Summary Justice Reform: Victims, Witnesses and Public Perceptions Evaluation

3 The Views of Expert and Police Witnesses

3.1 There are two main categories of witness who may be involved in the administration of summary justice: professional and expert witnesses, and lay witnesses. The former category includes people who are asked to provide evidence as a witness either as a consequence of their professional involvement in the criminal justice system (for example, the police) or as an expert in their area (for example, medical experts or forensic scientists). The latter category, lay witnesses, are usually members of the public who would not necessarily otherwise be involved in the system.

3.2 Both categories of witness took part in the research. This chapter specifically explores the views of police and expert witnesses, while the views of lay witnesses are covered in the following chapter.

Expert Witnesses

3.3 A total of 10 expert witnesses were interviewed, including forensic biologists, forensic toxicologists, scene of crime examiners and fingerprint experts, amongst others^[10]. All received high volumes of citations each year (up to 100 in some cases), but actual court appearances usually only amounted to around 10 per year. However, this group of interviewees offered least feedback in relation to specific reforms and thus their responses are presented at more summary level than other groups.

3.4 At the group level, awareness of summary justice reforms was quite limited. Respondents suggested that they tended to be in their "own little bubble", focussing on their own job (preparing evidence and presenting it in court). None of the interviewees recalled ever being given any information on the reforms prior to them being introduced:

"I think I need to put my hands up and say I was not knowingly aware of any reforms or any changes. Something may have been circulated at the time, but maybe I read it at the time and did not fully take in any implications for us."

3.5 On understanding the specific reforms, respondents suggested that, since they do not tend to see the case from beginning to end, there was much about the reforms that meant nothing to them.

3.6 All interviewees said that direct measures and fines enforcement did not affect them. They were very rarely aware if the accused was appearing on bail or an undertaking and were often unaware of the outcome of cases (if they wanted to find out they had to seek the information proactively).

3.7 Although not feeling that bail impacted directly on them, experts did have quite strong views on their perceived impact of changes to the system, which mirrored those expressed by support staff, i.e. that for some, there simply would be no fear of consequences for breach, regardless of how harsh:

"A lot of them just go wild, because they know they will be convicted and go to prison [anyway]."

3.8 Similar to members of the public, whose views are discussed in chapter 5, some experts commented that the consequences of breach of bail did not appear to be a deterrent for offending during the bail period:

"It's more open than it should be - people continually flout their bail by committing further crimes. Someone can have four bails and we're still finding their fingerprints at scenes while on bail."

3.9 Although not specifically related to undertakings, at the general level of 'getting cases to court more quickly', some experts perceived that this was putting them under extra pressure:

"At the moment we do not have the capacity to turn things around that quickly for these types of cases [summary], and do all the solemn work that we have to do as well, and that's what it is, a juggling act."

3.10 Experiences of being cited to court were only for High Court or Sheriff court cases, and so these interviewees had little awareness of, or comments on lay justice or JP courts. Nevertheless they had some interesting observations on cases being moved 'downward' in the system, not from Sheriff to JP Courts, but from High Court to Sheriff courts:

"I do get annoyed at times when cases are put under summary procedures, when really they should be under solemn procedures…It's the same as putting someone to JP court instead of Sheriff court."

3.11 As expert witnesses have input to disclosable summaries of evidence, they tended to have greater awareness of and be more affected by changes to disclosure. The interviewees felt that this reform had increased workloads or, at least, had led to the need for quicker preparation of evidence, and to tighter deadlines.

3.12 In general, the main issues appear to be: greater time pressure, as evidence was needed sooner; some unnecessary work being requested; and lack of guidelines on what level of evidence is needed.

3.13 On speed, one respondent commented:

"You can try to be too fast as well as too slow. What is most important is to be pragmatic and realise that if a lot of forensics are needed, then it can't be done within 28 days…With reforms to the fiscal service this may be able to be done and we will be able to see things [working] in more of a joined up manner."

3.14 On unnecessary work, an observation was made that:

"Compared to what we used to do, we really have to be answerable to everything, even if it's not relevant. If you go into a scene and do nothing, you still have to write a statement saying you did nothing."

