Bail and Remand The Scottish Executive Action Plan

The Scottish Executive Action Plan

Crown copyright 2005 ISBN: 0-7559-4852-1 Scottish Executive St Andrew's House Edinburgh EH1 3DG Produced for the Scottish Executive by Astron B43468 9/05 Published by the Scottish Executive, September, 2005 100% of this document is printed on recycled paper and is 100% recyclable.

Ministerial Foreword I am determined that Scotland has a bail and remand framework that is fair, easy to understand and effective in reducing reoffending. Our new action plan will achieve this. It will improve public safety while respecting the rights of an accused individual. These new actions form part of our vision for radical reform of the criminal justice system, which was set out last year in the Criminal Justice Plan. Reform at every level to build a stronger, safer Scotland. Our justice system must deter reoffending by responding quickly and robustly when an offence is committed. Every criminal justice agency must work together effectively in the interests of safer communities, preventing crime, dealing more quickly with cases coming to court, and more effectively managing sentenced offenders This action plan is the next key step in delivering the criminal justice system that Scotland s people deserve. We asked the Sentencing Commission to report on the use of bail and remand, because we shared public concern that this part of the system should be tougher and more transparent. The action on bail and remand that we will take has been informed by their work. Scottish Ministers are determined to: Tighten the process of granting bail; Ensure that the court gives reasons for all bail decisions; Make new provision for drug testing and treatment as a condition of bail; and Ensure that breach of bail is dealt with robustly. All bail decisions are currently taken by the courts. This will continue because only the courts can take account of all the circumstances in each individual case. However, Ministers clearly have the responsibility to propose a legislative framework within which the courts should operate. We will improve public safety at all levels and this plan is one part of our wider work on improving the criminal justice services. It builds on work already underway to tackle the anti social behaviour, disorder and persistent offending which has plagued too many communities for too long. Recently, concern has grown about aspects of the bail system in relation to people accused of sexual crimes and also in relation to convicted sex offenders. The action set i

out in our plan will strengthen the bail system as a whole. But we are also putting in place new measures for managing high risk offenders, particularly sex offenders. More respect for bail and getting cases to court more quickly will reduce the number of offences committed on bail. Our action will help to protect communities from the types of crime, like theft, car crime, and vandalism, that far too many people experience far too often. This plan sends out a clear message that abuses of the bail system will not be tolerated. That bail decisions will be more transparent and that bail breaches will be punished much more firmly. That we will improve public safety and build the safer communities that the people of Scotland deserve. Cathy Jamieson MSP Minister for Justice ii

A Plan for Action on Bail and Remand 1. Already the devolved government of Scotland has acted to support stronger and safer communities. We have legislated to tackle anti-social behaviour. We are introducing new measures to deal with knife crime. We are reforming our justice services to bring offenders to court more quickly, to provide better support for victims of crime and to rehabilitate offenders more effectively. We know that combining reforms of the justice service with new powers for the police, the courts and councils can all help to meet our ambition of building and safeguarding community confidence. 2. And we also know that further, deeper change is required if we are to strengthen public confidence in the justice service as a whole. One aspect that required urgent attention and action was the system of bail and remand. The Sentencing Commission Report on Bail and Remand 3. In 2003 we established the Sentencing Commission. The Commission consists of experts in the legal field and people who are involved with managing offenders and supporting victims. Its task is to advise Ministers on further improvements that could be made in some areas of the criminal justice system. We specifically asked the Commission to examine the use of bail and remand as a first priority. 4. The Commission produced a consultation paper in June 2004 and published its report on the use of bail and remand in April 2005. 5. We are most grateful to the Commission for its detailed work on this difficult topic. The proposals which follow are based on its work, and address the key issues that it identified. The Commission made 38 recommendations to the Executive, the Lord Advocate in his separate role as head of the independent prosecution service and the judiciary. They sought to reduce breach of bail, promote more consistent decision making on bail and improve public confidence in the system. The Commission also stressed the importance of improving the overall speed and efficiency of the criminal justice system at all levels. 6. Ministers and the Lord Advocate have accepted most of the recommendations made to them, and they are now reflected in the Action Plan attached. Others are for the judiciary to consider. 7. Scottish Ministers will also make additional changes which go beyond the Sentencing Commission recommendations to address issues of particular public concern. So we will include in legislation sets of circumstances which will count against the grant of bail for serious repeat offenders. And to help break the cycle of drug related reoffending we will introduce the option of drug testing and treatment as a condition of bail. Creating Confidence in our Justice Services: Reform and Improvement. 8. We agree with the Sentencing Commission that you cannot improve the way in which bail operates without improving the criminal justice system as a whole. 9. So this plan is closely linked both to the Criminal Justice Plan and to our recent proposals contained in Smarter Justice, Safer Communities, Summary Justice Reform Next 1

