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The Summary Justice Review Committee: REPORT TO MINISTERS

Chapter 33: HOW WILL WE KNOW WHETHER THE CHANGES WE RECOMMEND ARE WORKING?

33.1 The Committee recognised the importance of building into the system ways of measuring the success of the changes recommended.

33.2 Paragraph 5.30 refers to the work now being done to take forward the recommendations of the Normand report for joined up targets across the system and for the creation of criminal justice boards at national and local level to monitor system performance. The Committee strongly supports that work, and sees the National Board as the natural forum within which to develop the recommendations below. We saw our role as indicating to the Board the direction which we consider quality monitoring of the summary justice system should take.

33.3 Before considering targets, however, the Committee considered a more radical option. Should we recommend that a new statutory time limit be set for the completion of summary cases? Most of our recommendations seek to achieve a more speedy summary justice system. Why not guarantee greater speed by providing that cases which have not completed their passage within (say) 6 months of the alleged offender being reported to the procurator fiscal can no longer be prosecuted?

33.4 We have seen the results of an exercise that tracked summary cases from the time of the report to the procurator fiscal to the date of the last court hearing associated with the case. This exercise, which looked at cases closed in the period July to September 2003, was constructed to allow us to compare it to a similar exercise looking at cases closed between April and September 1997.

33.5 The longer time period over which the sample in the 1997 exercise extended (6 as opposed to 3 months) and the greater levels of District court business account for the higher numbers of cases closed in the earlier exercise. Nevertheless the comparisons between the percentage figures are interesting and appear to confirm that the time intervals have increased.

33.6 In sheriff courts the proportion of cases completed at each of the 10-, 15- and 25-week intervals was around 6 percentage points lower in 2003 than in 1997. The difference is less marked in the district courts, though there were reductions of 4 and 6 percentage points respectively in the proportion of cases completed at the 10- and 15-week intervals. This was despite a significant fall in the district court caseload between the 2 years sampled.

COPFS data: summary cases closed April-September 1997 and July-September 2003

33.7 It will be noted that the statistics above take no account of the period from date of offence or from the date when the alleged offender was charged to date of report to prosecutor fiscal.

33.8 The Thomson Committee of 1975 recommended that there should be statutory time limits of 3 months between the offence (or sufficient evidence being made available to prosecute) and the issuing of the citation or warrant, 4 months between the offence and the first diet and 6 months before the trial. The Committee opined that "in most summary cases the offence and the culprit are ascertained immediately and accordingly no more than more six months, and we would hope much less, should elapse between discovery of the offence and trial. There would require to be relaxation for cases where the trial could not commence within the six months on account of illness of the accused or of an essential witness or for some other good reason for which the prosecutor is not responsible. The court would have a discretionary power to extend the period in such circumstances. Furthermore, if an accused left his usual residence and his whereabouts were unknown, so that he could not be cited or arrested timeously, or if he failed to appear at a diet to which he had been lawfully cited, he would not be permitted by doing so to defeat the ends of justice. In these circumstances the prosecution would not be time-barred if the prosecutor satisfied the court that all due diligence had been exercised in the attempt to cite the accused or execute the warrant for his arrest". The Thomson recommendations were not accepted at that time.

33.9 There was within our Committee a deal of sympathy with the view expressed by the Thomson Committee. One of our key objectives throughout our review of the summary system has been the need to make the system quicker and to make the system more effective from the point of view of victims and witnesses, as well as dealing fairly with the accused. During the course of our consultations a number of people expressed support for the introduction of statutory limits for all summary business.

33.10 However, we have reluctantly come to the view that, while it would be desirable to send a clear message about the need for a swifter system, the principal beneficiaries of a statutory time limit at present would be accused who manage to delay their cases or who are lucky enough to be able to take advantage of systemic delays. It will be noted, for example, that the table above shows that at 6 months around 40% of sheriff court and 30% of district court cases have not been completed. We have no doubt that there would be justifiable and widespread public concern if large numbers of cases were to fall simply because they had passed a certain time barrier.

33.11 We take the view then that, if a statutory limit is not feasible, there should be instead rigorous and simple targets that are easily comprehensible and are regularly published. We note that at present there are various sub-targets within the system. We are aware the police operate up to a 4-week target in which to provide a report to the procurator fiscal. The fiscal then operates to a 7-week target to take action, allowing a further 3 weeks for the case to call for the first time in court, and there is a 20-week target for 85% of summary cases to be completed within sheriff courts.

