SUMMARY JUSTICE REFORM: UNDERTAKINGS EVALUATION

8 Discussion

Meeting the specific policy objectives

8.1 The evaluation has provided evidence, gathered from qualitative and quantitative sources, on both the use of undertakings post-reform, the use of conditions, compliance with undertakings by accused and compliance with the 28 day target among professional agencies involved in the system. These have enabled an assessment of performance against the specific policy objectives.

Increasing the number of accused who appear at court on an undertaking

8.2 The first objective of the reforms to undertakings was to increase the number of accused who appear at court on undertakings. The numeric and interview data show mixed messages for this objective.

8.3 While there has been a perceived increase in the use of undertakings in some areas, this is not supported by the KPI data which shows generally stable levels at the national and most local levels in recent years. Approximately 10% of all standard prosecution reports to COPFS are for undertakings cases (as opposed to cited and custody cases), and this proportion has remained steady over time. The absence of any pre-reform data in most areas, and at the national level, means that it is not possible to say anything conclusive about if there has been greater use post-reform, and so the only evidence to support that notion is the qualitative feedback from interviewees. What the data does show, however, is that while undertakings were traditionally used for motor vehicle offences (especially drink/drug driving), the removal of a large number of these case types from the court has not resulted in a corresponding drop in use of undertaking overall. Instead, the range of offences for which undertakings are being used has widened to include their greater use for more complex cases, including, for example, simple assault and drugs offences.

8.4 Qualitative data suggest that the police in some areas are making concerted efforts to increase their use of undertakings, often as part of discussions with their local Procurator Fiscal. Both police and Fiscals perceived that even greater use could be made of undertakings if the guidelines were revised. Greater flexibility in the types of offences for which undertakings are used would be welcomed by most of those interviewed, as well as some flexibility in the time required to get cases to court (i.e. closer to 40 days than 28). This was considered to be especially valuable in cases where there are complex evidential matters to be addressed. Whilst such flexibility may be welcomed, it is also recognised that such an extension may result in slower preparation of evidence and, as such, the same challenges with meeting deadlines may still continue to exist.

8.5 There does seem to be some evidence that there is some geographical variation in the types of offences for which undertakings are used, influenced by local agreements and practices and the individuals involved in the process. One barrier that may be preventing officers from using undertakings more often is a fear of being challenged by supervising officers regarding their decision to release someone on an undertaking, especially if the accused offends once released. In cases where police are unsure whether to release on an undertaking, they reported using what they perceive to be the more objective and clearly defined options of release for citation or, in some cases, custody.

8.6 The use of the Lord Advocate's guidelines was evident from the evaluation and although some officers suggested that this may be restrictive, it does seem to be offering a clear framework in which to operate.

Bringing cases to court within the 28 day limit

8.7 The second specific policy objective for undertakings was to bring undertakings cases to court within 28 days of caution and charge, resulting in cases coming to court much more quickly than cited cases and reducing delay in the summary criminal justice system.

8.8 Respondents from the police, Sheriffs, Fiscals and Defence Agents seem to think that summary justice reforms are impacting on the speed of cases to court, and the police, in particular, seem to be attributing some of this to undertakings reforms. The KPI data supports the notion that a large number of cases are coming to court within the 28 day target, although some areas have a greater success rate than others in meeting this target. Again, police expressed some preference for greater flexibility in the 28 day target, in particular for cases where complex evidence gathering may be required.

8.9 Generally, accused seem supportive of the 28 day deadline, although for them, an appearance as soon as possible after release seems to be preferred, but only if accompanied by their liberation.

8.10 Whilst both the numerical and interview data provide strong support for the objective being met, the evaluation has shown that there may be problems with bringing cases to court more quickly. The data suggest that whilst cases are coming to court quickly when undertakings are used, some of those cases are not progressing through court at the desired pace and the average time taken for undertakings cases to move from caution and charge to verdict is increasing over time, post-reform, though undertakings cases are still faster on average than cited cases. The data also show that the percentage of criminal undertakings cases dealt with within 26 weeks has also dropped over time post-reform. Both trends are unique to undertakings cases.