Steps 1. We want to improve the way in which offences are handled through the non-jury courts. Offences dealt with in the summary justice system represent 96% of all cases prosecuted in Scotland. The frequency and volume of these offences mean that overall they have a serious impact on our communities, particularly our most deprived communities. If we deal with these offences more effectively and visibly, then public confidence in the wider criminal justice system improves. 10. When cases come to court quickly and hearings go ahead as planned, the opportunity to offend on bail is reduced. So too is any incentive for some accused to think that delays will allow them to get away with it if they breach the terms of bail. 11. The proposals set out in the Next Steps paper will be implemented partly through legislation and partly through shared action by the agencies involved in case handling. 12. We have reformed the operation of the High Court, and victims and witnesses are already seeing substantial benefits. We have invested heavily in enhancing the capacity of the fiscal service and of the police. We will now build on that investment and on our experience of successful reform to deliver change across the summary justice system, for a tighter, faster system within which bail works better. Transparency 13. The courts must continue to take the bail decision in each case based on a consideration of all the facts. But Scottish Ministers have a responsibility to propose a clear legislative framework for bail decisions. 14. So we will put on the face of the law the criteria for the bail decision. We recognise that there is a presumption in favour of bail unless there are good reasons of public policy for refusing it. The European Court of Human Rights has recognised a number of reasons which may make it appropriate to refuse bail, which relate to the risk that the accused, if released, would: Fail to appear for trial; Take action to prejudice the administration of justice; Re-offend; or Create a risk of public disorder. We will illustrate the matters which the court could take into account when assessing whether these reasons exist for example, the circumstances of the offence and the accused s history of convictions, background and circumstances. 15. But there will be no erosion of the court s right to take all the facts and circumstances into account and to take the final decision to bail or remand in every case. 1 Available at http://www.scotland.gov.uk/library5/justice/sjrns-00.asp 2

