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SMARTER JUSTICE, SAFER COMMUNITIES
SUMMARY JUSTICE REFORM - NEXT STEPS >>>
CHAPTER FOUR
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SMARTER JUSTICE - BETTER CASE HANDLING FOR BETTER
OUTCOMES
4. ISSUES - WHY SPEED MATTERS
4.1 The changes outlined in the preceding
chapters of this report will invest in the quality of the
lay judiciary, streamline the structures of summary justice
and increase capacity in the court system by diverting a
number of minor offences from prosecution.
4.2 All these make possible progress on
the core task of making the summary justice system truly
summary.
4.3 Consultees stressed to the McInnes
Committee that when measured against the criteria for a
successful approach to minor crime the Scottish system
failed to handle cases quickly. They were even more
sceptical about the extent to which the court process
deterred reoffending - 79% of those questioned were 'not at
all' confident that it did so. In our view these two
findings are linked. As the McInnes Committee itself
noted:
'Disposals can be more appropriately tailored to
fit the offending behaviour the sooner they are made
after the offence, 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.'18
4.4 These issues have been reiterated in
our own consultation on the Review of Summary Justice.
4.5 As the Criminal Justice Plan stressed,
the reduction of reoffending is our top priority. We
therefore see addressing the issue of speed as of prime
importance.
4.6 We also, however, agree with the
McInnes Committee that although the interests of system
users must be paramount, it is also important to make best
use of our hard - pressed professionals. Dealing with a
single criminal case involves a complex series of
transactions between the accused, the defence, and the core
partner agencies in the criminal justice system - police,
prosecution, legal aid board and the courts. And, as the
Committee pointed out 'speed of processing without adequate
quality control simply passes a problem to the next partner
in the system'.
19
4.7 We are therefore focusing not merely
on the speed of case handling, but on making the most
effective use of the time and expertise of the
professionals involved. Improving transactions between
partners and producing consolidated case information which
can be viewed on-line will, of course, be greatly assisted
by the unification of the courts administration and the
operation of a single, fully integrated IT system in all
Scotland's courts.
4.8 These concerns are at the heart of our
overall programme for the justice system. So it is not
therefore surprising that much of our current activity -
not just that directly flowing from the Review of Summary
Justice - is targeted on better case handling in the
interests of better outcomes and greater efficiency. And we
outline below the other strands of work which will
contribute to meeting that goal.
The contribution of the McInnes Committee
4.9 This chapter, however, focuses
principally on the contribution make by the Review of
Summary Justice to improved case handling. The Committee
considered the process end to end, and made a number of
recommendations for change.
4.10 The Committee made two
recommendations designed to promote
case handling at a more appropriate level.
At present a sheriff who sits without a jury can sentence
to three months' imprisonment (six months for repeat
offences involving violence or dishonesty) or to a fine not
exceeding £5,000. Recognising the pressures on the solemn
system, the Committee recommended that the sentencing
powers of a sheriff sitting without a jury should be raised
to one year in custody or a fine of £20,000, enabling the
transfer of the least serious solemn business to the
summary courts. It recognised that a fine at the upper end
of that range would tend to be used for companies and
businesses rather than individuals, but felt that giving
the sheriff increased power to fine would offer scope to
deal effectively with many regulatory offences. Summary
proceedings are generally simpler and faster than trials in
a solemn court.
4.11 And it also proposed the creation of
a summary appeal court, in which sheriffs would sit under
the direction of a sheriff principal to hear summary
sentence appeals. All appeals are currently heard by the
High Court and this proposal was designed to relieve
pressure on the most senior judiciary. The Committee's view
was that sheriffs were well placed to hear summary sentence
appeals by virtue of their extensive and current experience
of summary sentencing.
4.12 On the role of the police it
proposed:
- greater scope for the police not to report minor
offences, underpinned by new guidelines from the Lord
Advocate;
- the introduction of a system of formal recorded
police warnings; and
- increased use of abbreviated police reports to the
fiscal in relation to less serious offences.
