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The Summary Justice Review Committee: REPORT TO MINISTERS

Chapter 5: A UNIFIED SUMMARY COURT SYSTEM

Introduction

5.1 One of the first issues the Committee addressed was that of the future structure of the summary court system. Its first order consultation addressed the issue of whether there should be a single summary court system. If unification went ahead, it also sought views on whether a unitary or two - level summary court would be required and which judges - lay and professional or professional only - should deliver summary justice.

5.2 There are two separate issues to be resolved here, although responses to consultation reflected a degree of confusion between them. ¹¹ The report deals with them in separate chapters. The first issue dealt with in this chapter is that of how summary justice in Scotland should be organised and administered. Should we continue with the current pattern of central administration of sheriff courts by the Scottish Court Service on a consistent basis, but the administration of district courts on a highly localised basis by 30 local authorities? Or should we now move to a single, unified court administration? On that latter model there would no longer be local authority involvement in running local courts. Instead a single body - in effect an expanded Scottish Court Service - would administer all courts.

5.3 There is a separate and (for the Committee) more contentious issue about the level and nature of judges who should, in the future, deliver summary justice. Should the future pattern continue with a mix of lay and professional justices, or should Scotland move to a fully professional judiciary in the summary courts? There is no necessary link between moving to a unified court administration and moving to a wholly professional judiciary: in England and Wales they are currently unifying court administration while retaining lay magistrates with an expanded jurisdiction. There was a range of views within the Committee on this issue, reflected in a majority report in chapter 7, and a note of dissent from two members (annex A).

The Committee's approach

5.4 In examining the issue of court administration, the Committee focused on achieving the right fit between its recommended strategy for the summary criminal justice system and the structures and systems needed to support the delivery of that strategy. We paid particular regard to the key principles set out in chapter 2, particularly those of effectiveness, simplicity and consistency. Within that framework the way ahead should, we felt, be decided on principles of best value - realising the optimum balance between economy, efficiency, effectiveness and quality.

5.5 These considerations were applied to the infrastructure needed to deliver an effective administration - good quality service to court users, full support to the bench, planning and delivery of investment in the estate and technology and a simple structure which facilitates greater integration of the criminal justice system and scrutiny of its performance.

5.6 We concluded that unified administration would offer:

• planning for and investment in infrastructure, IT and training on a consistent basis across Scotland;
• benefits to court users through administration by an organisation specialising in this distinctive area of service provision;
• greater flexibility both in terms of case management and in terms of making optimal use of resources;
• a system capable of greater consistency, transparency and accountability;
• a system which is more responsive when change is required; and
• a more pro-active system of case management.

Support to the Bench

5.7 The administration of justice in the sheriff courts is regulated by the sheriffs principal in the exercise of their authority as set out in the Sheriff Courts (Scotland) Act 1971. Sheriffs principal have a statutory responsibility to secure the speedy and efficient disposal of business in the courts within their Sheriffdom. They are responsible for such matters as:

• the programming of court business;
• the allocation of business to individual sheriffs;
• the general conduct of court business; and
• judicial leaves of absence.

5.8 The recruitment of sheriffs is regulated by the Judicial Appointments Board and their training by the Judicial Studies Committee.

5.9 Leaving aside the question of a lay or professional bench, the Committee considered the differences between this arrangement and the position as it exists for justices and assessors in the district courts.

5.10 Scotland's Commission Areas - the local authority areas in which district courts are run and managed - are inevitably widely different in scale and resources. For example, the three courts in Argyll and Bute each meet monthly. The monthly caseload in Lochgilphead, the least busy court, is only 20-40 cases. Contrast that with Edinburgh, running eight courts per week to deal with an average weekly caseload of 225 cases or Glasgow, running a full 5 days a week to hear almost 400 cases. ¹²

5.11 The variations between Scotland's district courts are not simply the result of its widely varying density of population. Local authorities are obliged by statute to provide a legally qualified court clerk and "suitable and sufficient premises and facilities for the district court". They have considerable local latitude in interpreting these broad requirements, however, and there is no requirement for minimum training for justices, nor any centrally prescribed training or competences. It appears that central prescription of training was originally envisaged when the District Courts Act was framed - Section 14 provides that:

"[Scottish Ministers] may make schemes and provide courses for the instruction of justices of the peace, and it shall be the duty of the Justices' Committee of a Commission area to implement and administer any such schemes in accordance with arrangements approved by [Scottish Ministers]."

As a matter of fact, however, no such schemes have been provided. The District Courts Association has taken steps to introduce a National Competence-Based Framework, and arranges regular training courses of good quality, but has no power to require that all justices attend.

