Official Report 292KB pdf
Good morning everyone and welcome to the 15th meeting of the Justice 1 Committee. I apologise for the late start. It would be helpful if members would turn off mobile phones and so on. All members of the committee are in attendance so there are no apologies to read out this morning.
One of the main aims of the bill appears to be to bring certainty for all parties into the High Court procedure, particularly in relation to the trial process, to ensure that everyone is certain about when things occur, so that everybody is there and ready. Will you go back a stage and explain how High Court cases are scheduled at present?
I will ask Norman Dowie to give you the detail on that but, broadly speaking, the High Court operates with a series of sittings, the length of which varies depending on the part of the country—in Glasgow, it is a fortnight; in most other parts of the country it is a week. The Crown Office schedules a number of cases to take place within the sitting. Precisely when a case takes place within the sitting depends on the circumstances at the time.
In essence, that is correct. During the summer of each year, we sit down with the Crown Office and plan the business of the High Court for the following year, which means that we locate the High Court in different areas. In Edinburgh and Glasgow, the High Court runs on a full-time basis; in areas such as Inverness, Aberdeen and Dunfermline, we negotiate with the various sheriff clerks and the Crown Office. We consider the general trends of business throughout the year. Once that has been done, we fix up the various sittings throughout the year. The sittings run for a two-week period.
If all the parties are ready and a trial proceeds, in what way does the current set-up fail? Much of what the bill proposes is predicated on the failure of current practices to meet the requirements of those involved.
If parties are ready to proceed and the accused and all the witnesses are present, the trial will run. One might get into situations in which there is slippage or spillover as one sitting merges into another. That can cause complications and can mean that we cannot accommodate the trial within a particular sitting. More commonly, what causes the churning of cases is that an issue involving the Crown or the defence arises in the preparation of the case and there needs to be a debate about something. In the worst-case scenario, that could involve having a trial within a trial about the admissibility of evidence, for example. If various legal steps that should have been taken in advance have not been dealt with, there can be an exchange in front of the judge about those points. In the meantime, the witnesses, the accused, the victims and the jurors—who are a concern for us—must wait to see what happens.
Given those unknown factors within the current practices, how will the new practices improve the situation? It seems that much of what you have just said could apply just as much to the new system.
It is a possibility that those things could happen under the new system. When we say that there will be increased certainty about trial diets, we are not saying that there will be 100 per cent certainty; we are saying that there will be a significant improvement on the present position. We will give the court an opportunity to review the position—to have the Crown and the defence before it to test their levels of availability and preparedness in advance of the trial date.
If it remains the case that the Crown is the master of the instance in criminal proceedings, is it not true that the new procedures will ultimately be subject to the Crown's decision on whether to proceed with a trial? If the Crown moves the court to desert pro loco et tempore, is it likely that the court would refuse that motion?
It is unlikely that the court would refuse it.
You do not think that it would. Does that ever occur?
To my knowledge, I cannot remember a case being refused before the start of a trial, but there may be circumstances in which the court has a greater right to exercise discretion in a trial—for example, if evidence has been tampered with. As you say, the Crown is generally master of the instance before the trial starts and, if it wants to desert the case, it has a right to do so. There is also the question of the extension of statutory time limits, which tend to impact on such matters. Those are matters of balance for the court.
Will that change under the new procedures? Will the fact that the Crown is currently the master of the instance change in any way? Will the new procedures affect the balance?
The Crown's right as master of the instance will not change, but we would expect the Crown to exercise it slightly differently. If the Crown was going to have to desert a case before the trial started, we would look to it to do that at the preliminary hearing rather than on the day of trial.
Are we saying that a desertion or a change of mind by the Crown when we get to the trial will be less likely because of the preliminary hearing?
We have to be careful what we mean by desertion. Desertion pro loco et tempore usually occurs when something has happened that means that the Crown is not entirely certain when it will be able to run the trial again. Under current procedures, a trial can usually be adjourned or postponed until a later, fixed time. Desertion is a slightly different tool, and the procedure is not used that regularly in the High Court. As the chief executive said, with the introduction of the preliminary hearing, we are trying to filter out of the system the unexpected elements that we face at the moment, and I hope that there will be less of them under the proposed new procedures.
May I press you on the point about the Crown being master of the instance? Some of the evidence that we have received so far questions whether that can remain if we move to a more judicially managed system. Will the Crown remain master of the instance or will that function shift to the judge, who will manage the procedure?
There are different elements to the role of master of the instance. It is the Crown's decision whether to proceed with a prosecution and that will not be affected, so the Crown will remain master of the instance in that respect. The interpretation of the term "master of the instance" as being the one who determines when the trial will proceed will change as a consequence of the legislation. The court will set the trial date rather than the Crown.
Do you accept that the management of the High Court will shift away from the Lord Advocate and the Crown?
There will continue to be a partnership, but the weighting will shift towards the court and judicial case management. However, if the Crown decides not to proceed with the charges, for whatever reason, the case will not proceed.
What evaluation have you made of the impact of the mandatory preliminary hearing on your department's resources?
We estimate that management of the process will require the equivalent of two to two and a half judges with support staff. As the financial memorandum says, we quantify that as £0.5 million in judicial costs and £150,000 costs to the Scottish Court Service. That £150,000 includes an element for developing information technology systems to underpin the operation of the new regime.
Are you confident of those figures?
They are our current best estimates.
Have you been able to assess the number of cases that are more likely to go to trial on the set date with the introduction of the preliminary hearing? It is claimed that the preliminary hearing will create more certainty; have you been able to quantify that?
We have not quantified it in terms of the number of cases that will go to trial. At the moment, we are considering the programming implications in consultation with the Crown. We estimate that, at present, first instance crime consumes 13 to 14 judges every week. We hope that the new regime will use 10 to 11 judges to deal with first instance crime. That is a significant resource saving for us because we can transfer that judicial resource, plus the support staff, to other business such as civil cases and criminal appeals. We reckon that there will be real resource benefits with the new process.
Will you refresh my memory? How many cases in the High Court proceed on time at the moment?
There are no figures on that. When you talk about cases being on time, you must consider the way in which the current sitting system is set up. Trials are rarely fixed under the current system and that is one of its great weaknesses. There is a list of cases—for example, in Glasgow there are six courts dealing with 60 cases with provisional dates assigned for trial. Many of those cases either plead or are adjourned so there are simply no figures on that.
There will be a lot of scope for judicial management to improve the preliminary hearings' effectiveness. How will that happen?
As I said, there will be an opportunity for judges to test the parties' state of preparedness to ensure that steps have been taken to identify opportunities for agreeing evidence, for ensuring that witnesses who are going to appear have to appear, and for dealing with other issues, such as determining whether a need exists for special provision for vulnerable witnesses. The Judicial Studies Committee is drawing up a checklist of issues on which the judiciary will want to be satisfied at the preliminary hearing, which will give judges a format to follow.
What sort of training will judges receive?
The Judicial Studies Committee is looking into that. The Lord President—the Lord Justice General—will consider how the programme of preliminary hearings should be structured. It is likely that the hearings will be in the hands of a number of experienced judges, rather than the work being spread across all judges. The model is being developed as we speak.
But judges will have formal training.
That is the expectation.
Just an expectation.
Judges organise their own training.
So the decision to receive training or not will be in their hands.
Yes—but all the indications are that they see significant advantages in adopting this approach to managing the business.
You have talked about the resources required being equivalent to two and a half judges. Will those appointments be temporary?
I think that permanent judges will take responsibility for managing the preliminary hearings process, to provide the continuity and certainty that we want. Their role will be backfilled by the use of temporary judges.
How long will additional temporary judges be required in the system?
In the financial memorandum, the budgeting assumption is two years. I hope that it will not be as long as that, but that is the current estimate.
Why do you think that the system will settle down in that time?
By that time, we should be seeing results. As old cases leave the system and new ones come in under the new procedure, we would hope to see a turnaround within a year or 18 months. The two years that I mentioned would be at the outside.
I was surprised by the answer to Michael Matheson's question on the number of trials under the current arrangements that take place on time or in a sitting. If we do not know how many trials are being properly dealt with on time, how can you say that you expect an improvement under the new system?
At the moment, some trials have multiple adjournments. Alternatively, cases may be deserted by the Crown, or otherwise not proceed, on that indictment. The cases could then be re-indicted. All of those things complicate giving a simple answer to your question.
I would like some detail on how you envisage the mandatory preliminary hearing system working. How long will a preliminary hearing take?
At the moment, the planning assumption is for an hour, although that will vary from case to case depending on the circumstances.
How many preliminary hearings will be required in any given period?
