SUMMARY JUSTICE REFORM: UNDERTAKINGS EVALUATION

4 Getting to and through court

4.1 One of the specific objectives for the reforms to undertakings was to bring undertaking cases to court much more quickly than cited cases - within 28 days of caution and charge - thus reducing overall case time in the summary criminal justice system.

4.2 For this specific objective, the main measure of success is whether the case actually appears at court in that timeframe, irrespective of whether the accused (or other party) fails to appear at first calling. A second measure of success would arguably be appearance rates by the accused, as discussed in the previous chapter, since early scheduling of cases in court may be impacting on their likelihood of meeting this basic condition. This chapter, however, focuses on getting cases to and through court from a process perspective.

Meeting the 28 day target

4.3 Figure 4.1 shows the percentage of accused appearing by undertaking on first calling in court within 28 days of caution and charge, for the case study areas, and nationally.

Figure 4.1 Percentage of accused appearing by undertaking on first calling in court within 28 days of caution and charge

4.4 The data show that, among the four case study areas, Central has the greatest success rate in meeting the 28 day target.

4.5 In Ayrshire, early success in meeting the 28 day target can be seen from the start of 2007 to mid 2009. Thereafter, there appears to have been a dip in performance, followed by a recent rise again to near 100% compliance with the target.

4.6 Both Glasgow and Strathkelvin and Lothian and Borders do not appear to be meeting the 28 day target post-reform, with both areas showing a tailing off throughout 2009 through to August 2011. Glasgow and Strathkelvin did appear to be meeting the target in the early months following reforms, with only Lothian and Borders showing less than 90% compliance in the first half of 2007. The downward trend in these two largest case study areas is possibly driving the national trend and this again highlights how it is difficult to achieve a national picture on the success of undertakings.

4.7 The national average percentage of accused appearing by undertaking on first calling in court within 28 days of caution and charge between April 2007 and August 2011 was 84%²³ . For comparison purposes, the case study area averages were:

• Ayrshire - 95%
• Central - 98%
• Glasgow and Strathkelvin - 69%
• Lothian and Borders - 68%

4.8 On further exploration of the apparent low compliance rate in Glasgow and Strathkelvin, the evaluation identified limited designated space in scheduled undertakings court sessions, such that there are some cases where 'day 28' does not fall on an undertaking designated court day and so, consequently, they appear on day 29.

4.9 It was explained that ACPOS previously obtained agreement in principle to allow 1-2 days grace. In the Glasgow context, this can mean that cases are reported for court appearances up to 34 days in advance due to the scale of the operation, divisional working/divisionalised undertaking courts and public holiday issues. A similar scenario may also be accounting for the low compliance rates in Lothian and Borders²⁴ .

Support for the 28 day target

4.10 Officers interviewed were generally supportive of the principles of the 28 day target:

"Suddenly this person [the accused] is appearing a month down the line, instead of six months, which to me, is progress, if there are spaces for undertakings then why not use them? The less time taken for a case to come to trial the better, whether it is serious or not." [Police Officer]

4.11 Finding space in the court diary within the 28 days was also not considered to be a problem and police officers also perceived that they had been cited to court less frequently post-reform compared to pre-reform. This was a point also raised in the evaluation of direct measures²⁵ and the victims, witnesses and public perceptions evaluation²⁶ .

4.12 Additionally, many officers suggested that cases coming to court more quickly ensured that officers wrote up cases while they were "fresh in their mind":

"It means it's clearer in your head, because sometimes you have to read your notes, and think 'Why did we do it that way?' and it takes a while for things to come back. More than anything it makes you write the report there and then because it's so much easier to write it immediately after it happened rather than leaving it 3, 4, 5 days…and it's so much harder to recall, 'Who was there? When? Why did that happen?, etc." [Police Officer]

4.13 This is perhaps an unintended improvement in quality that has resulted from the reforms.

4.14 Fiscals also reported that this speedy preparation of reports was a plus and it was also unanimously considered that bringing cases to court within 28 days of caution and charge was a positive change:

"It gives the police a definitive timescale in which to report the case, and then us a definitive timescale on which to mark it." [Procurator Fiscal]

4.15 The time stipulations for case marking for Procurators Fiscal was, therefore, seen as something which may improve system efficiency. The need for Fiscals to mark undertakings cases within set time limits was perceived to reduce the number of undertakings cases that might otherwise sit 'unmarked' for periods of time.

4.16 Numerical data on the percentage of undertakings cases that are marked by COPFS within the 28 day period was not available. Interestingly, however, Figure 4.2 shows the CJBMIS KPI data for the average time taken from reports to the Fiscal to first case marking for cited, undertakings and custody cases. It shows that there has in fact been an increase since the reforms in the time taken for undertakings cases to be marked, in contrast to a reduction in the time taken for marking cited cases. Custody case marking has remained relatively steady.