Its proposals for extended police fixed penalty notices
have been covered in the previous chapter.
4.13 In relation to
the process of getting a case to court more
quickly, it emphasised the importance of making
optimal use of IT, with electronic transmission of key
documents such as the complaint as standard practice. And
it recommended
an increased use of police undertakings to
attend court in place of citations by the fiscal to
appear.
4.14 The Committee sought to ensure that
where someone was going to plead guilty, they did
so as early as possible. It therefore made
recommendations in relation to sentence discounting. It
also laid heavy stress on early case preparation,
recommending early disclosure of prosecution material to
the defence, including the provision of a summary of
evidence with the complaint, and proper remuneration for
defence work conducted at an early stage of the case.
4.15 It also made a number of
recommendations designed to improve the effectiveness of
the system from the point at which a case calls in
court.
4.16 In terms of case handling, it
proposed more extensive use of 'roll ups' - bringing
together in a single court all outstanding charges against
the accused. And it proposed a number of changes to witness
citation and to the handling of evidence at the
intermediate diet and the trial.
4.17 The most significant of the
evidential proposals was that only those whose evidence is
disputed should be required to attend the trial, and that
the judge at the intermediate diet should be entitled to
exempt a witness from attending where the defence has not
made a convincing case that they should be obliged to do
so. This recommendation is linked to the proposal that full
signed witness statements be made available to the defence
by the Crown before the intermediate diet.
4.18 It also addressed the issue of
problems created by failure to appear, proposing an
extension to the use of trial in absence in summary
cases.
4.19 A number of other minor
recommendations on court organisation were also made. And
it recommended streamlining of the use made of Social
Enquiry reports.
4.20 The Committee also addressed the
issue of success criteria - what key targets should be set,
and what information monitored, to provide a robust handle
on whether the system was becoming more summary.
4.21 It considered the idea that statutory
time limits should be set for all summary cases as they are
at present for summary custody cases, but reluctantly
rejected it at present because, on present system
performance, the major beneficiaries would be accused
persons whose cases would not proceed because they had run
out of time. Instead it opted for the setting by the
National Criminal Justice Board of robust quality controls
and targets which could be monitored across the system.
4.22 In our consultation on the Review of
Summary Justice we invited comments on its general
proposals on law and procedure and, in particular, on the
major issues of policy:
- whether the law on sentence discounting should be
clarified further (as noted below, this has now been
done);
- whether only those whose evidence is disputed
should be required to attend the trial;
- whether stakeholders agreed with the proposals to
extend the use of trial in absence; and
- whether we should create a new summary appeal
court.
What we have heard
4.23 A total of one-hundred-and-eighteen
responses were received on this part of the consultation
paper.
4.24 On the policy issues which we
highlighted, most of those who responded welcomed the
recommendation (now implemented) in relation to sentence
discounting.
4.25 The majority of respondents on the
subject (including those within the legal profession)
agreed that only those witnesses whose evidence is disputed
should be required to attend. Some of those who responded
thought that signed statements should be accepted in
evidence particularly evidence of a formal nature (for
example, in relation to the ownership of stolen property).
There was, however, some concern about the workload
implications for the police of providing full signed
statements in every summary case.
4.26 Most of those who responded were
opposed to the extension of trials in absence. Some
respondents thought that this would lead to an increase in
the number of appeals, others thought that under ECHR a
fair trial required the accused to be present. In relation
to solemn procedure, the law on trials in absence was
recently changed by the Criminal Procedure (Amendment)
(Scotland) Act 2004, which provides that while the accused
must be present for the trial to begin, the trial may in
certain circumstances be allowed to continue where evidence
substantially implicating the accused has been led, and the
accused thereafter fails to appear. The Sheriffs'
Association in particular felt that no further change in
this sensitive area should be made.
4.27 Only a minority of those who
responded dealt with the issue of the creation of a new
summary appeal court. Amongst those in favour was the Law
Society who supported the principle and believed that the
creation of a summary criminal appeal court could lead to
summary appeals being disposed of quickly. A few responses
thought that the court could be presided over by
experienced sheriffs rather than a Sheriff Principal as
Sheriffs' Principal dealt mainly with civil work.
