SUMMARY JUSTICE REFORM: UNDERTAKINGS EVALUATION

2 use of undertakings

Number of Undertakings Issued

2.1 As undertakings were available as a means of bringing accused to court before the summary justice reforms, it was hoped that the evaluation would be able to consider changes to both the nature and frequency of their use pre- and post-reform. Unfortunately, this was not possible due to gaps in the data and the evaluation has, therefore, only been able to explore changes since the reforms, rather than before and after their introduction.

2.2 Data on the frequency of use of undertakings has been recorded by ACPOS since April 2007 at the LCJB area level, although the commencement of data recording varies greatly between areas⁸ . Figure 2.1 shows the total number of undertakings issued at the national level for the period from December 2008 to November 2011 (the latest available data at the time of writing), taken from the CJBMIS. The data show that, in the period where a full data set was available at the national level, there was little fluctuation in the number of undertakings issued, with no obvious upward or downward trends.

Figure 2.1 Number of undertakings issued

2.3 Figure 2.2 shows the number of standard prosecution reports submitted to COPFS for cases that appeared at court on undertaking, as well as by citation or from custody. This provides an alternative measure to the ACPOS data held on the CJBMIS. It also shows that, in the period from April 2009 to November 2011⁹ , there was no noticeable change in the numbers of undertakings reports submitted by the police. This data is perhaps a more reliable indicator than the number of undertakings issued alone, since it represents a national sum that is not impacted on by differences in the dates at which police started to record undertakings data. It shows that around 10% of all reports to COPFS had an undertaking attached.

Figure 2.2 Number of Standard Prosecution Reports Submitted to COPFS

2.4 Increased use of undertakings instead of citations might have been expected to have brought about increased numbers overall over time. The flat line observed for undertakings, and the seasonal peaks and troughs in use of citations, suggests that undertakings are not used more post-reform in place of citations.

2.5 Locally, there were also no notable trends in the data for numbers of undertakings issued, and peaks and troughs in the data appeared to vary by area.

2.6 Stark differences in local practice and perceived 'norms' were also found in the qualitative interview data from the police:

"When I bring someone in, an undertaking doesn't come into my head at all. I think is this a custody or a report. Undertakings aren't even considered. It wouldn't cross my mind. It's not the norm." [Police Officer]

"Everybody is released on an undertaking unless they are a custody…it was hardly heard of before [pre-reform], it wasn't used much, just drink drivers really. It was uncommon then, now it's the norm." [Police Officer]

2.7 Although guidelines to Chief Constables were issued by the Lord Advocate in March 2008, and have a statutory authority by virtue of Section 12 of the 1995 Act, there is no national protocol. This means that local discretion can be used, with departure from the guidance, but only with the agreement of the Lord Advocate. The absence of a standardised approach to undertakings in Scotland, and each force having its own policy and procedures for undertakings administration, may go some way to explain the regional variations noted.

2.8 Procurator Fiscal views were also mixed depending on the area they represented as to whether they felt the use of undertakings had increased. Many considered that undertakings were not being utilised as much as was desired. This was a sentiment expressed both by Procurators Fiscal and the police, who commented that they were often asked by Fiscals to increase the use of undertakings, where appropriate:

"I think they could be utilised a bit more. When they came in, I remember being told there would be an increase in undertakings, and maybe there was, but it's not been to a huge extent." [Procurator Fiscal]

"From what it was before, there has been an increase. We were requested to achieve twenty undertakings on a weekly basis and we are currently averaging about twelve to fourteen and we regularly get contacted by the Procurator's Fiscal office to try and increase that." [Police Operational Supervisor]

2.9 Some Sheriffs perceived that there had been an initial increase in the number of accused appearing on undertakings in court just after the reforms were introduced, however this cannot be objectively evidenced or refuted due to lack of pre-reform data in most areas¹⁰ . Sheriffs did comment, however, that the early increase had petered out over time:

"To be honest, I am not sure how good we are at using them here. We have an Undertakings court on a Thursday at 11 o'clock. It's mainly for drink drivers and some domestic cases. If I remember rightly there was a surge of use when the reforms came in, but I think it has died away again." [Sheriff]

"There was more at the beginning, but I have a sense that there is not as many now. I have a feeling that it can vary; some weeks there are about twenty and other weeks it is fewer." [Sheriff]

2.10 Even though these sentiments cannot be supported by numerical data, they do provide a reflection of perceived changes brought about by the reforms over time.