16. We also intend to go further than the Sentencing Commission in setting out a number of specific sets of circumstances where someone on a serious sexual, violent or drug trafficking charge has a track record of conviction for related serious offences which will count against the grant of bail. 17. At present it is sometimes difficult for the public to understand why bail decisions are taken. Reasons for grant or refusal are not always given, and there is no clear statutory framework set out in Scots law. Our proposals will ensure clarity and transparency about the basis of decision making. We will set out the criteria for bail and judges will have to give reasons in court for each bail decision that they take. 18. In addition to the legislation which we propose, the Lord Advocate has indicated that he will issue updated guidance on bail to the Procurator Fiscal and the police. This will emphasise the priority which he attaches to dealing with breaches of bail. Fair to victims as well as accused 19. The Sentencing Commission has emphasised the importance of an approach that respects the rights of society and the rights of the accused. We agree that bail decisions must be fair for the accused, but also fair for victims. 20. And we want tougher options for supervision of offenders and greater sanctions against those who wilfully breach their bail. But we also need to support those who will benefit from help to break their cycle of offending. 21. We are reviewing the options for supervision on bail. Courts can already impose special bail conditions, including compelling an accused person s active co-operation and regular contact with the authorities. This can involve, for instance, regular reporting at a police station. 22. In early 2005, we strengthened the powers of judges and sheriffs in certain courts to ensure that those individuals accused of the very serious crimes of murder and rape who would be bailed can be electronically tagged while on bail. This is an additional measure to protect the public. In addition, the pilots allow individuals who have been refused bail to be able to apply for bail with the imposition of electronic monitoring as a means of ensuring compliance with other bail conditions. This is designed to allow courts to use electronic monitoring for accused who would usually be remanded in jail but offer very little risk to society. The new provisions are being piloted in four locations the High Court in Glasgow and the Sheriff Courts in Glasgow, Kilmarnock and Stirling. 23. We will look carefully at the experience from these pilots when we come to deciding whether to enable more courts to impose electronic monitoring as a condition of bail and whether to extend the range of crimes or circumstances where it would be appropriate to use it. 24. We also want to provide opportunities for accused individuals, and offenders who misuse drugs, to engage with treatment services at all stages of the criminal justice system. For example, we are introducing provisions for the mandatory testing for Class A drugs of those arrested for certain trigger offences, specifically offences of theft and under the Misuse 3

of Drugs Act. The results of that mandatory test can be taken into account by the court in taking a decision on bail. 25. A significant amount of theft to fund a drugs habit is committed on bail. Drug use not only drives criminal activity, but makes it hard for individuals to change. For courts dealing with a high incidence of drug related crime, we will introduce an option of imposing drug treatment and testing as an additional specific condition of bail. 26. We will also take breach of bail seriously. A decision to grant bail is not merely a piece of court routine. It involves placing an individual in a position of trust. Respect for bail is critical and any breach of the system must therefore be properly punished. 27. Our package focuses on this in a number of ways; judges will underline the terms on which bail is first granted to accused, and will be able to impose a higher sentence when breach of bail comes before them. We will increase the maximum custodial penalty for failure to appear in a sheriff summary case from 3 to 12 months. This part of the sentence will have to be served after any other custodial sentence given, rather than at the same time as the main sentence. Where an offence is committed while on bail, the court will have to be explicit about whether it is giving an increased sentence in recognition of that breach of trust and if not, why not. We have already announced that we propose to legislate for trial in absence in summary cases where someone fails without reasonable excuse to attend and the court decides that it would be in the interests of justice to proceed. 28. Our goal is clear. A tougher response to those who flout bail, but support for those willing to break the cycle of offending. Both targeted on the reduction of reoffending. Wider action on high risk offenders. 29. We recognise and share public concern that the system should take effective action to minimise the risk posed to society by certain serious offences. Taking action on bail is only part of our work on high risk offenders. 30. A major additional programme of work is already underway to reduce the risk to society from serious sexual offenders in particular. We have already set up the Risk Management Authority and are introducing Orders for Lifelong Restriction, which mean what they say lifelong supervision for those who pose the highest risk. We have put forward changes to the law which will end the unrestricted early release of sex offenders sentenced to six months or more. Provisions in the Management of Offenders Bill underpin our commitment to joint working and information sharing between agencies in the interests of public safety. And we are investing heavily in better tools for risk assessment. We are also preparing a national strategy on the housing of sexual offenders. 31. We keep the operation of the sex offender notification scheme under constant review, and tightened the legislation in 2003. Earlier this year we commissioned an independent review of the scheme s operation, and will be announcing our response shortly. 4

The importance of change 32. This Action Plan reflects our awareness of the importance and need for change in the area of bail and remand. A change in the framework for bail, but above all a change in the expectations of all those involved. Accused need to know that breach of bail will have serious consequences. Victims and witnesses need to know that they will not be harassed by the accused while on bail, and that their case will come to court quickly and not be adjourned. Professionals need to be clear that responding quickly to breach of bail is a priority for the system, and that joint working to achieve that is critical. 33. We are not complacent about the current system. While risk can never entirely be eliminated, we must continue to work to reduce it. As an Executive we are committed to change in this critical area, in the interests of the people of Scotland. 5

