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BY ELAINE SAMUEL University of Edinburgh AND IAN CLARK Scottish Government Social Research
ANNEX L: FINDINGS FROM PUBLIC FOCUS GROUPS (George Street Research)
PUBLIC CONSULTATION ON ‘IMPROVING PRACTICE: 2002 REVIEW OF THE PRACTICES AND PROCEDURE OF THE HIGH COURT OF JUSTICIARY
Emma McCallum, MA (Hons), PhD
Jenny Stewart, MA (Hons) MSc
Acknowledgements
The information gathered in this report is based upon the input of a number of key individuals and organisations. We are extremely grateful to the following in particular:
Elaine Samuel |
Bonomy Consultation Team |
Tom Fyffe |
Bonomy Consultation Team |
Moira Ramage |
Bonomy Consultation Team |
Ian Clark |
Scottish Government Social Research |
EXECUTIVE SUMMARY
Focus group participants’ views on the Scottish legal system were often influenced by their (and their families’ and friends’) experiences as witnesses and jurors. These experiences were usually characterised by delays, inefficiency and frustration. No one mentioned any direct experience of being the accused or victim in a legal case. However, some participants were relatives of victims. Participants spoke of being increasingly influenced by media coverage of legal situations, both real and imagined, taking place in England and the USA.
Participants responded positively to recommendations that cases potentially meriting custodial sentences of three to five years be tried at Sheriff Courts instead of the High Court. However, they made exceptions for any cases involving weapons, violence, drug dealing, or appeals. All of these, they argued, should be tried at the High Court.
Some participants were confident that, in theory, the quality of High Court trial proceedings, and the consistency of sentencing, could be carried over to the Sheriff Courts. Others were less convinced, and would need reassurance. However, overall, there was general uncertainty about whether Sheriff Courts would have the resources and capacity to practically allow the recommendations to be implemented. The motivations, and logistics, behind the recommend change were widely questioned. Participants were concerned that the proposed changes might be motivated by a drive to reduce costs, rather than a desire for justice. That the latter was the case would need to be demonstrated.
Regarding recommendations to increase the number of High Court trials taking place outside of the dedicated High Court buildings in Edinburgh and Glasgow, participants were ambivalent. In general, the proposal for a High Court travelling around Scotland on a circuit was seen as unconvincing, for logistical reasons. Additionally, some argued that for more serious — and therefore possibly more traumatic — cases (for instance, cases potentially meriting a custodial sentence of more than 5 years) victims and witnesses might prefer to attend trial in a dedicated High Court facility outwith their local area. In such cases, distance from the locality of the crime, rather than proximity, was seen as desirable. There were also a few suggestions that new dedicated High Court facilities should be created to serve the north of Scotland. Inverness was mentioned as a possible location.
Regarding recommendations for the introduction of preliminary diets and statutory time limits, participants expressed great concern about the current situation. Participants were largely unaware of the likelihood of trial adjournments and cancellations due to incomplete, or delayed, sharing of information between the prosecution and the defence. This state of affairs was seen as shocking. These inefficiencies were put down to poor administration and lack of regulation — or, worse, malingering by the defence — rather than lack of time. The regulated, timely and comprehensive sharing of information prior to trial hearing would be welcomed by all participants as a basic prerequisite of the justice system. However, the proposed extension of the statutory time limit for the sharing of information from 110 days to 140 days was rejected. Rather, some participants suggested that this time limit should in fact be reduced.
Recommendations that a discounted sentence be awarded in return for an early guilty plea from the accused were strongly opposed. Sentence discounting was seen as running contrary to the fundamental precepts of the justice system, such as the commitment to being fair, consistent and transparent. The admission of guilt was not seen as being worthy of reward. Rather, it was argued that the false protestation of innocence merits punishment, in addition to the sentence for the crime carried out. Penalising such deceit was seen as being a more acceptable method of ‘encouraging early guilty pleas’. There was additional concern that sentence discounting might pressurise the innocent to plead guilty.
For all the same reasons, participants were against the proposal to suspend sentences in return for early guilty pleas. They were particularly resistant to the idea of suspended sentences for anything other than the most minor crimes.
An important, and perhaps unexpected, feature of the group discussions was the relative consistency of views on the current High Court system and the proposals put forward. This consistency was evident despite differing group composition, in terms of age, gender, ethnicity and occupation, and despite participants’ contrasting levels of High Court experience.
CHAPTER 1: INTRODUCTION
This chapter outlines the background to the consultation. It is based on information provided by the Scottish Government, primarily in the internal document Consulting the Public: Background for Focus Groups to be conducted by George Street Research.
