3 Use of undertakings with conditions and compliance
3.1 Changes to the use of undertakings, as enacted by the 2007 Act, included giving the police a new power to impose conditions on an undertaking similar to standard bail conditions. These exist alongside the basic mandatory condition of attending court on the specified date at the specified time.
3.2 Standard conditions for undertakings are that the accused does not commit an offence while released on an undertaking, does not interfere with witnesses or otherwise obstruct the course of justice and does not cause alarm or distress to witnesses. These standard conditions are set and are not separable.
3.3 Special or 'further' conditions which may now be used include attending a designated police office at a specified time and date; or not contacting or approaching named persons or entering a designated place or building. These additional conditions can be added by police as appropriate to the case.
Use of special conditions
3.4 Data on the use of undertakings conditions is not routinely recorded by all Forces or within the CJBMIS. As part of the evaluation, a request was made to ACPOS for information on the use of undertakings with mandatory conditions (no conditions other than to attend court on the specified date/time), with standard conditions and special (or further) conditions, in each of the case study areas. This required the manual extraction of data in some areas which was a time consuming activity and thus, only limited data could be extracted.
3.5 Table 3.1 shows the number of undertakings with various conditions issued in the period April to December 2010 for Central and Lothian and Borders and between April 2010 and March 2011 for the two case study areas that fell within the Strathclyde Police force area (i.e. Ayrshire and Glasgow).
Table 3.1 Use of undertakings conditions by case study area
|Ayrshire||73 (5%)||1130 (82%)||174 (13%)|
|Central||1456 (80%)||318 (18%)||33 (2%)|
|Glasgow & Strathkelvin||190 (7%)||2286 (85%)||206 (8%)|
|Lothian and Borders||144 (2%)||4488 (75%)||1371 (23%)|
3.6 The data show considerable variation in practice between the Central and Strathclyde forces with most undertakings in Strathclyde being classified as having standard conditions attached, and most in Central being classified as mandatory15 . Across the board, less than 15% of undertakings are issued with special conditions - for the period under investigation, the figure was as low as 2% for Central.
3.7 Table 3.2 below shows use of undertakings conditions for a three year period in the two case study areas in Strathclyde police force area. It shows that, proportionally, in both areas, most undertakings are issued with standard conditions and this has remained unchanged in recent years. The main change has been a reduction in undertakings with mandatory conditions in Ayrshire and a move towards more special conditions. In Glasgow, there has been a reduction in the proportion of undertakings with no conditions, with an increase in standard conditions, while the use of special conditions has remained relatively stable.
Table 3.2 Number and proportion of undertakings conditions used in case study areas over time
|Ayrshire||Mandatory||164 (14%)||77 (5%)||73 (5%)|
|Standard||919 (81%)||1268 (83%)||1130 (82%)|
|Special||58 (5%)||185 (12%)||174 (13%)|
|Glasgow & Strathkelvin||Mandatory||515 (19%)||358 (11%)||190 (7%)|
|Standard||2035 (75%)||2497 (80%)||2286 (85%)|
|Special||175 (6%)||289 (9%)||206 (8%)|
3.8 The data indicate that the new special conditions are being used in the areas studied, but it is not possible to say anything conclusive about their use at the national level given that this data comes from only two LCJB areas.
3.9 Despite a lack of numerical evidence, interviews suggest that the use of undertakings with special conditions has been widely employed in Lothian and Borders in recent years. This was especially true for those police staff based in the city centre who explained that they frequently put exclusion zone restrictions as a condition of undertakings.
3.10 Interviews confirmed that, in Ayrshire and Central, the use of undertakings with special conditions was not widely used. Most police officers interviewed had either not released any accused on an undertaking with a special condition, or had released only one or two accused in this way.