There will be one for every case.
In Glasgow, it is estimated that around 1,150 preliminary diets will be required in the High Court in 2004.
Are you considering that parties might not be ready at the preliminary hearing? There does not appear to be any sanction available to the judge, other than to agree to meet in three days' time to find out whether the parties are ready then. Potentially, a further preliminary hearing could be arranged at that meeting if the parties are not ready.
That is possible, but it will depend on how individual judges approach case management. If they feel that counsel has good reasons for the requests at the preliminary hearings, that is one matter; if they feel that counsel is messing the court about—to put it bluntly—the court has ways of making that known. If it really felt that counsel was messing it about, ultimately the court could start thinking about contempt of court. I would not underestimate the impact of the exertion of judicial influence on the professionals involved.
Surely counsel will always have good reasons? They come up with good reasons for a living.
And judges make their living by testing those good reasons, which they do not always take at face value.
But you can see the point: the bill requires a culture change in everyone's approach to the High Court system. We are relying on people to change how they do things, but there is no sanction to force people to present themselves as ready. If we do not get the culture change, is not it likely that we could have a series of preliminary hearings before the trial date?
I do not think that that will become the habit. There is a risk that it might happen and we will monitor that and take appropriate action if required.
There is a 30-day period from the preliminary hearing in which the trial date must be fixed. Is that correct?
Yes, for the operation of the change to the 110-day rule.
Will it be your job to prepare the paperwork for the written record that requires to be submitted two days before the hearing?
No, that is a matter for the two parties.
I understood that you would send out a pro forma on which parties could tick boxes to indicate whether they have lists of witnesses. You will not be sending out anything.
There is discussion at the moment about how the detail will operate. We are working on possible models for consideration by the Lord President. When he is satisfied in broad terms, I expect that he will want us to engage in a consultation on the detail with the Faculty of Advocates, the Crown and others.
I was not suggesting that. If you are expecting parties to come with prepared paperwork, I would have thought that someone would have to send out some sort of pro forma. In fact, the Law Society of Scotland suggests that the lack of any formalised system is a concern.
I would expect the procedures to be set out in an act of adjournal made by the Lord President, which would specify what information needs to be made available to the court. If there were broad agreement to do that by way of a pro forma, that could be specified. As a minimum, the information that was required would be spelled out. However, those are points of detail that we would want to pursue in discussion, assuming that the Parliament approves the principle of the bill.
I hope that you can appreciate that those are points of detail that the committee requires. We have been asked to scrutinise whether preliminary mandatory hearings can potentially change the culture in the system. Without that detail, it is difficult for us to judge whether resources should be spent on changing the system to that extent.
I can understand the problem.
You have already said that, under the provisions of the bill, the judge who presides at the preliminary hearing will manage the trial date. How realistic is that?
It is realistic in the sense that the judge will say that the trial will proceed on 2 December or whatever.
What are the implications for the judge? What will he have to know to make that decision?
He will have to know what the state of preparedness of the two parties is, what their estimate of the duration of the trial is, what the availability of counsel is and whether those elements can be accommodated within the diary that will be available to the court.
Is that all-new territory for the judge, with which he would not have had to concern himself before?
It is not totally new territory, as it is a process that sometimes happens informally at the moment. It is not necessarily the judge who makes the decision, but, at present, there is a dialogue between the Crown manager, who is responsible for managing a sitting with the various defence agents who are present, and my colleague Norman Dowie and his colleagues in the individual courts. In that dialogue, the length of time that particular cases are likely to take is identified and an attempt is made to decide whether they can be accommodated. We distil that information and make it available to the judge.
Do you honestly think that the trial date that is specifically named by the judge will be the date on which a case proceeds?
There will be a greater degree of certainty in that regard than there is now. We cannot rule out the possibility that, when we reach the trial date, the trial will not proceed because the accused tenders a guilty plea, a witness falls ill or is unavailable or the accused fails to appear. However, we hope that we will avoid the situation that sometimes arises at the moment in which counsel and others find themselves double-booked. As I said earlier, the kind of issues that have to be debated at the beginning of any sitting will have been dealt with, but we cannot eliminate the possibility of an act of God preventing someone from appearing.
Could such an act of God be as simple as a previous trial overrunning in the court in which the trial was set to take place?
That could be a problem if cases become overloaded. In that case, we would have to consider using additional judicial resources to find an additional courtroom.
So the bottom line is that, despite a specific trial date being set, the same problems that previously existed are still likely to affect the trial date.
Potentially, they could still affect it. We are reducing the likelihood of that happening rather than eliminating it altogether.
The bill makes provision for the extension of established time limits, including the 110-day rule. We have heard evidence that that is particularly helpful in complicated cases such as frauds and those involving experts in forensic evidence and so on. However, the Law Society's written submission says that the provision will not be necessary in relation to all cases. Do you consider that such a departure from existing procedures is justified?
That is a matter for the Crown rather than for us.
Do you feel unable to discuss the matter?
Our experience is that there has been an increase in the amount of business being extended for a variety of reasons relating to the complexity of the case. That adds to the problems for the defence in being adequately prepared for a case. The package of changes that is proposed, including matters such as the Crown disclosing more information to the defence, will assist in ensuring that the defence is better prepared on the day.
So the measures will go some way towards reducing the number of adjournments with which you have to deal in managing the courts.
Yes.
The bill provides for detention of a witness who has failed to appear following citation. In your experience, is there a significant problem with witnesses failing to attend court when they have been cited to attend?
Yes, that can be a significant problem. It must be borne in mind that not all witnesses are happy to co-operate with the process. I make a distinction between the witness who is reluctant because of nervousness, anxiety or concerns about intimidation, and the witness who has a history with the court and who is unwilling to co-operate. The measure is directed more towards the second category than the first.
Some concern has been expressed that that might be seen as coercion of witnesses. Do you have a view on that?
We do not have a view. That issue will be in the mind of the court in determining whether the approach is the right one to take in dealing with an individual case.
Good morning, gentlemen. I have a question on sentencing. The Executive has stated that it intends to implement section 13(1) of the Crime and Punishment (Scotland) Act 1997, so that the sentencing powers of sheriffs in solemn procedure will be enhanced. Is it possible to estimate the impact that that will have on the work load of sheriff courts?
We are currently evaluating that in detail across the country. Broadly speaking, it will translate into an increase of about 7 to 10 per cent in solemn business. The impact on individual sheriff courts will depend on the way in which business is handled. We anticipate that the impact will be negligible in the majority of courts, because the work will be well within the margins that they deal with at the moment. There will be one or two extra cases a year in some of the smaller courts, but no more than that. It is likely that there will be a greater impact on the six larger courts, which we estimate could range from three or four extra indictments a month in Paisley to 20 extra indictments a month at Glasgow.
Would the measures result in more certainty in the court system in, for example, Paisley and Glasgow?
In what sense?
Would there be an improvement in the system?
Broadly speaking, it is accepted that the sheriff and jury courts work more effectively than the High Court at present, so we would consider a move from the High Court to the sheriff and jury court to be beneficial.
Is the increase in sentencing power to a maximum of five years imprisonment an appropriate level for the sheriff court?
Yes, we see no reason why the sheriffs cannot handle that.
What types of cases will be dealt with in the sheriff court if the change is implemented?
That will be a matter for the Crown and how it operates its marking policy, in the first instance. As I understand it, the Crown expects that some cases will involve fairly low-level drugs offences that do not currently go to the sheriff court. There will be other cases—which I suspect will be more common—of repeat offences, where the Crown feels it has exhausted the potential in the sheriff and jury court in terms of the sentencing maximum. Extending the sentencing power to five years will give the court another chance to deal with the offender. That kind of case will be in the transition but, ultimately, it will be a matter for the Crown.
I want to take you back to the question of the degree of certainty in the fixing of trial dates. You said that you certainly hope for—indeed, expect to see—an improvement. Will you quantify that statement? What level of improvement do you expect in the fixing of trial dates and in ensuring that the trials proceed on those dates?
As I said, we expect the measure to release three or four judges, which would mean that between 20 and 25 per cent of cases could be dealt with without the problems of churning. However, we hope to do better than that.
So, you would expect to see about a 25 per cent improvement.
We would expect at least that level of improvement. However, we have to translate that into other areas. Improvement of the plea rate and ensuring that pleas are made earlier will also have benefits. Given that on average something like 25 witnesses are cited per case, a plea rate of 20 to 25 per cent in the High Court at the preliminary diet would mean that between 7,500 and 10,000 witnesses would not have to attend court. That would be a big benefit, particularly because many of those witnesses would be policemen. Experience of the intermediate and first diets in the sheriff courts shows that the principal beneficiaries are the witnesses, who no longer have to attend court to deal with the matter.