In 2002, the Honourable Lord Bonomy, a High Court judge, undertook a review of the High Court in Scotland and its operations. The main aim of the review was to look at the current practices and procedures of the High Court, and how they might be improved. The review findings were published in the Scottish Executive report Improving Practice: the 2002 Review of the Practices and Procedure of the High Court of Justiciary5.
The review took into account the variety of roles associated with the High Court, both those of High Court staff, and High Court visitors, including jurors, witnesses, victims and the accused.
The Scottish High Court has seen substantial logistical change over the last six years or so. Whilst the number of new cases sent for trial to the High Court has remained roughly the same, the average number of times that a case calls in court has risen steeply. The likelihood of a case being adjourned has increased greatly, as has the likelihood of a case being adjourned more than once. This results in increased strain on the High Court system.
The key consequences of the rise in the number of adjourned trials are:
1. Increased distress and disruption for many groups of people, for instance, victims, their relatives and witnesses. Many arrive at the High Court before they find out that the trial has been adjourned. The trial may then be rescheduled for 2-4 weeks time, or sometimes longer. However, subsequent adjournments are common.
2. Inefficient use of court resources. For instance, the adjournment of a case often occurs without warning to the court’s administration. The court room cannot be reallocated and stands empty. Court staff and judges’ time cannot be re-deployed at such short notice. The defence counsel are paid a full day’s legal aid fee simply to attend court and agree that the case should be adjourned.
3. Inefficient use of Crown resources. The Crown, responsible for the prosecution, allocates individual prosecutors to court sittings. However, each time a case is adjourned the continuity of the prosecutor involved in the case is likely to be broken. As a result, the prosecutor’s preparatory work on the case may be lost. The Crown also has to arrange, and pay for, the return of all of prosecution witnesses to the court each time a case is adjourned.
The Review acknowledges that the distress and inconvenience caused to members of the public by court cases can never be completely eliminated. Nevertheless, it is argued that the workings of the High Court should be better organised, and made more efficient.
Lord Bonomy calls for an improved system whereby those attending the court "are brought to the court at the stage when the case is likely to be heard".
In 2001, only 14% of all High Court cases proceeded on the original date set. Of the remaining 86%, many were adjourned for a later date. In some cases, the accused pleaded guilty on the day of trial.
Many of the wide-ranging recommendations contained in the Review have in common the aims of either increasing the certainty of cases going ahead according to schedule, or the optimisation of information exchange before the date of the court sitting. Altogether, the report made 27 sets of recommendations. These were based on research evidence and consultation with individuals, and professional and voluntary bodies.
Many of the sets of recommendations are likely to be of interest only to those involved with the High Court in a professional capacity. However, four sets of recommendations were singled out as being of particular relevance to the general public. These sets of recommendations were, by title:
- The High Court and the Cases it Hears
- The Location of the High Court
- The Introduction of Preliminary Diets and Statutory Time Limits
- The Introduction of Sentencing Discounts for Early Guilty Pleas
George Street Research was commissioned to investigate the reactions of different groups of individuals to these sets of recommendations. This report presents the findings from the consultation.
CHAPTER 2: Method and sample
This chapter explains the method and sample involved in the consultation.
A series of six focus groups were held at various locations across Scotland. All groups were carried out between March 12 and March 13, 2003. Each group comprised a different category of members of the public, representing minority interests in Scotland. This is illustrated by the table below.
Focus Group |
Participant Category |
Location |
Age range |
Sex |
1 |
Various ethnic minority groups |
Glasgow |
21-53 years old |
5 females, 3 males |
2 |
Occupation groupings DE |
Glasgow |
45-65 years old |
1 female, 5 males |
3 |
Inhabitants of Rural Areas |
Alness |
30-75 years old |
3 females, 2 male |
4 |
Young People, Aged 16-24 |
Edinburgh |
16-24 years old |
4 females, 4 males |
5 |
Older People, Aged 50+ |
Edinburgh |
50-74 years old |
4 females, 3 males |
6 |
Women |
Glasgow |
28-65 years old |
8 females |
The same topic guide was used to direct all group discussions and a copy is attached as an appendix to this report. The guide provided background information, and outlined the four issues, extracted from the Hon. Lord Bonomy’s report, in turn.
A facilitator guided the group participants in the discussion of each set of recommendations. Each group lasted around 90 minutes. The discussions were tape recorded, and then transcribed. The analysis of the findings was based on the content of the transcripts. Quotations have been used to illustrate the main points made.
Any attempt to quantify the number of participants who had had personal experience of the High Court system would be misleading. While participants did voluntarily mention having had various experiences of the high court, including being called up as a witness or being appointed to act as a juror, some experiences may well have remained unmentioned in order to retain their privacy. Additionally, some participants may have imagined that their experiences had occurred too far in the past, or were too indirect or too disjointed from the flow of the group discussion, to be relevant.
