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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 6 MANAGEMENT OF THE BUSINESS OF THE COURT
Crown as Master of the Instance
6.1 In addition to undertaking the investigation of criminal cases and indicting them for trial, the Crown also have the right to decide when the indictment should call for trial during the sitting89. It is, therefore, in theory in the hands of the Crown to determine the order of business at the sitting. Theirs is the principal management role in the High Court as matters stand.
The Procurator Fiscal Sitting Manager
6.2 About 10 years ago, in recognition of the fact that management is involved, a procurator fiscal was nominated as "sitting manager" with responsibility for organising the business of the court at each location where the court sits90. That arrangement remains in force today. Each sitting manager, apart from those in Glasgow and Edinburgh, has other duties over and above High Court management responsibilities.
6.3 That was an extension of a system which had existed for a number of years in Glasgow, where a procurator fiscal had responsibility for managing and co-ordinating the business among a number of courts, often located in more than one building. Experienced procurators fiscal were always appointed to this post. Because unexpected problems arose daily in Glasgow, the role was a demanding one which required vigour, ingenuity and considerable organisational ability. That procurator fiscal was assisted by another procurator fiscal and administrative support staff.
6.4 That is still the arrangement in Glasgow. However, as the business has expanded, there has not been a proportionate increase in staff to manage it. On the other hand, in view of what is set out in the preceding chapter, it is unlikely that increasing the staff ratio alone would have prevented the development of the current problem.
6.5 In Edinburgh three courts sit constantly, and it is not unusual for there to be four courts engaged upon High Court work. Management in Edinburgh is in the hands of one procurator fiscal and a small support staff.
Crown Internal Review of Management of High Court Sittings
6.6 The Quality and Practice Review Unit has identified a number of weaknesses in this system of management91. The offices of the procurator fiscal in the High Court in Glasgow and Edinburgh have been significantly understaffed for a number of years. The duties of sitting managers are ill-defined and vary from court to court. The ill-defined nature of the duties of the post is a by-product of the core weakness in the present system of preparing High Court cases identified by Sir Anthony Campbell in the Chhokar inquiry92, viz. no procurator fiscal has ultimate responsibility for the case once it has been precognosed and passed to Crown Office.
6.7 Once a solemn case has been precognosed at the office of the local procurator fiscal, it is reported to Crown Office for consideration by Crown counsel to determine whether proceedings should be in the Sheriff Court before a jury or in the High Court. Cases which are to proceed in the Sheriff Court are returned to the local office, and are prosecuted by staff there in the local Sheriff Court. High Court cases are then passed to a separate unit in Crown Office, where experienced procurators fiscal review the work, finalise the charges and identify the further inquiries that are necessary. The case is then returned to the local office for the further inquiries to be undertaken and for service of the indictment. The papers are ultimately passed to the sitting manager in time for the sitting. It is not clear where responsibility lies for ensuring that the further inquiries identified are completed, the results incorporated into the precognition and intimated as necessary to the defence, and the case papers fully updated and passed to the advocate depute conducting the trial.
6.8 The Quality and Practice Review Unit Report tackled this issue and proposed a coherent scheme in which responsibility for the case should rest with Crown Office, and in particular the indicter of the case, from the moment the case is passed to Crown Office from the local precognoscing office93. The sitting manager would no longer be a member of the staff of the local procurator fiscal, but would join the indicters as part of the High Court team in Crown Office94.
6.9 While there is every reason to think that the changes proposed by the Crown Office report will, if adequately resourced, contribute greatly to improving the organisation of the business of the High Court, a number of factors will remain outwith the control of the sitting manager. I do not think that, having regard to the problem and causes already outlined, the Crown could at its own hand so alter matters that adjournments would be minimised and the majority of cases would be disposed of at the sitting to which they were first indicted for trial.
The Current Management Role of the Court
6.10 While the overall picture that I gleaned from my study of the sittings of the court between December 2001 and September 2002 was consistent with the picture painted in the preceding chapter, there were four sittings which did not fit the pattern. Each was a single court sitting. At each of those sittings the trial judge was in a position to decide to remain at that court until all cases were dealt with. It was made clear to the parties that the expectation was that the trials would be heard. It was possible in a number of instances to refuse motions to adjourn, since there was time for any necessary inquiries to be completed before the trial was likely to start. While this is a small sample from which to draw broad conclusions, it does show the potential that there is for the Court to play a part in reducing adjournments.
6.11 Traditionally the Lord Justice General has not issued practice directions relating to the management of High Court business. Directions or other guidance in the form of memoranda have until recently been confined to contempt of court, the evidence of child witnesses and certain practices of the Criminal Appeal Court95.
Notice of January 2000
6.12 In January 2000 the Lord Justice General (Rodger of Earlsferry) issued a notice to the effect that the judges intended in future to sit at 10am sharp on every day of the sittings of the Court to reduce the time that was being wasted at the start of the day96. I have tried to gauge how well that notice is working in practice. Its impact has been patchy. One of the perceived difficulties it presents is in relation to negotiations about a plea of guilty which may have reached a sensitive stage. It is felt by some practitioners, and indeed by some judges, that the Court should not insist on a formal calling at 10am simply to enable an application to be made for adjournment to continue negotiations where that might have an adverse impact on the negotiations. Many believe that the process by which an accused person arrives at the stage of deciding to plead guilty is a subtle and complex one which requires a flexible approach to timing.