Is it your expectation that that level of improvement will be achieved, based on the experience in sheriff courts?
Yes.
Given the obvious differences between sheriff court cases and High Court cases, is it reasonable to assume that just because 25 or 30 per cent of people make their pleas at the preliminary hearing in the sheriff court, the same thing will happen at the High Court? Is it more likely that people will hold out until the last minute—if I can put it that way—because of the nature of the crime of which they have been accused? Such a level of seriousness might mean that they are less likely to plead at the preliminary hearing.
Although there will inevitably be an element of that, it will be countered partly by the extent to which the courts use the sentence discounting option as an incentive for people to make early pleas. Of course, that will be part of any cultural change that takes place.
Would it be fair to say that the matter is still an unknown?
Yes. However, based on current experience, we know that we need to create such an opportunity, because it does not exist at the moment.
On the plea rate, it has been suggested that the certainty of mandatory hearings that fix everything will encourage early pleas. After all, the person concerned will realise that they have nothing to gain, because the trial will go ahead. If the mandatory hearing is postponed either because the parties are not ready or because it is uncertain that the managed meeting will take place, or if the hearing is not given the kind of status that makes people realise that it is their final chance to get ready and makes the accused realise that the trial is going ahead, will not that affect the incentive to plead early and, in turn, the ability to set a specific trial date?
Yes.
So judicial management must make it clear that unless there are exceptional circumstances—from what you have said it seems as though the usual excuses will be made—strong sanctions will imposed if all the parties do not comply and are not ready for the mandatory hearing. That approach must be the key to the whole bill.
No—the key is in ensuring that all the parties involved in the process recognise the purpose of the mandatory hearing and co-operate to ensure that the trial proceeds for the benefit of the accused, the witnesses and the victims.
Do you have a view on how trials should proceed? Should there be a managed meeting at which they would meet face to face? Would not that be the best way to ensure that all parties were prepared?
Part of the proposal is that there will be a meeting in advance between the Crown and the defence to resolve some such matters.
We heard in previous evidence that that could be done by phone call, e-mail or fax. I have concerns about the preparedness of people for the mandatory hearing being decided at the managed meeting.
Sometimes, the meeting may require only an exchange of e-mails or faxes, but that will be a matter for the defence and the Crown to resolve. I have no doubt that, if it appears to the court that the preparations for the preliminary hearing are not satisfactory, the court will make that known to the appropriate people.
You are shifting your position—you are now saying that there does not have to be a face-to-face meeting, but that there could be a phone call or a fax.
That would depend on the circumstances of the individual case. Our experience of operating in the sheriff court is that, when the relevant fiscal can get together with the defence—even for just five minutes in the margins of the court—it can lead to better transaction of business. However, it is ultimately for the Crown and the defence to resolve what works best for them. The court's judgment will be based on the quality of what appears before it at the preliminary hearing. If that is sustained on the trial diet and if we find out that there are difficulties, the matter can be raised with the Crown and the defence.
A snatched five minutes sounds a bit airy-fairy, and the evidence suggests that it is quite difficult to pin down fiscals. I am concerned about that.
When I talked about a snatched five minutes, I was talking about the typical summary court case in which there is often only one issue to be resolved. The issues in a High Court case will be more complicated and will require greater input of time and effort. I know that the Crown Office is preparing and resourcing itself to handle that and I have no doubt that the Faculty of Advocates will discuss with the Scottish Legal Aid Board how it is able to engage in that process.
In an ideal situation, however, a face-to-face meeting would be preferable.
Yes, that is my feeling.
Let us return to the fixing of the trial diet—I want to understand how this is all going to work. The judge hears the parties at the preliminary hearing and is content that the parties are ready to proceed. A date is then fixed for a trial. Will that be done at the preliminary hearing?
Yes.
How will that be done? How will diaries be synchronised to suit the Crown and the defence and ensure the availability of the judge?
We are looking to develop software for an electronic diary. We already have electronic diaries in the commercial court—for instance, in the Court of Session. The clerk or the managing clerk will see what dates, times and courts are available for the allocation of the work, and there will probably be a certain amount of negotiation between the Crown and the defence, concerning the dates that are available for the trial, before the case calls in court. By that time, the Crown and the defence will, it is to be hoped, have noted which witnesses will be required for the case and what dates are available for it. It will then be a question of finding a suitable date to accommodate the Crown, the defence and the witnesses. In the vast majority of cases, it will be possible to reach consensus; however, if either counsel or a witness is unavailable, it will be the role of the managing judge to sort the matter out.
What would happen if the defence said that they would be available on a certain date but double-booked themselves and were not available?
One would expect the managing judge to take control of the situation and say, "That is not acceptable. You will need to pass your papers on."
How would the judge do that? Would he call the parties to another meeting? I presume that that has happened after parties have fixed a date and gone away but it has transpired that somebody is not available. Would the judge have to call them back in again or would the matter be resolved by another means of communication?
We would need to arrange another diet and have the case called before the court again to have it fixed.
Sorry, could you repeat that?
Yes. We would need another preliminary diet.
You were asked earlier which cases you think might be referred from the High Court to the sheriff court to be dealt with under section 13(1) of the 1997 act and you said that that is a matter for the Crown Office. Has the Crown Office discussed with you the types of cases that it envisages transferring?
Yes.
Can you tell us about those discussions?
We discussed the Crown's assessment of the impact that its case marking policy would have had on the distribution of business between the High Court and the sheriff and jury court, if the latter had been operating under the five-year sentence limit. That assessment identified a number of categories of cases, some of which I have mentioned. I cannot recall the specific statutory offences off the top of my head, but the Crown could advise the committee about that.
Are you able to tell the committee which types of cases are likely to be referred to the sheriff court?
I do not recall the precise details. I know that the Crown believes that some offences that are currently dealt with in the High Court, such as certain drugs offences, could be dealt with appropriately in the sheriff court. A range of cases are taken in the High Court because the sentencing powers of the sheriff court have been exhausted; as I understand it, such cases will provide the bulk of what is referred. Other offences, such as various categories of assault, might be dealt with in the sheriff court, but that will be for the Crown to decide.
How can you make a judgment about the administration of the new procedures, when you cannot say which cases the High Court is likely to refer?
We have worked with the Crown to establish a broad estimate of the proportion of High Court cases that the Crown thinks will be referred to the sheriff court. The working estimate is about 20 per cent of cases, but we are also modelling the possible consequences of a third of cases' being referred, which would still be manageable. Difficulties arise because the offences will vary; the decision whether to send someone to the sheriff and jury court for an assault with a knife may depend on the extent of the victim's injuries. I cannot give the committee a list of statutory offences that will be referred, because everything depends on the circumstances of the case and the fiscal's marking decision.
Given the assumption that about 20 per cent of business will be referred, how will that affect High Court business in terms of the number of trials compared to the number of courts that are available?
We hope that by referring those cases we will free up some capacity and be able to use the available sitting times more efficiently. Initially, there will be some surplus capacity, but if the drive on serious criminal business continues—I mean the police approach to tackling drug offences, intelligence-led policing and various other matters with which I am sure the committee is familiar—there are likely to be more serious criminal prosecutions in the years ahead. We expect to be able to match—
The committee is aware that the figures for serious crime are not coming down. Can you give us a more detailed picture of the court administration under the new system? If you shift 20 per cent of business, or more, I presume that that will create greater certainty that trials will go ahead. I assume that you have made some planning assumptions about the availability of courts relative to the number of trials that are pending?
The figures for 2002 show that approximately 24 per cent of indictments—about 368—went to trial. On the basis that we would lose between 20 and 25 per cent of that business to the sheriff court, we anticipate that we will run about 275 trials per year.
Will the reduction in the number of trials relative to the number of courts that are available lead to greater certainty that trials will proceed?
Without doubt the fact that fewer cases will come to the High Court will make the system more manageable. The current system—for example in Glasgow, where 60 or 65 cases might come to the High Court and have to be managed within a two-week period—causes great difficulty. If we reduce that number and introduce fixed trials into the sitting, we will provide greater certainty and, we hope, efficiency. We also hope that the new system will reduce, if not eradicate, double bookings of counsel.
That is understood—if all the new procedures were introduced, that would be the desired effect. However, I am trying to pin you down on provisions to shift business from the High Court to the sheriff court so that your business will be reduced by 20 per cent. I take on board the point that John Ewing made about the rise in serious crime, but I am trying to ascertain your planning assumptions about the number of trials, the number of available courts and what business will look like. I assume that you will considerably reduce the number of trials. You must have worked out a ratio involving the number of trials against the availability of courts, which I presume would look much better than it currently does. Can you give details about that?