Nevertheless, accounts of direct and indirect experience of the High Court system in Scotland were given. In two of the groups, many of the participants had had contact with the High Court system. More specifically, in the Women’s Group, several in the group mentioned having served as jurors, one had been a witness and one an interpreter. In the older persons’ (50+) group, several mentioned having had direct contact with the High Court system as jurors or witnesses, or both. However, on reflection, it seems likely that all the people in this group will have had a wide range of other, unmentioned experiences of the High Court system over the 50 or so years of their life. For example, many people aged over 50 will have, at some point, been influenced by occurrences such as a neighbour going to court, a parent being a witness, a friend being a juror, or the person in the next street being sentenced for a crime. By contrast, in the young persons’ (16-24 years old) group, no one mentioned having had any direct contact with the High Court system. In the DE Group, one participant said he had served as a witness and another said he had served as a juror. In the Rural Group, one person had been a witness. Other rural participants did not mention having had any direct High Court experience.
Additionally, several group participants had had some contact with the Sheriff Court that may have impacted on their opinions. For instance, in the Ethnic Minority Group, one participant had a relative who had been through the Sheriff Court system as the accused and had spent some time in prison. In the Rural Group, one participant said they had been charged with a driving offence.
CHAPTER 3: THE HIGH COURT AND THE CASES IT HEARS
This chapter provides a synopsis of comments from all six focus groups in response to recommendations in the review regarding the High Court and the cases it hears.
3.1 Recommendations for Discussion
1. To limit the number of cases directed to the High Court, it is proposed that only those cases which might result in one, or more, of the accused being sentenced to more than five years in prison should be tried there. Cases where the sentence is likely to be less than five years should not be tried at the High Court. Exceptions would be allowed only when it is deemed to be in the public interest to do so. (At present, all cases which might result in a custodial sentence of more than three years are tried at the High Court.)
2. In conjunction with the above, it is proposed that all cases which might result in one, or more, of the accused being sentenced to less than five years in prison should be tried at the Sheriff Court, by the Sheriff and a jury under ‘solemn procedure’. This would involve the diversion of all those cases that might result in a custodial sentence of between 3 and 5 years, which would currently be tried at the High Court. (Almost 30% of the sentences imposed by the High Court fall into this category.)
3.2 Focus Group Background Information
1. In 2001, two thirds (67%) of all those sentenced to over three and up to five years in custody were charged with drug related offences, assault or robbery, including housebreaking. Sheriffs are already used to dealing with such crimes under solemn procedure.
2. There are more Sheriff courts, in more locations across Scotland, than there are High Courts (the two dedicated High Courts are located in Edinburgh and Glasgow). Therefore cases diverted to the Sheriff Court, as per the recommendation above, are likely be heard closer to the scene of the crime. Arguably, this might increase convenience for members of the general public involved in the case.
3.3 Focus Group Aim
The aim of the focus groups, relating to the above, was to explore views on the redirection of certain types of criminal cases (namely, those which might merit a custodial sentence of between three and five years) from the High Court to Sheriff Courts.
3.4 Synopsis of Group Discussion
All groups agreed that the recommendations for certain cases to be heard at the local Sheriff Court instead of the High Court were acceptable. These recommendations would be beneficial if they contributed to a reduction in delays in the legal system.
There were no major objections. Notions of justice and the justice system were not perceived to be undermined as a result of these recommendations:
"I don’t think it matters which court it is in as long as the sentence is appropriate. As long as the sentence is defined in the law."
(50+ Group)
"As long as it speeds up the system, and the sentences correspond with the crime, I don’t see a problem with that."
(Rural Group)
Participants stressed legal proceedings would need to be administered at the Sheriff Court with the same professional rigour, and to the same high standards, as at the High Court. Participants were also concerned that sentencing would have to be at least as consistent as, and no more lenient than, that currently meted out by the High Court. There were concerns that the legal system is already inconsistent, and some participants worried that Sheriffs might introduce greater inconsistency:
"It would be OK as long as they were going to be dealt with in the same way as if they went to High Court. You know? As long as the Sheriffs weren’t going to be more lenient with them, then it would be fine — if it would help to alleviate the backlog in the High Court."
(Women’s Group)
One participant continued to believe that if a case was heard in the Sheriff Court, the accused would inevitably receive a lesser sentence than if the case had been heard in the High Court. Such concerns would need to be assuaged.
Additionally, some participants questioned whether Sheriff Court staff were qualified or equipped to try more serious cases:
"Presumably, the people who work in the sheriff court will have to have further training so they can deal with serious crimes. And presumably that will cost a fair bit of money?"
