Summary justice: the big picture

The first of four articles on the summary criminal justice reforms sets out the aims of the legislation and the main procedural reforms

19th November 2007 | David A Dickson

On 18 January 2007 the Criminal Proceedings (Reform) (Scotland) Act 2007 (“CPRA”) was passed with cross-party support in the Scottish Parliament. The Act contains a number of legislative changes to different areas of the criminal justice system, which taken together are intended to make summary justice faster, more efficient, and more visible to the communities it serves.

Legislation, however, is only part of what is planned; the programme of reform is considerably wider than that. Many of the forthcoming changes to practice and procedure are non-legislative in nature, and anticipate a change in the culture of the summary courts. They are intended to amount to significant reform to the operation of the summary justice system.

The background

The background to the programme of reform starts in November 2001 with the formation of an independent committee, chaired by Sheriff Principal John McInnes. The remit of the committee 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 McInnes Committee’s report1 was published in January 2004 and ran to over 250 pages. The report’s recommendations were the subject of consultation, and in March 2005 the Scottish Executive (as it then was) published Smarter Justice, Safer Communities – Summary Justice Reform Next Steps,2 a document which set out the Executive’s plans for reform. The reforms required to be underpinned by legislation, and the CPRA was enacted to fulfil that requirement. This Act also incorporates legislation in relation to bail and remand, taking forward commitments made in the Executive’s Bail and Remand Action Plan of September 2005.3

The CPRA and the associated reforms will be implemented in stages. In December 2007 the changes to bail (ss 1-6), lay justice (ss 59-77), and sentencing powers (ss 43-49) will come into effect. In addition, some of the CPRA’s procedural reforms will commence. Changes to alternatives to prosecution and fines enforcement will commence in March 2008, as will the programme of phased court unification.

The changes to the operation of the summary courts involve, over and above the legislation, commitments from the various criminal justice organisations and the Scottish Government to progressive improvement in the operation of summary justice. Their plans are set out in a “system model” paper, published in September 2007.4

This article is the first of four intended to give practitioners an overview of the major changes in relation to practice and procedure in the summary courts. Future articles will cover changes to bail and remand; sentencing; the administration and composition of the courts; fine enforcement; and direct measures (non-court disposals).

The system model

This first article focuses on the future shape of business in the summary courts, the intended trajectory of a case through the courts, and the legislative changes made to assist in those aims.

By way of context, it is worth considering the stated purposes of the summary justice reform programme. The system model paper affirms that the reforms are intended to be:

Fair to the accused, victims and witnesses;
Effective in deterring, punishing and helping to rehabilitate offenders;
Efficient in the use of time and resources; and
Quick and simple in delivery.
And the system model is designed to achieve these aims by delivering:
The greater use of police and fiscal direct measures, freeing up court time for cases requiring the expertise of judges;
More extensive use of better trained, more professional lay justices;
Cases coming to court more quickly;
Cases being dealt with at the earliest possible stage in proceedings;
Early, effective preparation; and
More effective court hearings.

Direct measures

The intention underlying the reforms is that cases should be dealt with at the most appropriate level – which need not, of course, always mean prosecution before a court. As a starting point the system model assumes a greater use of non-court options.

Practitioners will no doubt be aware that the police already have enhanced powers to offer fixed penalty notices for lower level antisocial crime. These powers were introduced by the Antisocial Behaviour etc (Scotland) Act 2004, and after being piloted the use of these notices has now been rolled out across the country. This should mean a reduction in the level of antisocial crime being reported to procurators fiscal by police.

Changes to the prosecutor’s ability to offer direct measures will not be implemented until March 2008. In brief, prosecutors will have available to them higher fiscal fines, the new compensation offer and (initially on a pilot basis) work orders under which the accused will carry out a short period of unpaid work. There are also significant changes to the way in which these direct measures will be enforced.

It will remain the case that serious or persistent offenders will generally be prosecuted in court, that all those offered a direct measure by the procurator fiscal will be entitled to request a court hearing should they wish, and that accepted direct measures will not be criminal convictions.

Direct measures will be covered in detail in a future article.

Future of the district courts

The role of lay justices is being reaffirmed and enhanced. Formal appraisal is being introduced across the lay justice sector; and every JP appointed to the new system will undergo training developed by the Judicial Studies Committee. The administration of district courts will progressively be unified with that of sheriff courts, with the first unification, in Lothian and Borders, due in March 2008. Post-unification, JP courts will replace district courts(CPRA s 59).

It is expected that greater use of direct measures will create new capacity in this lower tier of courts. Scotland’s criminal justice organisations are committed to making the best possible use of lay justice and, at least, maintaining current levels of business. It follows that the case profile in the district or JP court may change and that rather more serious instances of certain crimes will be allocated to those courts to deal with. Steps are in hand to extend their jurisdiction to hear certain road traffic cases. These measures should help to ease congestion in our sheriff courts.

