Matthew McGovern

Proponents of summary justice reform always end up sounding a bit like proponents of communism or Brexit: the idea itself is never flawed, it just hasn’t been properly implemented (yet). However the Summary Case Management Pilot has been successfully implemented, which is evidenced by the Summary Case Management (SCM) Pilot: Final Evaluation report published last month which detailed some very encouraging results. 

As a solicitor who practices in one of the pilot courts (as well as having represented colleagues at both a local and, latterly, national level during the pilot), I think I am well-placed to offer some personal reflections in relation to why the SCM pilot has succeeded as well as outlining a proposal to reform the legal aid scheme in order to maximise the benefits the SCM offers the entire justice system.

In short, SCM means the defence receive key evidence in advance of any plea being tendered, for example if there is CCTV evidence then the case will be continued without plea to allow the footage to be disclosed to the defence. My experience of this is that it has worked well with increasingly fewer cases requiring to be continued on multiple occasions for disclosure to take place. In cases involving allegations of domestic abuse, key evidence will usually take the form of witness statements and perhaps a 999 call and/or text messages.

The advantage for the accused is obvious: they benefit from the maximum available discount under the terms of s.196 of the Criminal Procedure (Scotland) Act 1995 as well as being able to have their case concluded within weeks rather than months. Equally SCM offers potential benefits for criminal defence lawyers not least destroying the ‘Big Lie’ of legal aid: namely that solicitors deliberately churn cases to maximise the fee available. In reality, this is nothing more than gaslighting. Firms receive a fixed fee regardless of how many hearings the case takes to conclude. The fewer hearings that require to be fixed, the more profitable the case is (or, perhaps more accurately, the less unprofitable it is). Early resolution of appropriate cases is in our interests perhaps more so than any other justice partner’s interest.

SCM involves far stricter judicial management at an earlier stage of the case and it is important firstly to establish what this does not mean: SCM does not compel solicitors to agree evidence that is contentious, far less force accused persons to tender pleas of guilty to charges they do not accept. Last year 91 per cent of summary complaints resolved without evidence being led at a trial and the purpose of SCM is to ensure a lower percentage of those 91 per cent resolve on the morning of the trial (rather than attempting to reduce the nine per cent of cases that proceed to trial). Stricter judicial management allows for better focused trials and reduces the number of witnesses requiring to be cited. This has allowed my firm to better manage our court diary which now has fewer trial diets in the diary and far fewer trial diets which are adjourned on the morning of the trial due to a lack of disclosure or due to the absence of essential crown witnesses.

Given that it is in the interests of both the accused and the defence lawyer to resolve appropriate cases at an early stage of proceedings, it is appropriate to consider why comparatively few cases resolve prior to the morning of a trial diet and, from experience, responsibility lies more often at the Crown’s door than anywhere else. I appreciate deputes in court often have contend with a busy court and don’t always have the time to properly consider cases with a view to resolving. Historically this is often exacerbated by the police not having lodged evidence in the case. However, this has created a culture that too often encourages the Crown avoiding making a decision about the case. This approach is at odds with the aims of the SCM pilot.

My experience of the SCM pilot is almost exclusively from Hamilton Sheriff Court and I have not had enough experience in any other pilot court to offer informed comment about practices there but my experience of how the Procurator Fiscal’s office in Hamilton have worked throughout the pilot has been very positive. Senior prosecutors within the office have worked extremely hard to ensure deputes (including trainee solicitors) are empowered to make decisions about cases at a far earlier stage of proceedings. Whilst the Crown will have benefited from having the evidence available to consider prior to a plea being tendered (which allows for more informed decision making), the collaborative efforts at Hamilton have, in my view, gone beyond that with all summary deputes now applying legal principles to the evidence as well as focusing on the likely outcome upon conviction. 

Delaying resolution of appropriate cases is not in anyone’s interests, not least of all complainers, witnesses and victims. This approach is a material and welcomed change and is, in my view, a significant success of the SCM pilot. If SCM is to be rolled out nationwide, the constructive approach adopted locally at Hamilton should represent the gold standard for all fiscal offices across Scotland.

Defence lawyers have two principal complaints when it comes to the justice system: respect and funding. It is a truth that is self-evident that when it comes to criminal justice reform, those who aren’t at the table find themselves on the menu - and the defence are rarely at the table. If Sheriff Principal Anwar had adopted this traditional approach to the SCM pilot, she would have achieved the traditional result: failure. Instead, at both a local and national level, the defence have been treated respectfully throughout the pilot scheme and the results vindicate her inclusive approach.

Whilst respect was within the gift of the those leading the pilot, funding was not. At the outset of the pilot, the Scottish Legal Aid Board (SLAB) introduced superficial changes to the legal scheme which did not address the key problem: different financial eligibility tests created a perverse incentive to plead not guilty rather than guilty. This led to solicitors boycotting the pilot scheme as we were not prepared to participate in a scheme which would undermine access to justice. Sheriff Principal Anwar introduced a workaround to this problem which explains why the defence ultimately participated. However, for the full benefits of SCM to be realised the Scottish government will need to go further. They should introduce changes to the legal scheme which will encourage agreement of evidence and early resolution of appropriate cases.
  
The fee for conducting a sheriff court summary trial that last more than 30 minutes is £113.56. Putting aside the obvious inadequacy of that fee, I will take it as my starting point. In any case where the profession can agree evidence that reduce the number of witnesses requiring to be cited, there should be an additional fee of £56.78 (half of the trial fixed fee). If the case can be resolved without witnesses requiring to be cited, solicitors should be able to claim a fee of £113.56.

Any costs of the legal aid budget will be offset in saving to the wider justice system. The Scottish Legal Aid Board will likely argue that the fixed fee (£572 and, for context, it was £515 when it was introduced in 1999) already covers this work. However, that is misleading. The complexity of summary prosecutions have increased exponentially since 1999 and the pilot requires the profession to undertake work in a far shorter period of time than before. This puts additional pressure on already stretched criminal defence firms. The SLAB’s traditional approach of ignoring the problem and hoping it goes away is unlikely to work given the relationship between the profession and government has already broken down.

The profession’s hard work has delivered potentially significant benefits for the broader justice system. We have prevented vulnerable witnesses requiring to be cited to attend court and significantly reduced the number of police officers removed from the front line to sit in a witness room all day only to be told they are not required to give evidence. I support the aims of SCM and recognise the benefits it can offer both my clients and my business. However, I also recognise reality and the Scottish government must engage constructively with the profession to maximise the potential benefits the SCM offers the criminal justice system. If they fail to do so, the failure will theirs and theirs alone.

Sheriff Principal Anwar has proven that when the defence are treated with respect, the administration of justice improves - now imagine what can be achieved if the underfunding was addressed.