Summary Justice Reform: Victims, Witnesses and Public Perceptions Evaluation

2 The Views of Victim Information, Support and Advice Professionals

2.1 The research sought to canvass the views of victim and witness information, support and advice organisations, to complement data provided by victims and witnesses themselves. Importantly, it was felt that support organisations would have familiarity with the summary justice system both pre- and post-reform, and that this would counter the anticipated limited opportunity to speak with repeat victims or witnesses with both pre- and post-reform experience. Support organisations were, therefore, interviewed to provide insight into how they believed the reforms had impacted upon victims and witnesses, based upon their observations and experience over time.

2.2 A total of 11 individual interviews were carried out with representatives from Victim Support Scotland (both national and regional representatives), Witness Service staff in each of the case study areas and staff from Victim Information and Advice (VIA) - the Crown Office and Procurators Fiscal information service for witnesses and victims deemed vulnerable - in two of the case study areas. Other local specialist victim support services were also interviewed in two of the areas.

Awareness and Understanding of the Reforms

2.3 Among those interviewed, awareness and understanding of the reforms varied considerably, both at the overall level and for specific areas of change. None of the interviewees mentioned being made directly aware of the overall reforms by way of formal notification or consultation, although some were involved indirectly in early consultations before the reforms were established.

2.4 Respondents were asked what they thought the reforms were intended to achieve as an integrated programme, both in terms of high level outcomes and desired outcomes. Almost unanimously, respondents' expressed that they believed their purpose was to achieve a speedier system of summary justice, and to ease the workloads of the Sheriff courts:

"My impression of it was that it was hoped that it would ease the business that does actually come to court so that things would go through quicker…. The reforms are about alleviating what actually comes through as full-blown trials."

"I think they're meant to deliver a more efficient service…. so, you know, to cut down on wasted court time, to make sure that cases are ready to proceed on the date they are meant to proceed, to take away a lot of the smaller business that may not necessarily be dealt with at some level to try and save bringing extra witnesses along to court when it's maybe not necessary."

2.5 Such comments show an overall awareness of the aspirations for speed and efficiency although, as discussed below, there was not necessarily confidence that this was being achieved.

Perceived Impact of the Reforms on Victims and Witnesses

2.6 Respondents were asked what they believed to be the main impacts of each of the specific reform areas on their clients.

2.7 In relation to reforms to legal aid and disclosure, a view was asserted that these have had a negligible impact on early pleas (that is, the accused making a guilty plea at the earliest stage of court proceedings)^[8] and, hence, there had been no reduction in the need to call victims and witnesses to trials:

"I don't think it makes people plead any earlier that there's this one single fee. That doesn't seem to be happening. People still seem to be waiting till the day of trial. Sometimes you wonder if they [the accused] are waiting to see if all the witnesses are actually going to turn up before they plead."

2.8 Indeed, views were expressed which suggested that some accused may know the system so well that they would wait to see if all witnesses attended court as ordered, using this as a basis on which to decide whether to plead guilty or not on the day of the trial. It was suggested that this tactic may be used, instead of pleading guilty at an earlier stage, since failure to appear by a witness may weaken the case against the accused.

2.9 There was also a view that early pleas of guilty by the accused may cause some frustration for a minority of victims (who are also witnesses) who feel that they have not been given an opportunity to 'have their say' in court if no evidence is led:

"Obviously, the quicker cases come to court, the better. So if there is a plea, that means the victim and witness don't have to come to court... There's always the victim that wants to have their say in court but I think they're pretty much the exception and, quite often, they're left in frustration in any case. Even in court, if they're called as a witness if they're not asked the questions that they want to address, they don't have their say and have to answer the questions asked… quite often the victim is left frustrated because they can't say as they wish."

2.10 The potential for more early pleas of 'guilty' and the associated reductions in the accused's sentence was questioned in relation to the perceived fairness towards victims.