4.28 Some of those who did not support the
proposal noted that it lacked sufficient detail, others
were not convinced by the proposal, believing that one body
only should have responsibility for appeals. The other
Sheriffs Principal, whilst agreeing that the appeals from
summary cases should be dealt with more quickly, foresaw
difficulties in setting up the proposed court.
4.29 On the other recommendations we
received a restricted number of responses:
- a number of police forces favoured the introduction
of formal recorded police warnings, though they noted
that there would need to be a clear protocol about how
warnings were recorded and how long they should be
kept;
- abbreviated police reports are already being tested
in a number of areas;
- one police force noted the resource implications
for the police of greatly increasing the proportion of
cases coming to court on a police undertaking;
- a number of practical issues were raised about the
feasibility of rolling up cases, notably the position
of the defence, and the scope for confusion in relation
to very mobile accused;
- the other five Sheriffs Principal rejected the view
that imposition of a statutory time limit was
impossible; in their view, it was the only way to
introduce a sense of urgency into the system; and
- those commenting on the Social Enquiry report (SER)
recommendations welcomed the proposed reduction in
duplication of the SERs, although some had reservations
about other aspects (such as the proposal that social
workers preparing reports should receive a summary of
evidence against the accused).
4.30 We have, in parallel, been studying
the lessons which emerge from procedural changes made to
secure quick case handling in Scotland's specialist courts
- the youth courts, the drug courts, and most recently the
domestic abuse court.
The Hamilton Youth Court
The Hamilton Youth Court, opened in June
2003, and deals with alleged offenders aged 16 and 17 (and
appropriate 15 year olds) who live in North or South
Lanarkshire and have had, in the last six months, three
separate incidents of offending resulting in a criminal
charge, with flexibility to deal with accused within this
age group who do not meet the persistency criteria but
where other circumstances suggest that they are suitable
candidates.
All the outstanding cases against the 16 or 17 year
olds are 'rolled up' and handled together, and the accused
is brought to court within 14 days. The goal is to cut
crime by confronting persistent offenders early in their
career with the extent of their offending.
In its first year the court dealt with 277 teenagers,
of whom all but 16 pled guilty.
The final evaluation of this two year pilot, which
will begin to assess its impact on reoffending, will be
published in spring 2005.
Where we have already made progress
4.31 In a number of areas the Committee's
ideas have already been taken forward.
4.32 The Committee's recommendations in
relation to sentence discounting for early pleas have been
overtaken in large measure by an amendment to section 196
of the Criminal Procedure (Scotland) Act 1995 introduced
last year in the Criminal Procedure (Amendment) (Scotland)
Act 2004, which came into effect on 1 October 2004. All
sentencers are now required to take into account the stage
at which an accused intimated his or her intention to plead
guilty.
4.33 With reference to the proposals on
the role of the police in reporting offences, protocols
have been agreed between ACPOS and COPFS in relation to the
reporting of offences, including standards for the quality
of reports, criteria for agreeing at local level categories
of minor offence that need not be reported and in which a
standardised format for an abbreviated police report can be
used.
4.34 And on proposals for formal police
recorded warnings, guidelines for the use of restorative
police warnings to young people were issued in June 2004. A
restorative warning is an early intervention to reduce the
likelihood of reoffending amongst youth offenders. An
element of restoration is involved, and victims are kept in
touch throughout. For example, a young offender could
attend their local police station, along with their
parents, to be told about the impact the offence has had on
their victim and their community, help to repair the garden
fence they vandalised and apologise to the victim. This is
a two year pilot, and we will consider the possibility of
further roll out once that initial experience has been
evaluated.
4.35 A Victim Statement Scheme is being
piloted in Edinburgh, Kilmarnock and Ayr. The Scheme is
primarily aimed at more serious crimes. However, once the
pilot has concluded, which will be in November 2005, and
been evaluated, a decision will be made on how to roll the
scheme out across Scotland. One of the options that will be
considered is whether to widen the range of crimes covered
by the Scheme.