As the chief executive said, we currently allocate approximately 14 courts per week to High Court business. Under the modelling that we have done, we estimate that around 10 to 11 courts will be required.
That is helpful. Thank you.
On the transfer of work from the High Court to the sheriff court, it was said that there would, in effect, be a 20 per cent cut in the High Court's work load. If nothing else was done except for such a transfer and the number of cases was reduced, would not that in itself create a great deal more certainty and make the High Court work much more efficiently?
No. It would give us a breathing space, but it would not procure the benefits in respect of impacts on victims and witnesses that the change in procedures that we are discussing would procure. It would give us some easement in the High Court, but the other changes that the bill proposes will produce more beneficial impacts for the system as a whole.
You said that a change in the sentencing power of sheriff courts from three years to five years was entirely reasonable and appropriate. Why would a change to five years be better than a change to four years? It seems more obvious to change the sentencing power to four years. I can understand a change from three years to four years, given the normal break between short-term and long-term sentences, so why is a change to five years more appropriate than a change to four years?
Five-year sentences are available in statute at the moment. Lord Bonomy considered different options and ministers considered the facts and decided that they would go with the existing legislative provision. There is no fine dividing line. You are absolutely right about short-term and long-term prisoners, but should the dividing line between short-term and long-term prisoners be five years rather than four years, given that they are not always in for four years? We are not talking about an absolute fixed point in time. However, there is a feeling that sheriffs are capable of dealing with the change in the sentencing pattern and are perhaps better equipped and trained than they were five or six years ago.
I do not doubt the capability of sheriffs. I know that ministers have made a decision and I know what the statute says. However, I was interested in whether you had a view on the matter, other than that that is the way things are. Is there a reason why the maximum length of sentence that they can give should be increased to five years rather than to four years, apart from the fact that ministers have so decided?
It is not for us to form a view on that matter.
So—you have no view on the matter.
No.
That matter is properly for the Executive.
I have a brief question on management. Where should cases that are handed down from the High Court to the sheriff court be heard? Should they be heard in the sheriff court local to the area in which the crime took place, should they be heard where the accused resides or should they be heard at an available sheriff court in which there is space for the case to be dealt with?
It is possibly slightly misleading that we talk about business going down from the High Court to the sheriff court because, in practice, it will not work like that. In practice, when marking the case the fiscal will indicate whether it should be handled as a sheriff and jury case or whether it should be referred to the High Court. That decision will be reviewed within the Crown Office using its usual mechanisms. It will not be possible, therefore, to say categorically that case X has gone to the sheriff court instead of to the High Court. Overall, we will see a change in the distribution of business. The presumption will be that cases that go to the sheriff and jury court will go into the court that currently has jurisdiction over that offence and that they will be just like any other sheriff and jury case.
As there will be more business in the sheriff courts, if there is available space in another part of the jurisdiction, might consideration be given to hearing a case in a different way just to get the business done?
That issue will be considered as part of the general overall planning of business. At the moment, fiscals can move cases around within a jurisdiction. Part of the debate that we are likely to have will be about how best to manage that. It would be patently absurd to allow a delay to build up in one court if there is a court close by that has available space. We will obviously need to consider that issue, but we will do so as part of our consideration of how we manage the total demand for sheriff and jury business rather than just in terms of how we deal with the High Court cases.
That was helpful.
Finally, I know that you have answered some of this question, but I just want to be clear about your answer. Will cost savings result from the transfer of business from the High Court to the sheriff court? Where do you envisage those savings coming from?
Under section 306 of the Criminal Procedure (Scotland) Act 1995, the Executive publishes the costs of various parts of the process. The section 306 publication gives a figure of the order of £14,000 as an estimate for the cost of a High Court trial. The estimate for sheriff and jury trials is around £4,710. Inevitably, there will be a saving associated with that move. Sheriff and jury trials are shorter and do not involve counsel as a matter of course. Various measures in the bill could produce savings, but the extent of the saving in an individual case will clearly depend on the nature of the case and on how complex or otherwise it is.
You have identified the fact that, as counsel appear in the High Court but not in the sheriff court as a matter of course, the bill might produce a saving. However, that would not be a saving for the Scottish Court Service.
No, the saving would be to the Scottish Legal Aid Board.
I think that that is all. I thank you for answering all our detailed questions—it has been helpful to us in our examination of the bill.
I ask the witnesses to outline which of the bill's measures the Law Society welcomes and which it does not welcome.
I do not want to avoid that question, but I will try to avoid it. The criminal law committee thinks that the bill's effectiveness is to do with disclosure. As members will know from our response, our starting point is that, other than a few provisions that I might touch on—such as the one on tagging—the import of the bill depends on the disclosure provisions.
I presume that you are positive about the provision on the early disclosure of information.
Yes.
Are there any measures that you do not welcome?
We have concerns about tagging witnesses and about citation for precognition. We can deal with those issues today, or we can provide the committee with a supplementary note, depending on how much time is available.
I will focus on disclosure. Your written submission states:
Our position is that the disclosure system cannot be based on informal arrangements; it must be laid out clearly in the bill.
Broadly, what do you mean by disclosure?
All three of us have discussed the issue in detail and we will contribute as we see appropriate because the issue is a major one. The fundamental point is that the implementation of the bill provides an opportunity for developing a particularly Scottish approach to disclosure because our system is distinct. The Crown should be required, at an early stage, to provide the defence with the statements of the witnesses who are listed on the provisional list of witnesses and, subsequently, on service of the indictment, with the statements of witnesses who were not listed on the provisional list of witnesses or with statements that were not previously provided. That would be a starting point.
In what respects are the current arrangements for disclosure unsatisfactory?
The current arrangements rely on the duty of the Crown to provide information to the defence. The Crown has the advantage that, when it precognosces cases, it has copies of the police statements. The Crown Office review identified that one purpose of precognition is to clarify discrepancies and ambiguities in police statements. Under current legislation, both parties in the criminal system are entitled to put inconsistent previous statements to a witness.
I want to pick up on an earlier point, which I think you also made in your submission, which is that you are suggesting the adoption of a system of timetabled disclosure of certain material to the defence. Will you expand on how you think that would work in practice? We have heard arguments regarding the fact that police statements are taken by a number of people in a number of ways; we might have to consider changing the way statements are taken. I would like you to cover police statements and the timetabling issue.
From the defence point of view, the earlier information is provided, the better, because the defence then has the information when it is deciding who to precognosce. If it knows that the witness is speaking simply to formal evidence, it could say that it will not precognosce that witness. If we are given a name, we are given an indication of what the witness is likely to speak to.
I would like to make just one point: Anne Keenan might also want to say something. I presume that members of the committee have had sight of the review of the Crown Office systems, which was published in June 2002. That document is excellent, warts and all, and not because I sat on the internal review team. I was not one of the warts. It shows the various problems and identifies a timetabling procedure to some extent. A fundamental aspect of that is that the Crown is able at an early stage to identify provisionally whether a case will be a High Court case, whether it will be a difficult case and whether it will be allocated to a particular precognition officer, depute fiscal or advocate depute. We acknowledge that there are cases that are out of the norm, but most are not out of the norm. Many High Court cases—I hesitate to say this—are simply district court cases that have gone terribly badly wrong and have serious consequences for everyone.
The only point that I have to add supplements what Michael Meehan said about the potential impact of early disclosure on witnesses. If we have early disclosure, parties will get together at a much earlier stage and we could perhaps even avoid the necessity of precognoscing witnesses and citing witnesses at a later stage. There could be savings in the system following early disclosure.
Your written submission refers favourably to the requirements of advance disclosure on the part of the prosecution under English law. I appreciate that there are difficulties with cherry picking from other jurisdictions. I understand that the obligation of disclosure is reciprocal in England: in other words, the defence must also disclose the case that it intends to present at trial. Would you favour such an approach here?
The wording in our submission is:
The defence currently has to intimate to the Crown the lists of defence witnesses and the lists of productions that it will use in evidence. There is also the statutory requirement to lodge notices of special defence. If the defence intends to lead with defences of alibi, incrimination and so on, it must give the Crown notice of that.
Lord Bonomy discussed confidentiality in his report in connection with the note of the line to be prepared by the defence. The terminology is slightly different in the bill, which describes a joint report, but in any event Lord Bonomy recognised the importance of confidentiality.
