« Previous | Contents | Next »
Listen
The Summary Justice Review Committee: REPORT TO MINISTERS
Chapter 13: UNDERTAKINGS TO APPEAR IN COURT
13.1 Summary criminal cases first call in court either when the accused appears from custody, usually on the first court day after arrest, in answer to a citation served on the accused along with a copy complaint or in compliance with an undertaking given by the accused when released by the police to appear at court at a particular time. The great majority of cases at present commence with the citation of the accused.
13.2 As we have explained elsewhere (see para 2.29) there is often a long delay between the date of the offence and the date when the case first calls in court following citation of the accused. We consider that one of the key components to ensure the effective despatch of summary business is a reduction in the time taken to get an accused into court. In this context we were keen to explore the potential for a significant expansion of the bail undertaking scheme. This scheme is currently used to fast track certain cases, often drunk driving cases in sheriff courts. In these cases the accused is usually released from a police station having been charged and after having given an undertaking to attend court on a certain date. The complaint is served on the accused when he or she appears in court on the specified date as a complaint would be on an accused who appears from custody. The use of undertakings clearly allows for cases to be brought to court significantly faster than cases commenced by citation.
13.3 The present distribution between cases appearing from custody, or on undertakings, etc. is illustrated by the following data based on cases closed with a summary court disposal between July- September 2003).
Sheriff court cases
- 57% Cited;
- 11% Undertakings;
- 24% Custodies;
- 6% Warrants;
- 2% Reduction to Summary/Other.
District court cases*
- 89% Cited;
- 2% Undertakings;
- 7% Custodies;
- 1% Warrants.
*excluding stipendiary magistrates' court in Glasgow
13.4 The scheme we envisage is that, in the great majority of cases in which a summary prosecution is likely, at the police station the accused would sign an undertaking to appear at a particular court on a particular date and at a particular time. It would, of course, be for the procurator fiscal to formulate any charge against the individual, but the undertaking form should describe the offending behaviour being reported to the procurator fiscal in sufficient detail for him or her to obtain legal advice in advance of the date on which he or she is due to appear in court. The police would have electronic access to the availability of slots in the court programme within the following three to four weeks. We envisage that local arrangements would be put in place to limit the number of cases which would call in court at a specific time. The police would not require to have access to the whole court diary. Nor would the court need to be given the names of those who had given an undertaking. All that would be required is that the court would allocate a number of slots at a particular time in the week. Once these slots had been used up the police would be shown the next available time on a computer screen.
13.5 In any expansion of the undertaking scheme we accept there should always be discretion allowed to the Crown to determine how cases should ultimately proceed. We envisage that the procurator fiscal would retain the option of determining that there should be an alternative disposal such as diversion or fiscal fine/compensation order, or to change the court district in which a case would be heard, once the report of the case was received from the police. We note that the introduction of a unified summary court, with all-professional judges (all having the same jurisdiction), would remove the need for the procurator fiscal to specify in which particular level of court a case should be prosecuted. All cases calling in court following an undertaking would be allocated by the court to a sheriff or a summary sheriff. The police would not take the place of the procurator fiscal who currently determines whether the case should call before the district court or the sheriff court (or in Glasgow district court whether the case calls before a stipendiary magistrate or a lay justice).
13.6 In this scheme where the police become, in effect, the gatekeepers of the summary court system it is worth reiterating the point we make elsewhere (see chapter 12) on the need further to develop close working relationships between procurators fiscal and the police.
13.7 Options open to the procurator fiscal when an accused is released on an undertaking to appear in court would be:
- proceed in the usual way with a summary prosecution following service of the complaint on the accused at court; the case could be dealt with that day if there was a plea of guilty; or
- move for the case to be continued on the strength of the undertaking without a complaint being served for further investigation or for consideration of diversion or offer of fiscal fine;
- intimate before the case calls to the accused that the case would not call and arrange for a form of diversion; or
- intimate in advance to the accused that the case would not call and offer a fiscal fine;
- intimate in advance that there would be no proceedings.
13.8 Turning to the types of case that might be dealt with by bail undertakings, in the most serious cases, accused are detained in custody pending their appearance in court. We recognise that it would be unrealistic to say that all other cases should be prosecuted by means of an undertaking.
13.9 Police officers whom we have consulted pointed out that at present many accused are dealt with on the spot rather than at a police station, and there would be some difficulty at present providing an accused with a date for a court appearance. Undertakings would be more easily issued at the police station rather than on the street - there would be a controlled environment, it would be supervised, there would be the opportunity for fingerprinting and taking DNA samples and the ability to use a computer to generate the necessary documentation.