2.11 Similarly, it was felt that many victims and witnesses may be left frustrated by plea bargaining, which was seen as benefiting only the accused and not the victim or witness:

"One of the areas people have difficulty with is plea bargaining. In terms of efficiency, it is wonderful as it speeds it up, avoids trials but when someone has been stabbed and it's plea bargained down to a breach of the peace, people will say 'Where's the justice in that?' With effectiveness, sometimes the fairness can disappear. Very often people cannot understand."

2.12 Also, in relation to disclosure and case preparation specifically, there was some anecdotal evidence that it was perhaps benefiting police and expert witnesses only, and not lay counterparts:

"There has been a lot more cancellations in professional witnesses say rather than lay witnesses being cited, as professional witnesses seem to have their evidence agreed. I really don't know why this is; it just seems to happen more that it is either the professional or the police witnesses whose evidence has been agreed. Very rarely do they say a lay witness's evidence has been agreed. I don't really know if this is to do with the changes to disclosure or not to be honest."

2.13 There were few comments in relation to direct measures and most respondents simply felt that the main impact would have been fewer witnesses going through the court system. This was something that they had not noticed. Similarly, few people commented on the direct impact of fines enforcement. Information, support and advice staff felt that, with the exception of compensation orders and fiscal compensation offers, victims and witnesses would not be aware that fines had been paid. Where they did know, it was suggested that victims are often unhappy with the penalty imposed, saying "a fine is not a serious enough penalty." This was something echoed in the later interviews with victims and witnesses, discussed in Chapter 4.

2.14 With regards to bail, there was some feeling that the use of special conditions and, in particular, the greater efforts put in place to avoid 'failure to appear' were not having the desired effect:

"It doesn't reduce failure to appear. If the accused is not going to come, they are not going to come. It doesn't matter what the bail conditions are."

2.15 Similarly, there was some suggestion that the use of bail and bail conditions remained largely unclear for victims and witnesses, even though better explanations may now be being offered to the accused:

"As a general rule when we're dealing with victims and some witnesses, they're obviously angry that the accused has got bail. 'Why is he/she allowed out on bail?' That's the kind of comments that we get at the Witness Service."

"Since the ECHR [European Court of Human Rights], the kind of presumption is that people will be given bail… and victims will have difficulty understanding why the accused are being bailed. 'I was seriously assaulted' or 'He took a glass bottle and smashed it over my head.' Like, 'The day previously, he was taken away by the police, then I see him walking the street like, how did he get bail?' … and I think it's all about credibility and fairness. Consistency is something victims have difficulty understanding, that what appears to happen in one particular situation doesn't happen in another… They will just look at it very simplistically but, quite often, they're cut out of the loop because nobody explains any of that to them. Perhaps if they were given reasons, it would be easier to understand, but quite often they're not."

2.16 This indicates a desire for the widening of information provision regarding the reasons for bail decisions, to include victims and witnesses, in the interests of being perceived as fair to both them and the accused. Currently, information and advice is only provided proactively by COPFS through its Victim Information and Advice Service (VIA) to victims assessed as being vulnerable. These victims receive updates about the outcome of court diets, and only after the accused has pled not guilty, the exception being custody cases^[9] where vulnerable victims are updated on the outcome if the accused pleads guilty. The sentiment expressed by information, support and advice staff is that more victims involved in the system might also benefit from information, so long as it is provided in a clear and accessible fashion. Data that emerged from the general public workshops (discussed in Chapter 5) also suggests that there is a public appetite for easily accessible information about the justice system to be made available.

2.17 With regard to undertakings, none of the respondents felt that the reforms directly impacted on victims or witnesses, and most felt unable to comment on this reform area. This is interesting insofar as the aim of reforms to undertakings was to contribute to bringing cases to court more quickly, which may, in turn, improve the victim and witness experience (i.e. victims may see that cases are being dealt with quickly after the event, and witnesses may have to wait less time to give evidence due to early appearances in court). It may be, of course, that those victims and witnesses who are involved in cases where an undertaking has been used have less need for information or to call on support services and so the organisation representatives may not have had contact with these people. Alternatively, it could be that a proportion of cases where an undertaking is used do not involve victims or witnesses, or do not make it to court (and are dealt with by no proceedings or direct measures), in which case automatic notification of available support will not be generated for victims.