I return to the question asked by Marlyn Glen. If earlier disclosure is introduced in a systematic way, with a timetable—but assuming that there will always be things that crop up and cannot be timetabled—and alongside the Executive's various proposals, will that have a positive effect on the system as it exists at present?
Yes. If that is done, the mandatory preliminary diets will be effective. We are concerned that, without disclosure, the mandatory preliminary diets will not be effective. Advance disclosure would also encourage what already exists. The system works on a basis of good will now, and most of us who operate within the system realise that. The good will that currently allows the system to work would be developed and the system would become more efficient as a result.
What are the limits on the Crown's duty to disclose information? Presumably you would accept some limit on what the Crown has or has not to reveal to the defence.
There are a number of cases, such as the McLeod petition, on which Michael Meehan and I have had discussions.
The right of disclosure is often considered in relation to the European legislation on equality. It is not absolute disclosure; it is disclosure so that the accused is not at a material disadvantage. In its written submission on the McLeod v HMA case, the Crown mentioned that evidence that supports any known or statable defence could be disclosed, but it also mentioned information that undermines the Crown position. In a criminal case, as well as the accused having a position, the Crown has to prove the charge beyond reasonable doubt. That would kick in where a witness is perhaps not sure of his or her identification and has expressed that reservation. In such circumstances, that type of information might be made known.
Do you agree that it is a question of getting the balance right in changing the procedure? The defence would not want its case compromised by revealing something that it felt might undermine its case, but it may try to get points of agreement, and even points of dispute, out in the open.
I like face-to-face meetings, but we are kidding ourselves on if we think those meetings can be done by phone or e-mail. There has to be a meeting and the parties would be wise to have it recorded. I might be wrong, but I think that Lord Bonomy's proposal was that it should be an obligatory or mandatory meeting. Our response was that it should not be mandatory, but that it should be discretionary and encouraged. Having discussed the matter and having gone over the bill and all the responses to it, I am more of the view that there should be an obligatory meeting between the Crown and the defence, so that the preliminary diet can be as focused as possible and so that the parties can tell the judge individually, "We have had this meeting and discussed these issues."
At the very least, such a meeting would save time in court if parties discussed difficulties at that time. It would be regrettable if a mandatory system for preliminary diets in court were introduced and then, in a year or two, it were decided that the system was not working as well as it could because meetings were not taking place in advance.
Is it your view that the legislation should describe a format for the written record?
Yes. It is difficult for those of us who have a professional responsibility and may face some sanction because of that to know what our responsibilities are in statute without knowing what we are required to do. That should be embodied. There is a view that it should be in an act of adjournal, but we would like to know what the act of adjournal is before we sign up to it.
We have heard evidence that there is no sanction—or, at least, that there is none in the bill—that would apply if parties were not ready at the preliminary hearing. If that happened, would it be a question of the judge giving a heavy-duty opinion.
A "slap your hands" approach?
Should there be a sanction? If so, what should it be?
Not slapping your hands. Anne Keenan is good at sanctions. She gives me a row every now and then. Perhaps she might want to say something on the subject.
I suppose we should focus on how the bill is drafted rather than on Mr Brown's conduct. We have to look at who the fault would lie with. As the convener rightly said, under the bill as it stands, the judge would have the right to desert the diet simpliciter or pro loco et tempore. If the case was within time limits, the case could simply be reindicted. In effect, that is no real sanction.
The position of the society on sanctions is that we are moving away from them. Certainly, in so far as the breach of the 110-day limit is concerned, we would say that the ultimate sanction of the accused being free for ever should be removed. That would be a shift towards more responsibility. Clearly, at the end of the day, if there were to be no sanction for not fulfilling those responsibilities, that could lead to tension.
I want to move on to criminal legal aid. There is perhaps an acceptance that although there may be additional costs to the new procedure, there could also be savings. The two might balance out. We have had two opinions on whether, if business is shifted from the High Court to the sheriff court, counsel will appear in the sheriff court. The bill team tells us that counsel will do that, but we have also been told that that would not happen. What is your general opinion of the implications of that proposal for criminal legal aid?
It is difficult to determine what the impact would be. If the bill is effective, it should result in a smaller number of trials. I will deal with counsel appearing in the sheriff court later on in my reply, as that concerns sentencing as well as provision. Sanction is automatic in the High Court for counsel, but that is not the case in the sheriff court.
The committee has obviously received from the Scottish Legal Aid Board submissions about figures. For completeness, we provided our response to the Finance Committee. I understand that SLAB's figures have been estimated on the basis of current legal aid figures. The Minister for Justice has indicated that there is to be a strategic review of legal aid. We cannot answer questions about the impact on the system because we do not know what is going to happen with the strategic review. Assessing the impact on the system is therefore difficult for us, but SLAB might be able to give you a view of that with the information that it has to hand.
SLAB is participating in the strategic review—as we are—so it might be able to assist you.
Do you have a view about the shift in business to the sheriff court and whether counsel should be available for cases for which they were previously available? Would there be implications for the legal aid budget if that were to happen?
There should not be an increase in the sentencing power. The provision has been in force since the Crime and Punishment (Scotland) Act 1997. I am not sure what has changed.
So you believe that counsel should be available for those cases.
Yes. I do not see the difference in principle between counsel and a solicitor advocate. They should be available.
You said that you do not believe that the sentencing powers of the sheriff court should be extended to five years. If the bill were enacted, what type of case should be allocated to the sheriff court?
I listened to the previous witnesses, particularly John Ewing. We do not have a view on what cases should be allocated because, unless the law changes, the Crown should make the decision about where a case is determined. It is also a matter for Crown policy, which can and does change over the years.
We have heard evidence that much the same cases would go to the sheriff court as go at the moment, but that they might be a little more serious. Certain drugs cases might be transferred, for example.
I have a view about cases that should go to the High Court but do not, but that is another matter. That aside, it would be wrong for me to comment.
The chief executive of the Scottish Court Service gave evidence on cases being referred to the High Court just because the accused had a record. I am not able to speak to evidence in relation to that, but I do not believe that that would make up a great percentage of cases, even though the figure of 20 to 25 per cent of cases was being bandied about. High Court cases often feature first offenders committing serious offences; an extreme example would be murder. I would be surprised if a significant proportion of them were sent because of the accused's record. However, that is just my impression as opposed to detailed evidence.
In your written submission, you express concern that the bill does not indicate the type of information that the written record of state of preparation would contain. Why are you concerned that that is not in the bill?
We want to know what we are signing up to in advance, and the proposal is nebulous. I referred earlier to our concerns about any erosion of the doctrine of legal professional privilege or anything that would interfere with confidentiality. If we sign up to something that could be prescribed by an act of adjournal, we could not say, "We agreed to it in principle when the bill was passing through the Parliament, but now the act of adjournal says that we are supposed to disclose something confidential, and it would be improper for us to do that." That is why the bill should specify the confines of the written record. We have had some thoughts about which matters should be covered, such as whether all the evidence has been agreed, whether all the witnesses have been cited, whether we can cut down or trim the case in any way, and perhaps a list of outstanding matters. However, we want certainty about what we are signing up to before we can say to the committee whether the provision is good or bad. Otherwise, it will impinge on our professional responsibilities.
I accept what you say. You listed a number of things that should be included. What, then, should be excluded?
The written record should not stray into confidential issues. In his report, Lord Bonomy raised the idea of a note on the defence. From reading Lord Bonomy's report, I had formed the impression that the note would be akin to the shopping-list letter that the Crown would prepare to highlight matters that need to be attended to, in that it would be a note on defence matters that needed to be attended to, and that it would be a matter for the defence team. The bill proposes a document that would be before the court, which is similar to what one finds at an intermediate diet in summary cases in some jurisdictions where, in some cases, the solicitor will stand up and say what their position is. Other jurisdictions have a pro forma that asks about matters such as whether the witnesses have been precognosced, whether legal aid is in place and whether evidence has been agreed. It would be advantageous to know in advance which matters the document will contain; as Anne Keenan said, it would also be advantageous to know that the document will not stray into confidential issues.
In your written submission, you seem to question the idea of the prosecution and the defence submitting the written record jointly. Will you expand on that? It seems common sense that, if both parties were agreed, there would be no reason why they could not make a joint submission saying what they agree on.
There may be situations in which everything can be agreed, but individual responsibility rests with the solicitor or counsel. We have an adversarial system, and we must acknowledge that, if there are multiple accused, individual responsibility rests with each accused's representative. Also, a solicitor might find that they are unable to achieve agreement as to what is to be put before the court because they have not been able to meet counsel. We were concerned about who has ultimate responsibility: the solicitor who instructs counsel or counsel. There may be ways round that, but we would like that whole area to be clarified.
