In December 2009, the Scottish Government commissioned independent research to explore the impact of bail reforms on summary justice reform (SJR), the findings of which are presented here.
Although changes to bail were not originally part of SJR, they occurred at around the same time, and their aims and objectives were regarded as having the potential to impact on the achievement of the objectives of SJR. With this in mind, the purpose of this research was not to evaluate the bail reforms directly, but to determine the impact of the bail reforms on SJR as well as on the summary justice system more generally.
Aims and Objectives
The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 brought forward reforms to the operation of the bail and remand system in Scotland. The main purpose of the 2007 Act was to codify, clarify and strengthen the existing law on bail in order to bring about increased transparency and improved consistency in bail decisions. The Act did not change the fundamental aspects of bail such as the presumption in favour of bail, the circumstances in which bail may be refused, and the considerations that the court will consider in determining bail.
The Act did, however, introduce a number of specific changes, these being:
- to increase the maximum penalties for breach of bail conditions so that tougher action could be taken against those who breach their bail;
- to ensure that bail decisions were entirely a matter for the court to make, even where the Crown did not oppose bail - this was a reversal of the previous position where if the Crown did not oppose bail then it was granted by the court;
- to ensure the court gave reasons for all bail decisions so that the process for judges granting or refusing bail was more transparent; and
- to tighten the process for granting bail for the most serious cases.
There were three specific objectives for the evaluation in relation to the reforms to bail, these being to explore if the reforms to bail had contributed to:
- reduced instances of breach of bail conditions (especially failure to appear) from pre-reform levels1;
- making bail decisions more transparent and consistent; and
- ensuring that accused are given an ordinary language explanation of the conditions of bail and the consequences of breaching bail.
It was against these three specific criteria that the evaluation of the impact of the bail reforms was carried out.
A combination of methods were used to collect data to inform the evaluation including analysis of performance data, collection of primary qualitative data from interviews with a number of stakeholders and direct observation of proceedings in court on days and in sessions where bail orders were granted. Interviewees included Judges, Sheriffs, Justices of the Peace (JPs), Procurators Fiscal, defence agents and the police. A short face-to-face survey of accused who had previously been given bail orders was also carried out at a number of court sites in selected case study areas.
Unlike many of the other parts of summary justice reform, such as those to direct measures, legal aid, disclosure, undertakings and lay justice, the bail reforms also applied to solemn cases (i.e. those heard before a sheriff and jury if the case goes to trial, or in the High court). As a result, attempts were made to canvass the views of a small number of victims in solemn cases who had been involved in (now closed) cases where the accused had been given bail. Short one-to-one interviews were carried out with victims, and the data was considered alongside data generated from victims involved in summary cases (reported separately as part of the SJR Victims, Witnesses and Public Perceptions evaluation2). This aside, the main focus of the evaluation was on summary business.
Bail orders and use of special conditions
The number of bail orders made by the Scottish courts has fallen year on year since 2006/07. This drop mirrors an overall drop in the numbers of persons proceeded against in court, which was also at its lowest in 2010/11 since 2002/03. Although differences in the way that data is recorded means that it is not possible to say precisely whether the proportionate use of bail orders has varied over time, the data strongly indicates that the decrease in bail orders may simply reflect a corresponding drop in recorded crime and lower numbers of cases coming to court overall. The trends in the data therefore suggest that the proportionate use may be unchanged and this is not unexpected since the reforms to bail did not seek to increase or decrease bail per se.
The majority of bail recipients receive only one bail order in a year, with one in four having been released on bail on more than two occasions in the same year. This percentage has remained relatively steady over time, confirming the static level, pre and post-reform, of the judiciary granting bail to those who have already previously been released on bail.
The main offences for which bail orders have been granted are crimes of dishonesty, common assault and breach of the peace. There has been no real change in the types of charge for which orders are granted post-reform which is perhaps not surprising, since this was not something that the reforms sought to change.
