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A year of debate

18 May 09

Crown, defence and the independent Inspectorate contribute to a review of the summary justice reforms a year after they came into force

by Geri Watt, Joe O'Donnell, Peter Nicholson

Community impact

Procurator fiscal Geri Watt argues that the reforms have improved the throughput of cases, providing speedier resolution for victims and accused persons alike, with fewer witnesses being cited to give evidence in the summary courts

In 2004 the Summary Justice Review Committee led by Sheriff Principal McInnes described what many of us knew already: the summary justice system was no longer summary. Repeated adjournments led to lengthy court proceedings with pleas often being adjusted only after such adjournments. The level of churn contributed significantly to the overloading of courts and caused considerable inconvenience to witnesses as well as other court users. The result was that offending behaviour was not tackled promptly and communities affected by crime did not see the summary criminal justice system as contributing effectively to the resolution of their problems.

The summary justice reforms introduced last year had the very clear purpose of putting this right and creating a system which dealt with lower level crime quickly and effectively, with minimum inconvenience to victims and witnesses. The legislative reforms were complemented by changes to working practices and processes by the various criminal justice agencies.

The legislative reform included providing greater scope for the police to issue penalties for antisocial behaviour, and increased powers for procurators fiscal to issue direct measures. Procedural provisions were designed to support better case preparation and measures were introduced to improve the throughput of cases in court. These reforms were subsequently supported by changes to the structure of legal aid payments which ensured that solicitors received appropriate payment for work done in advising a client who accepted guilt at an early stage.

The collective will for change was strong and Parliament unanimously approved the legislation and the broader scope of the reforms. But these reforms are about local justice for local communities, and success depends on how they are implemented at a local level. This means police, prosecutors, solicitors and court staff all working together. It is recognised that even an improved system is dependent on the commitment of practitioners to make it work.

One year on, there is reason for optimism.

Diversion measures

As a prosecution service, we recognised that our policies, practices and procedures needed radical change to support effectively the principles of summary justice reform. Most of all, our staff needed a clear understanding of the content and ethos of the new regime, and clarity as to the changes to our systems and practices. We issued extensive new guidance to all staff as well as detailed and practical training in the application of the reforms. This approach was commended in the Inspectorate of Prosecution’s recent Thematic Report on Fiscal Fines [see following article]. We have continued to monitor and improve our own practices to ensure they fulfil the objectives of a quick and effective summary justice system.

One of the more controversial changes was the extended powers for procurators fiscal to issue direct measures. When making decisions on the most appropriate action to take in any particular case, we now adopt an outcome-focused approach; often issuing a direct measure will result in an equivalent outcome to court proceedings.

In 2005 the average fine in the sheriff court was £310; the average in the district court was £123. We now have powers to issue fines of up to £300. This means that in many cases we can achieve the same result within, on average, six weeks of the offence, providing a swifter response to offending behaviour and prioritising court time for more serious cases.

Compensation offers provide greater scope for dealing with cases quickly and effectively, providing financial compensation to the victim within a few weeks of the offence. Some early local examples demonstrate the benefit. The procurator fiscal in Kilmarnock received a report relating to two vandalised windows in June 2008. The offender was issued with a compensation offer for the value of the damage, £100, and it was paid to the victim by August.

Another Kilmarnock case concerned a report in relation to someone with no previous convictions, who caused £300 damage to a property in Girvan. He was issued with a compensation offer which he paid by instalments within two months. In cases such as these, the use of direct measures has ensured that the victims of crime have been compensated quickly by the offenders. This rapid intervention shows to victims that we are taking action and can encourage offenders to think again about their behaviour.

Work offers, being piloted in Inverness, West Lothian, North Lanarkshire and West Dunbartonshire, provide a much quicker way of tackling offending at an early stage, involving short periods of work in the community. In Inverness, those accepting work offers have cleaned up a local BMX park and a beach. In Dumbarton an offender was offered 30 hours of work in a charity shop. Having completed it successfully, she continued to help as a volunteer with the support and agreement of the shop. In other cases, through carrying out work offers, young offenders have developed practical skills in painting and decorating which will help future employment prospects – and their chances of avoiding a life of crime.

A frequent complaint about direct measures is that those who accept the offer instead of prosecution in court are “getting away with it.” This is not true. These direct measures are quick, but they are not easy. They will reflect the severity of the crime. In addition, should the offender reoffend within two years, the direct measure can be put before the court in the same way as a previous conviction – and the police and procurators fiscal keep a record to inform future decision making. In this way, those who continue to offend will quickly find themselves in court.

