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Modernising Justice in Scotland: The Reform of the High Court of Justiciary
Chapter 10: GETTING THE INFRASTRUCTURE RIGHT; PEOPLE AND PLACES
A HIGH COURT LOCATIONS
Where is this covered in Lord Bonomy's report?
- Chapters 10 & 16.
What is the present law?
- Under the present legislation the Lord Justice General in conjunction with the Lord Advocate fixes by Order the times and places where the High Court will sit throughout Scotland.
- The principle in Scotland has traditionally been that the hearing of cases in the High Court should be largely in the area where the crime was committed. In practice, however, Edinburgh and Glasgow have traditionally heard cases from all areas of Scotland and this continues to the present day. Outwith the dedicated High Court buildings in Edinburgh and Glasgow the High Court sits in the local sheriff court when on circuit. In locations such as Kilmarnock and Paisley where the court is either a new build or the existing court been recently renovated there is adequate accommodation.
- However, the sheriff court accommodation in Aberdeen has been under considerable pressure and to relieve that High Court sittings have been held in Peterhead and Stonehaven. Lord Bonomy therefore sought a dedicated court room in Aberdeen for exclusive High Court use.
- Growth in solemn business has meant that the current court accommodation in Dundee is unable to accommodate solemn business, and High Court cases are often heard in Forfar. Lord Bonomy was strongly of the view that Forfar (because of its poor public transport links and awkward location) was not suited to routine use as a High Court venue and that regular High Court sittings should resume in Dundee as soon as practicable. He also recommended that a suitable court room should be provided in Perth for occasional High Court use.
- Lord Bonomy also recommended that the witness service presently operating in all the sheriff courts be rolled out to the High Court. This is underway and it is hoped that the rollout will be complete by August 2003.
What are the arguments for change?
- The Executive is committed to providing access to justice and we see the principle of the High Court continuing to sit throughout Scotland as part of that commitment. The issue here is one of investment to make the current principle work more effectively in practice.
What were the views expressed in consultations?
- The general principle of local justice was supported by some legal consultees, as well as by the police, local government and the press. Public consultations showed limited support for the High Court circuit, feeling that the formal setting in dedicated High Court premises (in Edinburgh and Glasgow) lent vital gravitas to proceedings. Prisoners had a strong preference for being tried away from the location of the offence. It was less emotive and their families were more likely to be protected from publicity.
Our detailed proposals and how we will implement them
- The Scottish Court Service have plans for redevelopment at Dundee Sheriff Court House which would provide 3 sheriff and jury court rooms and would enable High Court cases to be dealt with in Dundee once more. Work on this project is expected to start in 2003 - 2004.
- The Scottish Court Service also recognise the need to improve the facilities for solemn business in Aberdeen and are developing proposals for enhanced facilities using adjacent property.
B THE HIGH COURT IN GLASGOW
Where is this covered in Lord Bonomy's report
- Chapter 12.
What is the present law?
- As above - under Section 2 of the Criminal Procedure (Scotland) Act 1995 the High Court sits at such times and places as the Lord Justice General decides to be necessary. The Lord Advocate is consulted, and may also request additional sittings to handle pressure of business.
- Judges of the High Court are based in the Supreme Courts in Edinburgh where they undertake a range of duties both civil and criminal. Unlike civil business, which is conducted only in Edinburgh, criminal business is conducted in Edinburgh and in other towns when the High Court is on Circuit. When the High Court sits at Glasgow it sits as a circuit court.
- Sittings in Glasgow have for some time now been fixed to commence fortnightly and the number of courts has increased to the present level of six courts per sitting. In essence the High Court sits in Glasgow on a full time basis.
- Judges are allocated to these fixed sittings which are planned for two week periods. In Glasgow, however, some judges are allocated consecutive sittings
- Along with the judge a clerk and macer (court usher) are allocated to each court. As with judges these officers are based in the Supreme Courts in Edinburgh and travel to the circuit courts including Glasgow with the judge.
What are the arguments for change?
- The introduction of the preliminary hearing and of fixed trial diets will make it difficult to continue the rigid fixed programme of sittings in Glasgow. Lord Bonomy argued strongly that Glasgow must operate on a basis which allowed greater stability and continuity.
- The review also recommends greater degree of communication between parties. The management of the business by the Court will make the court more pro-active than it has been in the past. In particular there may be a role for the clerk of court in the allocation of back up trials if fixed diet trials are unable to proceed for whatever reason. One clerk of court with responsibility for co-ordinating the work of the various courts in Glasgow is based in Glasgow. Lord Bonomy recognises the potential strength in having permanent clerks assigned to each court room there to manage the business of that court room and to assist one another in the allocation of business to ensure the effective use of court room availability.
