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4. Future court process options
4.1 The Feasibility Study Group considers that the pilot model has worked well. However, the level of investment required to improve the handling of cases has been substantial, and we recognise that this report comes at a time when another Government priority is to improve the efficiency of handling of all summary cases. The Group believes that there remains a strong case for a specialist domestic abuse court in Glasgow, for the reasons set out in chapter 2. As our remit requires, we have had regard for cost-effectiveness in identifying future options; but we also consider that the benefits of the pilot court could not have been secured without the necessary investment in shrieval and court service resources, the procurator fiscal service and enhanced victim support.
Specialism of sheriffs?
4.2 A prior question which arises under each of the options concerns the approach taken to specialism of sheriffs. The court handling of domestic abuse cases will of course depend on the sheriffs who preside over these cases. The various models each consider the extent to which domestic abuse cases should be handled by a small "specialist" cadre or by a wider range of sheriffs. That is an issue for the sheriff principal. The Group sees benefit in maintaining a degree of specialism, as the evidence suggests that domestic abuse courts work best when the presiding judge is a specialist 11. On the other hand, the Group also considers that handling domestic abuse cases is a mainstream part of Sheriff Court business, and we would expect all sheriffs to be kept informed of relevant research and development of practice in this area. The Group therefore recommends that the Scottish Government should consider with the Judicial Studies Committee whether further training or guidance on domestic abuse would be useful to sheriffs.
The options
4.3 Figures from Strathclyde Police indicate that the domestic abuse caseload in Glasgow typically divides between the 3 divisions in the following way: 46% in B Division; 34% in G Division (the division covered by the pilot); and 20% in A Division. Having considered a wide range of court process options, the Group believes that the choice for Glasgow effectively lies between two alternatives, which are:
Option I: Operate 2 specialist domestic abuse courts in a fashion similar to the pilot model, one to cover G and A Divisions, and one to cover B Division.
Option II: Operate 1 specialist domestic abuse court in a fashion similar to the pilot model, to cover G and A Divisions; in B Division, apply enhanced victim support arrangements and deploy specialist staff, facilitated as far as possible by clustering trials in mainstream courts.
4.4 In fulfilment of our remit, the Group has also carefully considered whether it is possible to devise a further alternative, which applies a consistent approach across all areas of Glasgow and which is feasible within currently available accommodation. We have, however, concluded that any such approach would suffer from fatal drawbacks. This report describes and assesses a third option but, as will be seen below, we recommend that it should not be pursued:
Option III: Operate 1 specialist domestic abuse courtroom, in which all appearances from custody and intermediate diets would take place, together with sentencing for those offenders who plead guilty; cluster the trials in mainstream courts if possible in order to facilitate enhanced victim support arrangements.
4.5 The advantages, disadvantages and costs of each of these are analysed below. As will be seen, the Feasibility Study Group prefers Option I. However, we are conscious that this is the most expensive option, both in terms of running costs and especially in terms of the requirements for physical space, and we recognise that there will be competition for the use of such resources.
4.6 Options II and III are untried, and even Option I would be a new departure given the substantial increase in specialist court caseload required. Therefore, whichever option is pursued, the group recommends that there should be ongoing monitoring of performance and impact. The Group also notes that under any of the options, responsibility for the programming of business within the Sheriff Court would remain with the Sheriff Principal for Glasgow and Strathkelvin.
Option I: Operate 2 specialist domestic abuse courts in a fashion similar to the pilot model, one to cover G and A Divisions, and one to cover B Division.
Description
4.7 This option would effectively replicate the pilot model, although on a larger scale and with economies of scale built in. Each court would have approximately 50% more business than the pilot court has had, with each covering about half the caseload for the city. The methods would be expected to be similar to those experienced during the pilot.
Feasibility and costs
Accommodation
4.8 This option is only feasible if an additional courtroom can be found for the purpose. There is no current spare capacity within Glasgow Sheriff Court, so there is no prospect of an additional courtroom being created within the building, as happened in 2003-04 to allow the pilot to commence. We have therefore asked the Scottish Courts Service if there is a possibility that a courtroom might become available as a result of reductions in other business.
