Evaluation of the Reforms to Summary Criminal Legal Assistance and Disclosure

5 Perceptions of The Reforms to Disclosure

Introduction

5.1 The previous chapter focused on the specific issue of the impact of the reforms on case preparation and plea advice. Although its main focus was on the changes to legal aid, it also showed how these are widely felt to have combined with the reforms to disclosure to produce particular outcomes, especially in relation to early guilty pleas. In this chapter, we examine wider perceptions of the reforms to disclosure - in particular, views of the operation, quality and timeliness of disclosure both pre-Pleading Diet, and between Pleading Diet and Intermediate Diet following the introduction of the reforms. In particular, the evaluation is concerned with how disclosure has impacted on the effectiveness of PDs and IDs and, relatedly, changes in case timings and outcomes.

5.2 There are two elements to this part of the research: the first is concerned with the operation of disclosure in the period before PD - in other words, with the use and quality of disclosable summaries; the second is concerned with disclosure practice between PD and ID, sometimes known as 'full disclosure'.

5.3 This chapter again draws on the survey of defence solicitors, and qualitative interviews with defence solicitors, Fiscals, Sheriffs and police officers. It also provides data from an exercise carried out by the research team to assess the quality of disclosable summaries (see Appendix C for a full description).

5.4 The chapter will show that practitioners across all agencies appear to have found disclosable summaries helpful in terms of case preparation and supporting earlier pleas. There is also a widespread view that the changes to disclosure have contributed to earlier and more productive discussion between defence solicitors and the Crown. Our own analysis - and the views of most practitioners - also suggest that the quality of disclosable summaries is generally good.

5.5 We will argue that although full disclosure is generally seen to be working well, it continues to be associated with continuation and delay in a minority of cases - though it is by no means the only factor here.

Disclosure before the pleading diet

5.6 Many of those interviewed felt that disclosable summaries were useful to solicitors in advising their clients how to plead. Indeed, over 70% of defence solicitors responding to the postal survey thought that the information provided by the disclosable summaries was either 'very helpful' or 'quite helpful' in this respect. Both defence agents and Fiscals felt that the provision of this information meant that the defence was now able to represent clients more effectively. While some felt it was unhelpful that disclosable summaries could not be generated from non-police reports (e.g. DSS), the research team understands that this problem has now been resolved.

5.7 It is clear that the police have put a considerable amount of work into improving the quality of the police reports on which the disclosable summaries are based. One view - expressed by a range of interviewees, including police officers - was that, prior to reform, police reports were perhaps less systematic and sometimes focussed on the evidence which would support the case. However, it was widely felt by police interviewees that 'now 100% of the information is passed to the PF' (SPF 13). Police said that the ACPOS guidance detailing what should go into the police report was helpful and that reports were routinely reviewed by a specialist or senior officer before going to the Fiscal, although sometimes in a custody case the time constraints were a problem.

5.8 The quality of disclosable summaries was generally felt to be good - a view supported by our own analysis (see below) - and improving. But some defence solicitors suggested that summaries were of lower quality in complex cases, especially those involving multiple witnesses (such as street brawls). It was also felt that police accounts of civilian statements were often unreliable but that the front-loaded legal aid structure compromised the practical ability to test that evidence.

Police summaries are actually quite good. (PFF 42).

To my point of view, they are a very good plus because we have a lot of clients who say, "Can't remember a thing. I was drunk". (DSF 27)

If it's a very straightforward simple thing - yes, it's fine. Anything that's other than just some guy shouting and swearing and drink in the street, it's .. they're not particularly great because they're cobbled together from a number of statements, and…it looks as if it's been cut and pasted just on to .. you know, taken from something else and stuck on it. That's what it looks like. (DSF 22)

5.9 It was suggested that other differences in quality were simply explained by the approach of the individual reporting police officer.

The quality of Police reports varies …in terms of the officer that's put it together. Sometimes we'll say… "couldn't make head nor tail of it", and sometimes you might get a very good clear one. (PFF 10)

5.10 There was a general view that early disclosure could not but assist the early resolution of cases, particularly in the light of sentence discounting - the influence of which on plea decisions will be discussed in chapter 6. Some, but not all, those interviewed thought that there was already some evidence of this. One defence solicitor, for instance, commented that in order to receive the maximum sentence discount, an early plea was likely "if you see in the summary of evidence that the police caught them red-handed" (DSF 26). This was considered particularly likely in situations in which a client has no memory of the incident as a result of drunkenness or other intoxication. The influence of the Crown's position on bail on the accused's decision at the PD is also influential (as will be discussed in Chapter 6) but the summary of evidence was felt to contribute further in these situations.

