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The Summary Justice Review Committee: REPORT TO MINISTERS

Chapter 2: PRINCIPLES, PROBLEMS AND DELIVERY STRATEGIES

Introduction

2.1 Underpinning the Committee's detailed recommendations is a set of principles, set out here in more detail. We found it useful to test our proposals against this framework, which was consistent with the views on future system management which came from consultees.

Consultation

2.2 To inform our decisions, the first order consultation document sought views on the aims of the summary criminal justice system. It noted that there are a number of key aims common to all justice systems: they should be:

• fair to victims and the accused;
• effective in deterring, punishing and helping to rehabilitate offenders; and
• efficient in the use of time and resources.

2.3 The consultation paper asked if there were, in addition, objectives specific to summary justice - for example, that it should, so far as possible and consistent with the interests of justice, be simple and quick in delivery.

2.4 Consultees generally agreed that the three high level aims appropriate to every justice system should remain priorities. A significant number of responses (57% of the total) also highlighted the need for the system to be quick. This priority was underlined when the consultees were asked to comment on the aspects of the system which they would want to see reformed: most of the consultees who addressed this question focused on the time taken to reach the conclusion of a case. So speed was clearly identified as an agreed priority. Other themes to emerge were:

• simplicity; consultees sought a customer-oriented system easy for users to understand;
• consistency; and
• accountability.

2.5 A substantial minority of consultees also called for a local system of summary justice although it was not always clear whether this referred to accessibility or to community links.

The Committee's Aims and Objectives

2.6 We agree that fairness has to remain as a key principle, although the criminal justice system has to be fair to victims and witnesses as well as to the accused. The system should be capable of meeting the differing needs of those who come into contact with it - for example, witnesses who are vulnerable, or individuals from an ethnic minority - with equal effectiveness.

2.7 In this context, we feel that it is no longer acceptable for an offender to be able passively to frustrate the interests of justice through inaction. We accept that a basic tenet of fairness - and of ECHR compliance - is that any person must have an opportunity to challenge any decision which is likely to result in the imposition of a penal sanction before a properly constituted, independent and impartial tribunal. When a case is heard before a court it is for the Crown to prove the case; the offender remains innocent until proved guilty.

2.8 But we do not consider it incompatible with fairness to expect an alleged offender to take some active steps to exercise his or her right to a hearing. Provided, therefore, that the offender is duly informed of any action to be taken against him or her, the Committee felt that, in relation to minor penalties not creating a criminal record, it should be for the offender actively to request that the case against him or her be tried in court.

2.9 The Committee felt that achieving effectiveness in the summary justice system required a number of components. Action needed to be taken against offenders as quickly as possible, maintaining the link between action and consequence in an offender's mind.

2.10 Any action should be sufficient but proportionate. In particular, the system needs to strike a balance between taking action sufficient to achieve deterrence when the law is breached, but not bringing every minor offence within the court system in a way which wastes public resources and is contrary to the public interest.

2.11 Deterrence is at the heart of an effective criminal justice system. But it can only be achieved if any penalty is effectively and consistently enforced: offenders need to know that a penalty will bite. The Committee also noted that public confidence in the system is undermined if it becomes clear to the wider public that penalties are not enforced; justice has to be seen to be done. Ensuring that penalties can be enforced, therefore, sends a clear signal of intent to the offender but also reassures the public that Scottish justice is effective.

2.12 Efficiency - the most effective use of time and resources - is closely linked in our view to other principles, notably that of simplicity. The criminal justice system is a complex one, with a number of different partners with distinct constitutional roles seeking to deliver a joined up service. Efficiency will be best served when:

• cases are dealt with proportionately as soon as possible after they are detected, with referral to the next formal stage in the process (for example, through a police report to the procurator fiscal) only where necessary;
• information flows between partners are as streamlined as possible; and
• the system itself is redesigned (where constitutionally appropriate) to become simpler, clearer and more easily understood.

2.13 Simplicity also benefits other court users, particularly when combined with clarity. Procedures should be simple and easily understood by lay people. Plain English should be used consistently but particularly in documents intended to be read by the public. The Committee therefore adopted efficiency and simplicity as key principles.

