“Independent Review of Sheriff and Jury Procedure”
The next item of business is a debate on motion S3M-6636, in the name of Kenny MacAskill, on the “Independent Review of Sheriff and Jury Procedure”.
14:57
Another major step in the process of reviewing criminal procedure in Scotland was completed on Friday 11 June when Sheriff Principal Edward Bowen CBE presented me with a thought-provoking and very thorough report on his review of sheriff and jury procedure. I thank Sheriff Principal Bowen for his substantial work and for delivering his report within the agreed timescale.
It is clear from reading the report that, in conducting the review, Sheriff Principal Bowen adopted a hands-on approach, meeting and canvassing views from a large number of practitioners who are involved with sheriff and jury procedure. That approach adds considerable weight to the proposals that are made in the report. I commend him for making recommendations that respect the principles of a fair and effective justice system and which have regard to the needs of the largest and smallest courts in Scotland.
In commissioning the review, I was aware of the widespread view among sheriffs and practitioners that the procedures for managing such business needed to be re-examined. However, I note that when launching his report Sheriff Principal Bowen commented that the picture revealed to him in conducting the review was not wholly one of doom and gloom, with the existing system showing remarkable ability to absorb a significant increase in business and continuous efforts being made in various places by sheriffs, court staff and practitioners to bring about improvements. I was encouraged to note the efforts that were identified to improve practice and bring about cultural change, both nationally and locally, by the Crown Office and Procurator Fiscal Service, sheriffs, practitioners and the Scottish Court Service, and I agree with the sheriff principal that
“substantial improvements can be made within the existing legislation and structural frameworks”.
It is a strength of the Scottish legal system that those who work in our courts continue to strive to improve the way procedures work.
Although I am heartened to hear those positive points, we should not be tempted to think that the system needs only some minor tweaking, as it is clear from the report’s proposals that fundamental changes to procedure and practice are needed to deal with the root causes of the problems that were rightly identified by the sheriff principal.
The first problem that Sheriff Principal Bowen highlights is the pressure that is put on the system by the significant change to the landscape in the sheriff court with regard to how serious cases are dealt with. He says:
“The role of the sheriff in dealing with serious criminal cases has changed dramatically over the last 2 decades. The change has been both in terms of volume and in the complexity of cases proceeding by way of indictment”.
Increasing the sentencing powers of sheriffs has, understandably, resulted in more complex cases being prosecuted on indictment in the sheriff court. That is what was intended, and some measuring of the impact of the change was one of the issues that I had in mind in commissioning the review last year. Sheriff Principal Bowen found that sheriff and jury indictments had increased from just over 3,000 in 1988 to just over 8,000 in 2008. An area of further challenge is the rising number of cases in which the accused is remanded in custody pending trial, which is up 62 per cent in the four years to March 2009.
I cannot address all of Sheriff Principal Bowen’s recommendations today. His report contains 34 recommendations and extends to 145 pages. It helpfully details the current procedures, provides detail on the volume and disposal of business, identifies problems and provides proposals for improvement.
I welcome the fact that Sheriff Principal Bowen’s first recommendation attempts to improve the experience of victims and witnesses. Indicting cases to a first diet only, with trials being fixed once the court is satisfied that the case is actually ready for trial, would provide huge benefits to victims and witnesses, including police and forensic expert witnesses, who would not make unnecessary arrangements to attend court, only to cancel such where the accused pleads guilty at the first diet. Some of the costs that are associated with the current situation are the human costs of worry and stress—addressing those issues will help to breed confidence in our legal system—while others relate to the best use of our police officers.
Sheriff Principal Bowen diagnoses communication as an issue that contributes to first diets not functioning as they should—that is, as a clearing house for trial sittings. His view is that first diets are routinely continued to allow negotiations and discussions to take place between the Crown and the defence due to a lack of earlier engagement between the parties. Everyone welcomes the dialogue and discussion between the Crown and the defence, but the issue, as correctly analysed by Sheriff Principal Bowen, is how and when they take place. First diets should serve a critical role as a gateway for cases going to trial, and parties should ensure that they respect that element of court proceedings. The sheriff principal had no doubt that failings in first diet are caused by a combination of issues, such as parties not engaging prior to that point and the overall pressure that is caused by the volume of business being squeezed into the system.
To improve communication in sheriff and jury procedure, Sheriff Principal Bowen recommends the introduction of a compulsory business meeting, to be fixed when the accused first appears on petition and held prior to service of the indictment.
I wonder whether the proposal to have such a meeting before the indictment is as practical as it appears to be at first glance, as it would occur before the parties have come to grips with the issues and before the defence knows much about the situation. Would it not be better to have the CBM after the service of the indictment?
The purpose of the compulsory business meeting is to focus on the issues that might appear in the indictment. Those are matters that can relate to what Sheriff Principal Bowen has recommended.
The system of serving an indictment before having discussions leads to witnesses being instructed and cited unnecessarily. We need to focus. The Government is not standing on ceremony, and it is willing to discuss and debate these matters. Perhaps there could be some dovetailing, but the principal point that Sheriff Principal Bowen makes is that parties should get together to see what they can agree on. If the case proceeds to a trial, people can agree on what that trial will be for and witnesses can be sure that they will need to attend on a date that is set for the trial.
Equally, if we know how someone is prepared to plead, we can tender something to which we know that they will plead, rather than having to make amendments. There is some logic in Sheriff Principal Bowen’s recommendations on that issue, but the purpose of his review and this afternoon’s debate is to flesh out such matters.
Sheriff Principal Bowen recommends that a written record of the CBM is prepared and made available to the sheriff prior to the first diet. That would move proper engagement to an earlier stage in the proceedings and seems to be a sensible way forward. The Scottish Government will consider in more detail how that approach would work in practice by modelling the impacts on the system and the costs.
It is clear that if parties are compelled to communicate earlier in proceedings, there is scope to bring forward pleas of guilty even before the first diet stage. Increasing the number of early guilty pleas has many benefits: it removes cases from the system, which frees up court and human resources to focus on the remaining cases.
If we take together Sheriff Principal Bowen’s proposals to introduce a CBM, to fix the trial date for a case once it is known that the case will go to trial and to extend the time limit between service of the indictment and the first diet, it is clear that we need to examine the existing time limit of 110 days for an accused person to be remanded in custody pending trial. Sheriff Principal Bowen makes a substantial case for the time limit to be extended to 140 days, which deserves serious consideration. I invite members to study the arguments and evidence that he provides. Any changes to time limits will be a matter for the Parliament. It is not a decision to be taken lightly, but I am aware that the issues in the system have moved on since we last considered time bars for the High Court. I did not support extension then, but I have found the case that has been made to be highly persuasive and I urge other members to give the recommendation serious consideration.
A couple of recommendations highlight Sheriff Principal Bowen’s breadth of thinking in conducting the review. He recommends that legal aid should be reviewed to incentivise early resolution of cases. I wish to encourage pleas of guilty at the earliest possible stage, so we will closely examine how legal aid could support that.
Sheriff Principal Bowen suggests extending the use of television links between prisons and courts, and highlights the administrative and environmental benefits. I agree that extending the use of TV links would reduce disruption to prisoners and could provide a welcome saving in costs, both financial and to the environment. I will ask relevant interests to examine that suggestion with a view to finding the best solution and addressing any concerns.
I was going to raise the issue of TV links in my speech, and I will still do so. Cornton Vale is the sole female-only prison in Scotland, so the issue of the distances that those prisoners travel to get to courts throughout Scotland is particularly acute. Is the cabinet secretary minded to support early movement on the introduction of TV links at Cornton Vale?
I am happy to consider that issue. There is a significant problem at Cornton Vale, which is exacerbated given that it has a national locus. Many members have raised issues concerning female prisoners who have been transported in less than salubrious circumstances. There is a lot of merit in Stewart Maxwell’s proposal, and I am happy to discuss the issue with the Scottish Prison Service and the courts administration.
In considering the way ahead on the proposals, I am pleased to open the debate and will listen with interest to contributions from members throughout the chamber. We will examine the recommendations carefully in conjunction with our criminal justice partners. Lord Gill’s review of civil courts also impacts on the business in the sheriff court. The civil court and sheriff and jury recommendations are intertwined, and we will progress them together under the overall stewardship of the recently established making justice work programme.
Scotland has much to be proud of in its criminal legal system and the people who work in it. Sheriff and jury procedure is a significant part of that system, and it is imperative that we take the opportunity to reform sheriff and jury procedure and to provide procedures that will ensure that we have modern effective Scottish justice, drive up public confidence in the system and achieve efficiencies where that can be done without interfering with the interests of justice.
I move,
That the Parliament welcomes the report on the Independent Review of Sheriff and Jury Procedure conducted by Sheriff Principal Edward F Bowen CBE TD QC and believes that the people of Scotland deserve a modernised sheriff and jury procedure that promotes the interest of justice in an efficient way, serves the interest of victims, witnesses and jurors and is fit for purpose in the 21st century.
15:09
The Scottish Conservatives welcome the review of sheriff and jury procedure and, like the Scottish Government, thank Sheriff Principal Bowen for preparing this important report.
The first duty of any Government is to protect society from those who seek to undermine it and any reform to our criminal justice system must not detract from that aim. However, we welcome any recommendations for streamlining current procedure and encouraging the justice system to be swifter. At a time when there are serious constraints on public expenditure, it is vital that services are provided efficiently and cost effectively.
That that very principle guided the report’s thinking is important. The review’s analysis and recommendations are very helpful, with the main intention of making judicial processes in Scotland more efficient and effective. I am glad that Sheriff Principal Bowen had the foresight to take account of the likely stringencies imposed by potential public spending cuts.
Scotland’s sheriff courts are greatly important to our judicial system and, given that business in them is increasing, it is imperative that they work well. The statistics in the review that show that the number of cases heard in sheriff courts has been increasing only underline further the need for a more efficient service.
We are pleased that the review recommends the introduction of compulsory business meetings to ensure that the Crown and the defence discuss cases at an early stage in proceedings, and I hope that such a move will result in parties being better prepared for court appearances and will lead to a higher number of guilty pleas being made at an earlier stage. I hope, too, that such meetings will ensure that those who are involved in the first diet meeting are focused on their purpose as a clearing house for cases going to trial.