6.13 The plain fact of the matter is that the culture change necessary to achieve the objective of the notice has not occurred. Many involved in the work of the Court arrive in the court building shortly before 10am. The very assembling of the personnel necessary to get a court underway in the morning takes about 10 minutes or so. It is common experience that, when the Court has "a short adjournment", that almost invariably interrupts proceedings for a minimum of 20 minutes. In addition to preparing themselves for that morning’s proceedings practitioners may require to consult with their clients, check the presence of witnesses or do a number of other things. While many practitioners diligently attend court long before 10am to ensure that business can commence promptly, the main reason for the notice being adhered to on a patchy basis is the failure of many to realise that, while the Court "sits" at 10am, the work necessary to enable it to sit then must begin much earlier. Members of the public required to attend as jurors and witnesses, and those attending with an interest in the case, have a legitimate expectation that the Court will sit at the appointed time. It is essential that all concerned in the work of the Court constantly bear in mind the interests of the public, and that they avoid creating the impression that the work of the court is organised to suit the lawyers and other court staff.
Memorandum of February 2002
6.14 With a view to encouraging greater communication between parties in order to programme the business of the sitting to accommodate counsel and make maximum use of court time, the Lord Justice General (Cullen) issued a Memorandum in January 2002 specifying dates by which various forms of communication should be made. That came into effect on 25 February 2002. To date there is little indication that it has resulted in significant improvement in the programming of business or the use of court time. Recently there has been greater resort by the defence to minutes of postponement, which call in court before the sitting to which the case is allocated and seek to postpone the trial diet to a later sitting. That development may have been prompted by the Memorandum.
6.15 If, by applying the terms of the Memorandum, parties are able to agree on the programming of a case at the sitting, then the case need not call until it is in a position to be heard. Where agreement is not possible, then the case should be brought before the trial judge on the first day of the sitting. The cases which are brought before a judge tend to be those in which there has been no communication in terms of the Memorandum. Cases have continued to be adjourned at random throughout sittings. The lack of impact of the Memorandum may have much to do with the fact that so much happens shortly before the sitting and on the first day. That first day is an extremely busy stage in proceedings, since the whole stock of cases for the sitting is still live, including all of those in which a plea of guilty will ultimately be tendered.
Other Management Initiatives
6.16 For a number of years at the end of the 1990s, trials in two of the courts in Glasgow did not commence until the second day of the sitting: on the first day parties were expected to undertake such negotiations as they could with a view to resolving their cases. On a few occasions the system was very successful. At the majority of sittings little was achieved.
6.17 That experiment has left its own legacy not only in Glasgow but throughout the High Court. Under that system cases were brought in on an "accused and counsel only" basis. That meant that no witnesses and no jurors would be brought to court. Cases continue to this day to be brought in on that basis, often at the beginning of the sitting, to ascertain whether they will proceed to trial. When a number of cases are brought in on that basis, there is often no trial business arranged. Concentrating at the beginning of the sitting on trying to identify cases in which a trial will not be necessary has tended to result in the cases in which trials are necessary, often cases which will occupy the best part of a week and more, not starting until late in the first week or into the second week of the sitting. That often results in cases spilling over into the next sitting, thus compounding the problems of those trying to manage the sittings.
6.18 In each court in Glasgow there is a clerk who administers the work of that court. Each clerk is responsible, however, only for his own court. Most of the clerks work with a particular judge and work in a court in Glasgow only when that judge is there. With a view to co-ordinating the work of all the courts in Glasgow to improve the planning of business, a clerk was in 1999 appointed to the position of court manager in Glasgow with a remit that includes daily meetings with the procurator fiscal sitting manager to plan the next and subsequent days’ business of the sitting and the following sitting. The creation of that post has resulted in improvements in the practical arrangements for the conduct of business within the High Court in Glasgow.
Absence of Integrated Management Structure
6.19 This review of the current arrangements for the management of the business of the High Court indicates that there are separate lines of management or responsibility for the Crown and for the Court. In addition no one co-ordinates the interests of the various lawyers representing accused at the sitting or has responsibility for co-ordinating their involvement in the sitting. No one has overall management responsibility for the day-to-day running of each sitting of the High Court.
The Ideal System
6.20 I doubt if there could be any dispute that, in the ideal system, those cases in which pleas of guilty are to be tendered would be dealt with without being assigned to a trial diet, that the same would happen to the cases in which further time is necessary for preparation before a trial diet is assigned, and only those cases which are ready for trial should be assigned to a trial diet on a fixed date. I doubt if any system could consistently achieve that objective, because of the vagaries and unpredictability of human behaviour in what for the accused and witnesses are conditions of anxiety and stress. The search is, therefore, for a system which will achieve that objective in a sufficient number of cases to enable a substantial number of trials to be allocated to fixed diets and the others to be assigned to fairly accurate approximate starting dates.