2.14 The action taken to improve effectiveness and to streamline the system will help to improve the speed with which the system operates. The Committee felt that a more summary system was of considerable value; indeed, it regarded speeding up the process of justice as core to what it was trying to achieve. Speedier justice benefits everyone involved in the process, but is particularly helpful to those who find the process most stressful - those who are vulnerable for any reason. It noted, however, the Shorter Oxford Dictionary definition of "summary" in the legal context as being "carried out rapidly by the omission of certain formalities". It concluded that a balanced approach was required, which promoted speedy disposal by keeping formalities to the minimum required in the interests of fairness, but recognised that there was an irreducible minimum of formality required by any justice system.

2.15 Consistency in decision making was also identified by the Committee as a core value. Post code justice is not acceptable. There should be consistency across Scotland in terms of the level of offending behaviour which brings an individual within the ambit of the criminal justice system and in the type of action taken in relation to similar offences. But this does not necessarily mean inflexibility in the process of how particular breaches of the criminal law should be dealt with, nor in sentencing. The Committee saw sentencing as outwith its remit, but it noted the importance, in relation to minor offenders many of whom may have chaotic lifestyles, of the availability of disposals which meet the needs as well as the deeds of the convicted person. We recommend this view to the Sentencing Commission, which is looking more widely at the issues of consistency in sentencing.

2.16 Another key principle which the Committee's recommendations sought to underline is that of accountability. The complexity of the system can make it difficult to ascertain where responsibility for shortcomings lies, and therefore difficult to reach a solution. In our view it needs to be clear:

• who takes responsibility for different elements of the system (and this may well be partner agencies working together, rather than one single agency);
• what the success criteria for the system (or parts of the system) are; and
• how, and by whom, effective action can be taken to improve the service when failings are identified.

2.17 Finally, in our view the system of the future should be user-centred rather than service-driven. Partner agencies in the system, operating under continual pressure and relentless public scrutiny, can find it tempting to deliver services in a way which suits their management structure rather than the needs of the service users. We note the welcome shift away from the service-driven approach to one which engages more consistently with local communities and with the needs of specific groups like victims and witnesses.

2.18 The Committee would underline the importance of keeping such a focus consistently throughout the justice system, not just in relation to the most serious cases. Ninety-six per cent of Scotland's prosecutions are dealt with in the summary courts and critical issues such as:

• clarity of communication (including the use of plain English/avoidance of jargon);
• physical accessibility; and
• sensitive handling of civilian witnesses

matter in summary proceedings as they do in solemn. Throughout our deliberations, therefore, we focused on an approach which sought to check the impact of our recommendations on victims, witnesses and other court users. It is important that they understand the process and can make their views known where appropriate.

2.19 Armed with this set of principles, we took stock of the current state of the summary justice system and assessed its shortcomings against the framework set.

Public Perception

2.20 We do not think that on being asked to review the summary justice system we found a system in crisis. Many of those we consulted took the view that the system had become slow and congested and needed urgent attention, but there were few voices demanding a revolutionary change. This view of the system was borne out by public perceptions as illustrated in the public survey and focus groups commissioned by the Committee. ²

2.21 The overall public views of the system could be summarised as follows:

• of those who commented, most thought favourably of the summary courts' performance;
• cases were seen as being handled, in the main, appropriately and fairly;
• leniency in sentencing was the main criticism levelled at the summary courts;
• most people were confident that the courts ensured that the guilty were convicted and the innocent acquitted;
• most people were not at all confident of the courts' deterrent value;
• older people were the most sceptical about court performance.

2.22 More specifically, people were asked to provide a judgement, based on what they knew or had heard, on the overall operation of the sheriff and the district courts respectively. In relation to the sheriff courts, over one quarter (27%) of interviewees felt that they could not give an opinion. This percentage was even higher at one half (51%) of interviewees asked for an opinion on the district courts. Those most likely to be unable to comment were respondents in the remote rural locations.

Perceived Overall Performance of Summary Courts

Sheriff Court Base = 525 respondents
District Court Base = 357 respondents

2.23 In the case of both courts, exactly the same proportion of people (64%) thought favourably of the courts' performance. However, overall, one in three of those who responded had an unfavourable perception of the summary courts' performance. Those with recent experience of the summary courts were more critical of performance (45%) than those without recent contact (33%).

Confidence in the Summary Justice System

2.24 There was a degree of confidence that the summary courts were fair in that the guilty are convicted and innocent are acquitted, but a clear view that they were not effective at dealing with re-offending. More detailed analysis of the survey produced a picture of older respondents appearing more sceptical and doubtful than the younger respondents about what the summary courts could deliver in terms of due consideration to the needs of victims and young offenders.