(16-24 Group)
Some participants were concerned that differences in professional training and experience would result in Sheriffs not according the same consideration to a hearing as High Court judges:
"You have these cases reserved for the High Courts, for the more qualified judges… Why push them down to the less qualified judges? It would be better to make more High Court judges."
(Ethnic Minority Group)
There was some agreement that the public might benefit from trials being held closer to the scene of the crime. For instance, it was suggested this proximity might be beneficial if it allowed victims to attend trial at a location nearer their home:
"If you are a victim of crime or a family of a victim, its going to be less traumatic for you to be nearer…to be able to travel from home if you were going to the court every day, rather than having to go and stay in a hotel or something like that."
(16-24 Group)
Participants specified that local trials might be appropriate for several of the ‘less serious’ types of case likely to fall within the 3-5 years sentencing bracket. For example, it was suggested that ‘less serious’ cases suitable for trial at the Sheriff Court might include first-time offences, but not offences involving violence, or weapons. Cases involving the possession of drugs would also be classed as ‘less serious’, but cases involving drug dealing would merit a High Court hearing.
"I accept fully that the very serious crimes should still be dealt with in courts in Glasgow and Edinburgh. Things like drugs, I feel that the closer to home it is dealt with the better."
(50+ Group)
"If there’s a weapon used in any way, it should definitely be High Court."
(Rural Group)
It was commented that all appeals should still be heard at the High Court only, due to the fact they are challenging previous court decisions.
All groups raised practical questions regarding the logistical implications of shifting a large number of cases from the High Court to the Sheriff Courts. Generally, participants wondered whether the Sheriff Courts could offer the capacity required, and whether resourcing would be adequate to deal with an increased caseload. If Sheriff Courts are currently as over-stretched as the High Courts, then shifting the caseload would not be a solution. There were concerns about ‘passing the buck’ and moving the problem ‘down the chain’:
"I imagine the Sheriff Courts would be busy as well?" "Is there too much backlog in the High Court system?"
(16-24 Group)
"Is this just shifting the problem?"
(50+ Group)
"What about our own local Sheriff Courts? I mean, they’re really busy, all the time."
(Rural Group)
One participant, who had a relatively high awareness of the court structure in Scotland, wondered whether the Sheriff Court would then offload its more minor cases to the District Court.
In this context, participants in several groups spontaneously suggested that more High Courts could be opened, particularly to service the North of Scotland. Aberdeen and Inverness were seen by some to be large enough to warrant a dedicated High Court. A few participants questioned why there were not High Courts already in these cities. This issue will be explored in more depth in the next chapter.
More generally, there was a certain gravitas associated with the High Court, which a few participants mentioned should be preserved, regardless of any change of trial location or venue. One or two participants were worried that if cases were heard at the Sheriff Court they would be seen as less important, or less serious.
Participants were concerned that a quest to save costs might be at the root of the recommendations to move cases from the High Courts to the Sheriff Courts. If this speculation is correct, then the recommendations, as presented, would be unacceptable to the public. In essence, cost saving measures were seen as being incompatible with the central workings of the justice system.
On the other hand, if the Review’s recommendations are made in the pursuit of justice, they may well be acceptable to the public:
"There’s people waiting for years sometimes to go to the High Court. So if it’s going to cut down waiting times, at the end of the day it’s going to be a good thing."
(DE Group)
However, there remains a fundamental requirement for detailed and comprehensive logistical information about court activities, staffing and resources to be collated. Only on the basis of this information can sensible decisions be made about the possible re-allocation of cases from the High Courts to the Sheriff Courts.
On the basis of these discussions, if it can be ascertained that the logistical efficiency of the legal system will be improved without any compromise in standards of judiciary, we would suggest that the recommendations regarding the High Court and the cases it hears be progressed.
CHAPTER 4: the location of the High Court
This chapter provides a synopsis of comments from all six focus groups in response to recommendations in the review regarding the location of the High Court.
4.1 Recommendations for Discussion
1. The High Court should continue to sit throughout Scotland.
2. The Scottish Court Service should provide more court rooms in which to accommodate the High Court. In particular, a courtroom should be provided in the following locations:
i. Aberdeen, for the exclusive use of the High Court
ii. Dundee, where the High Court should meet regularly
iii. Perth, for occasional use of the High Court
4.2 Focus Group Background Information
1 Lord Bonomy’s recommendations aim to promote the principle of maintaining High Court sittings throughout Scotland so as to hear cases in the vicinity in which the alleged crimes were committed.
2. His solution, however, involves some expenditure (probably at the cost of a reduction in other services, rather than tax hikes)
3. His solution may not be to the liking of professionals working in the High Court, who will be required to travel more than before.