What we will do
4.36 Making justice smarter and faster is
a matter for all those involved in delivery, at whatever
level, and not just for those who set the legislative
framework within which the justice system operates.
4.37 We recognise, as consultees
suggested, that there is no substitute for detailed step by
step consideration of the criminal justice process,
followed by system redesign. This can be supported by
changes in the law, but it goes much further. It relates to
local interaction between partners, best use of local
resources, and a greater mutual understanding of each
other's needs and pressures. Rather than imposing change
top down, it is important to promote local initiative to
deal with local problems, using national mechanisms and
changes in the law where necessary to deal with problems
which local areas cannot solve.
4.38 That is why Sheriffs Principal are
setting up local criminal justice boards, bringing together
the key partners in the criminal justice system to ensure
that local efficiency and effectiveness issues from the
point of apprehension to the point of disposal are
identified and tackled by the relevant partner agencies,
both in summary and solemn proceedings. This new model was
piloted in Lothian and Borders and Tayside, Central and
Fife, and all the local boards will be up and running
before the summer. The agendas for these boards are set
locally.
4.39 These local initiatives are already
helping us to deliver our national agenda. We are working
in collaboration with a project conceived and run locally
by the Grampian Criminal Justice Board, in order to model
the system impact of some key McInnes recommendations,
particularly roll-ups and undertakings.
The Grampian Project
The Grampian Local Criminal Justice Board
is chaired by the Sheriff Principal and consists of the
Grampian Police Chief Constable, the COPFS Area Fiscal, and
the Scottish Court Service Area Director.
The Board recognised that the first step in
delivering system improvements was to get a clear
understanding of how well the local summary justice system
worked now. It was vital to have a baseline of current
capability and performance levels.
A cross-agency team drawn from the partners in the
Board and supported by consultants looked at the processing
of one-thousand-five-hundred summary cases at Aberdeen
Sheriff Court from initial incident report to final
disposal, and interviewed front line staff to draw together
a complete picture of the system and identify blockages.
The results showed that while every agency was focused on
delivering an effective service against its own targets,
problems were created by different organisational
priorities, poor information sharing and a mismatch between
the allocation of resources and expertise and the key
intervention points.
Redesign work is now underway to identify a 'clean
stream' system which will enable cases to flow through the
system more quickly, reduce the number of court callings
per case and incorporate new work processes to eliminate
waste. Roll-out will begin on a small scale in March 2005.
At the request and with the support of the Executive,
the project has been extended to provide analysis of the
system impact of some key McInnes recommendations; the
extended use of police undertakings rather than citations
to get accused to court, more use of roll-ups (dealing with
all outstanding charges together), impact of sentencing
discounts and making fiscal fines more effective. Initial
results will be available this summer.
4.40 A similar initiative is under way in
West Lothian. Lessons from these will be drawn together to
inform further work on local system redesign. There is no
single recipe for excellence and local areas will be
encouraged to make use of the experience of others, but not
to reduplicate it. The Glasgow criminal justice system, for
example, is on a different scale to that of other Scottish
cities, and the potential rewards for positive change
correspondingly greater. Supporting the partner agencies in
Glasgow as they address the scope to deliver services in a
new way will therefore be an early priority.
4.41 In addition, we have set up the
National Criminal Justice Board to:
- set out a realistic vision of success for the
operation of the criminal justice system (from the
point of detection to disposal) and to provide clear
milestones by which to measure progress;
- identify and deal with system blockages which
require national action; and
- support local boards through networking,
information sharing and provision of management
information.
4.42 It is therefore for the Board to take
forward the recommendations of the Committee on setting
targets and goals for the system. We shall provide
practical support to the Board to help it fulfil that
role.