Offences for which undertakings are used

2.11 Table 2.1 shows the types of offences proceeded with by use of undertakings (nationally) for a four year period from 2007/08 to mid-2010/11, based on data from the CJBMIS. The data show that, over time, the offence types most likely to be associated with undertakings are motor vehicle offences, breach of the peace and simple assault.

2.12 Over time, the proportionate use of undertakings for motor vehicle offences has decreased and there has been a corresponding increase in their proportionate use for more complex cases, including simple assault, drugs offences and shoplifting. In recent years, the number of motor vehicle offences going through the courts has decreased (specifically drink/drug driving cases), suggesting that if undertakings had remained largely limited to these case types, the overall numbers of undertakings may have been expected to go down. The greater use of undertakings for a wider spread of offences under SJR perhaps, therefore, explains the data trends in the total number of undertakings issued, i.e. no change since the reforms as shown in Figures 2.1 and 2.2 above.

Table 2.1 Alleged offences processed by use of undertakings (percentages within year)¹¹

	2007/08	2008/09	2009/10	2010/11
Theft by shoplifting	4%	4%	6%	7%
Other theft (including Housebreaking etc)	7%	8%	8%	8%
Vandalism	3%	3%	4%	3%
Crimes against public justice	5%	6%	7%	7%
Drugs offences	4%	5%	6%	8%
Handling an offensive weapon	2%	2%	2%	2%
Simple assault	10%	12%	15%	16%
Breach of the peace	10%	12%	13%	12%
Motor vehicle offences (including drink/ drug driving)	48%	40%	33%	28%
Other	5%	6%	7%	9%

2.13 Interviews indicated that, traditionally, police and others viewed that undertakings were reserved for particular crimes, primarily drink driving offences, and this is supported by the data. Interviewees suggested that, on the whole, most other offences were dealt with by citation or custody.

2.14 There was a view from those who were interviewed that, post-reform, the types of offences undertakings have been used for had widened in most of the case study areas and the alleged offences for which they are now most commonly used include: shoplifting, assaults, minor disorder, road traffic offences, anti-social behaviour, and acquisitive crime. The numerical data above suggest that use of undertakings for a wider range of offences is indeed occurring post-reform.

2.15 Some police officers felt that it was hard to pinpoint specific crime types where undertakings were typically used and instead indicated that they could generally be used for any crime type; "it just very much depends on the features and individual circumstances of the crime." This was most commonly stated by interviewees in Lothian and Borders and Central¹² , and to a slightly lesser extent in Ayrshire:

"In the past undertakings were just used for specific offences but now anything that's summary is deemed to be appropriate for an undertaking. That's to be the default position; we've to do an undertaking unless there are reasons to specify otherwise." [Police Operational Supervisor]

2.16 In contrast, in Glasgow undertakings were considered only to be used for a small number of crime types, most commonly drink driving and prostitution, and officers perceived that there was no noticeable change since the reforms were introduced:

"I've been here years, and I can tell you that's the only two crimes [drink driving, prostitution] I've had undertakings for…there's been no change since 2007 of introducing other crimes into undertakings." [Police Officer]

Decision making and discretion

2.17 Some police force areas appeared to have more two-way decision making with regard to whether they should release someone on an undertaking than others. Officers in Lothian and Borders more often stated that they would have a discussion with their Custody Sergeant when deciding to release an accused on an undertaking, and although the final decision was up to the Sergeant, they felt involved in the process, which some considered to aid their personal development and experience:

"They are only guidelines I suppose, we would also justify everything to our Sergeant, and we would talk it over with them and come to a decision." [Police Officer]

2.18 In other areas, however, this was not considered the case, and officers explained that they would put the case to the Custody Sergeant who would then make a decision on an undertaking, summons, or custody¹³ . Most of these officers felt they would like to be more involved in the decision making process, as often they knew information about the offender which could impact on the decision. A few of these officers, however, stated that they were happy for the decision to be in a Custody Sergeant's hands, as they did not feel confident enough to make the decision themselves, and did not want the onus to be on them should the accused offend whilst on an undertaking:

"Technically, it's usually up to the Sergeant and for you to encroach on that, you're stepping on their feet…and you don't know the protocol so it would be difficult for you to comment." [Police Officer]

