Information

Evaluation of the Reforms to Summary Criminal Legal Assistance and Disclosure

Findings of the impact of reforms to disclosure and summary criminal legal assistance introduced by the summary justice reform programme.


3 Analysis of Monitoring Data Relating to the Reforms

3.1 We have already noted that the reforms to legal aid and disclosure were part of a much wider programme of reform of summary justice in Scotland. This chapter uses monitoring data from the Scottish justice agencies to try to understand what effect, if any, the reforms may have had within this rapidly changing environment. Two main types of analysis are presented here. The first simply describes the changes in the volume and character of cases passing through the summary justice system. The relevance of this is that case type, in itself, is a key predictor of procedural outcomes (such as late guilty pleas and delay) and so changes in the nature of the courts' workload may confound any other impacts resulting from the specific reforms being examined as part of the evaluation.

3.2 The second type of analysis looks at changes in case trajectories and outcomes and, in particular, at the likelihood of early conclusion. It does so through consideration of changes in a number of key indicators over the period covered by the two sets of reforms. As the changes to legal aid and disclosure did not take place at exactly the same time, there is some scope to identify changes potentially associated with each by examining such trends.

3.3 The chapter argues that the changes to SCLA and disclosure need to be set against the backdrop of very significant change in the work of the summary courts, resulting in large part from the marked increase in the use of Direct Measures. Although there have also been important changes in the volume and type of legal assistance issued, there is little to indicate that per case remuneration following the reforms is significantly different from the position pre-reform.

3.4 It will also show that case trajectory data suggest that, following the reforms, a greater proportion of Pleading Diets have guilty pleas offered and are conclusive - in other words, that cases are now being resolved earlier. Importantly, though, the chapter will also show that this does not seem to have led to a significant change in the overall plea rate. There is also some evidence that unnecessary churn has been reduced and that cases are being resolved at earlier stages in the process, but little evidence that the average time taken to resolve cases has been reduced.

Examining the changes to court business

3.5 As the reforms to legal aid and disclosure made changes only to those criminal cases which reach the summary courts, it is important to consider the wider changes introduced by SJR which have affected the number and nature of cases resulting in court action. In particular, it is important to understand changes in the volume and make up of Sheriff Court business since this appears to have had a significant impact on aggregate indicators of how cases are handled.

3.6 The key factor here has been the extension of the range of alternatives to prosecution or Direct Measures (DMs) that can be offered to an alleged offender by the police and Procurators Fiscal. Since the introduction of these, there have been sizeable reductions both in the number of cases submitted by the police to COPFS and in the number of cases that result in court proceedings (for detail on the changes introduced to DMs by SJR and their corresponding impact on summary business see the report on the evaluation of reforms to DMs: Richards et al, 2011).

3.7 Under SJR, the administration of the District courts was transferred from the 32 individual local authorities to the Scottish Court Service with these courts re-named Justice of the Peace (JP) courts in the process. SJR also introduced a number of other changes to the functions, powers and workload of JPs. Some of these changes were direct - for example, extending the powers available to JPs. Others were indirect, such as the increased availability of DMs which resulted in more minor offences being dealt with out of court, leaving JPs to deal with cases of a different, and generally more serious, nature than prior to reform.

3.8 The 'unification' process, which involved the formal transfer of responsibility for JP courts to SCS, took place at different times in different Sheriffdoms during the period between March 2008 and February 2010. As a result, the data landscape is highly uneven. Data on the complaints registered for JP courts are only available following unification. As such, although full national data (and data for all Local Criminal Justice Boards (LCJBs)) are available for 2010-11, comparable data for the previous year is only available for seven LCJB areas and there are no earlier full year data available other than for Lothian. The possibilities for trend analysis in relation to JP court business are, therefore, limited.

Summary of changes to summary business distribution

3.9 Figure 3-A provides an overview of the proportion of summary business dealt with via the various routes discussed above and how this has changed since SJR was rolled out. The main story here is the doubling in the proportion of summary business dealt with by police DMs, from 9% in 2007/08 to 19% in 2010/11. At the same time, the proportion of business dealt with by Sheriff courts and by Fiscal DMs has decreased, each by 5 percentage points.

Figure 3‑A Distribution of summary business 2007-08 to 2010-11

Figure 3‑A Distribution of summary business 2007-08 to 2010-11

Source: CJB MIS Dashboard, Chart 2, 'Overall Business Distribution'. Note that these data are based on fiscal first markings.

Use of police and Fiscal direct measures

3.10 Table 3.1 provides a more detailed summary of each of the main elements illustrated in Figure 3-A and includes, where data was available, a longer comparison, going back to 2006/07. The first thing to note is the sizeable reduction in the overall number of SPRs (Standard Prosecution Reports) submitted. This decrease corresponds broadly with an increase in the use of police DMs, also shown in the table and as reported in the evaluation of DMs (Richards et al, 2011).