3.15 There was a feeling that there was perhaps more evidence provided than was necessary and that more efficiencies could be achieved if experts worked more closely with Procurators Fiscal:

"It's a laudable thing to achieve but I'm not sure if what we're doing at the moment is actually the most efficient way of doing it. As scientists, what we have to do is ensure that all information that needs to be disclosed is revealed, and it's up to the fiscal what is actually used."

3.16 On guidelines, comments included:

"Disclosure has been a huge impact work wise, as far as we can ascertain. We don't know what the courts will accept, what they won't accept and we're just having to do what we think is right. It's causing us problems at the moment, it's like the "blind leading the blind" at the moment."

"As a supporting organisation we have been pushed by the police and the law to implement disclosure but we have had to do so with very limited guidance."

3.17 Such comments suggest that more guidance may be needed, although other respondents were pragmatic in understanding that requirements would vary by case and suggested that this was perhaps why guidance had not been forthcoming.

3.18 On the overarching objectives, there seemed to be reasonable agreement within this group that there was little change in terms of effectiveness, speed or efficiency of the summary justice system. Indeed, this was the only group consulted in the evaluation that did not consider that an increase in speed of the system was necessarily an improvement:

"They want to speed the system up but to do that they have to bear in mind that the work still needs doing. It's all very well tidying up the system and getting things through quicker, but they've got to be aware of the work that needs doing between incident and trial".

3.19 On fairness, some comments were made about how the system still seemed to favour the accused, and there were some clear messages regarding the way that lay witnesses and victims who appeared in court were treated:

"I just don't think witnesses are getting proper protection in court. They [defence] attack their credibility and integrity."

3.20 Experts shared the view with support and advice colleagues that the system is currently unfair to victims and witnesses, especially for vulnerable witnesses:

"They [victims and witnesses] are treated badly in court. They [the defence] ask ridiculous questions, pick on the vulnerable, especially youngsters and especially cases of a sexual nature."

3.21 Again, there seemed to be a view that there was no noticeable change in the way that victims and witnesses were treated post reform in terms of fairness, and a view that there was room for improvement.

3.22 On simplicity, experts involved in the system said that they considered it was 'cumbersome'. Many tended to focus on their own specialism and to familiarise themselves only with the protocols relevant to their role in the justice process. They did not necessarily proactively seek to learn about the wider system practices or processes since this was outwith their remit. The preference was, instead, to ensure that they were operating as efficiently as possible in their own role, on the assumption that others would do the same elsewhere in the system. This behaviour seems to have been driven by a perception that the system was, as a whole, too complex to fully understand.

3.23 The main facets of the system that respondents' perceived as causing unnecessary inconvenience were: being cited at inconvenient times; difficulties informing the court that they were unable to attend on the designated days; being cited when not needed; and being cited for long periods of time, when the actual time input required was far less.

3.24 As with lay witnesses, there are still numerous occasions when experts are cited and are not needed:

"There have been about three or four times where I have been required, so you go and get your suit on, get the case file and then you get there and you sit in the witness room for a few hours and then they say 'We don't need you'."

3.25 This seemed to be a frustration for several of those interviewed and it was discussed that, although things had in principle improved, in practice there were still instances that caused serious personal inconvenience.

3.26 The practice of two hour notification, where it was in place, seems to contribute a lot towards reduced inconvenience for expert staff:

"I get so many citations I note them in my diary, but that's as far as it goes cause we have a local agreement with the Fiscals that even if we are told we are on standby for court we don't actually have to turn up on the morning. We basically have a two hour standby agreement where they will ring us and say we need you in two hours, so for most citation I don't look at anything unless I get a phone call saying we need you, in which case I would get the case file out and look at the report."

3.27 Although this system does not prevent people being cited at times when it is not convenient, or at short notice, it does mean that less time is wasted by staff who do not need to 'block book' time off for court and it also overcomes some of the problems of being cited when not needed.

Police Witnesses

3.28 Professional witness interviews were limited to the police and a total of 12 police officers took part in the research. Although the police provided much insight into impacts of the various reform areas on their day-to-day role, which will be covered by the specific evaluations in those areas, they also provided some specific insight into how the changes impacted on their role as professional witnesses.