4.17 Although the average time for all case types was well within the 28 day target, and police and COPFS targets in this regard have been met and maintained in recent years, it may be that undertakings cases are not being marked as speedily as Fiscals who were interviewed perceived, and that the national average time taken is in fact increasing, quite uniquely for undertakings cases.

Figure 4.2 Average time taken from reports to the Fiscal to first case marking

Negative Consequences of the 28 Day Target

4.18 Although most police officers interviewed frequently cited the positives of undertakings speeding up cases going to court, a few negative points were also noted. Under guidelines, officers are given 2 weeks to write up the report and send it to the Fiscal and some officers felt frustrated that they had to provide the report to the Fiscal knowing that it wasn't their "best work" [Police Officer]. While some officers welcomed writing reports whilst incidents were fresh in their minds, others felt that this perhaps came at a cost to the quality of work that could be produced.

4.19 Some police officers said that time was "squeezed" with cases coming to court within 28 days of caution and charge. There was concern that if more cases were released on an undertaking, evidence such as CCTV would be difficult to obtain within given time periods and, if evidence could not be obtained in time, cases would have to be continued without plea at the pleading diet and rescheduled:

"The only drawback I can see with bringing cases to court more quickly is when you are trying to gather evidence. It takes days, weeks, months to try and get hold of people. And then it comes to court and it has to be re-scheduled because there is not enough evidence in place to plead. Sometimes 28 days is not enough time to do the enquiry." [Police Officer]

"It is frustrating when you get an email from the Procurators Fiscal office saying 'We need this evidence within the next couple of days'…Well, when do I do this? Also, sometimes the evidence isn't available. It would be too difficult to do everything within this short period of time." [Police Officer]

4.20 Officers stated that this problem could be overcome by not releasing the accused on an undertaking where it was known that there may be complications with the sourcing of evidence. Alternatively, flexibility with the 28 day target for complex cases could mean that undertakings could still be used whilst still allowing time for evidence gathering.

4.21 Police officers in Glasgow were also concerned at the length of time given to write an undertakings report, as this had to be done on the same day. This was the only area where staff stated that this was the case. Respondents said that they would find it much more beneficial if the report had to be completed within 14 days, rather than the same day. This was the main grievance of officers in this area, and the main reason that support for the changes to undertaking was not unanimous:

"I thought the whole point of undertakings was that it's dealt with at the time and then we're back out in the street and doing the writing at an appropriate time, but that doesn't appear to happen." [Police Officer]

"If you had to write the report within 14 days, that would be fine because it would give you time to plan, but recently, you've got to write it as a custody, come off the street. If it's near the end of your shift you're not getting paid for it, you're doing it in a rush." [Police Officer]

"If you could write it up the next day, you'd be of a fresher mind, rather than clock watching. I think if you released the right people on undertakings and then got a bit of time to write it up then it would be efficient, it would be beneficial." [Police Officer]

4.22 Such comments may again provide insight into why some officers are not using undertakings as frequently as they could, i.e. because the report writing under pressure (and possible impact on report quality) is something that they would rather avoid:

"The timescales for getting the report in can be quite tight, especially if you are dealing with other things, or there is co-accused, it can cause problems." [Police Officer]

4.23 As with the police, Fiscals commented on police not being able to gather sufficient evidence within the 28 day period. It was thought that this was more likely to be the case when there was more than one charge, an insufficiency of evidence, problems with drug cases, etc., or it was a fraud case, for example, when the police also had to involve outside agencies and rely on them to supply information. In many instances it was not possible to obtain this information in time for the pleading diet.

4.24 Again, in such scenarios, it was suggested that cases might require to be adjourned and reconvened meaning that they were stuck in the system. This cycle of adjournment due to lack of preparation is colloquially known as "churn" and was something that emerged across interviews with various stakeholders as being something which may be a negative consequence of the reforms to undertakings, specifically the 28 day target.

4.25 Indeed, data support the notion that churn may be occurring as a result of the tight timescales that undertakings cases operate within. Figure 4.3 below shows the average number of diets per case for undertakings cases, cited cases and those that appear on first calling from custody.

Figure 4.3 Average Number of Diets per Case

4.26 The data show that, pre-reform, undertakings cases usually proceeded through court with fewer diets per case on average than cited and custody cases, however, post-reform, there has been a notable increase in the average number of appearances for undertakings cases. This is all the more notable since there has been a corresponding drop in the average number of diets for the other two case types, suggesting that the rise is isolated to undertakings cases and may be a direct consequence of reforms in this particular area.