Evidence from areas in which good communications already exist clearly suggests that early engagement and communication between the Crown and defence help to remove churn and adjournments at first diet and increase the number of section 76 pleas. Under the proposed procedure, parties must at the first diet meeting be in a position to reliably inform the court of their state of preparation for the trial, particularly in relation to the availability of witnesses.
As Sheriff Principal Bowen makes clear, although the Crown and defence state that they are willing to engage in early discussions, those discussions very often do not occur or are ineffective. I hope that the formal compulsory business meeting between the two parties will increase co-ordination, although I suggest that Sheriff Principal Bowen’s claim that it will
“generate a culture of effective engagement beyond the CBM ... for the ... duration of the case”
is somewhat optimistic. Similarly, the sheriff principal’s stress on the need for
“a fundamental change of mindset by the Crown and defence so that they appear for First Diets as fully prepared as possible and do not continue the current practice of seeking continuations to finalise their preparations”
could be viewed as too idealistic or optimistic.
We welcome Sheriff Principal Bowen’s analysis of and recommendations on the processing of witnesses, given that the current system in Scotland has been proven to be not particularly cost effective. Indeed, senior police officers have called for reform of the current process, which is based on an ineffective computer system that routinely calls officers to give evidence when they are not required, taking them off the beat and away from protecting communities.
The cost of such inefficiency has been millions of pounds of taxpayers’ money. In May, Stephen House, the chief constable of Strathclyde Police, Scotland’s largest force, revealed that last year his force spent £4 million on extra wages for officers attending court on their days off. On 21 April 2010, an apparently typical day, 312 Strathclyde police witnesses were called to court, but just 10 gave evidence. Moreover, more than a quarter of those who were called were on leave. Chief Constable House then drew comparisons with a similar-sized force, Greater Manchester Police, which spent under £100,000 bringing officers to court. We will all agree that we can learn from other forces about how to work more effectively with the Crown to avoid calling officers to give evidence on rest days and during annual leave. That should not be happening and the Scottish judicial system should be trying to operate as efficiently as possible and to be responsible in its spending and with its organisational structures.
In that light, we are glad that the review recommends that a witness be cited to give evidence only where it is known that the case will proceed to trial and we welcome the recommendation that greater use be made of stand-by arrangements for witnesses and of means to clarify which witnesses will be required for trial. Such a move will be successful in making Scottish courts more time efficient and cost effective.
Although issues regarding jurors fall between the scope of the review and the reforms that the Scottish Government is progressing, some of those issues directly affect the efficiency of court procedure. Jury service is an important public duty and, without the attendance of jurors, the justice system could not function. The review illustrates inefficiencies in the jury processes in Scotland, particularly concerning jurors who fail to attend. By not turning up to court after citation, jurors cause more inefficiency and hinder the judicial process. We therefore welcome Sheriff Principal Bowen’s recommendation that sheriffs make greater use of the provisions of section 85(6) and 85(7) of the Criminal Procedure (Scotland) Act 1995, under which fines can be imposed on those who fail to attend court to perform their jury service.
The evidence that Sheriff Principal Bowen presents for that recommendation is an example of a more efficient judicial process under which such fines were imposed. Not only did that act as a punishment for those who failed to attend, but the resulting media coverage acted as a deterrent to those with similar plans in mind. We recently welcomed the measures in the Criminal Justice and Licensing (Scotland) Bill to extend the age limit for jurors from 65 to 70. However, we continue to press the Scottish Government to extend to 70 the age limit for jurors serving in civil court proceedings.
The Scottish Conservatives welcome the findings of the review and hope that the recommendations are implemented successfully. We believe that the people of Scotland deserve a modernised court system. I hope that we will find agreement that the implementation of the recommendations would result in a more time-efficient and cost-effective service to the people of Scotland.
I move amendment S3M-6636.1, to insert at end:
“, and further recognises that, with constraints on the public expenditure, it is vital to ensure that justice continues to be delivered swiftly and in a cost effective manner.”
15:16
The review is the latest in a series of reviews of core procedures that have covered civil courts, the High Court and various aspects of procedure. The reviews, which go back to work that was begun after 1999, demonstrate with clarity one reason why the Scottish Parliament was established in the first place—to deal expeditiously with matters that affect domestic legislation and the courts that were difficult to deal with in good time at Westminster.
I confess that I was not aware of the extent to which sheriff court jury trials, rather than those in the High Court, dominate the prosecution of serious crimes in Scotland, but so it is. Sheriff Principal Bowen, to whom the Parliament is indebted for his comprehensive report, has identified that as being one of the most significant changes in the past 20 years. The cabinet secretary talked about the figures, but I point out that sheriff court jury trials accounted for about 86 per cent of all solemn business. As the sheriff principal has said, that is partly because of the extension of sheriffs’ sentencing powers from sentences of two years to sentences of five years, and partly because of a rise in prosecutions. Incidentally, that trend gives the lie to the claim that Scotland today is somehow not hard enough on criminals, because that trend has been accompanied by an upward trend in the level of sentences for similar crimes.
John Lamont talked about the need for more early guilty pleas. I do not think that he meant that in the way that I am about to discuss, but I want to put the issue in context. The object of the exercise is not to get more early pleas of guilty per se; the object is better justice in the Scottish courts, one aspect of which would be that people who are guilty of crimes plead guilty at an earlier stage.
The jury courts, particularly in Glasgow, are stretched to capacity in allocating jury trials but, paradoxically, the court rooms are not fully used. The report reveals that in Glasgow, 27 per cent of cases calling for trial in 2009 were adjourned and that only 780 days out of 1,750 programmed days were used. Throughout the country, only about a third of cases that were allocated to jury trial sittings went to trial.
I do not want to overstate the issue. One main difficulty that Sheriff Principal Bowen identifies is the tendency of accused persons to stick their heads in the sand and hope for something to turn up, or to fail to engage with a solicitor. That is an understandable human reaction; a witness might not show up, a technical deficiency might be found or a miracle might happen. In any event, nobody likes to admit guilt, particularly in public and particularly to a nasty crime. No court procedure in the world will stop that entirely, but effective court procedures can reduce the problem. Procedures can be devised to deal with the issue as far as possible without inconveniencing witnesses.
The sheriff principal identified situations in which preparatory work had not been completed, either because the defence had not been able to meet properly with the prosecution or for some other reason. I can say from experience that it concentrates the mind wonderfully to know that one will shortly have to face an unsympathetic bench with not entirely satisfactory explanations as to why one’s case is not quite where it ought to be. However, some leeway is needed. Solicitors for one side or the other can be off sick or stuck in court on other business. Sheriff Principal Bowen noted the problems that that can sometimes cause.
Oddly, because the average sitting time in sheriff and jury cases is only four hours a day, when the cases go up time can be freed and an opportunity found for the solicitor and the fiscal to meet. Although a strict approach from the bench is a useful driver of more efficient court business, there needs to be some flexibility in practice. In that context, the proposal to indict to the first diet and not to fix the trial diet until standing issues have been dealt with is sensible. Many problems can be resolved by earlier effective engagement.
The idea of the compulsory business meeting is a fruitful one, with the date being fixed at the time of the first appearance on petition. The objective is to drive a change of culture, which is really important—the formalities do not matter as much as a change of culture. It is important that the idea of the compulsory business meeting is not watered down, as so often happens with such ideas. A process of mutation into something else is a common characteristic of many court procedural reforms, whether it is adjustment roll callings in civil cases, interim hearings in family cases or intermediate diets in criminal cases. Although much can be done to encourage diligent legal preparation, the whole process is aborted if the accused person does not co-operate.
Many people who appear before courts live chaotic lives. They do not keep diaries and the concept of an appointment at a particular time is somewhat alien to them. Their home circumstances might be transient, their family links fractured and their mothers and partners do not know their movements. Accordingly, steps to encourage the accused person to co-operate are vital. It might be that the effect of a late guilty plea on a possible discount will be persuasive. The accused might have to be arrested to secure his or her attendance at the trial if they do not show up at an earlier diet. The cabinet secretary touched on the fact that there has already been an upward drift in the proportion of jury trials in which the accused is in custody, from 28 per cent in 2005-06 to 35 per cent last year. I am not entirely clear about the reasons for that, but the cabinet secretary might be able to give us some guidance later.
I have some concerns about the proposal to extend the traditional 110-day rule, which allows the Crown 110 days to get to trial in cases in which the accused is detained in custody. It is unsatisfactory in principle that an accused person who enjoys at that time the presumption of innocence should remain in custody longer than necessary. Purely pragmatically, it can mean that if there is a conviction, the time that has been served is deducted from the sentence and therefore less use can be made of the actual sentence to effect behavioural change, which is so necessary in reducing reoffending. Others might have been detained by the state for months for crimes that they did not commit, or of which they were subsequently acquitted. Despite pressures, there is now less of a trend to seek extensions of time in the sheriff court, which must continue to be the main objective, whatever we do about the 110-day rule.
I turn to the experience of procurator fiscal deputes. When I was a depute—which was, I admit, rather a long time ago—there seemed to be a reasonable balance between new or recent recruits and fiscals who had served for a number of years and who had a lot of experience. Disparities in pay between the Procurator Fiscal Service and private practice in subsequent years has sometimes meant that appointment as a junior fiscal is both good training and relatively well paid at commencement, but with lower pay scales at the more experienced level. We see the same phenomenon in local authority legal posts. I am told that the problem has somewhat diminished with the recession, which has hit legal firms as well. Nevertheless, there is a still a legacy of that kind. Accordingly, there can be a bottom-heavy staffing balance in the fiscal service, and inexperience was identified as an issue in the Bowen report. It is clear that people have to learn their trade, but the suggestions for improvement seem broadly sensible.
