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REPORT OF THE SUMMARY JUSTICE REVIEW COMMITTEE: SUMMARY OF RESPONSES TO THE WRITTEN CONSULTATION - FINAL REPORT

EXECUTIVE SUMMARY

INTRODUCTION

1. This report presents the findings from an analysis of the responses received to the Summary Justice Review Committee's Report to Ministers (the Report).

THE WRITTEN RESPONSE PROCESS

2. The Report was circulated to a range of organisations and individuals in all relevant sectors in March 2004 with a return date for responses of 16 ^th July 2004. The Report was also made available on the internet with the opportunity to submit a response via a response form which was available on the Scottish Executive website.

3. The distribution of copies of the Report and the consultation reflected a range of organisations interested and involved in the criminal justice system in Scotland, and included sheriffs, justice of the peace (JP) groups, individual Justices of the Peace (JPs) and local authorities.

4. A total of 240 written responses were received from a range of organisations and individuals.

5. This project was essentially a qualitative research analysis of all responses. However some limited quantitative analysis was conducted utilising the database provided to us by the Scottish Executive.

OVERALL ISSUES REGARDING THE REPORT

6. Overall, individual JPs and JP Committees were concerned that research detailed within the Report did not back up the recommendations for abolition of lay justice. Instead, they claimed it supported the value of lay justice.

7. Those against many of the Report's recommendations also believed that the make-up of the Committee resulted in a lack of understanding of the day-to-day running of a district court.

JUDGES IN THE SUMMARY COURT

8. The vast majority (91.7%) of responses commented on the recommendation that lay justice should be abolished. Out of those that commented, 90.9% supported the approach outlined in the Note of Dissent (that lay justice should be retained). The most noticeable support for that approach was amongst JP Committees and JPs themselves.

9. The main reasons given in support of the retention of lay justice were similar to many of those stated in the Note of Dissent, and included:

• The contribution lay justice has made to the Scottish justice system for nearly 400 years;
• The low cost efficiency detailed in the Report was not the fault of lay justice, but due to procurators fiscal sending more cases to the sheriff courts; an increase in the use of alternatives to prosecution; and failure amongst the police to serve warrants in a timely manner;
• JPs are hard working, would be willing to commit to more training and development and would be happy to take on more serious cases;
• The public opinion research commissioned by the Committee contained leading questions;
• The Report lacked evidence that professional sheriffs would be any more consistent in their sentencing than JPs;
• JPs acknowledged inconsistent training and development across Scotland, but strong pockets of excellence existed, and could form the basis of a national framework which included the introduction of more consistent selection policies;
• It is important that courts maintain a relationship with the communities they serve. The Report failed to investigate the benefits of community participation;
• In common with the allegations levelled at JPs it could be said that Sheriffs were not representative of the communities they served;
• There was a fear of redundancies amongst legally qualified clerks;
• The research commissioned by the Committee relating to the cost of cases in the district and sheriff courts (upon which a number of their recommendations in relation to the nature of the judiciary were based) had been conceded by the Scottish Executive to be flawed. As a result of this some respondents suggested that those recommendations should be reconsidered; and
• Respondents felt it was not sensible to pay new summary sheriffs around £80,000 per year for what lay justices currently undertake for no recompense.

10. Only a small minority (9% of those commenting on the recommendation) were in favour of abolishing lay justice, with the main reasons being:

• Very few countries still retain a lay justice system;
• Stipendiary magistrates deliver a more efficient and effective service;
• If moving to a unified court system, JPs would not be necessary due to the reduction in the number of cases coming to the court;
• The present system is inefficient and inconsistent; and
• At present, summary courts are run by two entirely different bodies - combining court unification with professional judges would create the most efficient and effective system to deal with summary justice in Scotland in the future.

COURT UNIFICATION

11. 137 responses (57% of respondents) offered a clear view either in favour or against the recommendation that the administration of the summary courts be unified under the Scottish Courts Service. Over two-thirds of those who offered a clear view on the subject were in favour of unification, subject to a number of qualifications in some cases. Many respondents gave no further reason for their agreement than acknowledging the arguments put forward within the Report.

12. Of those that gave further reasons, these included:

• To ensure the smooth running of the court system it would be logical if the same body handled the administration of all the courts;
• It would lead to higher levels of training;
• There would be better consistency of decision making;
• There would be more cost-effective use of information technology;
• It would allow for a reduction in the number of courts in use; and
• Many felt hampered by the present two-tier system.

13. Amongst those in favour of unification there were still some caveats:

• They would have to be satisfied that all staff who were identified as carrying out district court work were transferred to the Scottish Court Service with full protection of terms and conditions of employment;
• Estates costs and lease arrangements would have to be clearly laid out;
• Lay justice must continue to play a role within the new system; and
• Local people in rural areas should still have access to local courts.

