Evaluation of the Reforms to Summary Criminal Legal Assistance and Disclosure

2 Background to the Reforms

2.1 Recent years have seen a raft of changes to summary criminal justice in Scotland. These changes have been wide-ranging and occasionally contentious, but they have also often been technically complex and difficult for 'lay' members of the public to understand. This chapter briefly explains the changes to summary criminal legal assistance and disclosure and looks at key stakeholder reactions to and understandings of the reforms and what they were intended to achieve.

Changes to summary criminal legal assistance

2.2 The McInnes Committee argued that the payment structure under the legal aid system had the effect of encouraging late guilty pleas. The resulting revised system, which came into force on 30 June 2008, increased levels of payment to criminal defence solicitors at the early stages of cases and, specifically, introduced a case disposal fee (£515) for Sheriff Court/ Stipendiary Magistrates work to cover ABWOR (Assistance by Way of Representation) and summary criminal legal aid 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 supporting the higher level objectives of SJR, these changes to summary criminal legal assistance were specifically intended:

• To ensure that solicitors are appropriately and fairly paid for the work they do;
• To support investigation and preparation of cases to facilitate their resolution at the earliest possible stage;
• To reduce bureaucracy where possible and appropriate;
• To support the availability and delivery of sufficient criminal defence services of an appropriate quality;
• To appropriately reward work undertaken to progress summary criminal cases and support the cost effectiveness and efficiency of the wider criminal justice system.

Changes to disclosure

2.3 The McInnes Committee also argued that delays in summary justice resulted from the relatively late stage at which the defence had sufficient information to reach a conclusion as to what plea should be offered and to advise clients accordingly. The reforms to disclosure introduced the provision to the accused - in all summary cases in advance of the pleading diet (PD) - of a 'summary of evidence' based on the police report submitted to the procurator Fiscal. The subsequent creation of a statutory duty of disclosure under Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010 has no bearing on the provision of the summary of evidence to the accused at this very early stage of the prosecution process.

2.4 The idea of the summary was that it would allow earlier investigation of the case by the defence, and reduce duplication of evidence-gathering. It was also envisaged that it would facilitate early decision-making between defence solicitors and their clients and discussion between defence and prosecution. By enabling earlier identification of the evidence agreed by both defence and prosecution, it would reduce the number of witnesses cited unnecessarily.

2.5 The specific policy objectives of the reforms to disclosure prior to pleading diet were:

• To provide the defence with a basis for early investigation of the case and discussions with the procurator 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 dealt with at the earliest possible stage in proceedings;
• To support the new system model for summary justice.

2.6 Whilst SJR did not change the existing processes of disclosure of evidence after the pleading diet, the overarching System Model underpinning the reform of summary justice (Scottish Government, 2007) contained statements about the need to improve the effectiveness of court diets, and 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. In addition, the System Model contains aspirations regarding appropriate timescales for the provision of witness statements by the police to Fiscals (within 28 days of the accused pleading not guilty), along with timescales within which Fiscals should work to consider these statements and provide them to defence agents (up to a possible 28 days before the intermediate diet).

Stakeholder views of the reforms

2.7 So how did those working within the summary justice system view the reforms? Was there a common understanding of the need for change and of how the reforms fitted into the wider programme of summary justice reform?

2.8 Interviews with senior staff from stakeholder agencies and organisations (see Appendix C for details) were conducted at an early stage of the study to examine perceptions of the reforms and draw out key themes which would inform the subsequent qualitative interviews. In these early interviews, there was widespread agreement that, pre-reform, the summary justice process had been slow and that there was constant 'churn' - that is, that cases were repeatedly adjourned, leading to long delays in final outcome and disposal. The representative of the Association of Chief Police Officers in Scotland (ACPOS) noted, for example, that "it was often said that it was anything but a summary justice system" [ACPOS Official, stakeholder interview] and highlighted the amount of police time lost to witness duty for trials which did not proceed. For the Scottish Legal Aid Board (SLAB), the reforms were also about trying to "put the summary back into summary justice" [SLAB Official B, stakeholder interview]. The same interviewee argued that the system had become "too weighted to 'not guilty' pleas and potentially going to trial" and that "we redressed the balance there" through the reforms.

2.9 From the perspective of the Crown Office and Procurator Fiscal Service (COPFS), prior to the reforms, the defence had faced three main problems: lack of information; lack of access to the Fiscal; and the structure of legal aid. Reforms to disclosure were seen as tackling the first two of these, permitting meaningful discussion between solicitor and client, and between solicitor and Fiscal. For ACPOS, disclosure was about addressing the "total ignorance" of defence agents when a case was being called:

All they would receive was the complaint, and they would have no context, no background or whatever, other than the charge and the accused's version of events
[ACPOS, stakeholder interview].

2.10 In short, then, the need for and the logic of both sets of reforms seemed widely understood by senior practitioners within key stakeholder agencies. And these interviewees also shared an understanding that the reforms were part of a wider shift in policy thinking towards a more holistic, system-wide approach to understanding and reforming practice. For example legal aid officials noted the importance of an integrated approach to policy, of which legal aid formed an important part:

[Research] suggested that changing one part of the system and not another would be unlikely to be fully effective, but if you do both at the same time, pointing in the same direction, then they'll reinforce each other and they're more likely to succeed, in the sense of achieving what it is you [want] to achieve.
[SLAB Official A, stakeholder interview]

2.11 As such, the reforms were viewed as being a good example of the various justice agencies working together to bring about mutually beneficial change

It was the first time I think that there had been a set of reforms involving lots of organisations all making changes for the same […] goal.
[COPFS, stakeholder interview]

2.12 The combination of disclosure with legal aid reform was felt to be potentially crucial:

When the two things come together, looking at the summary justice system and seeing how other factors within the system might be addressed that also encourage, you know, getting in and then carrying on until you reach the point where a plea might be changed or otherwise the cases resolve
[SLAB Official A, stakeholder interview].

2.13 But it was recognised that other elements of the process, such as sentence discounting^[7], also had a potentially important role to play in encouraging early guilty pleas:

That's a factor. It's a factor that's often forgotten in this […] it's up there with the other factors of disclosure, informed decision-making, ability to prepare, […] and get information at the beginning of the case
[SLAB Official B, stakeholder interview].

[…] it did dovetail well with disclosure because of course we had the Fiscal summaries coming in, and it dovetailed well with Du Plooy^[8] because there was […] a merit for the client's point of view in pushing the idea of an early disposal of the case
[Defence Solicitor Representative D, stakeholder interview].