3.29 On legal aid, officers felt that there had been an increase in the number of guilty pleas, and this meant that there were fewer citations to court for officers - something that was welcomed. Despite that, some examples were given of cases where late pleas still occurred:

"When in court, you sit about for hours with a lack of information as to what is going on, whether the case is going ahead, etc. You may appear at court for the same case several times and be sent away and on the odd occasion you will give evidence, but more often than not you will be sent away [being told] the accused has pleaded guilty. Makes you wonder, 'Why did I have to be cited three times for them to then get a guilty plea?'"

3.30 As with experts, the police also expressed some concern that disclosure may be generating some 'less than useful' information, in the eyes of the police and, as witnesses who input to those summaries, may be wasting their time:

"We just have to disclose pointless statements that don't mean anything to anybody, but it's 'cause we now have to disclose everything….We seem to be spending a lot of time writing statements and disclosing things which can only be deemed as irrelevant. It means losing staff hours at a time."

3.31 On lay justice, police witnesses were more likely to have experience of appearing as witnesses in JP courts than their expert witness colleagues. Unfortunately, these experiences do not seem to have been positive and this was creating negative perceptions of the appropriateness of more summary cases being moved to JP courts. For example, officers perceived that JPs' lack of experience with some of the more complex cases has the effect that they are spending more time questioning police in court in order to establish facts about standard police operating procedure rather than specifics of the case at hand.

3.32 Indeed, some police officers expressed views which suggest that appearances at JP courts were personally more challenging than appearances at Sheriff court for this reason:

"I personally prefer a professional Sheriff as opposed to a Justice of the Peace…it's a bit of a free for all in a Justice of the Peace court."

3.33 On the overarching objectives (i.e. fair, effective, efficient, quick and simple) police views again mirrored those of support and advice staff and expert witnesses - that is, that the system had not changed significantly in any of these regards.

3.34 In terms of fairness of the system, police considered that there were probably many witnesses who were extremely reluctant to come forward again because of their previous experiences of the system and feeling that they have been badly treated:

"The system is still weighted in favour of the accused, and victims and witnesses get a raw deal on a number of occasions."

3.35 In general, the system was perceived to have become speedier but confidence in the system as a whole has perhaps still not been achieved, primarily because is it perceived that too much business is being scheduled for court days with no realistic prospect of all cases being heard.

3.36 Again, as with expert witnesses, inconvenience was mostly seen to be around unnecessary time spent preparing for court in cases where pleas "on the day" meant that the witness was not needed. A "stand-by system" (where officers are rostered for court but wait on stand by at their local office for a summons, if required, to give evidence) was seen as better than having to wait in the court building. ^[11] Also, like expert witnesses, there appeared to be inconvenience around being cited during periods of annual leave where staff were unsure if they would actually be required:

"You get phone calls to appear at short notice - legally you should have 48hrs notice and doesn't always happen. In general you are given a citation and, if it's following procedure, its citation to appear on the Monday, but you may not be needed on a Monday. You may have to sit for 2 weeks, really cited for 2 weeks. That can affect family life; having to cancel holidays, etc. because of it. If the trial progresses and if it's a lengthy trial, it finishes for the day and then prosecution sits down and arranges for the next day, you then may get a call at 5.30pm to attend for next day. That's the amount of notice you get."

3.37 This aside, police did comment that they were perhaps being cited slightly less frequently post-SJR:

"Generally, for police officers, the volume of citations has gone down slightly [post SJR], the number of times police officers have had to turn up at court has gone down anyway".

3.38 This perceived decrease is not evidenced in the KPI data (see Appendix B) which shows that nationally, police citations and repeat citations post-SJR have, in fact, remained reasonably steady. The perceived decrease may actually be due to a number of factors, including a higher percentage of guilty pleas at pleading diet which will mean that witnesses do not require to be cited, changes in guilty pleas at intermediate diet resulting in witnesses being countermanded or late guilty pleas at trial diet which need no further citation. Further research would be required to compare the actual progress and volume of cases pre and post SJR to explain what, on the surface, appears to be an anomaly between perceptions and the KPI data.

3.39 Overall, professional witnesses (namely, the police in this instance) seemed to perceive that SJR was working, to some extent:

"There has been a bit of oil put on the wheels somewhere and it does run more quickly and more smoothly than it did before."