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REPORT OF THE SUMMARY JUSTICE REVIEW COMMITTEE: SUMMARY OF RESPONSES TO THE WRITTEN CONSULTATION - FINAL REPORT
CHAPTER TWELVE OTHER COMMENTS
INTRODUCTION
12.1 The Report covered a wide range of issues and made a number of technical recommendations. A large number of responses restricted their comments to one or more of the main areas of the report, and were either silent on the remainder or gave their general agreement to the type of changes that the report's recommendations sought to deliver. This must be borne in mind when considering the comments set out briefly below - where only 63 respondents overall gave their opinion. Many respondents commented on only a few proposals. Those who offered a view on nearly all the Report's recommendations included Dunbartonshire Faculty of Solicitors, Fife Constabulary, The Sheriffs Principal, The Ministry of Defence Police and The Scottish Law Agents' Society. The written response form asked consultees:
"are there any other issues you would like to raise or comments you would like to make on the Committee's Report and its recommendations?"
12.2 The sections below have the same headings as the analogous chapters in the Committee's report.
ALIGNMENT OF BOUNDARIES
12.3 Dunbartonshire Faculty of Solicitors felt that the recommendations contained within the Report with regard to the alignment of boundaries were too complex, and that it would be impossible to align the boundaries as per the recommendations. They gave the example of Dumbarton where the Procurator Fiscal's office deals with Argyll & Bute Council, East Dunbartonshire Council and West Dunbartonshire Council.
12.4 The Scottish Law Agents' Society, although agreeing with these recommendations in principle, also noted the considerable difficulties they could lead to in areas such as Dunbartonshire.
OPTIONS FOR THE POLICE IN RELATION TO MINOR CASES WHICH DO NOT REQUIRE TO BE REPORTED FOR PROSECUTION
12.5 Fife Constabulary welcomed the proposal to deal with certain offences more widely by non-reporting methods. It felt that this would reduce the time spent by operational officers preparing police reports for onward submission in cases where prosecution was unlikely. It also argued that this would have a positive effect upon the workload of support staff and the Procurator Fiscal Service. However it believed that guidelines would have to be issued by the Lord Advocate as to what offences should be dealt with in this manner, and whether local variations were to be accepted. Consideration would also have to be given to whether any particular aggravation of those offences would alter the decision in principle that an offence of that nature did not merit reporting.
12.6 Several police forces favoured the introduction of a system of formal recorded police warnings that did not require an admission of guilt. This, they stated, would allow the enhancement of the existing police warning system. However consideration would have to be given as to how warnings were recorded in order to ensure that they could be easily accessed and analysed in future. In addition, a protocol would also be required to cover the retention and 'weeding' of such warnings from the records.
REPORTING TO THE PROCURATOR FISCAL
12.7 These recommendations refer to the obligations upon the police to prepare a full police report for submission to the procurator fiscal in every case. It was felt that these obligations should be reviewed, as the Committee believed that preparing full reports was not always an effective use of police time. In addition, it was recommended that steps be taken to ensure that custody cases were dealt with earlier in the day.
12.8 The Sheriffs Principal agreed with these proposals, subject to the observation that paragraphs 10.17 to 10.19 of the Report appeared to support the view that holding custody courts at 2 pm was inevitable due to the demands placed on police and fiscal resources. They therefore argued that this recommendation could only be implemented by proper resourcing of these agencies.
12.9 The Ministry of Defence Police fully supported these recommendations and stated:
"Wider use of Abbreviated reports to the COPFS would ensure more effective use of police and COPFS resources. It is also understood and accepted that individual cases must be reported in accordance with the circumstances in which they arise and therefore it would not be possible to have a "standard list of offences" where an abbreviated report would suffice. Early consultation between police and COPFS would however be instrumental in deciding the type of report to be submitted".