Concentrating on the technicalities of change tends to obscure the fact that the reforms are not just about the convenience of solicitors and the Crown. A primary purpose is to reduce the stress and unnecessary pressure on victims and witnesses for whom a court case can be harrowing. The Liberal Democrat amendment talks about early implementation and we are calling for urgent consultation and implementation of the report, but much of it should not require legislation and some procedural changes could probably be made within the current envelope. It is important that the proposed changes do not seem to cost a lot of money, which is a point that was made by Sheriff Principal Bowen. It is one of those rare reports that shows the route to improvements without incurring major cost to the public purse and we should embrace it with alacrity. However, I am not altogether certain that it helps to tie it in with the Gill review, which is a much more extensive report that involves more major matters.
We have debated extensively in the Justice Committee and the chamber the independence of the judiciary and the legal profession, the nature of the criminal code that is required by modern democratic society and the rule of law. However, in discussion of reform of the solemn procedure in the sheriff court those generalities are focused on the daily situation of individuals: people who have been deprived of their liberty by the state because of their actual or alleged misdeeds; victims whose enjoyment of their lives and civil rights has been rudely interrupted by the outrage of a serious crime committed against them, their family or property; witnesses who are doing—and are required to do—their duty as citizens, testifying on oath as to what they saw of the facts; and police officers who are taken away from important duties to play their part in securing justice. We are privileged to represent all those people and, indeed, society at large. We must ensure that we have as effective a system in the sheriff and jury court as we can to deliver that promise.
I move amendment S3M-6636.2, to insert at end,
“, and calls on the Scottish Government to work with the courts and other stakeholders to implement the reforms as a matter of urgency.”
15:25
I join the cabinet secretary in welcoming the “Independent Review of Sheriff and Jury Procedure” and in congratulating Sheriff Principal Bowen and his team on the report. Sheriff Principal Bowen’s recommendations are a natural progression from the changes that were made in the previous parliamentary session to criminal procedure in the High Court as a result of the review that Lord Bonomy chaired. We will always support changes in court procedures that not only improve our justice system’s efficiency but do so with a clear focus on serving better the needs of victims of crime.
Sheriff Principal Bowen has made it clear that the current procedures for sheriff and jury trials are too often unnecessarily traumatic, especially for victims. Too often, uncertainty is caused by frequent delays that result from the Crown or the defence needing additional time to assemble its case. Too often, a lack of communication between the Crown, the defence and the accused has resulted in witnesses having to attend trials when, if communication had been better, those who were guilty of the crimes could have entered a guilty plea much earlier. That is about different processes and a different culture, as Robert Brown said.
Sheriff Principal Bowen articulated plainly the stresses on sheriff courts that the current situation has created. I am sure that we were all struck by the statement in the report that, in the past 20 years, the number of people who are indicted for proceedings in the sheriff court each year has increased by nearly 5,000. As members have said, that is partly because sheriffs can now sentence offenders to five years’ imprisonment. Sheriff Principal Bowen states the case bluntly, but fairly, when he says:
“A system which involves the citation of witnesses in respect of ... 6,000 indictments in the likelihood that approximately 1,000 will proceed to trial is not ... defensible.”
The key focus should be on sparing the victims of crime unnecessary anxiety and trauma, although improving the efficiency of procedures will have other benefits—for example, for police officers who should be on the beat but who are called to give evidence at a trial, although it transpires that they need not do so. John Lamont referred to the worrying statistics that Chief Constable Stephen House of Strathclyde Police released. Other witnesses are put to similar unnecessary inconvenience.
The report also points out that witnesses’ experiences vary. A range of legislation has, of course, made progress for vulnerable witnesses, but facilities and support for other witnesses still need to be improved. It is essential to impress on all witnesses the importance of their attendance at court. It is right that courts should take appropriate measures when people do not attend and have no good reason for absence, as Sheriff Principal Bowen says in his report.
Too often, the current circumstances unnecessarily inconvenience jurors. One juror said that, out of five days’ attendance, he was required in the court and in deliberation in the jury room for a total of only three hours. The present situation puts pressure on the Crown and on procurator fiscal deputes, who must manage the sitting, negotiate pleas and liaise with defence solicitors while still having to start the trial, which should be their main focus. Much more of that could be done much earlier in the process. That is a key part of the practical, commonsense and well-researched proposals that the review has brought to Parliament.
The compulsory business meeting is a sound proposal to establish better communication between the Crown and the defence, so that the first diet is seen as moving towards the conclusion of the process of discussion—at present, it is often seen as the beginning and so results too frequently in continuations and delay. Some accused people will—undoubtedly—still hold out until the last possible moment to admit their guilt, but others will now have a clearer idea of what faces them, through earlier and better communication between the Crown and their defence. That is likely to improve the current situation, in which there are more instances in which pleas are made at trial than in which evidence is heard.
The proposal that the accused should be indicted only to the first diet strikes us as being sensible. It is not efficient to continue with the current situation of indicting to trial, with sittings being arranged and witnesses cited, despite the fact that, in 2008-09, pleas were tendered at the first diet or continued first diet in 46 per cent of cases.
We must also ensure that there is flexibility in our courts, so that business can be managed expeditiously. It is right that programming of sheriff and jury business should be structured with an overview of available capacity in the sheriffdom as a whole; we must make full use of the courts’ resources. Sheriff Principal Bowen was right to take into account in his recommendations the need to avoid extensive additional costs. There are areas where the question of costs is relevant. The legal aid system should not provide an incentive for the defence to drag out cases.
It is important to ensure that all courts have proper facilities for the presentation of evidence digitally and for video links—to which Stewart Maxwell referred in his intervention during the cabinet secretary’s speech—so that, where possible, such links can be used to eliminate unnecessary journeys to court. Cornton Vale provides a prime example of the benefit that could be obtained from that approach.
We must ensure that there is proper training and mentoring for procurator fiscal deputes. In a number of areas, the report flags up the necessity of ensuring that our Procurator Fiscal Service is adequately resourced. Robert Brown made good points on that and on training and mentoring of procurator fiscal deputes. Such points are also well made in the report. In all of the areas that I have mentioned, Sheriff Principal Bowen highlights the fact that good practice exists; those examples should be learned in courts across the country.
The report is excellent and provides good recommendations that give us an opportunity to improve our sheriff and jury trial procedures. We will be part of a consensus in the Parliament that seeks to bring the changes into effect, in order better to serve our justice system and the victims of crime.
We have some time in hand, so members may take an extra couple of minutes, if they wish.
15:32
I thank Sheriff Principal Bowen, his team and the reference group for delivery of a comprehensive review of sheriff and jury procedures. The process of reform and renewal of our court system has already seen the Bonomy report on reform of the High Courts, and the McInnes review of summary justice. The Bowen report adds to the progress that has been made and moves in the direction of travel that was established by those earlier reports.
Lord Bonomy’s report attempted to tackle the so-called churn in High Court cases and pointed the way towards creating the circumstances for greater efficiency and greater certainty in dealing with cases. The main change that the Bonomy report recommended was the introduction of preliminary hearings, to ensure that both the Crown and the defence were ready to proceed to trial. Although the situation is not identical in the sheriff courts, there are similarities between the sheriff courts and the High Court in relation to citing of witnesses to trials that do not proceed, and the administrative effort and cost, as well as the inconvenience to witnesses, that result from that. One of the most interesting statistics in Sheriff Principal Bowen’s report is that 96 per cent of respondents to a questionnaire that was directed at practitioners believe that unnecessary citation of witnesses is a problem, despite the existence and purpose of first diets in sheriff and jury procedure.
Unnecessary citation inconveniences not only witnesses, but the police and members of the forensic services. We cannot afford to waste their time on unnecessary journeys to court. Sheriff Principal Bowen gives examples of problems in straightforward cases that should, on the face of it, be disposed of quickly. However, there is often little incentive for that to happen.
As members have said, the report details a number of difficulties with communication, not only between the Crown and the defence but, sometimes, between the defence and the accused. For example, in some cases, the defence experiences extreme difficulty in obtaining instructions from the accused. The problem is not limited to communication; it also creates some of the reasons why witnesses are unnecessarily cited to attend court.
The report covers a range of issues and highlights a number of problems in the system. I am sure that other members will address them in their speeches—there is insufficient time for me to go through all of them.
I wish to deal with some of the proposals for improving the situation. Following the reform of the High Court, there is a recommendation that
“cases brought by way of indictment in the Sheriff Court should not involve fixing a trial diet when the indictment is served. Cases should be indicted to a First Diet, and the court will allocate the case to a trial sitting once it is satisfied that all outstanding issues have been resolved at the First Diet.”
That recommendation is sensible and is to be welcomed. The introduction of greater certainty to the system can only be a positive move and helpful to everyone involved.
I also welcome the proposal to formalise best practice by way of compulsory business meetings before an indictment is served. Early communication between the Crown and the defence is another sensible measure that should lead to a reduction in delays to trials. I am sure that many members are aware that that is not unusual to many people who operate in the system, but such early communication does not always happen, unfortunately, and that leads to delays.
I want to highlight the issue of TV links: that is dealt with in chapter 9 of the report, which is relatively short. If we consider what causes unnecessary delays and costs in our system, it is clear that one of the obvious problems is transportation of prisoners to and from courts. The introduction of a TV link between Barlinnie prison and Glasgow sheriff court in August 2003 and its extension to other courts that are served by Barlinnie prison after the review of October 2004 was supposed to provide part of the solution to those delays and costs. However, figures that are highlighted in the report show that the use of TV links has fallen from about 15 a month to about three a month, which is evidence that such technology is not being used as it should be or as it was intended to be used. The use of TV links between prisons and courts should be expanding rather than contracting, because such technology has a number of potential benefits, including the protection of witnesses and victims in courts, improved security, financial savings, care for vulnerable prisoners, less disruption of the prison regime, reduced escape risks and a reduced number of vehicle movements.
Sheriff Principal Bowen has pointed out that there are obstacles to overcome if we are to see more widespread use of TV links, but he also stated that they are not insurmountable. He states in chapter 9.4 of the report:
“I recommend that consideration be given to extending the provision in section 80 of the 2003 Act to allow the use of a TV link for all solemn proceedings in which evidence is not to be led or presented. I further recommend that consideration be given to removing the requirement in section 77 of the 1995 Act that the accused must sign any guilty plea.”