Table 3.1 Changes to key summary justice business elements, 2006-07 to 2010-11

Indicator Year Change to 2010-11*
2006-07 2007-08 2008-09 2009-10 2010-11 No. %
No. of Police DMs issued - 19331 53021 60477 56570 37239 293
No. of SPRs submitted by police to COPFS** 290742 282419 258948 247618 236307 -54435 -19
No. of cases marked Fiscal DMs 130019 126175 116761 111288 109213 -13984 -11
No. of summary complaints registered in JP courts*** - - - 50813 47118 -3695 -7
No. of summary complaints registered in Sheriff courts 106226 97456 89667 83276 78936 -27290 -26

*Change is measured between the earliest year for which data was available and 2010-11.
**A proportion of SPRs submitted will be marked by the Fiscal as 'No Proceedings - Further Action Disproportionate'. As such, the total number of SPRs will not equal the combined number of cases marked for DMs and for court.
***This is partial data; data on complaints registered in JP courts are only available from the point of unification. The first Sheriffdom (Lothian & Borders) was unified in March 2008. Prior to 2009-10 too few Sheriffdoms were unified to allow consideration of change in case numbers.

Complaints registered in JP/district and Sheriff courts

3.11 Table 3.1 also shows the total number of JP court complaints registered in 2009-10 and 2010-11 for those areas which had full data for both years. Data on the nature of offences dealt with in the JP courts are included in Figure A.3 in Appendix A. The most significant change has been the increase in the proportion of JP court business concerned with motoring offences, rising from 45% in 2007-08 to 69% in 2010-11. Over the same period, there has been a corresponding decrease in the extent to which JP court business is concerned with 'Other' offences and breach of the peace and, though to a lesser extent, drugs offences and vandalism[9].

3.12 Not surprisingly, the various changes to summary procedure have also had an impact on the number and nature of cases being dealt with in the Sheriff courts (also shown in Table 3.1). Between 2006-07 and 2010-11, the overall number of Sheriff court complaints registered fell by 26% from 106,226 to 78,936.

3.13 These reductions in the volume of Sheriff court business are also reflected at individual court level in the four case study Sheriff courts (as shown in Figure 3-B). Proportionately, Court C has recorded the largest decrease, of 28% since 2006/07, followed by Court B at 21%. Court D and Court A saw similar reductions of 16% and 17% respectively. Interviewees working in Court C commented on the proportion of business now being dealt with by DMs and that this court was different to others in that respect. This perception fits the larger decrease in Sheriff complaints in this court.

Figure 3‑B Number of Sheriff court complaints registered in selected courts 2006-07 to 2010-11

Figure 3‑B Number of Sheriff court complaints registered in selected courts 2006-07 to 2010-11

3.14 As in JP courts, there has also been a change in the types of offences considered by the Sheriff courts.[10] On the whole, Sheriff courts deal with a more varied range of offences than do JP courts - no single offence type dominates proceedings in the same way that motor vehicle offences constitute the majority of JP court business. Indeed, the key change in the type of offences considered by Sheriff courts has been the reduction in the extent to which motor vehicle offences form part of Sheriff court business - decreasing from 25% in 2008/09 to 14% in 2010/11. The removal of these offences sees crimes against public justice, drugs offences, simple assault and 'other' crimes and offences each constituting a larger part of Sheriff court business.

3.15 The analysis of case trajectories and outcomes which follows below indicates that these changes to Sheriff court business seem to have had a significant impact on the aggregate picture of how cases are handled. In particular, although a higher proportion of cases plead guilty at pleading diet (PD), Sheriff summary cases are less likely to conclude within 20 weeks post-reform than they were pre-reform (see paragraph 3.52). There is also no evidence that they have significantly fewer callings, post-reform (see paragraph 3.59).

Grants of criminal legal aid and average case payments

3.16 The large reduction in the volume of summary business being dealt with in court has been accompanied by a similarly significant shift in the level and types of legal assistance issued. The SJR monitoring data also permits consideration of changes to the nature of grants made of SCLA between 2007-08 and 2010-11. These data are summarised below.

Table 3.2 Number of criminal legal aid grants and applications, 2007-08 to 2010-11

Indicator Year Change to 2010-11
2007-08 2008-09 2009-10 2010-11 No. %
No. of grants of advice and assistance 104220 52065 27864 27545 -74471 -73%
Duty solicitor appearances (including PDSO) 36041 29017 21036 18272 -17769 -49%
No. of grants of ABWOR* 11944 32917 38951 35495 23551 197%
No. of grants of summary criminal legal aid 75582 59416 55882 50633 -24949 -33%
Total grants of ABWOR and summary criminal legal aid 87526 92333 94833 86128 -1398 -2%
% of ABWOR and summary criminal legal aid grants which are:
ABWOR 14 36 41 41 - -
Summary Criminal Legal Aid 86 64 59 59 - -
Average case costs
Advice and assistance 69 67 52 55 -14 -20%
ABWOR* 185 419 507 540 355 192%
Summary criminal legal aid 646 659 642 653 7 -1%

Source: Scottish Legal Aid Board Annual Report 2010-2011, Key Statistics 2006-2011
*ABWOR grants made for breach proceedings (where there is no summary complaint) have been removed from these figures.

3.17 Overall, and including duty solicitor payments, the number of grants of criminal legal assistance have reduced by 40% from around 233,000 in 2007-08 to around 139,000 in 2010-11. More specifically, grants of criminal advice and assistance (A&A) and SCLA have decreased by around three-quarters and one third respectively, whereas grants of ABWOR have more than doubled.

