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Modernising Justice in Scotland: The Reform of the High Court of Justiciary
Chapter 3: SUMMARY OF PROPOSALS
- Managing the caseload of the High Court
The problem
- The High Court has become clogged with the volume of cases - 23% increase in indictments between 1995 and 2001, with a further 4% increase in 2002. Cases which could well be dealt with in the sheriff court if the sheriff's sentencing powers were greater are sent to the High Court because of its higher sentencing powers.
The solution
- To enable the High Court to focus on the most serious and complex cases, we propose to implement Section 13(1) of the Crime and Punishment (Scotland) Act 1997 - raising the sentencing power of the sheriff and jury court from 3 to 5 years.
- On the basis of the current caseload, this change should reduce the volume of High Court indictments by 20% while increasing the sheriff and jury caseload by 7%, the difference being explained by the much larger number of cases already being dealt with in the sheriff courts.
- More thorough preparation of High Court cases
The problem
- Cases come to trial with essential preparation often incomplete. As a result either prosecution or defence, or both jointly, seek to adjourn the case, sometimes on more than one occasion.
- Between 1995 and 2001 the number of cases listed to call at sittings of the High Court rose by 59% although the number of new indictments rose by only 23%. Over the same period the number of motions for adjournment rose sixfold. The current high level of adjournments causes considerable inconvenience and upset to witnesses, victims and jurors, and means we are not achieving the goal of speedy justice.
The solution
- Better resourced and organised High Court work by the prosecution. Substantial progress has already been made.
- More and earlier information to the defence about the prosecution case.
- Pre-trial discussions between prosecution and defence through a managed meeting, a record of which will be lodged with the court.
- A mandatory preliminary hearing at which both parties will attend court to discuss preliminary issues in front of a judge and to confirm their readiness to go to trial. The court will retain a record of what has been agreed.
- Judicial management of cases, where the trial diet is fixed by a judge when parties have confirmed that they are ready to proceed to trial and all preliminary issues that might delay the trial have been dealt with.
- Modernised time limits
The problem
- In a solemn custody case the Crown must serve the accused with an indictment that sets out the charges that s/he will face within 80 days of full committal before a sheriff. The trial must begin within 110 days.
- Given the technical complexity of many modern cases, the Crown cannot realistically indict much earlier than the 80 day limit. That means that the defence has only 29 days to prepare a case - a very tight deadline, given that they in turn may need to scrutinise technical evidence and secure expert witnesses.
- At present if there is a breach of the 110 day time limit, the accused is free of the charge for all time. So a technical breach such as a miscalculation by one day can lead to a person accused of a serious crime walking free.
- In cases where the accused is not in custody, the trial must take place within 12 months.
- The Crown has frequently been unable to issue bail indictments much before the time limit of 11 months. This creates a similar shortage of time for the defence in relation to a trial which must take place within 12 months.
- The result is an increasing number of adjournments. In 2001 around 80% of all motions to adjourn were requested by the defence, with the most common reason being 'more time needed'. These generated a substantial increase in extensions to statutory time limits. The likelihood of an extension being granted rose from 9% of indictments in 1995 to 24% of all indictments registered in 2001.
- The tests to be met in seeking an extension to the 80 day, 110 day and 12 month time limits vary and are different for the Crown and the defence.
The solution
- More time for the defence to prepare, without relaxing the pressure on the Crown for efficient case preparation. In High Court custody cases, we propose to change the 110 day time limit to run to the date of the preliminary hearing, rather than the trial itself. The Crown will continue to be obliged to issue the indictment within 80 days. This will make more time available to the defence to prepare for trial.
- We will legislate for the trial to commence within 140 days.
- Where the accused is on bail, the Crown will be obliged to issue the indictment within 10 months, rather than 11 as at present, so that the preliminary hearing can be held within 11 months, and the trial commence within 12 months. This will give the defence up to an extra 30 days to prepare for trial.
- These proposals will maintain the long-standing principle that strict time-limits should apply, while recognising that increased preparation time will result in fewer unnecessary adjournments.
