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'IMPROVING PRACTICE' - The 2002 Review of the Practices and Procedure of the High Court of Justiciary by the Honourable Lord Bonomy
CHAPTER 5 THE CAUSES
Identifying causes
5.1 In order to address the challenge properly, it is necessary to try to establish the causes of the problem. Why has there been such a dramatic change in the prospects of a case proceeding to trial or other outcome at the first diet to which it is indicted? Although the reasons given for motions to adjourn are stated in the Book of Adjournal49 in which High Court proceedings are recorded, that record does not always tell the whole story.
5.2 In 1995 more than half of the fairly small number of motions to adjourn were made by the Crown50. By 2001 the number of motions to adjourn had increased six-fold51. More than 75% were defence motions, a handful were joint motions and less than 20% were Crown motions52. It is unusual for the Crown to oppose defence motions for adjournment. In 2001 the reason given most often for adjournments was that more time was needed by the defence for preparation53. However, in many cases that reason masks the true cause of the need for more time.
Preparation and Intimation of the Prosecution Case - the Theory
5.3 A person who is to be the subject of solemn proceedings usually first appears in court before the sheriff "on petition". The petition sets out the charge and contains an application by the procurator fiscal to the sheriff for certain warrants or orders of the court, including an order as to further procedure54. At that appearance the procurator fiscal moves the presiding sheriff to commit the accused either for further examination or until liberated in due course of law. The latter form is often called "committal for trial" or "full committal"55.
5.4 In general, an accused person is committed for further examination at the first appearance. He may be admitted to bail at that stage and that may be the end of the formal initiating procedure in the Sheriff Court56. Should he be remanded in custody, he must within 8 days thereafter appear again before the sheriff when he will be committed for trial, unless he has in the interim been liberated on the instructions of the procurator fiscal without a further court appearance or has appeared before the sheriff and been released on bail57. A second appearance generally brings the initiating Sheriff Court procedure to an end. Where an accused is remanded in custody for trial, the 110-day period within which his trial must commence starts on the day of his committal for trial58. If he is on bail, his case must be brought to trial within twelve months of his first appearance on petition59.
5.5 The petition is a document framed by the procurator fiscal on the basis of information presented by the police. They will either have arrested the accused and held him briefly in custody, or will have submitted information identifying a person whom they have either charged or would like to charge with an offence. In the latter case the petition is initially presented to the sheriff to obtain a warrant to arrest the accused person. From the moment that the matter is reported by the police to the procurator fiscal, the fiscal is in control of the case and responsible for investigating it, directing any further necessary police enquiry, and preparing it for trial60.
5.6 The only opportunity that the procurator fiscal has prior to trial to question the accused arises in the course of the initiating procedure before the sheriff. The procurator fiscal may judicially examine the accused, that is, ask a restricted range of questions about whether he admits or denies the charge and the nature of his defence61. The accused is not obliged to answer these questions. If the procurator fiscal opts for judicial examination, then it usually occurs at the time of the first appearance of the accused on petition. The procurator fiscal is obliged to investigate any ostensible defence proffered at judicial examination62.
5.7 Once the initiating proceedings in the Sheriff Court have come to an end, there is generally no further court procedure until the indictment is served along with a notice intimating the trial diet. That may lead to preliminary procedure in the High Court between the date of service and the trial diet, but only if one of the parties chooses to initiate such procedure63. The majority of cases disappear from court with committal and resurface in the High Court at the trial diet. The theory is that preparation of the case will be undertaken by the procurator fiscal immediately following committal, and that the procurator fiscal will, at a fairly early stage, give details of the identities of witnesses to the solicitor instructed by the accused in the form of a "provisional list of witnesses" to enable the solicitor to commence his preparation. The procurator fiscal should continue throughout this period to assist the solicitor, by providing details of relevant evidence as it becomes available, and dealing so far as possible with the enquiries he makes for further information. The indictment should then be served with a minimum of twenty-nine days’ notice of the trial diet during which period defence preparations should be completed with a view to the trial taking place at that diet64.
