* The PDF documents downloadable from this web site require that you have Adobe Reader installed. Get it free at Adobe.com
Modernising Justice in Scotland: The Reform of the High Court of Justiciary
Chapter 4: MANAGING THE CASELOAD OF THE HIGH COURT
Where is this covered in Lord Bonomy’s report?
- Chapter 13
What is the present law?
- Under the present law the sheriff may sentence to up to
3 years in custody when sitting with a jury. The High Court
has unlimited sentencing powers. If the sheriff considers
that a sentence of more than 3 years is merited, s/he may
remit the case to the High Court for disposal.
What are the arguments for change?
- Lord Bonomy was clear that the number of cases being brought to the High Court was not in itself an argument for changing the jurisdictional limits between the two courts. However he pointed out that 26% of sentences imposed in the High Court in the year 2001 were custodial sentences of less than three years, and a further 13% were non-custodial. 39% of High Court sentences given in that year could therefore have been imposed in the sheriff court with its current powers.
- Lord Bonomy also noted that it is Crown practice to indict into the High Court cases that are not legally complex but which merit sentences longer than 3 years on grounds of public policy, many of these sentences falling into the 3 to 5 year bracket. When the Crown Office analysed a sample of High Court cases to assess those which would, on the basis of the higher sentencing powers, be assigned by the Crown for indictment in the sheriff court, they identified a range of cases - mostly less serious drugs offences and assault and robberies - which were very much on the boundary between the two courts. The sheriff court already deals with many such cases.
- The UK Parliament has already agreed the principle of extending the sentencing powers of sheriffs to 5 years, in section 13(1) of the Crime and Punishment (Scotland) Act 1997 which has never been brought into force.
- The High Court should deal with the most serious cases - there is no suggestion that charges like murder or rape could or should be dealt with anywhere else. It should not, however, be involved in cases that can perfectly adequately be dealt with in the sheriff court. An increase in the sheriff’s sentencing power to 5 years would result in the transfer of cases of a type with which sheriffs are already accustomed to deal.
- What would be a manageable 7% increase in workload for
the sheriff court would be a major 20% reduction in the High
Court caseload, leaving that court to focus on the more serious
and complex cases. This will help the High Court to deal
effectively with the continuing steady increase in the most
serious business.
What were the views expressed in consultation?
- The proposal attracted considerable support, including
support from some members of the judiciary. An increase to
four rather than five years was suggested by others, on the
basis that this represents the boundary between 'short '
and 'long' sentences (which are currently treated differently
in terms of early release). Some consultees also expressed
the view that only senior sheriffs should deal with these
cases and part time sheriffs should not be asked to sit in
sheriff and jury cases. There was some concern expressed
over the ability of the sheriff and jury courts to cope with
an increase in the workload. Some consultees feared ‘sentencing
drift’, whereby sentences of more than 3 years might
be given for less serious offences which had always been
dealt with by the sheriff court, just because the powers
are there.
Our detailed proposals and how we will implement them
- We will bring into force section 13(1) of the Crime and Punishment (Scotland) Act 1997. This will not require to await the implementation of the full proposals in this paper but will be done when we are satisfied that the sheriff court is ready to accommodate the increased workload. We need to discuss how best to manage this change with the Sheriffs Principal, given their responsibility for the administration of the courts in their sheriffdoms, and with the Lord Justice General. We are also conscious that Sheriff Principal McInnes may make some complementary proposals in relation to possible changes to summary sentencing limits in the report of his Review of Summary Justice, due later this year. Subject to these further discussions we envisage this change coming into effect in Spring 2004.
- In terms of the other concerns raised in consultation, Lord Bonomy found no evidence to support the idea that significant sentencing drift occurred after 1988 when the sheriff’s custodial sentencing powers were raised from 2 to 3 years. As at present, the Appeal Court would provide a regulatory mechanism for inconsistent or unduly severe sentencing. And we are not convinced that 4 rather than 5 years is the answer - it simply represents a more cautious figure which would require further primary legislation.
- The Scottish Legal Aid Board already has discretion to sanction the use of counsel in appropriate sheriff and jury cases and this will continue.