3.11 In Glasgow and Strathkelvin, the use of undertakings with special conditions was reported to be used mostly in relation to prostitution:
"Releasing girls who work in the red light district is good because you can put in a condition not to return to the red light district." [Police Officer]
3.12 Some officers suggested that the use of special conditions was perhaps not widespread because, where people were considered to be potentially 'dangerous', police were more likely to use custody than an undertaking with special conditions:
"I believe there is a fine line between how many conditions can be imposed before it would be more beneficial keeping someone in custody rather than release them on an undertaking." [Police Operational Supervisor]
"If they [Sergeants] are thinking of putting conditions on, rather than doing that, they'll just keep them in custody." [Police Officer]
3.13 None of the Sheriffs who were interviewed felt they could comment reliably on the use of special conditions attached to undertakings because it was information that they would not generally be made aware of before an accused stood before them.
3.14 Defence Agents also explained that they often do not see the undertaking forms issued to their clients and so are often unaware of any special conditions which are attached. They explained that clients often just advise their agents that they are appearing in court on a specified day without mentioning special conditions. This does not, however, seem to be causing any difficulties with the progress of the case through court:
"The clients wouldn't necessarily turn up and say I've had special conditions not to do this or that…They would just turn up, hand you the pink slip and you would go to court to ask for bail. So you don't really care what's happened before, all that you're concerned about is what happens when they leave court." [Defence Agent]
3.15 Additionally some Defence Agents felt that by the time the client approached them to request that they represent them in court, the undertaking was almost at its end, and so there was little or no merit in exploring the conditions attached.
3.16 Although not widely used, most police officers interviewed welcomed the opportunity to impose conditions if appropriate, and felt that this gave them greater flexibility and independence in the initial administration of cases:
"We have this wonderful opportunity now to put on specific conditions of bail." [Police Operational Supervisor]
3.17 Conditions were considered by the police to be particularly helpful for certain types of crimes including the use of exclusion zones to prevent shoplifters entering designated areas:
"There's an element of control. You can restrict their movements to a certain extent, so restrict them from coming into the city centre. From a controlling point of view, it has a great benefit." [Police Officer]
"If it's a shoplifting, a repeat offender, maybe at the weekend, then it's useful to put conditions for them not to be in the town centre, especially with CCTV, because as soon as they stop somebody, they're caught before the shoplifting even happens. So that's where it's useful." [Police Officer]
3.18 Consensus among police officers was that while special conditions were not used in some areas very often, it was good that they were available if the police felt they were needed.
3.19 Where used, police staff hoped the conditions they attached to an undertaking would be continued if the Sheriff released the accused on bail. Some Fiscals, particularly in Lothian and Borders, noted that the use of conditions by police officers provided a starting point for recommending conditions for the accused when their case reached court, and so they too welcomed this continuity:
"When the case does call in court it makes the whole bail position clearer and more coherent because of course if they've been on appropriate special conditions of bail since they've been released on their undertaking, then it can sensibly be argued that those conditions on bail should be formalised and continued." [Procurator Fiscal]
"It makes it easier for us to argue for the imposition of conditions because it would be a continuation." [Procurator Fiscal]
3.20 Perhaps the only resistance to special conditions came from Defence Agents. Some questioned if it was necessary for police to have powers to impose conditions when releasing an accused on an undertaking because they generally only last for 28 days. Additionally, some Defence Agents perceived that the police were not well placed to impose conditions, having not taken the full situation into account as a Sheriff or Justice may be able to do in court. Fiscals can, of course, review any conditions attached by the police and have the power to revoke the special conditions imposed if they are perceived to be unduly restrictive.
3.21 In summary, interviews with the police suggest that they welcome the opportunity to impose special conditions, although their use remains infrequent. Fiscals welcome the consistency that they allow for in directing bail conditions, but Defence Agents questioned their appropriateness.
Warrants for failure to appear
3.22 Figure 3.3 shows the number of warrants granted for failure to appear at pleading diet or continued pleading diet while on an undertaking, nationally and for each of the case study areas over time16 .