Early disposal

By dealing with such cases by way of direct measures, more resources can be dedicated to those cases involving court proceedings. Where a case requires intervention by the court, we will prosecute – and we will continue to seek to achieve the quickest and most appropriate outcome in every case.

In court, the most significant change has been to the culture of repeated adjournments and delays. Prior to summary justice reform, it was not uncommon for accused persons to plead not guilty and then, after several hearings, including a number of adjourned trials, change their plea to one of guilty. As Sheriff Principal McInnes recognised in his reports, there were a number of reasons for this but the consequences were obvious: witnesses and victims were inconvenienced, often more than once, and the prosecution and courts would find themselves churning large numbers of cases without being able to focus on those likely to go to trial.

Now, we aim to conclude cases which are capable of being resolved without a trial at the earliest opportunity – either the pleading diet or a continued pleading diet. To assist with that, we are providing disclosure of the prosecution case along with the complaint in every case and making ourselves available to discuss cases ahead of the pleading diet.

We are also making evidence available earlier for those cases that do go to trial. In Ayrshire we have worked hard with police colleagues to ensure that productions, particularly CCTV evidence and police interview tapes, are available for solicitors to facilitate constructive discussions and, where possible, to resolve cases quickly. Such evidence is often critical to the issue of guilt.

The court can usefully continue cases without plea for evidence to be viewed, or to provide an opportunity to discuss the case so that speculative trial diets are avoided and trials are only fixed in cases which are truly contentious.

Effective discussions

To assist open discussion with solicitors, we are making clear at the outset of every case what plea would be acceptable. We give solicitors an “acceptable plea” letter which sets out the Crown’s position. The acceptable plea is available up to and including the intermediate diet. The intention is to encourage early resolution and to discourage late pleas of guilty on the basis that the Crown’s position was not known. The acceptable plea will not be available at the trial diet other than in exceptional circumstances.

This is a significant change for prosecutors and solicitors alike. It recognises that when a case calls for trial there is an expectation that a trial will proceed, the time for plea negotiation having passed. In Ayrshire we are making progress by providing facilities to ensure that cases can be properly discussed and every opportunity to resolve a case before the trial diet.

Fiscal offices around the country are putting in place practices to ensure effective discussion of cases prior to both the pleading diet and the intermediate diet. This includes holding discussion “surgeries” at specific times or providing a dedicated depute for discussion who can be contacted by mobile phone. This leads to better preparation of cases and more effective use of court hearings. It inevitably means that more evidence will be agreed and fewer witnesses will be cited. Similar procedures for discussing cases are in place across the country.

All these changes to practice are intended to support the legislative changes and the changes to legal aid. They address the points which frustrated solicitors in trying to resolve a case at the earliest opportunity: not knowing the prosecution case, not knowing the Crown’s approach to an acceptable plea, not being able to discuss the case with a prosecutor, and not being able to access important evidence such as CCTV. It is still work in progress, but the early conclusions are very encouraging and suggest there is real merit for the public in these reforms.

Hopeful signs

In Ayrshire, as across Scotland, we are seeing signs of these changes beginning to take effect. More cases are pleading guilty earlier. In December 2007, 25% of all cases pled guilty at the first calling; by December 2008 this had risen to 39%. In addition, cases are being resolved more quickly: in December 2007 the average time from caution and charge to verdict was 151 days; by December 2008 this had fallen to 117 days – just over a month earlier.

In addition, in the first nine months of the reforms in Ayrshire we issued 6,480 fewer witness citations than we did in the same period last year (a reduction of 20%). This means that more police officers are carrying out operational duties rather than sitting in court waiting rooms, and fewer members of the public require to take time off work or from family commitments to come to court.

The improvements to our system of summary criminal justice serve the interests of victims, witnesses and communities affected by crime, but also respect the rights and interests of accused persons. They now receive better information about the case against them and, where guilt is not an issue, the improved speed of the process reduces the uncertainty as to the outcome of the case. By being made to face the consequences of their actions more quickly, offenders have a better chance of addressing their offending behaviour and moving on with their lives.

The reforms also benefit those of us who work within the system. We are able to do our jobs more effectively, and get greater satisfaction in doing so. There is much work still to be done, but it is encouraging to note signs of a system which can serve all sections of our community, and increase their confidence in the ability of the criminal justice system to deliver a swift and effective response.

