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Modernising Justice in Scotland: The Reform of the High Court of Justiciary

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Chapter 5: MORE THOROUGH PREPARATION OF HIGH COURT CASES

Where is this found in Lord Bonomy’s report?

33. Chapters 7 and 8

    What is the present law?

34. Under the present law there is no requirement on the Crown to provide the defence with any information about the case they are investigating until an indictment is served on the accused. As a matter of good practice the Crown does supply essential information to the defence, but there is no obligation to do so. Witness statements taken by the police are not normally checked and signed by the witnesses themselves. They are routinely taken in such a way as to be of use to the Crown in its investigation of the case and generally not for the purpose of being used in court (in contrast to the approach in England and Wales, where statements taken by the police can, in certain circumstances, be introduced directly in evidence). It is because of these circumstances that witness statements taken by the police in Scotland are not routinely made available to the defence.
35. In a case indicted to the High Court an accused who wishes to plead guilty before trial needs to take a formal initiative to do so; the system provides no standard opportunity for an early plea. There is scope under Section 72 of the Criminal Procedure (Scotland) Act to seek a preliminary hearing, but again this is rarely done. There is no fixed hearing at which the state of preparedness of the parties and readiness for trial can be discussed.

    What are the arguments for change?

36. Between 1995 and 2001 motions to adjourn increased sixfold. In 2001, research based on a sample of indictments found that 83% of motions to adjourn custody indictments, and 77% of motions to adjourn bail indictments, were made by the defence. The main reason raised by the defence was " more time needed ". Opposition to, and refusal of, motions to adjourn were very rare.
37. In the sheriff court there is a mandatory first diet (preliminary hearing) between service of the indictment and trial. Available statistics suggest that pleas of guilty are dealt with at an earlier stage in the sheriff court than the High Court.
38. From official statistics published in 2002 860 (29%) cases were disposed of in the sheriff and jury court by a plea being tendered at the first diet². In the High Court - where a preliminary diet needs to be specifically sought by parties - only 15 (1%) of cases were dealt with in this way. In the High Court, on the other hand, the percentage of cases where the accused pled guilty at the trial diet was much greater than in the sheriff court - 602 (62%) of cases in the High Court as opposed to 857 (29%) in the sheriff court.
39. The intended High Court trial therefore often results in the accused pleading guilty or turns into a procedural hearing. In the case of a plea, the prosecuting Advocate Depute will summarise the facts of the case, the defence will make a plea in mitigation and sentence (or an adjournment for reports) will immediately follow. In the case of a motion for adjournment, there will be a brief and formal legal argument, to which witnesses are not normally admitted. In neither case will evidence be heard, and in the latter case victims and witnesses who have steeled themselves to give evidence will simply be told that the trial has been adjourned.
40. Lord Bonomy therefore identified as his key objective achieving a system which ensured that victims, witnesses and jurors were not brought to court until the case was ready to go to trial. We agree.
41. Lord Bonomy made a number of detailed recommendations for improvements in this area, including;

• A working party of key stakeholders should review how witness statements are taken and whether they might in future be disclosed to the defence.
• The Crown should routinely issue a provisional list of witnesses to the defence shortly after the initial committal proceedings in the sheriff court - i.e., well before the indictment is served.
• The Crown should send the defence solicitor copies of all documentary productions which he has not already received with the courtesy copy indictment.
• Parties to give reasons for any challenge to a notice of uncontroversial evidence.

42. He also recommended that in general the Crown should keep the defence timeously informed of material developments in the case.
43. In terms of High Court procedure, he recommended that there should be a mandatory preliminary hearing for the judicial management of cases at a stage between service of the indictment and a trial. Prosecution and defence would be required to meet before that hearing, and the defence would be required to prepare a note on the line of defence (although that would remain confidential). At the preliminary hearing the judge should ensure that procedural matters - for example, agreement of uncontroversial evidence - were dealt with and should establish whether prosecution and defence were fully prepared for trial. Where they were ready to proceed, the court would fix a date (or, in some cases, a window of time) for the case to be heard.

    What were the views expressed in consultation?