Sentencing powers will also change in the sheriff court – the maximum sentence of imprisonment for common law offences and “each way” statutory offences will generally be 12 months. Taken together with the increased use of direct measures and the creation of the JP court, the objective is to facilitate the most appropriate distribution of business through the JP, sheriff summary and sheriff and jury courts.

Changes to court structures, sentencing powers, and recruitment and training of lay justices will be discussed in greater detail in a future article.

Coming to court more quickly

The McInnes Committee identified the time taken between offence and first calling in court as one of the primary causes of delay in the summary justice system. At present, the majority of cases commence by way of citation. With a view to bringing forward the first calling of some of these cases, it is intended to increase the number of cases which commence instead by way of undertaking. This process has already begun. In due course, it might be that up to a quarter of court cases will be initiated by undertaking. For those cases which are still initiated by citation, the intention is that these too should proceed to court more quickly. Target timescales for these processes can be found in the system model paper.

Earliest possible disposal

Both Crown and defence practitioners will recognise that the vast majority of cases set down for trial do not at present get as far as the leading of evidence. In many cases where there is a partial or complete change of plea, there has been some form of investigation by the defence and contact between the defence and the Crown. Potentially, if that investigation and contact could be brought forward, many such cases could be taken out of the system at an earlier stage.

Accordingly, the Crown has started routinely to provide a summary of evidence with the complaint served on the accused. This summary is, in effect, the factual narrative from the police report. It is intended to assist in informing initial discussions with the accused and the Crown, and the plea to be tendered. And it may identify issues which require further investigation.

Where such an issue is identified, or further contact with the Crown thought appropriate, the court could be asked to continue the case without plea.

Efficient conduct of cases

Where a case cannot be resolved at the earliest stage and a plea of not guilty is tendered, it is important that preparation on both sides is timely and effective. In circumstances where it is necessary to hold a trial, the police and procurator fiscal now have targets for the provision of any necessary witness statements. This is intended to give the defence sufficient time before the intermediate diet to initiate and conclude any necessary enquiries and take instructions from the accused.

This will also allow parties to consider which evidence is unlikely to be disputed. Practitioners will be familiar with their duty in terms of s 257 of the 1995 Act to seek the agreement of such evidence. It should be noted, however, that compliance with that duty must now take place before any intermediate diet (CPRA s 18).

At the intermediate diet itself, the court is now obliged to make such enquiry of the parties as is reasonably required to ensure that both parties are prepared for trial. This will include parties confirming how many witnesses each intends to call at trial. In addition, any special defences, or other defence of which notice must be given, must be lodged at or before the intermediate diet (CPRA ss 18 and 19).

The intention is to ensure that cases which proceed from intermediate diet to trial diet are properly prepared for trial, those issues which could jeopardise the trial having been identified and dealt with. This in turn should reduce “churn” at the trial diet.

The timing of diets, and the availability of parties for discussion of cases, is important. The system model does not propose a “one size fits all” model for each summary court in the country. The issues involved in tackling delay are, however, broadly the same. So there will be room for local variation in the way in which these problems are tackled, having regard to the type and volume of court business and the available resources. Local criminal justice boards will have a key role in overseeing implementation at local level.

Legal aid

It is evident that these changes will have an impact on the way in which solicitors conduct business. Practitioners will be aware that, in consequence, the Scottish Legal Aid Board and the Scottish Government are currently consulting on proposed changes to the regime for summary criminal legal assistance. The proposals can be found at www.slab.org.uk . The consultation is open until 24 December 2007, and the aim is to introduce any changes in spring 2008. The proposals are intended to complement the summary justice legislative and system changes by front-loading of payments for work done to resolve cases at an early stage.

In conclusion, the summary justice reform programme attempts a radical change in process, outlook and culture. It aims to make the whole system swifter and more focused on the needs of victims, witnesses and the accused. Its scale and complexity are such that the changes will take time to bed in and their impact to take hold. The full public benefit of the programme will only be realised with the assistance and co-operation of all of the individuals and agencies who work within the summary justice system.

David A Dickson is a procurator fiscal depute on part-time secondment to the Scottish Government

COMING SOON THE DECEMBER PROVISIONS

SSI 2007/479 brings the following provisions of the 2007 Act into force on 10 December 2007: Bail (ss 1-6); s 7(2)(c); of the summary procedure provisions, ss 8-10, 12 (part), 13-15, 18-21 and 24-25; the solemn procedure amendments in ss 26, 27, 30 and 32; of the “miscellaneous” provisions, ss 33, 34 and 37-40; s 41 (electronic proceedings) in part; of the penalties provisions, ss 43-45, 48 and 57-58; most of Part 4 (JP courts); and related consequential amendments. The order makes transitional provisions including for bail.