Is the provision too vague?
We think that it is not precise enough—I think that that means that it is too vague.
On the point about multiple accused, they are obviously all at the same trial. More parties may be involved if different people represent different accused. I am not sure how a separate agreement between each of them rather than a joint agreement would speed up the process or in any way enhance the situation.
The written record has to be lodged 48 hours before the preliminary diet, so the judge will have access to it.
The Law Society of Scotland's position is that the document would be an individual report on the state of preparation. Therefore it is perhaps not correct to define it as an agreement, because we would not necessarily be agreeing with the Crown. We would be saying to the Crown and to the other parties in a given case, "This is our position." I agree that it would be a bit incongruous to have individual agreements, because if, out of five accused, four say that they can agree the forensic evidence or the fingerprint evidence but the fifth does not, the Crown would need to lead evidence on that point. I accept that, if there is to be an agreement, it would make sense for that to be an agreement between all the parties involved.
Your submission indicates that you do not believe that it is necessary to extend the 110-day rule in all cases. You have suggested an alternative for cases in which that extra time would be required. Will you outline your alternative?
Our proposed alternative—it is a loose proposal—is for a hearing within, for example, seven days of the indictment being served. Therefore, seven days after the 80 days have expired, there would be a hearing at which the parties would appear in court. They could use that hearing to say that the case was straightforward, that the information about charges, witnesses and productions on the indictment was as they expected and that they would be ready to proceed in 110 days.
So you could ask for a realistic extension, knowing the stage that you were at.
I go back to a point that was contained in the review of the Crown Office. If an experienced prosecutor can say at an early stage, "This is a 110-day case, but there is no way that we will be prepared in 110 days," they could bring that to the attention of the accused's legal representative. As Michael Meehan properly says, many cases can be dealt with inside 110 days; they would be dealt with inside that time scale if there was early disclosure. It is a canard to suggest that adjournments are always brought about by a defence motion for adjournment. The committee may have heard evidence about that, but in our experience adjournments happen because certain preparations still have to be conducted.
If I have read your submission properly, it suggests that when forensic evidence is required, it is necessary to tease out whether the delay arises because extra time is required due to the complexity of the forensic evidence or because insufficient resources are in place.
A recently reported case—HMA v Hannigan—was thrown out because of delay. The High Court judge took the view that the case was very straightforward, and although it involved only 11 witnesses, it had taken two years from the date of arrest for the case to come to court, which he said was too long.
It might be worth while for the committee to investigate that area to find out what the reason for the delay is.
Indeed.
Does the extension to the 110-day rule, where extra time is needed, work informally in the High Court?
Even in a sheriff court case in which someone has been remanded for 110 days, an extension must be dealt with by a High Court judge. In other words, a request for an extension has to come formally in front of the judge. In the same way that a High Court judge could refuse a motion to adjourn, they could say that they were not prepared to grant an extension beyond the 110-day period. Judges often rely on what the parties tell them. If the defence says that it needs more time because, following late receipt of a fingerprint report, it has an essential inquiry to make, a judge would usually—although not in every case—back that request and grant the adjournment, if the Crown was in agreement. It is always for the judge to decide whether to grant an extension.
If there is sufficient reason, it is not uncommon for the judge to grant such an extension.
That is right.
In the evidence that we took from the bill team last week, one of the main arguments for the need to extend the 110-day rule concerned the complexity of the cases that go before the High Court and the fact that they are becoming much more sophisticated, because of scientific advances. I will ask you a question that I asked members of the bill team. At some point in future, will we have to revisit the time frame that we are changing, in order to extend it even further because of advancements in the technology that the police use and in scientific evidence? Although those factors might speed up the process, they could also make it much more complex. Are we in danger of going down a slippery slope by extending the time scale?
I am not sure which analogy to respond to. If we had to revisit the issue, our position would be different. It has taken us a long time to come to the view that the 110-day rule should not be preserved. As Michael Meehan said, we have put forward our position.
Will you clarify which Crown Office review you are referring to?
I am sorry. I can give you a copy of it—it is called, "Review of Crown Office and Procurator Fiscal Service Systems for Processing, Preparation and Prosecution of High Court Cases", which was published by the quality and practice review unit in 2002.
Thanks. That is helpful.
Your written submission states that you do not agree with the proposal to extend the circumstances in which a trial may be conducted in the absence of the accused. Is the non-appearance of the accused a significant problem in High Court trials?
No, it is not a significant problem. I am surprised by how many people turn up at High Court trials. Most of your witnesses will probably confirm that that is the case.
So the problem is not significant.
No. Sorry—maybe I should have said yes.
That would have been handier. Is it possible for an accused to have a fair trial if he or she is not present? The answer does not have to be yes or no.
My view, which I think is the view of our committee, is that it would not be possible to have a fair trial.
Is that true in all circumstances? If the accused does not turn up for the trial, do they not in effect waive their right under article 6 of the European convention on human rights?
Each system is considered on its own merits when it comes to the ECHR—for example, the English system is more statement based. In Scotland, there could be a trial in which, after all the evidence has been led and the advocate depute has presented his speech to the jury, the accused thinks, "I am going down." In that circumstance, no further evidence is to be led, so it is difficult to identify what prejudice there would be to an accused not being present to hear his solicitor advocate or counsel address the jury.
Our submission refers to the English case of R v Jones. During a speech in that case, Lord Rodger of Earlsferry pointed out the differences between Scottish and English procedures. He said that the difficulty with examining the trial-in-absence procedures in different jurisdictions throughout Europe is that each country has its own system. We cannot look at case law in one country and say that because the trial-in-absence procedures there are okay, they must be okay in another country. We must look at the procedural rules that surround the law. Lord Rodger quoted the fact that, in the Scots system, trial in the presence of the accused goes back as far as Baron Hume.
That is a helpful and detailed answer on what is obviously a complex issue. Does the Law Society's position reflect article 14(3)(d) of the International Covenant on Civil and Political Rights, which provides that everyone who is charged with a criminal offence has the right
We will have to write to you about that after looking up the terms of the article.
This is the first time that I have heard of that.
There is a first time for everything.
Perhaps we can teach the Law Society something.
I want to move on to the subject of the court appointing solicitors in the absence of the accused. As I understand it, at present there is a contract between the client and the solicitor who is instructed to act. Is there a conflict between that relationship and the obligations and responsibilities that the bill would impose on court-appointed solicitors?
Anne Keenan will respond to that. Obviously, there are professional implications for individual solicitors who are appointed.
As some members will know, the original proposal for a court-appointed solicitor came up in the bill that was enacted as the Sexual Offences (Procedure and Evidence) (Scotland) Act 2003. We had concerns about court-appointed solicitors at that stage because such appointments would interfere with the traditional solicitor-client relationship. We have expressed those concerns again on the Vulnerable Witnesses (Scotland) Bill, in which the provision has been extended, although it is discretionary. We have the same concerns about the Criminal Procedure (Amendment) (Scotland) Bill.
That is helpful. The implications of the court-appointed solicitor's potential liability under the bill as drafted are extremely worrying. You highlighted the fact that a court-appointed solicitor could be made responsible to the court. Is that the sole way of avoiding those potential pitfalls?
It would be one way of reconciling the professional duties of the solicitor, but I am still at a loss as to how the solicitor could adequately put forward a defence if they had no information about the potential case for the defence.
While you were speaking about defective representation in relation to the Anderson case, it occurred to me that if someone was being tried in absentia because they had run off, it would be interesting to see how they might come back to sue the solicitor.
You are right; the case might not go far. However, an action could still be raised and that would create professional difficulties for the solicitor, as solicitors have to pay for professional indemnity insurance. Although the solicitor might ultimately be successful in defending the action, the people in the claims department might put a loading on their premium while the action was outstanding. As I understand insurance rules, such a loading on the premium would be non-recoverable.
If an accused who had not made themselves available for trial then sought to sue a solicitor on the ground of defective representation, surely the solicitor would have a good defence. The court would ask, "Why here and now?"
That is right, but there would still be an issue about the period during which the action was outstanding, before the court threw it out. I believe that it can be some time before actions are dealt with—perhaps that is a matter for a civil law review.
Solicitors are under an obligation every year when they apply for their practice certificate to fill out a professional indemnity application form. They must notify the insurers of any circumstances that are likely to go to court, such as the situation that the convener described. The insurers might then put a loading on the policy premium.
Section 12, which is about reluctant witnesses, provides a new power to grant a warrant for the apprehension of a witness when it is known that the witness is unlikely to turn up at court. Do you have concerns about that provision?
