Evaluation of the Reforms to Summary Criminal Legal Assistance and Disclosure

Executive Summary

Background

This report presents the findings of an evaluation of the changes to disclosure and summary criminal legal assistance (SCLA)^[1] introduced under Summary Justice Reform (SJR). The overall aim of SJR is the establishment of a summary justice system which is: fair to the accused, victims and witnesses; effective in deterring and punishing offenders; efficient in the use of time and resources; and quick and simple in delivery.

The revised system of SCLA was introduced on 30 June 2008 and primarily increased the levels of payment to criminal defence solicitors at the early stages of cases including introducing a new case disposal fee. The policy objectives of the reforms to SCLA were to: ensure that solicitors are appropriately and fairly paid for the work they do; support investigation and preparation of cases to facilitate their resolution at the earliest possible stage; reduce bureaucracy where possible and appropriate; support the availability and delivery of sufficient criminal defence services of an appropriate quality; appropriately reward work undertaken to progress summary criminal cases; and support the cost effectiveness and efficiency of the wider criminal justice system.

The reforms to disclosure pre-pleading diet - rolled out in October 2007 - introduced the provision to the accused - in all summary cases - of a 'summary of evidence' based on the police report submitted to the Procurator Fiscal. The policy objectives for pre-pleading diet disclosure were to: provide the defence with a basis for early investigation of the case and discussions with the Fiscal; to inform the decision making process with the client regarding the plea which ought to be entered; to support more effective court hearings at pleading and intermediate diet; to enable cases to be concluded at the earliest possible stage in proceedings; and to support the new system model for summary justice.

Whilst SJR did not change the existing processes of disclosure of evidence after the pleading diet, the System Model underpinning the reform of summary justice (Scottish Government, 2007) contained statements about the need to improve the effectiveness of court diets. The procedures and practices around disclosure of evidence following a plea of not guilty can be seen to contribute directly to early, effective preparation for court diets. The operation of disclosure post-pleading diet was included in the remit of this evaluation. Subsequent changes to disclosure introduced by the Criminal Justice and Licensing (Scotland) Act 2010 were not within the scope of this research.

Aims and objectives of the research

The overarching aim of this evaluation was to assess the extent to which the reforms to SCLA and disclosure supported: the overall aim for SJR; the SJR overarching objectives; the SJR intended outcomes; and the specific policy objectives of SCLA and disclosure. In doing so, the research aimed to identify the key factors which enabled or contributed to, and barriers which prevented, achievement of the reform objectives.

Methods

The evaluation employed both quantitative and qualitative methods to explore the practice and operation of disclosure and summary criminal legal assistance following the reforms, perceptions of the reforms among key actors involved in the summary justice system, the impact of the reforms on case trajectories and outcomes, and the financial impact of the reforms. To permit a detailed study of court operation and actors, and to allow consideration of data on summary business in the pre-reform period, the research focussed on summary business in the Sheriff rather than Justice of the Peace courts.

Qualitative data were collected via individual face-to-face or telephone interviews with criminal justice professionals and individuals who had been accused of summary crimes or offences. A qualitative analysis of a random sample of 192 disclosable summaries was also undertaken. The research also involved observations of court proceedings.

The quantitative data included national performance/monitoring data, a national survey of 202 defence solicitors, data on reasons for the continuation of intermediate diets in selected courts, detailed case trajectory data for a sample of summary cases in selected courts, and various costs associated with the processing of summary court cases.

Findings

The findings in context: changes to summary business

At the same time these reforms were being rolled out, considerable other changes were taking place in the summary system which affected the number and nature of cases which resulted in court action. Four key changes which occurred between 2007/08 and 2010/11 are of note: the proportion of summary business dealt with by police direct measures (DMs) has doubled - rising from 9% to 19% - and the proportion of business dealt with by Fiscal DMs and by Sheriff courts has decreased, each by 5 percentage points. Between 2007/08 and 2010/11, the overall number of Sheriff court complaints registered fell from 97,456 to 78,936. Much of this business was now being dealt with in the newly formed Justice of the Peace (JP) courts, former District courts with enhanced powers and now under the jurisdiction of the Scottish Court Service.

Case trajectories, outcomes and duration

Our estimates suggest that in the pre-reform period considered, 61% of all cases had a guilty plea offered at some stage in the proceedings. In the post-reform period this figure was almost identical at 60%.

However, since the reforms there has been an increase in the proportion of pleading diets with a guilty plea suggesting that more cases are now being resolved earlier in the process. These increases have been mirrored by decreases in conclusive intermediate diets and, to a lesser extent, trial diets. Custody cases, in particular, showed a significant increase in guilty plea rates at first calling; by June 2010, at 44%, the guilty plea rate at pleading diet for custody cases was almost double that of the pre-reform rate of 23%.

Following the immediate increase in early guilty pleas, there was a subsequent gradual decrease in these rates over time suggesting that the initial impact of the reforms is now receding.

