In December 2009, the Scottish Government commissioned an independent evaluation of reforms to undertakings, the findings of which are presented here.
The research is part of a wider package of work to evaluate summary justice reform (SJR) in Scotland, and sits alongside five other evaluations of individual areas of reform, namely direct measures; criminal legal assistance and disclosure; fines enforcement; and lay justice. An evaluation of the impact of the whole package of reforms on the experiences and perceptions of victims and witnesses, and the perceptions of the general public was also commissioned.
The reforms to undertakings were evaluated in tandem with a number of changes to bail which, although were part of the same Act, and occurred at roughly the same time (i.e. December 2007), were not directly part of SJR. The evaluation of the reforms to bail are the subject of a separate report with this report focusing solely on the reforms to undertakings.
The main aim of the research was to evaluate how far the reforms to undertakings had met both the overarching aims and objectives of SJR, as well as a number of specific policy objectives.
Reforms to undertakings
Undertakings are issued by the police, and involve the liberation of an accused on an undertaking to appear in court on a specified date, normally within 28 days of their release. A hard copy undertaking form is issued to the accused and is signed by them, which states the place, date and time that the accused must appear for their first calling in court. Such undertakings are sometimes referred to colloquially as 'police bail'.
The main difference between an undertaking and a citation to appear at court is that when an accused is liberated on an undertaking, the accused is advised of the date on which s/he requires to attend at court before leaving police custody. While a complaint1 is still produced, there is no requirement for it to be served on the accused until the first court appearance, and the case can be booked into the court programme sooner than would be the case if a citation were used. More importantly, this process ensures that the first calling of an undertaking has the key elements in allowing cases to be resolved which are usually lacking in cited cases when they call for the first time, namely the presence of the accused and his/her lawyer already instructed and sighted on the evidence. This was a key feature of the McInnes recommendations, along with the earlier first calling of the case, in favour of shifting the balance from cited cases to undertakings.
Undertakings in themselves are not new under the reforms, and have been in use in Scotland for a number of years. Before the reforms, however, their use varied greatly between different police forces, there were limited eligibility criteria for their use and there were tighter restrictions on who could issue an undertaking, i.e. only the arresting officer.
Changes to undertakings were introduced as part of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 and were implemented from December 2007. The main changes to the use of undertakings include:
- widening of eligibility to issue undertakings. Any Constable may do so post-reform, and not necessarily the arresting officer. In contrast to pre-reform, undertakings can also be made without authority from an officer in charge;
- persons arrested on a warrant can also now be released on an undertaking, instead of the pre-reform necessity for remand; and
- the police may impose new conditions when issuing an undertaking, similar to those included in bail orders.
The first of these changes meant that undertakings could be used more often and the latter meant that undertakings placed greater restrictions on accused released this way. Consequently, it was anticipated that the reforms would result in more reported cases being dealt with by way of undertaking, and that greater control of accused might be achieved. The reforms set out an ambition to increase the use of undertakings as a means of improving the speed and efficiency of the summary justice system and to assist in making sure that cases came to court more quickly, compared to citations.
A mixed methods approach was used that combined analysis of secondary data with collection of primary qualitative data from interviews. A limited cost-benefit exercise was also attempted to assess whether the benefits, i.e. savings generated by the reforms to undertakings, were sufficient to outweigh the corresponding burdens arising from the reforms. This encountered several challenges, not least being a lack of available data to inform its execution and, therefore, a full economic analysis was not possible. Instead, the evaluation considers the likely impact of the reforms on the workloads of the main criminal justice agencies involved in the administration of undertakings, as well as the impacts on failure to appear and churn, which may all have associated costs to the system.
The research findings presented here are based on data generated from four case study areas. This means that no national conclusions are presented and, instead, the findings from the case study areas are only used to posit possible impacts of the reforms elsewhere.
The numeric and interview data show mixed messages about whether there has been an increase in the number of accused who appear at court on undertakings. The KPI data suggests no real increase in use post-reform, although gaps in the data mean that it is not possible to say what happened in the period immediately following their introduction.
Increased use of undertakings instead of citations might have been expected to have brought about increased numbers overall over time. The flat line observed for undertakings, and the seasonal peaks and troughs in use of citations, suggests that undertakings are not used more post-reform in place of citations. The data does, however, show that undertakings are being used for a wider range of offences, including more complex cases such as simple assault, shoplifting and drugs offences, since the reforms.
Qualitative data suggests that the police are making concerted efforts to increase their use of undertakings. That said, police interview data show some police reluctance to use undertakings for fear of being challenged by supervising officers regarding their decisions. This may be contributing to lower numbers of undertakings being used in some areas. It does not seem from the evaluation that awareness of undertakings practices or reforms is a barrier to their use.