On average, just over half of all bail orders had special conditions attached. The lack of pre-reform data, however, means that it is not possible to say if there was an immediate impact of the reforms on use of special conditions. Interview data suggested that the judiciary is making noticeably more use of special conditions over time, and this is something that the Procurators Fiscal interviewed welcomed.
Compliance with bail
The numbers of convictions for breach of bail overall (including both summary and solemn cases) have increased quite notably over time. Possible reasons for this include the use of special conditions, police and the courts having a 'tougher' attitude to breach, or a core of accused not taking bail seriously. This means that the policy objective of reducing the extent to which bail is breached by the accused does not, prima facie, appear to have been met. With the numbers of bail orders falling overall, and breaches not showing a corresponding downward trend, it appears that proportionately bail breaches have gone up. Due to differences in data recording for these two measures, it was not possible to say conclusively if this was the case.
The police, defence agents and Procurators Fiscal who were interviewed generally perceived that there had been no real decrease in the numbers of bail breaches that they were witnessing, in particular for orders with a curfew attached. This point was also made by a number of the accused who were interviewed.
When looking at breaches for failure to appear (FTA) separately from other types of breach however, it shows that there has been a drop in the numbers of people failing to appear (FTA) at the intermediate, trial and sentencing diet since the reforms were implemented (in summary cases). This improvement in FTA figures may be considered as a positive contributor to the wider SJR objectives - not only of improved court efficiency and effectiveness, but also in the reduction in inconvenience or time wasted by victims and witnesses in attending court.
The data for summary and solemn cases show that most failures to appear are dealt with by way of a monetary penalty (i.e. a fine) with fewer attracting community or custodial sentences. Although the number of custodial and community sentences has remained fairly steady post-reform, with only a slight recent lowering of numbers, there has been quite a noticeable increase in the numbers of FTAs dealt with by way of monetary and other penalties (though overall numbers are still low).
Procurators Fiscal and defence agents were of the view that harsher sentencing was being applied to breach of bail orders and conditions overall, with both groups of interviewees perceiving that custodial sentences were being used more often for breach of bail post-reform. Quantitative data also show that breach of bail is being treated more seriously post-reform to a degree, with increased custodial sentence lengths being applied (mainly for non FTA breach), and an attitude of non-tolerance of repeat breaches of bail among the judiciary.
Bail appeals and the bail appeal process
Quantitative data showed that there was considerable fluctuation in the number of bail appeals over time. The data also show that the majority of bail appeal applications are refused, and there has been no real change in that situation in recent years.
Changes to the bail appeals process, in terms of the obligation of the court to provide verbal explanations to the accused and written explanations to the appellate court, were perceived to have had only a small impact on operational practice with Sheriffs and JPs commenting only that there is now slightly more paperwork to do.
Although procedurally the bail appeal system was perceived by professional stakeholders to be fairer now that written explanations were required, Sheriffs explained that they were reliant on happenstance to know the outcome of appeals and disappointment was expressed about the lack of feedback regarding bail appeals.
Views of victims and the accused
While most accused who were surveyed generally understood why they had received a bail order, those who were less habitual offenders commented that they found the system as whole, including the explanation of bail and its conditions, difficult to understand and often had to rely heavily on their defence agent to explain where they were supposed to go and what they were supposed to do and when (both at court and after their court appearance on bail). Whilst defence agents were not unwilling to provide this additional support, and recognised their responsibilities to do so, there was some suggestion from accused and defence agents that the level of information still being sought by accused after their court appearance was quite notable. Given that the statutory responsibility sits with the judiciary to provide explanations regarding bail and bail conditions, and that the judiciary reported that such explanations were being given, it perhaps suggests a mismatch in what is deemed to be 'ordinary language' and understandable between judiciary and accused. That said, it was also recognised that, for some, even greater clarity in the explanations would not necessarily result in all accused paying attention, understanding and remembering explanations given in court and thus the demand would still be placed on defence agents.
The accused group interviewed reported that they found some conditions (e.g. curfews) more challenging to comply with than other conditions (such as not to approach a particular person) and considered that they would be more likely to breach these stringent conditions.