On the face of it, those suggestions seem to be eminently sensible. I would be grateful if the minister would give his view on that recommendation in his summing-up.
In supporting a change to the current rules to allow more use of TV links, I am particularly drawn to a comment in chapter 9.5 of the report, which refers to transportation of female prisoners from Cornton Vale to sometimes distant courts throughout Scotland, and back to that prison. I repeat the point that I made to the cabinet secretary during his opening speech, which Richard Baker also mentioned: given that Scotland has only one dedicated female prison, it would make a tremendous difference to what must be the regular—even daily—disturbances to that prison and the prisoners if TV links were established between it and a number of courts throughout Scotland. Because there is only one female prison in Scotland, female prisoners must travel the furthest distances to court and suffer the most disturbances. I accept that there are female prisoners in other prisons in Scotland, but Cornton Vale is the only national female prison. The costs, disturbances and inconveniences to female prisoners and to the Scottish Prison Service are unnecessary and the system is inefficient. It is high time that we resolved the situation through greater use of TV links.
It is not new technology, and videoconferencing is commonplace throughout society, so I see no reason why it should not be used more widely in the Scottish courts. Given the fact that female prisoners in Cornton Vale have the longest journeys, and given the consequent costs and disturbances, will the cabinet secretary support the speedy introduction of TV links for Cornton Vale or will he, at the very least, take up Sheriff Principal Bowen’s suggestion in chapter 9.5 of his report to
“establish a working group to examine the extension of use of TV links for all aspects of court business at all levels”?
The cabinet secretary mentioned that in his introductory remarks.
I have listened to what the member has said and think that there would be clear value in extending the use of TV links. However, Sheriff Principal Bowen suggests in the report that they should be used in any case in which evidence is not led. My interpretation of that is that, in cases in which the accused intimates a plea and may well be sentenced against the background of the plea, that could be dealt with by TV link. However, there could be obvious difficulties in connection with that—for example, if the accused disagrees with the narration and is unable to communicate that to his agent. Does Mr Maxwell have any answers to that problem?
That is why sheriff principal Bowen suggested a working group to look at the whole problem. I accept Mr Aitken’s point about the difficulty, but we have to be cautious when we are introducing any change to the system of face-to-face court appearances. I do not believe that the problems are insurmountable, and Sheriff Principal Bowen says that in the report. We can take small steps forward in respect of cases in which evidence has not been led. There are obvious advantages to that, and we can proceed cautiously onwards from there. In 2010, we should not be regularly transporting prisoners to and from our jails. To be frank, we are doing that for no good reason.
I welcome the report and the recommendations and—again—I thank all those who were involved in its production.
15:41
On behalf of the Parliament, Presiding Officer, I thank you for the rare but welcome offer of more time for our speeches. I am sure that all members who will speak will take you up on that. It does not happen frequently. I welcome the opportunity to speak in the debate. As other members have done, I begin by thanking Sheriff Principal Bowen and his team for all their efforts in conducting the review and producing the report.
We live in times of financial constraint and savings have to be made. There is no doubt that it is vital that all those in our justice system should perform to the best of their abilities and that the system should continue to be fair and balanced. That said, I believe that greater efficiencies can be achieved—efficiencies that will save time and money. We can do that and maintain our excellent justice service and better accommodate witnesses and victims. For that reason, I concur with much of Sheriff Principal Bowen’s evaluation.
I turn to a main concern in the review: witnesses. There is no question but that witnesses can be inconvenienced by the rules and demands that the court enforces on them. There are times when witnesses are forced to spend a day attending court only for the case never to come to trial. That can be detrimental to people who are in someone else’s employ, to self-employed people and to small business owners, many of whom admit that they cannot afford to take even half a day away from work in these tight financial times. Furthermore, as the cabinet secretary acknowledged in his opening remarks, being a witness can be deeply stressful and a long and drawn-out wait only adds to the strain. I hope that these fresh proposals reduce the trouble and anxiety that witnesses are forced to bear.
The introduction of a compulsory meeting between the Crown and defence at an early stage of proceedings is a welcome proposal. If, in a local constituency case with which I have been dealing, an early meeting between the Crown and defence had taken place, my constituents—who were called as witnesses—would not have been put to the trouble and distress to which they were put. The delay was caused by issues with closed-circuit television footage of the accused. The procurator fiscal depute who was taking the case through the court had not looked at the available footage before the trial. He relied on written evidence from the police, thought that the case was a good one to take forward only to find, on seeing the CCTV footage, that the images were not as clear as he had understood them to be. The trial did not go ahead. The delay in providing the necessary CCTV evidence resulted from the police having to put the CCTV footage on a readable disc. I understand that that has to be done because of the different CCTV technology and equipment that is used in different areas of the country. There must be a way to do that more quickly.
It is regrettable that that happened. The Crown Office and Procurator Fiscal Service has apologised to my constituent and to me for the failure to check the footage before the date of the trial. However, it should not have happened. We can perhaps put it down to the inexperience of the procurator fiscal depute, which was what my constituent said when she came to me about the issue. I therefore agree with Sheriff Principal Bowen that, in every likelihood, compulsory meetings between the Crown and the defence will reduce the number of cases that go to trial, with more defendants pleading guilty early and the prosecution services getting stronger evidence to take cases forward.
On jurors, John Lamont said that that aspect was perhaps not within the report’s scope; nevertheless, it is raised in the report. Jury service is an important public duty that must be undertaken, but members of the public who are called to do jury service worry about attending court. Most people who are cited to do jury service have never been in a court setting in their lives, so they worry about attending. However, constituents to whom I have spoken who have done jury service said that they had enjoyed the experience of seeing how our justice system works and being involved in it.
We could make that experience better, though. The call to jury service does not give people much notice. Many people who attend court find that the defendant pleads guilty at the last minute. That can be a wasted day for those who have to take time off work for jury service, particularly people in small businesses and self-employed people. Short notice can leave little opportunity for a juror to make alternative arrangements. A close family member of mine who is a civil servant was called to do jury service recently. She was told to phone after five o’clock each night to find out from a recorded message whether she would be required to attend court the next day. That is not acceptable for anybody who has work and family commitments. We should be able to do something to improve that situation.
The welcome alteration to procedure in sheriff courts is accompanied by practical recommendations that could prove to be efficient. Stewart Maxwell said that use of more television technology will be welcomed. He highlighted that the number of pilots in that respect is reducing, which is sad because I think that we could have gathered more evidence had there been more pilots. Why is the number of pilots being reduced? Where is that coming from? Is it from the Crown Office and Procurator Fiscal Service? As Stewart Maxwell pointed out, the costs of transporting to court people who are being held in custody in prison can be high. The price is not simply confined to finances because, to accompany accused persons, prisons are forced to sacrifice staff who act, in effect, as chaperones. The introduction of television links to the court would reduce the number of occasions on which prison staff must do that and it would free up time for other tasks.
However, we should sound a note of caution, because problems could be caused if a technological glitch were to occur—for example, if the feed to the prison or the court was lost, that could cause delay and reduce efficiency. The point that Bill Aitken made in that respect is valid. The way forward is through the working group, as the report suggests.
I support the general principles of the review that Sheriff Principal Bowen carried out. I hope that they receive members’ support tonight, as I am sure they will. The procedural and practical amendments that the report outlines will go some way towards reducing waste and bringing more efficiency to our sheriff courts, which can only be a good thing. I hope that we have a fair wind to take that forward.
15:49
I, too, welcome the report. Any report from a learned gentleman who says, “This isn’t quite within my remit, but I’m going to go there anyway and see whether I can sort something out,” is to be welcomed. It is full of practical advice, which I, as an engineer, will always welcome. Pointing out that I am an engineer reminds me that I am not a qualified lawyer. I am, therefore, extremely grateful for the chapter that tells us how the system works. I commend that to anybody who would like to be reminded of how the system works. The only experience of it that I have had is of once sitting on a jury, but I will not recount that.
We are trying to ensure that we make better use of the courts’ resources. Sheriff Principal Bowen pointed out that he was not trying to spend any more money and certainly was not trying to increase the resources that were available. I am, therefore, not the slightest bit surprised that he suggested that there should be a business meeting before a hearing to ensure that people have got their minds around the issues. He also pointed out that, in court, the procurator fiscal has a number of jobs to balance. The Lord Advocate might need to consider whether the amount of administrative assistance that is available to procurators fiscal is adequate. It is difficult to see how they can concentrate on the case in hand while they are worrying about how they will manage the rest of the day. That was a little aside that maybe needs to be looked at.
I take Bill Aitken’s point about the use of television links. We might need to get used to the idea that there should be a defence agent at both ends of the link. If a significant amount of business is being conducted with a prison on the day, that might well make sense. There is no reason why there should be only one agent.
The point has been made well that we should improve the use of police time. Members have also commented on the angst that is caused to victims and the inconvenience that is caused to witnesses. I will address those issues a little later.
Improved communication is undoubtedly a good part of any process anywhere. Sheriff Principal Bowen picks up the point that the communication between the procurator fiscal and the defence agent is not always what it might be. I appreciate that that is sometimes a matter of plain bad luck and sometimes a matter of bad timing with holidays. It will occasionally come down to personality, as things often do in life. However, if it is not obvious who within the Procurator Fiscal Service is taking on the case, one should hardly be surprised if the agent is not sure whom to talk to. That is another little nudge from Sheriff Principal Bowen in the direction of the Procurator Fiscal Service to get it to consider whether its systems are perfect. Communication between the agent and the accused has already been discussed, and we perhaps need to be a little bit more radical on that.
I do not want to discuss the business process any further, as it has been adequately covered. Nevertheless, I have a question that the minister might like to address about why it is appropriate for the time limit to be extended from 110 days to 140 days. I was a little confused by that. I presume that the other suggestions are intended to improve the system by speeding it up, so why would we want to extend it? One possible answer is that what is currently happening in the sheriff court is much more akin to what used to happen in the High Court. Maybe 140 days is the correct time limit and always was for such cases. However, I would be grateful if the minister could establish the logic behind that, at least.