4.9 An objective of the Scottish Government's summary justice reform programme is to reduce pressure on the Sheriff Courts, by a range of measures which will encourage business to be dealt with earlier and where appropriate outside court. The expectation is that this will in due course lead to reductions in the pressures on the summary courts across Scotland. A further aspect of summary justice reform is the unification of the courts estate, currently split between Sheriff Courts and District Courts. It is possible that over the next 2-3 years a courtroom could become available in Glasgow Sheriff Court, as a consequence either of unification or of the wider summary justice reforms. The sheriff principal has confirmed that in this event, he might well be minded to make the new courtroom available to the specialist domestic abuse court.
4.10 However, the advice from the Scottish Courts Service is that at this stage, it would be premature to assume that a courtroom will become available in this way. It is too early to predict with confidence what the effects of summary justice reform will be, given the range of behavioural change involved, and especially in Glasgow where the pressures of business are currently most intense, including continuing increases in the levels of solemn criminal business.
4.11 In the short term, therefore, this option could only be pursued by securing an additional courtroom in Glasgow on a commercial basis, to take some of the work of the Sheriff Court and thereby free up space. In practice this would mean renting a pair of additional courtrooms, because outhousing a single courtroom would not allow the level of flexibility necessary for effective court programming and containment of delays and end-to-end times. The courts to be outhoused would not necessarily be the domestic abuse courts; indeed, the logistical difficulties, including in particular security considerations, would be minimised if civil rather than criminal business were outhoused, with the domestic abuse court using space freed up in the main Sheriff Court building. Additionally, experience has shown that landlords are reluctant to rent property for use as a criminal court.
4.12 Estimates provided by SCS are that if a suitable building were available to rent, its initial conversion to provide two civil courtrooms would cost in the region of £1.3m, and rental and services would cost a recurrent £300k per annum.
Shrieval deployment
4.13 Operating two specialist courtrooms on the pilot model would require at least double the shrieval input. As noted in chapter 3, the pilot has benefited considerably from the commitment of the specialist sheriffs. It would be for the sheriff principal to consider how to provide shrieval resource for the new court (see paragraph 4.2). On balance, we consider that this option would work best if supported by an increased number of sheriffs devoting a significant amount of time to domestic abuse.
Other recurrent costs
4.14 This option could be supported by the current ASSIST model with additional resources to cover the two courts and all three divisions. It is estimated that rolling out the current model and maintaining service levels for this option would increase the cost from £270k to £726k per annum.
4.15 Irrespective of the arrangements for shrieval deployment, the shrieval and staffing costs of the additional courtroom would be as for the pilot, so the combined costs would double, from £208k to £416k per annum. Under this option the COPFS costs would also at least double, from £138k to perhaps £300k per annum.
4.16 Overall, the total direct costs of this option (inclusive of the full costs of the development of a pair of outhoused courtrooms) would comprise an initial investment of £1.3m to set up the accommodation, and a recurrent £1.1m on top of the costs of the pilot.
Assessment
4.17 The caseload for each courtroom would be significantly higher than for the pilot court, and there would no doubt be a negative impact on the timescales and guilty plea rates achieved, compared with the pilot. Additional caseload may also make it harder to maintain the improved communication between defence agents and procurators fiscal, and to continue to minimise churn. However, despite this, the Group considers that it should still be possible broadly to secure the perceived benefits of the pilot in this expanded model.
4.18 In addition to the direct benefits of the specialist court, there would also be consequential - although unquantifiable - benefits for the wider work of the Sheriff Court. The removal of A Division's and B Division's domestic abuse cases from the workload of the mainstream courtrooms would yield a modest reduction in the pressure on those courts, which would help the wider efforts to secure more efficient and swifter summary justice for all.
4.19 The Group has noted that the sustainability of this option would continue to be dependent on the availability of the necessary courtroom, shrieval resource, and other recurrent finance, and the willingness of the funders to continue to give priority to domestic abuse cases in this one particular locality.