8.11 This decrease in the speed of undertakings cases through the summary justice system was something that was also raised by all stakeholder groups consulted. There were suggestions from police, Fiscals and Defence Agents that lack of preparation time before the first appearance at court was resulting in cases being churned within the system. Again, the KPI data show that the average number of diets per case where an undertaking was used is slightly greater than the average for either custody or cited cases post-reform. This again may be due, in part, to a change in the nature of cases for which undertakings are being used (i.e. more complex cases which present challenges for gathering and agreeing evidence and citing witnesses to court). The increased speed of the system for undertakings cases seems to be isolated, therefore, to getting people to court and this is, in fact, potentially having negative impacts on the later stages of the court process. In terms of the overarching objectives of SJR, it might be argued that speed at the front end is in some cases compromising efficiencies and effectiveness of court hearings at the later stages of the summary justice journey. However, in other cases continuations without plea may lead to a swift resolution when the case next calls, and is considered preferable to churn at later stages of the court process.

Use of conditions attached to undertakings

8.12 The final specific policy objective for undertakings was to enable the police to impose conditions when releasing accused on an undertaking. Interviews with the police suggest that they welcome the opportunity to impose special conditions, and the limited data that are available also show that there may be an increase over time in the use of special conditions in some areas since they were introduced.

8.13 The KPI data also shows that there were few convictions for breaches of conditions, including special conditions where applied, but where this does occur, there is evidence to suggest that Sheriffs and Justices are making use of their increased sentencing powers for breach of undertakings under the reforms.

8.14 Accused who were surveyed seemed to understand the conditions of their undertakings quite well, and they seem to support the notion that breach of conditions should be taken seriously.

Overlap with other areas of summary justice reform

8.15 Undertakings were seen by interviewees to be largely fair to victims, witnesses and accused. Data from the accused who took part in the evaluation also suggests that they considered they had been treated fairly in cases where an undertaking had been used.

8.16 Findings from the victim, witnesses and public perceptions evaluation, published separately as part of the SJR evaluation series, also show that members of the public support the rationale and principles for undertakings, as do victims and witnesses. This, however, does not hold for cases involving repeat offenders and those with a history of breach of bail or undertakings.

8.17 Responses from the accused interview group seem to show reasonably good levels of awareness of the reasons for undertakings and the conditions of their use. There seemed to be support for their use for lesser offences and accused agreed with the principles that, for some more serious offences, their use was not appropriate. Those accused who took part also showed support for the serious treatment of breach of undertakings and conditions, especially given that the standard conditions were not difficult to comply with and allowed the privilege of liberation. Most of those who took part welcomed their freedom and also seemed to welcome a quick turnaround in getting to court.

8.18 Although not a specific focus of the evaluation, qualitative interview data indicates that there may be some issues around communication between both Fiscals and the accused, and between Defence Agents and their clients, which are linked to undertakings use. The first problem seems to be that Fiscals are marking some undertakings cases as Fiscal direct measures or no proceedings, but are failing to alert accused of this decision in advance of their appearance at court as per the undertaking. This can mean wasted time for some accused attending court only to be notified that the case has been dropped or is being dealt with by a non-court disposal.

8.19 Secondly, there seems to be evidence that some accused are failing to liaise with their Defence Agents ahead of appearing in court on an undertaking, possibly linked to the late receipt of the copy complaint in undertakings cases, compared to citation cases. Whilst this failure to communicate may not be unique to undertakings, the short time between arrest and pleading diet may be compounding the problem in undertakings cases. In particular, it seems that a lack of time for communication between accused and their Defence Agents in advance of the first calling may be resulting in missed opportunities for early pleas, since agents feel unable to provide accurate advice. Overall, it seems that more effective communication between Fiscals, Defence Agents and accused may be needed.

Gaps in the Data

8.20 Gaps in the recorded data on the use of undertakings and conditions has meant that it has not been possible to produce an accurate national picture of these measures. Police data regarding the use of standard and special conditions for undertakings also varied greatly between areas and is not systematically recorded. Although some data were manually extracted for this evaluation, there is little routine collection of this data at the national or local level.