2.25 While we were reassured that there remains a considerable well of public support for the summary justice system, the fact remains that there are serious concerns about the system's ability to deter re-offending, its capacity to deal with young offenders, its fairness in dealing with victims and overall speed in dealing with cases.

Aspects of the Summary Justice System

2.26 We take the view that overall speed in dealing with cases is a particularly important aspect. Not only is it the primary focus of our remit - "to make recommendations for the more efficient and effective delivery of summary justice in Scotland" - but it is also our view that improvements in overall speed of the system are likely to deliver significant benefits to victims and witnesses through earlier access to justice and reducing wasted court attendances. It will also contribute to reducing re-offending. Disposals can be more appropriately tailored to fit the offending behaviour the sooner they are made after the offence has been committed, while there is little doubt that delays in the system allow some offenders to believe there is no effective sanction against their behaviour, which is thus likely to continue unchecked.

2.27 We were keen to ascertain just how quickly or otherwise the system does in fact operate, but were surprised to find no satisfactory measure of the overall time taken. There are SCS (Scottish Court Service) figures which indicate that in the 12 months up to August 2003, around 20% of sheriff summary cases had not been disposed of within 20 weeks of their first calling in court, but these take no account of the time lapse between the offender coming to the attention of the police and his or her first court appearance.

2.28 We had access to a Crown Office exercise conducted in 1997 that measured the time taken to process cases from their report to the procurator fiscal to disposal. There was no other comparable data, and so we asked the Crown Office to assist us with a similar exercise with the aim of comparing the sets of data. This exercise is considered in more detail in chapter 33 but it is sufficient to note at this point that there does in fact appear to have been a deterioration in the time taken to deal with cases in the 6 years since 1997. In 1997 the peak of cases disposed in the sheriff court was 8-9 weeks; in 2003 the peak was 11 weeks. In the district court it was 9 weeks in 1997, 10 weeks in 2003.

2.29 We were also particularly concerned that the overall time between the offender being charged and final disposal was not routinely measured. The exercise the Crown Office and Procurator Fiscal Service helpfully conducted for us, as well as measuring the time between the case being reported by the police to the fiscal and disposal, also showed that in 2003 significant numbers of cases - 24% in the sheriff court and 16% in the district court - had not been disposed of 50 weeks after the offender had committed the offence. That exercise showed that the numbers of cases and the percentages of the cases disposed of within given periods between the date of the offence and the date when the case last called in court, i.e. the date of disposal, were as follows:

2.30 In our view, and in that of most of those who responded to our initial consultation, a system which fails to dispose of over half of all cases within 6 months of the date of offence cannot truly be considered to be summary. We believe there are many reasons for the slowness of the system which we address in subsequent chapters of this report. We noted, for example, that there was little differentiation in the way cases were handled by the system. All cases, whether serious or minor, tend to follow the same trajectory in terms of reporting, prosecution, adjourned diets and eventual disposal, overloading the system and adding to delay. We were unable to find any incentives at work that might encourage the efficient handling of business; in fact those that were possible to identify appeared to work in the opposite direction. There appeared to us to be clear incentives for the accused to delay cases in the hope that witnesses would forget details of the relevant event or become indifferent to the outcome of the case and not turn up to give evidence at trial, or that the prosecution would simply give up and desert the case in order to concentrate its resources on more recent cases. Anecdotal evidence from many courts suggests that this is common practice and that it succeeds in getting complaints or parts of complaints dropped.

2.31 During the course of the review we visited a number of different courts as well as accumulating large amounts of data on how the system was administered throughout Scotland. We were struck by the lack of consistency. This was reflected in structural aspects such as the varying levels of district court accommodation, ranging from new and purpose built to, frankly, dilapidated. There were also inconsistencies in the way almost all agencies dealt with summary business; for example, the time taken for the police to report cases to the procurator fiscal varies from 89% within 7 weeks in the best performing force in this respect to 35% within 7 weeks in the worst. Cases marked no proceedings by the procurator fiscal range from 6% of cases reported in some areas to 25% in others. There is also wide variation in the management of cases once they get into the courts' systems. In the sheriff courts, intermediate diets dispose of 17% of cases in some areas and 40% in others, while of those cases which continue to the trial diet over 50% plead guilty on the day in some courts and less than 20% in others. Some, but not all, of these inconsistencies can undoubtedly be explained by particular circumstances, but nevertheless we are clear that there is scope for a significant improvement.