What were the views expressed in the consultation?
- Only members of the legal profession responded to this proposal. They agreed that there was practical force to the recommendation and supported it with the proviso that it should in no way disrupt the relationship between judge and clerk.
Our detailed proposals and how we will implement them
- Given the level of business in Glasgow, the High Court there should be run as a permanent court and staffed accordingly. Decisions on operational matters to support that approach are for the Scottish Court Service and the Lord Justice General.
C PREPARING FOR THE CHANGES; PEOPLE AND RESOURCES
- Lord Bonomy's report states clearly that 'The most important resource in the justice system is personnel'. He seeks to ensure scope for early case preparation by the defence, a more open exchange between prosecution and defence as early as possible, and preliminary procedure which is effectively managed by the judiciary. He is therefore recommending the investment of resources and effort in productive work early on in the process, to save on unproductive work ( and disruption to victims, witnesses and jurors) once the case has come to trial. All these mean new ways of working for the judiciary and for lawyers who prepare cases and appear before the court.
- He recognised that the Crown Office and Procurator Fiscal Service was already implementing major changes to management structure, and was, in particular, beginning to implement the review of its own internal Quality and Practice Review Unit (QPRU) into the prosecution of serious crime cases and proposals to change the role and appointment of Advocate Deputes.
- In response to the QPRU review, steps are already being taken to improve the quality and timeliness of case preparation by Procurators Fiscal, improve the arrangements for obtaining Crown Counsel’s instructions in relation to the prosecution of High Court cases, improve the management of cases in the High Court, provide additional preparation time to Crown Counsel (particularly for sensitive, complex and serious cases) and clarify the management of cases post-Indictment.
- Additional Advocates Depute are being appointed to a new structure where Senior Advocates Depute are able to focus on complex and serious cases and all Advocates Depute have appropriate preparation time. The pool from which Crown Counsel are appointed has been widened to include Solicitor Advocates and eligible members of the Crown Office and Procurator Fiscal Service and plans are being drawn up to provide more structured training to Advocates Depute in such areas as the interviewing of child witnesses and the prosecution of rape cases.
- The further changes proposed by this review - particularly in relation to the preliminary hearing and the managed meeting between prosecution and defence and routine disclosure of statements and other evidential material at an early stage of proceedings - will involve further investment by the Crown in people and enhanced information systems. Some of this will be non - recurring and associated with phasing in of the new procedures.
- Lord Bonomy also stressed the importance of well prepared defence solicitors, and of a legal aid system which provided positive incentives for early case preparation and, in particular, for continuity in defence representation of a client from the managed meeting through to the trial. The package of reforms will involve some additional costs in terms of legal aid, because the changes to High Court procedure, in particular the introduction of a preliminary hearing, will need to be underpinned by appropriate fees for defence counsel and solicitors. However, the improvements in efficiency that the reforms are expected to generate should also deliver some legal aid savings. Overall, we would expect the impact on the Legal Aid Fund to be broadly cost neutral in terms of cost per case.
- The short-term implications of individual aspects of our proposed changes for legal aid are covered at various points in this White Paper. We recognise the importance of providing adequate support for the defence through the legal aid system. We are in discussion with the Faculty of Advocates about possible changes to the structure of criminal legal aid payments to counsel, and await formal proposals from them.
- There will also be some resource implications for the Scottish Court Service, both in terms of judicial and support resources during the 'bedding in' of the new procedures and in terms of investment in its estate to improve facilities (particularly for victims and witnesses) and to enable the High Court to deliver justice locally in appropriate locations across Scotland
- The modernised time limits in custody cases may have a very small impact on the remand population, which Scottish Prison Service estimates it can readily absorb. And the proposals on witness statements will have some implications for the police; training will be needed and initially, as least, more time may have to be taken on individual statements. Police reaction to the report noted, however, that other aspects of the proposals should reduce unnecessary attendance in court for police witnesses. Fewer adjournments, and more efficient arrangements for citing witnesses and for cancelling unnecessary appearances, will all help to free up more officers for front line work.
- Training for new ways of working is also an issue. Lord Bonomy recommended training for all those involved in the new preliminary diets. In their response to consultation the judges sought further clarification of the way in which their new 'case management' role, particularly at the preliminary diet, is intended to work. The Crown Office and Procurator Fiscal Service and the Scottish Court Service will train staff internally for their new roles, and we would also wish to explore with the profession how court practitioners might be prepared for the introduction of the new system. Judicial training is primarily a matter for the independent Judicial Studies Committee and we will be asking the Committee to examine the possible training needs of the judiciary in relation to these new proposals.