Geri Watt is Area Procurator Fiscal for Ayrshire

A case made out

Joe O’Donnell tells how the Inspectorate of Prosecution found the new diversion provisions to be working well once the system had settled down

Inspection and regulation have found themselves in the spotlight following the banking crisis and other high level cases of concern. The Inspectorate of Prosecution came into existence after just such a high profile case – the murder trials following the death of Surjit Singh Chhokar. The Jandoo Report which followed recommended the creation of an independent inspectorate, and this was accepted by the then Lord Advocate.

Independence is crucial to any inspectorate and can be achieved in a number of ways, including inspectors reporting directly to ministers, publishing reports, having ringfenced budgets, having external and lay input into the work and business programme, and being on a statutory basis.

Inspection is about accountability, quality assurance and pursuing improvement, and considerable emphasis is placed on any comments or conclusions being evidence-based rather than anecdotal.

Since its inception the Inspectorate of Prosecution has pursued both thematic reports (usually in combination with criminal justice partners) and office inspection work.

Examining the evidence

Summary justice reform was inevitably high on the agenda for the Inspectorate, and the introduction of enhanced fiscal fines in April 2008 became a priority following a bedding-in period. The subsequent publicity surrounding fiscal fines simply highlighted its appropriateness as a topic for inspection.

An evidence-based approach was taken, and 1,500 individual case files were selected by inspectors and examined against Crown Office policy and guidance on the use of fiscal fines. This policy and guidance is not in the public domain, but the Inspectorate had access to it. This meant that the source material was first hand evidence and not anecdotal.

A random selection of cases was examined from all 11 fiscal areas in Scotland and examples taken covering all levels of fiscal fine and various types of offences. Any apparent departures from Crown Office policy or guidance were raised with the issuing office. In the event queries were raised in about 14% of all cases examined, including on aspects such as the level of fine being offered.

Assault: a hot topic

Fiscal fines were not, of course, new and the report traces their history but, given public concerns, particular attention was paid to assault cases, the focus of much media coverage.

Files concerning 142 assaults were examined and 25 were queried with the issuing office. In five of these we concluded that the issue of a fiscal fine had not been appropriate given the nature of the assault. A policy amendment was introduced by the Crown Office in October 2008 and these cases would now be excluded from the issue of a fiscal fine.

Overall, looking at the range of offences covered and the different levels offered, the overarching conclusion was that the use of fiscal fines was proportionate and in line with the philosophy on their use. Most of the queries related to the inevitable bedding-in of a new system, and the revised guidelines issued in October 2008 went a long way to addressing issues identified in the early operation of the new system.

We did, however, make three recommendations, all of which were accepted. These concerned the “hierarchy” of the guidance issued by Crown Office, as we felt that on occasions it was not clear which aspect of policy should take precedence. We recommended also that greater use could be made of fiscal fines where an accused was subject to certain court orders, provided the court was informed of the issue. Finally, given the level of concern in assault cases, we recommended continued in-house monitoring of fiscal fines issued for assault.

Further work on the implementation of summary justice reform is also in the programme for the Inspectorate, together with joint inspection with other agencies.

We can be contacted at IPS@scotland.gsi.gov.uk .

Joe O’Donnell, HM Chief Inspector of Prosecutions

Pass marks; could do better

The Journal asked the Society’s review group, and some individual defence lawyers, for their own views on the success of the reforms to date

Some progress, but the system is not yet running smoothly, appears to be the overall verdict on the operation of the summary justice reforms so far.

“Statistics suggest the system is delivering on targets”, Oliver Adair, convener of the Society’s summary justice reform review group agrees. Adair, whose own practice is in Larkhall, has seen figures showing that in Hamilton, cases dealt with at first calling or on first continuation have almost doubled.

He adds: “There is still room for improvement, though we recognise that financial targets will have had to be modified in light of the financial situation and the recent Budget.”

Kenneth Cloggie, President of the Edinburgh Bar Association, reports that in the capital, diversion from prosecution was “eagerly embraced” by the procurator fiscal’s office. A number of cases were inappropriately diverted, including when the offender was on bail, or subject to other court order or the unexpired portion of a sentence. An attempt by the EBA to obtain a copy of the diversion guidelines was rejected by Crown Office and also on appeal to the Information Commissioner. “The EBA was disappointed that the guidelines have not been disclosed, leading to a lack of openness and perhaps fairness”, Cloggie says, while recognising that there is ongoing monitoring of diversion in assault cases.

