Summary Justice Reform: Victims, Witnesses and Public Perceptions Evaluation

6 Discussion

Main Emerging Themes

6.1 The evaluation was successful in canvassing the views of a number of participants involved in the Scottish summary criminal justice system, as well as members of the general public, and the research findings suggest that the reforms have impacted in different ways and to differing extents on those involved. Importantly, however, the evaluation has also uncovered some key emergent themes that seem to be present in the views and experiences of all groups consulted.

6.2 The main messages to emerge from the work is that victims and witnesses are perceived, by almost all those consulted, as being treated less fairly than accused. There is an overwhelming view that the system favours the accused both in terms of their ability to determine the course of action through the process, to have their say in court, to be defended, and to be kept informed of the progress of cases. Of course, no data were collected from accused for this evaluation, and so it is not possible to say with confidence that they too do not have concerns about how the system does/does not operate to meet their needs. What does seem clear, however, is that people both perceive and experience the system as being relatively more weighted in favour of the accused.

6.3 Related to this, the experience of victims and witnesses in court is a driving factor in determining whether people perceive the system to be working well overall. Based upon primary data from the general public, victims and lay witnesses, and victim support and advice professionals, there is a clear picture that the experience of victims and witnesses inside and outside of court continues to affect professional and lay people's views on the fairness, effectiveness and credibility of the summary justice system.

6.4 In particular, victims and witnesses are currently disappointed/upset by:

• having little information about how the case is progressing;
• often waiting alongside the accused at court, and leaving by the same exit at the same time;
• being less sympathetically treated in court/witness box than expected (and than the accused) - leaving them feeling that they are the ones on trial;
• attending court needlessly;
• long waiting time at court;
• usually not being told of the outcome;
• perceived lenient sentences; and
• perceptions that current sentencing is not effective at reducing re-offending.

6.5 These poor experiences mean that victims and witnesses consider the system to be unfair and are likely to put them off attending court the next time they are required. Although there is some evidence that moves have been made to improve the court experience on the day of trials, there is clearly a shared view that there is room for considerable further improvements.

6.6 Despite this, there were many positive comments about the level of support and information that respondents received, especially from the police during the early stages of investigations, and also from support agencies and court staff when at court and post appearance, if required. It is important that this positive message is not lost. The views expressed by victims and witnesses are not dissimilar to those expressed by support staff and by police and expert witnesses, or members of the public, and all seem to agree that increased fairness may be achieved if victims and witnesses are given case outcome information and are treated with greater care and respect as part of the court process.

6.7 Finally, a key message is that the communication processes in the system needs to be strengthened and made more consistent at all stages. This is true for both police and experts (knowing what is required of them) and for members of the public. Again, for victims and witnesses, this seems to be mostly a need to know what to expect in court, but also, very importantly, to know case outcomes. For others involved in the summary justice system in a working capacity, there may be a need to explain policy and operational changes, and provide regular updates on what is being achieved, and what the reforms mean in practice, in order to remove some of the general lack of understanding that exists.

Knowledge of the Reforms

6.8 There were mixed levels of awareness of the reforms among support and advice staff and most seemed to equate the changes with an aspiration for more cases to be removed from the courts.

6.9 Expert witnesses seemed to know little about the reforms, other than the need for disclosure. Police witnesses knew more, but did not consider that there had been any significant improvements to the system or to their experiences as professional witnesses as a result, other than perhaps speeding up of some parts of the system.

6.10 Victims and lay witnesses knew very little about specific reforms, and the same was true of the general public. The public also had a general lack of understanding of the system. This was, in part, attributed to the use of complex and what they perceived as antiquated terms which meant that the system was not accessible. This echoes findings from the pre-reform research with members of the public outlined in the introduction which also showed a lack of understanding of the system. Lack of knowledge was explained by the fact that many members of the public did not 'need to know' about the system (since they were not involved in it).

Views of Specific Reform Areas

6.11 Most people were supportive of the aims of the suggested reforms, but were sceptical about whether they would work.

6.12 Overall, there was general support among all those interviewed for direct measures (including those offered by the police and fiscals), although there was some feeling that non-court fines present a lenient option in some cases, especially for repeat offenders and for those where the fine was easily affordable. There was a feeling that direct measures should not be used for those with previous criminal records, and some public and professional support to see repeat offenders go to court in almost all instances. There was limited knowledge of fines enforcement officers, and again some scepticism about whether their introduction would result in the greater collection of penalties. Those awarded compensation orders were also sceptical that it would be paid.

6.13 Despite statistical evidence showing an increase in the number of early guilty pleas as a result of changes to legal aid, support organisations did not perceive that this was necessarily resulting in fewer instances of victims or witnesses being called to court.

