Scottish Government

SMARTER JUSTICE, SAFER COMMUNITIES
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INTRODUCTION - THE SUMMARY JUSTICE SYSTEM IN CONTEXT

Why is summary justice so important?

1. The summary justice system deals with those less serious offences which account for 96% of criminal court business. All cases heard by sheriffs sitting alone in the sheriff court or by a bench of one or more lay justices in the district court (or, in Glasgow only, a paid stipendiary magistrate) fall within the summary justice system. The types of offence dealt with range from minor breaches of the peace through to assaults and weapons offences - and include nearly all road traffic offences.

2. Summary justice matters because it is the entry point to the formal adult criminal justice system. If a case against an offender is processed speedily and effectively when first prosecuted, he or she will be given a clear signal that crime does not pay. A slow, ineffectual system which is easy to evade gives the opposite message, and is much less likely to deter reoffending.

3. A robust summary justice system is also critical because this is where the majority of cases are dealt with. Better management of cases - diverting from prosecution where appropriate, swift prosecution where necessary - helps to reduce the upward flow of business towards short sentences. A focus on efficiency in isolation may simply mean that more people end up in prison faster. We need a balancing emphasis on handling cases at the appropriate level.

4. And we need to think much more about how to build public confidence in the system. Justice needs to be done, and fairness to the accused remains our core principle. But it must also be seen to be done. The summary justice system is the part whose impact or lack of impact is most visible to communities, and which causes most widespread concern. From our public opinion work we heard a strong message that the system only seems to care about serious crime - drug dealing, violence - and underestimates the community impact of less serious but persistent offending. We need to redress this impression by engaging actively with communities, as we have done over anti-social behaviour. Confidence that this level of the system works well is critical to restoring public confidence in the criminal justice system as a whole.

5. So our goal is not just a better version of the system we have. It is about a system which delivers summary justice in a different way. Our goal is to engage communities in tackling low level offending, and to do that effectively we need a new approach. Visible and speedy reparation to communities as the collective victim of crime is important. Enhancing the roles which lay people can play at the heart of the system helps to demonstrate our commitment to break down the barriers between professionals and communities. This is not just about listening to public opinion - it is about giving community members a real say in how the service is delivered.

6. We recognise the challenges here, and the importance of not eroding key principles like the independence of judicial decision making on individual cases. But we want a different kind of justice service, which does more than simply process the offenders who come through its entry points. We want a service which addresses the needs of communities as well as the deeds - and the needs - of offenders.

7. That is why we are now putting forward proposals for reform of summary justice. The offences with which the summary justice system deals may not individually be serious, but their volume means that cumulatively they are the ones whose successful handling is critical to the confident Scotland which we are seeking to build.

How we reached this point; the McInnes report

8. In September 2001 Jim Wallace (then Minister for Justice) announced proposals to review the provision of summary justice in Scotland. To take this forward, the Summary Justice Review Committee was appointed under the chairmanship of Sheriff Principal John McInnes. The 'McInnes Committee's' remit was:

'to review the provision of summary justice in Scotland, including the structures and procedures of the Sheriff Courts and District Courts as they relate to summary business and the inter-relation between the two levels of court, and to make recommendations for the more efficient and effective delivery of summary justice in Scotland.'

9. Consultation was a key feature of the Committee's approach. In 2002, the Committee examined the high-level issues in a paper-based consultation exercise. In 2003 it held a series of events at which summary justice practitioners discussed a number of technical proposals considered by the Committee. The Committee also commissioned a large-scale public survey that was conducted in January and February 2003 and continued to develop its proposals through a series of bilateral meetings with interested groups in 2003.