4.3 Focus Group Aim
The aim of the focus groups, relating to the above, is to "assess the salience of ‘local justice’, particularly in light of increasing expenditure on court facilities. What is local ownership of justice worth? How desirable — or desired — is it? What sacrifices should be made for it?"
4.4 Synopsis of Group Discussion
There was a range of responses to the recommendations that the High Court travel on a circuit to various locations across Scotland. It was difficult for participants to get any clear picture of what a moving High Court might involve, particularly in terms of numbers of staff and other resources. However, many thought it seemed logistically nonsensical to move the High Court.
"I think it should stay because it is wasting more time moving about the place as well."
(Ethnic Minority Group)
There were concerns that a travelling High Court might incur further delays in the system, due to limited availability of staff and resources, and the time taken up travelling between locations:
"Travelling around is bound to decrease the number of cases a year (heard) by that court, unless you double the staff numbers…is it just stringing out the whole process?"
(16-24 Group)
"It should be in the centre (ie central belt). I mean that’s where it should be."
(Rural Group)
Participants were strongly against the idea of local High Court hearings if these meant that it took longer for a case to come to trial. It was also reckoned that it would be less costly to pay for jurors, witnesses and victims to travel to the High Court (as currently happens), than it would be to pay for High Court staff to travel to the locality of the crime (as proposed):
"There is a lot of infrastructure behind the judge. There is an awful lot that goes on behind the scenes. It is not just the judge. There is the clerk of court and the ushers…I don’t think you can take one person. It would be a team of people who would have to move."
(50+ Group)
Participants tended to think that members of the population are accepting of the current set-up, whereby those involved in High Court cases must travel to Glasgow or Edinburgh for High Court hearings. In fact, the very travelling itself, in order to reach a dedicated venue in a major city, and all the associated administration and formality, was seen to add to the gravitas of the High Court and the crime committed. It was hard to see why one might want to uproot the High Court’s grounded stability and seriousness by taking away its concrete structure:
"The expense of moving something around might not be worth it. I don’t see why you have to move anything. You have what I presume is a perfectly good facility in Edinburgh and Glasgow."
(50+ Group)
Counter to the idea of ‘local justice’, some participants, in several groups, actually thought that the fact that the High Court is not local is an advantage. This section of dialogue came from the DE Group discussion:
Participant J:Is it not preferable if a case is heard quite a distance away from…
Participant K: local feelings?
Participant J: Yeah, yeah.
Facilitator: So you think its better to be held further away?
Participant J: Yeah. Yeah.
Participant K: For the sake of witnesses and the accused.
(DE Group)
Participants emphasised that travelling itself was not a key problem. Rather, the challenge which needs tackled urgently is the repeated last-minute cancellation of cases. It is this inefficiency which demands that witnesses and jurors travel, and hang around court rooms, unnecessarily. If trials proceed on time, and with full information, then it may be perfectly acceptable for witnesses and jurors to have to attend hearings in Glasgow or Edinburgh. One or two participants had themselves been witnesses, and had travelled to court only to be told that the case they were attending had been adjourned at the last minute. Their comments were therefore based on practical experience of the situation to be addressed.
Participants linked their responses to the recommendations for localised High Court hearings back to earlier discussions about the diversion of some cases from the High Court to the Sheriff Courts. They pointed out that this diversion would serve to provide more ‘local justice’ and eliminate the (debatable) need for the High Court to travel.
To summarise, then, a travelling High Court, or additional High Court locations, may not be a priority for the public overall.
However, there was some agreement that an additional dedicated High Court facility, serving the North of Scotland, might be beneficial. Inverness, and, secondarily, Aberdeen were mentioned as possible locations. Both were seen as large cities which would benefit from a dedicated High Court and many respondents did not understand why at least one of these does not currently have a dedicated High Court.
"I think there should be more High Courts. I think there should be one in every major city ... All the cities. Aberdeen, Dundee, Edinburgh, Glasgow …Inverness should have one."
(Women’s Group)
The following piece of dialogue is from the Rural Group’s discussions:
Participant A: "I would still like to see it (the High Court) in Inverness."
Facilitator: "Why?"
Participant A: "Because it is witnesses and stuff as well…I would just like it to be in Inverness."
Facilitator: And everybody else, do you all disagree with that?
Participant B: Yeah, yeah.
Participant C: As long as they’re tried.
Participant D: And everybody gets reimbursed anyway.
Participant C: Yeah, you get your travel expenses.
(Rural Group)
A few participants — in contrast to others — considered that it was too much to expect rural residents, called as victims or witnesses, to travel to the Central Belt. Two participants, who had been victims in court cases, said that if there was a choice of location, it should be given to the victims. However, they didn’t think that having a choice of location was imperative.