3.18 At least some of the decrease in grants of A&A reflects a transfer of many of these cases to ABWOR status or the fact that they have been subsumed into a subsequent grant of summary criminal legal aid. A key change to legal aid introduced by SJR was that where A&A is initially granted, it will be subsumed within any subsequent grant of ABWOR or summary criminal legal aid. Previously, a case may have received a grant of A&A and a further, separate, grant of ABWOR or summary criminal legal aid. In contrast, grants of ABWOR and summary criminal legal aid are mutually exclusive. Considering these two grants together, the data show that the total number of grants made changed little between 2007-08 and 2010-11. However, the proportion of the two grants has moved from 14% ABWOR and 86% summary criminal legal aid to 41% and 59% respectively. This largely reflects the increase in the proportion of cases with early guilty pleas which will be illustrated below and which qualify for the revised ABWOR case disposal fee.

3.19 Also shown in the table are the changes to average case costs (to SLAB) for each of the three main types of SCLA. As the data show, average costs for summary criminal legal aid cases have fluctuated a little during the period considered but have remained between £640 and £660. Average costs for A&A have decreased by around £14 whereas the average costs for ABWOR have more than doubled from £234 in 2007-08 to £499 in 2010-11.

3.20 So there is little to indicate, from these data, that per case remuneration following the reforms is significantly different from the position pre-reform. Despite this, as the discussion in Chapter 4 will show, many defence solicitors nevertheless believe that the reforms have placed restrictions on them financially and that these restrictions are impacting on solicitor behaviour and the quality of representation. The data on the distribution of summary business, shown in Table 3.1, indicates that fewer cases are now reaching court, suggesting a smaller pool of potential business available for defence solicitors. This suggestion is supported, to some extent, by the economic analysis discussed in paragraphs 3.74 to 3.79, which shows that there has been a reduction in spending on legal aid since the reforms, largely as a result of the reduction in the number of court cases. It may be this general reduction in the level of business, rather than changes to individual case costs, which are influencing such perceptions amongst defence solicitors.

Case trajectories and outcomes

3.21 The second stage of analysis of monitoring data is mostly concerned with addressing the contribution of SCLA and disclosure reforms to the achievement of the overall aim of SJR and the following more specific outcomes and objectives:

  • Cases being dealt with and resolved at the earliest possible stage in proceedings
  • More effective court hearings at pleading and intermediate diet (avoiding unnecessary delay).

3.22 Most of the KPI data relevant to the analysis of SCLA and disclosure is available as monthly counts from April 2006. To consider the impact of the changes to SCLA and disclosure on case trajectories and diet outcomes, a series of average monthly plea rates - based on the proportion of diets held each month which resulted in a guilty plea - was calculated for each of the KPIs used. These average rates correspond to the following periods:

  • The period prior to the introduction of the disclosure reforms (April 2006 to September 2007);
  • The period between the introduction of the disclosure reforms and the introduction of the legal aid reforms (October 2007 to June 2008);
  • The first year after the legal aid reforms were introduced (July 2008 to June 2009);
  • The second year after the legal aid reforms were introduced (July 2009 to June 2010);
  • The first three quarters of the third year after the legal aid reforms were introduced (July 2010 to March 2011).

3.23 By considering the data in this manner we can tentatively examine: first, the impact of changes to disclosure (prior to the introduction of the legal aid reforms); second, the impact of changes to disclosure in combination with subsequent changes to legal aid; and third, whether any change which appears to have resulted from the reforms has been sustained and whether outcomes and trajectories have stayed the same post-reform or continued to change.

3.24 As data were not available from JP/District courts prior to unification, it is not possible to compare pre- and post-reform rates on these indicators.

Summary of change in diet outcomes over time

3.25 An overview of the changes to diet outcomes for Sheriff summary cases between April 2006 and March 2011 is provided in Table 3.3. The table displays the average proportion of all Sheriff court diets at which a guilty plea was made, or the diet was 'conclusive' - that is, the case did not proceed beyond that diet - in each of the key analytical periods.[11]

Table 3.3 Sheriff court diets with guilty pleas or other conclusive outcome during key analytical periods from April 2006 to March 2011 (%)

Stage and outcome Average % cases with outcome during period
Pre-reform Disclosure reform only Disclosure plus Legal Aid reform - Year 1 Disclosure plus Legal Aid reform - Year 2 Disclosure plus Legal Aid reform - Year 3 (first 9 months only)
Apr 06 to Sep 07 Oct 07 to Jun 08 Jul 08 to Jun 09 Jul 09 to Jun 10 Jul 10 to Mar 11
% of PDs with guilty plea 22 24 35 33 31
% of IDs with guilty plea 19 19 15 14 13
% of TDs with guilty plea 28 29 25 23 22
% of conclusive PDs 24 26 33 35 33
% of conclusive IDs 27 26 21 19 19
% of conclusive TDs 62 63 57 57 57

Note: *PD = Pleading Diet, ID = Intermediate Diet, TD = Trial Diet.

Column percentages will not equal 100 as the figures refer to the proportion of each diet type with a guilty plea and not the stage a guilty plea was offered for all cases.

3.26 The data in Table 3.3 illustrate a number of notable trends. First, there has been an increase in the proportion of PDs at which a guilty plea is made. These increases have been mirrored by decreases, in particular, in guilty pleas at intermediate diet (ID) and at trial diet (TD). Although these data refer to diets, rather than cases, the implication is that, as a greater proportion of PDs have guilty pleas offered and are conclusive following the reforms, cases are now being resolved earlier. Further discussion of these trends follows below.