5.11 Some Fiscals questioned whether the one-sided nature of disclosure, where the defence are not required to reveal their position to the Crown, was fair. Accused interviewees, on the other hand, saw disclosure, whether in full or in summary form, as 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:

I don't know, I'd like to know more about why I'm up for it, and obviously I know what I did and stuff but I think [I'd like] to know more about how the courts work (AF10).

If I don't remember, you know, the crime that they tell me about, then I just won't plead to it. And then, if I'm in court, and, you know, as they go on about it, I may well plead guilty to it then… If they've got enough evidence to convict me, then I'll plead to it… You know what? I used to have a great memory. It's ever since I started taking the epileptic fits that my memory's just went down the drain. [Interviewer: So you're reliant on your lawyer?]. Pretty much, yeah (AF3).

5.12 As the above quotations illustrate, many accused felt that legal processes and the associated paperwork were beyond them and they often deferred to their lawyer as a result. Many put this lack of awareness or understanding down to their own drug/alcohol problems, illiteracy, or a lack of meaningful or easily understood communication between client and legal or judicial personnel. However, others were more pragmatic about the 'evidence' against them and several suggested that their lawyers encouraged an early guilty plea, based on that evidence.

5.13 An analysis of the proportion of guilty pleas at PD by the type of appearance, as illustrated in Table 3.4 in Chapter 3, provides some support for this view by the type of appearance. Immediately following the disclosure and summary criminal legal assistance reforms, there was a significant increase in the proportion of accused pleading guilty at the PD; and the largest increase occurred in respect of accused appearing from custody. One might speculate that the disclosable summary persuades the accused, often with the help of the defence solicitor, that his real choice is: a) plead guilty immediately and secure release from custody; or b) plead not guilty and remain in custody but ultimately be found guilty because the disclosable summary reveals a strong prosecution case. In other words, the information in the disclosable summary may help to dispel any hope on the part of the accused that he may escape conviction if he enters a not guilty plea.

5.14 This influence of immediate outcomes on the plea decisions of accused, and their willingness to offer an early plea, contrasts with another widely held view that many accused are determined to put off the outcome until as late in the process as possible.

And accused…some accused people, a lot of accused people their whole…purpose is to put this off until another day. I can't face up to it today, we'll just put it off and we'll fix a trial and it's…three or four months down the line. (PFF 25)

I suspect you or I if you were told that this is the case against you, and at this stage…if you plead at this stage the penalty which is going to be imposed against you generally will be reduced by a third you would go along with it. But that's not the way folk…the criminal fraternity, the general criminal fraternity operate.(SHF 30)

5.15 Some Fiscals and defence solicitors took the view that summaries were not always particularly accurate, and solicitors in particular suggested that they can sometimes be 'over-enthusiastic' (DSF 26) about the strength of the case. Another issue commented on by Fiscals and defence solicitors was that full disclosure did not always confirm precisely what was stated in the summary. Again, a recurring view amongst defence solicitors was that summaries tended to favour the police view of the case. The relevance of this to the timing of plea is that sometimes it is better for the defence to plead not guilty and await full disclosure before finally determining the accused's plea.

Discussion and negotiation between defence solicitors and Fiscals

5.16 Some interviewees felt there were still difficulties in communication between prosecution and defence and there was a tendency for both parties to blame the other for this. Nevertheless, 42% of defence solicitors responding to the postal survey thought that disclosure had led to more early discussions about cases with Fiscals. A similar proportion (43%) perceived there to have been no change and 14% were of the view that there was less discussion.

5.17 In general, however, it was felt that discussions between Fiscal and defence were now more productive because both parties now had access to the same information.

5.18 That said, several defence solicitors remarked upon the difficulty of getting hold of a Fiscal, and some were critical of the centralised telephone system, reporting that it was difficult to get through to an appropriate Fiscal to discuss the case. Conversely, some Fiscals said it could be difficult to contact solicitors, and saw them as rarely available in the office to take calls.

5.19 In this context, it should also be noted that sometimes the Fiscal will not know until the ID which solicitor is representing the accused. A number of measures have attempted to address this such as having a Fiscal available - for example via an 'ID surgery' on court premises - to discuss ID cases and having an acceptable plea hotline for solicitors to discuss acceptable pleas with a single point of contact within the Fiscal's office. However, these initiatives had mixed responses, appearing to have been successful in facilitating discussion between Fiscals and defence in some areas, but with uptake of such services by solicitors in other areas being described as poor.