There were some concerns that if High Court trials were carried out outside of the big cities, High Court activities and media attention might be intrusive to the local community. This might be the case in rural areas in particular.
Actual media coverage of trials, however, was expected to remain largely unaffected: High Court cases will be reported on regardless of whether the case is heard locally or not.
There was some concern that local sentiment might prejudice a fair trial. In the hypothetical case of a child murderer, those in the 50+ Group gave the following dialogue:
"You would have him guilty before he was tried."
"Jurors within 15 miles would already say they would get him sorted out."
"Whereas if he was taken to a central location like Edinburgh with a dispassionate jury then it is highly likely he would get a fair trial. If he was guilty, fair enough, and if he was innocent, fair enough."
(50+ Group)
Participants debated the logistics of increasing the number of High Court locations, whether by the development of a circuit, or by the creation of new, dedicated High Court buildings. If the motivation for increasing the number of locations is simply increased capacity, it was suggested that an alternative would be to extend the working hours of existing High Court facilities. This would allow more cases to be processed, with less upheaval and less expense.
CHAPTER 5: preliminary diets and statutory time limits
This chapter provides a synopsis of comments from all six focus groups in response to recommendations in the review regarding the introduction of preliminary diets and statutory time limits.
5.1 Recommendations for Discussion
In order to promote greater certainty as to which trials are going ahead, and when they are to go ahead:
1. There should be a new procedural hearing, to be known as a ‘preliminary diet. This new procedural hearing is mandatory.
2. The preliminary diet should be held within 110 days of the accused being fully committed in custody, or within 9 months if the accused is out on bail.
3. At the preliminary diet, the court will identify and dispose of those cases that are not going to trial, and will set a date for a trial if it is to go ahead.
4. The trial diet should occur within 30 days of the preliminary diet, if the accused is in custody, and within 3 months of the preliminary diet if the accused is on bail.
5. This will mean that the present statutory time limits of 110 days for persons remanded in custody will be extended to 140 days.
In order to ensure the protection of the public and to promote justice, where the accused is retained in custody over the statutory time limit of 140 days without an extension, he should be entitled to apply for bail rather than be "forever free".
5.2 Focus Group Background Information
At present, nothing is required to take place between the serving of the indictment and the day of the trial. Lord Bonomy’s recommendations intend to change this by introducing a mandatory preliminary diet at which cases which are going to trial will be identified by parties and the state of preparation of each side ascertained. The mandatory preliminary diet should have the following consequences:
1. Preliminary diets should help reduce the number of adjournments.
2. There will be greater certainty in the High Court as to what cases are going to trial and when, for both custody and bail cases.
3. The timing of the preliminary diet will require extending time limits in custody cases by 30 days.
4. Because so many trials are presently adjourned, the 110-day time limit is often extended in many custody cases, mainly to give the defence more time for preparation. The opportunity afforded by the extension of the 110-day time limit to 140 days should give the defence adequate time for preparation, while reducing the number of adjournments.
5. The preliminary diet will not affect the time limits in bail cases (that is, 12 months), but trials are more likely to go ahead within the year because the Crown will have prepared the case against the accused by the time of the preliminary diet, that is within nine months.
5.3 Focus Group Aim
The preliminary diet will increase certainty for all those involved in the High Court, whether professionals or members of the public. The aim of the focus groups, in relation to the above, is to explore views on whether the 110-day time limit in custody cases should be sacrificed (by extending it to 140 days) for the sake of greater certainty?
5.4 Synopsis Of Group Discussion
Focus group participants were surprised and dismayed at the apparent inefficiency and unreliability of the existing system. The length of time taken for cases to be concluded was seen as a "disgrace". Participants were particularly taken aback to hear that many cases are postponed or even dropped due to poor administration and communications:
"We’re in administrative difficulties here, aren’t we?"
(Rural Group)
There was agreement that a way to prevent last minute adjournments must be found, particularly when the reason given is simply that the defence have not had opportunity to familiarise themselves fully with the evidence submitted by the prosecution.
Participants argued that the defence and the prosecution should be able to draw their case together, and communicate with each other fully, within the current allocation of 110 days or less:
"Why don’t they just change it so that within 110 days both sides have to have their pieces prepared, and if they don’t the Solicitors are held responsible?"
(Ethnic Minority Group)
Several participants argued that 110 days was already too long, and that the time limit should be further reduced.