Views from police, Fiscals and Defence Agents suggest that officers are making use of national guidance as well as using discretion and adopting local protocols that best meet the local circumstances.
The KPI data supports the notion that a large number of cases are coming to court within the 28 day target, although some areas have a greater success rate than others in meeting this goal. Overall, the objective of getting cases to court quickly does, however, seem to be met.
While data is positive in regards to the 28 day target being met, the negative consequences are that interviewees felt that they were not able to prepare quickly enough and this was negatively impacting on getting cases through court. Indeed, in interviews it was suggested that there may have been some unintended churn as a result of cases coming to court quickly, with police, Defence Agents and Fiscal interviewees reporting difficulties in preparing quickly enough for pleading diets in the time given. KPI data also show a lower proportion of undertakings cases concluded at first calling in court in the period since the reforms, compared to an increase in the percentage of cited and custodial cases concluding at this stage over time. This may indicate a reduction in the effectiveness of court hearings for undertakings cases at this stage in the summary justice journey.
KPI data also show that, pre-reform, undertakings cases usually proceeded through court with fewer diets per case on average than cited and custody cases, however, post-reform, there has been a notable increase in the average number of appearances for undertakings cases. This is all the more notable since there has been a corresponding drop in the average number of diets for the other two case types, suggesting that the rise is isolated to undertakings cases and may be a direct consequence of reforms in this particular area.
The speed of getting accused to court on undertakings may be leaving less opportunity for agents to advise their clients to plead guilty (where appropriate). As a result, and given concurrent reforms to legal aid, greater use may be being made of continued pleading diets to allow later guilty pleas to be tendered. This may be exacerbated by the shift in use of undertakings towards different types of cases, including more complex cases, post-reform. More complex cases may require more diets than the cases where undertakings were traditionally used (for example, drink/drug driving offences), due to challenges in gathering evidence, or citing civilian witnesses to court who may be less reliable than their professional or expert witness counterparts (and with whom evidence can arguably more easily be agreed). The lack of time for clients and agents to consult, and to prepare for such cases, as well as these wider evidence gathering and witness citation issues may therefore explain some of this increase in the average number of appearances required.
Although end-to-end targets are currently being met, the evaluation has shown that the percentage of undertakings cases being dealt with within 26 weeks has progressively declined over time since the start of 2009 with a corresponding upward trend in average time taken from caution and charge to verdict, both of which are unique to undertakings cases.
Thus, in sum, while undertakings do seem to be getting people to court quickly, with some areas showing good compliance with the 28 day target, case marking among fiscals is taking slightly longer over time, and there appear to be more diets and overall lengthier times required to conclude cases once they are at court. The end-to-end time for undertakings is, however, still faster than for cited cases, but the difference in time for the two has reduced in recent years. Some of this may be accounted for by the shift in use of undertakings towards more complex cases, although interviewees stressed that the main issue was short timescales impacting on ability to prepare adequately in time. Thus getting people to court may be occurring at the expense of the other intended outcomes of SJR - in particular the early, effective preparation of cases and more effective court hearings, as well as cases being dealt with at the earliest stage of proceedings and achieving faster case conclusions overall.
Among all interviewee groups, there was consensus that most people do appear at court on first calling if released on an undertaking. Interviewees perceived that there were few breaches of conditions, including special conditions where applied, based on there being few arrests for this crime. Data on failure to appear rates for citation cases at first calling in court had not been specified as one of the many monitoring indicators agreed at the start of the SJR evaluation programme, so it was not possible to compare failure to appear rates for undertakings with failure to appear on citation. Where breach of undertakings does occur, there is evidence to suggest that Sheriffs and Justices of the Peace are making use of their increased sentencing powers under the reforms.
Undertakings were seen by interviewees to be largely fair to victims, witnesses and accused. In particular, one of the main benefits of undertakings was seen to be the certainty (for the accused) of knowing where and when to attend court. Findings from the victim, witnesses and public perceptions evaluation, published separately as part of the SJR evaluation series, also show that members of the public support the rationale and principles for undertakings, as do victims and witnesses. This, however, does not hold for cases involving repeat offenders and those with a history of breach of bail or undertakings for whom custody seems to be what the public would prefer.
Responses from the accused interview group seem to show reasonably good levels of awareness of the reasons for undertakings and the conditions of their use. There seemed to be support for their use for lesser offences and accused agreed with the principles that, for some more serious offences, their use was not appropriate. Those accused who took part also showed support for the serious treatment of breach of undertakings and conditions, especially given that the standard conditions were not difficult to comply with and allowed the privilege of liberation. Most of those who took part welcomed their freedom and also seemed to welcome a quick turnaround in getting to court.