10. The 'McInnes report' ¹ was published on 16 March 2004. It made recommendations on a number of significant issues, including the structure of the summary justice system, judges in the summary courts and the procedures to be followed in court cases. Before reaching any decisions on the recommendations made in the report a period of open consultation was held by the Executive to obtain the views of organisations with an involvement or interest in the criminal justice system, as well as the public generally. A four month period of open consultation followed publication. A total of 240 responses were received and analysed and a wealth of information provided. An analysis of the consultation responses was carried out by independent consultants on behalf of the Executive ². In order to gather a wider range of views on the issues of community involvement in the justice system and the use of alternatives to prosecution the Executive also commissioned research ³ on these subjects, which took place in the second half of 2004. In reaching decisions on the way forward we therefore have the benefit of views from an expert committee, interested consultees and an objective sample of public opinion. Our proposals reflect the range of views submitted.

11. On 25 March 2004, shortly after the report was published, its recommendations were debated by the Scottish Parliament. We took from that debate clear messages that a practical focus on better outcomes was vital.

Summary justice and the community

12. As we have said, the summary system is more than a series of processes by which professionals ensure that an accused's behaviour is effectively dealt with. It is a public service, which needs to command the confidence and consent of the community at large. So it was important to look at what community members thought of it, and how we could increase their engagement and sense of ownership.

13. Individual partners in the justice system already engage with communities. Last year's report by Her Majesty's Inspectorate of Constabulary 'Local Connections; Policing with the Communities' ⁴ noted the extent of current activity and recommended the extension of existing links by, for example, the extended use of public perception surveys to engage with local people on policing priorities. And procurators fiscal engage with the public in relation to sensitive areas like the handling of domestic violence, and also in relation to diversity/race issues. Likewise, the Scottish Court Service conducts regular sample surveys of customer satisfaction with the services it provides.

14. In 2003 we consulted extensively on our proposals for legislation on anti-social behaviour, with a focus on face to face engagement. A series of 70 Ministerial and official visits to key stakeholders and to local communities was complemented by a series of detailed focus groups and in-depth interviews, as well as the more traditional written responses.

15. This highlighted the feeling within communities that although they were frequently asked to give their views on problems, they rarely or never saw effective follow up which indicated that agencies had taken those views seriously and acted upon them. And there was a sense of helplessness in the face of behaviour which, although low-level, caused constant stress and lowered the quality of life.

16. In response, our package of legislation and investment in anti-social behaviour seeks to build community confidence that action will be taken and that victims of anti-social behaviour will be supported. Investment in community wardens, greater support to witnesses and victims, support for mediation, dedicated ASB 'helplines' and a continuing public information campaign - all this helps to demonstrate continued commitment to resolving the problem.

17. In addition, we carried out last year a substantial piece of research ⁵ involving two separate sets of high level interviews with a sample of 1000 adults, supplemented by 12 focus group discussions and 16 one to one interviews with community leaders and representatives of particularly vulnerable groups. This complemented the earlier work on anti-social behaviour, seeking views on the handling of offences by the summary criminal justice system.

18. We asked those taking part to tell us whether they felt that the system listened to their views on less serious offending, what messages they would want to convey, and what methods of communication they would find most helpful. We also listed a number of potential formal roles for community members - including that of being a lay justice, and of deciding what types of unpaid work offenders should do locally as part of their community service.

19. While community members could identify existing channels of communication, there was considerable doubt and cynicism about whether action was taken on the matters raised - and this was particularly marked in deprived areas. This reflected views given during the anti-social behaviour consultation.

20. Most respondents, when questioned, felt that the system should provide a range of ways in which community members could make their views on law enforcement and community safety known. Public meetings were more popular amongst older respondents, while e-mail was more strongly favoured by younger ones.

21. It was, however, noticeable that when participants in the second large scale survey were asked what methods of communication they would personally use, levels of interest halved. Some residents in more prosperous areas had little perception of low-level crime, and therefore little sense that it was 'their' problem. Residents in deprived areas were uncertain about what could be achieved, and sometimes expressed the view that minor offending had simply become a normal part of everyday life which was greeted with weary acceptance rather than outrage. Again, similar views were expressed in the anti-social behaviour consultation.

