Bail and Release from Custody (Scotland) Bill: children's rights and wellbeing impact assessment

2. What impact will your policy/measure have on children’s rights?

Summary

The Bail and Release from Custody (Scotland) Bill responds to the Programme for Government commitment to refocus how custody is used, reserving it for where a risk of serious harm has been identified. Alongside the Bill, enhanced community justice services will be supporting diversion from prosecution, alternatives to remand, and community sentencing. The Bill aims to refocus the way in which custody is used in Scotland when a person first enters the criminal justice process. It aims to reserve remand for those who pose a risk of serious harm, while providing more person centred, holistic support in the community for those on bail and upon release from custody.

The Bill contributes to the National Outcome, “We live in communities that are inclusive, empowered, resilient and safe”. This legislation provides some opportunity for alignment with the incorporation of the UNCRC into the decision making framework of the courts when considering bail and when planning for the release of people from custody (both parents and young people).

This legislation does not contain specific provisions relating to CYP who come into contact with the justice system. For example, if a child or young person is held on remand or in prison custody this Bill will not impact where they are held. A separate Scottish Government consultation has begun, which focuses on issues specific to CYP, including where they are held in custody.

While there is no specific provision in the Bill focused entirely on CYP, the legislation within the Bill will impact (directly and indirectly) on CYP as outlined below.

Direct Impacts for CYP accused of an offence -

Summary - The decision on whether an accused person is bailed or remanded in custody is made by the independent courts. The measures in the Bill propose adjustments to the legal framework applying to all those accused of offences, including CYP, within which courts make decisions on the question of bail. The effect of the changes is that any decision to refuse bail must, with some limited exceptions, be justified on public safety grounds. In addition, it is proposed that additional information should be available to the court to inform the bail decision, as a result of enhanced involvement by Justice Social Work (JSW). Where a court refuses bail, it will be required to record explanations for that decision, including why the use of electronic monitoring (EM) as a means of the accused remaining in the community was not appropriate.

Whilst decision-making will remain with the independent court in individual cases, the intention of the legislation relating to the bail decision is anticipated to have an overall positive impact on the rights of CYP.

Detail - The criminal justice system can make decisions that mean people accused of criminal offences are removed from their home and community and held in custody (held on remand). The changes implemented through this legislation will look at when a person accused of an offence is initially considered for bail or remand (the bail decision).

When making the bail decision, the need to protect public safety, with some exceptions, will become a required ground to justify the refusal of bail. Additional information will be available to the court to inform the bail decision, as a result of enhanced involvement by JSW. The way in which decision-making will be carried out under a reformed legal framework is that a risk of serious harm will be required to justify remand. This is likely to impact CYP in a positive way, meaning they are less frequently removed from their family and community (UNCRC Article 37(b)).

Separate from the reforms to the bail legal framework, the independent court will be subject to the UNCRC requirements. This includes article 3 relating to the primary consideration being given to the best interests of the CYP in decision-making.

Where a court refuses bail, it will be required to record explanations for that decision, including why the use of electronic monitoring (EM) as a means of the accused remaining in the community, was not appropriate. If EM bail is granted during the bail decision then time spent on EM curfew may be relevant for time spent in custody upon sentencing. These changes have the potential to help increase the understanding of why bail may not be granted and emphasise the gravity of a decision to remand in any given case.

On 16 May 2022 there were 10 under 18s in prison custody, 8 of which were held on remand. There were 694 16-25s of which 306 (44%) are held on remand. While the overall number of CYP in custody is much lower than in the past, the number of young people on remand remains high as a proportion of those in custody. In 2011-12, the average daily population of under 18s was around 126, with around 50 (40%) held on remand. The average daily population of 16-25s was around 2,074, with around 503 (24%) held on remand.^[2]

Young people are more likely to experience barriers to complying with their bail conditions, which could act as alternatives to remand, such as being prohibited from certain areas, contact with certain persons or groups, or curfews^[3]. However, while Scotland-specific data is scarce, a study conducted in Ireland found that young people enrolled on a bail supervision scheme had a 72% reduction in reoffending, and that this reoffending rate was half that of those young people refused bail^[4].