SECTION B WHAT WE WILL DO OUR 25 POINT PLAN OF ACTION To ensure better initial targeting of bail and remand, we will; Place on the face of the law a full statement of the criteria for the decision on bail; Set out in the law the following factors counting against the grant of bail ; o Accused is charged under solemn procedure with a violent or sexual offence (excluding prostitution) and has any previous solemn conviction for a violent or sexual offence; and o Accused is charged under solemn procedure with an offence of drug trafficking and has any previous solemn conviction for drug trafficking. Undertake a longer term programme of work to include more sophisticated research on risk factors for reoffending on bail, leading to better indicators for the court to use in the decision making process. To ensure more consistent and transparent decision making on bail we will; Provide in legislation for oral reasons to be given in court for decisions on grant of bail; Provide for reasons also to be given by the court in relation to bail appeals and reviews; Ensure that when an appeal is lodged against a bail decision the court provides reasons for the decision in writing to the Appeal Court; and Ensure that more consistent and comprehensive information relevant to the bail decision is provided to the fiscal in the police report. To make it clear to the accused that bail must not be abused, we will; Ensure that each accused given bail has the bail conditions which apply and the consequences of breach clearly spelled out to them; 6

Ensure that individuals leaving custody are given written confirmation of the date of their next hearing; and Tighten up the standard conditions of bail by spelling out; o The responsibility of the accused to seek the court s consent to any change of the address to which court papers are sent; and; o The fact that the standard condition of bail prohibiting interference with witnesses also covers any form of intimidation or abuse of victims or witnesses. To reduce the scope to reoffend on bail, we will; Take less serious cases out of court through an enhanced range of alternatives to prosecution, while maintaining court capacity through retaining the lay justice courts result, more court slots to deal more quickly with business sufficiently serious to require prosecution; Introduce powers for the police to impose bail conditions when they release an accused on an undertaking to appear in court on a particular day so that accused come to court more quickly and a tighter framework is set for their behaviour up to their first court appearance; Ensure that where possible transfer of information and material from one partner to another in the system is handled electronically, in the interests of greater speed and accuracy; Redesign the court process and the legal aid incentives and underline the availability of sentence discount for early pleas, to remove the current incentive to delay a guilty plea till the last moment; and Disclose prosecution material earlier to the defence to help with the agreement of evidence and earlier resolution of the case. To ensure a speedier and more robust approach to breach of bail, we will; Streamline the process by which breach is reported and processed; Increase the sentence available for failure to appear in a sheriff summary court while on bail from 3 to 12 months; Ensure that; 7

o Where a judge imposes an aggravated sentence for an offence committed while on bail he or she always states the extent of the aggravation; o Where a judge chooses not to aggravate a sentence for an offence committed on bail; he or she must say why they have not imposed an increased sentence to reflect the breach of trust involved; and o Where a judge is sentencing following conviction for failure to appear, or breach of a bail condition, any custodial sentence imposed must be served after (not at the same time as) any other custodial sentence imposed for another charge on the complaint or indictment. As already announced in Smarter Justice, Safer Communities, introduce provision for summary trial in absence where an accused fails without good reason to appear and the court considers that it would be in the interests of justice to continue with the case. To ensure that those on bail can be supervised effectively and can access treatment when they need it, we will build on the framework already in place, which includes: Funding of bail information and supervision provided by local authorities and voluntary agencies; Support for the 218 centre for women in Glasgow providing an alternative to custody for the most vulnerable and chaotic women; Funding of offender accommodation, some of which provides beds for those released on bail; and Piloting of electronic monitoring on bail. By; Reviewing the current bail information and supervision schemes to identify the most successful features and to inform judgements about future funding; and Piloting the option for courts of imposing drug treatment and testing as an additional specific condition of bail. 8