The Mikado, wonderful fellow that he was—I will not sing any of the operetta—was intent on making the punishment fit the crime. I wonder whether we should be prepared to be a bit more radical in making the trial process fit the situation and whether Sheriff Principal Bowen has pushed the boat out far enough.
Will the member give way?
Forgive me. I will give way to Robert Brown in a moment.
It seems to me that there are a large number who come before our courts who are guilty—plainly guilty—who know that they are guilty and who ought to plead guilty. I am not at all sure why, in the name of democracy and justice, we should allow them to continue to mess us around. In those circumstances—not all circumstances, as there is a place for proper trials and things being properly decided—in which we know and the guilty man knows that he is guilty, why on earth should we give him the opportunity to go right to the end of the process before saying, “Well, you’re a bad boy anyway. Here’s your punishment”?
I just wonder whether the discount system should start right from the beginning. It will depend on the discretion of the judge—the sheriff in this context—and it must depend on the quality of the evidence. The question is whether we should make it—
Will the member take an intervention?
Hang on a minute—I will just get this on the record before the member interrupts. The question is whether we should make it quite clear to the accused that, in those circumstances, he should plead guilty early or he will pick up the tab. I am not sure that we have pushed that point far enough.
If Cathie Craigie will forgive me, I will let Robert Brown intervene first—but there is plenty of time.
The report makes a recommendation along those lines—that the discount should be looked at. However, the more central point is how we know—the member suggests that he knows—who those people are at the time. That is the problem.
I do not know, and the court does not know—but the court will know in the end, in that the sheriff will be able to form a judgment on the totality of the evidence and on its quality. The sheriff can say to the accused, “You were fooling us all the way along—I am not having that.” As long as the accused knows from the beginning that that is the way it will be, and as long as he has a clear idea as to whether he is guilty, it seems perfectly appropriate for the quality of the evidence to be used and for the accused who messed the court around to lose his discount. At the beginning, the agent should say that the evidence is so complete that the accused should stop messing people around.
This is an argument based on the idea of, “We know.” Many of us might know from the word go—we might feel absolutely certain—that somebody is as guilty as the day is long, but we live in a democracy and we have a justice system according to which someone is innocent until proved guilty. That is the process that we have to go through. As far as I understand—I cannot quite remember which bill this was—we passed legislation in the previous session that gave an incentive to the guilty person to plead guilty at an earlier stage. I am not sure whether the member, or even the minister, wishes to comment on whether that is working to speed up the system.
I return to my original plea: I am not a lawyer and I do not know how well the system is working but, reading between the lines of what Sheriff Principal Bowen has presented to us, I think that it might not be working as well as it might. That is why I said a few minutes ago that we need to consider whether to be more radical. At times when we have restricted resources, they should be going towards making sure that the innocent are proved to be innocent, and we should not be allowing the guilty who know that they are guilty and whose guilt will be proved to mess us around on the day.
We need to ensure that legal aid meets the same aspiration, and the sheriff principal gives the impression that things are not yet sorted in that regard. I am sure that ministers are well aware of that.
15:58
I start by looking back to the context of the review. The need for reform to our courts has been well established. It was recognised by Jim Wallace—now Baron Wallace of Tankerness and Advocate General. In 2001, when he was Minister for Justice, he instigated the reviews that Stewart Maxwell has referred to: the review of High Court procedure by Lord Bonomy and the review of summary procedure by Sheriff Principal McInnes. It was natural that there should also be a review of solemn procedure in the sheriff court or, more accurately, of sheriff and jury procedures. Many people would say that this review is overdue, as it did not begin until 2009, after an eight-year gap. However, Sheriff Principal Bowen is to be congratulated on his work in chairing the review and on submitting his recommendations in time for action that I believe badly needs to be taken this session.
I well recall my time as a young court lawyer. I was always impressed by the institutions, their importance and the quality of many of the individuals who work in our courts and our court system, but they are overwhelmingly archaic, outdated places and many of their practices and procedures could benefit from major reform.
The truth is that the pace of change over the years has been extremely slow. I had a similar sense when I was first elected to the House of Commons and saw the arcane, outdated procedures there. They were good for tourists and visitors but no way to run a modern, 21st century democracy. I am glad that this Parliament has tackled many of those issues.
Major change can be delivered and we should not try to defend the indefensible. For far too long, lawyers and judges have collectively done exactly that.
Everyone I know in the legal profession wants change. The lawyers, sheriff clerks and prosecutors want change, but the block was often considered to be the judges, so it is encouraging that the reforms are being led by a sheriff principal—a senior judge.
Sheriff Principal Bowen has benefited from not only the recommendations of the Bonomy and McInnes reviews but the lessons that have been learned from their implementation. The challenge is to achieve a fast and efficient procedure that remains fair and just and allows time to ensure rigorous examination of complex issues. The presumption of innocence should remain paramount, but procedures can be made far more efficient.
The introduction of a new approach at the preliminary or first diet, under which a trial diet would be fixed only once the court was satisfied that all outstanding issues had been resolved, is crucial and should make a massive difference. Having to cite witnesses in more than 6,000 indictments in the likelihood that about 1,000 will go to trial is a massive waste of time and resources and brings the whole justice system into disrepute. Sheriff Principal Bowen makes it clear that he regards that as simply indefensible. It is a huge waste not only of time but of public money and, in the current environment, that is particularly unacceptable.
However, to echo Nigel Don’s words, if we are considering a faster, more efficient system, I question whether removing the 110-day rule and extending the limit to 140 days is acceptable or consistent with the review’s main objectives.
I am curious to know why the Liberal Democrats, including Nicol Stephen, supported the extension from 110 days to 140 in the High Court but think, for some reason, that it is unacceptable, unworkable or unfair in the sheriff court.
Of course, the extension has been considered in these circumstances as well. It was proposed previously, but the Liberal Democrats rejected that reform when in government. As I recall, the Scottish National Party shared that position in opposition and it will be interesting to see whether the cabinet secretary accepts the recommendation in due course. I do not believe that there would be a parliamentary majority for the change.
It is vital that prosecution and defence lawyers communicate more substantially and openly, so the compulsory business meeting is important. It is also important to ensure that the defence and the Crown have full information—including detailed forensic reports and CCTV coverage—well before the first diet. Far too often, cases are called to trial when they are simply not ready to proceed.
The culture is important in that regard and we must change it. As Robert Brown mentioned, there is a big responsibility on defence and prosecution lawyers to co-operate and work efficiently. An important part of that change of culture is to seek not only full but early disclosure.
It beggars belief that we have outdated procedures that lead to the delays that we experience. That level of inefficiency and wastage in the early years of the 21st century must change. It is time for change.
Sheriff Principal Bowen has produced a good review. My greatest concern is how quickly his important and wide-ranging changes will be introduced. In short, there is an opportunity to go further sooner and for the winds of change to blast through the dust and cobwebs of our outdated court procedures. It is time for reform.
16:05
It gives me great pleasure to speak in support of the motion, not only because I welcome in general terms Sheriff Principal Bowen’s excellent report but because I personally have several times been on the receiving end of inefficiencies in court procedure. Many of those inefficiencies should be removed if the report’s recommendations are put into practice. Let me give just some examples of how witnesses have often been treated in a cavalier manner.
My first example comes from the High Court, but it illustrates a more general aspect that also happens in the sheriff court. Some years ago, when I worked in general practice, I was asked by the police to attend a patient of mine who seemed to be dead. When I entered the house, it was not difficult to confirm that fact, as I noticed a large carving knife buried deep in his chest. The only difficulty was that the police wished me to touch the body as little as possible because, quite reasonably, they suspected that he had been murdered. However, all that I had to do was confirm formally that the victim was dead by, using one of the rather quaint terms employed in the justice system, pronouncing life extinct. I made the necessary statement, gave my age—which seems to be a requirement in any police inquiry—and left the police to their investigations.
Months later, after a person had been charged with murder, I was cited to attend court as a witness and was told that I might be required for a few days. My appointment list for patients was duly closed and I attended at 10 am on the morning of the trial. Several hours passed without anything happening, during which I was incarcerated in a tiny room with a group of people, most of whom seemed to be witnesses for the defence. As I was, nominally at least, a prosecution witness, I found that slightly intimidating. Finally, someone came into the room and told us all that the trial would not now start until the next day so we should all report at 10 am the following day.
The next day, I again turned up and was again put in the same tiny room with all the same people as on the previous day. At about 11 am, people started to be called away from the room and there were definite sounds of activity in the building. After a while, I asked what was happening, only to be told that the trial had started. At that stage, I asked what I considered to be a not totally unreasonable question, “How can the murder trial have started if they have not yet formally heard that the victim was pronounced dead?” The court employee went away only to return some minutes later to say, “You can go home now. You aren’t going to be called.”
That is the most florid example that I can remember of how the courts have disregarded my interests as a witness. I hope that Lord Bonomy’s review has improved the situation in the High Court, but my professional life is littered with examples of turning up as a witness only to be released at the last minute. I can presume only that defence lawyers advise even those who are patently guilty to wait until the last minute before pleading guilty in case, Mr Micawber-like, something turns up, such as the death or failure to appear of a vital witness.
On another occasion, I was in the witness box when it turned out that the sheriff would allow me to give evidence about a patient’s notes only if I personally had made the entry. As general practitioners normally enter notes as part of a continuum of recording, entries such as “No change since last visit” are meaningless if the GP cannot say in court what happened on the previous visit to which the entry made by a professional colleague refers. Therefore, my evidence was totally useless. Could that not have been established in advance of the court case?
In another trial, in which I appeared as a witness for the defence in the case of an asthma sufferer charged with driving under the influence of alcohol who claimed that he was physically unable to provide a breath test, the whole proceedings had to be delayed and repeated because, when I took the stand, the sheriff insisted that, before the trial could continue, I personally should go through the breath-test process so that I could attest to the strength of the puff needed. Fair enough. However, could that not have been stipulated in advance of the trial in order to save valuable court time, let alone my time away from my practice?
Over a lifetime in general practice, I must have missed weeks of work due to court inefficiencies. Obviously, the same is true for the thousands of witnesses who must have had similar experiences. Think how much incredibly valuable police time has been wasted in similar procedures. The country has paid a high price for legal inefficiency, so it is not before time that things are being put right.