4.27 While tight timescales for police and COPFS reporting and evidence gathering may be one factor explaining this, another explanation may be that the speed of getting accused to court on undertakings leaves less opportunity for agents to advise their clients to plead guilty (where appropriate). As a result, and given concurrent reforms to legal aid, greater use may be being made of continued pleading diets to allow later guilty pleas to be tendered. This may be exacerbated by the shift in use of undertakings towards different types of cases, including more complex cases, post-reform. More complex cases may require more diets than the cases where undertakings were traditionally used (for example, simple motor vehicle offences), again due to challenges in gathering evidence, or citing civilian witnesses to court who may be less reliable than their professional or expert witness counterparts (and with whom evidence can arguably more easily be agreed). The lack of time for clients and agents to consult, and to prepare for such cases, as well as these wider evidence gathering and witness citation issues may therefore explain some of this increase in the average number of appearances required.

4.28 Indeed, the biggest concern raised by both Defence Agents and Sheriffs with regards to bringing cases to court more quickly was the reduction in time to prepare for court:

"Where cases do come to court quickly there are sometimes difficulties in preparation which means they may have to 'go off', thereby defeating the purpose." [Sheriff]

4.29 Figure 4.4 shows the percentage of cases concluded at first calling in court with a breakdown for case type at the national level. It shows that the percentage of undertakings cases concluded at first calling is lower than for cited or custody cases and that while the percentage has increased for these other two case types since April 2008, for undertakings, it has continued to drop over time.

Figure 4.4 Percentage of cases concluded at first calling in court

4.30 The data does also support the picture that undertakings cases are, post reform, taking more diets to conclude (as shown by the average number of diets data above). Although resolution at this stage may occur for a variety of reasons, including not guilty pleas being accepted and cases not being called or deserted, it is likely to be driven largely by the number of guilty pleas tendered at this stage. This would support some of the qualitative suggestions from professional stakeholders that the speed of getting accused to court on undertakings is reducing the likelihood that they will consult with their Defence Agent ahead of the first calling in court, and thus they are less likely to have been advised by their agents to plead guilty. This is again linked to the late receipt of the copy complaint in undertakings cases.

4.31 Some Defence Agents also mentioned that they had appeared in court on their client's undertaking date to find that the case had not yet been marked. This meant that the case was delayed and re-scheduled for another day (i.e. churned). It was described as problematic both for them and for their clients who would perhaps have to take another day off work to attend court and who would have the case "hanging over their head" until a later date:

"It's all very well giving someone an undertaking and asking them to turn up at court in 3 weeks, but when they arrive at court, they should expect to be given their papers." [Defence Agent]

"The decision not to proceed to court is very often made at the last minute when we [the accused and Defence Agent] are already at court so there is no actual court appearance…That in itself is inefficient. If they made the cancellation at an earlier stage then that would be a more efficient way of doing it." [Defence Agent]

4.32 Figure 4.5 shows data from the Scottish Government's Criminal Justice Board Management Information System (CJBMIS) and the Monitoring Workbook in relation to the end-to-end time taken for undertakings cases compared to other types of cases (i.e. custody and cited cases).

4.33 Thus, although Defence Agents considered that cases may be coming to court more quickly, delays were still seen to exist at and after the pleading diet. This is also evidenced by the KPI data which shows that while undertaking cases are coming to court more quickly than cited cases, these cases seem to be experiencing more churn and less early resolution at first calling. This is possibly due to time pressures on police and COPFS, the timing of the copy complaint and also, perhaps, the changing crime type profile of undertakings cases.

End-to-End Times

Figure 4.5 Percentage of Summary Criminal Cases dealt with within 26 weeks.

4.34 The data show that the percentage of cases that come to court via undertakings being dealt with within 26 weeks has progressively declined over time since the start of 2009. It has, however, remained higher than for cited cases. This is in contrast to cases that appear in court from custody, which has remained fairly steady and cases that come to court via citation, where there has been an improvement in performance over time.

4.35 Figure 4.6 also shows management data in relation to the average time between caution and charge to verdict for cases that come to court via different routes (i.e. undertaking, citation or custody). The target for this measure is 26 weeks (or 182 days). This data also shows a drop in speed and that the average time for undertakings cases has increased over time.

Figure 4.6 Average Time from Caution and Charge to Verdict

4.36 The downward trend in the percentage of cases concluded within the 26 week target, and the upward trend in average time taken from caution and charge to verdict are unique to undertakings cases. This perhaps suggests that the reforms have impacted on these case types in an isolated way and this may be explained by some of the front-end court delays discussed above, with regard to fewer cases being concluded at first calling in court compared to citation and custody routes. It could be argued, of course, that churn at this stage of the court journey is preferable to churn at trial stage which is more likely to include citation of witnesses to court only for trial to be adjourned to a later date. Continuing first callings and attempting to resolve cases as early as possible in the process was encouraged as part of SJR.