Yes. One of our concerns is about the new section 90A(2)(a), which provides that a warrant can be granted if
As opposed to a postal citation.
Yes. After all, the implications from the use of the power include the subsequent detention of the witness.
Given all the potential problems that you have highlighted with regard to court-appointed solicitors, are you saying that very few people will volunteer to take up those posts?
At the risk of avoiding your question, I want to go back a stage and query whether there is a problem in this respect. I do not know what the statistics are for the number of cases in which witnesses or accused do not turn up; however, in a straw poll that we took among members of the Law Society's criminal law committee—who come from across Scotland—they did not envisage that there will be a huge problem.
To assist with the Sexual Evidence (Procedure and Evidence) (Scotland) Act 2002, we provided the Scottish Executive with a list of solicitors who were willing to take referral. As I have indicated, the bill goes beyond that. The solicitors in that list might be in a position to take instructions; however, that would not be the case under the bill's provisions and I cannot definitely say whether the solicitors on the list would be willing to go ahead.
What is your view on discount sentencing for early pleas? Under the bill, sheriffs must stipulate the element of the sentence that relates to an early guilty plea. Should we move towards having a level of detail in sentencing that has not really existed before?
Michael Meehan might also want to respond to that question. The case of Du Plooy, which is described in the October edition of the Scottish criminal case report, gives clear guidance on discounting sentences for guilty pleas. The option is a very welcome addition to our process and I think that it is being implemented regularly.
That is right. The Du Plooy ruling has overtaken the point that the bill seeks to address. When a High Court judge passes sentence, they should take into account the fact that an individual might have co-operated with the police at the time and perhaps sentence them to six years instead of seven. An accused person and those in the court will know that that is the discount. Therefore, I think that the development is helpful and might well have more of an influence than passing matters to the sheriff court.
Does the measure widen the scope for appeals against sentence? For example, given that the judge is using his or her own discretion, could someone appeal against that element of the sentence? Will it be open to challenge?
Do you mean appeal against sentence by the accused or by the Crown?
I suppose that I mean both. If the provision becomes law, will there be scope for people to appeal on different grounds because, for example, a sheriff applied a discount of six months instead of 18 months? Should any discount be entirely at the sheriff's discretion?
The Sentencing Commission will consider all those issues. However, the scope for appeals should be reduced if during the sentencing process a judge advises the accused in open court about the sentence as it would have been, the sentence as it now stands and the reasons for imposing the sentence. I am optimistic that that informed decision might lessen the prospect of appeals against sentence. After all, a judge or sheriff might simply give a six-month discount and the accused might wonder why. Now we will know why.
That is very helpful.
I am surprised by that, convener. [Laughter.]
Do you want to continue? We would like to, but we cannot. I thank the witnesses for their time. Their evidence has been valuable to the committee.
I will see you back here at 12:25.
Meeting suspended.
On resuming—
I welcome Patrick Fordyce, who is the president of the Scottish Law Agents Society. Good afternoon.
Good afternoon.
Our first question is from Margaret Smith.
Before the committee begins its questions, would you mind if Janice Webster, who is our society's secretary, took a seat next to me?
Not at all. Please join us, Janice.
The bill makes provision to extend established time limits, including the 110-day rule. The view has been expressed that that is not necessary in all cases and that the system has enough flexibility. Is such a departure from existing procedures justified?
I have mixed views about that. The provision is a little premature. Perhaps we should think about more ways of accelerating the existing process. In some ways, all that the bill will do is add 30 days to the 110-day rule. Gerry Brown and the other Law Society witnesses made the valid point several times that the earlier full disclosure is made in such a process, the quicker both sides will be ready. That is my main position.
You said that you agreed with the Law Society's point that early disclosure would go a long way towards remedying the problem. Do you agree with the society that a disclosure timetable is required? What are your general views on the issue?
That suggestion is good. I do not doubt that Gerry Brown's comments have been recorded, so perhaps we can replay them to save me from saying the same things.
He would love that.
We could hear the remarks in stereo.
Under the present procedure, not even the supply of a provisional list of witnesses is guaranteed. If a case that may be destined for the High Court starts on petition in the sheriff court, a lawyer will first write to ask the procurator fiscal for a provisional list of the witnesses whom the Crown will call eventually. Such lists are not always provided. The Crown might have reasonable grounds for saying that providing such a list is inappropriate, but it does not tell us them—we either receive the list or we do not receive it. Sometimes under the present system, the first time that we know which witnesses the Crown intends to call is when we receive the indictment, which happens a short time before the trial diet. We could guarantee full disclosure and I cannot imagine that there are many cases where the Crown is not in a position to issue a provisional list of witnesses within 14 days of the first appearance on petition. That might be a fairly tight time limit, and I am not putting it forward as a specific suggestion, but it would be useful if there were a rule that a list of witnesses should be provided within a relatively short time scale.
Should provisions on disclosure be in the bill, or would it be enough for them to come later?
The bill presents a great opportunity to address major failings in High Court procedures. Many of the problems with not being ready for trial—which has most concerned the committee today—could largely be addressed by full disclosure, or by more detailed disclosure than we have at present. If we are contemplating making significant changes with the bill, disclosure should be included.
The bill also makes provision for the detention of a witness who has failed to appear following citation. In your experience, is there a significant problem with witnesses failing to attend court when they have been cited to attend?
There is a moderately significant problem. There are all sorts of reasons why witnesses do not want to turn up and give evidence. Perhaps their hands are not entirely clean in relation to the incident in question. It could be that a member of a family is being required to give evidence against another member of the family. There are all sorts of reasons why witnesses may be reluctant. I stress what Gerry Brown stressed, which is that if there is the possibility of a warrant being granted for the arrest of a witness who does not turn up, it is important that the court must be satisfied that that witness has been personally cited and knows that they must be there. Subject to that, there requires to be a mechanism to get witnesses to court.
I think that you have answered my next question, about the concern that has been expressed that that might be seen as coercion of a witness, by saying that you want the witness to have legal representation.
Yes.
You will know that the Executive has stated that it intends to implement section 13(1) of the Crime and Punishment (Scotland) Act 1997, so that the sentencing powers of sheriffs in solemn procedure are enhanced. Is it possible to estimate the impact that that will have on the work load of the sheriff court?
That is difficult to estimate. Other witnesses, such as Mr Ewing, gave the committee statistics on that. He would be a better guide than I could be on such matters.
Is it your impression that it will at least marginally improve the system?
Inevitably, it must. If a certain number of cases go to the sheriff court that previously would have gone to the High Court, almost inevitably that will have a beneficial effect on the High Court. What impact it will have on the sheriff court is another matter. There will be a domino effect, with cases falling out of the High Court and into the sheriff court. There will also be an impact on summary procedure. I am not sure where Sheriff Principal McInnes has got to with his review, but there will be an impact on sheriffs' time, as sheriffs will have to deal with both increased solemn business—they will now do some work that was traditionally High Court work—and their load of summary work. That is bound to have some impact. I find it difficult to assess the extent of that impact, but it is a matter for concern that requires a bit of thought.
Do you have a view on the increase in sentencing power to a maximum of five years' imprisonment? Is that appropriate?
I was just looking back at the response that the Scottish Law Agents Society gave to Lord Bonomy's paper—it was mostly my work, so I have to take the blame—and I see that we agreed with that increase. Having listened to Gerry Brown, I am almost persuaded that that was a bad idea, for the reasons that he has given.
You say that you are almost persuaded. Why do you maintain your view?
There is a superficial attraction in the idea that the transfer of a certain amount of High Court business to the sheriff court, which is going to be beneficial to the High Court, will require an increase in sentencing power to deal with those cases. I also said in my response that, if there were to be such an increase, the Executive might do well to consider whether it would be reasonable to retain the power of remit. On the basis of all that I have heard today about the type of cases that are liable to go from the High Court to the sheriff court, I would have thought that five years would be a more than ample sentencing power—if that is what the ultimate result is. Ultimately, there is an issue of decision in the first instance as to what is suitable for the High Court and what is suitable for the sheriff court.
In your view, what types of cases would go to the sheriff court?
Probably the borderline cases, although even now there are some very strange decisions and we see serious cases appearing at sheriff and jury level. We also see cases that seem, on the face of it, not particularly complex or serious going to the High Court. That is down to human decisions about the seriousness of cases.
But the general type?
We will probably see a lot more drug-related cases and assault and robbery cases in the sheriff court, which already takes quite a lot of such cases at the lower end of the scale. Those are the sort of cases that will, for the most part, graduate down to the sheriff court.