Option II: Operate 1 specialist domestic abuse court in a fashion similar to the pilot model, to cover G and A Divisions; in B Division, apply enhanced victim support arrangements and deploy specialist staff, facilitated as far as possibly by clustering trials in mainstream courts.
Description
4.20 This option would not provide a uniform solution for the whole of Glasgow. One half of the city (G and A Divisions) would be serviced by a specialist court on the pilot model. The remainder of the city (B Division) would be served by a different type of court model, with some common features but distinct in important ways.
4.21 In B Division, the approach would be to seek the benefits of the specialist approach as far as is possible within the mainstream court structure. There are some precedents for this approach in England and Wales. In this context, the Group has noted the aim of summary justice reform to improve the speed of summary justice and improve the rate of early pleas, across the board. These improvements would of course benefit the domestic abuse cases, as well as others, although not by as much as has been achieved in the pilot with its dedicated courtroom.
4.22 The details of this option cannot be specified in advance but would need to be developed during the initial months of implementation. However, the assumption is that there could be no increase in the court time devoted to domestic abuse cases in B Division. Instead, the benefits would be secured through investment in support services on the ASSIST model, and the deployment of specialist sheriffs and procurators fiscal. We recommend that it should also be accompanied by additional procurator fiscal staffing, so that there could be more time given to preparation of cases and to liaison with ASSIST and the police on safety planning.
4.23 One issue that would need to be explored during the implementation phase is the question of clustering. Domestic abuse cases, like other B Division summary cases, would go through the mainstream custody court (one of two such courts on Mondays) and the intermediate diet court. Those that reached the trial stage would be assigned, as currently, to one of 3 trial courts for B Division. If a clustering approach were pursued, attempts would then be made, within the constraints of the business, to cluster these where possible to a common courtroom. This could not be done rigidly, but it might still be possible to allow the deployment of procurators fiscal and sheriffs to this courtroom to take account of the concentration of domestic abuse work there. However, clustering on this scale is an unknown quantity, and it is not clear whether worthwhile clustering could be introduced without unacceptable impact on the flexibility of court programming and consequently on the churn experienced by domestic abuse cases and/or other summary cases in B Division.
4.24 This approach could be supported by provisions to make specialist domestic abuse training available to any sheriffs and procurators fiscal who might be involved in domestic abuse cases in B Division. The aim should be to make it possible for the insight and knowledge about the issues to be shared by as many as possible, so that when it did not prove possible for a "specialist" sheriff or fiscal to take the case at trial, there would still be some consistency of approach.
4.25 The Group has considered whether, under this option, there would be a case for using the single available dedicated courtroom for B Division, and the alternative approach for G and A Divisions, where the pressure of mainstream business is arguably lesser. However, such a switch would mean discarding the close working relationships between police, fiscal service, defence agents, ASSIST and associated organisations such as social workers, which have been a beneficial feature of the pilot in G Division. In our view, this is a compelling argument, if this option were pursued, for applying the dedicated courtroom to G and A Divisions.
Feasibility and costs
4.26 The approach in G and A Divisions would be as for Option I. The existing structure of the pilot court would be retained, and its caseload increased by some 60% to cater for the two divisions. The procurator fiscal service costs for this court should rise a little to cover this increase, perhaps from £138k to £170k per annum. We recommend that there should also be investment in additional procurator fiscal resource in B Division - though on a lesser scale given the more limited options for intervention by the fiscal. This might bring the total cost of the specialist procurator fiscal service to £250k per annum.
4.27 There would be no direct impact on shrieval or court service costs.
4.28 The cost of providing enhanced victim support services for B Division cannot be specified with confidence, because these would depend on the model which is developed. This would in turn depend on the model of clustering which is implemented. If a high degree of clustering proves possible, it might then be possible to provide a victim support service comparable to G and A Divisions. However, there would probably be a need for additional resources to ASSIST (compared with Option I) to enable them to engage with all cases irrespective of courtroom and timing. The annual costs of the ASSIST service might therefore rise to at least £800k per annum. Alternatively, and particularly if clustering proves difficult, it might be better to make more use of national victim support and victim information agencies as an alternative for parts of ASSIST's function. In that event, the total support service cost might be slightly less, though the Group has not quantified this.