44. The proposals for earlier disclosure by the prosecution were supported in principle by all of the consultees. Consultees expressed the view that further clarification was required, that the provisional list of witnesses should be issued within a specified period and that the procedure should be as straightforward as possible. The issuing of witness statements to the defence, however, should not be seen as a bar to defence precognition. Some consultees raised concerns as to how the proposals were to be achieved without sanctions, as well as their potential for the intimidation of witnesses. While police supported the proposal, they also noted the implications for resources and for the speed with which statements could be submitted to the Crown.
45. Proposals regarding the introduction of preliminary hearings were supported by almost all consultees. There was concern - particularly from some of the judiciary - as to the resource implications for the High Court. Others stressed that the success of the hearings would depend on a pro-active and consistent approach by the bench. Sheriffs Principal and sheriffs had some concerns about read - across to the sheriff court, although they felt that in principle solemn procedure should be the same in both courts. Organisations representing solicitors and the police were uniformly supportive of the proposals.

Our detailed proposals and how we will implement them

A Early information to the defence

46. We share Lord Bonomy’s view and that of our consultees that, in order to prepare their case and advise their client what plea to tender, defence lawyers need early notice of the case to be presented against the accused. We therefore agree with the principle that everything reasonable should be done to facilitate early defence case preparation.
47. On the issue of witness statements, we believe that witness statements should be taken in a way in which they can be routinely disclosed to the defence. The Crown Office and Procurator Fiscal Service is already engaged with the Association of Chief Police Officers in Scotland in working up measures which will ensure that statements in serious cases are routinely prepared to a standard which would enable them to be made available to the defence at an early stage. Respondents to the consultation stressed the need for defence solicitors to retain the right to precognosce witnesses. Nevertheless, we consider that the arrangements for provision of witness statements should allow solicitors to be selective in identifying witnesses for precognition. We intend to review the practical arrangements for provision of statements and precognition, including aspects relating to legal aid.
48. The proposal that a provisional list of witnesses should be made available to the defence shortly after committal should cause no difficulty in the majority of cases and is presently regarded as good practice by the Crown Office and Procurator Fiscal Service. There are, however, some cases where, due to the vulnerability or age of a witness or the risk of intimidation, information will require to be retained until the witness has been precognosced by the Crown and/or appropriate measures have been taken for the protection of the witness.
49. The Crown Office and Procurator Fiscal Service will issue a practice note outlining the procedure for issue to the defence of a provisional list of witnesses. It is anticipated that the routine period for issue of a list will be 14 days from full committal or release on bail, whichever comes first, but that the provision of such lists will ordinarily be superseded in due course by arrangements for the provision of copy statements.
50. The Crown Office and Procurator Fiscal Service practice note will also outline good practice for the advance delivery by the Crown of copies of significant documents in the case in order to facilitate the early defence investigation, and for the early intimation to the defence of information disclosed during the course of the investigation which is likely to be of material assistance to the proper preparation or presentation of the accused’s defence. We also want to consider whether there is scope to change the procedures for service of documents on accused persons who are on bail and legally represented. The present arrangements require documents to be served, often by 2 police officers, at the address in the bail order. Copies are also sent to the accused's solicitor. This is very cumbersome and resource intensive and arguably unnecessarily so, since it is the copies served on the solicitor that are critical from the point of view of preparation of the accused's defence. A possible solution is to make it clear that service on the solicitor is sufficient in such cases.
51. The indictment served on the accused includes a list of the items or productions that may be used by the Crown in support of their case against the accused. These items are separated into documentary productions and 'label’ productions (objects like knives or bloodstained articles of clothing). Documentary productions are not just paper based; the relevant Act defines them as including a map, plan, graph or drawing, any photograph, disc, tape or item capable of recording sound or data and any film, negative , tape or disc including microfilm.
52. The documentary productions may contain information important to the defence in the course of their own investigation and also to enable them to test the strength of the Crown case. They may need to check the validity or form of a warrant to determine if it should be argued that a search was unlawful, or they may require photographs or expert reports to consider the instruction of their own experts. Copies of documents which can reasonably be copied are routinely provided to the defence in High Court cases, although there is inconsistency in the timing and arrangements and difficulties have also arisen with regard to arrangements for the inspection of productions.
53. The principle of Lord Bonomy’s recommendation that the defence should have early access to the full documentary productions was strongly supported in consultation, but some practical problems were identified with delivery. Some of the material may be highly sensitive and/or extremely bulky, for example, post mortem photographs or a victim's full medical records. We would have reservations about delivering these by courier or even surface mail and would not wish to place an additional burden on the police; in general it will be preferable that certain arrangements are made for the defence to uplift copies from the Crown.
54. The Crown Office and Procurator Fiscal Service will include in the proposed practice note the practical arrangements which will apply in relation to provision of copy documents to the defence and access to documents. It is proposed that, so far as they have not already been copied to the defence in advance of indictment and they are reasonably capable of being copied, productions should routinely be made available for collection by the defence within 7 days of service of the indictment. The Crown should also give notice to the defence solicitor at the time the indictment is served as to the arrangements for collection of the copy productions and for inspection of the actual productions, including those that cannot readily be copied.
55. The Court will be able to address any issues with regard to the Crown’s compliance with its duties of disclosure and the consequences of any inadequate disclosure, such as adjournment and/or grant of bail, at the preliminary hearing.