5.20 Successful plea negotiation and discussion was also believed to be constrained, to some extent, by resources - 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. This was felt to be impacting on the preparation of deputes -lack of time leading to inadequate preparation and inability to discuss cases - as well as on Fiscal decisions once a prosecution has been started:

So some of the decisions are .. look very much as if they're being done for convenience / cutting cost / cutting work, rather than in the interest of justice, so that's the first, and worrying, criticism because something is going to go badly wrong in that. (DSF 27)

5.21 On a related note, some defence solicitors believed that they will often be in a better position at TD to negotiate a better outcome for their client because Fiscals are under pressure to deal with a large number of trials, and some witnesses may fail to attend.

5.22 The effective management of local caseloads, such as limiting the number of trials in a court per day, was highlighted as a factor which, in some areas, was felt to have impacted positively on the level of preparation and subsequent likelihood of getting a guilty plea.

5.23 The 'acceptable plea' letter^[21] was generally regarded as helpful, although some defence solicitors thought Fiscals were too inflexible in refusing to negotiate further. Although some fiscals clearly regarded the 'acceptable plea' as the bottom line beyond which they were not prepared to go, others took a more flexible approach. Several defence solicitors certainly thought that Fiscals were often too inexperienced and were either afraid, or not allowed, to exercise sufficient discretion.

The difficulties there tend to come in more from where the .. the Fiscals are getting their instructions from…
[Interviewer: Right. Do you mean the acceptable plea letters or]

Yeah. Well, sometimes you find that younger, newer Fiscals, there's little or no point discussing anything with them because they're terrified to accept any kinda plea other than 'guilty as libelled' because they're scared they'll get into trouble from their boss and stuff like that. That's the difficulty in having discussions with Fiscals.[DST 1507]

5.24 Some solicitors felt that the inability to negotiate on acceptable plea letters in the light of new defence information was also a barrier to early discussion and negotiation to resolve cases.

5.25 Some issues concerning the fairness of acceptable plea letters also emerged. A number of Sheriffs suggested it may be unfair that acceptable plea letters are not issued to individuals without representation (which was often the case in many traffic cases), meaning that only those with representation may be able to secure a lesser charge. Another point, again, from a Sheriff was that there should be some scope for negotiating acceptable pleas in the light of new information gathered from precognitions.

The analysis of disclosable summaries

5.26 For disclosable summaries to fulfil their policy objectives - particularly facilitating early investigation of the case and informing discussions between defence solicitors and Fiscals and plea decisions for accused persons - it is necessary that they provide an adequate level of information on the case. To examine the extent to which this was occurring, we analysed the content of 192 anonymised disclosable summaries^[22].

Methods

5.27 The disclosable summaries were assessed against a number of criteria, based on the ACPOS guidance contained in the ACPOS Disclosure Manual. Summaries were scored on a 5 point scale - a '5' indicating that the information provided was entirely satisfactory. The ACPOS guidance explains that the COPFS 'summary of evidence' should be drawn from the following sub-sections of the police report: description of locus; description of events; police interview/text of admission; caution and charge/reply; and medical evidence. In addition to assessing the disclosable summaries against these criteria, an overall rating was given to each one and various other data was recorded about the nature of the case. These included: the broad type of crime involved; whether the accused was remanded in custody until the next court; and the PF case number. A number of defence solicitors were recruited to test the validity of the research team's ratings.

5.28 The disclosable summaries were assessed by the research team on how satisfactory they were in terms of the information they might reasonably have been expected to include. Similarly, the defence solicitors who carried out the review of a small number of disclosable summaries were asked to assess them against the same standard.^[23]

Summary of analysis

5.29 The vast majority of disclosable summaries were rated as entirely satisfactory by the research team. In other words, they contained all the information that could reasonably be expected and in most cases the summary of evidence against the accused would be sufficient to allow the defence solicitor to advise his/her client on a plea. It should be noted that some of the five categories of information required under the ACPOS guidelines were not relevant in some cases and in these instances no rating of that category of information took place. For instance, medical evidence is very rarely relevant except in the case of assault, where the disclosable summary should describe the victim's injuries. Similarly, in cases of speeding emanating from motorway speed cameras, the police interview/text of admission category is clearly redundant.