6.14 From a support organisation perspective, the view was also that both 'churn' and waiting times in court have not improved as a result of change to the legal aid and disclosure regimes and so, even though cases may be appearing in court more quickly, the actual court experience for victims and witnesses (on the day) remained in need of improvement.

6.15 For members of the public, views about legal aid expressed suggest that they prefer the new payment method to the old (information about which was received with some surprise). However, the main point of contention for the public was whether early pleas should necessarily result in discounted sentences. The general feeling was that they should not.

6.16 Both police and expert witnesses also suggested that disclosure was perhaps impacting negatively in their workloads and that there may be some room to improve efficiencies in terms of not generating information which they perceived to be 'useless'. In contrast, one of the main gaps in information and support for witnesses was not being able to access the statements that they had previously given to the police. This was perceived to potentially add to the intimidating prospect and anxiety about appearing in court as a witness since they could not remember exactly what had been said.^[18]

6.17 Overall, views suggest that changes to bail, and the more serious treatment of breach of bail, were not having the desired effect, and it was believed that many accused would simply choose to ignore bail conditions, regardless of the perceived consequences. There was concern about the continued likelihood of breaches of bail by a core of accused, including the commission of other offences. There was general consensus about this across all groups consulted and, correspondingly, strong feelings that bail should not be given to people who have previously failed to comply with bail conditions.

6.18 Suggestions were also made that the use of clearer explanations of bail and the consequences of its breach were solely in favour of the accused, and had no real benefit to victims or witnesses since they occurred before these parties became involved in the court case. This was held up as a case in point of a system being geared towards the accused, with such explanations making the system easier for the accused to understand with no equivalent attempt to make things easier for victims and witnesses to understand. Victims and witnesses were perceived to have no real understanding of if or why bail had been used, or knowledge of any conditions attached.

6.19 Most of those consulted knew nothing about undertakings, but there was a general consensus that they seemed to present a common sense approach. There was also some suggestion that their use was fairer to the accused, although it was perceived by most stakeholders that breach of undertakings would continue to occur in some cases since they would not be taken seriously by the accused (in much the same way as bail). As with bail, there is no appetite for allowing undertakings to be used for people who have previously demonstrated a lack of willingness to comply.

6.20 The evaluation suggests that there is perhaps some confusion among victims over the shift of business to JP courts. Some victims had reported to support service staff that they felt their case had been 'downgraded' as a result of being heard in a JP court and this view was supported by experts and support and advice organisation staff. For police witnesses, experiences of appearing in JP courts do not seem to have been positive, and this is perhaps leading to negative perceptions of the appropriateness of more summary cases being moved to JP courts. The same is true for lay witnesses and victims who reported disappointment in the way that proceedings were managed in JP courts.

6.21 Finally, although all those consulted were in favour of changes to the recruitment, training and appraisal of JPs, there were some doubts about how representative of the community this group would ever be. Importantly, for members of the public, there was a poor understanding of the existence and role of JPs and JP courts at all, suggesting that this in itself might present a barrier to recruitment of a broad spectrum of JP applicants.

The Overarching Objectives

6.22 Fairness was largely defined in terms of 'appropriate' outcomes for offenders. Fairness also seems to be perceived in terms of personal satisfaction (including an apology or a sense of justice) for the victim or witness, and there is some evidence that people felt a need for personal or community compensation in order to believe that the system was truly fair.

6.23 Most people did not consider the sentences awarded (where known) to be effective in deterring future offending, and this was the main measure of an effective system for almost all groups consulted. Use of more prison sentences, and harsher treatment of repeat offenders, were seen as necessary to achieve system performance, and proportionality was seen as the key for other types of offenders. The issue of leniency in sentencing mirrors findings of the pre-reform research with members of the public, along with the need for appropriate punishment and consistency in sentencing.^[19]

6.24 Efficiency was something that most people found difficult to define, although there was consensus that the system could probably be streamlined further to ensure savings to the public purse. For both police and expert witnesses there remains an element of inconvenience due to being cited to appear at court for cases which are later dismissed following a guilty plea. This was regarded as being the biggest barrier to achieving efficiency.

6.25 For most victims, the journey from the incident to case closure was not considered to be quick or simple, and participants cited examples of being called to attend court on multiple occasions due to court business being cancelled at the last minute.

6.26 As with other interviewees, police and expert witnesses seemed to agree that the summary justice system as it stands is still quite time consuming. Overall, this group perceived that the system was perhaps quicker (if not simpler) post-reform.

Messages for Policy

6.27 The reforms had specific ambitions for victims, witnesses and the general public and it was hoped that many of the system changes would indirectly impact on users to increase confidence and perceived credibility of the system.