Evidence provided through the consultation responses suggested that CYP may have difficulties in fully understanding and participating in the court process^[5]. Recently the Scottish Sentencing Council have advised that sentencing decisions (which bail decisions are not part of) relating to CYP should also include consideration of their ongoing brain development and the effect the deprivation of liberty can have on the support and relationships available to them^[6]. It is anticipated the provision of written reasons for the bail decision (including why EM was not suitable) by the court could be used by supporting services as a tool to support CYP to understand the court process and increase their participation. The legislation may result in an increase in the use of EM bail and bail supervision. These alternatives may present specific challenges to CYP and should be considered and mitigated against where possible as the policy is developed to further deliver these alternatives to remand.

The available evidence, and that provided through the consultation, suggest that the legislative change relating to the bail decision is anticipated to either have an overall positive impact or neutral impact on the rights on CYP, in line with the UNCRC Articles 3, 9, 12, 37(b).

Direct impacts for CYP as victims of crime

This legislation brings in changes that will centre the voice and needs of victims throughout the bail and release process.

The court will be required to have particular regard to victim safety, as part of the overall consideration of public safety, when the bail decision is made. This consideration will include both physical and psychological harm of the CYP where they are the alleged victim of the offence. Additionally, when a prisoner is released from custody, there will be an opportunity to provide Victim Support Organisations (VSO) with information about their release. Providing VSOs with this information may allow CYP to be supported during this time and allow families to engage in proactive safety planning with the support of organisations if necessary. Therefore the intention of the legislation relating victim support is anticipated to have an overall positive impact on the rights on CYP.

Selected quotes from the consultation responses:

Social Work Scotland - “SWS strongly agrees with the principle of proactively sharing information on a prisoner’s release as we believe this will reassure victims, improve safety planning and be trauma informed.”

Direct impacts for CYP in custody-

Summary - The changes proposed by this legislation will also look at when a person convicted of an offence may leave custody, and what support and planning needs to be in place before this can happen. These changes include release arrangements, ensuring release can no longer occur on a Friday (or day before a public holiday), providing increased availability of support upon release. Specific duties will also be placed on public bodies to engage in pre-release planning for prisoners, so the right support can be in place before they are released. Finally, the current Home Detention Curfew (HDC) model will be revised. These changes aim to provide a person-centred support approach to individuals on release, which aims to benefit everyone leaving custody, including CYP.

The intention of the legislation relating to support on release from custody is anticipated to have an overall positive impact on the rights of CYP in custody.

Detail - Article 37(b) states that “the arrest, detention or imprisonment of a child shall…be used only as a measure of last resort and for the shortest appropriate period of time.” The available evidence, and that provided through the consultation, suggest periods in custody can have a disproportionately negative impact on CYP. The charity, Includem, highlighted within their consultation response the often unintended impacts of time in custody for CYP, including that CYP are more likely than adults to find themselves in unstable employment (including zero-hours contracts) and temporary accommodation^[7]. Therefore even a short period in custody can result in a loss of employment and housing^[8]. In addition, it was suggested that current systems and processes are not always adapted to suit the needs of CYP, who can often find themselves unable to fully participate.

Selected quotes from the consultation responses:

The Care Inspectorate – “It is imperative that every effort is made to avoid children and young people ever entering the criminal justice system as we know they do so to their ultimate detriment”.

Children and Young People’s Centre for Justice (CYCJ) – “Children’s need and rights within the justice system are often overlooked and systems/processes are not designed or adapted to meet their needs.”

Risk Management Authority (RMA) – “the justice system should be designed to support early ages as much as possible with even more emphasis placed on seeking alternatives to custody.”