4.43 This is not just about better
processes and streamlined structures. It is also about
fostering and enhancing lay engagement. As we saw in the
introduction, channels of communication already exist, and
there is no need to duplicate them. This is about taking
lay engagement a stage further - building it into the
development and monitoring of new services, and feeding
back effectively to communities how the concerns they have
expressed are being tackled, as we are doing in relation to
the anti-social behaviour agenda. There is no single right
approach to this, nor would we wish to impose one. But we
do think that agencies should be able to show:
- that they have a systematic approach to engagement
with lay people over the quality of the services they
provide; and
- that they involve lay people in setting their
strategy for the future, at local as well as national
level.
4.44 As noted in the previous chapter,
where appropriate this should cover information to local
communities about the use and impact of alternatives to
prosecution in their area.
4.45 We have, therefore, invited the Board
to consider how a requirement for lay engagement in system
improvement might be framed in a way which is practical and
flexible, but also verifiable.
4.46 And we also need to make much better
use of management information. We are strengthening our
capacity to take a strategic view of management information
at the centre, so that we can support the National Criminal
Justice Board to set out the core measurements which will
determine system success or failure. At present we collect
information very efficiently, but it is not always stored
in a form that is readily amenable to analysis and we do
not analyse it adequately as a result. We recognise the
need to improve our performance at the centre on this
point, but the challenge is equally relevant to local
management units.
4.47 We also acknowledge the importance of
engaging with defence solicitors over system change, and of
ensuring, as recommended by the Strategic Review of the
Delivery of Legal Aid, Advice and Information, that 'the
development of publicly funded legal assistance needs to be
taken forward in conjunction with the planned changes in
the justice system, and not in isolation'. The main
recommendations of the Review are subject to public
consultation. In addition, changes to the system for
summary criminal legal assistance will be brought forward
in the light of the proposals on which the Scottish Legal
Aid Board undertook a consultation exercise in 2004. These
will include measures to underpin the changes in procedure
and court management to be brought forward, and will be
developed in full consultation with representatives of the
profession.
4.48 And our concern to deliver smarter
justice does not stop at the point of disposal. This work
is complementary to our work in relation to improving the
effectiveness of sentencing through the new Community
Justice Authorities (CJAs) and some aspects of the McInnes
recommendations, notably those on social enquiry reports,
will be taken forward in that context. CJAs will be
responsible for the planning, co-ordination and monitoring
of criminal justice social work services. Legislation will
be introduced this year which will place new duties and
functions on local authorities through the CJAs, which will
promote greater consistency and efficiency in delivery of
offender services. A national advisory body will also be
established to provide a national strategy for offender
management. These proposals were developed in the light of
the responses to the Scottish Executive's national
consultation on reoffending, held in spring 2004, which
demonstrated a widespread perception that offender services
required greater national direction, improved consistency
and efficiency and more coordinated local delivery.
4.49 So we recognise that follow-up from
the Summary Justice Review is only part of the action
required. But it is an important part of that action. We
therefore set out below our response to the Review's more
significant recommendations in the area of procedure. Other
minor recommendations, some of which attracted general
support, will simply be taken forward by administrative or
legislative action as appropriate. In other areas we will
continue to develop practice that has already emerged and
learn lessons where appropriate (for example, we will
continue to monitor and develop the processes of witness
citation on the basis of the protocols agreed between the
Crown and ACPOS (the Association of Chief Police Officers
in Scotland).
More appropriate case handling
4.50 We propose to implement the report's
recommendations in relation to the custodial sentencing
powers of sheriffs sitting summarily. They will, therefore,
be able in future to sentence to up to one year in custody.
Modelling undertaken by the Crown Office indicates that
around 14% of solemn cases could, on that basis, be
reassigned to the summary court.
4.51 We understand that some may be
concerned at the likelihood that this will result in upward
sentence drift. The Committee surveyed the evidence to date
for sentence drift consequent upon a change to jurisdiction
levels, and found little or no linkage.