6.28 The research shows that whilst these system users support the principles of the reforms, victims and witnesses still do not perceive that the system meets their needs. Although the use of direct measures, and changes to both legal aid and disclosure will mean that fewer cases come to court that require victims and witnesses to attend, those that do still seem to be subject to instances of repeat citation, and waiting times are still too long. The reforms have not, as yet, improved the victim and witness experience in this regard.

6.29 The reforms also sought to generate a greater focus on the needs of victims, witnesses and the accused at the heart of the system. Perhaps the main message to emerge from the work is that victims and witnesses are perceived, by almost all those consulted, as being treated less fairly than accused. Thus, the reforms have not achieved the focus they sought.

6.30 The evaluation findings point to several areas where victims' and witnesses' experiences could be improved which were not part of the reforms. These might change perceptions and increase public confidence in the system, ensuring that it is seen to be credible by all.

6.31 For police and expert witnesses, the key messages seem to be that:

• there is still scope for increasing effectiveness of the system in terms of the guidelines around what is required for disclosure purposes; and
• there is room for greater efficiency around citing witnesses to court at times that are most convenient for all those concerned.

6.32 For victims and lay witnesses, it was felt that their experiences would be improved if:

• they were subject to fewer instances of repeat citation to court, and waiting times at court were kept to a minimum on the day;
• they were made to feel more valued during any court appearance experience;
• they could be kept separate from accused at court;
• they were kept up-to-date with case progress and supported throughout the system if required;
• explanations were given to them about the allocation of cases to different court jurisdictions;
• bail was not seen to be used in cases where the accused was known previously to have breached bail;
• sentences were perceived to more appropriately match the offence;
• cases were concluded as quickly as possible, and ideally within six months of the offence, whilst still being fair; and
• arrangements were made to always notify victims and witnesses of case outcomes in writing.

While not the function of the adversarial nature of the justice system, victims and witnesses indicated that their experience of the justice system would also be greatly improved if they had the opportunity to ensure that their perspective was fully heard and understood during the case. Many victims explicitly said that they would have welcomed an opportunity to meet with the Procurator Fiscal ahead of the trial. Victims also wanted to feel that their key messages were being heard in court, regardless of how that occurred.

6.33 For members of the public, confidence in the system and perceived credibility may be further improved if:

• they perceived that tougher sentences were being used for repeat offenders;
• the system was more transparent so that the public had a greater awareness of the true prevalence of crime and victimisation, and understood better how sentencing decisions were made; and
• the system was seen to be more supportive of victims and witnesses instead of favouring the accused.

6.34 Across all of the groups, some key commonalities also emerged. These included the view that the system is still currently perceived to be heavily weighted in favour of the accused, that more could be done to improve communications with victims and witnesses at all stages in the justice process and that there remained considerable room for improvement in the efficiencies of getting people to and through court.

Wider Lessons

6.35 Although focussed on SJR, the evaluation uncovered a number of other key messages regarding victims' and witnesses' experiences which SJR was never set up to address. One such message seems to be that victims' and witnesses' experiences are greatly affected by not knowing case outcomes. This is a long standing gap, and is a key cause of frustration which may be leading to overall negative sentiments being expressed about the fairness, transparency and credibility of the summary criminal justice system. Although provision of case outcome information emerges as a significant factor determining victims' and witnesses' overall experiences, this was not something that summary justice reforms ever sought to address.

6.36 Secondly, there remains considerable frustration for victims that their voice is not heard. This may be because they perceive that the questioning in court does not allow them to say what they wish, and is largely directed by the PF and defence. Further, while some victims expressed that they would personally like an opportunity to speak freely and be heard in court, others wanted to know that they would be sufficiently well represented by Fiscals in court, even if they themselves were absent. There appears to be an expectation among some victims that they will automatically have an opportunity to meet with Fiscals before cases go to trial and this expectation could be better managed to prevent some victims feeling that their views are not heard.

6.37 Therefore, it can be said that some of the systems and practices that were altered as a result of SJR may have improved the experience for victims and witnesses overall. However, a step change is still required to result in overall positive experiences for victims and witnesses involved in the summary (and wider) criminal justice system.

Conclusions

6.38 The reforms have sought to create a summary justice system that is fair, effective, efficient and quick and simple in delivery for all those involved, and this evaluation has uncovered generally good levels of support for the ambitions of SJR, even if there remains some doubt about whether all of the specific objectives will be achieved. The views expressed by the various stakeholders show that there remains some lack of clarity around all of the system changes, and some scope for further improvements in order to have a system that is considered to be fair, effective, efficient, quick and simple for all. The evaluation has also provided evidence of which of the reforms are directly and indirectly impacting on victims to date, and has provided valuable insight into the main issues that are important to victims, witnesses and the public with regards to the delivery of summary justice now and in the future.