The proposed changes to the legal framework within which the bail decision is made, and the possibility of an earlier point of release due to HDC amendments, are likely to mean CYP are not held in custody unduly.

The Children and Young People’s Centre for Justice (CYCJ) also highlighted within their consultation response that they feel there is a need for age-appropriate support for reintegration, including housing and employment, as CYP often have limited choice over their options in these areas^[9].

Therefore, preventing releases on a Friday or day before a public holiday, placing a specific duty on public bodies to engage with pre-release planning and the revision of the current HDC model will collectively have an overall positive impact on the rights of CYP. These provisions intend to provide a holistic ‘package’ of support to those leaving custody, including CYP, to help their needs to be met.

Indirect impact for CYP whose parent/carer is accused of an offence or being released from prison custody

Summary - The impact of having a parent in custody can be significant for CYP, affecting their education, income, stability and mental health^{[10],[11],[12]}. The bail measures in the Bill may mean parents who do not pose a risk of serious harm will no longer be held in custody before trial, which may indirectly benefit CYP and result in less disruption to their lives and relationships.

The proposed change that specific duties are placed on public bodies to engage with pre-release planning and statutory standards of throughcare, may allow for the individual needs of a person being released to be considered, these could include whole family support to help the family adjust after a parent has spent a period of time in custody.

The overall aim of the reforms is to reduce reoffending and therefore further parental imprisonment. The intention of the legislation in the Bail and Release Bill is likely to indirectly have an overall positive impact on the rights of CYP.

Detail – Research has estimated as many as 27,000 children a year in Scotland may be affected by parental imprisonment^[13]. Additionally it is estimated that approximately 65% of women in prison in Scotland are parents and that only 5% of children whose mother is in prison stay in their own homes^[14]. Custody, even if only for a short time, can have serious implications for people who have caring responsibilities, including childcare^[15].

Having a parent in prison is recognised as an Adverse Childhood Experience (ACE)^[16]. The Independent Care Review report found evidence that the imprisonment of a parent can lead to an exacerbation of poverty, increased likelihood of care and serious mental health implications^[17]. In addition, the impacts of parental imprisonment can include home and school moves, leading to poor academic performance, and an increased likelihood of involvement with the criminal justice system for the child^[18].

‘The Promise’ states that “Scotland must do all it can to prevent the imprisonment (either on remand or as part of a sentence) of those with parenting responsibility”^[19]. In addition, the Council of Europe has issued recommendations aimed at safeguarding the rights of children of imprisoned parents, which recognise their vulnerability, seek to alleviate the negative impact upon them and uphold their right not be punished because of the status of their parent^[20].

It is therefore important that serious consideration is given to alternatives to remand given the impact of familial imprisonment on CYP. Professor Nancy Loucks, Chief Executive of the charity Families Outside stated in her evidence to the Justice Committee at consideration stage of the Management of Offenders (Scotland) Act 2019 that “prison fractures families, whereas with the right support in place, electronic monitoring can keep families together.”

Selected quotes from the consultation responses:

Howard League – “Even if the custody is for a very short period of time, this can have serious implications for anyone for whom they have caring responsibilities e.g. children or elderly or infirm relatives.”

Shine – “In the case of women, they are often the carer of children and elderly parents. For those women who have had their children removed from their care, remand may make it more difficult to have access to their children or work towards a plan of rehabilitation of their children.”

Care Inspectorate – “There is overwhelming evidence that imprisonment of a parent increases the possibility of a child being looked after away from home, exacerbates the impact of poverty, affects mental health in the short and long term and affects key relationships of the child.”

The possibility of an earlier point of release due to HDC amendments, are likely to mean those with caring responsibilities, such as parents, are held in custody for shorter periods of time. This may have a positive indirect impact on CYP, protecting their right to not be removed from their parents unduly. Specific pre-release planning duties for public bodies and statutory standards of throughcare may help to support the specific needs of CYP whose parents / carers are being released from prison custody.