The data suggests little or no improvement to the time taken to dispose of Sheriff summary cases despite an increase in early guilty pleas. 82% of cases were disposed of within 20 weeks in the pre-reform period compared with 71% in the most recent post-reform period. Neither has there been any notable change to the average number of diets per case. Given the significant shift in the nature of Sheriff court business - with a larger proportion of its workload now made up of more serious crimes and offences which may be more likely to cause complications - this is perhaps unsurprising. In addition, continuations without plea are now more common. Whilst these will increase the number of diets, where they secure a guilty plea they prevent the additional work involved in moving a case from pleading to intermediate diet.

The economic impact of the reforms

The economic analysis calculated the cost of processing a typical Sheriff court summary case pre-reform and post-reform. This analysis suggests that post-reform Sheriff summary cases cost an average of £405 (13%) less to process than pre-reform cases. If this average saving is applied to the 83,276 Sheriff summary cases processed in 2009/10, this suggests a total saving of £33 million when compared with the cost of processing that number of cases through the pre-reform system. However, the vast majority of this saving is because custodial sentences - the most expensive disposal - are less likely to be imposed post-reform whereas financial penalties - which are significantly cheaper to administer than custodial sentences - are more likely to be imposed post-reform. When costs associated with disposals are removed, there is almost no change to the system costs pre- and post-reform. Savings gained by earlier case conclusion are off-set by an increased proportion of those cases which go past ID going onto trial and an increased likelihood of adjournment.

There have been savings in expenditure on summary criminal legal assistance. The SCLA bill for Sheriff summary cases in 2009/10 was around £11 million less than the equivalent pre-reform figure for 2007/08. The majority of this saving has occurred from a lower volume of summary cases reaching court and therefore qualifying for legal aid rather than changes to SCLA payments introduced by SJR. However, some of the savings will also have occurred from the increase in the proportion of cases receiving ABWOR payments and the corresponding decrease in duty solicitor, advice and assistance, and summary criminal legal aid payments. This shift, at least in part, is attributable to the increase in earlier case disposal following the reforms. There is little to indicate that per case remuneration following the reforms is significantly different from the position pre-reform.

The operation of disclosure

Disclosable summaries were seen as useful to solicitors in advising their clients how to plead. Indeed, over 70% of defence solicitors in the survey thought that the information provided by disclosable summaries was either 'very helpful' or 'quite helpful' in this respect.

The quality of disclosable summaries was believed to be reasonably good and was improving. There were some suggestions from defence solicitors that summaries were of lower quality in complex cases, a position our analysis of a sample of summaries confirmed. Examination of outcomes for this sample tentatively suggests that those with an insufficient summary are less likely to plead guilty at first calling - given these are likely more complex cases, this is perhaps unsurprising.

Disclosure after the pleading diet appeared to be working reasonably well although experiences did vary between courts. Both the police and Fiscals commented on the additional resource demands which the revised arrangements placed on them. For some, this additional demand in combination with a perception of fewer resources gave the appearance that Fiscals were overburdened and under-prepared at intermediate and trial diets. Though some also noted that the perceived increase in prosecution workloads in preparation for IDs had to be set against the time saved by a greater number of earlier pleas.

Full statements and CCTV footage were perceived to be extremely helpful to the case. However, many commented on delays with this material. Indeed, data on the reasons for adjournments of intermediate diets suggests that disclosure issues were a common reason for adjournment. In addition, defence solicitors complained that, in some cases, material was disclosed too close to the intermediate diet to allow proper preparation and to advise the client; one or two Sheriffs shared this view.

Some interviewees believed that the Crown and Sheriffs were not pro-active enough in questioning unjustifiable - in the light of the disclosed information - not guilty pleas and requests for adjournments at the intermediate diet, with some calls for Sheriffs to be generally more 'assertive',

Impact on case preparation

60% of defence solicitors surveyed said there had been no change to their level of client contact since the reforms were introduced, around a quarter (24%) said their client contact had decreased, and 16% indicated an increase. Amongst those who said contact levels had changed, 51% attributed this to the changes to legal assistance, 14% to the disclosure reforms, and a further 27% perceived that both reforms have worked together to cause this change.

Defence solicitors were more likely to perceive a change in the way they dealt with clients than in the level of contact per se; half said the reforms had affected the way they deal with clients. Again, amongst those who noted a change, it was more commonly ascribed to the reforms to legal assistance than to the reforms to disclosure, though many referred to the combined effect of both.

For some solicitors, the reforms were seen to place more emphasis on seeking early resolution, a view which was also expressed by a number of Fiscals. However, solicitors also pointed out that, as a result of changes to payments - and a perception, amongst some, that they are now worse off - they are more conscious of the type of work they take on, what preparation they will do, and will sometimes avoid certain work.

Reduction in client contact was not always viewed negatively; changes to disclosure have allowed client contact to be more focused for some solicitors, requiring less time to be spent in discussion with clients. For other solicitors, however, disclosure has required additional client contact which is not perceived to be financially viable following the changes to legal aid. In addition, both accused interviewees and defence solicitors perceived an impact on the quality of representation - for the former group this was measured through a reduction in the time spent with their solicitor before a case, for the latter group through financial changes restricting their ability to properly prepare a case.