Communication

4.37 Two issues emerged in the evaluation with regards to communication. The first of these related to communication issues between Fiscals and accused, wherein interviewees described occasions where Fiscals decided to mark undertakings cases with an alternative disposal without (in some cases) advising the accused of this decision before the scheduled undertaking court appearance. This was described as "frustrating" among Defence Agents in particular, who felt that they were attending court with their clients to be advised that the case was no longer proceeding through court. In some cases, communication between Defence Agents and Fiscals may have prevented this wasted time, and in others the Fiscal reports may simply have been prepared too late for copies to be provided to Defence Agents.

4.38 Secondly, a small number of Defence Agents mentioned that, on occasion, they received calls from their clients asking why they were not at court, despite the client not informing their defence agent that they were appearing in court on an undertaking. In these instances it appears that clients wrongly assumed that the police would have notified Defence Agents that their clients were due to appear in court on the specified date. This is despite information in the undertaking advising accused to seek legal advice. These two issues combined suggest that if communication could be improved between Fiscals, Defence Agents and the accused, this may lead to more efficient use of undertakings.

4.39 Where accused did contact agents ahead of their court appearance, most Defence Agents reported that their clients often provided them with only minimal information on their charges since they had not yet been served with the complaint (in the same way as occurs for custodial cases, as mentioned above). They often only possessed the duplicate undertakings slip, which could be blurred or incomprehensible. Defence Agents did not say that they routinely contacted the Fiscals in such instances, and, as a result, Defence Agents sometimes felt unable to do much in the way of preparation:

"On busy court days we are approached by people [accused] simply handing us paperwork which we are expected to try and deal with on top of all the other stuff we are doing…previously most cases that were heard in the Sheriff court were cited so they [the accused] would get their papers, and we would have time to sit down and go over things properly with them before it went to court. If you're simply having to deal with it in a busy court it puts a lot more pressure on you trying to deal with it, read it properly, and just take their instructions…it's just much more difficult." [Defence Agent]

"They don't have any paperwork so you don't know what they are going to go to court to be prosecuted for or, for that matter, whether they are going to be prosecuted." [Defence Agent]

4.40 In a small number of cases, Fiscals also commented that they sometimes received communication from Defence Agents seeking clarification about charges against their clients due to lack of communication between clients and their agents directly.

4.41 Again, although not unique to undertakings, the lack of communication between accused and their agents ahead of court appearances may be impacting on early guilty plea rates, something that the reforms sought to encourage where appropriate to remove unnecessary workloads in the courts. If agents are unaware of their client's case details before the first calling in court, some not guilty pleas may be being tendered which might otherwise be avoided if agents were better informed.

4.42 The missed opportunities for early guilty pleas that might be resulting from the reforms to undertakings could also be counteracting some of the achievement of the reforms to legal aid which specifically sought to encourage early guilty pleas. In this way, the two reform areas may be conflicted instead of being mutually supportive.

Summary

4.43 In summary, all stakeholders seem to perceive that summary justice reforms are impacting on the speed of getting cases to court but they also perceive that there may be negative consequences for some cases in terms of subsequent progress through court.

4.44 While undertakings do seem to be getting people to court quickly, with some areas showing good compliance with the 28 day target, case marking among fiscals is taking slightly longer over time, and there appear to be more diets and overall lengthier end-to-end times required to conclude cases once they are at court (although this is still well within the target and is better than for cited cases). Some of this may be accounted for by the shift in use of undertakings towards more complex cases.

4.45 It seems that there has been some unintended churn as a result of cases coming to court quickly, with police, Defence Agents and Fiscals all reporting problems with preparing quickly enough for pleading diets in the time given, and this may indicate a reduction in the effectiveness of court hearings at this stage in the summary justice journey, as reflected in the increasing average number of diets per case for undertakings.

4.46 A reduction in the conclusion of cases at first calling in court may be due, in part, to pressures on the police and COPFS to meet reporting deadlines and the absence of copy complaints early on in the undertakings process which is affecting time for and quality of discussions between clients and their Defence Agents. Greater use of continued pleading diets to allow later guilty pleas to be tendered is, however, perhaps potentially preventing churn that might otherwise occur at trial diet. This may be positive for victims and witnesses in that earlier trial diets can be fixed in cases where the accused pleads not guilty.

4.47 Thus, getting people to court on undertakings may be occurring at the expense of the other intended outcomes of SJR - in particular the early, effective preparation of cases and more effective court hearings, as well as cases being dealt with at the earliest stage of proceedings and achieving faster case conclusions overall.