Therefore, I strongly support the proposition that the first diet should become the proper clearing house for cases going to trial and a forum where outstanding issues are resolved.
It is appropriate for the period between indictment and first diet to be increased from 15 to 29 days to enable that to happen. I strongly support the proposal to make compulsory the holding of a business meeting between the Crown and the defence before indictment in the hope that it will result in a higher number of guilty pleas by those whose guilt is obviously beyond doubt when all the circumstances are known. I extra-strongly support the recommendation that witnesses should be cited only once it is known that the case will proceed to a trial and that the statutory time limits for commencing trials in sheriff and jury cases should be extended to 140 days for people in custody, in line with the High Court time limit, which would allow best practice to be observed.
Like my colleague Nigel Don, I am not a lawyer, so I hesitate to recommend further reform, but I will do so nonetheless, perhaps only to be shot down by people who have greater legal experience. Although it is extremely important that people are not pressured into pleading guilty when they might be innocent, why should we not compel people who will not say what their plea will be to make a plea of guilty, if that is what they intend to do, a certain time before the case comes to court? If they did not do so, they would have to make a plea of not guilty, which they would not be allowed to change. If the case went to trial and they were found guilty, they could receive a higher sentence because they had pleaded not guilty. That is just a suggestion.
I have spoken mainly in my capacity as someone who has experienced and suffered from the ramshackle and out-of-date procedures that are now being put right. I commend the report to Parliament and support the Government motion.
16:11
I congratulate the cabinet secretary on the motion. I believe that the Scottish Government is attempting to develop a realistic approach to summary justice reform, and the report by Sheriff Principal Bowen contributes to that process. Like other members, I do not bring to the debate a legal background, and it has been some time since I was a member of the Justice Committee.
In the summary justice reform model that it produced in 2007, the Scottish Government set out that it wanted to improve the effectiveness of the courts in Scotland and to ensure that only cases that should go to court do so. In essence, Sheriff Principal Bowen’s report gets to the heart of substantial legal issues. It raises the prospect of legal aid provision for jury and sheriff cases being reviewed, which would support the timely resolution of such cases.
Although I do not have a legal background, I have some knowledge of legal issues, especially in the context of modern workplace and employment law. I believe that Sheriff Principal Bowen’s recommendation on the introduction of a new compulsory business meeting to bring together the Crown and the defence to discuss a case at an early stage in proceedings will result in a fundamental change for the better, as others have said. If justice in the wider context is to warrant continued public confidence, it must be seen to work smarter and more effectively.
By establishing a wide-ranging reference group at each stage of his review, Sheriff Principal Bowen quite rightly embedded ownership of the review, while recognising that the role of sheriffs in dealing with serious criminal cases has changed over the past 20 years. There has been a substantial change in the complexity and volume of cases. By 2008, the number of persons indicted for proceedings in the sheriff court had risen to 8,022.
Sheriff Principal Bowen quite rightly commented on existing good practice by the Crown Office and Procurator Fiscal Service in local areas and gave the example of the good-practice initiatives that the COPFS in Inverclyde undertook, which were rolled out nationally.
As others have said, the report makes a number of practical recommendations, which include, significantly, widening the use of television links between courts and prisons, making greater use of standby arrangements for witnesses and ensuring continuity of sheriffs in cases.
The Scottish Government has recognised the growing demand for change in procedural matters. The review of sheriff and jury procedure builds on the experience of the Bonomy and McInnes reviews. Modernisation should be welcome. Despite the desire to ensure that uncomplicated cases are disposed of more quickly, the review had to be mindful of the need to ensure that there is robust assessment of more complex matters.
Some people may say that, against the backdrop of the aim to simplify dealings, Sheriff Principal Bowen indicates that there could well be a case for bringing sheriff court processes in step with High Court procedures by introducing preliminary hearings, which have reduced the number of abortive trial diets, with resultant savings to the court services. However, Sheriff Principal Bowen did not recommend that as a necessary step change because he did not believe that
“the essentially simple issues in a large number of Sheriff Court cases justify elaborate and lengthy pre-trial hearings.”
The costs associated with the legal system have been much in the spotlight, and I know that the intention of the review is to seek longer-term savings. It is clear that, in the current economic climate, we all need to pay our fair share, so I would be grateful if the ministerial team could outline what levels of financial savings are associated with implementation of the recommendations.
John Lamont, Cathie Craigie and Ian McKee in particular—with his description of his personal experience of going to court—clearly highlighted some of the issues that many witnesses face. I know from the experiences of my constituents that there is nothing worse than people taking time off to undertake their civic duty. A key recommendation is to cite witnesses to give evidence in a case only once it is known that it will proceed to trial. That will, I hope, ensure an element of trust and reduce the level of inconvenience to people who are constantly being called away from their place of work when they are not required to give evidence.
As others have already said, such necessary procedural changes will, we hope, mean that the proposal of statutory time limits for sheriff and jury cases in line with the 140-day limit in the High Court will guarantee better benefits.
If we leave aside the specifics of a case, is there not a general rule in these matters that the longer people are given, the more complicated a case gets and the more likely it is that people will use the further delay to their own advantage? Does the member not think that there are big questions about the extension of the 110-day rule in the sheriff court unless it is absolutely necessary?
The extension of the time limit will, I hope, allow people to come to court prepared to go forward rather than to ask for further time to prepare. I hope that the extension will allow cases to go forward and people to be better prepared when they go to court.
Additionally, the review addresses some of the concerns about service delivery for the public purse as detailed in the justice efficiency delivery plans. Best practice and performance are a major element of Sheriff Principal Bowen’s recommendations. As stated earlier, no debate on any legal aspects could fail to raise the matter of legal aid, so I reinforce the position that legal aid provision should be reviewed and that we should bring an end to some of the more questionable legal aid awards. I would have preferred a meaningful contribution, but Sheriff Principal Bowen raises the prospect of using block fees so that the legal profession could use incentives to seek early resolution to some cases.
Let me put on record my desire to see just and speedy resolution to prosecution in the Scottish court system. I welcome the debate and the principles in the motion, and I look forward to the Scottish Government’s commitment to streamlining procedures. I thank all those who contributed to Sheriff Principal Bowen’s reference group, and I put on record my appreciation that Sheriff Principal Bowen was able to deliver the independent review to the timetable originally set out, which is highly unusual for such reviews.
We move to the closing speeches. I point out that we have a little time in hand, so I will not be too strict about stopping members unless they go on much too long.
16:19
The Scottish Liberal Democrats welcome Sheriff Principal Bowen’s review, which we hope will lead to the elimination of waste from the system and the streamlining of procedures within the sheriff court. It is only when we see the facts on the increase in the volume of summary business that we realise, as Nicol Stephen said, that such a review is perhaps overdue, although I do not think that anybody is to blame for that. In the past four years, there has been a considerable increase in the volume of solemn business—an 8 per cent increase in the total number of petitions since 2005-06.
During that time, there has also been a 9 per cent increase in the number of sheriff and jury indictments. There is a growing trend for indicted sheriff and jury cases where the accused is remanded in custody. Between 2005-06 and 2008-09, there has been a rise in the number of custody cases as a proportion of the total number of cases for sheriff and jury business from 28 to 35 per cent. That only puts more pressure on the system. It is also worth noting that, of all the sheriff and jury business and the business indicted, only about 16 per cent proceeds to the stage at which evidence is heard. The rest of the business is dealt with in a variety of ways.
The aim of the review is to improve sheriff and jury procedures as they apply to solemn business in the sheriff court, which will make it much more efficient—as it needs to be. The proposed model seeks to reduce the impact on victims, witnesses and jurors. However, it will also reduce waste and inefficiency—which is important, in the current economic climate—improve speed of disposal, achieve earlier and efficient communications between parties and increase public confidence by getting quicker results.
So, what are the problem areas with solemn procedure in the sheriff court? Currently, the accused is served an indictment and given a date of the first diet and trial sitting, which means that all witnesses have to be cited to appear at that diet. As 84 per cent of such business does not go to trial, that is a complete waste of time and money from the point of view of witnesses.
During the review, many sheriffs said that they thought that the first time that the Crown and the defence agents appeared to speak to each other was at the first diet. It is hard to believe that that is still the case, in this modern age but, clearly, it is. I agree with the minister that that sort of improvement is fundamental.
The increased use of forensic reports in many more cases can now be the catalyst for agreeing an early plea. Currently, it seems that the late production of forensic reports results in adjournments of cases at first diet.
The fact that, often, the first time that the Crown and the defence appear to speak to each other is at the first diet almost inevitably results in continuation. The lack of preparation by both parties is almost always the reason for delay at the first diet. The common view is that cases are called for trial that are not ready to proceed and have to be delayed. During the review, the reasons for delay and adjournment that were cited by Crown and defence agents were that evidence that went beyond the simple provision of statements, such as CCTV evidence and forensic evidence, was just not ready.
Sheriff Principal Bowen’s recommendations will improve the system, save time—particularly for witnesses—save money and conclude cases more quickly. That will not only benefit the accused, but reduce the impact on victims, because they will know the result of proceedings more quickly.
The first proposed improvement involves indictment to a first diet. The recommendation is that cases that are brought by way of indictment in the sheriff court should not involve the fixing of a trial diet. When the indictment is served, cases should be indicted to a first diet, and the court will allocate the case to a trial sitting. As Stewart Maxwell said, that will happen only once the court is satisfied that all outstanding issues have been resolved at the first diet. Nicol Stephen highlighted just how many witnesses were cited to appear for no good reason and ended up wasting their time sitting in waiting rooms, as Ian McKee did. On that point, I say to Ian McKee that I have spent a considerable amount of time in waiting rooms waiting to see a doctor. We must conclude that witnesses should be cited to give evidence in a case only once it is known that the case will proceed to trial. That will reduce not only inconvenience to witnesses, but the cost of the process.
The second recommendation is that there should be a compulsory business meeting to bring together the Crown and the defence to discuss cases at the earlier stage of proceedings. That would result in parties being better prepared for court appearances and produce a higher number of guilty pleas at a much earlier stage.