5.12 The result appears to be a wide geographic variation in the number of days training provided/funded per year: the survey already quoted suggests a range of between one and 12 days per year training for justices. The amount of time that legal assessors spend on summary work as opposed to any other council legal activities is not consistent and consequently their quality and experience is variable. Again, information provided suggests that the amount of training which they receive differs widely between Commission areas. In discussion with a number of local authority legal staff the point was made to the Committee that there is no natural progression for clerks involved in district court work. This can lead to a lack of motivation to deliver high standards or improve on existing standards.

Investment in the Estate

5.13 A stated objective of the SCS is to provide courthouses of appropriate size and quality. This means that SCS takes all reasonable steps to ensure that all sheriff courts comply with statutory requirements - Health and Safety, Disability/Access as well as the ECHR. The terms of the Scottish Strategy for Victims are applied consistently across sheriff courts - where possible providing for segregated witness accommodation and particular provision for vulnerable witnesses.

5.14 Within the district court estate there are clear variations in terms of investment in premises. In some areas new premises to a high standard have been provided or older premises refurbished, but the standard in other areas is not so high and in a few places poor. The Committee found it impossible to get an accurate estimate of recent capital expenditure on district courts, because in many cases courts are housed within larger complexes (for example, within the council chambers) so that capital expenditure incurred may not have been recorded specifically against the court. It is, however, clearly impossible to devise an overall strategy for the district court estate within the current management arrangements nor is there ready scope for cross boundary rationalisation even where that might be appropriate.

Investment in Technology

5.15 The Committee also considered the issue of IT investment and planning. The continuing development of linkages between IT networks in the criminal justice system will play a crucial part in improving the effectiveness of summary justice in the future. This work is being taken forward under the ISCJIS ¹³ project. ISCJIS is not a separate computer system; it is a programme of IT protocols which automate information sharing and exchange between the various agencies. Apart from facilitating case management, ISCJIS improves the efficiency and quality of information input to the Scottish Criminal Records Office, which is the main repository of information in the summary justice system and the source of most information published by the Justice Department on system performance.

5.16 We noted that all but two local authorities now have or are developing electronic court management and fines enforcement systems for their district courts. Some courts (including those in the four large cities) are now "live" on ISCJIS and transmitting information to SCRO; others are working towards full ISCJIS integration.

5.17 The Committee applauded the commitment of local authorities to the improvement of data flow in relation to district court business. It felt, however, that similar issues arose in relation to IT as in relation to estates. The current fragmentation is not conducive to the development of a national IT development strategy for the courts, nor does it make for straightforward amendment and development of the IT system in response to new demands and new data flows. Recommendations later in this report will, if implemented, necessitate the retention of additional information by SCRO - on, for example, recorded police warnings. It will be critical to success that the necessary data pathways can be specified simply and quickly and implemented in a standard fashion.

5.18 The Committee considered that greater consistency in investment in staff, IT and training - based on proper national needs assessments - was essential to support high quality, consistent justice.

5.19 It felt, however, that it would be unrealistic to secure that improvement by imposing new monitoring schemes, standards and targets on local authorities in relation to a function which it might well be argued is not a core business of local government. This is perhaps particularly true in a small jurisdiction like Scotland. For many local services variation between localities may be an appropriate response to varying needs. But the delivery of justice is not a purely local service. Justice should be delivered in a consistent way and within an equitable framework of support regardless of the identity of the accused or where he or she lives.

5.20 The Committee concluded, therefore, that economies of management effort could be secured, and consistency of infrastructure improved, by centralising court administration within an expanded SCS.

A Better Deal for Court Users from Support by an Agency Specialising in Courts Management

5.21 The quality of provision in the sheriff courts is established by SCS standards as set out in the Statement of Charter Standards. This provides for standards of accommodation and front line service to be applied to all court users. There is also a particular provision for witnesses as set out in the joint COPFS/SCS statement on Crown Witnesses.

5.22 Levels of service provision in the sheriff courts fully support the Scottish Strategy for Victims. In particular, a Victim Support Scotland Witness Service is established in all sheriff courts. The support includes particular arrangements such as pre-trial visits for those attending court. Replicating this in the district courts would, under current arrangements, require VSS to co-ordinate its Witness Service provision with 32 local authorities.

5.23 A court user satisfaction survey was piloted early in 2003 by the Scottish Court Service. The survey included all non-professional court users in a sample of courts and formed a good basis for an improvement plan and a valuable insight into the expectation of users. This kind of activity is clearly much easier to organise within a unified system and change much easier to implement.

