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Frequently Asked Questions
Fixed Trials
Q. Will all trials have a fixed date?
A. Yes. The judge at the preliminary hearing will fix the date for trial.
Q. Does that mean that all trials will start on the agreed date?
A. No. We would expect the vast majority of trials to begin on the date allocated. We recognise, however, that something may occur to cause the trial not to take place - an accused may plead guilty or not appear for trial - we have provided for some trials to be appointed as floating diets which may be used as "stand by" trials to ensure best use of court time and a quicker throughput of business.
Q. Why is this necessary?
A. It will enable court time to be used efficiently. If a trial that is fixed for (say) 5 days goes off and there is no "stand by" available then that is 5 days of court time wasted.
Q. What happens if the main trial does start?
A. If the fixed trial starts the floating or "stand by" case will remain available to be slotted in at short notice for a limited period. If no slot becomes available, it may become necessary for the case to call before the judge and be given another date
Q. Who will decide whether a trial should have a priority date or be a "stand by" case?
A. The judge at the preliminary hearing on the basis of the information provided to the court by parties will decide. Only if the court considers it appropriate on the information provided will the court appoint the trial to be a "stand by" trial.
Trials in Absence
Q. There was strong evidence against this proposal from many people. Why did the Executive go ahead with it?
A. Trials in the absence of accused form part of the Executive's commitment to victims and witnesses to whom absentee accused cause acute distress, particularly where witnesses have given evidence often of a distressing and intimate nature and have to repeat that evidence because the accused absconds causing the trial to be abandoned.
Q. Why do we need a trial in absence? In what circumstances will such a trial take place?
A. We have stated that it will only be in exceptional circumstances that a trial in absence could take place. It can only take place during the trial of an accused after evidence has been led which substantially implicates the accused and he then absconds.
In such cases the accused is trying to frustrate justice. As the law presently stands the trial would have to be deserted, and those witnesses who have already given evidence would need to attend court and give that evidence again with the trauma, distress and anguish that that causes. Victims, witnesses and jurors who have given up their valuable time should not be further inconvenienced by accused who are avoiding justice.
Q. Isn't a trial in absence a bit draconian and unnecessary given that relatively few accused persons fail to attend?
A. Although the number of accused is relatively few we have to remember the witnesses who have attended and given evidence. The absence of the accused may be for months or years. Some of these witnesses may be children or elderly. The longer the delay caused by the accused's absconding, the more chance there is of the evidence of the witness being lost due to the length of time between the alleged offence and the date of any trial.
There are however 3 hurdles to be overcome before a trial may proceed in the absence of the accused:
- evidence has to be led which substantially implicates the accused
- the judge has to consider the point in proceedings at which the accused absconds and
- it has to be in the interests of justice to proceed.
Q. An accused person is entitled to a fair trial. How will you ensure that that happens?
A.The court would appoint a solicitor to act in the interests of the accused. It may be that the solicitor already acting for the accused feels they are in the best position to act for the accused in respect of the trial in absence and the Court would in those circumstances allow that solicitor to act.
Q. Why is the provision not for trials to continue in absence only after the accused has given evidence?
A. There is no obligation on an accused person to give evidence. Therefore not until the Crown has completed their case will the defence intimate to the court whether the accused is to give evidence or not.
We do not consider it right that a trial which has lasted for several days or weeks has to begin again because the accused absconds and has not yet given evidence, or indicated whether or not he intends to do so. We have therefore provided that a trial should be able to continue in the absence of the accused after evidence has been led if that evidence substantially implicates the accused.
Extension of the 110 day time limit.
Q. The committee accepted the time limits proposed but believe that the new 140 day limit must be the "outer limit" and any further extension is unacceptable. How will the Executive ensure that is adhered to?
A.The Executive views time limits as an important and crucial feature of a modern day criminal justice system. The limits provided for are sensible limits which will allow the proposed fixed trial system to be properly managed by judges. We would expect there to be few extensions to the limit but the operational decision about that will be for the judge at the preliminary hearing.
Q. Does that mean the limit might be extended beyond the 140 days?
A.It means that the judge will consider what is appropriate for any individual case. Not all cases are the same. For example, a case the size of the Lockerbie case is likely to require more than an extra 30 days beyond the 110 day limit.
Q. What about the accused who are in custody for the extra 30 days?
A.The 30 days is an upper limit. All accused in custody will have a preliminary hearing within the present 110 day custody time limit. Any additional time spent in custody will affect only those accused who are going to trial and it enables them to be fully prepared with counsel of choice on a date fixed somewhere between 110 and 140 days.
Q. Why are you introducing bail at 110 days when that custody time limit cannot be met?
A. At present if the 110 day time cannot be met the accused is liberated and is for ever free from prosecution on those charges he faced. We consider that what we have provided strikes the right balance between the rights of the accused and the rights of victims who expect someone charged with a serious offence to face trial for that offence. If the accused is admitted to bail the 12 month time limit which applies to all solemn cases will apply.
Q. Does that mean that dangerous offenders will automatically be released on bail?
A. No. If the custody time limit cannot be met the accused will be brought to court to have his entitlement to bail determined. Before that entitlement is considered the prosecutor has the right to apply to the court for an extension of the custody time limits. Only if that request is refused, or the prosecutor does not request an extension will the entitlement to bail arise.
Q. Why are you introducing bail at 80 days when that custody time limit can not be complied with?
A. At present if the 80 day custody time limit can not be met the accused is simply liberated. He becomes subject to the 12 month time limit. However, there is no obligation on the accused to give an address at which he may be cited to attend once the indictment is ready for service. By admitting the accused to bail there will be an address at which service of the indictment can be effected.
Preliminary Hearings
Q. What will happen at the Preliminary Hearing?
A. The court will deal with any preliminary issues that do not need to be dealt with at the trial and decide on issues such as of admissibility of evidence, uncontroversial evidence and whether particular witnesses are required to attend. The judge will ascertain the state of preparation of the prosecution and accused and if the court is satisfied that the parties are prepared and the case is proceeding to trial it will fix a date for the trial.