5.8 The theory, that a public prosecutor independently undertakes the investigation of serious criminal cases by interviewing the principal witnesses and preparing a note of their evidence, known as a precognition, co-operates with the defence to ensure that they are given all appropriate assistance to enable them to prepare for trial, and indicts the case for trial without court supervision or intervention, is a sound one65.
Preparation and Intimation of the Prosecution Case - the Difficulties and Shortcomings in Practice
5.9 Much of the problem for the system seems to stem from the fact that that theory is not always applied in practice. That occurs for a number of reasons, such as the complexity of some investigations or a sudden unpredictable increase in the volume of business in a particular procurator fiscal’s office. There may be other factors outwith the control of the procurator fiscal, which delay the precognition, such as the failure of witnesses to attend. It also occurs because staff of COPFS work under unremitting pressure.
5.10 That pressure was identified by many defence practitioners to whom I spoke as the main reason for their many complaints that they were often unable to get provisional lists of witnesses, obtain answers to correspondence or telephone inquiries, or locate a procurator fiscal who was in a position to discuss their cases.
5.11 Although a provisional list of witnesses should be issued to the defence shortly after full committal or release of an accused person on bail, the practice varies widely throughout the country. In some cases there can be significant delay in issuing the list. As a result, solicitors are unable in those cases to undertake meaningful inquiry prior to receipt of the indictment. Over recent years the Crown have generally been unable to provide the defence with material as the investigation has progressed, with the result that notice of material that could have been disclosed earlier is given with service of the indictment only twenty-nine days or so before the trial diet.
5.12 That would not be quite so bad if service of the indictment marked the point by which notice of all the witnesses and material to be relied upon by the Crown was given to the defence. However, it is competent, with leave of the Court, for the prosecutor to intimate witnesses and productions up to two days before the day on which the jury is sworn to try the case. That is done by what is called a "section 67 notice", a reference to the statutory provision66. In more than 50% of the cases which went to trial in 2001 there was at least one section 67 notice67. In many cases there were several. These notices often intimate important material, such as a forensic science report, long after service of the indictment. The notices are sometimes intimated to the accused about the Thursday of the week prior to the commencement of the sitting, thus giving the basic minimum two clear days notice between intimation and the earliest possible date on which the jury might be sworn to try the case. A notice may even be intimated after the sitting has begun.
5.13 With advances in science and technology, such as more sensitive DNA techniques, there is an ever increasing potential for cases to become more complex, and some do. The very passage of time between the incident and the proceedings may make investigation difficult. It is now possible to obtain a DNA profile from minuscule quantities of body fluids or tissue. That means that the examination of clothing and other productions must be undertaken with painstaking and time- consuming care. There is a small, but increasing, number of cases which always involve complex investigation, for example fraud and embezzlement; indeed some involve obtaining evidence from abroad, and the processes associated with that can be cumbersome and cause significant delay. These are examples of cases where the proper completion of a thorough investigation into criminal behaviour will inevitably result in significant material being obtained and intimated at a very late stage for reasons which are beyond the control of the Crown. However, in my experience the majority of cases do not appear to involve these exceptional features.
5.14 Material, such as forensic science reports, coming into the hands of the Crown after service of the indictment, is often retained pending the receipt of any other late material, rather than being intimated immediately on receipt.
5.15 While the time limit that requires the trial of an accused in custody to commence within 110 days of his committal for trial allows the Crown only 80 days in which to fully investigate, prepare and indict the case, and it is thus understandable that only twenty-nine days notice is given in custody cases, it is less easy to explain why the same notice is given in most cases where the accused is on bail and the deadline for the commencement of the trial is twelve months after his first appearance on petition68. In spite of a willingness to try to give longer notice in bail indictments, the Crown have to date been unable to do so, most recently citing lack of resources as the reason.