Much of this morning's discussion has centred round Glasgow and Edinburgh as the High Court base. I wondered whether you might comment on the High Court in circuit. Are there any issues relating to the circuit of which the committee should be aware?
I would hate to correct the convener, but although I have heard about 500 references to Glasgow, I do not remember any references to Edinburgh. Nevertheless, I acknowledge the point that you are making. Those are the big boys in the High Court circuit.
I want to be sure that we have covered everything in relation to the High Court in circuit. We have concentrated on Glasgow and Edinburgh but, if you have nothing to add, that is fine.
I do not have much to add. I agree that Dundee badly needs a High Court facility and that Aberdeen needs an upgraded facility. I do not think that there is much likelihood of the High Court coming to my home patch of Dumbarton in the foreseeable future—we have not even got a decent sheriff court. I do not know whether anybody listening has any influence that they might bring to bear.
I am sure that there will be a letter in the post—that has been my experience.
I am not aware of any statistics on that, but it is common in jury cases for there to be reluctant witnesses—that happens pretty frequently. Whether a warrant for their arrest should be issued, so that they are brought to court under duress, is another matter. Such matters are sometimes resolved in a more administrative fashion, with a large policeman going to remind them of their duty to come to court.
If you are right about the frequency, there would be an additional cost to the Scottish Legal Aid Board if it were to provide representation for those witnesses.
Yes, but I do not think that the cost would be significant. People simply need access to a solicitor—who is totally independent of the process and who has nothing to do with the case—who can spend five or 10 minutes telling them about their legal obligations and answering any questions that they may have.
Convener, will we ask about trial in absentia? The Law Society of Scotland was obviously concerned about that.
I wonder whether I might ask the society's secretary, Janice Webster, to comment on trial in absentia. She has been much involved in European issues and the committee may be interested to hear what she has to say.
If I may, I will introduce myself, convener. For some years, I was the director general of the Council of the Bars and Law Societies of the European Union and covered some countries that are not members of the European Union. That gave me an opportunity to see how other judicial systems worked, which was very interesting. I also worked quite closely with the Council of Europe, the European Court of Justice and the European Court of Human Rights. We had a standing committee in relation to all those organisations. When I came home to Scotland, I maintained my interest in international affairs and was used by the Council of Europe to go to some eastern European countries to try to bring their legislation up to the levels in the rest of Europe. I have had good opportunities to observe issues of the type that members are raising.
I wanted to ensure that we had it on the record that you concur with the view that the Law Society of Scotland witnesses expressed this morning that someone could not necessarily get a fair trial if they were not present to give instructions and deal with anything that came up in the trial.
That is broadly my view. To take a pragmatic view, if I was the solicitor whose client had disappeared and the question arose whether I could continue to represent him and he could have a fair trail in his absence, the first issue to consider would be whether he had run away because he thought his lawyer was rubbish. That would be a concern and I might consider whether I should continue to represent him. It is totally impractical to hold a trial in absence, because, as often happens, a witness may say something completely different from what we expect them to say and we cannot ask our client what they have to say about that.
If, for the sake of argument, the Executive went ahead with the provision, would you agree that a minimum position might be that the contract would have to be between the lawyer and the court, to safeguard the lawyer?
If we were to go down that road, we would be inventing an entirely different animal. Lawyers have all sorts of duties—they have duties to their client, to the court and to the public interest—and meeting all those obligations is a constant balancing act. However, we have an important duty to represent our client to the best of our ability. If there is a shift whereby the court and the public interest are represented rather than the client, that would be an entirely different approach. I do not know how one would begin to put in place the rules and guidelines that would be necessary for that shift.
I support what has been said. I have in interest in ethics and have written a book called "Professional Ethics and Practice for Scottish Solicitors". I feel strongly about the matter. Trust is the essence of the relationship. We have heard that the relationship is based on contract, but its essence is trust, independence and integrity. The lawyer is the minder of justice as well as an adviser, representative and negotiator. If we were to throw out the baby with the bath water, that would be sad. The independent approach is the right approach. As Patrick Fordyce said, the lawyer must balance various interests, including a duty to the court and a duty to the client. That takes us into the realm of not misrepresenting facts, which is vital.
Is it fair to say that the judge took a firm hand with the advocate in that case because the advocate had misled the court about his availability and had not simply double booked?
Yes, but if one properly manages one's affairs, that should not happen. Whether the electronic system will improve matters remains to be seen, but we hope that it will.
I would like to return to the issue of trying a person in their absence. I take on board all the points that you have made and what you have said about the ethics of the matter. The Law Society of Scotland made the same points about the practical difficulties involved in not having instructions from a client. However, there is also an ethical question that relates to the public interest. An accused person might have dodged their trial and flown the country—notable criminals have done so—and a person who has had crimes committed against them might not have access to justice. Do you accept that the provision intends to deal with such situations? There are practical difficulties, but it is a fair consideration that those who have absconded from justice should not be able to—
Absolutely. Each case must be considered on its own merits. There is always a question of balance when we get into the realm of human rights. There are rights on one side and duties on the other side; the public interest is, of course, a heavy weight in the balance. It would not be a good idea to be totally prescriptive—there must be a degree of discretion. I can envisage situations in which a person would perhaps not deserve to appear.
You mention the contractual relationship between solicitors and their clients, but there is a slight difference in the relationship between clients and advocates. Does that make any difference? I understand the principle of presenting a good case, but there is a slight difference in the relationships.
The origins of that go back to the old days, when the main division was between advocates and law agents, as is reflected in the name of our society. The agents do what the name suggests—we step into the shoes of the person so that we can do everything that the person would have been able to do. The advocate who assists, or stands beside, the person—I think "ad sistere" is the derivation—speaks for or represents the person. Even the origins of the names and titles says something about our duties.
May I just stop you there? My question related to the role of advocates. In a murder case that goes to the High Court, if there is no accused for the solicitor to take instructions from, would not an advocate represent the case? Would all the practical difficulties that you have described to the committee also apply to the relationship between the absent accused and an advocate?
Obviously, the advocate cannot take instructions if there is nobody there to pass them on. What people see in court is only the tip of the iceberg; all the preparatory work is very important. The solicitor is involved in all that and the advocate then presents the case, so the advocate would have his hands tied behind his back as well.
But there is no contractual relationship like the one between the accused and the solicitor.
No.
Therefore, you cannot simply translate the practical difficulties that you have described in relation to your own profession and say that those practical difficulties would exist for the Faculty of Advocates.
The solicitor would have to be involved. The solicitor instructs the advocate and the accused instructs the solicitor—it is a two-way process. The solicitor is the person in the middle, without whom the system would not work.
There are all sorts of ramifications now, with the Proceeds of Crime Act 2002, money laundering and so on. You have probably read Dame Elizabeth Butler-Sloss's decision of just the other week. A barrister and a solicitor were involved in a matrimonial dispute and it became clear that some of the husband's assets might have been ill-gotten gains. The lawyers had a duty, under the Proceeds of Crime Act 2002, to report that. That opened up the whole question of confidentiality that you were talking about earlier. All sorts of new developments are taking place in the law, which have an effect on the relationships of solicitors and advocates. This is quite a difficult time.
You referred earlier to your experience in the pan-European bar. Given your background, do you know of any jurisdictions that are operating such a provision of trial in absence of the accused?
Only some of the eastern European countries, which were told pretty quickly that they ought to improve.
I would like to clarify whether other countries in Europe allow for trials in absence. Is it the case that no other member state in the European Union allows for that?
I could not say that offhand. I dare say that there may be some, but I would be misleading you if I were to give you an answer today, although I could research the matter. The Council of the Bars and Law Societies of the European Union, for which I worked, has a website and information service. Perhaps the answer could be pursued in that way.
I asked the question to ascertain whether there were implications for the execution of European arrest warrants between member states. For example, a member state could say that it was not prepared to execute the warrant on the basis that the person could be tried in their absence.
There are all sorts of international and Council of Europe conventions about which people forget or do now know. The United Kingdom is a signatory to a number of those conventions, which means that it has to bear in mind certain obligations. That aspect also needs to be looked at.
That is the end of our questions. I thank both our witnesses for their evidence, which has been very valuable.
I would like to mention one more point, if I may, convener. I have been at the meeting for most of the morning and I am not aware that the point has come up. I do not want to open up a debate on it; I simply want to mention it.
Well, I do not think that we can help you there. You have drawn to our attention a crucial part of the bill in relation to how the new system will work. This morning, we talked about the need for a fixed date. We have been pressing for information about how the date is to be arrived at. You have drawn our attention to a point that needs to be clarified. We are grateful to you for that. Again, I thank both of you for your evidence.
We thank the committee for its hospitality.