SUMMARY JUSTICE REFORM: UNDERTAKINGS EVALUATION

1 Introduction

1.1 In December 2009, the Scottish Government commissioned an independent evaluation of reforms to undertakings, the findings of which are presented here.

1.2 The research is part of a wider package of work to evaluate summary justice reforms (SJR) in Scotland, and sits alongside four other evaluations of individual areas of reform, namely direct measures; criminal legal assistance and disclosure; fines enforcement; and lay justice. An evaluation of the impact of the whole package of reforms on the experiences and perceptions of victims and witnesses, and the perceptions of the general public was also commissioned.

1.3 The reforms to undertakings were evaluated in tandem with a number of changes to bail which, although were part of the same Act, and occurred at roughly the same time (i.e. December 2007), were not directly part of Summary Justice Reform² . The two reforms were evaluated together because they were thought to have potential to impact upon the same stages of the summary justice process (i.e. pre-court up to first hearings) and, in the main, affect the same principal stakeholders. This report focuses solely on the reforms to undertakings. The evaluation of the reforms to bail are the subject of a separate report.

Summary Justice Reform

1.4 In 2001, the Scottish Ministers established the (independent) McInnes Committee, to review the operation of the summary criminal justice system in Scotland and explore ways that it could be improved. It concluded that the system was in need of a comprehensive overhaul due to:

• problems with the overall speed in dealing with cases;
• wasted court attendances for victims and witnesses;
• little difference in the way that minor and more serious cases were being dealt with by the system;
• no incentives to encourage Defence Agents to deal with cases quickly;
• inconsistencies in the way that the police, courts and Procurator Fiscal dealt with cases; and
• waste of public funds.

1.5 The McInnes Committee report³ , which represented a wide range of interests and experience in summary justice, was published in March 2004. In March 2005, following consideration of the Committee's report and an extensive public consultation, Scottish Ministers published Smarter Justice, Safer Communities: Summary Justice Reform Next Steps⁴ and subsequently a Summary Justice System Model Paper⁵ , in September 2007, detailing the reforms. Those that required legislation formed the basis of the Criminal Proceedings etc (Reform) (Scotland) Act 2007. The whole package of changes or 'reforms' was commenced from December 2007 and is referred to colloquially as 'Summary Justice Reform' or 'SJR'.

Aims and Objectives of SJR

1.6 The overarching objectives of SJR were to achieve a summary justice system that is:

• fair to the accused, victims and witnesses;
• effective in deterring, punishing and helping to rehabilitate offenders;
• efficient in the use of time and resources; and
• quick and simple in delivery.

1.7 The following intended outcomes of SJR were also identified in the Summary Justice System Model Paper (2007):

• the removal of a significant number of appropriate cases from the court through a greater use of non court options or alternatives to prosecution including adult warnings, fixed penalty notices and Fiscal direct measures;
• for cases that do come to court, those cases will come to court more quickly;
• improved case handling, namely:
• o early, effective preparation of cases;
• o more effective court hearings;
• o cases will be dealt with at the earliest possible stage in proceedings;
• appropriate allocation of case to forum, including sufficient use of better-trained lay Justices;
• to make a contribution to reducing re-offending by dealing with cases at the earliest possible stage in proceedings; and
• to reduce inconvenience for victims and witnesses.

Reforms to undertakings

1.8 Undertakings are issued by the police, and involve the liberation of an accused on an undertaking to appear in court on a specified date, normally within 28 days of their release. The undertaking form that is issued to the accused and is signed by them, states the place, date and time that the accused must appear for their first calling in court. Such undertakings are sometimes referred to colloquially as 'police bail'.