5.16 In a thorough analysis of the way in which precognition work is managed and cases are prepared by the Crown to the point of indictment, the Quality and Practice Review Unit have identified these difficulties and shortcomings69. They have made a number of recommendations to the Lord Advocate to tackle them70. Their recommendations are designed to ensure that the Crown are able to investigate and prepare cases for trial fully and thoroughly, while at the same time giving all relevant material to the defence as it becomes available to enable them to prepare their cases earlier. In so far as the recommendations involve the engagement of additional staff, I fully recognise that they may take some time to implement to ensure that the staff engaged and assigned to the work of preparing High Court cases are suitably qualified and trained for that work. I hope that the Lord Advocate and the Scottish Government will ensure that adequate resources are made available to implement the recommendations of the Unit.
Other Reasons for Adjournment
5.17 In addition to these problems in the preparation and intimation of the case by the Crown, there are many other reasons for the adjournment of trial diets.
Lack of Communication between Defence and Crown
5.18 There are no rules requiring the communication of basic information about the identity of legal representatives, their availability during the sitting, and developments after service of the indictment which may affect the timing of the trial. Following service of the indictment there is often no further communication between the defence and the Crown about these matters or about the order of business until shortly before the start of the sitting. The upsurge in communication at the last minute coincides with the late intimation of material in section 67 notices. There is, therefore, a great deal of activity immediately before the start of the sitting. Developments in one case may affect what happens in another. It is very difficult for the Crown to prepare and work to a programme of events for the sitting against that background.
5.19 Although there may be scope for negotiating a plea to dispose of a case, the procurator fiscal for the Crown and the defence solicitor may be reluctant to enter into discussions, since the final say on any proposal will lie with the advocate depute for the Crown and counsel or solicitor advocate instructed for the defence, who may not get together until the day assigned for the trial.
Notice to the Defence
5.20 Twenty nine days notice to the defence to prepare for trial is, in any event, a fairly limited period for a significant number of cases. Because the procedures for transferring the documentary and label productions to be used in the trial from the office of the procurator fiscal to court are not uniform at the various locations where the Court sits, defence solicitors may have difficulty obtaining access to these productions until shortly before the trial diet. Even where they identify, fairly soon after service of the indictment, the productions of which they would like to have a copy, there are various internal procedures in procurator fiscals’ offices and Crown Office which can delay the production of copies. A number of deadlines fall to be met within the twenty-nine day period. For example, notice of a special defence, such as alibi or self-defence, should be given to the Crown not less than ten clear days before the trial diet71. If a preliminary diet to consider a matter of competency or relevancy, or an objection to the validity of the citation, or a plea in bar of trial, or for separation or conjunction of charges or trials, or to consider various other matters is required, then notice should be given in some instances within 15 clear days after service of the indictment72 and in others not later than 10 clear days before the trial diet73. Applications to hold preliminary diets are often made out of time.
Intimation of Defence Material
5.21 For a variety of reasons the defence may intimate lists of witnesses or productions to the Crown close to the trial diet. The Crown routinely try to precognosce the witnesses. If the defence material includes expert evidence, it is likely that consultation with Crown expert witnesses will follow precognition of the defence experts. This is time-consuming work, which may not be completed before the sitting concludes. In a complex case, even early intimation of expert evidence may not allow sufficient time for completion of the Crown investigation. In general terms, however, the later the defence material is intimated, the greater is the prospect of the trial being adjourned.
The Sittings System
5.22 The very system of hearing lists of trials at sittings74, which are all programmed to last for two weeks, can cause cases to be adjourned. There may be insufficient time to complete all cases listed. The court allocates judges to sittings on the basis that they will last two weeks, rather than on the basis that there is a certain volume of business to be dealt with at the sitting . The programme for the allocation of judicial resources is, therefore, drawn on a somewhat artificial basis, under which at the end of each two week sitting the judge is committed to another court. The judge for the sitting may be unable to sit beyond the two week period because of his other judicial commitments. The advocate depute may be committed to another sitting.