2.32 We were concerned that the system was perceived to be ineffective by many of those that work within it. The police, for example, expressed their disquiet to us about what they see as the high numbers of cases marked no proceedings by procurators fiscal - the overall figure for 2002-3 was 17% of reported cases. The procurators fiscal we spoke to often commented that they might make more use of alternatives to prosecution, in particular the fiscal fine, but for concerns that they would not be effectively enforced - that in some areas offenders are in practice paying a single 5 instalment in the confident knowledge that little further can or would be done to pursue the matter. For those offenders who are fined in court, but who cannot or stubbornly refuse to pay, there is the sanction of imprisonment. But here also we were told that many offenders are aware of how to play the system, so that very short stays in prison, maybe of only a single night, can discharge outstanding fines, but at significant cost to the Scottish Prison Service in dealing with these receptions.

2.33 We also had some concerns about the value for money obtained from some of the expenditure in the system. For example, we were told by the Scottish Legal Aid Board that a recent analysis of a sample of cases showed that of all those individuals who receive full summary legal aid on the basis that they had pled not guilty, only 17% of these cases actually proceeded to the trial hearing. Another statistic which caused us concern was that, in the year up to the end of August 2003, 71% of trials were adjourned at least once and 29% of trials were adjourned twice or more. ³ This causes immense waste of public funds - in terms of court, prosecution and defence costs - as well as considerable inconvenience to victims and witnesses as well as criminal justice professionals.

2.34 As has already been said, we do not wish to overstate the case and assert that the system is in crisis. Nevertheless we think that the summary justice system is in need of a comprehensive overhaul and a move to focus on active management of it as a whole rather than of its constituent parts. In this respect we welcome the recent report by Andrew Normand CB ⁴ (now Sheriff Normand) with its proposals for Criminal Justice Boards to address corporate performance issues.

2.35 The Committee's proposals seek to remedy the difficulties identified in a way consistent with the principles set out earlier.

2.36 The next main sections of the report deal with the issues of system structure. We were unanimous that unification of the summary court system would be conducive to greater consistency and simplicity, as well as long-term efficiency. The Committee also recommends (a minority dissenting - see annex A) that a unified summary court in which all cases were heard by a professional judge would further contribute to a simpler and more consistent system, while also saving money by enabling the most flexible use to be made of court resources.

2.37 The bulk of the Report deals sequentially with the way in which the system operates from the point at which an alleged crime or offence is detected. A number of strategies identified here are common to each stage of the process: for example, the Report recommends throughout the most effective use of modern technology to streamline communications between agencies and to improve information flows.

2.38 Picking up the principle that effective action is quick action, the Committee makes a number of recommendations to ensure effective action can be taken as quickly as possible against breaches of the criminal law. Proposals to extend diversions from prosecution by the use of recorded police warnings, the extension of police fixed penalty notices (FPNs) a wider range of fiscal fines (more effectively enforced) and new fiscal compensation orders are intended to offer a range of proportionate responses ensuring that sanctions can be imposed for minor breaches of the criminal law.

2.39 Once a case is reported to the procurator fiscal and a decision has been taken to prosecute, the Report makes a number of proposals designed to speed up prosecution without loss of fairness to the accused. Some of the key elements in that strategy are:

• getting an accused to court as soon as possible after charge;
• encouraging early pleas of guilty by ensuring that the defence is informed as early as possible of the evidence against the accused;
• more effective use of intermediate diets; and
• more effective use of the trial stage, including scope for trial in absence.

2.40 Delay is also evident when appeals are lodged following completion of the trial process. To reduce the overload on the High Court of Justiciary, the report recommends the creation of a new summary appeal court for summary sentence appeals, chaired by the sheriffs principal.

2.41 As noted above, effectiveness in the criminal justice system is closely linked to enforcement. Most penalties imposed in the summary criminal system are financial ones. The report therefore analyses in some detail flaws in the current enforcement of financial penalties and proposes a centralised system for enforcing fines and other penalties with effective sanctions.

2.42 Finally, the report looks at the issues of accountability - how can success be measured and how, in a complex system, can the stakeholder organisations take joint ownership of joint targets? We suggest some of the key success criteria which should be measured and recommend that the National Criminal Justice Board, on which the key stakeholders are represented, should take the lead in finalising them and then monitoring the success of changes once they are implemented.

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