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Bail and Release from Custody (Scotland) Bill: business and regulatory impact assessment

Business and regulatory impact assessment (BRIA) to look at the likely costs, benefits and risks of the Bail and Release from Custody (Scotland) Bill.


Sectors and groups affected

The legislation will affect all organisations involved in the delivery of the criminal justice system including Police Scotland; the Crown Office and Procurator Fiscal Service; the Scottish Courts and Tribunals Service; the Scottish Prison Service; as well as local authorities (Justice Social Work, Housing etc) and third sector organisations responsible for supporting individuals on bail and release from custody, and those supporting victims of crime.

Benefits

Option 1: 'Do nothing'

  • No immediate additional cost to support current and new services
  • No need for existing resources, guidance and/or systems to be updated

Option 2: 'Non –legislative option to encourage change through policy/ funding'

  • No need for additional legislative process

Option 3: 'Introduce a Bail and Release from Custody Bill'

  • Ensure consistency of approach nationally
  • Will drive cultural change
  • Will give Victim Support Organisations rights recognised by law

Costs

Give details of all costs (additional and savings) associated with each option you are considering. This should, where applicable, include non-monetary costs.

Option 1: 'Do nothing'

  • This is likely to have longer term costs associated with increasing prison populations and continued rates of reoffending.
  • The current level of reoffending has significant implications for Scottish society. The total economic and social cost of reoffending in Scotland is estimated at £4 billion a year[2].

Option 2: 'Non–legislative option to encourage change through policy/ funding'

  • There would be costs associated with developing guidance and additional resource would be required to support certain services.

Option 3: 'Introduce a Bail and Release from Custody Bill'

(see table over page)

Organisation / Body

Policy

Costs / Saving

The Scottish Prison Service (SPS)

The overarching policy intent of refocusing the use of custody could encourage greater use of bail in future with reduced use of custody for remand

This may result in a saving for SPS in terms of prison population.

Requiring the court to have regard to time spent on EM bail when sentencing

May lead to some notional savings for SPS if court considers time spent of EM bail applicable to time served when imposing a custodial sentence

Banning of Friday (or day before a public holiday) Liberations

Some minor costs associated with updating IT systems.

Long term prisoners reintegration licence

Some additional costs e.g. guidance and training for SPS staff.

Providing VSOs with information about the release of prisoners

Some initial administrative set-up costs

Local Authorities (incl. Justice Social Work)

Having an enhanced role in respect of informing the court's decision-making on bail

Likely this may result in an increase in costs for local authorities, who receive ring-fenced funding for criminal justice social work.

Banning of Friday (or day before a public holiday) Liberations

Overall this change is likely to bring some long-term efficiency savings as services are able to be provided on a more proactive basis rather than reactive basis.

Placing specific duties on public bodies to engage with pre-release planning

May result in an additional costs (such as staffing) to sufficiently engage in the planning process. The change proposed under this provision will not change the service(s) an individual will require.

Overall this change is likely to bring some long-term efficiency savings as services are able to be provided on a more proactive basis rather than reactive basis.

Long term prisoners reintegration licence

May result in some additional supervision and throughcare provided by justice social work

The Scottish Courts and Tribunals Service (SCTS).

Requiring the court to record the reasons for the bail decision

Will add additional time to the work of the court clerk

Changes to the information the court has to inform their decision-making

May add some limited time to the time taken by the court for bail decisions

Crown Office and Procurator Fiscal Service. (COPFS)

Training and updated guidance will be required as part of implementation of reforms to bail law.

These costs will be minimal with the necessary steps taken as part of the normal arrangements for training and guidance within Crown Office that arise on an ongoing basis.

Other Community Justice Partners as identified in the Community Justice Act 2016 (with some amendments)

Specific duties on these bodies to engage with pre-release planning

May result in an additional costs (such as staffing) to sufficiently engage in the planning process. The change proposed under this provision will not change the service(s) an individual will require.

Overall this change is likely to bring some long-term efficiency savings as services are able to be provided on a more proactive basis rather than reactive basis.

Banning of Friday (or day before a public holiday) Liberations

Overall this change is likely to bring some long-term efficiency savings as services are able to be provided on a more proactive basis rather than reactive basis.

Third Sector throughcare providers

Revising throughcare standards

May have resource implications for third sector organisations delivering this

Victim Support Organisations (VSOs)

Providing VSOs with information about the release of prisoners

May result in additional costs in order to facilitate the processing of this data as well as guidance for staff.

Scottish Administration

Introducing wider power of executive release

Would incur administrative costs if/ when this is used, these would be significantly lower than the administrative costs of creating a new power of executive release when required for each exceptional circumstance

Long term prisoners reintegration licence

Associated costs of electronic monitoring of those released on licence.