5.23 The increasing practice of adjourning cases into later sittings gives rise to its own problems. Sitting lists are longer as a result. It is not uncommon for somewhere between 12 and 20 cases to be listed for a sitting where there is only one court. In Glasgow six courts might be expected to deal with up to 60 cases of varying complexity in the course of a sitting. The very fact that the list contains an exceptional number of cases gives rise to a lack of expectation that cases will be heard in the course of the sitting.
Non-Availability of Counsel or Solicitor Advocate Instructed
5.24 Solicitors cannot appear in the High Court75. They must either instruct an advocate (counsel) or a solicitor advocate, that is a solicitor who has obtained the additional qualification that gives him the right of audience in the High Court76. Many adjournments result from late changes in counsel77. The late returning of papers to instructing solicitors was a constant theme of my consultations with solicitors. If other counsel cannot be instructed timeously, then the case is likely to be adjourned. Solicitors find it highly unsatisfactory that counsel should, often without any warning, withdraw from acting fairly close to the diet of trial because of another commitment. Solicitors may contribute to the problem by instructing counsel, who have already indicated that they have a potentially competing commitment, in the hope that that commitment will be resolved. Their clients were often left with the impression that their interests came second to other considerations, and the relationship of confidence that had been built up among client, solicitor and counsel was undermined. Mention was also made of cases where solicitor advocates have been unable to undertake trials to which they had committed themselves and counsel had to be instructed very late in the day.
Uncertainty in Programming of Cases
5.25 Withdrawal or change of counsel occurs for a number of reasons. Inherent in the system, whereby cases are heard at sittings of the Court and are all formally indicted to the first day of the sitting, is a considerable measure of uncertainty about the date on which any trial will proceed. In theory any one of the cases listed at the sitting could start on the first day, and those not time-barred early in the sitting could start at any stage. There is no formal system for prioritising the cases. They are informally assigned prospective trial dates by the Crown when the sitting list is compiled at the time the cases are indicted. These provisional dates are largely determined according to the order in which the cases will become time-barred. The actual date of the trial is frequently not the provisional date and is often finally determined at short notice. Because of the uncertainty about actual trial dates, counsel who are instructed in a number of cases tend to express a willingness to act in all these cases in the hope that they will ultimately be programmed in a way that will enable them to deal with the maximum number. Even when a trial is running, counsel may hold on to instructions for subsequent cases which they know may start before the trial finishes, but which equally may not, since the trial may come to an unexpected end or circumstances may arise in the later case to cause it to be rearranged.
5.26 Arrangements often have to be made in the course of the afternoon, on the back of the casualty list from that morning’s business, to bring cases in at short notice for trial on the following day. Whether a case brought in at such short notice can start depends upon the availability of the parties involved. Should counsel not be available, there is an informal understanding that the instructing solicitor will have another 48 hours to instruct other counsel. It is frequently the case that cases brought in at such short notice are not dealt with and are simply further adjourned.
Criminal Legal Aid Rates
5.27 The fees for almost all criminal defence work are met by legal aid. Criminal legal aid rates have not been increased for ten years, although, as I note later, additional payments are made by the Scottish Legal Aid Board in appropriate circumstances78. Counsel earn most from criminal legal aid when they are in court79. In contrast to this, most civil work is privately funded, e.g. by trade unions and corporations, and the rates payable can be significantly higher than the rates payable for criminal legal aid work. One way in which counsel doing criminal work may reduce the gap is by ensuring that they are engaged in court. They, therefore, tend to hold on to instructions in more cases than they will be able to conduct, try to juggle their commitments to minimise the risk of not being engaged in Court, and on occasions are caught by clashing commitments. There is an increasing public expectation that lawyers, like other professionals, should specialise in particular fields of work. A number of counsel largely confine their practices to criminal defence work. That tendency should in my opinion be encouraged. Those counsel recognise that it is inevitable that work which is privately funded will tend to produce better rewards than that which is funded by legal aid. However, it is an important element in securing the continued commitment of able and experienced counsel to criminal work that the scheme under which they are paid should be seen by them to be fair and correctly structured. That is not their current perception.
