Evaluation of Reforms to Summary Criminal Legal Assistance and Disclosure
Reforms to summary criminal legal assistance and disclosure, introduced under Summary Justice Reform, saw the introduction of a fee for defence solicitors for early disposal of summary cases and the provision to the accused of a 'summary of evidence' based on the police report submitted to the Fiscal. This evaluation assessed the extent to which they met their policy objectives and contributed to the SJR overarching objective - a summary justice system that is fair, efficient, effective and quick and simple in delivery.
At the same time the reforms to SCLA and disclosure were being implemented there were considerable other changes taking place in the summary justice system affecting both the number and nature of offences in the sheriff court.
- Our estimates suggest that in the pre-reform period considered, 61% of all cases had a guilty plea tendered at some stage in the proceedings. In the post-reform period this figure was almost identical at 60%.
- Cases are now being resolved earlier - there has been an increase in the proportion of cases with a guilty plea at pleading diet since the reforms - rising, nationally, from around 25% pre-reform to 33% in the year following the changes to SCLA. This increase was more marked for custody cases. There has, however, been a subsequent gradual reduction in rates over time.
- Despite this rise in early pleas, there has been no overall improvement in the time taken to dispose of sheriff summary cases or any notable change to the average number of diets per case. However, given the significant shift in the number and nature of offences in the sheriff court, this is perhaps unsurprising.
- Disclosable summaries were seen as useful to solicitors in advising their clients how to plead as well as supporting more productive discussions between defence solicitors and Fiscals. However, contact between Fiscals and defence solicitors was still proving difficult to consistently facilitate.
- Whilst defence solicitors had a tendency to attribute greater impact on practice to the changes to legal aid, interviewees found it difficult, overall, to disentangle the individual effects of each reform and described a combined effect contributing to early case resolution, better case preparation, earlier negotiations and productive discussions between the Crown and defence.
- A range of other factors present in the system - such as sentence discounting, bail opposition, the shift in court business, Fiscal workloads and court scheduling; whether or not sheriffs adopt a pro-active approach in questioning not guilty pleas or reasons for adjournments; and the attitudes of accused - were also perceived to influence the achievement of these outcomes.
The policy objectives of the reforms to SCLA were to: ensure that solicitors are appropriately and fairly paid for the work they do; support investigation and preparation of cases to facilitate their resolution at the earliest possible stage; reduce bureaucracy where possible and appropriate; support the availability and delivery of sufficient criminal defence services of an appropriate quality; appropriately reward work undertaken to progress summary criminal cases; and support the cost effectiveness and efficiency of the wider criminal justice system.
The policy objectives for pre-pleading diet disclosure were to: provide the defence with a basis for early investigation of the case and discussions with the Fiscal; to inform the decision making process with the client regarding the plea which ought to be tendered; to support more effective court hearings at pleading and intermediate diet; to enable cases to be dealt with at the earliest possible stage in proceedings; and to support the new system model for summary justice.
Aims and objectives
The overarching aim of this evaluation was to assess the extent to which the reforms to summary criminal legal assistance supported: the overall aim for SJR; the SJR overarching objectives; the SJR intended outcomes; and the specific policy objectives of both reforms. In doing so, the research aimed to identify the key factors which enabled, and barriers which prevented, achievement of the reform objectives.
The operation of disclosure post-pleading diet was also included in the remit of this evaluation.
The evaluation employed both quantitative and qualitative methods to explore the impact of the reforms and operation of key aspects of the summary process following the reforms. Qualitative data were collected via face-to-face and telephone interviews with key stakeholders, criminal justice professionals in four sheriff courts, and individuals who had been accused of a summary crime or offence. These data were considered alongside quantitative information on the trajectories and outcomes of sheriff summary cases, a national survey of defence solicitors, data on the reasons for continuation of Intermediate Diets, and various costs associated with the processing of summary court cases.
In context: the changes to summary business
Considerable change in the nature of summary business dealt by the courts was taking place around the same time the reforms were being introduced. Most significant of these, for the purposes of this evaluation, was the significant reduction in the overall number of complaints registered in the sheriff court - decreasing from 97,456 in 2007/08 to 78,936 in 2010/11 - most of these being less serious offences.
Trajectories, outcomes, duration and cost
Our estimates suggest that in the pre-reform period considered, 61% of all cases had a guilty plea tendered at some stage in the proceedings. In the post-reform period this figure was almost identical at 60%.