33.12 We have elsewhere stressed the importance of taking a whole system approach to improving summary justice. Our overriding commitment is that summary justice should become more summary. To achieve this, all stakeholders need to take shared responsibility for the progress of a case from the date when it is made known to the police to the date of disposal (court or non-court).

33.13 The Committee recognised, however, that it only had information on the progress of cases which had been prosecuted and had come to court. It found it difficult, and sometimes impossible, to obtain useful information on the progress of cases which were not prosecuted and on the overall progress of cases which were prosecuted at each stage prior to the date of their first calling in court. A substantial proportion of cases are offered non-court disposals or are marked "no prosecution" (see the table at paragraph 11.2). We were unable to establish the average time such cases take from caution and charge to disposal. Accordingly, we recommend that more information be collected about the proportion of cases disposed of at each stage of the process over time and also the time taken to handle not just those cases in which there is a prosecution but different populations of cases - for example, those in which warnings are issued, fixed penalties and fiscal fines are offered, and cases marked "no proceedings". Information relating to the proportion of cases disposed of at each stage of the process over time would provide a better picture of what happens to all cases - enabling more effective management of the processes concerned in turn.

33.14 In relation to cases which come to court, the overarching time target should relate to improving the overall time taken from the point at which the system becomes aware of the crime or offence (or possibly the date when a person is cautioned and charged) to the date of disposal or the date on which sentence is deferred other than for reports. Within that target, individual organisations would inevitably have sub-targets for their contribution to the overall process, e.g. the time taken by the police to report cases to the procurator fiscal, the time taken by procurators fiscal to get cases ready for court and the ability of the court to accept such cases when they are ready. (Some courts restrict the numbers of new cited cases they will accept each week from COPFS.) In relation to cases diverted from prosecution, we recommend that the National Criminal Justice Board should consider what further information needs to be collected in order that sensible time targets can be set.

33.15 The Committee also felt that time targets were only part of the answer. Speed of processing without adequate quality control simply passes on problems to the next partner in the system, resulting in delays later in the process. So quality controls are also required. They and the targets selected should be set with a view to increasing consistency across the system so that significant inconsistency of performance can be easily identified.

33.16 As the Committee noted, the running of all complex systems results in a mix of productive work and wasted effort. The focus of targets should not simply be to speed up the process, but to minimise the amount of wasted effort at each stage. We noted, for example, the English emphasis on reducing the number of "cracked trials" - trial hearings at which no evidence is heard, because, for example, the accused pleads guilty or the Crown abandons the case before evidence is led.

33.17 Many of the concerns expressed to the Committee related to the high proportion of work in the system which could be classified as "wasted effort" and many of our recommendations are targeted at its elimination. There is widespread concern that cases which are prosecuted are too often "churned", i.e. they are continued or adjourned, frequently without any discernible progress having been made since they last called in court. This concern was most forcefully expressed to us in relation to the number of trials which are adjourned on the day of the trial, a good number of them in some courts not for the first time. Our proposals for the increased use of a more flexible range of alternatives to prosecution should ensure that cases are dealt with as soon as possible after they enter the system. Where prosecution is required, our recommendations on more effective use of intermediate diets are intended to ensure that cases come to trial only when they are ready to be heard and when a plea of not guilty will be sustained. Other recommendations seek to minimise wasted effort on the part of the police and other witnesses by reducing the need for them to come to court to give routine or uncontroversial evidence. The success of any changes made following this report should be capable of evaluation.

33.18 The Committee therefore recommends that the National Criminal Justice Board should seek to identify quality controls and targets which in combination will help to eliminate those factors which this report identifies as leading to wasted effort on the part of one or more agencies. In many cases these will be targets shared between agencies. For example, making intermediate diets fully effective depends on good quality information about witness citation. One quality target which might be jointly owned by the police and COPFS service might therefore be that of improving the proportion of witnesses fully cited by the time of the intermediate diet. The joint ACPOS/COPFS protocols on citation (discussed above at paragraph 19.8) are a good example of the increasing recognition within the system that joint agreement on quality standards is the way forward. We strongly support this approach, and feel that so far as possible it should be reflected in joint target setting.

33.19 The Committee also considered the importance of monitoring the effectiveness of the more specific recommendations in this report. For example, we have made recommendations for altering the process following the issue of fiscal fines and fiscal compensation orders and for major changes in the enforcement of all financial penalties, including court fines. If a decision is taken to implement those recommendations, targets need to be set for the percentage of fines and other financial penalties paid in full, the time within which they are paid and the cost and overall effectiveness of the enforcement process. Similarly, the Committee has recommended considerable expansion of the use made of alternatives to prosecution, and it is therefore important to ensure that these alternatives are acceptable and workable in practice and are consistently applied across the country. So targets for acceptance of fiscal fines and fiscal compensation orders would be appropriate.

