Scottish Government

REPORT OF THE SUMMARY JUSTICE REVIEW COMMITTEE: SUMMARY OF RESPONSES TO THE WRITTEN CONSULTATION - FINAL REPORT

CHAPTER EIGHT SUMMARY CRIMINAL PROCEDURE (i): ENCOURAGING EARLY PLEAS

INTRODUCTION - OVERVIEW OF RESPONSES ON PROCEDURAL ISSUES

8.1 A large section of the Report made detailed recommendations for change concerning both the way in which the laws of criminal procedure and evidence support the delivery of summary justice, and also the way in which professional organisations and individuals involved in the system work together to deliver summary justice. The remainder of this report looks at the views given by respondents in relation to those issues.

8.2 The consultation response form posed a number of questions in this area, namely:

• Do you agree that the law on sentence discounting should be clarified further to encourage those who will ultimately plead guilty to do so as early as possible?
• Do you agree that only those witnesses whose evidence is disputed should be required to attend the trial?
• Do you agree with the proposals to extend the use of trial in absence? and
• Do you agree with the creation of a summary appeal court?

THE RESPONSES RECEIVED

8.3 Many respondents agreed in principle with most of the detailed recommendations made in the Report without further discussion, restricting their comments to the more fundamental issues of court unification, lay justice and the use of alternatives to prosecution. Others considered the key procedural questions set out above, whilst some addressed each recommendation in turn. By way of example, SOLACE supported all the detailed recommendations on criminal procedure and believed that, taken together, they offered the opportunity to streamline the system.

8.4 Some 118 respondents - 49% of all responses received - commented upon one or more of the proposals relating to criminal procedure set out in the Report.

8.5 The table below details the organisational groupings that commented upon the recommendations relating to criminal procedure:

Table 8.1: Recommendations on Criminal Procedure - Numerical Responses

(i) ENCOURAGING EARLY PLEAS

8.6 The remainder of this chapter deals with recommendations made by the Report with a view to encouraging appropriate early guilty pleas, namely:

• Sentence discounting;
• Providing a summary of the evidence along with the complaint; and
• Ensuring there is appropriate remuneration for solicitors in the early stages of a case.

Sentence Discounting

8.7 Many responses (including the Western Isles Justices' Committee, many individual JPs, the Sheriffs Principal and solicitors) welcomed the recommendation to clarify the law on sentence discounting to encourage those who will ultimately plead guilty to do so as early as possible. Other submissions (including those from many JPs and JP Committees) agreed generally with the proposals to encourage early pleas but had some reservations.

8.8 Skye & Lochalsh Justices' Committee and Ross & Cromarty Justices' Committee were both concerned that no sentencer could predict what sentence would be appropriate should a case proceed to trial, and believed that the policy of offering discounts was "fatally flawed". The argument put forward by those disapproving of such a system was that any supposed discount at an early stage would be no more than a guess. They stated that in any case where a guilty plea is tendered, no full examination of the facts is undertaken and therefore the sentencer can only act on what he or she is told. Many cases which proceed to trial can therefore lead to conviction, but also to a considerably reduced sentence because the full facts have been explored. The Justices contended that it was wrong to assume that a heavier sentence inevitably followed when a case had proceeded to trial.

8.9 Many respondents (Law Society of Scotland, the District Courts Association, Glasgow District Court and ACPOS) welcomed proposals for sentence discounts but there was a concern amongst some respondents regarding how these proposals took account of the interests of victims of crime and some respondents queried how victims would perceive such measures.

8.10 Falkirk Justices' Committee was "acutely uncomfortable" with the sentence discounting proposals which, if accepted, would require that accused persons should be informed of sentence discounting as early as possible in the court process. They wanted to know how such persons were going to be informed, and what measures would be introduced to safeguard the rights of vulnerable groups. In addition, they were interested in learning what mechanisms could be introduced to safeguard the rights of unrepresented accused people.

8.11 The Association of Scottish Police Superintendents was also unhappy about the use of sentence discounting to encourage early pleas of guilt. The Association thought that an individual may feel that if they said no to the discount offered they would be dealt with more severely in court. Another respondent was worried that individuals might feel pressurised into pleading guilty when they actually had a defence.

8.12 The Scottish Legal Aid Board felt that the proposal to record whether or not a discount had been given in the court minutes could lead to an increase in appeals where no reduction in sentence is allowed - this would impact on the legal aid fund. The Board was also concerned that if no guidance was given as to the level of discounts allowed it would be difficult for defence solicitors to tell their clients what to expect, as solicitors would be unaware of any likely reduction. Consequently, the Board felt that a lack of guidelines could actively discourage the tendering of early pleas.

8.13 The Scottish Law Agents' Society was in favour of allowing a sentence discount for a plea on the day of the trial or during the trial. They felt that it should always be within a judge's discretion as to how much of a sentence could be discounted following a guilty plea. A number of other submissions mentioned a variety of factors that might result in a plea on the day with witnesses present and argued that a discount should not be absolutely precluded in such circumstances.

8.14 However the Law Society of Scotland and the District Courts Association agreed with the recommendation that a court should not allow any discount of sentence for a plea on the day of the trial or during the trial.

8.15 One submission suggested that discounting should be determined on a sliding scale and that if an accused changes their plea immediately prior to trial, no discount should be given.

8.16 Although the Sheriffs' Association stated that the vast majority of the Report's recommendations concerning criminal procedure met with its approval, it did note some concerns regarding sentence discounting as detailed below:

"We accept the principle of sentence discount, but the Report has been overtaken by the passing of the Criminal Procedure Amendment (Scotland) Act 2004 and we are firmly of the view that the matter should be left there and that no further tinkering with that situation is necessary in the foreseeable future… More specifically we are strongly opposed to recommendation 55 suggesting that the court should not allow any discount in sentence for a plea on the day of the trial or during a trial. This is an unwarranted fettering of the discretion of the Court and it is important in certain cases (such as those involving child witnesses, or those where many days of trial are likely) for a discount to be given also on the day of trial if various problems are thus avoided. Our discretion to allow sentence discount should always be available to us no matter the stage at which a plea is tendered."