4.29 Overall, our best estimate is that this option might carry recurrent costs of around
£600k per annum on top of the costs of the pilot.
Assessment
4.30 The benefits in G and A Divisions would be as for Option I.
4.31 In B Division, the approach would qualify as "specialist" mainly because of the enhanced victim support arrangements, the enhanced activity of the procurator fiscal service and, depending on the scope for clustering, the deployment of sheriffs with a particular expertise in domestic abuse. The benefits of better communication between agencies, more informed court disposals and better safety planning should therefore be achievable, though perhaps falling slightly short of the benefits in the other two divisions. In addition, the experience of running a specialist court in this way, without a dedicated courtroom, might also be of benefit to sheriffs principal in the rest of Scotland, when considering their own response to domestic abuse in settings where a dedicated courtroom may not be a viable option.
4.32 However, compared to Option I, or to the position in G and A Divisions within this option, there would be two significant drawbacks for B Division:
4.32.1 There could be no continuity, and there would be probably be less consistency of approach, in the sheriff presiding over the case at the various stages; and
4.32.2 Because these cases would be integrated in the mainstream business of B Division, they could not be protected from the full pressure of business in the mainstream courts. It would therefore be inevitable cases would experience greater churn and delay than they would be subject to in arrangements closer to the pilot court, with the likelihood that more cases would fall as a result of victims declining to continue to participate 12.
4.33 Overall, despite the uncertainties, the Group considers that exploring this option would be a viable alternative to the preferred Option I. Having said that, the Group does not consider that it would be right to plan for such a two tier system as a stable outcome for the long term. However, particularly if there is a reasonable prospect of a courtroom becoming available during the next few years, this option has obvious advantages (not shared by Option III), as a potential staging post on the route to Option I.
Option III: Operate 1 specialist domestic abuse courtroom, in which all appearances from custody and intermediate diets would take place, together with sentencing for those offenders who plead guilty; cluster the trials in mainstream courts if possible in order to facilitate enhanced victim support arrangements.
Description
4.34 Our remit required us to identify "alternative options" for "a cost-effective and sustainable Domestic Abuse court for the whole of Glasgow". Given that the pilot has been operating in a single dedicated courtroom, and in view of the accommodation constraints faced by the Scottish Courts Service, we set out to identify ways of using that existing resource to service a city-wide domestic abuse court (as well as identifying more resource-committing options such as Option I in this paper). It was immediately clear that it would not be possible to accommodate all stages of every case within that single courtroom. We therefore considered which stages of court process should be covered within a dedicated courtroom to secure the greatest benefit. This option is the result of that consideration.
4.35 The rationale for this option is that the greatest benefits of the specialist court approach are found in the early stages of a case, rather than at the trial. Therefore, if only one specialist courtroom is available, it would make sense to ensure that the court dealt with all the appearances from custody through to sentence in the event of a guilty plea, and from custody through to intermediate diet in the event of a trial being fixed.
Feasibility and costs
4.36 As with Option II, it is difficult to be precise about the recurrent costs of this option. There should be no direct impact on shrieval or court service costs, and the costs of a specialist COPFS team to service the dedicated courtroom might be only a little higher than for the pilot. On the other hand, there would be scope to expand the investment in victim support services, though the size of that increase would depend on the detailed specification of this model and the division of function between ASSIST and existing national agencies. Overall, the direct costs would therefore be expected to increase, over the costs of the pilot, by up to £500k per annum.
4.37 This option would require domestic abuse trials from G Division to revert to mainstream G Division trial courts, and a consequential lengthening of end-to-end times for all G Division cases.