Cathie Craigie highlighted an example from her constituency of the problems that are involved in getting the Crown to view CCTV evidence. I am currently dealing with the case of a constituent who wanted to get CCTV evidence before he went to trial. He asked the Crown Office on three different occasions for the evidence. Sadly it was only as a result of my intervention—I chased the Crown Office—that he finally got a letter that said, “We now have the CCTV evidence.” It took about six weeks for that to come through. It is clear that the system needs to be improved.
It is recommended that a proper note of the compulsory business meeting is prepared by the procurator fiscal, signed by both parties at the end of the meeting and lodged by the Crown with the court at least seven days prior to the first diet. I hope that that will work.
Changes to the first diet are needed. One change is that the period between the service of the indictment and the first diet should be extended to 29 days from the current 15 days to allow issues that become apparent following the service of the indictment to be addressed. In the case of my constituent who tried to get the CCTV evidence, 29 days would not have been long enough. The objective is to move to a position whereby the first diet is regarded as the end point for discussion by both parties. First diets should work as intended, as a clearing house for cases that are going to trial. That is new and will require a fundamental change of mindset by the Crown and the defence so that they appear at first diets fully prepared and do not need to seek continuations thereafter. In order to make that happen, some alterations to time limits are proposed.
There has been much discussion about that, and I agree with the minister that we should examine it carefully. Nigel Don gave good reasons to support his concerns about an extension to the time limit, and I confess that I also have concerns. There must be a reason for the extension, and the only one that I can think of is that it would allow the Crown and the defence more time to prepare their case, which I am sure is sometimes necessary.
I referred to forensic evidence. It has been suggested that, as far as good practice is concerned, there is no reason why the Crown should not disclose the initial results of forensics tests to the defence when it receives them. That will, I hope, be as a result of the CBM, as all parties must agree everything at that stage. That suggestion means that immediately the results are available to the Crown, they should be given to the defence. It also suggests that the legal aid provision for sheriff and jury cases supports early resolution of cases.
I welcome the report. Sheriff Principal Bowen has done an extremely good job, as others have said. The report went beyond the remit, which is most unusual, and is good news. The changes that the review recommends will result in more speedily administered justice, which benefits all parties. As Nicol Stephen said, we should get on with it and get the recommendations into legislation as soon as possible.
16:28
Since the end of the 1980s the number and complexity of cases that are dealt with by the sheriff court has undergone remarkable change. As the review highlights, that rise can be attributed partly to the increase in sentencing power to five years, which means that the court can now deal with more serious cases.
Furthermore, the length and complexity of trials has undergone a notable increase—for example, due to the development of DNA evidence, the examination of mobile phone records and computer drives and the use of CCTV images, to which Cathie Craigie referred.
However, despite the changes and increased complexity, Sheriff Principal Bowen notes in his report that the system has retained a remarkable resilience in its ability to adapt to all that comes its way. Although one might argue that he would say that, we must remember that while the system has remained resilient in the face of such change, it was not created specifically to accommodate the new features that have emerged from developments, and we must take that into consideration.
The thinking behind this very good report is remarkably sound and I am particularly attracted by Sheriff Principal Bowen’s statement that the
“Review has been conducted in the full knowledge of the stringencies likely to be imposed on public ... spending in the foreseeable future.”
I know that James Kelly will be paying avid attention at this point, as he usually agrees with me that the public purse must be a principal consideration in all that we do.
Most of the proposals are only common sense; indeed, the chamber might well feel that some of them should have been implemented long ago. For a start, it is only common sense that cases should be indicted to a first diet. When allied to other recommendations, such a move could help to put in place a case management structure. Every second Monday, hundreds of people—jurors, witnesses, accused persons and agents—wait at Glasgow sheriff court. Once the sheriffs’ shopping has been carried out and pleas have been agreed—depending, of course, on who is on the bench for any particular case—matters may proceed. However, very little actually proceeds on the first Monday of any sheriff and jury sitting. That cannot be in the public interest and is certainly not in the interests of the witnesses and jurors to whom Mike Pringle referred.
The same sheriff who presides over the first diet should see things the rest of the way through the system. If the accused is unfortunate to come before a sheriff who in the Glasgow vernacular would be called a hard batter, he will simply have to decide whether to plead guilty or go to trial; if, on the other hand, the sheriff is somewhat more lenient, the accused has—as the Glasgow vernacular again has it—won a watch and will no doubt plead.
In that respect, Nigel Don should perhaps pay attention to the fact that under the so-called Du Plooy discounts anyone who pleads at any early stage can have up to a third of their sentence discounted. There are arguments against such a system; for example, should someone who is caught bang to rights on CCTV carrying out their serious assault get the same sentence as someone whose conviction might be a lot less certain? The Parliament might well debate that matter in due course, but the fact is that under the current system anyone who adheres to their not guilty plea in the face of overwhelming evidence loses their discount. Although the sentence is not added to, the net effect is the same.
The compulsory business meeting is essential, as it will allow all the uncertainties in the proceedings to be sorted out. It is right that they are informal, face-to-face meetings, but a very careful record must be kept of the issues that have been discussed and the issues that are outstanding so that when the case is called the sheriff can interrogate the facts and ensure that the case is subject to trial. Although at the end of the day, such a move might, like the Bonomy reforms, not result in earlier pleas, it will ensure that an awful lot fewer people get messed about. The jury might well be out on the effectiveness of the Bonomy reforms—for example, pleas have not been agreed to the extent that we might have wished—but trouble, trauma and inconvenience to witnesses and potential jurors has been greatly reduced. That, in itself, is a very positive result.
That is not to say that there is nothing in the report with which I have difficulty. First, I have always been troubled by the proposal to extend the 110-day rule to 140 days. Indeed, when the Parliament previously debated the matter in the context of High Court reforms, the cabinet secretary himself expressed reservations and I know that Robert Brown, too, shares them. As members will observe, I am quite enthusiastic about locking people up; I just require them to be guilty first and an accused person is entitled to the presumption of innocence. People who spend time in custody and who eventually are acquitted have a real sense of grievance, particularly in those occasional cases, as Nigel Don described them, when they are in fact innocent.
Engagement with the solicitor is vital. I would have gone further on that than the sheriff principal does in his report. It is not sufficient at the petition stage for the sheriff to tell the accused that they must co-operate with their solicitor. Really, there must be active engagement. How often in sheriff courts, district courts or even the High Court is there the representation, “We have not been able to get instructions,” when the accused person is on bail? That is one of the oldest tricks in the game to get a continuation. At that point, the sheriff simply has to agree to an adjournment, which is not on.
There is also the question of reluctant witnesses. Witnesses might not turn up in court for various reasons, the occasional one of which is genuine. However, in the vast majority of cases, witnesses do not turn up for one of two reasons. One is the very serious reason that they have been intimidated. The full rigour of the law must be brought against those who are prepared to attempt to pervert the court of justice in that respect. The second reason, which is more common, is because the case arose from an incident, usually as a result of indulgence in alcohol or other dubious substances, that resulted in an assault to severe injury. There is great animosity at the time but, after the indictment is served, somewhere down the road, those involved are all good friends again and that clappy-happy relationship means that the witness is reluctant to testify against his friend, whom he may have known for many years. That must be addressed, too.
I will reiterate the problem that I have with the use of technology. Having read the relevant paragraph in the report again, it seems that Sheriff Principal Bowen is of the view that, as there is no longer a requirement for the accused to sign the indictment, a sheriff could proceed to sentence when the accused appears before him on a television screen. That is not satisfactory, for two reasons. First, when sentencing, the sheriff has to look at the accused’s body language. Secondly, and much more important, if something that the procurator fiscal says in court is not in line with what has been agreed, the accused has no opportunity to raise that with his agent.
The report is good and provides a good way forward, but there are one or two issues that must be considered.
16:37
I am pleased to close the debate on behalf of the Labour Party. As other members have done, I thank Sheriff Principal Bowen for his contribution in putting together the report. I also thank the team that worked on the report, which is a comprehensive and important piece of work and a major contribution to the discussion of the sheriff and jury system in Scotland. The report highlights the importance of the court process. It covers, among other issues, the impact on victims and witnesses. The point that comes out is that it is absolutely crucial that the correct result is arrived at once the process has been gone through. Therefore, it is crucial that we get the reforms right to improve the process.
As many members have said, there has been a vast increase in the number of cases that go through the sheriff court—the figure rose from 3,064 in 1988 to 8,022 last year. That is a tremendous increase that has obviously put a great deal of pressure on the system. As the cabinet secretary said, there are sound reasons for that increase, including the increase in sheriffs’ sentencing powers.
The cabinet secretary also pointed out, with some justification, that the system has not fallen apart under that pressure, but that was at odds with the comments from Nicol Stephen, who drew on his time as a solicitor. He spoke about the inefficiency of the process and how slow it is and appealed to the chamber to move things forward to produce a more efficient judicial system in the sheriff courts. He said that although 6,000 witnesses might be cited, only 1,000 of them are brought to court. That demonstrates a huge inefficiency and underlines the need for the compulsory business meeting that many of today’s contributors mentioned. The purpose of such a meeting would be to bring together the various parties to act as a clearing shop and to improve communication, so that we can get a more efficient process that streamlines the system and produces quicker decisions. It makes sense to increase the time from indictment to first diet from 15 to 29 days to improve the communication process.
Robert Brown and Richard Baker spoke about the inexperience of procurator fiscal deputes, which is a matter of concern. If, as the report outlines, experienced defence agents are up against inexperienced procurator fiscal deputes, there is potential to skew the process unfairly in the defence’s favour. The sheriff principal made some practical suggestions to improve the experience of procurator fiscal deputes, including allowing them to sit initially in quieter courts and the introduction of a mentoring process. The problem is not easy to address—as in any area of life or work where a lot of expertise is required, experience must be gained. The sheriff principal has made an important contribution in that area.
As many speakers said, the priority must be victim support. It is traumatic for a victim to go through a trial process and we must minimise any potential for them to take the stand. We must also ensure that victims have appropriate support—communication is key. Several members spoke about their constituency experience of victims of crime. It has been my experience that victims are not communicated with properly as the process makes its way to a conclusion, resulting in increased stress for victims at a difficult time.