12.10 The Fife Constabulary response wished it to be noted that abbreviated reports had already been implemented in its area. In addition, it stated that currently custody reports are submitted to the procurator fiscal prior to 9 am, adhering to ISCJIS policy. It would therefore welcome custody cases being dealt with earlier in the court day.
BETTER COMMUNICATION BETWEEN PROCURATORS FISCAL AND POLICE AT AN EARLY STAGE
12.11 This section of the Report dealt with communication between procurators fiscal and the police and recommended that COPFS and the police try out various different local arrangements for improved informal communication, such as the location of a procurator fiscal in a main police station.
12.12 The Ministry of Defence Police thought that these recommendations were particularly relevant:
"Laid down time frames within which the police can expect an answer to requests for advice and guidance and within which the procurator fiscal can expect an answer when seeking further information about a report are essential. Currently the cases of letters and telephone calls going unanswered are legendary".
12.13 There were also concerns amongst a minority of those who commented upon this area regarding the erosion of the Fiscal's independence if these recommendations were put in place. The Scottish Law Agents' Society, although agreeing in principle with these recommendations, observed that care must be taken to ensure that the Crown and the police not only remained totally independent of each other, but that they were perceived to be so.
12.14 British Transport Police wished to remind the Committee that, in some areas, local authorities had a nominated fiscal as the first point of contact. British Transport Police had similar arrangements in Glasgow. They suggested that it might be appropriate to put similar arrangements in place in other areas where they had a strong presence, such as Edinburgh.
12.15 Fife Constabulary observed that they had various arrangements for communication with procurators fiscal. For example, regular meetings between procurators fiscal and divisional managers were held, and there were quarterly meetings between executives from both organisations.
12.16 Several responses noted that there was more scope for the location of police in fiscal offices, provided that there was a clear understanding that this was for liaison purposes only.
UNDERTAKINGS TO APPEAR IN COURT
12.17 Chapter 13 of the Report proposed that accused, if not detained in custody, should sign an undertaking to appear in a particular court on a particular date at a particular time. British Transport Police stated that it would support this recommendation provided clear guidelines were produced that would allow access to such a system via ISCJIS or a similar system.
12.18 Fife Constabulary noted that the submission of reports within tight timescales would place additional pressures upon operational officers and would also increase the workload of support staff to ensure timeous submission. Therefore, it argued that there needed to be a balance to ensure appropriate cases are dealt with quickly. In addition, it stated that should the offence be considered serious enough to warrant report by undertaking, then this procedure should take place within a police station so as to accommodate the taking of fingerprints, DNA, etc.
DEALING WITH MULTIPLE CASES AGAINST AN ACCUSED
12.19 The Report noted that prolific offenders may have several cases in progress in different courts and in such circumstances there may be delays pending the outcome of proceedings elsewhere. It recommended that multiple cases against an accused under summary procedure should be rolled-up and transferred to a single court in the jurisdiction where the accused lives and made other detailed procedural recommendations.
12.20 The Sheriffs Principal, although agreeing with these recommendations, stated that many of the problems that they were designed to tackle could be avoided if there was a statutory time limit as follows:
- The citation served and warrant to arrest obtained within four weeks of the date of the offence, or within four weeks of the date when sufficient information to justify prosecution could, with due diligence on the part of the police, have come to the knowledge of the prosecutor;
- The first diet should be within eight weeks of the date of the offence, or within eight weeks of the date when sufficient information to justify prosecution could, with due diligence on the part of the police, have come to the knowledge of the prosecutor;
- The trial should commence within twelve weeks of the date of the offence, or within twelve weeks of the date when sufficient information could, with due diligence on the part of the police, have come to the knowledge of the prosecutor; and
- All reports required prior to sentence should be available not more than four weeks after conclusion of the trial.