Experienced Counsel Leaving the Bar
5.28 For High Court trials solicitors are anxious to secure the services of counsel experienced in criminal trial work. In recent times there has been a significant exodus of experienced criminal counsel from the Bar to take up appointments as sheriffs. This has coincided with the appointment of an increasing number of permanent sheriffs. Taking up such an appointment is part of the normal career progression for many advocates, but the number of experienced criminal counsel taking this path recently has been high. That exodus has increased the pressure of work on the remaining experienced criminal counsel. The regular influx of new counsel to the Bar is not reflected in an equivalent increase in the number of counsel appearing regularly in the High Court.
Sanction for Legal Aid Expenditure
5.29 The prior approval of the Scottish Legal Aid Board is required for the instruction of senior counsel in certain circumstances, for the employment of expert witnesses, and for work of an unusual nature or likely to involve unusually large expenditure80. The delay occasioned by the process of dealing with applications for such prior approval or sanction may necessitate adjournment.
5.30 The difficulties associated with obtaining sanction for the employment of an expert witness are frequently cited as a reason for adjourning a trial. Since there are no generally recognised rates of pay for experts in many disciplines, the Board may insist upon a quotation, or perhaps more than one quotation, before making a decision. Until a recent change in legal aid regulations, the Board was bound to restrict funding for defence witnesses to the rate normally paid by the Crown81. That restriction gave rise to unnecessary complications and delay, since Crown rates were often difficult to determine. At its suggestion, the Board may now grant sanction as long as it "has regard" to the Crown rate82. Nevertheless the estimated amount in the quotation may lead to sanction being refused. There may be an ongoing debate about whether the fees might be modified and sanction then granted. Thereafter the time needed for the expert investigation may itself lead to adjournment of the trial. Efforts are being made by the Scottish Legal Aid Board to compile lists of expert witnesses and to establish ranges of fees which are considered to be reasonable in the context of particular disciplines of expertise with a view to simplifying the process of obtaining sanction.
5.31 There is a perception among practitioners that the Board’s procedures are unduly bureaucratic. The Board is conscious of this criticism and constantly reviews its procedures to ensure that any possible improvements are introduced to their systems. For example, the Board has taken steps to improve the quality of their standard letters which previously gave rise to confusion. They also endeavour to ensure that the profession are aware of the improvements introduced by intimating details in their regular publication, the Recorder. The Board’s Annual Report shows that it is performing well in spite of the practitioners’ perception83.
5.32 The biggest problem is one of communication. By their very nature applications for prior approval relate to the exceptional rather than the run-of-the-mill. The application initially presented by the solicitor may not contain all the information that the Board requires. Through the Recorder the Board has tried to draw deficiencies that arise in applications to the attention of the profession and to provide guidance about the information that should be provided84. With a view to reducing the incidence of adjournments, they have introduced special arrangements for fast- tracking applications for sanction in High Court cases. They encourage telephone contact to tackle issues delaying the grant of sanction, and they have staff available to deal quickly by telephone with urgent applications. A surprising number of solicitors are unaware of these initiatives.
The Impact of Anderson v HMA
5.33 One reason for choosing to study and compare the caseloads in 1995 and 2001 was to take account of any impact that the decision in Anderson v HM Advocate, made on 1 December 1995, may have had85. In that case it was recognised for the first time that the conduct of the defence of an accused by his representatives could result in a miscarriage of justice and accordingly a successful appeal against conviction. It is impossible to measure in any objectively precise way the impact that that decision may have had on the approach of practitioners to the preparation and conduct of cases. However, among practitioners the view is widely held that it has had a significant impact. Counsel, solicitor advocates and solicitors have become more cautious. There is a reluctance to take over a case and undertake a trial at short notice. Those who take over at short notice are less willing to rely on the work done by others, and wish to revisit lines of inquiry which have proved fruitless in the opinion of others. Although few appeals based on Anderson have been successful, subsequent opinions of the Criminal Appeal Court have led practitioners to be apprehensive that the principle in Anderson may not be restricted to the question whether the accused’s defence was presented, but may be extended to the manner in which it was presented86. There is a fear that experienced counsel and solicitors will be increasingly reluctant to decide on the basis of their experience not to pursue fairly speculative lines of inquiry.