Figure 3.3 Number of warrants granted for failure to appear at pleading diet or continued pleading diet while on an undertaking
3.23 Despite some erratic patterns in the data over time, there does not appear to be any noticeable increase since April 2008 in the number of warrants issued in either Ayrshire or Central. In the two larger LCJBs, however, 2011 data indicated a small increase in warrants suggesting that initial low rates of failure to appear post-reform have not been sustained over time.
3.24 Table 3.4 shows the average proportion of warrants granted from the total number of undertakings issued in each case study area, and nationally for the three financial years from April 2008 to March 2011. What is clear from all areas is that there has been no noticeable change in the proportion of warrants granted as the reforms have bedded in. The absence of pre-reform data means that it is not possible to comment on whether the levels that have been witnessed since April 2008 are any different from preceding years. It is also important to note that the percentages here related to relatively small numbers in most cases.
Table 3.4 Average Proportion of warrants granted for failure to appear at pleading diet or continued pleading diet while on an undertaking by LCJB area17
|Glasgow and Strathkelvin||2%||6%||8%|
|Lothian and Borders||8%||6%||9%|
3.25 When looking at the data in detail by month, Central is the only area that has a consistently smaller proportion of warrants granted compared to the national average, and this may be because there is a greater flexibility in that area for the scheduling of first appearance at court dates (and so stipulated dates/time can be better negotiated with accused).
Perceptions of failure to appear
3.26 No numerical data were available to allow a comparison to be made of failure to appear on an undertaking compared to failure to appear for citation cases. Qualitatively, however, most of those interviewed thought that those released on an undertaking may be more likely to attend court than, for example, those released on bail. It was felt that one of the main reasons for this was that accused leave the police station with a piece of paper that details the time and date they have to attend court. The accused is also required to sign a copy of the undertaking, which is retained by the police. In this way, the accused person knows up front where and when they have to be in court. This was considered especially important because of perceived problems with the citation system, such as accused not being at the address given, the citation being lost in the post, not being opened by the recipient, the accused moving house before receiving the citation, or simply being ignored:
"To have the bit of paper in front of you [the accused] 'You have to attend court on this date'…it's got to have some sort of impact." [Police Operational Supervisor]
3.27 Overall, for the police, it was perceived that court attendance rates on undertakings were higher than attendance rates for those released for citation. It was posited from the interviews that this might possibly be because many of those released on an undertaking are first time offenders and they may, therefore, be more likely to abide by the law in the hope of avoiding a further criminal record, and this view was supported by Defence Agents. Alternatively, it may be because there is no legal obligation to attend personally in court in answer to a citation, whereas there is for an undertaking.
3.28 On the whole, Fiscals also felt that most people who are liberated on an undertaking would appear at court:
"I think that most people liberated on an undertaking do actually appear which is quite encouraging actually." [Procurator Fiscal]
3.29 That said, some also expressed the view that there would inevitably still be some people who would fail to appear.
Convictions for breach of undertaking conditions
3.30 Figure 3.4 shows the number of convictions for breach of undertaking conditions (including failure to appear) in each of the four case study areas, and nationally. The data show a notable increase in the number of convictions for breach of undertakings in the period since April 2006 both nationally and in each of the case study areas18 . One possible explanation for this may be the increased use of undertakings for more complex offences. Such offences may be committed by offenders living more chaotic lifestyles and who, as a result, may be less inclined to attend court.
3.31 It is important to stress here that the number of convictions for breaches in each area is very small. This means that, although the increase in the number of convictions for breach may appear prima facie to be dramatic, it relates to changes in only single digits in most areas.
Figure 3.4 Number of convictions for breach of undertaking conditions19
Perceptions of breach of undertakings conditions
3.32 Interviewees' perceptions of breach of undertakings were mixed and not necessarily reflective of the numerical data. Police operational supervisors indicated that they were unsure if people were complying with the conditions imposed when released on an undertaking. In addition to this, some officers felt that conditions were not being used enough to be able to comment on whether they were being complied with.
3.33 Generally, police officers interviewed in Lothian and Borders thought that accused were not breaching their undertakings conditions. Police interviewees thought that this may be because of the strict penalties that someone would incur if they breached their conditions.