For the most part, accused were aware of the severity with which breach of bail was treated and considered this to be important in their decision not to breach their order. This was mostly the case for those who were not repeat offenders. Repeat offenders were also aware of the gravity of breaching bail conditions but some advised that this was less likely to deter them.
Therefore, while the reformed bail system does go some way to deter a large number of accused from breaching the conditions of their bail, mostly due to their fear of being remanded if they were detected and arrested, this may not be enough to deter some repeat offenders from offending whilst on bail, and it appears that something else would be required to tackle this group of persistent offenders.
Impact on workloads and overlaps with wider SJR
For the police, the reforms to bail were seen to have had a negligible impact on their operational role and most commented that they had been more directly affected by changes to undertakings. Police did comment that they welcomed the opportunity to play a greater role in decision making regarding bail, by providing more detailed reports to the court ahead of court hearings with regards to the accused.
On practice in court, Procurators Fiscal noted that post-reform, more Sheriffs were asking them to explain further, or to clarify, their reasons for opposing bail, which many noted was the main difference in the courtroom. This suggests that the changes to the Act in this regard are being realised in practice.
Fair to victims, witnesses and the accused
Professional interviewees were of the view that, as the bail procedures are set out in a more standardised way post-reform, this brings about fairness to all those involved in the justice system, with bail decisions based on evidence and justified in an open courtroom. In this way, the specific policy objective of increased transparency and consistency that applied to bail may have contributed to the wider SJR objective of a system that is perceived as fair to all those involved.
Effective in deterring, punishing, and helping to rehabilitate offenders
Overall, qualitative evidence from the evaluation seems to suggest that bail orders are not being taken any more seriously by accused post-reform. With a core of accused receiving two or more bail orders in the course of a year (around 1 in 4) and with breach rates showing an upward trend, this suggests that reforms are not necessarily contributing to reduced re-offending.
Efficient in the use of time and resources
One of the issues emerging from this evaluation is that, while it was always known that Sheriffs offering a full explanation of the bail order and conditions in court would be time consuming, the actual time was even greater than originally anticipated among those interviewed. Sheriffs and defence agents alike commented that it can be very time consuming, especially if there are special conditions attached. This said, it was accepted that it was necessary as part of the legislation and that it was valuable in cases where the accused heard and understood what was expected of them.
More generally, all interviewees (professional stakeholders as well as victims and accused) felt that there were often delays in the summary justice system in terms of adjournments due to FTA, although equated these more to the system overall rather than the reforms to bail specifically.
Quick and simple in delivery
The reforms to bail were not intended to improve the speed or simplicity of the system, other than in the provision of ordinary language explanation to accused (as discussed above). Overall, interviews revealed no suggestions for how the process of bail could be quicker in delivery, other than removing the need for lengthy explanations of special conditions during court time. Overall, therefore, it seems that the bail process, in itself, is not negatively impacting on the objectives of SJR other than, perhaps, continued waste of court time resulting from adjournments due to the failure of the accused to appear at court and time required to deal with breach of bail conditions.
Meeting the Bail Reform and Wider SJR objectives
The first specific objective of this evaluation was to explore if there had been a reduction in instances of breach of bail conditions (especially failure to appear) from pre-reform levels. The numerical data analysis suggests that non-FTA breach rates have, in fact, increased post-reform. There was generally a perception among interviewees, particularly the police, that breach rates were still high. Furthermore, the use of special conditions may be a factor affecting breach rates, especially where such conditions are proactively policed. This was highlighted in particular by defence agents as well as some accused who were interviewed who found their conditions to be unreasonable and challenging to adhere to.
When looking solely at failure to appear, rates have dropped slightly over time. It may be that reduced instances of FTA are linked to the general downward trend in cases coming to court (although this same argument cannot be applied to breach rates overall, since they have increased). If there has been a proportional drop in FTA, it may be argued that this, in part, is contributing to the wider SJR objective of more effective court hearings. That said, from the data available, it is not possible to say if this can be directly attributed to the reforms to bail.