5.24 Other illustrations of the advantages of unification considered by the Committee included the need for a clear strategy to meet the physical requirements of the Disability Discrimination Act 1995, and the equal need to deliver good quality interpretation facilities to meet the ECHR requirements of a fair trial. Local authorities are of course addressing DDA requirements but for them courts are - inevitably and correctly - a small part of what they do. SCS has undertaken a full independent review of its built estate, and has begun a phased programme of work designed to address the physical requirements of part III of the Disability Discrimination Act. In relation to court interpretation local authority practice is variable; again, it is easier for SCS to address centrally the issue of monitoring and driving up standards of court interpretation.

5.25 These illustrations highlight the range of issues which need to be addressed on a consistent basis across Scotland. The Committee considered that greater economy of effort and consistency could be achieved by unified management of the court estate and court services by a central agency. It also took the view that single management would make it easier to address the changes required, and to monitor progress.

Greater Flexibility

5.26 A unified system would have practical advantages. Many persistent offenders have several pending cases at any given time, sometimes 10 or more. Commonly these cases will be in more than one court. If the management of the summary justice system was unified it would be easier to transfer most cases to one court, where the offender's behaviour could be addressed in the round. (See chapter 16 below for further discussion of dealing with multiple cases against an accused.) Delays and adjournments to await the outcome of other cases would be reduced.

5.27 A unified system will promote economies of scale and greater flexibility of case allocation between different court premises. This has obvious advantages for both police and procurators fiscal, with fewer courts to service and more scope for effective deployment of limited manpower. A single unified court eliminates the need for the procurator fiscal to make marking decisions for different levels of summary court and allows more flexible management of court workloads and individual cases. One local point providing summary justice is also easier for the public to identify and respect/understand; interestingly, current awareness of the district court and its role was shown by the public attitudes survey to be low.

5.28 Research commissioned by the Committee on the costs of the summary justice system (see also paragraph 7.68) suggested that there is an optimum size for a summary court in terms of cost per case. The unification of the summary courts would offer an opportunity to use the current district court estate in combination with the sheriff court estate to create units closer to the optimum sizes identified in the research. We do not however suggest that achieving optimum size of court unit should be the sole criterion and we recognise the importance of maintaining local access to justice.

Greater Transparency, Accountability and Responsiveness to Change

5.29 There is increasing awareness in Scotland that it is no longer enough to focus on the performance of the individual service delivery organisations in the criminal justice field. The focus is much more on the effectiveness of the system as a whole in delivering end-to-end justice - from the point at which a crime or offence is detected to the point at which the case has been disposed of and/or the offender has paid his or her debt to society.

5.30 In 2002 the Lord Advocate and Deputy First Minister commissioned the Crown Agent, Andrew Normand, to carry out a review with the following remit:

"Having appropriate regard to the interests of justice, to make proposals for the integration of the aims, objectives and targets of the principal agencies which make up the criminal justice system in Scotland, in order to ensure the more efficient, effective and joined up operation of the system and to secure delivery of the criminal justice priorities of the Scottish Executive."

5.31 Background work undertaken for Andrew Normand's Review revealed widespread concern among staff in the core delivery agencies - the police, the Crown Office and Procurator Fiscal Service, and the Scottish Court Service - about the failure of the system as a whole to operate as such. The report noted:

"This research established a very clear recognition of the need for closer and more effective working relationships between the different criminal agencies and it disclosed an apparently genuine commitment to the idea that things should be different and better."

It disclosed serious problems of inter-agency communication, knowledge and understanding and "organisational empathy".

5.32 In response, the Review recommended that:

"There should be a top level national board of senior officials and officers to oversee the operation and performance of the Criminal Justice system against the overarching aim, objectives and targets, to keep those under review, to ensure co-ordinated and consistent planning across the system and to be responsible for a national CJS plan."

5.33 The Review also recommended an effective framework of co-ordination and liaison at local level in the form of local criminal justice boards.

5.34 In response, the first meeting of the National Criminal Justice Board was held on 1 December 2003, and pilots of local boards to be chaired by the sheriff principal are underway in the sheriffdoms of Lothian and Borders and of Tayside, Central and Fife.

5.35 The Committee agrees strongly that a system-based approach is required. Such an approach is, however, likely to be more effective if the system is as simple as possible. Unified administration of the summary courts would give a single clear line of judicial and management responsibility for the delivery of justice in 96% of the cases which come before the courts in Scotland. An arrangement whereby a sheriff principal had responsibility for the management of all the summary courts in a given area would ensure that there are much more direct lines of management and accountability, consistency and provision across a wider area (six sheriffdoms compared with six sheriffdoms and 30 or 32 local authorities) and a more manageable and focused system. It is not suggested that local criminal justice boards will have a direct line management role.

5.36 The Committee has noted the strong interest shown recently by Parliamentary Committees in the wider issue of whole system efficiency and effectiveness. It has concluded that accountability would be enhanced, and scrutiny by Audit Scotland and Parliament facilitated, if single management of the summary courts was put in place.