3.34 Again, it was also thought by police interviewees that those on undertaking conditions are generally less likely to be recidivist offenders, and, therefore, are more likely to take their undertaking and their conditions seriously. It was felt that some of those who are repeat offenders have a "don't care" attitude in comparison, and will breach their conditions regardless of the consequences.
3.35 Among agents, it was felt, by and large, conditions are probably being complied with because they are "sharply focussed" [Defence Agent] and apply only for a short period of time.
"I've had a couple of breaches but for the most part I think they are complied with." [Defence Agent]
3.36 Again, the experience of Procurators Fiscal as to whether conditions are being complied with was dependent on the area in which the respondent was based. In Lothian and Borders, which has the highest number of undertakings with conditions, Procurators Fiscal stated that they had seen several breaches of undertakings conditions and commented that this was quite time consuming for them to deal with.
3.37 The main reason an undertaking is breached was believed to be because the accused committed another offence while being on an undertaking. It was felt by Procurators Fiscal that few accused breached special conditions that had been added to their undertaking.
3.38 As with the police, Procurators Fiscal generally took the view that accused who were likely to breach their undertaking within a few days of being released should be kept in custody:
"The cases where people are quickly breaching their undertakings and conditions is where they should have been reported as a custody…the people that don't turn up to court, you think 'Well, they are the ones that I considered not suitable for an undertaking'." [Procurator Fiscal]
Penalties for breach of undertaking
3.39 Table 3.6 below shows the main penalties that have been used in cases where undertakings have been breached (including both failure to appear and breach of conditions), for the eight year period including the periods directly before and after the reforms were introduced20 .
Table 3.6 Main Penalty Given for Breach of Undertaking
|Custody||6 (14%)||6 (15%)||3 (7%)||11 (18%)||9 (16%)||27 (14%)||45 (18%)||32 (11%)|
|Community Sentence||9 (21%)||7 (17%)||10 (23%)||12 (19%)||11 (20%)||55 (28%)||64 (25%)||86 (28%)|
|Monetary||17 (40%)||18 (44%)||14 (33%)||24 (39%)||21 (38%)||67 (34%)||84 (34%)||90 (29%)|
|Other21||11 (25%)||10 (24%)||16 (37%)||15 (24%)||14 (26%)||46 (24%)||57 (23%)||99 (32%)|
3.40 The data show that there has been an increase in the total number of penalties imposed for breach of undertakings post-reform (in line with an increase in the number of convictions presented above). While the number of community sentences has increased, the number of monetary sentences has decreased. Use of custodial and 'other' penalties seem to fluctuate over time.
3.41 Table 3.7 shows the average penalties used across the same period for each disposal type.
Table 3.7 Average Penalties Used
|Community Sentence (Hours)||93||127||175||90||140||110||114||135|
|Compensation Order (£)||-||-||-||-||-||125||200||100|
3.42 Again, the data show no steady patterns post reform except an increase in the average duration of custodial penalties given.
3.43 Generally, undertakings were not said to be pro-actively policed in the case study areas. Police officers reported that there were not enough resources to police undertakings conditions as well as bail conditions. Undertakings conditions would only be pro-actively policed if the accused was reported for another offence while on an undertaking.
"Mostly, if it's an undertaking, then there's no specific conditions, so you wouldn't police that. Also there's so many of them [undertakings] that it wouldn't be possible to police them. You wouldn't be able to do anything else." [Police Officer]
3.44 Undertakings are also not pro-actively policed in some areas because the 'lists' of those released on an undertaking with conditions were not readily available to other operational police staff in the same way that those released on bail with conditions would be, making it harder to monitor these individuals.
3.45 In summary, there seems to be consensus that most people do appear at court if released on an undertaking. Interviewees perceive that there were few breaches of conditions, including special conditions where applied, based on there being few arrests on this basis. Where breach does occur, there is evidence to suggest that Sheriffs and Justices are making use of their increased sentencing powers under the reforms.
Email: Carole Wilson
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