The second objective of the evaluation was to explore whether and to what extent bail decisions are more transparent and consistent post-reform. Although there is no specific KPI data that can be used to measure progress against the objective, interviews with the judiciary suggest that they are accepting of the need to provide more detailed verbal explanations and written reports regarding bail decisions but that there may be room for further consistency in decision making.
The third specific objective for this evaluation was to explore whether the reforms had ensured that accused are given an ordinary language explanation of the conditions of bail and the consequences of breaching bail. Again, there is no quantitative data available with which to measure progress against this objective, but feedback from interviews does suggest that explanations are being given. That being said, interview data also shows that while some habitual offenders are clear on their conditions of bail, some first time accused report not fully understanding their conditions of bail. This perhaps suggests that more can be done to improve the quality and clarity of these explanations.
Messages for policy
Some defence agents are still undertaking a notable role in providing explanations to accused regarding their bail and bail conditions. Although this complements the work of the judiciary, and legal advice is a fundamental requirement of defence agents, the extent to which accused are relying on defence agents instead of listening to and understanding the judiciary in court may suggest that there is some scope to further improve the way in which explanations are communicated in court.
Many repeat attendees at court (including repeat offenders) are familiar with bail conditions and the consequences of breach, however, the current system of providing 'ordinary language' explanations in court does not seem to be offering the level of clarity required for those who have not had previous involvement in the court system. These accused welcomed the prospect of more targeted information, that would provide a greater understanding of the summary justice system and restrictions placed upon them, which may also make the system more efficient and effective. This information seems to be required about the system as a whole, not just about bail.
Although, procedurally, changes to the bail appeal system are welcomed as an improvement towards system transparency, it seems that there may be scope to further improve this specific component of the bail system by ensuring that members of the judiciary receive feedback on the quality and usefulness of the reports that they prepare. This feedback may allow for further improvements to be made such that these reports operate to their maximum utility.
Police, the judiciary, Procurators Fiscal, defence agents and victims all shared a view that, for some accused, bail conditions would always be breached and would never be taken seriously. This view was also reflected in some interviews with accused, primarily those who were repeat offenders. This suggests that there may be a need for different strategies for dealing with repeat offenders other than those already set out.
Finally, it seems that, in some cases, the use of special conditions attached to bail may not be working to improve system efficiencies. Special conditions are undoubtedly valuable in cases where the accused would otherwise have been remanded, affording a greater degree of control over the behaviour of the accused, as well as providing a valuable victim, witness and public protection and reassurance tool. In cases where special conditions are ignored or prove too challenging, however, it may be generating an increased court workload which might otherwise have been avoided had alternative decisions to bail been used (including custody, standard conditions, supervised bail, or being released without bail conditions to await citation). It seems, therefore, that the use of special conditions in some cases may be causing tension between efficiency and public protection. The overriding message appears to be that special conditions need to be carefully considered and be relevant and proportionate to the specific case.
In sum, the research has shown that the reforms to bail have not impacted greatly on its use. Although there have been fewer orders granted, that may reflect wider summary justice system changes as well as a drop in court workloads per se. Convictions for breach have increased overall, contrary to the aim of the reforms to reduce breach. This perhaps suggests that bail is not being taken seriously by accused, though it may also reflect a tougher approach to breach on the part of justice professionals. There has, however, been some reduction in failure to appear, though it is unclear if this numerical drop represents a proportional drop.
There is some scepticism regarding the effectiveness of special conditions, especially in light of a core of accused who continue to breach standard and/or special conditions regardless of the perceived consequences. The value of special conditions in appropriate cases is, however, still recognised. Treating breach of bail seriously is also prominent in the minds of the judiciary and appears to be occurring in practice. The provision of ordinary language explanations does appear to be taking place, but does not appear to be translating into full understanding of bail and bail conditions among all accused and there may be scope for greater clarity here. The increased transparency in the bail appeals system is, however, being perceived as a system improvement among professionals. Overall, while almost all of those interviewed viewed the current system of bail as fair, they questioned its effectiveness, especially in terms of deterring future breach amongst repeat offenders.