The recommendation to extend the number of days given to the defence to prepare to 140 was rejected outright for this reason. It was also argued that this apparently inordinate length of time would be a "sentence in itself" for the accused:
"Maybe I can’t pass judgement on these things because I don’t know how long it all takes to organise or collect evidence etc, but 5 months (sic) does seem like a long time…"
(Group 16-24)
"That could destroy people’s lives: their family life, their working life."
(Rural Group)
(For those not granted bail) "You make it longer, you’ll have more people in prison. I mean, they’re overcrowded as it is. I mean, they should be shorter. You’re in there for four months, you’ll be in there for five months!"
(Rural Group)
However, there was a clear consensus that there should be stricter time limits imposed for the sharing of all information between the prosecution and the defence, prior to the hearing. Regulations should obligate both parties to communicate effectively and efficiently.
"I would think there ought to be a time limit in which the prosecution should present the information. I think the time limit ought to be set to allow the defence time to prepare their case."
(Group 50+)
"I like the idea of the preliminary hearing and then having all the evidence swapped so that cases are prepared (by the time limit)…and you can’t adjourn."
(Ethnic Minority Group)
There was some cynicism about current defence team tactics, and the possibility that, contrary to the basic tenets of the justice system, poor communications and other inefficiencies might be intentionally exploited:
"You wonder if giving evidence at the very last minute is the one way which the legal team can use the system for their own end to make a case fail eventually."
(50+ Group)
Participants were adamant that the defence, and the accused, should be discouraged or prevented from ‘playing games’ with the legal system, for instance, by hedging their bets on witnesses not turning up. The following dialogue, about trials being cancelled at the last minute, is from the Rural Group’s discussions:
"It’s bloody unfair."
"Consider the money that’s wasted."
"But it’s not so much the money either. If he’s guilty, then…It seems a bizarre thing to let somebody go free."
(Rural Group)
Participants agreed strongly that time limits should be adhered to. This exchange is also from the Rural Group:
Participant F "(The Crown) should have all their evidence together…by 110 days, and then they have a meeting to decide."
Participant G "But what happens if they don’t have it after 110 days? And they go and ask for that extra day and they still can’t get the evidence"?
Participant F "Then they’ll get the sack!"
(Rural Group)
However, there was also a comment that the judge should be able to overrule time restrictions when there is reason to believe this will be beneficial to the case. This might occur only in exceptional circumstances, for instance in a major murder trial.
Participants questioned whether sufficient guidelines are in place for dealing with the breaching of time limits. More specifically, the concept of ‘forever free’ (whereby an accused may go free, with no possibility of retrial, simply because a time limit has been breached) was seen as fundamentally flawed. Participants wanted this loophole to be closed completely.
Some participants suggested that there should be a preliminary trial, much earlier on in the legal process (some commented that this currently occurs in the North American legal system). At the preliminary trial, all evidence would be shared between the defence and the prosecution, and the judge would decide whether the case was to proceed.
Overall, on the basis of these group discussions, we would not recommend extending the 110-day time limit to 140 days, except in exceptional, extenuating circumstances. We would recommend greater statutory requirement for full information to be shared, between the defence and the prosecution, before the trial and within a prescribed time limit. This might be achieved by means of a preliminary diet.
CHAPTER 6: SENTENCING DISCOUNTS FOR EARLY GUILTY PLEAS
This chapter provides a synopsis of comments from all six focus groups in response to recommendations regarding the introduction of sentencing discounts for early guilty pleas.
6.1 Recommendations for Discussion
In order to encourage people who are going to plead guilty to do so before their trial is called:
1. It should be made clear to accused persons that pleas of guilty tendered at an early stage in the proceedings will generally result in a lesser sentence (sentence discount). Pleas of guilty made at the trial diet will not result in a lesser sentence, except in certain circumstances. These include when the accused is not fully apprised of the case against him by the Crown until the trial diet, or the Crown decides to accept a plea to a lesser charge at the trial diet which it had rejected at some earlier stage in the proceedings.
2. The Court should have power to impose a custodial sentence in which part of the custodial period is suspended.
3. All material to be used by the Crown at the trial should be made known to the defence before the preliminary diet, if not earlier.
6.2 Focus Group Background Information
Since Lord Bonomy wishes to preserve judicial discretion as to sentencing, he does not recommend a structured or formal system of sentence discounting. Discounts are ultimately left to judicial discretion, though he recommends that the provision to discount sentences for early guilty pleas should be given great force in legislation (i.e. substituting the word ‘may’ for ‘shall’).
The recommendation to make a provision whereby the Crown (prosecution) must deliver full details of the prosecution case to the defence prior to the preliminary diet might achieve more early guilty pleas than sentence discounting or suspended sentences. Few accused persons plead guilty without knowing the case against them. This provision will allow the accused to come to an informed decision as to whether to go to trial, or tender an early guilty plea at the preliminary diet. Note that this recommendation is built upon the introduction of a preliminary diet. There might be little debate amongst the general public since the right to withhold a plea until full knowledge of the case against the accused is a fundamental right.
