6 The influence of other factors on achieving the aims of the reforms to SCLA and disclosure
6.1 Analysis of the impact of the changes to SCLA and disclosure on case outcomes, case preparation, pleading advice and the effectiveness of court diets in the previous chapters has shown that separating out the independent effects of the changes to SCLA and the changes to disclosure is difficult. Indeed, many of those interviewed saw the changes which had occurred as attributable to a combined effect of both sets of reforms. However, in the course of the qualitative research, interviewees also referred to a range of other factors already present in the summary justice system, or changes which occurred alongside those to SCLA and disclosure, which they believed were preventing or facilitating the achievement of the specific objectives of the reforms to SCLA and disclosure or the wider aims of summary justice reform.
6.2 Some of these factors and changes have already been discussed. In particular, Chapter 3 highlighted the significant change in the distribution of summary justice business introduced by the expansion of DMs and a wider set of powers for JP courts. This chapter summarises the other main contributing factors which were mentioned, by a range of interviewees, in the course of the research.
Perceptions of how other factors affect early case preparation
6.3 A number of other issues were seen by interviewees as influencing early case preparation, including the nature and level of contact between defence solicitors and their clients.
6.4 For example, one view held by a Fiscal was that because of the reduction in summary business - a belief evidenced by the data detailing the decrease in summary court cases in Chapter 3 - many legal firms are having to maximise their income by taking on more cases, thus spreading themselves more thinly and struggling to find time to deal with each case properly. A similar view suggested a move back to 'the bad old days of poaching', where legal firms attempted to take on clients from other firms.
6.5 At face value, this is a confusing picture: if there is less summary business but a similar number of defence solicitors it appears illogical that solicitors would be busier. However, one defence solicitor suggested that the downturn in available business had resulted in firms reducing the number of solicitors undertaking criminal work, meaning that those who remained were busier than previously was the case.
…the main problem we've had is the volume of work. [Interviewer: In what sense?]:
It's down because of the direct measures…[Interviewer: So what impact does that then have on how you conduct your business?]
It means that we are an awful lot busier. It means that we are busy, very busy usually between about ten o'clock and twelve o'clock, or one o'clock everyday because there are not many other people here doing court…criminal court stuff at that time so we're having to be in a lot of places at once [DSF 32]
6.6 As noted in Chapter 4, accused interviewees sometimes felt that their solicitor was very busy and that this impacted adversely on the service received - for example, they may have to explain their case to several solicitors and/or be represented by a replacement solicitor at court. In the latter situation, the replacement solicitor - being less familiar with the case - may be unclear about the facts and therefore fail to properly represent the client, and/or ask for an adjournment on behalf of the client's usual lawyer, delaying the process even further:
Sometimes it's annoying because you have to repeat... you have to basically repeat some of the stuff that you've already told the other lawyer... or you realise the other lawyer has not... got it exactly right what you said the first time, so you've... you correct him before he goes into court (AF1).
I went to speak to my solicitor at the time but the guy that was supposed to be representing me, he wasn't there and he was called away, so it was his partner… [who] didn't really explain to me properly what was happening, you were just left guessing most of the time… I would just like to have got it done and dusted straight away (AF12).
6.7 Arguably, these perspectives simply reflect general issues around how solicitors deliver their service rather than a situation which has been created by summary justice reform. However, SJR was intended to improve case handling through early, effective preparation and increase perceptions of fairness in the summary system. Furthermore, the changes to SCLA were specifically aimed at supporting the availability and delivery of sufficient criminal defence services of an appropriate quality. These perceptions amongst accused interviewees would suggest that, for some, these aims and outcomes have not been achieved.
Impact of other factors on plea decision-making
6.8 Previous research carried out in Scotland (Samuel 1996; Goriely et al 2001; Stephen and Tata 2006) highlighted a number of influencing factors which can act to influence the likelihood of an early plea: the time constraints which defence solicitors and depute Fiscals work under, especially at custody diets; the influence of remand (accused persons may prioritise an immediate release from custody and may accordingly plead guilty to avoid being remanded); the accused person's attitude to risk of conviction; and views about individual Sheriffs (some are viewed as being more punitive than others and some are known to be more proactive in managing cases). These same drivers of pleading decisions have also been highlighted by interviewees in this study.
6.9 Sentence discounting was perceived by a number of interviewees (Fiscals, defence solicitors as well as some accused) as having had a considerable influence on early pleas. However, some solicitors and Sheriffs felt that this had limited impact for summary cases, not being a huge influence for the 'average criminal' [DST 1201]. Where discounts were used, a number of Fiscals commented that these were not applied as strictly by some Sheriffs, who - it was reported - have still granted discounts to those pleading on the morning of their trial. In addition, one perspective amongst defence solicitors was whether discounts were as real as they seemed. For example:
I am far from convinced that there is such a thing as a discount. For example, the average fine for driving without insurance in [name] court has always been £300 and now the fines are £300 and now the only difference is that the notional starting point is £360. So I'm not at all convinced that for summary work that it even exists. They take a higher notional starting point [DST 1568].