"The decision is not ours, it's the Duty Officers' decision. So it really depends on them. One could say one thing and another could say something else. They've got the guideline, we don't. So that's who we really take direction from, the Duty Officer." [Police Officer]

2.19 Most police officers agreed that the decision to release an accused on an undertaking usually depended on the Sergeant who was on duty. Some Sergeants were more prone to releasing accused on an undertaking, while others would use custody or citation in most instances. Junior police officers suggested that, in these cases, Sergeants perhaps did not feel it was their place to release an accused on 'bail', as this was the job of the court. There was also a perception that some Sergeants were concerned that if the accused committed an offence while on an undertaking the blame would be placed on them:

"If it's in the guidelines that it might meet a custody, then it's a custody...the Sergeant will err on the safe side so there's no repercussions if it's a grey area…if they make them a custody, nothing's going to come back on them." [Police Officer]

2.20 This cautiousness on behalf of officers may suggest that undertakings are perhaps not being used to their fullest in some areas.

2.21 Most officers felt that having the Sergeant make the final decision meant that there was efficiency in scheduling court dates and in dealing with issues that arise. Therefore, almost all officers considered that this was the correct level for decision making to occur.

2.22 Finally there was some concern that police actions may be under greater scrutiny following the reforms. One officer commented that they interpreted the reforms to mean that their "thought processes and reasons for releasing someone on an undertaking would be accountable". While another officer felt that there would be no direct impact for them personally, they recognised that "frontline officers would take the brunt of the change". Essentially, they suggested that the reforms were about ensuring greater transparency for undertakings cases and so this additional scrutiny was seen as inevitable.

Use of Lord Advocate's Guidelines

2.23 Frontline, operational police officers were generally aware of the Lord Advocate's guidelines on undertakings; however, they felt that, as the final decision did not rest with them, there was no need to become fully versed in the guidelines.

2.24 There was some confusion regarding how strictly the Lord Advocate's guidelines were to be followed. In some police force areas, officers explained that they could not be used for certain offence types such as sectarian, domestic and racial crimes and were not to be used if the accused was on bail when they were arrested. In other areas, however, interviewees were less clear. This is perhaps a reflection of the local policy and agreed variations that were operating across the different areas which will have meant that the guidelines were being applied more straightforwardly in some areas than others.

2.25 Most Sergeants and Inspectors stated that, when the changes to undertakings were first introduced, they referred to the guidelines each time they issued an undertaking. More recently, however, undertakings had become common practice with officers only needing to refer to the guidelines in an unusual case, or when imposing particular special conditions that they had not imposed before:

"The guidelines are being utilised but this was more so in the beginning. It's second nature now, so to actually physically refer to the guidelines doesn't happen very often." [Police Operational Supervisor]

2.26 It was considered by some police officers that there was not a significant amount of time put into a decision on whether to release an accused on an undertaking. If the accused met the criteria, they would naturally be released on an undertaking:

"Certain things have to be a custody, I don't really know if there is much decision making involved. It's set down in the guidelines. It's pretty black and white." [Police Officer]

2.27 In other instances, however, police officers explained that the use of undertakings depended on a number of factors. These included type of offence and the previous bail record of the accused, pattern of offending, perceived likelihood of re-offending, whether the accused was known for failure to appear, whether further enquiry needed to be completed, or whether other suspects needed to be traced.

2.28 Other external factors were also cited as a reason to release someone on an undertaking¹⁴ such as cell capacity or whether the accused had a medical condition:

"It's running through your head all the time, which way are we going to go here [undertaking, summons or custody]. But then sometimes it goes down to whether they [the accused] are renowned for not turning up to court. If you look at their past history, and say there's a previous seven warrants out for their arrest, no fixed abode, and whatever, you've got to go down the custody route. It's decision made for you at that time." [Police Officer]

2.29 Most officers were content with the guidelines in terms of not being able to use undertakings where the accused had already been released on bail, and saw no reason for this to change:

"If you start saying he's got one bail for an assault, and one bail for something else, then when do you stop? It's clear the way it is, if you've got one bail, that's it, you're a custody." [Police Officer]

2.30 These feelings about declining to use undertakings for people who have previously shown themselves to breach conditions also mirror findings from the victims, witnesses and public perceptions evaluation. All those consulted as part of that evaluation expressed resistance to the use of bail and bail conditions, as well as to undertakings and undertakings conditions to those with previous breach histories. For such offenders, the public expressed a view that custody was more appropriate.