5.30 Only nineteen disclosable summaries were deemed to be missing some information that might reasonably have been expected to be included. An analysis of the background to these indicated that it appeared to make little difference whether the accused appeared from custody, despite the pressure to produce these very quickly in such cases. Nine out of 91 custody cases resulted in a less than satisfactory disclosable summary compared with eleven out of 101 non-custody cases. It is possible that the general pressures of work are similar in both situations or alternatively that more care is taken in custody cases because they are on average more serious, or that a combination of both factors is at work.

5.31 As regards those nineteen disclosable summaries that were deemed to be less than satisfactory, eight were assaults or breaches of the peace where it was not entirely clear which witness saw or heard exactly what. In other words, the police summary provided a general narrative of what happened but sometimes it was not clear which witness(es) saw which parts of the incident. Clearly, in these instances, the defence solicitor could not be sure if the key parts of the events were corroborated or were seen by only one witness. This finding did not surprise the research team because in a complex incident witnessed by various bystanders and participants, it may be difficult at the time for the police to disentangle who saw precisely what; and in such circumstances a general narrative summary may seem sufficient. Such detailed information may not become clear until full witness statements are taken.

5.32 There were also four shoplifting cases with only one witness where it might have been useful to know if there was any CCTV footage (even if the information was negative). In all these cases, the accused had admitted the offence so the single witnesses' accounts were corroborated and, therefore, the police might have elected not to make further enquiries.

5.33 There was no real pattern to the rest of the cases where potentially useful information that might have been expected to be included was not. For instance, with regard to one speeding offence, the disclosable summary did not state what the speed limit at that particular point on that particular road was.

5.34 Three defence solicitors reviewed a total of thirty disclosable summaries, twenty one of which had been assessed as entirely satisfactory by the researchers. The defence solicitors thought that twenty of these thirty disclosable summaries achieved this standard. It should be noted that there was not a perfect overlap between the assessments of the research team and the defence solicitors (i.e. the satisfactory set selected by the researchers was not the same as that selected by the solicitors), illustrating unsurprisingly that this type of exercise is not a perfect science depending as it does upon a largely impressionistic judgement. But it should also be noted that those disclosable summaries which were graded as less than completely satisfactory by either researchers and solicitors were only slightly so, most receiving overall grades of 4 with only a couple at 3. Overall, it can be said that the very limited peer review by defence solicitors confirmed that the quality of disclosable summaries is generally satisfactory.

5.35 Case trajectory information on the cases to which the summaries referred was supplied by COPFS. The trajectories and outcomes of those cases where the disclosable summary was deemed less than satisfactory was compared with those case with satisfactory summaries. A summary of the results is included in Table 5.1.

5.36 The very small number of cases makes it difficult to draw any firm conclusions from this exercise but the results are worth outlining nonetheless because they are extremely interesting. Further, it does seem to suggest that the evaluation of the disclosable summaries by the research team was to some extent successful in identifying those summaries which were less than satisfactory.

Table 5.1 Case trajectories and outcomes of cases selected for analysis of the disclosable summary

Quality of disclosable summary	N	%	Guilty plea at pleading diet (%)	Stage at which case concluded (%)			Avg. no. of times a case was called
				Pleading	Intermediate	Trial
Sufficient	190	89	38	57	22	21	3.6
Insufficient	24	12	25	38	17	46	5.1
All	214*	100	36	55	22	24	3.8

*A single disclosable summary may be relevant for more than one accused person. However, the case trajectory information refers to accused individuals. Thus the number of cases on which there is trajectory information is higher than the number of disclosable summaries analysed.

5.37 It can be seen that the proportion of cases pleading guilty at the PD where the information in the disclosable summary was deemed insufficient was lower than where it was sufficient. This is exactly what one would expect because if the defence solicitor and accused do not have enough information about the strength of the case against the accused, the only sensible option is to plead not guilty.

5.38 It also seems that the proportion of very late pleas, i.e. at the TD, was much lower where the disclosable summary provided sufficient information. Again, this is very much what one would expect because, if the disclosable summary reveals a strong case against the accused, one would expect a guilty plea at an earlier stage. It can also be seen that the average number of times a case called was higher where the disclosable summary was lacking in some way.

Full disclosure

5.39 Although SJR did not change the existing processes of disclosure of evidence after the PD, 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. Data on the related timescales defined by the System Model has been discussed in Chapter 3. In this section, we explore some of the additional evidence related to the operation and practice of disclosure post-PD.