12.21 The minority of respondents who commented upon these recommendations were mainly concerned that if cases commenced separately then separate preparation would be required for each particular case. There was concern that if cases were conjoined then the Scottish Legal Aid Board would pay a single case fee for a number of cases which, under the present fixed fee scheme, would be impossible for the defence to cope with. Dunbartonshire Faculty of Solicitors commented:
"In particular we are concerned with paragraph 65 which seems to think that the defence and any input the defence may have can be done away with. The Committee seems to have failed to take into account a number of issues including the possibility that an accused person can be represented by different solicitors in different jurisdictions, and that criminal defence solicitors are already operating under very tight financial conditions and that without clarification from the Scottish Legal Aid Board of how these matters would be dealt with, the already stretched defence could end up being non-existent!"
12.22 Another comment made was that such a proposal would not prove efficient in practice, mainly because of the frequency with which repeat offenders move address. This, it was stated, might result in cases going back and forth between courts, which would potentially delay proceedings. In addition, if an accused were persistently offending and had complaints in progress before different courts, there may be confusion or further delay as efforts were made to bring them all together.
12.23 The Scottish Law Agents' Society foresaw a number of complications arising from these recommendations, and suggested that until specific proposals outlining how this would work in practice were available (including the legal aid position) it was difficult for them to comment fully.
PRIORITISATION OF CASES
12.24 The Sheriffs Principal welcomed these recommendations, regarding the prioritisation of cases, subject to the observation that, as noted in paragraph 18.2 of the Report, there may be a need to prioritise cases calling in a Domestic Violence Court.
INTERMEDIATE DIETS
12.25 This section of the Report set out recommendations regarding the form of future intermediate diets, the conduct of those diets and the number of intermediate diets that should be set per part court day.
12.26 The Scottish Law Agents' Society did not agree with recommendations 82-86 which, they felt, constituted undue interference with the conduct of the defence. They felt these would:
- Put the Sheriff in the position of making a judgement on evidence that had not been heard;
- Would have implications for court time; and
- Would be likely to create additional work for defence solicitors.
12.27 In addition, they did not agree with recommendation 87 - that, at an intermediate diet, the court should seek confirmation that the accused had been made aware that a sentence discount is likely to be available for a plea of guilty at that stage, but is unlikely to be available at the trial. The Society felt that if accused persons have given their solicitor adequate instructions and stated their intention to proceed to trial, this would put undue pressure on accused persons at the precise point when their defence is being prepared.
PRODUCTIONS FOR SUMMARY CASES
12.28 The majority of respondents who made their views known on this subject agreed that the recommendations proposed by the Committee could be sensibly implemented in most instances. British Transport Police, for example, felt that in many cases of theft or shoplifting it would be more appropriate that the property is immediately returned to the victim of the crime in order to reduce the inconvenience and suffering caused by theft.
EVIDENCE OBTAINED USING VIDEO TECHNOLOGY
12.29 A minority of responses to these recommendations did not agree that the court should be able to direct that video evidence is uncontroversial. They did agree, however, that evidence should be admissible if it is not in dispute. It was suggested that it might be helpful if all interviews of witnesses and accused were videotaped.
12.30 British Transport Police made the point that many local authorities, railway and other companies already provide CCTV coverage and as a result many people who operate such equipment are being cited to attend court. They felt there was little point in the 'witness' who conducted or supervised the recording being cited to court to simply lead evidence to the effect that the tape was properly recorded and was a recording of the locus of the offence. At present, they said, the vast majority of staff called as witnesses in such circumstances did not have to give evidence in court.
12.31 The Scottish Law Agents' Society recommended that all interviews with accused persons, including those where the accused is cautioned or charged, should be recorded.
TRIAL COURTS
12.32 Several respondents did not agree with the recommendation that call-overs (short adjournments to check that the accused and witnesses for scheduled trials are in court) should not be permitted after the first trial has started, as they thought that would lead to a slowing down of court business. Witnesses, they felt, would be kept in attendance for far longer than necessary and ultimately a number of cases would be adjourned . One respondent thought that in a court such as Glasgow Sheriff Court, business would simply grind to a halt without a call-over of trials being available.