There is a limitation to the data in Table 3.3 in that each row refers only to the outcomes for diets at each individual stage. It therefore does not present a picture of how the overall spread of guilty pleas given across PDs, IDs and TDs has changed following the reforms, though the data does indicate that a higher proportion of guilty pleas are now being made earlier. An alternative analysis was undertaken by SLAB to explore this overall change. The SLAB analysis calculated the proportion of all guilty pleas in the pre- and post- reform periods which occurred at PD, ID and TD. The results are shown in Table 3.4. The results show that, nationally, the proportion of all guilty pleas that occur at PD (as opposed to at a later stage) increased from 37% in the initial pre-reform period to 52% in the latest post-reform period. The proportion of guilty pleas that occur at ID and TD has fallen, though more so at ID. The main benefit of the increase in guilty pleas at PD therefore, has been a reduction in pleas at ID, rather than at trial. This is similarly suggested by the greater change in conclusive IDs than TDs in Table 3.3.

Whilst the individual numbers in the two tables are different, the trends are almost identical. In other words, they each represent an approximately 40% increase in guilty pleas at pleading diet.

Table 3.4 Percentage of all guilty pleas which occurred at each diet stage during key analytical periods from April 2006 to March 2011

Stage % of guilty pleas in period which occurred at corresponding diet stage
Pre-reform Disclosure reform only Disclosure plus Legal Aid reform - Year 1 Disclosure plus Legal Aid reform - Year 2 Disclosure plus Legal Aid reform - Year 3 (first 9 months only)
Apr 06 to Sep 07 Oct 07 to Jun 08 Jul 08 to Jun 09 Jul 09 to Jun 10 Jul 10 to Mar 11
Pleading Diet 37 36 53 53 52
Intermediate Diet 36 35 25 24 24
Trial Diet 27 29 22 23 24

Note: *PD = Pleading Diet, ID = Intermediate Diet, TD = Trial Diet.

Pleading diets

3.27 As noted above, the data in Table 3.3 indicates an overall increase in the proportion of conclusive PDs. A slight increase, from 24% to 26%, initially followed the introduction of the disclosure reforms with a more substantial jump to 33% in the year following the legal aid reforms. This rate continued to increase over the following year but dipped again in the most recent data.

3.28 The vast majority of conclusive PDs take the form of a guilty plea. Aggregate data for all Sheriff courts indicate that following the reforms to disclosure there was a small increase in the proportion of PDs with a guilty plea, rising from 22% to 24%. This increased further in the year following the changes to legal aid, when both reforms were fully rolled-out, with the rate rising to 35%.

3.29 Although the post-reform rate remains above the pre-reform rate, the initial 'high' of 35% has not been sustained, with national rates of PDs with a guilty plea in subsequent years decreasing to 33% and 31%.

3.30 Pre-reform, the likelihood of a guilty plea at PD varied by court - it was most likely in Courts C and D (at 26% of PDs in both cases) and least likely in Court A (11% of PDs). The initial increase to the rates following the changes to disclosure occurred in 3 out of the 4 courts. However, each court saw a rise in guilty plea rates at PD in the year after the changes to SCLA, with some increases larger than others. In Court C (which had an initially high rate) and Court A (which had an initially low rate) for example, the increase was of 13 and 12 percentage points respectively. In Court B there was a increase of 7 percentage points, in Court D an increase of just 3 percentage points. Interviewees in Court C attributed at least some of this change to an agreed pro-active approach amongst Sheriffs where the overarching aims of SJR were recognised, unnecessary delay was not tolerated and sentence discounting was prominent. The more muted changes in Court D were, according to some interviewees in that court, attributed to a resistance to the reforms amongst some practitioners stemming from a belief that the reforms did not support proper investigation of summary cases.

3.31 It is notable that following the initial increase in guilty plea rates, there has been a subsequent gradual decrease in these rates over time. Indeed, the decrease in rates in Court D means that in the most recent period, the guilty plea rate has dropped back to pre-reform levels. These trends suggest that the initial impact of the reforms on early guilty pleas is receding.

Figure 3‑C % of Sheriff Court cases with guilty plea at PD over time, by court

Figure 3‑C % of Sheriff Court cases with guilty plea at PD over time, by court

3.32 Between April 2009 and March 2011, 68% of SPRs submitted to COPFS were cited, 23% were placed in custody and 9% were on undertaking. Pre-reform figures are not available. However, this split has not changed over the different post-reform periods for which data is available[12]. Some differences are apparent in the rate of guilty pleas by appearance type as shown in Table 3.4. Whilst in the pre-reform period, custody cases were least likely to have a guilty plea at PD, following the reforms these cases were most likely to have guilty pleas offered. Indeed, by June 2010 the guilty plea rate for custody cases of 44% was almost double that of the pre-reform rate of 23%. Whilst rates for cited and undertaking cases also increased, neither saw a change as significant as that observed for custody cases. The qualitative data, which will be discussed in Chapters 4, 5 and 6, suggests this difference is shaped not only by the reforms to disclosure and SCLA but also by the impact of sentence discounting and the Crown's position on bail in custody cases.