Perceived Inefficiencies in the Use of Undertakings

2.31 Although officers supported not using undertakings for persons currently on bail, there were other areas of the guidelines that were questioned by some stakeholders.

2.32 Some interviewees perceived that some accused who are released on an undertaking do not reach court as their case is subsequently disposed of by the Procurator Fiscal by other means, such as a direct measure, prior to the pleading diet. Although there were no numerical data available to measure the extent to which this happens, some officers stressed that clearer communication in cases where this type of case marking may occur may prevent some waste of court time that results from accused arriving at court to be told that the case is now being dealt with by way of direct measure or no proceedings. The issue does not appear to be that accused or their Defence Agents disagree with the alternative/non-court disposals being used, but rather that they are not always made aware of these decisions until they appear at court. It is recognised that the Procurator Fiscal's decision is taken at a later date and may be informed by additional information not available to the police at the time. The findings do however suggest that improved communication between the police, Fiscals and the accused may aid the overall process.

2.33 Additionally, in many instances, Defence Agents mentioned anecdotally that they would attend court to find their client's case was being diverted to the JP court instead, and they were issued with a new date. This meant that they would have to attend court on another day:

"It's not uncommon for them to turn up at court to simply be told 'you can go away/we're not going to prosecute you/we're giving you a Fiscal fine/we're sending you to a JP court and here's the JP court complaint." [Defence Agent]

2.34 As a result, a number of Defence Agents considered that there were too many people being given undertakings for trivial cases and that it would be better to report these cases to the Fiscal and for the accused to be cited to court only if necessary:

"I had five undertakings the other day and four of them were sent away no proceedings, that's just one day, but still." [Defence Agent]

2.35 Again, the extent to which this occurs cannot be measured from existing numerical data, but it suggests that improved communication of Fiscal marking to Defence Agents and accused may facilitate greater efficiency in the system to some degree.

2.36 The changes to undertakings did not impact on the type of case dealt with in custody. Several Defence Agents, however, felt that the police should have more discretion because the guidelines are too stringent with regards to the type of offences where accused can be released on an undertaking:

"Undertakings are fine in general, but on the odd occasion you would have a quite serious case…but the client has no previous convictions but is still kept in the police station overnight…now you'd be saying to the Sheriff 'This is completely out of character, and this case could really have been an undertaking…is there really any danger in letting him to go out and answer at a later date?'" [Defence Agent]

2.37 Procurators Fiscal considered that while the guidelines may be appropriate they are open to interpretation and discretion by the police. Some Fiscals felt that not all cases were being appropriately dealt with by an undertaking and should have been cited to appear in court at a later date or should have been custodial:

"Sometimes you get an undertaking and you think 'This should quite clearly be a custody case'." [Procurator Fiscal]

2.38 On the other hand, some Procurators Fiscal also considered that there was scope to increase the types of offences that could be dealt with by undertakings, in order to align it better to the types of cases that would eventually come to court as opposed to being dealt with by alternative measures such as a Fiscal fine. Indeed, this was also welcomed by the police and, overall, it seems that greater flexibility in the terms of the Lord Advocate's guidelines was perceived as necessary by all parties (police, Defence Agents and Fiscals) in order to ensure the most appropriate use of undertakings.

Summary

2.39 In summary, the numeric and interview data appear to be showing mixed messages about whether there has been an increase in the number of accused who appear at court on undertakings. The KPI data suggests no real increase in use post-reform, although gaps in the data mean that it is not possible to say what happened in the period immediately following their introduction. The use of undertakings for a wider range of offences, and a move away from their traditional use primarily for motor vehicle offences (of which there are now fewer cases in the courts), perhaps accounts for some of this lack of change in overall volume of undertakings.

2.40 In contrast, qualitative data suggests that the police are making concerted efforts to increase their use of undertakings. That said, there is also evidence of some police reluctance to use undertakings for fear of their decision being challenged if the accused offends while on an undertaking. This may be contributing to lower numbers of undertakings being used in some areas. It does not seem from the evaluation that any lack of awareness of undertakings practices or reforms is a barrier to their use.

2.41 Views from police, Fiscals and Defence Agents suggest that officers are making use of national guidance as well as using discretion and adopting local protocols that best meet the local circumstances. Overall, while justice professionals interviewed seem content that undertakings are used appropriately in most cases, it seems that there may scope for some cases to be otherwise handled to improve efficiencies in the system.