Take the low road

In November 2001 the Executive appointed a Committee under the chairmanship of Sheriff Principal John McInnes. Their remit was “To review the provision of summary justice in Scotland, including the structures and procedures of the sheriff courts and district courts as they relate to summary business and the inter-relation between the two levels of court, and to make recommendations for the more efficient and effective delivery of summary justice in Scotland.” The Committee’s report was published in March 2004.

An enormous amount of work has gone into the preparation of this 280 page report, for which the Committee are to be commended. They visited sheriff and district courts all over the country, and consulted widely. To broaden their horizons some of them visited Australia, Holland, England and Northern Ireland. They studied relevant statistics from every source available, and where they thought it necessary commissioned specific research from academics and vox pop agencies. They thus amassed a unique dossier on the summary criminal justice system, from the alleged commission of the offence to the final disposal.

Planning the route

In all their deliberations, the Committee decided they should consider certain principles. They agreed that fairness has to remain a key principle, and effectiveness requires action to be taken against offenders as quickly as possible. They thought deterrence to be at the heart of any effective system, and enforcement necessary to show offenders that a penalty will bite. They thought that efficiency – the most effective use of time and resources – is linked to simplicity and speed. Consistency in decision making was identified as a core value, as was accountability. Finally the Committee considered the system should be user-centred and not service-driven.

Very sensibly the Committee accepted from the outset that the Scottish system of summary justice is not in crisis, but there are areas of concern and room for improvement. It is not unfair to say that the main thrust of their recommendations reflects the changes they think, rightly or wrongly, will improve the overall speed and consistency of delivery of summary justice at every level.

The logical starting point is diversion, in one way or another from the courts, and the Committee have given their full attention to this concept.

DIVERSION. The summary courts deal with 96% of adult offences in Scotland. The actual numbers are dropping slightly, particularly in the district courts, and it is thought this is largely due to the effect of such arrangements as now exist for dealing with very minor matters either by the police or the fiscal without involving the courts at all.

NON-REPORTING. As matters now stand, police sometimes take no action on a very minor incident or issue an informal caution which is not centrally recorded. The Committee are keen to extend the use of this. The police, it appears, are not.

Central reservations

POLICE FORMAL WARNINGS. As an extension of that informal arrangement the Committee recommend a system of formal police warnings, not requiring an admission of guilt, the warning to be recorded in the Scottish Criminal Records Office so that it is available to a fiscal considering prosecution for a subsequent incident. Senior police officers have expressed very proper reservations about this proposal, seeing it as inconsistent with their primary function, and are concerned about the public perception of the police acting in this way. It has to be borne in mind that the police depend on retaining the goodwill of the public. The benefits which the Committee perceive as likely to flow from this procedure do not outweigh these concerns. Moreover, the recording and acting on the basis of such a warning might raise human rights issues.

FIXED PENALTY NOTICES. These are already in use, and they have come to be accepted by the community. The Committee recommend an increase in their use. This is no doubt a valuable way of dealing with minor offences of a regulatory nature, and an increase in the use of FPNs would be justified to divert still more work from the courts. Care must however be taken to retain a sense of proportion and a sense of what an FPN is. It is suggested it is not appropriate where there is a victim in any real sense, or where there is an intention to cause harm, or a reckless disregard as to whether harm is likely to result.

The hidden resource implication of an FPN, acknowledged by the Committee, is the wildly disproportionate cost of recovering the sum due if not promptly paid. The same is true of fiscal fines. At present the options appear to be either to accept that many go unpaid, so no penalty is imposed, or to spend more than the thing is worth to recover it.

The Committee are clearly in favour of expansion of the use of FPNs. (They propose a new recovery system.) It is sincerely to be hoped that full and genuine consultation on specific proposals takes place before any action is taken on this important and potentially valuable recommendation.

FISCAL FINES. The Committee report that these are working well, and in keeping with their desire to use to the full any diversion available, propose to increase the maximum sum of £100. That is reasonable, provided the increase does not exceed 100%, i.e. to £200. The difficulty of recovery has already been noted.

Caution – missing figures

FISCAL AND COURT COMPENSATION ORDERS. A fiscal who imposes a fine for a small amount within strict guidelines where guilt is admitted could be seen to be performing an administrative or at most a quasi-administrative act, not different in kind from a police officer or traffic warden serving an FPN. A compensation order is, however, a horse of quite a different colour. It is a judicial act, requiring the balancing of a varying, but always substantial number of factors, calling often for fine judgment. The report contains a mass of statistics concerning how many such orders are imposed, for what types of crime or offence and for how much. Vital figures are missing. How many are paid in full, and how quickly?

The Committee comment on the apparent reluctance of sentencers to impose compensation orders, but in consulting with sentencers, do not appear to have asked why. One reason at least is bound up with the missing statistics. Any sensible sentencer is conscious that the making of a compensation order raises in the victim an expectation that something at least will be done to redress the loss or damage he or she has suffered. The making of the order itself demonstrates that the court acknowledges the existence of the victim, and that a wrong has been done to that person. Much more important by far, is the belief instilled in the victim that the wrongdoer will be made to pay for the damage or the hurt.

The sheriff clerk recovers the sum awarded as if it were a fine, and from time to time remits the accumulated balance to the recipient, since in the majority of cases the order is paid in instalments. Experience has shown that the effect on the victim if the order is not paid promptly, or worse if it is never paid at all, is devastating, and the court is blamed. Hence the reluctance to make a compensation order except where the court is satisfied that the offender is likely to pay it in the allotted time. It is not often that the court can be confident that will happen.