Table 3.5 % of Sheriff court PDs which had a guilty plea over time by type of appearance

% of PDs of particular appearance type with guilty plea in period
Pre-reform (Apr 08 - Jun 08) Jul 08 to Jun 09 Jul 09 to Jun 10 Jul 10 to Mar 11
Cited 28 33 37 38
Undertaking 28 36 34 30
Custody 23 40 44 43

3.33 Alongside the increase in guilty pleas, another notable shift in pleading diet outcomes has been an increase in continuations without plea (CWP). In the pre-reform period, 10% of PDs were continued without plea compared with 22% in the most recent post-reform period. Some increase in CWPs was expected following SJR; these permit defence solicitors more time to discuss the disclosable summary with their client potentially securing an appropriate guilty plea and preventing an unnecessary not guilty plea with the case then moving to ID and the additional work this sets in motion.

Intermediate diets

3.34 A key objective of the reforms to disclosure post-PD is to permit more 'effective' IDs. Effective IDs may be considered to be those which are 'terminal' - allowing the TD to be cancelled - or which do not affect the existing date for the TD. Thus, an increase in 'terminal' outcomes at ID, and a decrease in continuations may suggest greater impact of the reforms on practice and procedure.

3.35 Table 3.3 showed that, nationally, there has been a decrease in the proportion of IDs which are conclusive. This is expected given the increase in cases concluding earlier as noted above. Pre-reform 27% of all Sheriff court IDs were conclusive, this dropped to 21% between July 2008 and June 2009.

3.36 As might be expected, a large part of the decrease in the proportion of IDs which are conclusive is explained by a reduction in the proportion where a guilty plea is offered, as shown in Figure 3‑D - such cases now being more likely to be disposed of at PD. Overall, the rate of IDs with a guilty plea has decreased from 19% in the pre-reform period, to 13% in the most recent post-reform period. This trend is seen in each of the case study courts, however for some the difference is more dramatic. In Court B, for example, there has been a decrease of 13 percentage points from 21% pre-reform to just 8% in the most recent post-reform period. A similarly large decrease of 9 percentage points has been recorded in Court D. Despite these decreases, neither Court B nor Court D in particular have seen corresponding large increases in the proportion of conclusive PDs suggesting that these IDs are being continued to further IDs or to a trial diet. It is notable that Court D also recorded the smallest change in early guilty pleas. It is worth re-stating that these data describe the outcomes of diets, not cases viewed from start to finish. As such, it is possible that the proportion of IDs which result in a guilty plea may change without any corresponding change in the proportion of PDs with a guilty plea because both sets of data refer to different groups of cases.

Figure 3‑D % of Sheriff Court IDs with a guilty plea over time, by court

Figure 3‑D % of Sheriff Court IDs with a guilty plea over time, by court

3.37 The offer and acceptance of a guilty plea is only one of a number of possible outcomes at ID which are of interest to this research. Changes to the post-pleading diet disclosure process introduced around the same time as the reforms were designed to reduce delay in the later stage of summary cases and decrease 'churn'. A measure of success flowing from better preparation afforded by disclosure reforms would be a decrease in the proportion of IDs continued to another ID date or a revised TD date and conversely an increase in the proportion of first called IDs proceeding without further delay to the original TD. Analysis of these data, at a national level - for all Sheriff Courts - are included in Figure 3-E.

Figure 3‑E % of all Sheriff Court IDs which were continued over time

Figure 3‑E % of all Sheriff Court IDs which were continued over time

3.38 There are a number of points to note about the graph. First, there has been a slight increase in the proportion of IDs which are continued to the original TD suggesting that a higher proportion of cases are better prepared at ID and are therefore able to proceed to trial as originally planned. Second, there is also an increase in the proportion of IDs continued to a further ID with an unchanged TD. Finally, the proportion of IDs continued to a new ID and TD has not changed. The last two points suggest that since the changes to post-PD disclosure were introduced, whilst there is an increase in the likelihood of an ID being continued, this continuation is not any more likely to affect the original trial date than previously. This is likely to minimise the overall duration of the case from end to end. It may be that issues which are raised at ID are now more likely to be addressed more quickly than previously thus allowing them to be dealt with by a quick further ID rather than having to allow considerable time and thus affecting the trial date.

3.39 Interviewees in the case study research suggested a number of issues which may be contributing to these trends:

  • The point at which full disclosure actually takes place was mentioned. If disclosure were made using the pen drive system[13], and the drive was only handed over at the ID, the solicitor would have no opportunity to look at contents in court or take advantage of the client being there to take instructions.
  • The variation in the accessibility and quality of communication between Fiscals and defence solicitors also had a potential impact. If the defence has had an opportunity to consult the Fiscal beforehand - for example, via a pre-ID surgery, which operates in some courts but not in others - any potential issues likely to occur at the diet may have already been discussed.
  • The extent of accurate information available to Fiscals as to the identity of the defence solicitor acting in the case. One area was experimenting with letters of representation that were to be filled out at ID and pinned to the PF's file.