Revising throughcare standards

Scottish Government may provide some initial funding to support the establishment of clear throughcare pathways, in line with the standards, in each local authority area.

Police Scotland (PS)

Monitoring adherence to bail conditions is an existing part of Police Scotland's overall responsibilities.

If in the future there are more people on bail and less people on remand, PS will have a continuing and larger role in respect of accused persons and monitoring adherence to bail conditions.

Parole Board for Scotland

Long term prisoners reintegration licence - assessing cases considered for release on a reintegration licence

Costs for training and guidance and assessment of case.

N.B Decision-making will remain with the independent court and so it is not possible to fully cost the impact of bail reforms.

In general terms, it is anticipated that over the longer-term, greater use of non-custodial options within the criminal justice system will lead to reductions in offending and re-offending. Taking a longer term view, it is hoped these positive impacts in terms of offending and re-offending will help reduce levels of crime, future victimisation and ultimately require less criminal justice system time (police, prosecutors and the courts).

Scottish Firms Impact Test

Is this measure likely to impact on international trade and investment?

No.

Given the impact will largely fall on public and third sectors, it was not considered necessary for Scottish Government officials to carry out face to face discussions with businesses about the legislation. The measures are not likely to impact on international trade or investment.

Competition Assessment

The Bill is not expected to have any impact on competition. It will not limit the number or range of suppliers, limit the ability of stakeholders to compete, limit suppliers' incentives to compete vigorously or limit choices and information available to consumers. As such a competition assessment has not been completed.

Consumer Assessment

The Bill will have no negative impact on consumers. Following implementation, local authorities and the third sector will likely see an increase in the number of cases they handle, however they will receive appropriate funding to offset this increase. The Consumer and Competition Policy Unit have reviewed this BRIA and confirmed they anticipate no direct impact on the availability/price of goods and services etc.

Test run of business forms

The Scottish Government considers that it could be beneficial for a standard form to be developed to enable Victim Support Organisations (VSOs) to request information about a prisoner's release from SPS. The Scottish Government is committed to developing that form in collaboration with VSOs and the SPS to support the successful implementation of this aspect of this Bill. It also expects conversations about this form to include discussion on the benefits of agreeing its terms in any data sharing agreement or other document required to support the sharing of information about a prisoner's release.

Digital Impact Test

The Bill has no provisions specifically relating to digital/online content. There is no evidence that the provisions will have a disproportionate impact either on offline or on-line businesses.

The Bill has provisions which relates to the sharing of information. Both in terms of the bail decision, pre-release planning duty and sharing release information with VSOs.

The Digital Economy Team were contacted and agree with our assessment.

Legal Aid Impact Test

This section has been discussed with colleagues in the Scottish Government's Access to Justice team who are content that the legal aid implications have been given due consideration.

While the bail measures in the bail refocus the legal framework in which bail decisions are made, the proposed legislation will not add new substantive procedures or rights of appeal to a court or tribunal which may lead people to consult a solicitor in addition to the core points at which accused persons currently seek legal advice or representation when entering the criminal justice process. No new court hearings are required through the provisions.

Accordingly, the measures in the Bill are not expected to increase the number of people granted criminal legal aid and issued with a legal aid certificate and there is therefore no anticipated impact on legal aid.

Enforcement, sanctions and monitoring

The Bill will make changes to primary legislation governing the operation of the Scottish criminal justice system, including the courts, the police and COPFS. This will then be enforced by the police, courts and COPFS as part of their operating functions.

Implementation and delivery plan

The Scottish Government intends to take forward this legislation in the current Parliamentary Session. If passed, it is expected implementation will begin from 2024- 2025 at the earliest.

A review of the legislation will be carried within 10 years of the Bill coming into effect.

Summary and recommendation

Option 3 is recommended: to introduce a Bail and Release from Custody Bill.

Summary costs and benefits table

Option

Total benefit per annum:

- economic, environmental, social

Total cost per annum:

- economic, environmental, social

- policy and administrative

1. Do Nothing

  • No need for existing resources, guidance and/or systems to be updated
  • Funding would be maintained at current level

2. Non-legislative route (policy only)

  • No need for additional legislative process
  • There would be costs associated with developing guidance and additional resource would be required to support certain services.

3. Introduce Bill

  • Ensure consistency of approach nationally
  • Will drive cultural change
  • Will give Victim Support Organisations rights recognised by law.
  • Likely additional costs and workload for JSW.
  • Some additional cost for the court to record reasoning for bail decision
  • Some Placing specific duties additional time and staffing required from public bodies engaging in pre-release planning.

Contact

Email: futureofcustody@gov.scot

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