4.52 We now have some more recent evidence
upon which to build. In May 2004 we increased the custodial
sentencing powers of a sheriff sitting with a jury from
three to five years, enabling around 20% of High Court
business to transfer to the sheriff court. We have been
monitoring the impact of this change carefully over the
last year, and see no indication that sheriffs are imposing
higher sentences across the board, rather than solely and
correctly on those cases which would previously have been
heard in the High Court.
4.53 We will monitor this further change
with equal care.
4.54 The McInnes Committee also
recommended that the summary sentencing limit of the
sheriff court be raised to £20,000. We recognise that there
has been no increase in the sentencing limit of the summary
sheriff court since the Criminal Procedure (Scotland) Act
1995 was implemented, even to take account of inflation. We
also recognise, however, that the Sentencing Commission has
been tasked with reviewing 'the basis on which fines are
set'. We have therefore concluded that as an interim
measure we should raise the fine limit of the summary
sheriff court to £10,000, but leave any more radical
restructuring of fines to the Sentencing Commission.
4.55 In relation to the proposed summary
appeal court, we agree with the Committee's aim of
relieving the pressure on the High Court, and will discuss
with the judiciary how best to make use of the skills of
judges at all levels to achieve change.
Getting cases to court more efficiently
4.56 The progress identified above in
relation to police action - more options for the police
where a report to the fiscal is not needed, and more scope
for abbreviated reports in less serious cases and the use
of fixed penalty notices - should help police forces to
meet their target of reporting an incident to the fiscal
within 28 days. We shall be monitoring progress through the
National Board.
4.57 The report's stress on improving
transactions between partners through the use of IT will,
as noted above, be greatly assisted by the unification of
the court system and the operation of a single, fully
integrated IT system in all Scotland's courts.
4.58 Currently, a person arrested and
charged with an offence can be liberated by the police on
an undertaking to appear in court at a particular time. We
are attracted to the proposal for greatly extended use of
police undertakings to ensure that an accused, when
cautioned and charged but not taken to a police station, is
also given a firm date for his or her first court
appearance. But we recognise the need to model the impact
of that proposal, to ensure that the potential impact of
some inherent difficulties (for example, the pressure that
could create at the front end of the system - on police and
fiscals in having to report and mark cases respectively in
the majority of cases in a much reduced timescale) do not
outweigh the system advantages (in getting most cases into
court more quickly). As noted above we have asked the
Grampian Local Criminal Justice Board to carry out that
modelling on our behalf. If the modelling currently
underway demonstrates potential for system benefits across
the board, COPFS and the police will work together to
develop proposals for a systemic approach to the increased
use of undertakings in a wider range of cases across the
country. We will also ensure that there are no legislative
barriers to the wider use of undertakings.
4.59 We also need to consider further, in
discussion with solicitors who carry out criminal defence
work on behalf of accused persons, the scope to enhance the
effectiveness of the first court appearance in summary
cases to ensure that it becomes a real decision point,
building on better early availability of information about
the alleged offence and effective consultation with
clients.
4.60 We recognise that this is part of a
wider discussion on early case preparation. The Crown have
recently introduced a policy of full disclosure of witness
statements and copy productions at an early stage to the
defence in High Court cases, and will be rolling out that
process to sheriff and jury cases following a pilot
commencing in April 2005. They accept the principle of
enhanced disclosure in summary cases. Although the resource
implications are significant, it has the potential to
reduce the need for detailed duplicate investigation by the
defence. To be most effective the information should be
made available at the earliest stage in proceedings and in
documentary form - e.g. a summary of evidence as
recommended in the McInnes report. We will therefore
implement arrangements for early disclosure in summary
cases as resources permit.
Dealing with cases more efficiently when they have
come to court
4.61 We accept the McInnes recommendation
that the electronic version of the case documentation
should be the principal copy, and have asked the COPFS and
the Scottish Court Service to take that forward. We
recognise that full implementation in relation to the
sheriff court will need to await the introduction of the
new SCS IT system at the end of 2006, and implementation
across all Scotland's courts will be phased in with
unification.