However, if the provision to provide sentencing discounts are given more force, or if suspended sentences are used as an alternative to discounts, then the following arguments may invoked by supporters of one or the other of these two possibilities:
1. Provisions to encourage early guilty pleas, whether by a reduced sentence (a. above) or a partly suspended sentence (b. above) should lead to a reduction in the number of trials that never go ahead because the accused pleads guilty on the day of the trial. This should reduce inconvenience and distress to members of the public on the day of the trial.
2. It should also reduce the waste in public resources for which late guilty pleas (pleas tendered at the trial diet) are responsible
3. In both cases (a. and b. above), the punishment — as experienced by the convicted offender — may not fit the crime.
However, the suspended custodial sentence may have some possible advantages:
1. The suspended sentence would support public opinion as to the seriousness of the crime. Discounted sentences may not do so since it is not clear what they have been discounted from.
2. Convicted offenders would be at liberty as soon as the suspended part of their custodial sentence commences. Until the full custodial term is over, however, they will be subject to conditions of licence. Thus, if the licence were breached within the full custodial term, they would be recalled to serve the full custodial term. There is no such control over persons receiving discounted sentences once they have been discharged from custody.
6.3 Focus Group Aims
The aims of the focus groups, in relation to the above, are:
1. to discuss whether it is right to award accused persons a discounted or suspended sentence in return for reducing the inconvenience and distress of witnesses, jurors or victims and their families.
2. to identify any preferences over the alternatives suggested (discounted or suspended sentences).
6.4 Synopsis of Focus Group Discussion
Most focus group participants thought that negotiations, or ‘plea bargaining’, similar to what was being suggested, already take place:
"That is the way it (already) works and I think they have got to change it."
(16-24 Group)
However, they were unsure about what such negotiations might entail, or when they might take place. All agreed that it was imperative that the system for sentencing is transparent, fair and upholds justice. However, for many of them the system currently seems opaque or even irregular. Concerns were raised again about inconsistency in the application of the law, particularly when left to the judge’s discretion.
The consensus of all groups was that the admission of guilt should not be rewarded with a discounted sentence, in any circumstances.
"If somebody is guilty of a crime, a serious one, murder for example,…just because they admit to it…it doesn’t make it any less of a crime. I mean particularly from the victim’s point of view, from the victim’s family if it was murder. From their point of view, whether the guy admits or not, it wouldn’t be an issue because they have still lost somebody close to them." He shouldn’t get out sooner just because he admits he did it."
(16-24 Group)
(If the sentence is reduced to reward an early guilty plea) "They are not being punished for their crime. I mean the crime is assault in both cases, so that is the crime. Just because they are saving the court money, they shouldn’t be getting time off."
(Ethnic Minority Group)
Sentencing discounts in general, and for early guilty pleas specifically, were seen as being incompatible with the basic tenets of justice.
It was argued that sentencing discounts for early guilty pleas would trivialise crime and guilt, and could possibly distress victims and their families. There was additional concern that the recommendations could, in practice, pressurise the innocent to plead guilty.
Following through the logic of the groups’ resistance to the recommendations, there was some comment that rather than rewarding the admission of guilt, ‘lying’ should be penalised. In other words, if the accused does not initially plead guilty, but is later found to be guilty, this extra wrongdoing — his or her deceit — should be reflected in the sentence.
"…they are lying, misleading the court, they should be punished more…".
(16-24 Group)
"If they say they’re not guilty, and they’ve put witnesses and victims through a massive wait, and at the end of the day, they’re… found guilty, they should be punished. Rather than the (plea bargaining) contract at the beginning."
(Rural Group)
If this was implemented as the norm, it would serve to encourage early guilty pleas, whilst also upholding accepted notions of justice and maintaining transparency.
In one group, a few participants thought that the argument that sentencing discounts for early guilty pleas might reduce inconvenience and stress for victims may be worth considering. However, to have any validity, this argument would have to be supported by members of the public who have been victims themselves. Consultation with victims, and their families, would be essential:
"Ask the victims what they think."
(50+ Group)
Participants were equally unsupportive of the proposal to offer suspended sentences in return for early guilty pleas, for the same reasons. If suspended sentences were introduced, participants considered that they would be wholly unsuitable for anything other than the most minor crimes.
In summary, based on group discussions, we would suggest that the recommendations to introduce sentencing discounts, or suspended sentences, in return for early guilty pleas are not progressed. The alternative option of penalising those who play for time could be further explored.