2.18 The reform area that was perceived among this group to have had the greatest impact was changes to lay justice. Although representatives understood the scope and purpose of this reform area quite well, feedback from clients seemed to suggest that victims and witnesses did not always agree that it was working well in practice:

"…often we find when people are cited and they come to the JP court as a witness and they are like 'Why is this a JP case?' They don't understand why it's been dealt with at that level because they think it's more serious and it should have been dealt with at Sheriff summary level, but to be honest that happens at Sheriff and Jury trials where people think it should have been High Court level so it's individual perceptions by the public of how serious they think an incident has been."

2.19 Such a view was not unanimous and so it seems that some victims and witnesses may be agreeable to the movement of cases to JP courts while others are not.

2.20 In summary, all respondents, when asked, commented that they felt that the system had not changed significantly for victims and witnesses since the reforms, but had stayed much the same. When probed to explore why respondents felt that the impact of the reforms on victims and witnesses to date had been minimal, three main 'gauges of change' were voiced by respondents.

2.21 Firstly, there was no perceived reduction in the number of referrals being made to either the victim or witness service and no perceived changes in the kinds of support or information being sought.

2.22 Secondly, interviewees perceived that there were no fewer instances of 'churn' (or repeated adjournments), in particular in relation to too many cases being scheduled during the court day. Respondents reported that one of the greatest frustrations for clients was time 'wasted' waiting in court, especially when they are discharged and asked to return on another date. This had not changed with SJR. The experience 'in court on the day' was seen as being perhaps the single biggest influence over a victim's or witness's overall summary justice experience, and their view of the system.

2.23 Finally, support and advice staff reported no real change in the sentiments being expressed by victims and witnesses to support services.

Perceived Inconvenience to Victims and Witnesses

2.24 Overall, there was consensus that victims and particularly witnesses are still subject to inconvenience during their case due, primarily, to waiting times for trial to come to court, adjournments (or churn) and waiting times at court.

2.25 On the issue of getting to court, there was perhaps some perception that cases were coming to court more quickly, but this improvement was being undermined if the same case was subsequently called back to court on several occasions, thus causing inconvenience to victims and witnesses:

"Things maybe come to court a bit quicker than when I first started because when you first went into witness rooms as a volunteer, people would be saying 'It's two years since this happened - I can't remember', but I would say that time frame has shortened for the first time that they ever get here but it is very rare that a case comes to a conclusion the first time they ever appear at court. They can be cited two or three times and could have sat here all day."

2.26 Similarly, on adjournments, the perceived inconvenience that this causes to victims and witnesses undermines the fact that the case has made it to court promptly:

"For the ones we deal with, who actually come to court, nothing's changed. People still very rarely get dealt with the first time they come here, even when it's children and this can be for a huge variety of reasons - either lack of court time 'cause there's so much programmed into the courts for each day, lack of court time to be able to deal with the cases, papers not being ready, accused people not turning up, one witness not turning up, so the adjournments are still there.

2.27 In terms of the percentage of summary criminal cases dealt with within 26 weeks (from caution and charge to verdict, the data shows that, following an increase in the percentage of cases moving quickly through the system in 2008 and 2009, since the start of 2010, this percentage has dropped back slightly (see Figure B.1, Appendix B). This perhaps provides a general measure of how quickly cases are being dealt with in court, and which might be impacting on the timing of hearings at which witnesses will be called. The percentage of cases being dealt with within 26 weeks is, however, still well above the national target.