However, there has been an increase in the proportion of cases with a guilty plea at pleading diet (PD) since the reforms - rising, nationally, from around 25% pre-reform to 33% in the year following the changes to SCLA - suggesting that more cases are now being resolved earlier in the process. Custody cases, in particular, showed a significant increase in guilty plea rates at first calling; by June 2010 the guilty plea rate for custody cases of 44% was almost double that of the pre-reform rate of 23%.
Following the immediate increase in early guilty pleas, there has been a subsequent gradual decrease in these rates over time suggesting that the initial impact of the reforms is now receding.
Overall, there has been no improvement to the time taken to dispose of sheriff summary cases despite the increase in early guilty pleas. Pre-reform, 82% of cases were disposed of within 20 weeks compared with 71% in the most recent post-reform period. Neither has there been any notable change to the average number of diets per case. Given the significant shift in the nature of sheriff court business - with a larger proportion of its workload now made up of more serious crimes and offences which may be more likely to cause complications - this is perhaps unsurprising.
There have been savings to the cost of processing sheriff court cases of around £405, or 13% per case. However, the vast majority of this saving is because custodial sentences - the most expensive disposal - are less likely to be imposed post-reform whereas financial penalties - which are significantly cheaper to administer than custodial sentences - are more likely to be imposed post-reform. This saving does not therefore appear to be related to the SCLA and disclosure reforms.
Annual expenditure on summary criminal legal assistance has also reduced following the reforms - by around £11 million. There is little in the economic data to suggest that per case renumeration for solicitors has changed post-reform. As such these savings appear to have arisen largely from the reduced volume of cases now reaching court. However, some of these 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 is, at least in part, attributable to the increase in earlier case disposal following the introduction of the SCLA and disclosure reforms.
The operation of disclosure
Disclosable summaries were seen as useful to solicitors in advising their clients how to plead. Indeed, over 70% of defence solicitors in the survey thought that the information provided by disclosable summaries was either 'very helpful' or 'quite helpful' in this respect.
The quality of disclosable summaries was believed to be reasonably good and was improving. There were some suggestions from the defence solicitors that summaries were of lower quality in complex cases. The content and quality of summaries affected pleading decisions. Examination of outcomes for a sample of cases where the summary was supplied tentatively suggests that those with an insufficient summary are less likely to plead guilty at first calling - given these are likely more complex cases, this is perhaps unsurprising.
Disclosure after the pleading diet appeared to be working reasonably well although experience did vary between courts. Both the police and Fiscals commented on the additional resource demands which the revised arrangements placed on them.
Full statements and CCTV footage were perceived to be extremely helpful to the case. However, many commented on delays with this material. Indeed, the research indicates that disclosure was a common reason for adjournment. In addition, defence solicitors complained that, in some cases, material was disclosed too close to the intermediate diet to allow proper preparation; one or two sheriffs shared this view.
Some interviewees believed that the Crown and sheriffs were not pro-active enough in questioning unjustifiable - in the light of the disclosed information - not guilty pleas and requests for adjournments at the intermediate diet with some calls for sheriffs to be generally more 'assertive'.
Impact on case preparation
60% of defence solicitors surveyed said there had been no change to their level of client contact since the reforms were introduced, around a quarter (24%) said their client contact had decreased, and 16% indicated an increase. Amongst those who said contact levels had changed, 51% attributed this to the changes to legal assistance, 14% to the disclosure reforms, and a further 27% perceived that both reforms have worked together to cause this change.
Defence solicitors were more likely to perceive a change in the way they dealt with clients than in the level of contact per se; half said this aspect of their practice had been affected. Again, amongst those who noted a change it was more commonly ascribed to the reforms to legal assistance than disclosure, though a significant proportion referred to the combined effect of both.
For some solicitors, the reforms were seen to place more emphasis on seeking early resolution, a view which was also expressed by a number of Fiscals. However, solicitors also pointed out that, as a result of changes to payments - and a perception, amongst some, that they are now worse off - they are more conscious of the type of work they take on, what preparation they will do, and will sometimes avoid certain work.
Defence solicitors often made reference to the impact of the move to fixed payments under SCLA. This structural element of legal aid was introduced in 1999, and was not changed by SJR. Nevertheless, it continues to feature prominently in discussions with solicitors. The perception of lower per case remuneration was also prominent in the comments of some solicitors but this perception does not appear to match the analysis of economic data which suggests that per case remuneration is much the same post-reform. It is clear that fewer summary cases now reach court though, providing less potential business for defence solicitors which may be impacting on their overall income - an outcome which has not occurred specifically as a result of the reforms to SCLA.