14. Just less than one third of those who offered a view on this recommendation were against unification of the administration of the summary courts. Many of these responses did acknowledge that there was a significant variation in the level and effectiveness of district courts across Scotland. However they felt that a means of achieving common standards should be sought rather than complete unification. Other reasons given for opposing unification were as follows:

• Even the Report acknowledged that few voices were demanding revolutionary change to the summary justice system;
• The historical concept of community involvement would be lost;
• It would remove the democratic accountability the district court had to local council taxpayers;
• There had been few complaints/difficulties aired with the service provided by local authorities and the legally qualified assessors;
• The costing exercise commissioned by the Committee had been found to be flawed;
• There was a general lack of financial evidence cited in the Report that supported unification;
• It would result in great expenditure wastage amongst those courts that had invested heavily in information technology over the past few years;
• In rural areas, very few staff would be eligible for transfer to the Scottish Court Service;
• It would lead to a loss of local courts and staff;
• There was a concern that high level service standards currently provided in some areas would not be guaranteed upon court unification; and
• Inconsistencies could be addressed by introducing clear guidelines and good practice guides for District Courts, within the existing framework.

ALTERNATIVES TO PROSECUTION

15. Many endorsed the recommendation that alternatives to prosecution should be more widely available, more flexible and more robust. However a minority - in particular, JPs - thought an increase in non-court disposals would trivialise crime in the eyes of the general public.

16. The majority were in favour of increasing the scope of fixed penalty notices (FPNs) and fiscal fines, but they acknowledged that non-payment was a serious problem that could hamper their effective extension.

17. Other concerns stated by those who supported increasing the scope of FPNs and fiscal fines included:

• Difficulties arising if alternatives to prosecution were utilised for public order offences where there could be room for debate or dispute;
• There is no transparent guidance regarding the number of FPNs that should be issued before an accused person ought to face prosecution;
• If fiscal fine and fixed penalty levels were increased this could impact on collection levels;
• The process would be conducted away from an open court, which would lead to a reduction in transparency in the justice system;
• The procurator fiscal would become 'judge and jury' in the case and may have little information (particularly about an accused person's means) to inform their decisions;
• The fine would be viewed as a debt to be repaid rather than a show of society's disapproval of an offender's conduct;
• Increased fiscal fine levels may not act as a deterrent to further offending; and
• In imposing an alternative there is no opportunity to assess defence evidence before a decision is reached.

18. The suggested 'opt-out' approach to the uptake of alternatives to prosecution (whereby if the accused did nothing, rather than being called to court, their fine would be registered and enforcement action would commence) was widely criticised by the majority of respondents:

• There were concerns about the ability of offenders to understand this approach;
• Offenders could be disadvantaged by inertia or misunderstanding;
• It would rely too heavily on the recorded delivery method of service;
• Many offenders move addresses frequently; and
• It would create a risk that an accused would be deemed guilty by their silence.

19. Many also felt that the safeguards detailed in the Report fell short of a safe system as they put the onus on the person contesting the offence to demonstrate that they had not received the offer in the first place.

20. Although most respondents who commented on this area agreed to an increase in fiscal fine levels, a £500 maximum was perceived to be too high:

• Fewer fines would be accepted;
• Procurators fiscal often have little or no information about the means of the accused;
• Very few fiscal fines of £75 or above are currently offered;
• Those with a higher salary would be able to avoid a criminal record; and
• A disproportionate number of crimes are committed by non-earning 16-18 year olds.

21. A majority of respondents were in favour of extension to the supervised attendance order scheme and the introduction of fiscal compensation orders - but only in cases where the level of compensation was easily quantifiable, e.g. for a broken window. Others felt that fiscal compensation orders would result in the fiscal becoming prosecutor, judge and jury and that such orders would take little account of the victim's wishes.

FINE ENFORCEMENT AGENCY

22. A number of respondents felt the current system of fine enforcement had little credibility amongst the general public and offenders alike. Consequently they agreed that reform was necessary. However, many respondents were looking for more detailed proposals before commenting further.

23. Most respondents, especially local authorities, were against the creation of a national fine enforcement agency, since they believed that the enforcement of court penalties was a judicial function not an administrative one. Other reasons given for opposing this recommendation included:

• Some local authorities already had centralised fine collection and enforcement within their area;
• There is currently a local familiarity with local circumstances;
• Communities would lose local facilities for the payment of fines;
• It would not be responsive to the needs of offenders;
• The costs of operating and staffing a nationwide agency would be high;
• The obvious benefits of the current system of collection were undervalued in the Report; and
• Analogies were drawn by some respondents with the introduction of the Child Support Agency - and were cited as a cause for concern.

24. There was a difference of opinion regarding the abolition of imprisonment as the ultimate sanction for non-payment of a fine, with many believing that the majority of offenders only pay their fines in the end because of this threat. Others disagreed, arguing that many offenders used this sanction to their advantage.

25. Although many welcomed increased use of supervised attendance orders there was concern that this proposal required further investigation to overcome the difficulties associated with offenders failing to attend or complete their programmes.

26. In relation to the proposal to introduce unit fines views differed amongst the minority of respondents who commented, with most of these accepting that it would make the system fairer by establishing a link between income and size of penalty. However there were concerns regarding the need for clear guidelines and the perception of greater administration costs.