4.62 We also want to draw on the lessons
learned from our own pilots (such as the youth court) that
could be rolled-out more widely. The distinctive features
of the youth court include measures such as fast tracking
of young offenders to and through the court; fast track
breach procedures, a multi-agency Implementation Group to
review the operation of the court; dedicated youth court
staff to support and service the court (fiscal, clerk,
social workers) and additional programmes for young
offenders. The evaluation carried out after 6 months of its
operation concluded that one of the main strengths of the
youth court was its fast-track procedures assisted by
factors such as a high proportion of pleas in the early
stages, rolling up of charges under one complaint which
encourages plea-bargaining and fewer trials, trials being
assigned more quickly and fewer motions for
adjournments.
4.63 The McInnes Committee recommended
that the court should have power to direct that charges
against an accused be 'rolled-up', so that there is only
one complaint and one set of court appearances for all the
outstanding offences with which he or she is charged. This
approach was aimed principally at ensuring that the sheriff
knew about the offender's full outstanding record and new
charges - but our pilots have demonstrated that there can
be benefits in terms of more efficient working.
4.64 The Crown does already 'roll-up'
complaints where possible, but the issues are not entirely
straightforward. Where an accused offends frequently in a
single area (which is generally the case with those
appearing before the youth court) the system works well.
Where an accused's offending pattern ranges more widely
across court and sheriffdom boundaries, roll-ups may be
advantageous in terms of efficiency, but disruptive to
witnesses and victims. And the resource implications need
careful consideration.
4.65 We are therefore modelling the
potential impact of routine rolling-up of outstanding
charges. We will make the minor legislative changes
required to make transfer between courts possible. And we
will consider further with all the stakeholders, including
the defence, the results of the modelling exercise so that
we can secure the right balance between efficiency and the
rights of victims and witnesses in relation to the handling
of multiple charges.
4.66 The Review of Summary Justice focused
very strongly on making the intermediate diet more
effective. It emphasised the need for better communication
between Crown and Defence in advance of the diet and for
tighter judicial management of these important hearings. It
also made a number of recommendations for amendments to the
relevant sections of the Criminal Procedure (Scotland) Act
1995 designed to build on the existing duties in relation
to agreement of evidence and to ensure that the issues
genuinely in contention at trial were identified in advance
and witness attendance minimised. This approach closely
resembles that for which we have just legislated in
relation to preliminary hearings in High Court cases.
4.67 A key recommendation here is that the
court should have discretion to direct that a signed
witness statement can be admitted in evidence without
having to be spoken to by a witness where the information
it contains is non-contentious. The witness in question
would not therefore have to attend the trial. The Committee
did recommend a safeguard, which would allow the party not
relying on the statement to cite and call the witness. It
is thought unlikely that parties would do so without good
grounds since courts will not look favourably on
inconvenience to witnesses caused for no reason.
4.68 The provision of signed witness
statements is problematic for a number of reasons, but the
key issue here is a means of authenticating the statement
as accurate, by signature or some other means. We have
mentioned (at paragraph 3.32) the work that is ongoing
between the Crown and the Police on improving the quality
of police reports and statements. This underpins the
Crown's policy of full disclosure of witness statements in
solemn cases. That includes work to ensure that statements
are properly authenticated by signature or otherwise. In
addition, it will be important to ensure that such a
provision extends to statements recorded other than in
writing. In principle, however, we agree that a provision
of this nature would be desirable.
4.69 We agree with the Committee's overall
approach on intermediate diets and will legislate to
achieve the improvements it recommended.
4.70 Ensuring that witnesses can give
their best evidence is important if cases are to be
conducted effectively. Although not covered in the review,
where a child witness or vulnerable adult witness does have
to give evidence there is provision in the Vulnerable
Witnesses (Scotland) Act 2004 for special measures intended
to make it easier for them to do so, to be extended to
summary justice procedures. Although it is our intention,
at the moment, to implement provisions as they apply to
summary proceedings from April 2007, we will review the
timing in the light of the outcome of this reform
process.