Whatever the situation in Holland, where they do a lot of things differently, fiscal compensation orders are not a good idea here.

The recommendation that courts have power to make orders, where appropriate, in a wider range of cases is welcome.

SPECIFIC DIVERSION SCHEMES. The Committee notes that in 2002-03 1,744 cases were accepted by schemes run by criminal justice social work departments and the like. These are not large numbers, but given that the schemes are not nationwide they are not insignificant either. The Committee had insufficient information to assess the cost-benefit ratio, but received positive reports from a variety of sources, so there is a clear need for extensive research into such projects which divert cases from court by addressing the needs of those involved. It is to be hoped that the Committee’s call for such research will be heeded, and that cost-benefit will not be the only criterion.

Local bypass

ADMINISTRATION. The Committee comment that when discussing a “unified court system” some groups consulted had problems distinguishing a unified administration from a unified judiciary. The Committee are not, it seems, themselves free from such problems.

The number of prosecutions in the district courts fell from 84,705 in 1992 to 37,000 in 2002, and in the stipendiary court from 11,732 to 6,200 due to diversion. The stipendiary court is a district court with a professional judge. There is a wide range of busy-ness in district courts, from Lochgilphead sitting once a month to hear 20-40 cases to Glasgow sitting five days a week to hear 400 a month. The buildings run from excellent modern to poor ancient.

The Committee consider that greater consistency in investment in buildings, staff, IT and training of magistrates based on proper national needs assessment is essential to support high quality, consistent justice. No doubt they are right. The options are to impose more stringent national standards and fund the local authorities to meet them, or to centralise the whole system under the wings of the sheriffs principal and Scottish Court Service. It is generally recognised that sheriffs principal do not have enough to do, and SCS are adept at running courts to a high standard, so that is the Committee’s preferred option. They may or may not be right. Throwaway lines about cross-boundary rationalisation and the public being no further than 60 minutes from a court raise intriguing possibilities of the people of Edinburgh and Ayr having their district court in Glasgow. It will be interesting to see COSLA’s reaction.

Two into one won’t go

THE JUDGES. The Committee say that centralising the admin would not affect a decision on whether lay magistrates continue to sit. It has not in England, but it is noteworthy that SCS apparently did not trouble to cost centralisation using lay magistrates.

There is a case to be made for lay magistrates, and the minority report makes it very well. Nevertheless a majority on the Committee took the view that to meet the present and future needs of the community a wholly professional judiciary is preferable. They then quietly took leave of their senses, and ignoring the fact that for the best part of a century stipendiary magistrates have been (and are still; one is on the Committee) fulfilling the very role they have described, recommended the creation of a statutory hybrid with neither the powers, jurisdiction, nor ancient lineage and tradition of a sheriff, to be known as a “summary sheriff”. What a recipe for confusion lies there. How divisive that would be. A lawyer having the qualities to make a good sheriff will not seek the lesser post, but the already unpopular appointments board will see it as a stepping stone, thus potentially reducing the quality of the shrieval bench.

Avoiding the tailbacks

DEALING WITH DELAY. The best part of the report analyses the reasons for the length of time some cases take to go through the system. The substantial delays occasioned by police reporting and fiscals marking cases can be considered by the Normand groups. Any additional funding the police need must be given.

Once in court the Committee recommend that (1) defence solicitors be given a summary of the prosecutor’s case at an early stage, and (2) defence solicitors be properly remunerated for work done at an early stage. (In fact the whole present criminal legal aid system is a disgrace and often causes delays.) These changes, intended to encourage early pleas, should also help to determine early which trials are likely to proceed. Whether such information is also given to an unrepresented accused should depend on the nature of that summary, and the possibility of witnesses being endangered. Where appropriate, a notice of penalties should also be served.

By and large the recommendations about sentencing discounts are acceptable. What is not is the sheriff or magistrate warning an accused who is presumed innocent that he will receive a heavier sentence if convicted after trial. What price impartiality there?

Postal citations do not inspire confidence. Lord Bonomy’s agency might. It could also cite defence witnesses. The shambles day in and day out at intermediate diets in some courts about fiscals’ citations is intolerable. Perhaps the Normand groups can help resolve this.

Some courts make intermediate diets work better than others, another example of the power of local perceptions. Better and earlier communication between fiscal and defence is what the Committee recommend to reduce the number and length of trials, saving hours of witnesses’ time. That is vital. There should be compulsory joint seminars on it.

Courts, particularly where the person sitting at the intermediate diet is likely to hear the trial, should be wary of going too far in delving into the details. Justice, as the report constantly warns, must be seen to be done.

The report does not recommend any change in court hours. The Dumbarton evening courts were not a success. Among the reasons given for reluctance to attend were “I would have missed Coronation Street”, and “I was afraid I’d get mugged at the bus stop.”

APPEALS. It is unlikely that the proposed summary sentencing appeal courts, made up of sheriffs and sheriffs principal would improve consistency or have the confidence of the public. What is needed is more senior High Court judges sitting regularly, but that is outwith the reach of this Committee.

The information produced by the Committee is invaluable. Many of the recommendations are worthy of support, some less so. It has been a worthwhile exercise.