5.40 Full disclosure appeared to be working reasonably well, although experiences did vary between courts. Witness statements are reviewed by a specialist or senior officer before being sent to the Fiscal but usually there is no need to send them back to the reporting officer for improvement. Many of the Police interviewees commented on the resource involved in this process, with some feeling that the Police were now seeing an increased number of statement requests. The timescales for providing the information to the fiscal were seen as challenging for some cases, particularly those which were more complex - e.g. involving a lot of witnesses - or where other factors created delays such as police leave, staff sickness, witnesses being unavailable or pressures of other work. Another view was that there is an increasing amount of CCTV evidence to be collated and reviewed and that this can be extremely time consuming.

5.41 Despite this, most of those interviewed were still generally positive about the operation of full disclosure. Indeed, one perspective was that, although there may be more to do on some cases, the overall number of cases had dropped. In addition, one view was that the timescales for full disclosure were reasonable.

5.42 Similarly, although Fiscals often commented that full disclosure had increased prosecution workloads prior to IDs, some also noted that this had to be set against the time saved by a greater number of earlier pleas. Some defence solicitors indicated that full disclosure was helpful in determining which witnesses they should see prior to trial and one or two commented that it could turn up additional witnesses (e.g. bystanders from whom the police had not taken statements). A couple of interviewees also observed that it reduces the burden on witnesses because the defence no longer require a precognition statement.

5.43 The relevant material tends to be disclosed to the defence by the Fiscal on a continuing basis, as it becomes available to the police, rather than as one comprehensive package. Several interviewees commented that there can be delays, sometimes requiring the continuation of the ID, in making full disclosure, particularly where CCTV footage and forensic reports are involved. Some defence solicitors complained that material was disclosed so close to the ID that there was insufficient time to prepare properly and advise the client and one or two Sheriffs shared this view. Indeed, observations in one court indicated it was not uncommon for full disclosure to take place at the ID with the pen drive being handed over at that point. There was some minor disquiet amongst defence solicitors about the pen drive system, principally because of difficulties in collecting it from the Fiscal and the costs of printing out the material upon it.^[24]

5.44 Again, a widespread view amongst interviewees, particularly defence solicitors, was how helpful full statements and CCTV footage can be, particularly when the potential evidence is highly incriminating. For instance, once accused have viewed or been told what the CCTV shows, particularly if they are unable to remember what happened, they will often take the advice of their solicitor to plead guilty at the ID. But, as noted at paragraph 5.15, several defence solicitors also observed that full disclosure sometimes did not bear out the disclosable summary, usually painting too rosy a picture of the prosecution evidence.

5.45 One perspective amongst police interviewees was that the Crown and Sheriffs were not being pro-active enough in questioning what they see as unjustifiable not guilty pleas at the ID in the light of the disclosed information. There was also a perception that some Sheriffs were still agreeing many last minute requests by the defence for adjournments on the grounds of not being fully prepared and some Fiscals called for Sheriffs to be generally more 'assertive', for example, questioning solicitors claiming that they had not had the chance to take instructions from their client. It was felt that Sheriffs could generally do more in moving cases forward more quickly by challenging, during IDs, defence solicitors who say they have been unable to take instruction from their clients. In fact, this already appears to be happening in some areas - but in relation to pleading and trial diets - with Sheriffs also applying a stricter approach in granting 'continuations without pleas' (CWPs) without good reason and adjournments of summary trials by challenging the defence on their preparation. Some increase in CWPs was expected (and occurred as shown in Chapter 3) following SJR. These allow more opportunity for defence solicitors to discuss the disclosable summary with their client thus potentially securing an appropriate guilty plea and preventing an unnecessary not guilty plea with the case then moving to ID and the additional work this sets in motion. However, the suggestion was that such continuations would not be granted automatically and without good reason by these Sheriffs.

5.46 For example, Sheriffs in Court C described a 'collective approach' they took to improving efficiency, querying solicitors who frequently requested further IDs and not allowing cases to continue unnecessarily.

And so…I think probably four/five years ago we as Sheriffs actually sat down and discussed these matters to see what we could do on a collective basis to make efficiencies in our own court…So…things that can block the system, like a pleading diet calls and the agent asks for it to be continued without plea, to take instructions. And then when it comes up three weeks later continue without plea again, I need to take instructions. Or intermediate diets call and the agent says would you continue this for a week because I am waiting to trace a defence witness, whatever it is. We are very rigorous in not allowing cases to be churned like that for no good reason. [SHF 18]

5.47 It is notable that this court has consistently recorded the highest guilty plea rates at PD (see Figure 3-C) and has had a consistently higher proportion of cases concluded within 20 weeks than the other case study courts (see Figure 3-G).