B The preliminary hearing

56. We propose to introduce a preliminary hearing that will be a fixed procedural hearing to which, so far as possible, all time limits for service of information/requests will relate. The accused will attend.
57. Prior to this diet a mandatory meeting will have taken place between representatives of the Crown and defence to discuss a number of basic issues surrounding the case and its progress towards readiness for trial. The purpose of the meeting is to iron out any difficulties and to identify areas of common ground that can be agreed formally. It should further establish whether the accused intends to plead guilty, what witnesses the defence consider the Crown cannot excuse without their consent, the general state of preparation for trial and the likely length of trial. We will explore with the Lord Justice General the possibility of using an Act of Adjournal to set out the matters to be discussed at this meeting and a form which parties will require to complete and submit to the court in advance of the preliminary hearing addressing the issues which the court will wish to consider at the preliminary hearing. The meeting should be linked to an appropriate legal aid payment.
58. We are not convinced of the need to legislate for the preparation of a confidential note by the defence setting out the line it proposes to take, given the existence of the managed meeting, but we would strongly endorse the need for early and continuous engagement of defence counsel.
59. The judge will require actively to ‘manage' the case at the preliminary hearing. On the basis of the form submitted after the managed meeting, s/he will question the parties on such items as what evidence has been or can be agreed, any special witness requirements that may be necessary for the trial and whether any changes to the existing bail conditions to meet victim or witness concerns may be required. The judge will consider and rule upon the adequacy of any challenge to a statement of uncontroversial evidence which has been served by either party. The judge will enquire about the general state of preparedness for trial and check the availability of defence counsel for the proposed trial diet. As the judges pointed out in their comments, the presiding judge should also seek to establish how long the trial is likely to last. If the accused pleads guilty, sentence will be passed or, if necessary, the judge will adjourn for pre-sentence reports. The form submitted following the mandatory meeting and the record of the preliminary hearing will be part of the formal record of the proceedings.
60. It will be the responsibility of the judge at the preliminary hearing to ensure, so far as possible, that any matter that is likely to delay the start of the trial has been resolved before the date for trial has been fixed. If this, coupled with the managed meeting and the duty to agree non contentious evidence, is dealt with in a responsible manner by those concerned, trials should be more focussed and fewer members of the public and professional witnesses, some living and working in areas remote from the High Court, will be inconvenienced unnecessarily.
61. We accept Lord Bonomy’s recommendation that the preliminary hearing should be the date from which other periods of notice relate. To ensure timely preparation the Crown will require to give notice of additional witnesses or other evidential material at least seven days before the preliminary hearing and will only be able to introduce such witnesses or material later on cause shown. This should assist in reducing the number of adjournments due to crucial evidence requiring defence investigation being submitted late and gives the Court a management role in determining what can be admitted late. The defence should also give notice of witnesses required or intended to be led by them, productions and special defences and similar notices on the same timescale and basis.

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