The EBA, which takes part in standing advisory committee meetings at the court, understands that there has been a reduction of about two weeks in bringing cases to trial. “Most trials however do not commence before midday, and many trials are still adjourned due to pressure of business”, Cloggie comments.

He adds: “When the reforms were first introduced there was a marked decrease of business in Edinburgh Sheriff Court. That remains the case. The intermediate diet courts would have fallen from over 90 cases per day to approximately 30 cases, yet with no marked improvement in the number of cases proceeding at the first calling.”

Discussions continue on improvements in disclosure, which should benefit both the accused and the Crown.

In Glasgow, Stuart Munro of Livingstone Brown is concerned at an incident where a colleague needed stitches near the eye following an unprovoked assault, for which the two assailants received diversion letters – a decision which elicited an apology from the fiscal following press publicity. Presumably such an outcome would not be repeated. Munro suspects however that repeat offenders are receiving letters for offences such as shoplifting, “that would ordinarily put them at risk of remand or imprisonment”.

And Grazia Robertson of Liam Robertson & Co states bluntly of fiscal fines: “My clients would not pay them or even consult me about them anyway. They would be binned immediately.” While accepting that Crown statistics tend to indicate no overuse of fiscal diversion, she suggests however that “something disturbing has occurred regarding the issuing of police fixed penalties, which have risen quite dramatically. The policy for issuing these is not made public as far as I know, and I don’t know what, if any, independent scrutiny is given to police actions in this regard”.

Regarding disposal of business generally, both agree that the sheer volume of business in Glasgow brings its own problems. “Fewer summary trial courts are running, but those that do are beset by the same problems as before”, says Munro, while Robertson comments: “If it were not for the professionalism and goodwill of the Glasgow practitioners, it could have ground to a halt years ago.”

Both mention disclosure as a problem. “The providing of disclosure evidence timeously does remain a problem in Glasgow, although the Crown tell me that’s because of delays in getting stuff from the police. We defence agents are not in a position to assess where the fault lies”, says Robertson, while conceding that defence agents are not infallible either when it comes to picking up statements waiting at the fiscal’s office. And the justice of the peace court doesn’t make them available as does its counterparts elsewhere.

“Earlier disclosure and better communications with the Crown would improve the situation considerably”, Munro agrees, while adding: “Often video evidence is not available until the trial, for example. The Crown are making efforts to tackle this through the piloting of electronic disclosure (presently in pen-drive format, but soon via a secure website). Hopefully this will have a positive effect.”

Legal aid issues

Oliver Adair, who also leads for the Society on the legal aid front, points up continuing discussions with the Government to deal with anomalies in the system, of which the Justice Secretary has agreed to tackle one – the lack of entitlement to payment for solicitors dealing with bail appeals. Regulations are now awaited. Further anomalies under advice and assistance where increases apply to some kinds of work and not others, are to be examined.

The Society is pressing for figures to identify and quantify the overall savings in the system, “so that we can see how much it has affected the overall criminal justice budget, not that we expect the whole amount to be ploughed back into legal aid, but the whole system was predicated on a cut in the legal aid budget”, says Adair.

He adds: “We’re moving in the right direction and the Society is pleased to be involved in the process. We have a good working relationship with Government and they will meet us more or less on request. It’s a process of constructive engagement with the Government and with SLAB.”

Ian Bryce of Central Criminal Lawyers, Livingston, agrees that although it took some time to agree, we now have a workable legal aid regime. “It is possible to criticise parts of the regulations, or individual decisions made by the Crown regarding diversion. However, most practitioners seem to be of the view that the regulations are working. It is also important to remember that they are a work in progress, and are reviewed by all ‘stakeholders’ (and yes, that includes us!) with a view to making further improvements.”

He adds: “Most importantly, the process has cemented the position of the profession as having a voice which the Government will listen to, and this seems have extended to all aspects of the summary justice reforms. Overall,

I think we have made major gains in terms of influence, which gives me cause for optimism.”

Also on legal aid, Stuart Munro welcomes the efficiencies of legal aid online, and looks forward to its imminent extension to summary criminal legal aid (for not guilty pleas).

The last word goes to Munro, on the change from district to JP courts, which he sums up as “the demise of court 1 of Glasgow District Court”, with business transferred to the sheriff court house. “Few who appeared in court 1 will forget the sights, sounds (usually ‘bail refused’, ‘execrable record’ and ‘six months’) and, most of all, smells. Beyond that, and the no doubt costly rebranding, little appears to have changed.”

Did we detect a hint of nostalgia there?

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