Although not a specific focus of the evaluation, qualitative interview data show that there may be some issues around communication between both Fiscals and the accused, and between Defence Agents and their clients, which are linked to undertakings use. The first problem reported by interviewees was that Fiscals were marking some undertakings cases as Fiscal direct measures or no proceedings, but were failing to alert accused of this decision. This can mean wasted time for some accused attending court only to be notified that the case has been dropped or is being dealt with by a non-court disposal.
Secondly, interviewees reported that some accused were failing to liaise with their Defence Agents ahead of appearing in court on an undertaking which exacerbated the lack of time to prepare (as mentioned above). The absence of a written complaint before the court appearance was often coupled with failure by the accused to provide sufficient details to Defence Agents of the nature of the charge. Whilst this may not be unique to undertakings, the short time between arrest and pleading diet may be compounding the problem in undertakings cases, and this may be impacting on other aspects of SJR. Overall, it seems that more effective communication between Fiscals, Defence Agents and accused may be needed.
Gaps in the Data
Gaps in the recorded data on the use of undertakings and conditions has meant that it has not been possible to produce an accurate national picture of these measures. Specifically, police data is not available for all forces that cover all LCJB areas for the period before the reforms were introduced and, even post-reform, staggered start dates in the collection of this data mean that it is not possible to say what happened at the national level immediately after the reforms were introduced. Crown Office data on the number of standard prosecution reports submitted to COPFS is not available before April 2009, and so again cannot be used as a measure of changes in the total numbers of undertakings pre and post-reform. There is also no data on the numbers of warrants granted for people who fail to appear at court at pleading diets broken down for undertakings and cited cases and so it is not possible to say whether use of undertakings is any more effective than citation at ensuring that accused appear at court when required.
From the data available, it has also not been possible to say what the true costs and benefits of the reforms to undertakings have been, and this is something that would be desirable in the future.
Finally, the evaluation has revealed that there is considerable local variation in the extent to which reforms to undertakings are being adopted and the extent to which use of undertakings has changed over time. More detailed analysis at police force level for the whole of Scotland may be useful in revealing what needs to be done to maximise the potential benefits of undertakings as a means of getting people to court.
Messages for Policy
Some of the main messages from the evaluation appear to be that:
- Greater flexibility in the terms of the Lord Advocate's guidelines is perceived as being necessary by all key stakeholder groups (police, Defence Agents and Fiscals) in order to ensure the optimum use and effectiveness of undertakings. In particular, greater flexibility in the time taken from release to appearance in court may mean that problems with gathering evidence and preparing quality reports may be overcome. This may also help to alleviate some of the communication problems that are occurring between Fiscals and the accused, as well as between accused and their Defence Agents allowing both more time to initiate communications, where appropriate.
- There may be a need to review the communication strategy between Fiscals, Defence Agents and the accused. This is especially true in cases where alternative, non-court disposals are decided by Fiscals after undertakings have been issued, and in cases where no proceedings are marked. Ensuring that all relevant parties are aware of these decisions as soon as possible may reduce inconvenience to Defence Agents and accused, in particular.
- A focus on getting people to court needs to be carefully balanced with getting cases through court since it seems that, in some cases, a lack of communication and preparation is leading to ineffective first court hearings and continued churn, meaning that undertakings cases are not being dealt with at the earliest possible stage in some instances.
The evaluation has shown that there is generally good support for undertakings among criminal justice professionals and accused alike. The benefits to victims of bringing cases to court more quickly via undertakings is also recognised.
Despite some regional variation, police targets for getting undertakings cases to court, as well as Fiscal marking targets are being met, as are the end-to-end targets for undertakings cases progressing through court. The speed of undertakings cases through court is also still faster than cited cases. Disappointingly, gaps in the data mean that it is not possible to say conclusively if undertakings are being used more post-reform, as was expected, or how compliance with undertakings compares to cited cases.
Despite some positive findings, there is also clear evidence of churn still occurring at the front end of the court journey for undertakings cases, though this may be in part due to a change in the types of cases for which undertakings are being used. The evaluation perhaps, therefore, suggests a need to revisit some of the core principles of undertakings, and to consider further if speed at the early stages of the justice process has the desired impact on end-to-end summary justice performance overall. A key to the future success of undertakings, which will minimise negative impacts at later stages in the system, seems to be a more flexible timescale for the scheduling of undertakings cases in court and better communication between all parties concerned.
Email: Carole Wilson
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