22. When we asked what formal roles residents would welcome there was a good level of interest in the role of a lay justice. By far the most popular option, however, was that of deciding what work should be carried out within their local area by offenders offered community-based alternatives to prosecution - 83% thought this role should be available, and 35% would be interested in it personally.

23. We have also begun to act upon the need to engage communities actively in the nature of community work to be carried out in their areas. Community reparation orders, which will be piloted this year in Dundee, Inverness and Greenock, will build on the views of local people about what should be done. Local authorities will have a statutory duty to consult with community groups and organisations about the nature of reparation to be undertaken by offenders in their area. This consultation process will include, for example, community safety partnerships, police, retail organisations and victims groups amongst others.

24. In terms of services which support communities by supporting offenders, we have been learning lessons from our own problem-solving courts - the drug courts, youth courts and the recently created Glasgow domestic abuse court. These courts take a multi-agency approach to the problem, with shared objectives and a co-ordinated approach to the kinds of support an offender may need, without eroding the independence of the sentencer. And one factor appreciated by both sentencers and offenders is the systematic follow-up of offenders by the same judge, so that progress can be monitored, success recognised and failure dealt with by someone who knows the whole story. We have also visited a number of problem-solving community justice initiatives elsewhere.

Our package of reform

25. Our package of reform builds upon the recommendations proposed by the Committee, consultees, those involved in the administration of the summary justice system and, most importantly, the public. We are clear that summary justice reform must:

• deliver effective solutions to the problem of persistent but minor offenders whilst building community confidence in our handling of minor crime;
• play its part in promoting safer communities - we need efficient handling of cases as well as effective management of sentenced offenders;
• engage local people in the development, delivery and monitoring of new services;
• create greater speed and efficiency in the system - providing effective responses to offending which reinforce that offences have consequences, reduce the scope for further offending and make best use of system resources, particularly the time of committed professionals;
• deliver smart disposals - the majority of sentences of six months or less (which give prison little time for rehabilitation) are passed by the summary courts; and we need disposals which tackle needs as well as deeds;
• deliver services which are appropriate to local needs rather than taking a 'one size fits all' approach;
• generate a greater focus on the needs of victims, witnesses and the accused - not service providers - at the heart of the system;
• engender a collective commitment from all the agencies to work together to ensure that organisational boundaries never become barriers to justice;
• produce better case information - which will travel with the offender from the moment of arrest and charge to the moment of disposal, so that everyone involved at every stage knows the full picture - whilst providing reassurance to victims that courts reach decisions from a fully informed position; and
• produce better management information - about what really happens in the system now and information about how best to improve the system.

26. Above all, we need to focus on outcomes rather than process. Every change we make to our systems ought to be judged by a simple benchmark: will this contribute to a reduction in reoffending and make our communities safer, better places to live?

A plan of action

27. Delivering on this agenda requires us to look at the underlying system in quite fundamental ways. We have considered the structure, processes and personnel involved in the handling of less serious crime and believe that the changes proposed in this paper will improve them. And we have considered throughout how best to ensure that the lay perspective is represented at the heart of the system. Our proposals on the future structure of summary criminal courts and the judiciary in those courts are made clear in chapters 1 and 2.

28. We will introduce a package of procedural/system improvements that will help deliver on the goals outlined above - better case handling, smart interventions and effective enforcement of penalties. Chapters 2, 3 and 4 outline the overall direction of change and detail a number of specific improvements. Detailed change in this area will be technical and complex in places. We will work with stakeholders to ensure that revised procedures serve their purpose.

29. Chapter 5 sets out briefly how we will take this agenda forward in partnership with stakeholders. We will make a number of changes to the law and are committed to introducing legislation on summary justice reform in the lifetime of this Parliament. But we will also take a flexible approach to introducing reform, as different communities have different needs. We will focus on the outcome we all seek; confident communities in which all crime is taken seriously, but where needs as well as deeds are addressed and reoffending is reduced.