1.9 The main difference between an undertaking and a citation to appear at court is that when an accused is liberated on an undertaking, the accused is advised of the date on which s/he requires to attend at court before leaving police custody. While a complaint⁶ is still produced, there is no requirement for it to be served on the accused until the first court appearance, and the case can be booked into the court programme sooner than would be the case if a citation were used. More importantly, this process ensures that the first calling of an undertaking has the key elements in allowing cases to be resolved which are usually lacking in cited cases when they call for the first time, namely the presence of the accused and his/her lawyer already instructed and sighted on the evidence. This was a key feature of the McInnes recommendations, along with the earlier first calling of the case, in favour of shifting the balance from cited cases to undertakings.

1.10 Undertakings are only competent for offences which may be tried summarily. They cannot be used for cases which must proceed by petition (i.e. solemn procedure).

1.11 Undertakings in themselves are not new under the reforms, and have been in use in Scotland for a number of years. Before the reforms, however, their use varied greatly between different police forces, there were limited eligibility criteria for their use and tighter restrictions on who could issue an undertaking, i.e. only the arresting officer.

1.12 Changes to undertakings were introduced as part of the Act and were implemented from December 2007. The main changes to the use of undertakings include:

• widening of eligibility to issue undertakings. Any Constable may do so post-reform, and not necessarily the arresting officer. In contrast to pre-reform undertakings can also be made without authority from an officer in charge⁷ ;
• persons arrested on a warrant can also now be released on an undertaking, instead of the pre-reform necessity for remand; and
• the police may impose new conditions when issuing an undertaking, similar to those issued with Bail Orders.

1.13 The first of these changes meant that undertakings could be used more often and the latter meant that undertakings placed greater restrictions on accused released this way. Consequently, it was anticipated that the reforms would result in more reported cases being dealt with by way of undertaking, and that greater control of accused might be achieved. The reforms also set out an ambition to increase the use of undertakings as a means of improving the speed and efficiency of the summary justice system and to assist in making sure that cases came to court more quickly, compared to citations.

Aims of the Research

1.14 The main aim of the research was to evaluate how far the reforms to undertakings had met both the overarching aims and objectives of SJR, as well as a number of specific policy objectives for the reforms to undertakings which were to:

• increase the number of accused who appear at court on undertakings;
• bring undertaking cases to court within 28 days of caution and charge, resulting in cases progressed in this way coming to court much more quickly than cited cases and reducing delay in the summary criminal justice system; and
• enable the police to impose conditions when releasing accused on an undertaking.

Methodology

1.15 A detailed methodology is attached as Appendix A. A mixed methods approach was used that combined analysis of secondary data, collection of primary qualitative data from interviews and questionnaires from accused as well as a parallel cost-benefit analysis exercise. A staged approach was taken so that findings from early stages could inform the design and content of the later stages.

1.16 Secondary data analysis focussed mainly on Key Performance Indicator (KPI) data from the Scottish Government's Criminal Justice Board Management Information System (CJBMIS). This includes data from all partner agencies involved in the administration of undertakings including the Association of Chief Police Officers in Scotland (ACPOS), the Scottish Court Service (SCS) and the Crown Office and Procurator Fiscal Service (COPFS).

1.17 Following initial analysis of the KPI data and discussions with key stakeholders, four case study areas were selected in which to concentrate the qualitative research. These were based upon Local Criminal Justice Board (LCJB) areas, and were Ayrshire, Central, Lothian and Borders, and Glasgow and Strathkelvin.

1.18 In-depth interviews were conducted with a range of key stakeholders, including Sheriffs, Justices of the Peace, Procurators Fiscal, police operational supervisors (Inspectors and Sergeants), Defence Agents and accused whose cases had concluded. Group interviews were also conducted with police Constables with operational experience of undertakings.

1.19 A limited cost-benefit exercise was also attempted to assess whether the benefits, i.e. savings generated by the reforms to undertakings, were sufficient to outweigh the corresponding burdens arising from the reforms. This encountered several challenges, not least being a lack of available data to inform its execution, rendering a full economic analysis not possible. Instead, the evaluation considers the likely impact of the reforms on the workloads of the main criminal justice agencies involved in the administration of undertakings, as well as the impacts on failure to appear and repeat rescheduling of cases which may all have associated costs to the system.