The perception of lower per case remuneration was prominent in the comments of some solicitors but this perception does not appear to match the analysis of aggregate-level change in the value and mix of payments under SCLA which suggests that per case remuneration is much the same post-reform. It is clear that fewer summary cases now reach court though, providing less potential business for defence solicitors which may be impacting on their overall income - an outcome which has not occurred specifically as a result of the reforms to SCLA.

Impact on pleas, pleading advice and plea negotiations

Of defence solicitors surveyed, 42% thought that disclosure had led to more early discussions about cases with Fiscals, although 43% perceived there to have been no change and 14% were of the view that there was less discussion. A common view amongst interviewees was that discussions between Fiscal and defence were now more productive because both parties now had access to the same information. Accused interviewees also commented that disclosure, whether in full or in summary form, was essential not only in ensuring a just and fair process but also in helping clients and their solicitors decide on the best way to plead.

Some difficulties were raised in relation to discussion between defence solicitors and Fiscals. Defence solicitors remarked upon the difficulty of getting hold of a Fiscal as did Fiscals about solicitors. Measures established to address this - such as having a Fiscal available on court premises to discuss cases before the intermediate diet - had mixed responses, appearing to have been successful in some areas only.

To some extent, an imbalance between the high volume of cases going through some courts and the perceived low number of staff and lack of court time to deal with them was also believed to be constraining successful plea negotiations between solicitors and Fiscals. Some defence solicitors also believed that they will often be in a better position at trial diet to negotiate a better outcome for their client due to a perception that Fiscals were often under pressure to deal with a large number of trials and that witnesses may fail to attend.

The reforms were perceived by many interviewees and survey respondents to have had an influence on the increase in early pleas. For example, 38% of solicitors in the survey said they themselves were now more likely to advise an early guilty plea with the figure higher when answering in relation to what they thought other solicitors did (57%).

Defence solicitors suggested that there is a greater readiness on the part of some lawyers to advise their clients to plead guilty in direct response to the financial arrangements of legal aid. In addition, many interviewees observed that the summaries were helpful in persuading clients to plead guilty at the earliest stage. However, for many practitioners, it was the combined effect of both sets of reforms which had contributed to the change in early guilty pleas.

Interviewees described a range of other factors which were perceived as influencing pleading decisions. These include: sentence discounting, particularly where a custodial sentence is at stake; bail opposition and the risk of being remanded; the shift in court business, Fiscal workloads and court scheduling; the perception that negotiation will gain more concessions for the defence at intermediate diet; a belief that there had been an increase in refusals of ABWOR by the Scottish Legal Aid Board (SLAB) after the case had been disposed of; whether or not Sheriffs adopt a pro-active approach in questioning not guilty pleas or reasons for adjournments; and the perceived likelihood, amongst accused and their solicitors, that the trial would ultimately go ahead as scheduled.

Conclusions

Interviewees believed the fairness of the system had improved in a number of respects: fewer trials overall meant more time to deal appropriately with cases which do go ahead and the requirement for victims and witnesses to attend court had reduced. Disclosure was fairer to accused persons because the information supplied better equipped them to make an informed and early decision about their case. However, there was a lack of consensus about the specific impact of the reforms to summary legal assistance and disclosure overall to the fairness of the summary justice system.

Interviewees believed the reforms to disclosure had contributed to a more efficient and effective system by facilitating early case resolution, better case preparation, earlier negotiations and productive discussions between the Fiscals and defence solicitors, and saving some time for both Fiscals and solicitors. Disclosure also allowed accused persons to make more informed and earlier decisions on how to plead.

However, some aspects of disclosure were seen to act negatively on efficiency and effectiveness. For example, Fiscals perceived an increase to their workload, associated with the administrative burden of full disclosure - which also had an impact on the police - outweighing any efficiency gains from other aspects of summary justice reform. In addition, despite improvements in meeting targets for post-pleading diet disclosure, it was still the cause of a significant amount of delay at intermediate diets, as was a lack of preparation.

Many of those interviewed emphasised that, despite the reforms to summary justice, not all cases will resolve as early as they perhaps could and may never do so. However, many suggestions were made to tackle the key barriers which may allow that the progress towards achievement of the SJR aims so far is sustained and improved upon.

Improving efficiencies associated with online technology - such as the electronic processing of disclosure - and ensuring consistent timeous provision of CCTV and forensic evidence were believed to be key to reducing delay and improving preparation. The prospect of a sentence discount featured highly as a factor motivating early pleas. Thus ensuring the consistent application of discounts, or extending them, may have a greater impact on early pleas.

Witness attendance at trial diets was still a key cause of adjournment and the likelihood of trial adjournment was still a significant factor in the plea decisions made by accused persons. Thus maximising the attendance of witnesses would potentially impact on both these issues.

There is an important role for communication and effective inter-agency and personal relationships at a local level, factors which are not easily supported by centralised systems. There may be a greater role for the judiciary to promote and co-ordinate this local cooperation and efficiency.