Information

Bail and Release from Custody (Scotland) Bill: data protection impact assessment

This data protection impact assessment (DPIA) is undertaken in compliance with UK General Data Protection Regulation (UKGDPR) Article 35(10). This is an iterative impact assessment, which we expect to amend as the Bill makes its way through Parliament.


3. Data Controllers

Organisation

Local Authorities (Justice Social Work departments)

Activities

Provision of information by justice social work to the court to inform decision making on bail – at present the court may seek information from Local authority criminal justice social work departments (JSW) to help inform bail decisions but this practice is inconsistent and varies across the country. Each local authority is responsible for their own JSW department.

Is the organisation a public authority or body as set out in Part 2, Chapter 2, Section 7 of the Data Protection Act 2018?

Yes

Lawful basis for processing under UK General Data Protection Regulation (UK GDPR) Article 6 for the collection and sharing of personal data– general processing

  • Legal Obligation
  • Public task (it is considered in the public interest that all information is provided to the court to protect public safety)

Lawful basis for processing under UK General Data Protection Regulation (UK GDPR) Article 9 – special category data or Article 10 – criminal offence data

Include condition from Schedule 1 or 2 of the Data Protection Act 2018

The main lawful basis to be relied on for this proposal is, schedule 1(6) –

Statutory etc. and government purposes.

This allows for the processing of criminal offence data on the condition that it is necessary for the exercise of a function conferred on a person by an enactment of law and is necessary for reasons of substantial public interest. This condition will be met as we are requiring this processing by law through the Bill.

The lawful basis of, Schedule 1 (7) Administration of Justice - can also be reasonably relied on dependant on the circumstances of the case.

Law Enforcement – if any law enforcement processing will take place – lawful basis for processing under Part 3 of the Data Protection Act 2018

Schedule 1 (7) Administration of Justice - This condition is met if the processing is necessary—

(a)for the administration of justice,

Schedule 1 (33)

Legal claims

  • This condition is met if the processing—

(a)is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings),

(b)is necessary for the purpose of obtaining legal advice, or

(c)is otherwise necessary for the purposes of establishing, exercising or defending legal rights. - can also be reasonably relied on dependant on the circumstances of the case.

Legal gateway for any sharing of personal data between organisations

Bail and Release from Custody (Scotland) Bill – Part 1, Section 1 - Decisions on bail: relevant information from officer of local authority.

(1) The Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) is amended as follows.

(2) In section 22A (consideration of bail on first appearance), after subsection (1) insert—

“(1A) Before determining whether to admit or refuse to admit the person accused or charged to bail, the sheriff or judge must also give an officer of a local authority an opportunity to provide (orally or in writing) information relevant to that determination.”.

(3) In section 23B (entitlement to bail and the court’s function)—

(a) at the end of subsection (4) insert “(including submissions in relation to any information provided by an officer of a local authority under section 22A(1A) or in response to a request under subsection (6))”,

(b) in subsection (6), after “counsel” insert “or an officer of a local authority”,

(c) in subsection (7), after “party” in each place where it occurs insert “or officer”.

(4) The Social Work (Scotland) Act 1968 is amended as follows.

(5) In section 27 (supervision and care of persons put on probation or released from prisons etc.), in subsection (1), before paragraph (a) insert—

“making available to any court, in accordance with section 22A(1A) or 23B(6) of the Criminal Procedure (Scotland) Act 1995, such information as may be relevant to the court’s determination of whether to grant bail to persons who are accused of or charged with an offence;”.

Organisation

The Scottish Ministers (as the Scottish Prison Service)

Activities

Improving pre-release planning by placing duty on public bodies to engage in pre-release planning at an earlier stage – will require the public bodies involved to process and share information relating to someone ahead of their release. This happens already in some cases, the Bill will place a duty on public bodies to engage in this pre-release planning at an earlier point in a prisoner’s sentence when asked to by the Scottish Prison Service. This is intended to bring consistency to the approach

Providing victim support organisations with information about release of prisoners so that the most effective support can be provided to victims – will require SPS to share information about the date of a prisoners release or parole hearing and any associated conditions of their release. This will not include personal health-related information for example, or details of the prisoner’s address.

Is the organisation a public authority or body as set out in Part 2, Chapter 2, Section 7 of the Data Protection Act 2018?

Yes

Lawful basis for processing under UK General Data Protection Regulation (UK GDPR) Article 6 for the collection and sharing of personal data – general processing

Legal Obligation (SPS to provide information on a person’s release to the public bodies)

Legal Obligation (SPS to provide information to VSOs if requested).

Lawful basis for processing under UK General Data Protection Regulation (UK GDPR) Article 9 – special category data or Article 10 – criminal offence data

Include condition from Schedule 1 or 2 of the Data Protection Act 2018

In relation to providing information on a person’s release to public bodies Schedule 1(6) -

Statutory etc. and government purposes will be relevant.

In relation to, providing information to VSOs if requested the following Schedule 1(6) - Statutory etc. and government purposes will be relevant.

The Bill will require this information sharing by law.

Law Enforcement – if any law enforcement processing will take place – lawful basis for processing under Part 3 of the Data Protection Act 2018

Legal gateway for any sharing of personal data between organisations

Bail and Release from Custody (Scotland) Bill – Part 2, Section 9 - Duty to engage in release planning.

34A Duty to engage in release planning

(1) Each person falling within subsection (2) must, so far as reasonably practicable, comply with a request by the Scottish Ministers to engage in the development, management and delivery of a release plan.