5.48 Most Fiscals and many defence solicitors thought that full disclosure meant the defence was better prepared while the rest suggested that it had made little difference. A commonly held view, particularly amongst Sheriffs and Fiscals, was the perceived move to 'trial by statement', a result which they did not welcome. Their main concern was the way in which witnesses are confronted by the defence with minor and unimportant discrepancies between their testimony at trial and statements made months previously.

5.49 The disclosure of CCTV footage was commonly seen as problematic. Issues raised amongst police officers included the sheer volume of material that may be available and other interviewees referred to technical problems - getting the footage into the right format to be viewed by the defence and by the court - which were seen to be a recurring factor in delay, but there was general agreement that the situation was improving. The court observations confirmed that such problems occasionally, but not often, resulted in an ID having to be continued. Forensic and other expert reports - for instance, the confirmation that seized substances are in fact illegal drugs - were also commonly raised as a key cause of delay. One view amongst police officers was that there are sometimes difficult issues surrounding sensitive information, for instance, the existence or identity of a covert source. In addition, some practitioners raised fears about the impact of a perceived lack of sufficient resource - also noted above, see paragraphs 5.20 and 5.21 - related to COPFS staffing and workload and therefore their ability to get cases ready for the ID.

You see, they don't have the time here to even read the …. case before they come in. You know what I mean? That's the problem. It's something that the .. I mean I know, just from watching them, the first time they'll open some of these papers is when they stand on their feet and say, "My ..". [SHF14]

5.50 For the accused interviewees, the nature of their persistent offending, substance misuse and unstable circumstances, meant that they depended entirely on their solicitor to advise them on what to do as they seldom remembered the circumstances of their offences or the charges brought against them, and may not have kept hold of any of the original paperwork. Thus, they were primarily dependent on, and deferred to, their solicitors to represent their best interests and many therefore suggested that solicitors needed the paperwork in advance of subsequent diets, so as to avoid the likelihood of adjournments:

I can only speak from my own experiences but, no, I don't think [solicitors] get [the paperwork] in enough time… And they just had to go on what we hear on the day… We've also had an experience where the lawyer... the lawyer told me that he hadn't seen the evidence. I hadn't seen any of the evidence and when we went up to court, we've asked to have, you know, the case recalled on a different day, so we could get a chance to look at the evidence against me, and the Sheriff refused to recall the case (AF3).

Disclosure, delay and churn

5.51 It was clear from the court observations that there was still churn in the system and that at least some of it should have been avoidable. A large number of PDs were either continued apparently without good reason or a plea of not guilty was entered, leading to the scheduling of IDs and TDs. It seemed unlikely, in view of the overall statistics of summary justice, that most of the latter cases would actually proceed to trial. In particular, it seemed to be common practice for accused not to attend the PD and for their solicitor to tender a not guilty plea. The circumstances in which this occurred were not clear, but it may simply be that the accused had met his or her solicitor beforehand and agreed on a plea of not guilty and so was not necessarily a barrier to early pleas. A number of IDs were continued, although in many cases another ID was inserted where necessary but the date of original TD remained unchanged (e.g. see Figure 3‑E and the surrounding paragraphs in Chapter 3).

5.52 During the course of our research, a number of LCJBs were undertaking a survey of reasons for adjournments and continuations. From the resulting data, we extracted a sample of almost 500 continued IDs, covering four Sheriff Courts, one of which was one of our selected courts. While two of the courts used a different pro forma for collecting information on the reasons for continuations from the other two, it proved possible to reconcile the data by widening the categories of reasons. The information indicated that across the four courts, 23% of all continuations of IDs were caused by disclosure problems, ranging from 16% of all such continuations in one court to 34% of ID continuations in the fourth. Disclosure issues were the single biggest reason for continuing an ID, closely followed by non-attendance of accused or co-accused (21%) and the need for further investigation or a lack of preparation (19%). Thus, it is possible that disclosure is a more common cause of delay than our limited observations would indicate, although these statistical data also have to be treated with caution. Whatever the extent of the problem, it is probable that some of the delays due to disclosure were avoidable (e.g. failure to provide full statements) while others were not (e.g. report from crime laboratory not yet ready) in that they were out of the direct control of the court and practitioners.

5.53 Clearly, then, disclosure is a significant issue in relation to delay and churn. However, as these data suggest, it is not the only aspect of summary process post-PD which is contributing to the delayed resolution of cases. Views on other key factors influencing delay will be considered in the next chapter.