6.10 Nevertheless, one view amongst accused interviewees was that pleading not guilty and being found guilty might extend the level of sentence:
I think if I pled not guilty the whole way, I might have maybe got longer in prison [AF12].
6.11 Interviews with both practitioners and accused persons suggested that some accused will plead guilty from the outset if bail is opposed, in order to avoid being remanded in custody. For accused respondents, getting a case resolved quickly appeared to be related more to outcomes (e.g., avoiding remand), whereas the 'quick and simple' philosophy behind the summary justice reforms relates more to process. One perspective was that if they had previous convictions, being remanded would be inevitable, and therefore they would be better off pleading guilty from the outset. This was one reason why the majority suggested that pleading guilty (irrespective of whether they perceived themselves guilty) reduced the overall length of the disposal and got it resolved speedily:
'It's not that good sitting on remand not knowing when you're going to get out [AF10].
6.12 The analysis of guilty plea rates and case trajectories in Chapter 3, particularly that illustrated by Figures 3-F, 3-G and 3-H appear to suggest that from the initial sharp increase in 2008-9 there has been a slight decline in the rates of disposals at the PD and a levelling off from the earlier sharp decline in the rates of disposal at ID. This is slightly puzzling. One might expect that as disclosure improves and beds down and the financial structure of front-loaded legal aid payments continue to take effect and are reinforced by a judiciary which is more focused on case management, the rates of early guilty pleas would continue to rise rather than a discontinuation of that trend.
6.13 One possible explanation might have to do with the impact of the proportionately more serious caseload in both the Sheriff and JP courts. All else being equal, cases with more serious charges and multiple accused tend to have lower rates of early guilty pleas. The continuing increased use of DMs for more minor cases and cases which might previously have been prosecuted in the Sheriff Court going to the JP Court (see Figure 3-A) may have had an impact on early guilty plea rates. That is, the types of cases which are now being dealt with by DMs, and those which have been shifted from the Sheriff to the JP court, are those which were more likely to have involved an early guilty plea. Furthermore, the phased roll out of JP courts via the unification process would also have meant this impact would have occurred at different times in different courts over a reasonably prolonged period.
6.14 Another possible explanation is that despite the radical reforms, there remain, from the accused's perspective, rational reasons for not pleading guilty at the first opportunity. An enduring feature of plea negotiation is that the defence is more likely to be able to gain significant concessions (charge reduction/ deletion) at the ID than at the PD (see, for example, Du Plooy vs. HM Advocate, 2003; Duff and McCallum, 2000; Chalmers et al, 2007; Goriely et al 2001; Stephen and Tata 2006). Although pleading guilty at the ID risks diminishing the sentence discount in recognition of an early guilty plea, this might be felt to be well worth the risk if it means a very significant reduction in the level of charges. Furthermore, where a custodial sentence is considered unlikely the impact of any discount (e.g. to a fine) might be considered, in the accused's subjective terms, to be small. Indeed, research into the reforms to fines enforcement has suggested that some accused have neither the means nor the intention to pay financial penalties (Bradshaw et al, 2011).
You can negotiate a better deal at the intermediate diet as a rule. [DST 1659].
6.15 Relatedly, although the shifting of less serious cases from the Sheriff Court to the JP or Stipendiary Courts was viewed as having freed up court and Sheriff time to deal with more serious cases, there was a concern that the increased caseload in some JP courts and the Stipendiary Court meant little time was available to discuss pleas and facilitate early resolution of cases. One view was that having too many trials risked lesser pleas being accepted by some Fiscals - e.g. increasing the likelihood of a guilty plea by dropping a greater number of charges than would normally be the case - in the interests of reducing the number of trials and reducing delays. This factor would potentially influence the solicitor and accused's decision of when to offer a plea.
6.16 Similarly, there was a perception among some Fiscals and Sheriffs that some local defence solicitors are generally less likely to advise a plea at an ID. One of the reasons suggested for this was they have not had the time to prepare properly - an explanation which may be influenced by the perceived increase in some solicitor's caseloads and the resulting impact on the amount of time for each case noted above - and put off decisions until a later date.
6.17 A third reason may relate to what defence solicitors said was the increased likelihood of summary criminal legal assistance (especially ABWOR) applications being refused by SLAB - on the grounds that representation is not necessary 'in the interests of justice' (especially the likelihood of a custodial sentence) - after the case had been disposed of and the work had been completed. It was suggested that this is starting to present firms with a choice: advise an early guilty plea but risk the possibility of not getting paid or advise a not guilty plea with a better chance of getting legal aid and continuing the case.
There have been numerous occasions, and again it's a common theme across solicitors' offices, and we get a response from the Legal Aid Board saying 'we don't consider ABWOR to be appropriate in these circumstances', which means that basically after we've done the work we're then being told we're not getting paid, which is very frustrating.[…] And what's happening now is that there are some firms of solicitors who've taken the view that it's not worth the risk. And they are reverting to the previous system of tendering pleas of not guilty: you are more likely to be granted legal aid. [DST 1647]
6.18 The attitudes of accused and their assessment of the likelihood of a case going ahead also affects plea decisions. Solicitors suggested that many clients, especially regular clients, will delay consulting with them until the last minute while some will put off giving a guilty plea until they see which witnesses turn up at the TD. Conversely, some accused persons were perceived as wanting to get their case resolved quickly.