Reduction in client contact was not always viewed negatively; changes to disclosure have allowed client contact to be more focused for some solicitors, requiring less time to be spent in discussion with clients. For other solicitors, however, disclosure has required additional client contact which is not perceived to be financially viable following the changes to legal aid. In addition, both accused interviewees and defence solicitors perceived an impact on the quality of representation - for the former group this was measured through a reduction in the time spent with their solicitor before a case, for the latter group through financial changes restricting their ability to properly prepare a case.
Impact on pleas, pleading advice and plea negotiations
42% of defence solicitors surveyed thought that disclosure had led to more early discussions about cases with Fiscals, although 43% perceived there to have been no change (and 14% were of the view that there was less discussion). A common view amongst interviewees was that discussions between Fiscal and defence were now more productive because both parties had access to the same information. Accused interviewees also commented that disclosure was essential in helping clients and their solicitors decide on the best way to plead.
Some difficulties were raised in relation to discussion between defence solicitors and Fiscals. Defence solicitors remarked upon the difficulty of getting hold of a Fiscal as did Fiscals about solicitors. Measures established to address this had mixed responses, appearing to have been successful in some areas only.
To some extent, an imbalance between the high volume of cases going through some courts and the perceived low number of staff and lack of court time to deal with them was also believed to be constraining successful plea negotiations between solicitors and Fiscals. Some defence solicitors also believed that they will often be in a better position at trial diet to negotiate a better outcome for their client due to a perception that Fiscals were often under pressure to deal with a large number of trials and that witnesses may fail to attend.
The reforms were perceived by many interviewees and survey respondents to have had an influence on the increase in early pleas. For example, 38% of solicitors in the survey said they themselves were now more likely to advise an early guilty plea with the figure higher when answering in relation to what other solicitors did (57%).
Defence solicitors suggested that there is a greater readiness on the part of some lawyers to advise their clients to plead guilty in direct response to the financial arrangements of legal aid. In addition, many interviewees observed that the summaries were helpful in persuading clients to plead guilty early. However, for many practitioners, it was the combined effect of both sets of reforms which had contributed to the change in early guilty pleas.
Interviewees described a range of other factors which were perceived as influencing pleading decisions. These include: sentence discounting, particularly where a custodial sentence is at stake; bail opposition and the risk of being remanded; the shift in court business; Fiscal workloads and court scheduling; the perception that negotiation will gain more concessions for the defence at ID; a belief that there had been an increase in refusals of ABWOR by SLAB after the case had been disposed of; whether or not sheriffs adopt a pro-active approach in questioning not guilty pleas or reasons for adjournments; and the perceived likelihood, amongst accused and their solicitors, that the trial would ultimately go ahead as scheduled.
Interviewees believed the fairness of the system had improved in a number of respects: fewer trials overall meant more time to deal appropriately with cases which do go ahead and the requirement for victims and witnesses to attend court had reduced. Disclosure was fairer to accused persons because the information supplied better equipped them to make an informed and early decision about their case. However, there was a lack of consensus about the specific impact of the reforms to summary legal assistance and disclosure overall to the fairness of the summary justice system.
Interviewees believed the reforms to disclosure had contributed to a more efficient and effective system by facilitating early case resolution, better case preparation, earlier negotiations and more productive discussions between the Crown and defence as well as saving time for both Fiscals and solicitors.
However, some aspects of disclosure were seen to act negatively on efficiency and effectiveness. For example, Fiscals perceived an increase to their workload associated with the administrative burden of full disclosure - which also had an impact on the police - outweighing any efficiency gains other aspects of summary justice reform. In addition, despite improvements in meeting targets for post-pleading diet disclosure, it was still the cause of a significant amount of delay at intermediate diets, as was a lack of preparation.
Many of those interviewed emphasised that, despite the reforms to summary justice, not all cases will resolve as early as they perhaps could. However, many suggestions were made to tackle the key barriers.
The prospect of a sentence discount featured highly as a factor motivating early pleas. Thus, ensuring the consistent application of discounts, or extending them, may have a greater impact on early pleas.
Improving efficiencies associated with online technology - such as the electronic processing of disclosure - and ensuring consistent timeous provision of CCTV and forensic evidence were believed to be key to reducing delay and improving preparation.
Witness attendance at trial diets was still a key cause of adjournment and the likelihood of trial adjournment was still a significant factor in the plea decisions made by accused persons. Thus, maximising the attendance of witnesses would potentially impact on both these issues.
There is an important role for communication and effective inter-agency and personal relationships at a local level, factors which are not easily supported by centralised systems. There may be a greater role for the judiciary to promote and co-ordinate this local cooperation and efficiency.
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Email: Debbie Headrick