5.37 For all these reasons the Committee considered that a unified summary court system would be preferable in principle to the current mixed management by the Scottish Court Service and 30 local authorities.

Potential Cost

5.38 The Committee also considered that unification of the court system offered scope for long-term cost efficiencies. In relation to the court estate, as already noted, the current fragmented management offers no scope for cross boundary rationalisation to reflect shifts in population or changes in the volume of business. Preliminary assessment by SCS indicates that a unified summary system with the current caseload could operate with around 60% of the court buildings currently used for summary business, including all the current sheriff courts. This assessment is designed to leave sufficient leeway within the sheriff court estate to cope with other pressures (such as the steady increase in solemn business). It would not involve a major increase in travelling time for individuals required to appear in court or to give evidence, since the planning assumption used is that the vast majority of the Scottish population should be within a maximum 45-60 minutes travelling time of the nearest court. In almost all cases locations will be accessible by public transport within that time. An increase in the proportion of cases diverted from prosecution may offer scope for further rationalisation, though the Committee recognised that that scope would be limited by the need to ensure ready access to local justice.

5.39 Rationalisation also offers scope to use the courts retained more efficiently. At present some courts within the summary system are overloaded, while others are operating well below optimal loading. The research carried out on behalf of the Committee by Professor Frank Stephen on the relative running costs of different types of court ¹⁴ found that many sheriff courts were able to operate at a lower cost per case than district court commission areas, even when SCS's central costs and those of sheriffs' salaries were factored in. This counter - intuitive finding is probably linked to the steep fall in the number of cases handled by the district courts over the last ten years, and hence to increasing running costs per case. Unification offers an opportunity to adjust court loadings to achieve greater efficiencies and hence lower costs per case. It does however need to be recognised that if consistency is to be realised across a combined estate there may be a need for additional initial investment in some places and ongoing overall investment in parts of the present district court estate if consistent standards are to be maintained.

5.40 In terms of staffing, initial SCS estimates suggest that they would require a relatively small number of additional staff - around 70-80 - to run a unified system. This compares favourably to our best estimate of the FTE number of staff currently engaged in running the district court system. Local authorities' own returns suggest a figure of around 180 FTE non-legally qualified staff, with around 55 FTE legally qualified staff who act as clerks of court.

5.41 And, as noted above, a smaller estate means fewer journeys for the police and for those escorting prisoners to court, and fewer places of work for the Procurator Fiscal Service, offering scope for greater efficiencies through more effective staff deployment.

5.42 The Committee noted, however, that those SCS estimates were predicated not only on the creation of a unified court system but also on a unitary summary court run by professional judges with a common summary jurisdiction. The arguments for that latter approach are covered in chapter 7. A decision to retain lay justice and to create a two-level summary court would necessitate recalculation, likely to show a decrease in flexibility of judge deployment and case allocation and hence an increase in costs per case.

5.43 The Committee recognised that costs to SCS were only part of the unification equation. The consequences for local authorities of transition to a unified system from one in which they have individual responsibility for the provision of district court premises and facilities would need to be worked through in detail with COSLA.

5.44 Following a discussion between representatives of the Committee and of COSLA, COSLA undertook a quick consultation with members on the principle of a unified summary court. The results of this consultation showed that the majority of councils do not currently support unification, fearing that summary justice may be less accessible and accountable in a centralised regime. We recognise those fears and have tried to demonstrate above that a unified system could offer greater accountability with no significant loss in access (on that latter point, see paragraph 5.38).

5.45 We also recognise that a good deal of further work would need to be done in partnership with COSLA on our proposals for a unified system. That further work goes beyond the Committee's remit, but issues for consideration would include:

• the arrangements by which SCS would acquire or lease court buildings currently in local authority ownership;
• the financial implications for local authorities of courts no longer required;
• the arrangements to protect the interests of staff whose transfer to SCS is required; and
• the scope for local authorities to absorb staff whose transfer to SCS is not required.

5.46 The Committee feels strongly that unified administration of the summary court system offers scope for a more efficient, transparent and accountable court system, better able to respond quickly when change is required. Preliminary assessment of the size of the estate and of staffing required suggest scope for long term efficiencies, notwithstanding the need for investment in improved physical standards (for example, Disability Discrimination Act compliance) and for enhanced staff training.

5.47 We recognise, however, that the process of unification will be one which needs to be worked through in detail with local authorities through COSLA and that these discussions should commence as soon as possible.

We recommend the unification of the administration of the summary courts under the Scottish Court Service.

We recommend that discussions between the Scottish Executive and COSLA on the implementation of this proposal should begin as soon as possible.

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