33.20 Other critical areas in which targets should be set include the satisfaction levels of those who become involved in the system and their objective experience. SCS already carries out a survey of court users which could be expanded to cover the basic information need to measure user satisfaction. But targets are also needed to measure whether objectively the experience of court users is improving. This would need to be based on information collected on a court by court basis on (for example) the number of witnesses cited to attend court per day, the number who attended on time, the proportion of accused and witnesses who gave evidence, the proportion of accused who were required to wait for one hour or less before the case for which they were cited commenced and the average delay between arrival time at court and the time at which witnesses gave evidence. This information might be obtained through a regular sampling process rather than by continuous collection.

33.21 Such information is gathered in Magistrates' Courts in England and Wales. The performance of courts in Scotland as they affect users is currently monitored less comprehensively than it should be, although the Committee is aware of and supports work currently underway between SCS and the Crown on an agreed core data set to support joint work on improved local effectiveness.

33.22 The example of the courts highlights the fact that setting targets is pointless unless the right management information is available. And management information is not just a means to the end of target setting. Enabling individual courts or local criminal justice boards to look at their performance against the Scottish average, for example, is in itself useful. Better provision of more and more focused information to local and national stakeholders will in itself be a motivator which should help to drive up performance.

33.23 The Committee therefore recommends that there should be a clear process within the system for determining the most relevant performance information and for generating it on an area by area and/or a court by court basis. This should be an easily comprehensible system capable of benchmarking between areas and susceptible to trend analysis.

33.24 The ISCJIS project will continue to have a central role in the development of whole system management information (see paragraph 5.15 for a short description of the project). ¹⁰⁰ As a project ICSJIS is moving beyond the basic task of linking information for case management purposes and is now focusing in addition on the scope for deriving cross - system management information from the exchanges.

33.25 A group of experts from the agencies involved is now looking at the best way of gathering and storing the management information required to facilitate easy extraction at a range of levels by partner agencies.

33.26 A number of the proposals outlined in this report (most notably the unification of courts administration) will considerably simplify the future development of ISCJIS. The Committee noted, however, some confusion among those to whom it spoke as to how the future strategic direction of ISCJIS is set. We therefore welcomed the fact that ICSJIS was being brought within the responsibility of the new National Criminal Justice Board, and the fact that ICSJIS is now focusing on the potential of the systems now linked together to generate usable management information to inform policy.

33.27 We therefore recommend that the working up of detailed system targets should be the responsibility of the National Criminal Justice Board, which is uniquely well placed both to agree the best detailed targets and to ensure that the necessary management information is available to monitor those targets in practice.

33.28 The Committee also noted, however, that analysis of management information needs to be complemented by a close practical look at how the system operates on the ground. Local managers do this routinely, but more independent scrutiny is also required.

33.29 We noted the creation of an independent Crown Office inspectorate, complementing that already in place for the police. We also noted the potential role of Audit Scotland, which has recently looked in detail at how effectively the system deals with offending by young people. ¹⁰¹

33.30 The Committee therefore recommends that there should be regular thematic cross agency inspections of critical elements of the criminal justice system. Joint working between the inspectorates and regulatory bodies already in existence should build up a collaborative strategy for regular sampling of the effectiveness of service delivery by the system as a whole. A lay element to such inspections will be important, since it is important to move from the perspective of organisation which suits the agencies involved to organisation which delivers a better service to the system users, particularly victims and witnesses.

We recommend that more information be collected about the time taken to handle not just those cases in which there is a prosecution but different populations of cases - for example, those in which warnings are issued, fixed penalties and fiscal fines are offered, and cases marked "no proceedings".

In relation to cases diverted from prosecution, we recommend that the National Criminal Justice Board should consider what further information needs to be collected in order that sensible time targets can be set.

We recommend that the National Criminal Justice Board should seek to identify quality controls and targets which in combination will help to eliminate those factors which this report identifies as leading to wasted effort on the part of one or more agencies.

We recommend that there should be a clear process within the system for determining the most relevant performance information and for generating it on an area by area and/or a court by court basis. This should be an easily comprehensible system capable of benchmarking between areas and susceptible to trend analysis.

We recommend that the working up of detailed system targets should be the responsibility of the National Criminal Justice Board.

We recommend that there should be regular thematic cross agency inspections of critical elements of the criminal justice system.

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