Future Management Role of the Court
6.21 The only means of tackling "churning", that was suggested throughout my consultations, was some form of judicial management of cases at a stage between indictment and trial. That appears to be the only way to remove churning from the system. Judicial management could address the three features mentioned in the last chapter. However, the solution will only lie there if it is possible to identify at a procedural diet, with a fair degree of certainty, the cases which are likely to go to trial. If all that happens is that there is a formal calling of the case, involving counsel instructed for that day alone making only a token appearance and having no further involvement in the case, then such an additional stage in the proceedings would simply cause further work and more delay without producing any benefit. It would be impossible to allocate fairly firm trial diets. Around 55% of cases result in pleas of guilty97. The success of any attempt to allocate trial diets with more certainty will depend on a substantial number of the cases in which pleas of guilty will be tendered being identified and disposed of at the procedural stage. Success will also depend upon those acting for the Crown and the defence at that stage being fully instructed about what further procedure will be necessary in the case and why that is so.
6.22 There are already some grounds for optimism that procedural management by the Court would work. Practitioners wish more certainty introduced into the system. The consultations with criminal practitioners supported the introduction of a procedural diet. There are mandatory procedural diets, called "first diets", in solemn proceedings in the Sheriff Court98. These lead to some pleas of guilty being tendered, and to the identification of cases which will not proceed because of difficulties relating to the attendance of either the accused or a witness99. Most practitioners with experience of first diets believe that they are most successful when those appearing are fully instructed and the sheriff plays an active role in establishing that the case is ready for trial. There is also cause for optimism in the success of the sittings where judges were able to sit on until all cases that could be heard were heard.
Should Procedural Diet be Mandatory?
6.23 While the principle of a procedural hearing is widely supported, there is a substantial body of opinion that such hearings should not be necessary in every case; it is suggested that some means should be devised to identify those categories of case which require management. I would be less optimistic about the prospects of procedural hearings making a substantial impact upon the system if they were optional or required only in certain cases. Identification of the appropriate cases would be difficult. Some of the most serious cases are the simplest. If fixed diets are thought desirable, then they are more likely to be achieved by having one integrated system rather than an informal and a formal way of arranging them. I have in mind that the case would be indicted to the procedural diet and that the judge presiding there would fix the trial diet.
6.24 While in theory it is for the parties, mainly the Crown, to prioritise and ensure the orderly despatch of business, it is plain that in the current climate outlined in the previous Chapter it is very difficult for the parties to do so on their own. Even where procedures do exist for cases to be dealt with prior to the trial diet, practitioners seldom make use of them. For example, it is possible for an accused to plead guilty at a diet specifically arranged for that purpose, either before the indictment for trial is served, or after it has been received100. There are a number of understandable reasons why that procedure is little used in practice. However, they do not explain entirely why the procedure is much less frequently used in the High Court than it is in the Sheriff Court. In many instances lack of thought and application is as likely an explanation as any other. Experience in the Sheriff Court indicates that, even where procedural hearings are mandatory, the considerable scope for variation in approach from the bench produces significantly different results101. Having more than one system would simply lead to even less certainty.
6.25 The sort of procedural hearing I have in mind is currently an optional part of High Court procedure known as a "preliminary diet"102. Whenever there is a preliminary diet to deal with a specific issue arising in the case, the judge should ascertain how well prepared parties are for trial and what steps they have taken to agree evidence that is unlikely to be in dispute103, but seldom does. Our current practice in criminal proceedings is that the judge should not play a pro-active role. Since it would be a major cultural change to require a judge to manage a case at a procedural hearing, and for those acting for the parties to be fully instructed with a "business plan" for the further conduct of the case, it would increase the prospects of succeeding in effecting that change if such hearings were mandatory. Only a new procedure which imposes on parties a specific discipline is likely to effect such a change. The Court could dispense with the hearing where parties are agreed that a trial is necessary and can satisfy the Court on the issues that have to be addressed in advance of the hearing in writing or by means of electronic communication. The trial diet could be intimated by the same means.
Past Experience of Procedural Diet
6.26 Prior to 1980 there were mandatory first diets in both High Court and Sheriff Court cases104. The procedure was abolished in 1980105, but re-introduced in 1995 in the Sheriff Court106. It was not re-introduced to the High Court, because unexpected adjournments were a problem in the Sheriff Court but not the High Court at that time, and because of the earlier experience that nothing was achieved in High Court cases by such diets. The first diet was held in the Sheriff Court and, if anything of significance arose at the diet, that matter was simply adjourned for determination at the trial diet in the High Court107. The impact of such a preliminary or first diet could, however, be quite different if that diet were to be held in the High Court, and were to be recognised as the point at which pleas of guilty should be tendered and pleas in bar of trial and other preliminary points should be taken and dealt with. While some pleas of guilty will always be tendered at the very last minute, it should be possible to create circumstances in which it will be accepted that the preliminary diet is where the cases not going to trial should be dealt with. Were that to happen, then the Court should be left with a manageable number of cases to allocate to trial. The conundrum is how to create circumstances in which more cases will be disposed of prior to the trial diet, and indeed how to create a culture to aim for that.