3.40 It is also likely that local diet scheduling will affect these data. In some areas the ID is scheduled two weeks before the trial whereas in others it is scheduled four weeks before. The former arrangement maximises the time between PD and ID, but reduces the ID to TD period. Thus it may be less likely that cases are continued to a further ID or new ID because there has been more initial preparation time in the first place. However, when a continuation is required, it affects the trial date because the ID is so close to the original TD there is insufficient time to schedule a further ID and a new and later TD has to be scheduled. In the latter arrangement, cases may be less likely to be organised at ID because the period between PD and ID is shorter, but when a continuation is necessary it is possible to schedule a further ID before the trial. Thus an ID two weeks before the trial will equal higher 'continued to new TD' rates and an ID four weeks before will equal higher 'continued to further ID' rates. Whilst programming TDs further away from IDs may result in fewer TDs having to be re-scheduled, it will potentially increase the overall average duration of cases. Court programmes are managed individually by the Sheriff Clerk in each court and there are unique differences in the way each Sheriff Clerk will manage the business at each court. As such, there are many differences between courts and the way business is programmed making this potential explanation difficult to investigate further.

3.41 Changes to ID outcomes will also likely have been affected by the shift in the volume and nature of court business discussed above. With a larger proportion of its workload now made up of more serious crimes and offences which may be more likely to cause complications - because they may be harder to prove, are likely to have more witnesses and thus a greater amount of material for disclosure and more difficulties with court scheduling - it is perhaps to be expected that Sheriff court cases will have, on average, a higher likelihood of continuation and delay. The less serious and thus potentially quicker and less problematic cases are now largely being dealt with in the JP courts.

Trial diets

3.42 The data in Table 3.3 suggests that although many PDs and IDs are not conclusive and thus cases do go onto a TD, more early diets are now conclusive than had been the case pre-reform.

3.43 Overall, TDs were less likely to be conclusive in the most recent period than they were pre-reform. Pre-reform, 62% of all Sheriff court TDs were conclusive compared with an average of 57% between July 2010 and March 2011. The national data suggest little change to the proportion of conclusive TDs following the disclosure reforms but there is a more notable drop in the period following the legal aid changes. This lower rate has been sustained since then.

3.44 Figure 3-F illustrates an overall reduction in the proportion of TDs which result in a guilty plea. Nationally, the figure drops from 28% pre-reform to 22% in the most recent quarter. This broad trend is largely mirrored in the individual courts with little variation between courts in the average figures for each time period. The only exception is in Court D which, although recording a very slight drop in the most recent data (down to 21% from a pre-reform rate of 22%), the rate followed a significantly different trend to the other courts, dropping initially then rising before dropping again. There is little in the qualitative data to explain this but we suggest it may be a system adjustment to the reform or some short-lived local circumstances.

Figure 3‑F % of Sheriff Court cases with guilty plea at TD over time, by court

Figure 3‑F % of Sheriff Court cases with guilty plea at TD over time, by court

3.45 A key objective of the reforms was to reduce delay and churn by ensuring that cases were not unnecessarily drawn out - for example, going all the way to a TD but resulting in no trial. The data suggests that there has indeed been some reduction in unnecessary churn and that cases are being resolved at earlier stages in the process.

3.46 A range of data, shown in Table 3.5, allows exploration of change in other outcomes at TD. The overall proportion of TDs which result in a guilty plea, as shown in Figure 3-F, is obtained by summing the first two rows of the table. As the data show, the breakdown of guilty pleas indicates that the reduction has occurred through a decrease in the proportion of cases at TD where the guilty plea results in the TD being adjourned to a sentencing diet - from 17% pre-reform to 11% in the most recent period.

3.47 Otherwise there has been little change to TD outcomes. In particular however, in terms of reducing delay, it is notable that a similar proportion of TDs pre- and post-reform result in either adjournment to a further TD because a witness has not appeared or the issue of an apprehension warrant being granted because the accused has not appeared. Indeed, TDs are slightly more likely to be adjourned now than they were pre-reform. However, this may again be explained, at least in part, by the larger proportion of Sheriff court business which consists of complex cases involving multiple accused and witness and multiple charges when compared to the pre-reform period.

Table 3.6 Average % of all Sheriff Court trial diets with specific outcomes over time

Trial diet outcome Average % of cases with outcome in period
Apr 06 to Sep 07 Oct 07 to Jun 08 Jul 08 to Jun 09 Jul 09 to Jun 10 Jul 10 to Mar 11
Guilty plea, no evidence led, disposed at trial diet 11 11 11 11 10
Guilty plea, no evidence led, adjourned to sentence 17 18 13 12 11
No evidence led, adjourned to further trial diet 24 21 25 26 26
Adjourned Crown motion, witness not cited/absent 8 10 12 13 11
Warrant to apprehend issued 6 5 5 4 5
Not Guilty plea accepted 4 4 3 3 3
Not Called/ Deserted 14 14 13 12 15
Evidence led, adjourned to further trial diet 2 2 3 3 3
Evidence led, adjourned to sentence 3 3 3 3 3
Other 11 12 11 13 13

Overall changes in guilty plea rate

3.48 The analysis above has provided a detailed insight into the change in diet outcomes, in particular guilty plea rates, at each diet. The changes to SCLA and disclosure introduced by SJR were aimed at encouraging guilty pleas earlier in the process rather than increasing guilty pleas per se. However, it is difficult, from consideration of each individual stage, to obtain a sense of whether guilty pleas are on the whole more likely following the reforms or whether they simply now occur earlier. Because of the way the data on the rates at each individual stage are compiled, the rates cannot simply be added together to obtain the overall rate. However, it is possible to use these data to estimate the overall guilty plea rate both pre- and post-reform.[14]

3.49 Our estimates suggest that in the pre-reform period considered, 61% of all cases had a guilty plea offered at some stage in the proceedings. In the post-reform period this figure was almost identical at 62%. Whilst it must be borne in mind that these figures are based on estimates, these findings provide a tentative indication that the reforms have indeed encouraged earlier guilty pleas while not affecting the overall proportion of such pleas.