2.28 The issue for witnesses is, however, perhaps more related to the cases that, despite being heard early in court after the incident, result in repeated further hearings in court at which witnesses are asked to be present. The KPI data show that the national average number of court appearances per case has remained largely unchanged post reform, (see Figure B.2, Appendix B).

2.29 Similarly, KPI data for the total number of witness citations (see Figure B.3, Appendix B) and the percentage of repeat witness citations (see Figure B.4, Appendix B) have been relatively steady over time, for both police and civilian witnesses. This is true at the national level and for each of the case study areas included in this evaluation meaning that support staffs' perceptions that there has been no real change in the number of witnesses cited to court post-reform (either once or on multiple occasions) is, in fact, largely accurate. This mirrors support staffs' comments that they also had not perceived any difference in the numbers of witnesses seeking support from their service over time.

2.30 Waiting times in court was the other key area that seemed to cause a great deal of anxiety and frustration to witnesses, and which appeared to the support service interviewees not to have been directly addressed through the reforms. Although respondents recognised that the courts having a lighter caseload may reduce waiting times, there was a perception that workloads had, in fact, not decreased to such a level that this inconvenience had been mitigated or reduced:

"Purely from the witnesses that we see, I don't think it's improved a great deal from the point of view that many witnesses will come to court. They're scheduled to come to court at 9:15am so, they come in and they're seated and wait until the court starts at 10:00am. And they're not given regular updates except for what the Witness Service can give them and regularly they'll sit here for the majority of the day, and they'll still get sent away because of lack of court time and somebody hasn't shown up, etc. So we regularly speak to witnesses that this is the third time, fourth time, fifth time that they've been here for that one trial, and it's always another 6 or 8 weeks that they're scheduled to come back again and they're obviously worried that things won't be fresh in their minds and it's probably taken them months to get into that stage as it were and they keep getting put off again."

2.31 Importantly, staff pointed out that inconvenience, including waiting times in court and churn, appeared to vary considerably by court (both between and within Sheriffdoms). These messages cannot, therefore, be applied with a broad brush and this may be an area that requires further analysis of monitoring data at the court level.

Perceived Impact of the Reforms on Support Organisations

2.32 At the macro level, there appears to have been very little noticeable impact of the reforms on the day-to-day working of victim and witness support organisations.

2.33 Case loads are not perceived to be getting smaller, which may have been an indicator of an 'improved 'system (i.e. fewer witnesses coming to court and so less demand for support services). There has also been no noticeable change in the nature of the complaints received.

2.34 Although unification is out of scope for this evaluation, it does seem that the merging of JP and Sheriff courts may have impacted on witnesses' experiences if it becomes apparent to them that some witnesses are eligible for Witness Service support and others are not:

"As a victim support organisation, the impact that court unification has had on us is that District courts have been subsumed into Sheriff court buildings. That means that there are witnesses in there too. And, for us, we now can't just say to people 'Are you a District court witness or are you a Sheriff court witness? Okay, we can support you [Sheriff court witness], but we can't support you [JP court witness]'. VS view has always been that we would like to support all witnesses because we approach supporting victims and witnesses from the point of view that it's not necessarily the seriousness of the crime that affects an individual, it's that individual's perception and experience and where they are in their life. Someone could be as badly affected witnessing a breach of the peace as they might be if they were involved in an assault on themselves or a serious assault."

2.35 Indirectly, this may contribute to the perceived credibility of JP courts and the fact that, as witnesses in a JP case, their need for support is not perceived to be as great as the needs of witnesses whose cases are heard in the Sheriff court.

2.36 A further impact has been a slight increase in the numbers of people seeking clarification of the allocation of cases to the Sheriff or JP court. Where clients feel that their cases should have been dealt with in a higher court (i.e. Sheriff and not JP), the Witness Services is having to make more referrals back to VIA or Crown Office in order to provide clients with the feedback that they require:

"We are very careful in the explanation we give to people and don't offer legal explanations. When it comes to people questioning why a case has been dealt with at a certain level, we always refer them back to the Procurator Fiscal because we can't discuss anything that may have any sort of legal implications."