Non-Attendance of Key Personnel
5.34 A significant number of adjournments are the result of the non-attendance of the accused or witnesses. That can occur for a number of reasons both genuine, such as illness, or contrived, such as wilful non-attendance. As I mention later, breakdowns in communication between the police, who are endeavouring to cite witnesses, and the Crown about difficulties being experienced in tracing witnesses may mean that the Crown become aware of the likely non-attendance of a witness at the last minute. That simply compounds the problem by leading to an unexpected, last-minute adjournment.
Other Causes
5.35 These are the principal systemic causes of the problem identified in the course of my consultations. In addition a host of other things may cause cases to be adjourned. They are largely the result of oversight. That, in turn, is a consequence of the absence of a point in advance of the trial diet, when parties are required to consider jointly the arrangements for the trial. I quote one or two examples. It may only be realised at the last minute, when everyone is assembled ready to start a trial, that a live television link is required to take the evidence of a child witness. Although it is known that a witness has failed to attend Court on an earlier occasion, it may be that no one has taken responsibility to ensure that the new date for the case is relayed to the witness. The list is almost endless. I shall try to address the main causes of the problem, and will aim to devise improvements to the current arrangements for managing High Court business that will increase the prospects of potential difficulties being foreseen and resolved.
Weaknesses Inherent in Current System
5.36 This review of the causes of the problem has highlighted three features of the current system which hamper the proper planning of trials at each sitting of the Court and make adjournments unpredictable, to the distress of many members of the public.
5.37 Because the rules allow material, including lists of witnesses and documentary productions, to be lodged until very shortly before the trial is due to take place87, and because the Crown, working under pressure, regularly intimate additional material right up to the deadline and also produce copies of the productions originally intimated with the indictment at any point between the date of service and the trial diet, two quite separate targets have become confused in practice. The first day of the sitting has become in many cases both the target date for the trial and the target date for the Crown preparation for trial. The theory is that these two targets should be at least twenty-nine days apart88.
5.38 The second feature is closely related to the first. The trial diet is for most cases the first occasion, following the committal stage before the sheriff, when the case comes before a court. For the reasons set out above, the trial diet is now for a very large number of cases not a diet for trial at all but a procedural diet, when very little attention is given to the future procedure in the case. The Court has not traditionally been expected to take the initiative, and tends to leave matters to parties who are often in agreement that the case should be adjourned. The Court is unlikely, in any event, to be in a position to take the initiative, since it is presented with recent developments, the exact consequences of which are at that time unpredictable. The casual observer might often be excused for thinking that the High Court appears to be poorly organised and its proceedings fairly chaotic. The professionals involved understand the need for adjournment and further inquiry. The witnesses and relatives of victims, who are either present or have been warned to be available at short notice, are, on the other hand, often quite bemused and disappointed by the unexpected postponement of the traumatic experience that they had built themselves up for. Examples have been cited to me of trials, particularly murder trials, being adjourned several times to the great distress of all concerned, in particular the relatives of the deceased who expected the trial to proceed on each occasion.
5.39 The third feature of the system is the lack of certainty that cases will proceed to trial when scheduled. In the past, when the various factors mentioned in this chapter were either absent or less significant, and the Crown were under less pressure than they are today, the vast majority of cases went to trial or were otherwise disposed of within the anticipated two-week slot. The absence of the certainty that a fixed diet for the trial would bring did not matter greatly. On the other hand the very fact that cases were heard rather than adjourned gave a measure of certainty that has now disappeared.
5.40 It may be that addressing those three features of the system will focus attention on a possible solution to the problem.