4.71 Finally, the Committee addressed ways
of ensuring that the trial diet itself was used more
effectively. We recognise that its proposals on trials in
absence were controversial, and are conscious of recent
debates on the subject of trials in absence in solemn
procedure during the passage of the Criminal Procedure
(Amendment) (Scotland) Act 2004.
4.72 But we also recognise that trial in
absence in summary cases is already possible in certain
circumstances - for example in relation to statutory
offences where imprisonment is not an option
20 - and that the potential consequences of trial in
absence for an accused in a summary case fall far short of
those in solemn cases.
4.73 Addressing the corrosive problem of
failure to appear in the summary courts is a priority. We
consider that it should not be possible for the accused to
derail the process of justice by simply choosing not to
appear. Where an accused is aware of the date fixed for
trial and chooses not to attend, a trial in absence will be
consistent with the requirements of ECHR provided
appropriate safeguards are in place.
4.74 We have therefore concluded that a
summary court should have discretion to allow the trial of
an accused in absence in any case, where it considers it to
be in the interests of justice to do so. As the McInnes
report suggested, the court would also have discretion
where necessary to appoint a lawyer to act on behalf of an
accused in such a case.
Smarter Justice - Conclusions
We will introduce measures to improve speed in
the summary justice system without compromising
quality. Steps have already been taken to deliver on a
number of the recommendations contained in the McInnes
report:
- We have brought forward legislative change
requiring sentencers to take into account the stage
at which an accused intimated his or her intention
to plead guilty in determining sentence.
- Protocols and guidelines have been
developed between prosecutors and police dealing
with non-reporting of certain minor
offences.
- The use of restorative police warnings for
young people who have committed minor offences is
being piloted.
But further change is required to ensure that
summary justice is smarter and faster. We will promote
local initiatives to deal with local problems, using
national mechanisms and changes in the law to deal with
problems which local areas cannot solve:
- We will implement the report's
recommendations in relation to custodial sentencing
powers of sheriffs sitting summarily. They will be
able to sentence up to one year in custody in
future. We will also raise the maximum fine which a
sheriff sitting summarily may impose for a common
law offence to £10,000 as an interim measure
pending a fundamental look at the structure of
fines by the Sentencing Commission.
- We have established the National Criminal
Justice Board to set targets and goals for
effective operation of the criminal justice system
from the point at which a crime is detected until
its disposal. We shall provide practical support to
the Board to help it fulfil that role.
- We will roll-out local criminal justice
boards to ensure that local efficiency and
effectiveness issues in relation to the operation
of summary justice are identified and tackled by
the partner agencies in the criminal justice
system.
- We are modelling some of the detailed
procedural changes suggested in the McInnes report
and will roll these out more widely if they prove
to be successful (e.g. in relation to the increased
use of undertakings by the Police). In relation to
'roll-ups' we will make the necessary legislative
changes to allow these to take place between
sheriffdoms, but will test the advantages and
disadvantages of such an approach before changing
existing practice.
- We will work to provide increased
disclosure in summary cases as resources
permit.
- We will legislate to bring into effect the
Committee's recommendations on evidence and the
conduct of intermediate diets.
- We agree that the electronic version of
case documentation should be regarded as the
principal copy and will take steps to implement
that change.
- We will work with the Scottish Legal Aid
Board and the legal profession to develop a
reformed system of summary criminal legal aid which
will include measures to underpin and encourage the
effective implementation of the changes recommended
by the Committee.
- We will legislate to provide for trial in
absence in summary cases where the accused does not
attend and the court considers that it is in the
interests of justice to proceed.
- We will discuss with the judiciary the
latest information on appeal delays, to consider
how best to use the skills of judges at all levels
to meet the Committee's aim of relieving pressure
on the High Court.
- We will implement the provisions of the
Vulnerable Witnesses (Scotland) Act 2004 (intended
to help child and vulnerable adult witnesses give
their best evidence) in summary cases.
- We will take forward the recommendations
made by the Committee in relation to social enquiry
reports as part of our wider programme of work on
reducing reoffending and the creation of Community
Justice Authorities.
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