13.10 We are, however, aware that in other jurisdictions, such as New South Wales, the police are able to use a similar procedure to deal with offenders on the spot. This procedure is called a Field Court Attendance Notice. As the name implies, these are forms which can be used to issue what would be an undertaking in Scotland. Field Court Attendance Notices contain details of the defendant, the police officers involved and the offence(s). The notice directs the defendant to appear in a particular court at a specified time and advises him or her to obtain legal advice immediately. It goes on to state: "On your first date of appearance at court, you should be in a position to advise the court, if required, of whether you wish to plead guilty or not guilty to the alleged offence." It advises the defendant what to do if he or she requires an interpreter and concludes by stating: "Failure to appear may result in your arrest or in the matter being dealt with in your absence."
13.11 We do not suggest that an equivalent procedure, involving release on undertakings away from a police station, should be the first stage here, although we do recommend that thought be given as to how it could be developed.
13.12 The Lord Advocate has issued guidance to Chief Constables relating to liberation by the police. This includes guidance on the use of undertakings to be used in situations in which detention in custody of the accused is not merited, but where it is appropriate to fast-track the accused's appearance before court. In general terms, at present, cases are identified as suitable for undertaking on the basis of characteristics of the offender or victim more than on the nature of the individual crime charged. Examples of where an undertaking might be used are: where the accused is on bail, probation or the like, but the offence for which he or she has been apprehended is of a minor nature and there is no other reason to detain the accused in custody; or where the involvement of child victims makes it preferable to bring the case to court without delay. There is scope for making local arrangements for specific categories of offence, and it is the norm, for example, for drink/driving or football-related offences to be dealt with by undertaking. We consider that release on an undertaking should become standard practice in relation to those alleged to have committed offences covered by the guidelines who are taken to a police station and who are not detained in custody. This might be achieved by extended guidelines issued by the Lord Advocate, at least during a transitional period, while there continues to be a backlog of cases in the system.
13.13 As the next stage we recommend that all cases which are dealt with in police stations other than by detention in custody should use the undertaking procedure to arrange the first appearance in court. We would hope that, as the procedure beds in and technology and practice develops, it would eventually be possible to issue undertakings notices irrespective of whether the defendant was dealt with at the police station or on the spot. This would require developments in practice, such as the police having remote access to court sitting dates - but would potentially reduce the delay between detection and first appearance in court very substantially.
13.14 We have consulted widely on this aspect of our proposals, and although on the face of it they would require a greater effort on the part of the police and COPFS (at least early on in the proceedings, but with savings later) we have been encouraged by the generally very positive response. The police to whom we spoke supported increasing the use of undertakings in an effort to reduce the time taken to bring offenders to court but thought that the introduction of an expanded scheme would have to be incremental - there would be a backlog of cases already programmed into the system which would have to be dealt with in addition to those cases in the future appearing in court more quickly. They recognised that although expanding the use of undertakings would place new pressures on the police and procurators fiscal, if it was part of a package to speed up the system and reduce time spent dealing with minor offences, it was a process management challenge which the police would meet. Consultation with procurators fiscal also indicated they thought there was scope for expansion of the undertaking scheme, with the proviso that there was enough time for the prosecution and the defence to prepare for the first calling of the case in court. The same number of cases would still have to be marked, but at an earlier stage.
13.15 We are aware of changes introduced in England and Wales following the Narey Report, and in particular the streaming of cases to Early Administrative Hearings and Early First Hearings. There is a statutory requirement for a person arrested and released on bail to appear first in court at the next available magistrates' courts slot. In practice this has meant that cases are being heard a matter of days after the offence was committed. We take the view that there is a danger that the defence and prosecution would not be adequately prepared if cases were brought to court after such a short period in Scotland, and we understand that in England and Wales there has been some similar concern that cases are appearing in court before they are ready to do so. We do not think that the extension of the undertaking scheme that we are proposing would produce similar difficulties. We consider that undertaking cases should call in court within 3-4 weeks of the undertaking being given. Over time it may be possible to reduce that period particularly if, as we recommend, the numbers of cases which are dealt with by prosecution diminish and are dealt with more expeditiously once they reach court, e.g. by increased pleas of guilty at earlier stages.
We recommend that in the great majority of cases in which a summary prosecution is likely, the accused, if not detained in custody, should sign an undertaking to appear at a particular court on a particular date, and at a particular time. We recommend that this be introduced in phases.
We recommend that the first phase should include, as a broad category, cases to be identified by Lord Advocate's guidelines, with a second phase encompassing all cases dealt with in police stations.
We recommend that, as a third phase, consideration should be given to the introduction of a system of undertakings completed by police officers elsewhere than at a police station.
We recommend that police officers be given access to slots in court diaries within the next 3-4 weeks to allow them to fix times suitable to the court for accused persons to appear on an undertaking.
We recommend that where an accused has been released on an undertaking procurators fiscal should retain the option of determining that there should be an alternative disposal, such as diversion or fiscal fine, or no proceedings and, if so, should be able to cancel the requirement to appear.
We recommend that it should be possible for the case to be continued for further investigation or for consideration of diversion or offer of fiscal fine on the strength of the undertaking without a complaint being served.
« Previous | Contents | Next »