Ian McKee gave a good account of his experience as a witness. The amount of intimidation of witnesses that takes place is an understated issue. The report makes the key point that infrastructure must be updated where that has not already been done to ensure that defence and Crown witnesses are held in separate rooms. That would reduce intimidation and give support to witnesses who could then give a proper account when they got into the witness box.
There was an interesting exchange between Stewart Maxwell and Bill Aitken about TV links. As Stewart Maxwell said, a working group on the issue could be set up with the aim of reducing the need to take the stand and, where appropriate, allowing people to give evidence via a TV link. I hope that that would reduce the amount of time that police officers would need to spend in court. John Lamont quoted statistics on the amount of police time that is tied up in court. We should be moving away from that and getting police officers back on the beat so that they can protect the public and help solve crimes.
Several interesting contributions were made on the subject of jurors. I have been a juror twice—in the sheriff court and in the High Court. I was one of the individuals whom Bill Aitken spoke about who arrived at Glasgow sheriff court on a Monday morning. In fact, it was late on Tuesday morning before the jury was eventually sworn in. We were left sitting about and were not informed about what was happening. I will not give away any secrets of the jury room, but it was not quite “12 Angry Men”—I kept waiting for Henry Fonda to turn up in his white suit, but it did not happen.
From that experience, I formed the strong impression that the public take their responsibilities as jurors seriously. It is quite a task to decide whether someone is innocent or guilty, which could mean that they go away for a prison term. The process is difficult and we must give jurors appropriate support. As Cathie Craigie said, people’s working and family lives could be disrupted by jury service. Richard Baker gave the example of someone who was called to be a juror for five days but who spent only three hours on the jury. We must bear in mind such situations, on which the sheriff principal makes salient points.
Legal aid should be used appropriately to help conclude processes speedily. Legal aid budgets are experiencing pressures. The report says that, between 2005 and 2009, legal aid costs increased by 7 per cent and solicitors’ fees increased by 16 per cent. We need to examine that issue closely. The new guidelines that have been introduced to give suspects access to a lawyer will increase the pressure on legal aid budgets.
The Labour Party supports the Government’s motion and the Tory amendment. As Bill Aitken said, it is important to consider costs and to have an efficient justice system. I agree with the Liberal Democrats that we must make progress urgently and that the Government should work with the relevant parties.
The Labour Party welcomes the review’s publication. We support the proposals, which will lead to a more sound justice system that operates more effectively and helps to deliver justice for the victims of crime.
16:47
The debate follows the report from Sheriff Principal Bowen, which, as Nigel Don said, starts with an extremely useful guide for non-solicitors to how the system works. The report is also a good read. It is straightforward and is written in simple terms. More than that, it sets out a series of recommendations that have enabled the debate to be extremely useful, as it has aired most subjects of controversy fairly well.
I welcome the broad consensus and the progress that we are making in the review of sheriff and jury procedure. As members have said, it is important to implement the reforms, to complete the process of reviewing all parts of the criminal justice process. After the summary justice reforms by Sheriff McInnes and Lord Bonomy’s review of High Court procedure, the review of sheriff and jury procedure is another piece of the jigsaw. We are extremely grateful to Sheriff Principal Bowen for his report.
On Monday, I attended Strathclyde Police headquarters to look at the force’s work on CCTV evidence at its digital media intelligence unit. In paragraph 1.1 of his report, Sheriff Principal Bowen says that one reason for the length of and increase in the number of cases is CCTV evidence. I am sure that members who have seen CCTV footage are well aware of its value in providing evidence to help to secure prosecutions, particularly for offences against the person.
When I visited Hamilton to view late-night work to tackle crime and antisocial behaviour, I saw a gruesome piece of footage. It showed a gentleman who, after a good night out, was waiting at a bus stop and decided to have a little sleep on the grassy embankment above it. Unfortunately for him, as the CCTV camera recorded all too graphically, while he was asleep he was stabbed repeatedly by two youths. After stabbing him time after time, they came back and had another few stabs—presumably, just for more pleasure. Rightly, the CCTV evidence led to the conviction of those two individuals. I pay tribute to Assistant Chief Constable Ruaraidh Nicholson, ACC George Hamilton, Detective Sergeant Lorraine Anderson and all their colleagues, who do such excellent work in that regard.
CCTV is relevant as a factor in the process and is a great help in securing the objective that many members have described—an early plea. If those who have committed crimes are confronted at an early stage with incontrovertible evidence showing them, on film footage, that they have done so, it makes them somewhat chary of going to a trial, as CCTV cannot expire, die or fail to turn up.
Sheriff Principal Bowen makes a series of recommendations to reflect the changed situation. In responding to the debate, I will touch on some of his arguments, starting with the issue of TV links. Stewart Maxwell kicked off discussion of the topic and pointed to the great need for TV links to be used for female prisoners. We will give serious consideration to the points that he made. Members are right to say that we should proceed with care, but we will look with sympathy at the recommendations in paragraphs 9.4 and 9.5. The proposal to establish a working group seems to have merit.
I draw members’ attention to the fact that Sheriff Principal Bowen
“observed the use of TV links on a visit to Liverpool Crown Court in relation to hearings preliminary to trial.”
He records that, in the cases that he observed,
“The accused’s representative was able to use the court link to speak to their client prior to the case calling in court and was offered the opportunity to do so after the court hearing. There was minimal delay in having the accused appear ‘on screen’; less indeed than one would often expect where the accused has to be brought from the cells to the dock.”
Nonetheless, we must consider carefully Bill Aitken’s point about whether TV links are sufficient as a medium to allow the accused to respond to material that emerges unexpectedly in the course of a fiscal’s address to the court about what sentence might be appropriate. As Stewart Maxwell deftly replied, a working group would look at that issue. The recommendation is useful, and we will take it forward in a sympathetic fashion.
Inevitably, given that there are so many recommendations, some have not received a great deal of attention. The report recommends that
“The Crown should disclose the initial results of forensic tests to the defence when they receive them, where there is no operational reason to prevent it”;
that there needs to be informal dialogue about the performance of new fiscals; that
“Greater use should be made of standby arrangements for all witnesses where possible, not just for police officers but also for civilian witnesses”;
and that
“Greater use should be made of existing measures to address the issue of reluctance of witnesses to attend”.
That illustrates the comprehensive nature of Sheriff Principal Bowen’s recommendations.
I turn to the area of most controversy, which Nicol Stephen set out in the most trenchant way. I refer to the 110-day rule, which states that, where the accused in sheriff court solemn cases is in custody, the trial must be commenced within 110 days of the event, so that the accused does not spend longer than 110 days awaiting trial.
Although I have no personal sheriff court jury experience, I have some familiar experience, as my mother was involved in one sheriff court jury trial, at a time when the rule was slightly different. At that time, the case had to be concluded within 110 days. There was a happy day for the defendants in that case, who were represented by my mother and one David Smith—as some members will know, David Smith was a distinguished and very interesting sheriff in Kilmarnock sheriff court. The defence agents made an application for release of all three parties because the Crown had failed to compute that the year was a leap year and had failed to take account of 29 February. Of course, my mother, David Smith and the other defence agent, like most solicitors and advocates, were not numerate at all, but my father was a chartered accountant and was on hand to carry out the mathematical computation. Mr Aitken will remember from his council days that he was able to do that. The defendants therefore walked free. Whether they were not guilty is a matter of some debate.
Has Mr Ewing noticed the footnote on page 77 of the report? It says:
“There is no national recording of extensions to the time bar in sheriff and jury cases.”
Should that influence our view? We do not have information about how often extensions are applied for or granted under the current system. Is that significant information that we should look to have before we move forward?
That is a reasonable point. However, I understand that Sheriff Principal Bowen’s view is that extensions to the 110-day period in sheriff court solemn cases are relatively rare in comparison with extensions in the High Court. I do not think that that is a matter of controversy. The period is 140 days in the High Court and 110 days in sheriff court solemn custody cases. Therefore, there is already a difference. One might argue that, if one is in a cell, why should one have a protective period of 110 days simply because one is being tried in a different court, whereas there is a 140-day period for another type of charge? There is a discrepancy.
It is important to record that Lord Bonomy described the 80-day rule—that is, the indictment must be served within 80 days of committal for trial—as the “jewel in the crown” of the Scottish criminal justice system, and that he recommended that we adhere to that rule, tight though it is, in meeting the requirements involved. However, it is also important to consider chapter 6.37 of the report. As I understand them, Sheriff Principal Bowen’s proposals should be regarded as a package. He recommends that there should be an increase in time to enable business to be dealt with properly, but he goes on to say that balancing the time available for a case and the protection of the accused who has not been convicted
“leads to substantial inconvenience to the public and professionals who are drawn into the criminal process. It is not possible to resolve these issues without changing the system.”
Order. I am sorry to interrupt you, minister, but there is far too much background noise. Members should keep quiet, please.
Sheriff Principal Bowen says:
“You cannot pack more and more priority cases into the system and require such cases to be prepared more effectively unless there is a significant increase in resources made available to those organisations involved in the court process. You cannot have it both ways. The alternative is that the system has to adjust.”
No one would wish to be so unkind as to say that the Liberal Democrats are genetically programmed to want to have things both ways. However, Sheriff Principal Bowen makes it clear that the proposals are a package. If we want the improvements—more time for cases to be disposed of, section 76 procedures to be used more, fewer witnesses to be inconvenienced, fewer police to spend their time hanging around court waiting rooms and court business to be dispatched more efficiently—the case that he has made for changing the existing 110-day rule is compelling. It is plain that we all must consider the matter carefully, but the case has been well made by Sheriff Principal Bowen.
In conclusion, I thank all members for their contributions, especially Nigel Don, who at one point gave the impression that he was proposing the consignation to the knacker’s yard of the presumption of innocence, thereby destroying his previously impeccable liberal credentials. However, it then appeared that that was a premature judgment and that he was simply advocating that a system of discounts was fair and reasonable. That is a conclusion with which I think we all can agree.