8.21 Crown Office data on the number of standard prosecution reports submitted to COPFS is not available before April 2009, and so again cannot be used as a measure of changes in the total numbers of undertakings pre and post-reform.

8.22 There is no data on the numbers of warrants granted for people who fail to appear at court at pleading diets broken down for cited cases and so it is not possible to say whether use of undertakings is any more effective than citation at ensuring that accused appear at court when required. The collection of this data would allow monitoring of the reforms to undertakings to be considered over time, along with associated impacts.

8.23 From the data available, it has also not been possible to say what the true costs and benefits of the reforms to undertakings have been, and this is something that would be desirable in the future.

8.24 Finally, the evaluation has revealed that there is considerable local variation in the extent to which reforms to undertakings are being adopted and the extent to which use of undertakings has increased. More detailed analysis at police force level for the whole of Scotland may be useful in revealing what needs to be done to maximise the potential benefits of undertakings as a means of getting people to court.

Messages for Policy

8.25 Some of the main messages from the evaluation appear to be that:

Greater flexibility in the terms of the Lord Advocate's guidelines is perceived as being necessary by all key stakeholder groups (police, Defence Agents and Fiscals) in order to ensure the optimum use and effectiveness of undertakings. In particular, greater flexibility in the time taken from release to appearance in court may mean that problems with gathering evidence and preparing quality reports may be overcome. This may also help to alleviate some of the communication problems that are occurring between Fiscals and the accused, as well as between accused and their Defence Agents, allowing both more time to initiate communications, where appropriate. Unlike custody cases whereby Defence Agents meet with their clients in cells ahead of court appearance, or citations wherein a copy of the complaint is issued at the same time as the accused is cited to court, the copy complaint is not issued in undertakings cases until the first calling in court. This, along with the short period of time between release on undertaking and first appearance at court, is what sets undertakings apart from other routes to court.

There may be a need to review the communication strategy between Fiscals, Defence Agents and the accused. This is especially true in cases where alternative, non-court disposals are decided by Fiscals after undertakings have been issued, and in cases where no proceedings are marked. Ensuring that all relevant parties are aware of these decisions as soon as possible may reduce inconvenience to Defence Agents and accused, in particular.

Although end-to-end targets are currently being met, the evaluation has shown that the percentage of undertakings cases being dealt with within 26 weeks has progressively declined over time since the start of 2009 with a corresponding upward trend in average time taken from caution and charge to verdict, both of which are unique to undertakings cases (and may be linked to a change in the case types for which undertakings are being used). A focus on getting people to court therefore needs to be carefully balanced with getting cases through court since it seems that, in some cases, a lack of time for communication and preparation is leading to ineffective first court hearings and continued churn, and undertakings cases not being dealt with at the earliest possible stage in some instances.

Conclusions

8.26 The evaluation has shown that there is generally good support for undertakings among criminal justice professionals and accused alike. The benefits to victims of bringing cases to court more quickly via undertakings is also recognised.

8.27 Despite some regional variation, police targets for getting undertakings cases to court, as well as Fiscal marking targets, are being met, as are the end-to-end targets for undertakings cases progressing through court. The speed of undertakings cases through court is also still faster than cited cases. Disappointingly, gaps in the data mean that it is not possible to say conclusively if undertakings are being used more post-reform, as was expected, or how compliance with undertakings compares to cited cases.

8.28 Despite some positive findings, there is also clear evidence of churn still occurring at the front end of the court journey for undertakings cases, as well as a lower rate of resolution at first calling. The evaluation perhaps, therefore, suggests a need to revisit some of the core principles of undertakings, and to consider further if speed at the early stages of the justice process has the desired impact on end-to-end summary justice performance overall. A key to the future success of undertakings, which will minimise negative impacts at later stages in the system, seems to be a more flexible timescale for the scheduling of undertakings cases in court and better communication between all parties concerned.