the 63 completed bail orders, breach proceedings were brought against the accused, in 11 cases for infringement of bail conditions alone, and in 20 cases for charges including alleged new offences. If EM bail targets those who are less likely to comply, because of previous offending and a history of non-compliance with bail orders, then it is likely that breach rates will increase and exacerbate the problem that EM bail was originally trying to resolve, namely, to reduce custodial remands and to protect the public from those who offend on bail. In this regard, it is possible that EM bail orders - or more precisely, the electronic component of such orders - may be setting accused up to fail, since many failures to comply are failures to keep to the electronically precise curfew times or because of tampering with the equipment, issues which would not have arisen were these accused on standard bail conditions. This begs the question as to whether, in effect therefore, EM bail is drawing more people into the vicious cycle of stringent conditions leading to breach procedures leading to custodial remands and further charges. However, without a systematic interrogation of complaint files held in the courts following the outcome of breach proceedings for both the pilot and comparison samples, it is not possible to comment conclusively on the effects of EM bail per se on the likelihood of breach.
THE COMPARISON DATA
7.18 As mentioned above, the comparison sample from Edinburgh, Greenock and Linlithgow Sheriff Courts seemed to have a stronger tendency towards bailing or ordaining accused than their counterparts in the pilot courts. This is somewhat perplexing given that the courts were matched in terms of their use of custody, and the samples were matched on levels of previous and presenting offences. In 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 pilot option, it can only be surmised that there is a different culture amongst sheriffs in the comparison courts, one that prefers to bail or ordain accused pending trial.
7.19 The comparison sample and those refused EM bail in the pilot courts were also deemed to be at an advantage in terms of how long they spent on remand, in the minority of cases where custodial remand was imposed pending trial. For example, EM bailees spent approximately 3 weeks longer awaiting trial than those remanded in custody in the comparison courts, which in itself is not particularly problematic given that the EM bailees are at liberty during that time. But they are disadvantaged in that those remanded in custody pending trial will have those periods on remand taken into account in any final custodial sentence, whereas the period on EM bail is not 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. Given that the comparison court sample was closely matched on demographic and offending history criteria, these findings suggest that it is court practices rather than the accused person's offence or offending history that are the greater influence on trial outcomes.
THE COSTS OF EM BAIL
7.20 This issue of the length of time on EM bail and the length of any custodial sentence has quite striking implications for the cost of EM bail, as was seen in Chapter 6. Only if time spent on EM bail pending trial was taken into account in any subsequent custodial sentence would the costs of EM bail tend to be less than those of custodial remand. The overall cost to agencies per accused on EM bail was estimated at £4,123 as compared to £5,096 per case for those refused bail and remanded in custody. This suggests an expected cost saving of £973 per accused granted EM bail. However, this apparent cost difference does not take into account the differential treatment of time spent in custody during the pre-trial period: for people in custodial remand a subsequent custodial sentence is likely to be backdated to the start of the remand period. There is no equivalent backdating for EM bail cases. When comparing costs between EM bail and custodial remand, such backdating becomes pivotal because, under all assumptions that could be made in this evaluation about the proportion of custodial remand cases that get custodial sentences at final trial diet, the cost ranking is reversed. If, for example, 50 per cent of custodial remand cases are subsequently sentenced to custody, EM bail would be £1,575 more expensive per case. Overall, therefore, it is concluded that EM bail is more expensive than custodial remand.
OVERALL PERCEPTIONS OF EM BAIL
7.21 In terms of the overall credibility and legitimacy of EM bail as perceived by key stakeholders, respondents reported general agreement that the ideas behind EM bail were sound in principle, but there was an undercurrent of anxiety about whether it actually met its objectives in practice. There was an undisputed willingness to make the pilots work - to develop procedures which would make the application for, and the granting, monitoring and termination of EM bail a smooth judicial and administrative process - but there did not appear to be universal confidence in electronic monitoring as a means of constraining accused or reducing offending. The paradox was most marked amongst operational police staff who, on the one hand, were keen for the pilots to work because effective electronic monitoring would make their work supervising bailees arguably much easier, but on the other hand, doubted if EM bail would increase compliance with bail or reduce offending in the majority of cases. In this respect, respondents did not always perceive EM bail as being worthwhile. The greatest degree of scepticism towards EM bail was expressed, not surprisingly perhaps, by those professionals who worked with victims of crime.
7.22 It seems clear that if EM bail is to enjoy credibility and legitimacy with crime victims and the public more widely, then much more constructive and persuasive work needs to be done with victims' advocates and victim support organisations to counter negative impressions. It is a very steep irony that a group who are among the intended beneficiaries of EM bail should also be among its most severe critics. In this regard, it is suggested in Annex 1 that positive stories about community supervision of offenders and accused are needed in the press in order to instil in the public consciousness a sense of rehabilitation rather than punishment and understanding rather than fear. A further forum for such constructive images of electronic monitoring might be an independent website which explained the processes and outcomes of EM bail amongst other criminal justice interventions, which reminded the public about the majority compliance rate with EM bail and its benefits in terms of maintaining family cohesion and social responsibilities.
CONCLUDING REMARKS
7.23 Judged purely in organisational and inter-agency terms, the pilots have been a clear success - respondents indicated that, in general, there was little or nothing that could have been done in order to create better outcomes than those achieved. It was universally agreed by key stakeholders that the pilots were well set up and the guidelines essentially sound. The inter-agency arrangements have worked well strategically to prepare the ground and maintain momentum, and at an operational level have not presented any significant problems. Where problems did arise, procedures were in place to enable agencies to work together to resolve them, most notably through the 3 Local Liaison Groups and the National Steering Group. These groups are considered essential to the ongoing and future success of EM bail in Scotland.
7.24 In the first 16 months of the pilot, applications for EM bail were made in 4.4 per cent of potentially eligible cases, and applications were granted for 116 accused, resulting in a 1.7 per cent reduction of the custodial remand population. This suggests that EM bail is not being seen among sheriffs and others in the criminal justice system as something which can have a significant impact on public safety, reductions in offending, victim protection or reduced incarceration rates. Whilst respondents overall (professionals, bailees and families alike) recounted their positive attitudes towards the principles of EM bail, the key to its success rests predominantly on the shoulders of the judiciary who indicated at interview that they accepted EM bail only as a mechanism which could prove useful in a limited number of cases.
7.25 EM bail has some obvious benefits both to accused and to society. It enables people who would otherwise be remanded in custody (with all the repercussions that that entails) to continue to live in the community with their families and, where appropriate, to continue in employment or to maintain their own tenancies. Given that in this sample alone (albeit numbers are small), 14 per cent of those on EM bail were subsequently found not guilty for the original offence, these benefits to accused and society alike are all the more important to take into consideration.
7.26 This evaluation suggests that the pilots have not fulfilled their aims of either increasing perceptions of public safety or reducing the custodial remand population in any significant way. Nor is EM bail necessarily cost-effective in attempting to fulfil these aims. This report is not saying, however, that EM bail has no value; on the contrary, it has intrinsic value as a means of imposing greater and more verifiable control over a defendant than ordinary bail. In this regard, EM bail can work, not least because individuals pending trial can maintain social commitments and family contacts that they might not otherwise have done if remanded in custody. However, unless a way can be found to make it more cost-effective, it is difficult to make the case for its continuance or expansion.
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