Research Caveats

1.20 The research findings presented here are based on extracts from the national KPI data for the four case study areas, as well a nationally, where appropriate. This means that, in some cases, no national conclusions are presented and, instead, the findings from the case study areas are used to posit possible impacts of the reforms elsewhere. The areas were chosen principally on the basis of geography (to achieve a good spread), patterns identified in KPI data (to capture typical and atypical areas) and workload in the courts (capturing Sheriffdoms that have a mix of different court types and different volumes of work). While the research successfully managed to achieve this spread, the data generated in each area varied considerably. This is highlighted throughout the report and is noted as a caveat insofar as the findings cannot be widely generalised.

1.21 For context, it is worth noting that, in West Lothian and parts of Edinburgh, (both of which are within Lothian and Borders police force area), there were pre-SJR system improvement projects that operated by allowing a form of undertaking to be used for a wider range of summary non-custody offences than set out in the Lord Advocate's guidelines. These were allowed to continue post-SJR and, accordingly, the findings around impact of the SJR reforms in this area will be influenced by these projects. This is not a constraint, since it is useful in showing how differing local practices can impact on the perceived success of undertakings, and in this way its use as a case study area has been particularly useful to the evaluation.

1.22 Also, in Falkirk, and then Central Scotland Police as a whole, officers were permitted to implement a similar approach from the start of 2008. As with Lothian and Borders, a broad range of offences are/were dealt with by undertaking in Central Scotland which are not allowed elsewhere under the Lord Advocates guidelines. In addition, they operate under more flexible timescales, usually circa 40 days, rather than the 28 day cycle used elsewhere. Central Scotland Police also operate a 'no liberation to cite' policy, wherein accused coming into police custody are either kept in custody or liberated on an undertaking, the majority being with no conditions (mandatory) attached. Citation is no longer used at all and this is unique to this Force area. Consequently, any findings from data in Central must be carefully considered in this context, as they are not directly comparable with other force areas where different practices are in place. Again, however, this area is a useful case study for showing how variations to national guidelines can impact on both the actual and perceived success of the undertakings reforms.

1.23 Recognising differences between areas, the quantitative data analysis presented here is provided at the national and case study level wherever possible. This was again difficult in some cases since the geographical boundaries used by various partners for data recording purposes were not always the same. For example, data provided by the SCS is provided at Sheriffdom level, whereas data from police forces is disaggregated to police force level. Appendix B shows the overlaps in Sheriffdoms, LCJB areas, COPFS regions and police forces.

1.24 From the outset, it is also important to note that there were a number of gaps in the data that were available for analysis as part of the evaluation. Specifically, data on the number of undertakings issued pre reform was not available for all geographic areas. Police data regarding the use of standard and special conditions for undertakings also varied greatly between areas and is not systematically recorded by all Forces. Although data were extracted for this evaluation, it is not routinely held as part of the CJBMIS data capture. 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. There is no data on the numbers of warrants granted for people who fail to appear at court at pleading diets broken down for undertakings and 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.

1.25 Representatives from various stakeholder groups were interviewed although it was not possible to recruit equal numbers of participants from each agency in each of the four selected areas. This means that, for some groups (particularly Procurators Fiscal), there is no geographical spread of views and, as a result, the findings cannot be generalised.

1.26 As with all qualitative research the key aim was to generate understanding of the issues. To this end we report the range of perceptions we found from interviewees and do not aim to represent these views as representative of all participants in the justice system.

1.27 Finally, it is important to emphasise that the interpretation and reflections on the research findings set out in this report are those of the researchers, and not of the Scottish Government. Further, the views put forward by the various respondents which are presented in this report are those of the individuals who took part, and should not be taken as being representative of the organisations for whom they worked. With these caveats in mind, the remainder of this report sets out the findings of the evaluation.