Case duration

3.50 There are a range of additional measures with which the speed of case resolution can be assessed. These measures allow consideration of performance against timescale targets and the average time for various stages of the process.

Percent of cases disposed of within 20 weeks

3.51 The data in Figure 3-G show, nationally for all Sheriff courts and for each of the case study courts, the average proportion of summary cases which were disposed of within 20 weeks in each period. Overall, Sheriff summary cases are less likely to be disposed of within 20 weeks now than they were prior to the reforms to disclosure and SCLA. An average of 82% of cases were disposed of within 20 weeks in the pre-reform period compared with 71% in the most recent post-reform period. It would be simplistic to attribute this to a 'failure' of the reforms to SCLA and disclosure as such since, as we have repeatedly indicated, these changes were just part of a complex programme of interacting measures introduced at broadly the same time, including a significant change to the nature of Sheriff court business. Furthermore, the analysis in the previous section has suggested that cases are being resolved earlier in the court process following the reforms, despite that process overall now taking longer than 20 weeks for a greater proportion of cases.

Figure 3‑G % of Sheriff Court cases disposed of within 20 weeks, by court and over time

Figure 3‑G % of Sheriff Court cases disposed of within 20 weeks, by court and over time

3.52 Trends for each of the individual courts vary. Only Court D follows the pattern of the national data with a gradual decline over the period considered. Both Court A and Court C saw an initial rise after the changes to disclosure and summary criminal legal assistance followed by a decline. Despite this decline, the most recent rate for each is slightly higher than the pre-reform rate. In Court B, the rate saw a steady decline dropping from 85% pre-reform to 74% between July 2009 and June 2010 before it rose back to 84% in the most recent period.

Performance against key disclosure-related timescales

3.53 The period between PD and ID is when full disclosure occurs - where the Fiscal will request full witness statements from the police to disclose to the defence. Although the reforms to disclosure did not specifically change anything about this stage of the process, the System Model underpinning the reform of summary justice contained targets regarding appropriate timescales for Fiscals to notify the police of the need for statements (within 3 days of the PD) and the provision of the statements by the police to Fiscals (within 28 days of the accused pleading not guilty). Performance against these timescales has been monitored; a summary of the extent to which the timescale is being met nationally, and by the case study courts, is shown below.

Table 3.7 Proportion of cases in which PF notifies the police of need for full statements within 3 days of PD, by court

Annual totals Jul 08 to Jun 09 Jul 09 to Jun 10 Jul 10 to Mar 11
National 66% 74% 85%
Sheriff Court
Court A 64% 73% 82%
Court B 80% 84% 79%
Court C 69% 93% 90%
Court D 96% 99% 100%

3.54 Nationally, the likelihood of this timescale being met is considerably higher now than it was in the early post-reform period. Between July 2008 and June 2009, the timescale was met in 66% of cases - by March 2011 this had risen to 85% of cases. The increase was particularly significant in Court A and Court C, who each saw the rate rise by around 20 percentage points. Court D had a very high rate of cases meeting the timescale initially and this has been improved slightly. In Court B, on the other hand, which also had a high rate of cases meeting the timescale initially there has been no notable change to this figure. These variations will most likely result from variations in the related practices of different Area PF offices and different staffing levels.

3.55 Between July 2010 and March 2011, in 87% of relevant summary cases the police provided full statements within 28 days (see Table 3.7). This is an improvement of 10 percentage points from the figure for July 2008 to June 2009. Increases were also generally recorded for each of the case study courts. Court B, in particular, saw a significant improvement from 71% to 87%, although it had the lowest rate of any of the case study courts in the most recent period. Thus both timescales are met in a higher proportion of cases now than in previous years.

Table 3.8 Proportion of cases in which police provide full statements within 28 days of PD, by court

Jul 08 to Jun 09 Jul 09 to Jun 10 Jul 10 to Mar 11
National 77% 80% 87%
Sheriff Court
Court A 77% 86% 92%
Court B 71% 81% 87%
Court C 86% 90% 92%
Court D 90% 92% 94%

3.56 Data on the average duration of the next stage of the process - from ID to verdict - are shown in Figure 3-H. As the graph shows, the average time between ID and verdict has increased in Sheriff summary cases. Nationally, the average figure for the pre-reform period was 72 days; this had slightly increased to 79 days by June 2010 and has remained at that figure for the most recent period. This corresponds with the slightly increased likelihood of IDs and TDs being adjourned as shown in Figure 3-E and Table 3.5 above.

Figure 3‑H Average number of days between Intermediate Diet and Verdict in Sheriff summary cases, by court

Figure 3‑H Average number of days between Intermediate Diet and Verdict in Sheriff summary cases, by court

3.57 Contrary to the national trend, each of the individual case study courts has actually recorded a shortening of this stage, particularly Court A and Court C where the average length has reduced by around 15 days between the earliest and latest periods shown. However, the decrease does appear to have 'bottomed out' with both courts showing slight increases in the duration of this stage since June 2009.

