Evaluation of the Reforms to Summary Criminal Legal Assistance and Disclosure

1 Introduction

1.1 This report presents the findings of an evaluation of the changes to disclosure and summary criminal legal assistance (SCLA) introduced under Summary Justice Reform (SJR). This study, one of six evaluations commissioned by the Scottish Government Justice Directorate^[2], was carried out by a research team led by the Scottish Centre for Social Research (ScotCen).

1.2 The overall aim of SJR - introduced in response to the review of summary justice by the McInnes Committee (Scottish Executive, 2004) - was 'to create a more efficient and effective justice system which dispenses justice fairly and reduces re-offending' (Scottish Executive, 2005). The aim was supported by four 'overarching objectives' aspiring to 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.

1.3 The specific reforms to disclosure prior to pleading diet, introduced in October 2007, required that a summary of evidence (based on the police report submitted to the procurator Fiscal) would be provided to the accused along with the complaint in all summary cases^[3].

1.4 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) made a commitment to improving the effectiveness of court diets, including through improvements to disclosure of evidence following a plea of not guilty. The System Model defined a range of related timescales including, for example, within which police should provide witness statements to Fiscals and Fiscals should then provide them to defence agents. Disclosure following the pleading diet was considered within the scope of this evaluation.

1.5 The reforms to summary criminal legal assistance, introduced in June 2008, increased the levels of payment to criminal defence solicitors at the early stages of cases. In particular, for cases disposed of before trial, under the revised system the fixed fee for Assistance by Way of Representation (ABWOR) was increased (to £515), matching the revised summary criminal legal aid fixed fee also being paid for cases disposed of before trial. The reforms also allowed for ABWOR to be provided by an accused person's own solicitor for the former's appearance from custody as well as extending it to cover continuations without plea (CWP). Criminal Advice and Assistance (A&A) fee rates were increased by 10% with such fees now being subsumed within any subsequent grant of ABWOR or summary criminal legal aid (excluding an exceptional police station visit). Duty solicitor payments were also changed.^[4]

Aims and objectives

1.6 The overarching aim of this evaluation was to assess the extent to which the reforms to legal aid and disclosure supported: the overall aim for SJR; the SJR overarching objectives; the SJR intended outcomes; and the specific policy objectives of the reforms to SCLA and those of disclosure. Specifically, the evaluation sought to reveal whether the reforms to SCLA and disclosure have resulted in: fewer cases going to trial needlessly whilst maintaining the principle of fairness; those cases which go to trial getting there quicker; cases being dealt with at the earliest possible stage in proceedings; cases being better prepared; and more effective court hearings.

1.7 In addition, the research explores the economic impact of the reforms on the resources available to different parts of the justice system; that is, the value of any savings or costs incurred as a result of the reforms, and whether any such savings or costs incurred by different parts of the system counteract or augment each other.

1.8 A further, and important, key objective of the broader evaluation was to separate out the individual impact of the two reforms on the overall aim, and overarching objectives, of SJR.

Methods

1.9 The evaluation employed both quantitative and qualitative methods to explore the practice and operation of disclosure and SCLA 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.

1.10 A detailed account of the research methods can be found in Appendix C. In summary, qualitative data were collected via individual face-to-face or telephone interviews with three main audiences:

• national level representatives of key stakeholder organisations
• 36 criminal justice professionals associated with four case study Sheriff courts (interviewees)^[5]
• 16 individuals who had been accused of summary crimes or offences (accused).

1.11 The four case study courts were selected to include those where there appeared to have been a high impact from the reforms (measured in terms of the change to the rate of early guilty pleas) and those where there had been less impact. The case study qualitative interviews sought to explore whether the practice and behaviours of participants in the local criminal justice system could explain some of the differences in impact of the reforms.

1.12 A random sample of 192 disclosable summaries (approximately 50 from each of the four case study courts^[6]) provided by the Crown Office and Procurator Fiscal Service was rated by the research team in terms of providing sufficient information to the defence to enable them to advise their clients on how to plead.

1.13 The above qualitative data were considered alongside observations of court proceedings and a number of quantitative measures. They included existing national performance/monitoring data, a national survey of 202 defence solicitors, data on reasons for the continuation of intermediate diets in selected courts, case trajectory data for the sample of cases selected for the analysis of disclosable summaries, and data relating to the costs of various activities associated with the processing of summary court cases.

1.14 The research focussed on summary business in the Sheriff rather than Justice of the Peace (JP) courts, so it complements rather than repeats issues which may be raised in the evaluation of reforms to Lay Justice which is centred on the JP courts. It is possible that the reforms to SCLA and disclosure may have impacted differently on these different summary settings.

Limitations of the evaluation

1.15 There are a number of limitations to the current study - particularly in relation to its ability to assess the direct impact of the reforms.

• The reforms have occurred alongside widespread change in the Scottish criminal justice system including, in particular, the unification of the Sheriff and District (now JP) courts under the single jurisdiction of the Scottish Court Service (SCS), the move to deal with a larger proportion of summary business using non-court disposals (police and Fiscal DMs) and the resulting impact on court business.
• The changes to SCLA and disclosure introduced by the reforms both impact mainly on the same stage of the summary justice process - the pleading diet. As such, it is difficult to disentangle their independent effects from each other and from the numerous other ongoing issues and developments in the summary process such as, for example, sentence discounting, further reduction in the fixed fee and the impact of HMA v. Cadder.
• Whilst a range of comparable data are available for the pre-reform period, there are major problems of attribution because of the potentially confounding effects of change elsewhere in the system.
• The qualitative element of the evaluation reflects stakeholder perceptions of experiences and impacts of the reforms. Such views are, of course, subjective, sometimes contradictory and often in tension with those of others. But they remain of interest in their own right, since they inform and help to explain the way that individuals may engage (or fail to engage) with systems and with other people working within them.

Structure of the report

1.16 In the following chapter, we provide some contextual information about the background to the reforms and the nature of the post-reform summary justice system. Chapter 3 uses administrative data to describe key changes in the volume, character and procedural outcomes of summary court business following the reforms. Chapter 4 focuses on key actors' perceptions of how the reforms have shaped defence solicitors' case preparation and plea decision-making. As such, it focuses largely on reactions to the changes to summary criminal legal assistance, but also looks at the interaction of these with changes to disclosure. Chapter 5 takes a wider look at views of the changes to disclosure: it provides an analysis of the content, use and perceived impact and effectiveness of disclosable summaries as well as considering perceived developments in and issues with disclosure after the pleading diet. Chapter 6 considers the way that other factors associated with summary justice reform have shaped the impact of the specific reforms to legal aid and disclosure The final chapter considers the extent to which the reforms have achieved their specific objectives, explores their contribution to the broader aims of summary justice reform and offers some brief conclusions.