12.33 Dunbartonshire Faculty of Solicitors understood that in Glasgow this recommendation had been proposed some time ago, but it had caused more difficulties than it had solved. The Scottish Law Agents' Society also mentioned that various experiments with this approach had not worked satisfactorily.
12.34 The Sheriffs Principal did not agree with the recommendation that there should be no call-over of trials, stating that a system without call-overs had been the subject of numerous experiments in the past where, they stated, it had been found to be over-rigid and counter-productive. They believed that whether to conduct a call-over or not should be a matter for the presiding sheriff in each court. They also felt that recommendation 102, which stated that the first trial should start when it is due to start and that the court should refuse all adjournments except of trials which cannot, in the interests of justice, commence at all, was " over-rigid and an interference with the discretion of the court". Sheriffs Principal also opposed recommendation 103, which stated that courts should aim to require the attendance of witnesses at court no more than an hour or so on average before they are required to give evidence. They considered that this was a matter which should be considered by Local Criminal Justice Boards.
THE ROLE OF THE BENCH IN MANAGING COURT BUSINESS
12.35 Sheriffs Principal commented that the need to 'manage' court business would be reduced if a statutory time limit on summary prosecutions was introduced. No responses specifically expressed support for the Committee's recommendations on this matter.
SOCIAL ENQUIRY REPORTS
12.36 These recommendations included:
- to remove the statutory requirement to obtain a new Social Enquiry Report (SER) if one had been produced in the previous three months;
- to provide social workers with a short summary of the evidence against an accused to assist them in preparing a SER; and
- to waive the statutory requirement to prepare a SER if it would serve no useful purpose in certain circumstances.
12.37 Of those that commented (mostly criminal justice social work organisations) the first of these recommendations was warmly endorsed.
12.38 A minority of respondents who commented upon this area believed the suggestion that social workers be provided with a short summary of the evidence against an accused, along with a copy of the complaint and details of the offender's previous convictions, to assist with the production of accurate SERs, would be unworkable in practice:
"Is the summary of evidence to be provided to the social worker to be the Fiscal's version of the evidence or the defence version of the evidence or the Judge's version of the evidence? It would be entirely inappropriate to provide the social worker with any summary of the evidence."
Dunbartonshire Faculty of Solicitors
12.39 Orkney Islands Council welcomed most of these recommendations, but was concerned about the proposal to remove the requirement to obtain a social enquiry report if that would "serve no useful purpose". The Council was worried that, if courts decided, this could include cases where they had formed a view that custody was inevitable. The Council believed that not obtaining a report in such cases would undermine both the process of justice and also the system whereby the report was a crucial foundation document in sentence planning where a custodial sentence was imposed.
COURT SITTING HOURS
12.40 The Report recommended that courts consider adjusting their hours of sitting to suit local circumstances.
12.41 A minority of comments stated that there was no reason why the court should not start at 9.30 am and dispose of miscellaneous business at that time, such as the sentencing of cases that had been adjourned for reports, production of documents, etc., by the person on the Bench who had dealt with them before. The Scottish Law Agents' Society stated:
"In Glasgow the court already regularly schedules Deferred Sentences for 9.30 am. This is to deal with walk-ons where individual Sheriffs are due to sit in another court rather than the remand court but a Deferred Sentence earmarked for that Sheriff requires to be accommodated. There appears to be no significant difficulty in getting courts up and running for 9.30 am and in our view the extra half hour could be invaluable".
HOW WILL WE KNOW WHETHER THE CHANGES WE RECOMMEND ARE WORKING?
12.42 Again, only a minority of responses commented upon Recommendations 135-140. Most agreed that further work to improve system management and performance monitoring would be welcome. The Sheriffs Principal stated:
"We do not wish to comment on these recommendations. That absence of comment arises from our over-riding opinion that nothing short of a statutory time limit together with the provision of proper resources, where necessary, will achieve the objective of creating a truly summary criminal justice system".
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