Average number of diets per case

3.58 The final measure of case timing is a count of the average number of diets per case. The data are shown by court and time period in the table below. There has been little notable change to the average number of diets per case following the reforms.

Table 3.9 Average number of diets per case, by court

Apr 06 to Sep 07 Oct 07 to Jun 08 Jul 08 to Jun 09 Jul 09 to Jun 10 Jul 10 to Mar 11
Sheriff Court
National 3.3 3.2 3.0 3.0 3.1
Court A 3.7 4.0 3.4 3.4 3.6
Court B 3.3 3.3 3.3 3.5 3.4
Court C 3.3 3.0 2.7 2.8 2.9
Court D 3.2 3.2 2.8 3.1 3.2

3.59 Thus as with the data on the proportion of cases disposed of within 20 weeks, this data suggests little or no improvement to the time taken to dispose of Sheriff summary cases despite an increase in early guilty pleas. In fact, more detailed data extracted on a sample of 213 Sheriff summary cases[15] indicates that, whilst a guilty plea may be accepted at pleading stage, these cases may still be called to court several times before the case is fully concluded. On average, those cases which concluded at PD had been called in court 2.8 times. Around 40% were disposed of after a single calling, and a further 22% in two callings. The remaining 38% of cases required 3 or more callings before concluding.

3.60 Again, it is perhaps unsurprising that there has been little or no improvement to the duration of Sheriff court cases given the significant shift in the nature of Sheriff court business. However, these data also reflect an increase in the rate of pleading diets which are continued without plea. Analysis of monitoring data indicates that in the immediate pre-reform period, just 10% of PDs were continued without plea. In contrast, in the most recent pre-reform period, 22% of PDs had the same outcome. This change is not unexpected as under the objectives of SJR, further pleading diets leading to resolution at pleading stage is perhaps preferable to an initial not guilty plea and subsequent guilty plea at ID or TD, after the necessary - but often resource intensive - steps have been taken to fulfil the full disclosure requirements which follow.

The estimated economic impact of the reforms

3.61 We have assessed the wider economic impact of the reforms using decision modelling[16]. This analysis calculated the average costs of a case being processed through the Sheriff court from PD through to case disposal both pre-reform and post-reform. The analysis incorporated the court and prosecution costs associated with PDs, IDs, TDs and sentencing diets. The costs of different disposals (e.g. community and custodial sentences) and expenditure on criminal legal assistance have also been included. However, costs related to the issue and execution of warrants for non-appearance - and any related custody - and with the attendance of police witnesses at trial diets were not included.

3.62 A summary of the estimated pre- and post-reform cost and the estimated savings incurred by these elements of the system since the introduction of the summary criminal legal assistance and disclosure reforms are summarised below.

Table 3.10 Court, prosecution and legal aid costs for Sheriff court cases pre and post-reform

Pre-reform Post-reform Difference post-reform to pre-reform
2007/08 2009/10
Average cost per person: pleading diet to sentencing £3047 £2642 -£405
Estimated system cost excluding cost of disposal £1364 £1366 +£2
Estimated system cost excluding cost of disposal and defence agents £751 £753 +£2
Total no. of cases registered in the Sheriff court 97456 83276 -14,180
Estimated system cost: pleading diet to sentencing £297m £220m -£77m
Criminal legal assistance expenditure £96.3m £68.8m -£27.5m

3.63 The model run using pre-reform data results in an estimated cost per person going through the system of £3,047. Using data for the post-reform period the expected cost per person is £2,642. This suggests savings (for the events modelled) of £405 (13%) on the pre-reform situation. If this average saving is applied to the 83,276 Sheriff summary cases processed in 2009/10, this suggests a total saving of £33 million when compared with the cost of processing that number of cases through the pre-reform system.

3.64 The vast majority of the per case saving is generated via a change to sentencing practice between the pre- and post-reform periods. A case which results in a custodial sentence will, on average, cost more to administer than a case which results in a financial penalty. Post-reform, there are proportionally fewer custodial disposals (dropping from around 16% of disposals pre-reform to 12% of disposals post-reform) and proportionally more financial penalties (increasing from around 47% of disposals pre-reform to 56% of disposals post-reform). Fewer expensive disposals and more cheaper disposals brings the overall cost per case down. If the costs associated with these disposals are excluded, the estimated cost per person going through the Sheriff system is almost identical pre- and post-reform at £1364 and £1366 respectively. The savings generated via the increased rate of early guilty pleas are offset by the corresponding increase in adjournments at all diet stages post-reform with therefore little overall change in the number of diets as noted above.

In 2007/8 the total expenditure on summary criminal legal assistance - that is on A&A, ABWOR and SCLA - for cases going through the Sheriff Courts was £58.2 million[17]. In 2009/10 the equivalent figure was £47.2 million, a decrease of £11 million. As noted earlier, there is little evidence to suggest that typical per case costs for summary legal assistance have reduced since the reforms. As such, these savings appear to have arisen largely from the reduced volume of cases now reaching court. However, some of the savings will also have occurred from the increase in the proportion of cases receiving ABWOR payments and the corresponding decrease in duty solicitor, advice and assistance, and summary criminal legal aid payments. This shift, at least in part, is attributable to the increase in earlier case disposal following the reforms.

Contact

Email: Debbie Headrick

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