27. Most respondents felt that an increased use of deduction of income from benefits to pay fines would be of little effect, due to the low priority accorded to court fines in the list of allowable deductions by the Department of Work and Pensions. Other difficulties cited included large operational difficulties (including administrative costs outstripping the value of fines recovered), the small recovery levels even where deductions were successful and the lack of automatic transferability between different types of benefit. In addition, offenders' families could suffer if there was any reduction in benefit levels paid to offenders.

SUMMARY CRIMINAL PROCEDURE

Encouraging Early Pleas

28. The majority of respondents who addressed themselves to this issue welcomed these recommendations, believing they would relieve pressure on defence agents. However many were concerned that defence agents would still not be provided with a sufficient summary of evidence at an early stage of the process. Many respondents were also concerned about the quality of the information that they would be likely to receive.

29. Those in favour felt that there could be a significant saving by reducing the number of cases proceeding towards trial.

30. There was agreement that defence agents should be properly remunerated for work carried out at an early stage.

Witnesses

31. Although there was support for new proposals for citing witnesses, many believed that the recommendation to cite witnesses by e-mail had not been thought through.

32. It was suggested that consideration had to be given to employing sheriff officers rather than the police to cite witnesses, as this would free up a considerable amount of police time..

33. A minority of respondents disagreed with the recommendations regarding witnesses, believing they would put an intolerable burden on the police.

Trials in Absence

34. Only a minority of respondents welcomed the idea to extend the use of trial in absence, and they did so with the strong proviso that safeguards should be put in place. Others were concerned that such an extension would lead to the interests of justice not being served, and thought that any extension to trials in absence should be restricted to those who had a history of failing to appear in court. There was also a fear that identification by photograph could lead to administrative errors. Many argued therefore that more time and money should be spent trying to understand the reasons why accused persons failed to turn up.

Summary Appeal Court

35. Very few responses dealt with the proposal to establish a new Summary Appeal Court. Of these, only a minority supported the recommendation, provided the composition of the court was narrow and under the supervision of the Sheriff Principal. In addition there was concern that the proposals lacked enough detail to allow a more considered response.

Other Comments

36. A minority of respondents commented upon other areas of the Report.

37. There was concern that recommendations regarding the alignment of boundaries were too complex and therefore had little prospect of being adopted.

38. Most welcomed proposals for the police to deal with certain offences by non-reporting methods and the introduction of a system of formal police warnings that did not require an admission of guilt.

39. It was strongly emphasised that obligations upon the police to prepare a full police report for submission to the procurator fiscal in every case was not an effective use of police time. A minority, however, supported the status quo in this area.

40. Some respondents observed that closer communication between the procurator fiscal and the police may erode the Fiscal's independence in the view of the general public.

41. A few respondents were concerned about the police having to submit reports within tight timescales, believing it would increase the workload of support staff.

42. Those who commented upon the recommendation to allow multiple cases against an accused to be transferred between courts were concerned that separate preparation would be required for each particular case and that this would cause difficulties in relation to legal aid fees.

43. A small number of respondents felt that citing trials to begin half an hour earlier than at present may be beneficial.

44. The majority of respondents who commented on the recommendation that social workers be provided with a short summary of the evidence against the accused felt this could not work, as it was not clear who would provide this summary and, as a result, a number of different versions could be produced.

CONCLUSIONS

45. Although there was widespread welcome for the fact that the Scottish Executive had identified that the summary justice system required reform, it is clear from this consultation exercise that there was a great deal of opposition to the contentious proposal to abolish lay justice. Views on the proposal to unify summary courts were more favourable, with over two-thirds of those responding on that issue in favour, subject to a number of qualifications in some cases. A number of respondents believed that change - in order to reduce inefficiencies and delays in the system and create more consistency in sentencing - could be achieved without the introduction of such fundamental change.

46. Several proposals were opposed by the majority of those who commented on them. These included: increasing the scope of fixed penalty notices to cover certain public order offences; offering fiscal fines to repeat offenders - particularly for analogous offences; the proposed 'opt-out' approach to enforcement of fiscal fines and fixed penalties; and extending the use of trial in absence.

47. It must be noted, however, that over 50% of written responses received to the Report were from Justices of the Peace and Justice of the Peace Committees. The quantitative level of response from this sector resulted in many proposals being more strongly opposed, with a number of strongly worded and detailed responses received from these groups.

48. In relation to a number of the issues raised by respondents, with regard to the recommendations set out in the Report, three similar arguments were made repeatedly:

• Firstly, the Committee had admitted that it did not find a system in crisis, and that there were few voices demanding revolutionary change - however the Report still recommended the abolition of lay justice and unification of the summary courts;
• Secondly, that the Report relied too heavily on anecdotal and qualitative evidence for many of its recommendations; and
• Thirdly, that some of the key proposals relating to the costs of the judiciary had been based on data from a costing exercise that had now been discredited.

49. These arguments reflected a general concern that some of the key recommendations needed to be reconsidered, with more quantitative research and detailed financial assessments conducted and taken into account.

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