(2) The persons are—

(a) a local authority,

(b) a health board,

(c) the chief constable of the Police Service of Scotland,

(d) Skills Development Scotland,

(e) an integration joint board established by virtue of section 9 of the Public Bodies (Joint Working) (Scotland) Act 2014.

(3) Engagement under subsection (1) must take place within the timescale specified in the request.

(4) In complying with subsection (1), a person—

(a) must have regard to the role which third sector bodies are able to play in the development, management and delivery of the release plan,

(b) may commission services from, or co-ordinate with existing services provided by, third sector bodies as the person considers appropriate to meet the needs of the individual to whom the release plan relates.

Bail and Release from Custody (Scotland) Bill – Part 2, Section 11 - Provision of information to victim support organisations

(1) This section applies where—

(a) a person entitled to receive information under section 16 (the “victim”) intimates to the Scottish Ministers that a person to whom subsection (2) applies (the “supporter”) is to be given, as well as or instead of the victim, the information described in section 16(3) in relation to the person convicted of the offence perpetrated against the victim, or

(b) a supporter intimates to the Scottish Ministers that they wish to be given that information and Ministers are satisfied that the supporter requires the information in order to provide the victim with support services.

Organisation

Scottish Courts and Tribunals Service

Activities

Recording of reasons for refusal of bail - while this data is already currently processed by virtue of section 24(2A) of the Criminal Procedure (Scotland) Act 1995 which provides that whenever the court grants or refuses bail, it shall state its reasons, at present reasons are generally given orally and are not formally recorded unless the decision is subsequently appealed. This proposal will create a new obligation on the court to formally record the information already collected when an accused person is refused bail at the pre-conviction stage of the criminal justice process. As an explicit part of this requirement, the court must record why electronically monitored bail was not suitable and why the imposition of an electronically monitored condition was not sufficient to safeguard the public interest. Information processed may include; reason for bail refusal including risk assessment through reference to e.g. previous convictions of the accused person; safety concerns in relation to the complainer and/or witnesses; public safety concerns relative to the accused person. This information will help improve understanding of how remand is used across courts in Scotland, but no personal information would be released through the analysis of the statistical information.

Is the organisation a public authority or body as set out in Part 2, Chapter 2, Section 7 of the Data Protection Act 2018?

Yes

Lawful basis for processing under UK General Data Protection Regulation (UK GDPR) Article 6 for the collection and sharing of personal data – general processing

Legal obligation

Public Task

Lawful basis for processing under UK General Data Protection Regulation (UK GDPR) Article 9 – special category data or Article 10 – criminal convictions data

Include condition from Schedule 1 or 2 of the Data Protection Act 2018

Schedule 1 (7) Administration of Justice - This condition is met if the processing is necessary—

(a)for the administration of justice,

Law Enforcement – if any law enforcement processing will take place – lawful basis for processing under Part 3 of the Data Protection Act 2018

Legal gateway for any sharing of personal data between organisations

Bail and Release from Custody (Scotland) Bill – Part 1, Section 4 - Refusal of bail: duty to state and record reasons

“(2AA) Where the court refuses bail in any proceedings in which a person is accused of an offence, it must—

(a) state in particular—

(i) the grounds on which it determines, in accordance with section 23B(1A), that there is good reason for refusing bail,

(ii) if refusing bail solely on the ground specified in section 23C(1)(a) (substantial risk of absconding or failing to appear), its reasons for considering under section 23B(1A)(b) that it is necessary to do so, and

(iii) its reasons for considering under section 23B(1A)(b) and (2) that either it would not be appropriate to impose on the accused bail conditions subject to a requirement to submit to monitoring in accordance with Part 1 of the Management of Offenders (Scotland) Act 2019 (electronic monitoring) or that doing so would not adequately safeguard the interests of public safety or justice as mentioned in section 23B(1A)(b)(i) or (ii), and

(b) have those grounds and reasons entered in the record of the proceedings.”.

Organisation

Parole Board for Scotland

Activities

Providing victim support organisations with information about release of prisoners so that the most effective support can be provided to victims – The Parole Board are relevant under section 17 of the Criminal Justice (Scotland) Act 2003

and will therefore be a data controller processing personal data in a new way by sharing it with VSOs.

The information which the Parole Board will share with VSOs is (O = offender and V = victim):

(1) whether or not it has recommended or directed that O be released, (2) if it has recommended or directed release, inform VSO as to whether O will be required to comply with licence conditions, (3) inform VSO about conditions which relate to O’s contact with VSO or V’s family, and (4) such other information as the Parole Board considers appropriate (subsections (5) and (6)). The Parole Board is required to provide this information whether or not representations were made by V.

Is the organisation a public authority or body as set out in Part 2, Chapter 2, Section 7 of the Data Protection Act 2018?

Yes

Lawful basis for processing under UK General Data Protection Regulation (UK GDPR) Article 6 for the collection and sharing of personal data– general processing

Legal Obligation (Parole Board to provide information to VSOs if requested).

Lawful basis for processing under UK General Data Protection Regulation (UK GDPR) Article 9 – special category data or Article 10 – criminal offence data

Include condition from Schedule 1 or 2 of the Data Protection Act 2018

In relation to, providing information to VSOs if requested the following Schedule 1(6) - Statutory etc. and government purposes will be relevant.

The Bill will require this information sharing by law.

Law Enforcement – if any law enforcement processing will take place – lawful basis for processing under Part 3 of the Data Protection Act 2018

Legal gateway for any sharing of personal data between organisations

Bail and Release from Custody (Scotland) Bill – Part 2, Section 11 - Provision of information to victim support organisations

Contact

Email: futureofcustody@gov.scot

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