8.17 A minority of submissions commenting on sentence discounting were also concerned that by allowing sentencers to take into account the stage at which a guilty plea is tendered in considering the award of a sentence discount, the procurator fiscal may be discouraged from referring certain matters to the summary courts.

8.18 The Law Society of Scotland and the Scottish Police Federation welcomed the proposal to introduce a clear and consistent policy, and West Lothian Council stated that sentence discounting is something that currently happens within West Lothian District Court. Justices there generally allow a discount for an early plea and state the amount of discount applied in open court when sentencing.

A Prescriptive Scheme of guidance for discounting?

8.19 The Report (at recommendation 59) did not support the introduction of a prescriptive scheme. North Lanarkshire Council suggested that Ministers may wish to consider reviewing the effectiveness of the arrangements within three years of any new legislation becoming effective.

Providing a Summary of Evidence with the Complaint

8.20 The Report recommended that the prosecution should make available to the defence solicitor sufficient information to allow the latter to advise the accused of the strength of the case against him or her at an early stage of the process. Where an accused person is unrepresented, the Report recommended that material should be passed directly to them.

8.21 An issue that was mentioned in submissions - particularly by solicitors - was the concern that what would be provided to defence agents would be no more than what currently is a custody statement:

"Time and time again the summary of evidence that the Fiscal has, bears no relation to the statements ultimately received. Further detail would have to be provided of what would constitute a summary of evidence".

Dunbartonshire Faculty of Solicitors

8.22 Other responses, although agreeing in principle to the proposal, were concerned about the quality of the information that would be provided. There was a fear in some quarters that the summary would be biased towards the Crown case rather than the defence.

8.23 In addition, there was concern about the recommendation that where the accused is unrepresented this material should be passed directly to him or her. There was confusion as to how this would work, and whether the format of the information provided would be appropriate for onward transmission to the accused person.

8.24 The Scottish Legal Aid Board was concerned that the current lack of information available to defence solicitors at the early stages of a prosecution may lead to some applications for summary criminal legal aid being submitted too early in the proceedings, and certainly before any meaningful investigations into the circumstances of the case are concluded. Although they agreed that "to frontload cases" would ultimately lead to earlier disposals, they observed that it might not necessarily result in an overall reduction in the cost of criminal legal assistance, although they accepted that there could be a significant saving on cases proceeding towards trial.

8.25 The Sheriffs' Association, while welcoming this recommendation in principle, believed that in many cases there were certain issues that should not be disclosed at such an early stage. In addition, they wondered how the summary of evidence would be used at a later stage if the accused decided to plead not guilty. The Association also noted a number of other issues concerning the use of these statements, and believed that this proposal was:

"a further example of the type of administrative solution which merely increases the administrative difficulty and obstructs the speedy delivery of summary justice."

8.26 The Scottish Law Agents' Society agreed with the recommendation in principle but wanted clarification as to the form of "sufficient information" that would be provided to defence agents. The Society - and a minority of other respondents - was concerned about exactly what information would be given to agents or the accused themselves from the police report. They observed that the police report was often hurriedly prepared and may not be an accurate summation of events. In addition, in some cases the police report may include comments from police officers that are not directly relevant to the case, or information about witnesses that should be regarded as confidential. It was suggested that, if this report had to be edited, there would then be issues regarding whether it contained "sufficient information".

8.27 The Society further noted that if the accused is unrepresented, and this "sufficient information" is passed to them it may cause further anger or upset:

"Accused persons' memories of events can be influenced by the passage of time, intoxication, etc., and some will proceed on the basis that what is presented in such an official way demonstrates a strong case against them whereas proper investigation may show a different picture".

Remuneration for Work Conducted At An Early Stage

8.28 The Report recommended that defence solicitors should be properly remunerated for work conducted at an early stage of a case and be able to obtain reasonable remuneration by representing legally aided clients, in order to allow sufficient enquiries to be conducted to ascertain whether or not the accused should plead guilty at that stage. Most agreed with this recommendation, including the District Courts Association. Many submissions were of the view that the recommendations of the Committee seemed sensible, and that the current system of criminal legal aid, and its different stages, created some of the problems relating to delayed pleas. These submissions agreed that additional resources should be provided so that defence agents did not feel encouraged to prolong a case in order to ensure funding was made available.

8.29 Some in the legal profession were angered by the Report's use of the term 'current incentive', which they believed gave the impression that solicitors tender not guilty pleas without giving proper consideration and advice to the charge and the circumstances of the accused person. They wished to put the record straight with their own observations on the current summary fixed fee scheme:

"As the Committee should have been aware, if a person pleads not guilty and is granted legal aid, the summary fixed fee scheme applies at any stage. If the day after legal aid is granted a plea of guilty is tendered, then the summary fixed fee is paid. If the plea is tendered on the day of the trial, the summary fixed fee is paid. If a plea of not guilty is tendered then that is because there is a full or partial defence to state, matters require investigation and that is in the interests of justice that an intermediate diet and trial diet should be assigned".

(Confidential Response)

8.30 In addition there was concern amongst the legal profession that the Report had suggested indirectly that these fixed fees encouraged solicitors to advise clients to plead not guilty. One organisation stated:

"Defence agents are professional persons who are well aware of their ethical and professional responsibilities and the best interests of the client are of paramount importance".

(Confidential Response)