Assessment
4.38 This would preserve a number of key benefits of the specialist court. It would permit the victim support service to contact all victims of domestic abuse within 24 hours of a police referral, which would allow effective risk assessment and safety planning at the vital initial stage. It would ensure that the case was prepared, up until the intermediate diet, by a specialist procurator fiscal - with all the benefits of better liaison with the defence that has been observed in the pilot. And it would ensure that all the initial decisions - including the crucial decision about bail at the first appearance - were made by a specialist sheriff. Those cases where a plea of guilty was tendered at or before the ID would be concluded entirely within the specialist court.
4.39 This option is not without precedent, at least on a smaller scale. Many SDVCs in England and Wales have adopted a similar approach, with specialist initial stages followed by dispersed trials. However, compared with Option I, there would be a number of significant disadvantages. These are:
4.39.1 Those cases which proceeded to trial would, for their trial and sentencing stages, revert to the normal arrangements. As a result they would suffer from greater delays, leading to a greater likelihood that victims will choose not to participate in the criminal justice process.
4.39.2 This problem would be exacerbated by the strong likelihood that there would be a fall in the proportion of cases in which a plea of guilty was tendered at or before ID. The accused, aware that his case might suffer greater delays if prolonged beyond the end of the specialist phases, might thereby be less inclined to offer an early plea. This could make it very hard to sustain the success of the pilot court in accelerating cases and reducing attrition.
4.39.3 It would be harder to ensure optimal victim support arrangements and coordinated community response for the trials. If there was clustering of trials by division it would be possible to provide a full service on the ASSIST model in which support was available to the complainer throughout the process including an ASSIST presence at court, but this would require additional resources over and above those estimated for Option I. An alternative might be to make use of nationwide support agencies such as VIA and the Witness Service for the trial support, but this would lose the continuity of support which has been such an important feature of ASSIST's service to victims during the pilot. Furthermore, without additional investment, neither VSS nor the Witness Service nor Women's Aid groups would be able to provide advocacy nor be equipped to undertake the ongoing risk assessment and risk management required. If there was no clustering of trials then the initial risk assessment, safety planning and advocacy for all victims in the city would be possible but attendance at all mainstream courts would fall due to the number of courts involved. This would cause loss of co-ordination and would impact on continuity of support and effective information flow.
4.39.4 There would be a loss of continuity in shrieval and procurator fiscal staffing for the successive stages of a case. For COPFS in particular, it would be impossible to maintain a divisional distribution of cases at the custody hearings (or the IDs), with the result that all cases which reached the trial stage would then be conducted by a different procurator fiscal.
4.39.5 There would be a particular problem concerning the loading of the specialist court on Mondays. The preparation required before bringing domestic abuse cases to court means that the custody court cannot realistically commence before midday or early afternoon. Because of this, the sheer number of weekend domestic abuse custody cases requiring to be processed on a Monday would almost certainly necessitate the court continuing late into the evening 13. Besides the obvious difficulties for the Courts Service, this would be extremely difficult for the victim, who might be waiting for results of a bail application before deciding whether to flee the family home.
4.39.6 The arrangements for deferred sentencing could present problems. There would be many more deferred sentences in this court than there were in court 13 during the pilot, which would necessitate sessions where multiple sentences were passed. One paradoxical drawback with this is that the impact of sentences on individual accused might be lessened, because of the likelihood of (a significantly increased volume of) cases being dealt with by the sheriff in a consistent way in terms both of disposal and of message delivered to the offender.
4.40 Several of these drawbacks seem to us critical. Taken together, they would undoubtedly undermine the efficiency and effectiveness of the domestic abuse court, and for that reason we do not recommend that this option should be pursued.
Conclusion on court options
4.41 Options II and III have partial precedents in England and Wales, but because of the size of Glasgow Sheriff Court and the pressure of business there, Option I makes most sense in the Glasgow context, and the Group recommends that this option should be pursued if resources permit. Option II seems to us to be the only viable alternative. The Group is reluctant to view Option II as a permanent solution but is clear that it offers real and worthwhile gains and would represent an advance on the current situation.
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