- It should not be possible for the accused to evade justice for all time because of a technical failure to observe the custody time limits. The consequence of the Crown being unable to comply with the 140 day time limit (or of the 110 day limit in the sheriff court) will be that the accused will be entitled to be released on bail. But the bail time limit (backdated to first appearance on petition) will then apply. If the Crown cannot bring the case to trial in a year, the charges will continue to be dropped for all time.
- We accept Lord Bonomy's recommendation that the only grounds for the court to extend a time limit should be 'on cause shown'. This means that the court has to be satisfied that there is a good reason for the extension.
- Encouragement to early realistic pleas
The problem
- Accused persons plead guilty on the day of the trial to the inconvenience of witnesses, victims and jurors who have been cited to give or consider evidence. In 2001 over half the cases due to proceed to trial ended in this way.
The solution
- This is not a free-standing problem and will be partly addressed by the measures described above to encourage earlier case preparation.
- While recognising that sentence should remain a matter for judicial discretion, we also propose to clarify the existing statutory provision which is designed to enable the sentence to be discounted for an early plea of guilty.
- Greater certainty that trials will proceed
The problem
- At present, cases are indicted to a sitting of the High Court but not to a fixed date and time. Cases may therefore call for trial at any time during the duration of a sitting which may be for 2 weeks or longer with consequent uncertainty for all parties involved.
- Once trials start they may be disrupted for a number of reasons, but common reasons are non-attendance of an accused person on bail and non-attendance of witnesses.
The solution
- We propose that in future, the majority of trials should be set down for a fixed date and time.
- A minority of less complex cases would be available to be brought in at short notice to fill any unexpected gaps in the court timetable.
- We propose to give the court power, where the circumstances would justify this, to attach bail conditions to a reluctant witness who has been arrested and brought before the court.
- We propose to legislate to provide that the Court may, administratively, excuse the attendance of the accused at any procedural hearing.
- We propose that one of the issues to be considered at the preliminary hearing should be any special requirements on an accused person on bail, such as to appear early on the date of trial, so that prompt action may be taken to issue a warrant for non-appearance.
- We will explore further how best to minimise the disruption caused by accused on bail who wilfully fail to attend trial hearings.
- Supporting victims and witnesses
The problem
- Vulnerable witnesses are not always clear before the trial what support will be available to them as they give their evidence. This increases their stress.
- The 'special measures' of support currently available to such witnesses may not be sufficiently flexible to meet their needs.
- In addition to any trauma associated with the giving of evidence in the courtroom or listening to harrowing evidence, there is additional anxiety surrounding the possibility of encountering the accused and his or her associates.
The solution
- The preliminary hearing will address the needs of vulnerable witnesses for 'special measures' helping them to give their evidence, so they will know well in advance of the trial whether (for example) they will be able to give evidence from behind a screen/using a CCTV link.
- The Vulnerable Witnesses (Scotland) Bill, due to be introduced shortly, will widen the category of witnesses eligible to use special measures, and will also give statutory backing to new forms of support.
- In recent years significant expenditure has been incurred to upgrade available accommodation in court buildings where the High Court sits permanently or regularly visits, but more work has to be done to meet the needs of those who are victims, relatives of victims, witnesses and jurors. Where practicable, at any location where the High Court sits a room should be made available for victims, their relatives and other vulnerable witnesses.
- At the preliminary hearing the judge must consider any special or additional conditions of bail that may be necessary to limit the possibility of the accused and their associates encountering victims, their families or witnesses.
- Getting the infrastructure right - people and places
The problem
- We are asking the High Court to change significantly the way in which it works and actively to manage cases before it.
- We need to ensure that the High Court is adequately resourced and judges adequately supported to manage cases effectively.
- Getting the accommodation right is also important. More investment is needed to ensure that the court can operate effectively in all the places where it sits.
The solution
- We will work with other stakeholders to ensure that the High Court is adequately resourced, and those who manage it adequately trained, particularly in relation to the new preliminary hearing.
- Where practicable we will modernise the buildings used by the High Court to provide a safe and secure environment for victims, witnesses and jurors and to ensure its effective operation.