2.37 Such comments suggest a need for more information being given to victims and witnesses around the allocation of cases to different court jurisdictions, in order to offer reassurances that such allocation does not necessarily reflect a downgrading of case importance or any sentences that may be imposed on those found guilty.

Perceptions of the Overarching Objectives of SJR

2.38 Staff were asked to comment on the extent to which they felt the current system was meeting the overarching objectives to be fair, effective, efficient and quick and simple in delivery.

2.39 Staff were clear that they did not feel that 'fairness' was necessarily determined by the case outcome alone, and whether the victim or witness felt that a suitable disposal had been awarded. Instead, the court experience itself was seen to contribute noticeably to the overall perception of what was fair:

"In general people will only see the system as fair if the case has their desired outcome. However, if someone is dealt with at first attendance and conclusion is on the same day, they are more likely to say that yes, that was quick, easy and dealt with fairly [if they get their desired outcome]. But if you ask someone that has been here three or four times and had their case deserted, then they are likely to disagree with this. It is down to people's personal experience."

2.40 Staff also expressed a view that there was overlap between fairness, confidence and credibility:

"Confidence, credibility and fairness are all linked in together because if the process is being carried out properly, it gives some confidence to the victims and witnesses. If there hasn't been equality in their contacts with the system, if the only support is a brief 'How are you getting on?' and the outcome of the case is not good, well then they will always be disappointed."

2.41 For support organisations, effectiveness seemed to be framed in terms of the experience being relatively uncomplicated and positive for victims and witnesses.

2.42 On efficiency, staff suggested that this was probably best defined in terms of quick solutions for victims:

"From a victim/witness point of view, efficiency means the whole process is concluded relatively quickly."

2.43 All staff interviewed agreed that the system was neither quick nor simple, and in some cases, the reforms had introduced new concepts which needed to be more clearly explained to victims, which staff sometimes found challenging:

"In terms of 'simplicity of the system', I consider there to be nothing simple about it. The legal system is so complex that people just don't understand it. I don't believe that many people even know that there has been a summary justice reform. When they came into place and people were asking me why certain cases were being dealt with at different levels, I tried to explain it was due to reform, but they did not really understand. I see a lot of repeat witnesses and I don't think they would have noticed or been able to comment on any changes due to reform."

2.44 Finally, in a number of interviews, the issue of 'consistency' was raised as something that may be an area of discontent for victims and witnesses. It was suggested that the reforms could have included a focus on greater consistency across the summary justice system, but that they had not done so.

Are the Reforms Meeting Their Aims?

2.45 From a support organisation perspective, the general consensus appeared to be that the reforms had not yet met their specified aims. The view was that both churn and waiting times in court have not improved, and so, even though cases may be calling in court more quickly, the actual court experience for victims and witnesses (on the day) remained in need of improvement:

"In terms of changes, I would say things have stayed the same maybe slightly verging on the improved. Getting cases to court quicker is a bit better but experiences in court are just the same."

"I don't think a majority of the reforms have had any specific impact. ….. a general improvement in speeding up the process helps, but I can't really say if it's changed much. My guess is that it has stayed much the same."

2.46 Although respondents did not intimate many signs of positive change for victims following the reforms to date, all were optimistic that, over time, some of the changes may start to impact positively on their client group. All welcomed the changes that had been made and noted that they were a change in the right direction, although they were mostly considered to be process focussed.

2.47 Importantly, staff were keen to stress that general improvements brought about by non-SJR changes were assisting in improving the victim and witness experience more generally:

"I don't feel that reforms are meeting the overarching aims and objectives of SJR, but they are trying. I suppose it is having a little impact but maybe not to the extent they had hoped. Things are improving, more as a result of the Scottish Court Service's willingness to improve things and us working with them and the Fiscals to improve things too."