Other factors causing delay and churn
6.19 Disclosure is not the only cause of delay and churn at this later stage in the system. Interviewees described a range of other issues - some of which have been discussed already - which contribute to the delay. In particular, participants talked about the attitudes and influence of key players in the system. The influence of the behaviour and practice of Sheriffs, defence solicitors and Fiscals has already been noted, but the actions and attitudes of accused persons and witnesses was also perceived to be important.
6.20 Solicitors reported that many clients, especially regular clients, will wait until the last minute before consulting with them; also that some will delay giving a guilty plea until they see which witnesses turn up at the TD. Conversely, some accused persons will wish to get their case resolved quickly.
6.21 Witnesses not turning up for court was viewed as a major barrier to the efficiency and effectiveness and speed of the system, and was described by a number of clerks, Sheriffs and Fiscals as one of the main reasons for trials being adjourned - something also demonstrated by the monitoring data (see Table 3.5). Related to this, some concerns were raised about the way witness citations are served; one suggestion was that - perhaps because postal citations require the recipient to return an 'acknowledgement of service' to the Fiscal, and that this often does not occur - there is no way of confirming whether they have been received and therefore no opportunity to issue a warrant. This is not an issue when the citation has been personally served. The central citation service was seen by some Sheriffs as problematic when witnesses did not appear, as the depute is unable to show the necessary proof of service. Some suggestions to save time and money involved extending the use of police or ex-police personnel to hand-deliver citations in more cases.
6.22 Amongst accused persons, some felt that they had not been conscious of any delays in recent court cases. On the other hand it was also suggested that there had been unnecessary delays:
[The delay is] no 'cause of my Lawyer… it's usually with the courts and PF… [Interviewer: What, the PF or the police or the witnesses?]. It can be any one of them, any one. [Interviewer: And do you know what the delays are?]. It can be anything, it can be anything at all. A camera, the camera, it needs a… or witnesses who don't want to go to court again. There's that many things…all sorts of stuff… It could be anybody, witnesses or police officers, they're always away on holiday (AF5).
6.23 Administrative issues with applying for legal aid payments were perceived by some to generate delay and have a resultant impact on solicitor behaviour and case preparation. Defence solicitors were generally positive in their comments about the on-line system of applying for legal aid. However, a particular change in the way they deal with clients mentioned by solicitors was an increase in the time required for legal aid applications, including having to chase clients for financial details. Indeed, solicitors tended to express frustration about what they perceived to be an unnecessarily pedantic approach to the provision of evidence of the accused's financial status, which could be very time-consuming.
I've also noticed the Board are getting more pernickety about wanting to see proof of income, you know? even .. even in cases where most people I would have thought, you know, objectively looking at it, that it's obvious the guy doesn't have any kind of income. So I have found the Board are getting more and more difficult to deal with, and that unfortunately is taking up a lot of time. […] I have heard a lot o' colleagues moaning that we're spending much longer getting the legal aid grants than actually getting the statements in and getting the client in and doing the case as it were. Much more of our time seems to be spent on getting the client in and getting her, getting him to copy his bank statements and getting him to give us letters from the Jobcentre that we've then got to scan off on to the computer and send it off to the Board. [DST 1507]
6.24 The time involved in applying and being granted legal aid was an issue raised by some Sheriffs and clerks, who pointed out that waiting to hear about legal aid was still a factor causing delays in cases progressing, although in other areas clerks felt there were fewer cases being put off due to legal aid delays. Problems such as these can be caused when the defence solicitor changes. Such change can also cause delays in disclosure, which can only be effected if the Fiscal knows who the defence agent is.
6.25 It is clear, therefore, that interviewees perceived a considerable range of other factors and changes present in the summary system at the same time as the reforms to legal aid and disclosure, to be affecting the extent to which the SCLA and disclosure reforms could achieve their aims or contribute to the higher level outcomes and objectives of SJR, including increasing the rate of early guilty pleas.
6.26 Indeed, according to one interviewee, it was the acknowledgement and exploitation of this necessary combined effect, incorporating an agreed 'collegiate' pro-active approach amongst the Sheriffs in that court, which had led to an increase in early pleas:
So…we understand about the Legal Aid changes, we see the disclosure taking place, and there is the sentence discounting which is I think a major issue. And when you put all these factors together and combine it with the collegiate approach we have here, which to a very large extent has got rid of any notion of Sheriff shopping, we are very conscious of that, and if we see the slightest hint of it we come down on it like a ton of bricks... So…the effect of that is that we get a lot of pleas of guilty first pop. A lot of pleas of guilty, pleading at the diet stage, and at the custody stage, and if we don't get it then, then again probably because of discounting we get a reasonable number of pleas of guilty at the intermediate diet stage (SF 18)
Email: Debbie Headrick
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