I welcome everyone to the first meeting of the Justice 1 Committee this year, and I wish everyone a happy 2004. I ask members to switch off mobile phones and other things that might interrupt the meeting. I have received no apologies and everyone is in attendance.
Good morning, gentlemen. In its policy memorandum, the Executive states:
Yes.
Could you elaborate? For what reasons?
For the reasons given by Lord Bonomy in chapter 5 of his review. I have no difficulty with anything that Lord Bonomy has identified. What he did was very important; he took a holistic approach and realised that, as in the Forth rail bridge, everything cantilevers into everything else.
I wonder, madam, whether I may add briefly to that?
Yes, of course.
I wanted to confirm that the representations that the committee has received have been prepared by the criminal bar association of the Faculty of Advocates, of which Mr Ogg is the chairman. The faculty itself supports those representations.
The introduction of mandatory pre-trial hearings is central to the bill. Will that improve efficiency and reduce delays?
Yes, absolutely.
Why does that not happen now? Is it because of the resource implication?
Absolutely.
So the system needs more people.
If an advocate depute has 10 cases to try during a fortnight and does not know which ones will be adjourned because a witness is unwell or has not shown up, or because there will be a motion for adjournment due to a lack of preparation, why would that advocate depute read 700 pages of evidence and productions—and spend their weekend doing so, when they should be spending time with their children? They simply will not do so. The Crown Office must provide resourcing and I have spoken to people in the Crown Office who acknowledge that that is necessary.
We take the point about the need for a culture change, which you make strongly in your paper.
I am speaking anecdotally, but I cannot say that I have noticed any difference. On Christmas eve I received a letter from the Crown Office about a particular murder trial, which introduced 13 new witnesses and 12 new productions, which would extend to 300 pages of evidence. The case involves a big medical question about whether there has been a homicide at all.
That brings me on to my next point. What do you think is the role of the judge in the preliminary hearings?
Unfortunately, you have to think about the judge independently. We are dealing with human beings and, to some extent, what happens in any situation depends on their personalities. There will have to be a culture shift on the part of the judges; they will have to want to make the system work. If judges are simply going to sit up on the bench and remain aloof from the procedure, it is not going to work. Judges must acknowledge that the Crown and the defence have difficulties and help to resolve those difficulties in a way that results in a definite trial diet.
I would like to add to that from the point of view of the Faculty of Advocates. I agree with everything that Mr Ogg has said. The critical underlying issue that is technically addressed in the memorandum that accompanies the bill, but is not explained in any great detail, is the point that we made from the outset in our submissions to Lord Bonomy's consultation exercise, which is that there must be sufficient resource available for the procedures to work.
What do you think should be the consequences if either party comes to a preliminary hearing without being fully prepared without just cause?
I have always taken the view that a judge is able to report any member of the faculty who fails to carry out their duties, whether those duties are statutory or to the court. We are principally officers of court who are responsible to the dean of faculty. I do not think that it will happen a lot because there is a sentimental view held by judges, who are former members of the faculty, that it is clyping on other professionals. They often make do with being acerbic or giving counsel a dressing down in court. If counsel fails in their duties, it is appropriate for there to be some underpinning of a culture change and that failure should be reported to the dean of faculty. The dean would then exercise the discipline of the Faculty of Advocates against someone who was failing. That is what it is; it is someone who is failing in their job. Just because we are self-employed does not mean that we cannot fail in a job. If someone fails in a job, there should be consequences.
Although there have been one or two reported instances in the recent past when judges have criticised counsel in particular, I suspect that that has occurred as a consequence of the existing system: the lack of time for preparation, the sudden presentation of materials and the lack of certainty about when trials are going to start. Some years ago I was an advocate depute and apart from then, I have practised only rarely in the criminal court. Having been out of the Crown Office for 15 years or so, I was astonished to find out how informal the system is for allocating a diet when a trial was going to start. That is one of the reasons why there have been some apparent difficulties.
The bill does not contain any limit on the number of preliminary hearings that there can be. Should there be such a limit?
No, I do not think so, because common sense will limit the number of such hearings. A judge will look at the minutes and see how many preliminary diets there have been and for how many weeks the process has been going on. The whole culture of the bill is geared towards fixing a date when everyone is ready to go ahead and that is what the judge will have in his mind every time a preliminary diet is called. The idea is that the two parties are supposed to tell the judge when they will be ready. If they tell the judge one date and then tell him another, he will wonder at what point he can rely on what they tell him. A judge will be well able to focus people's minds on that.
Judicial management at the preliminary hearing is crucial.
That is right. It should not simply be a case of having a form of words to obtain an adjournment; the real reason for the adjournment should be looked for behind the words. To their credit, the judges are doing that now, because they are aware of public concern on the issue. It is now much harder to get an adjournment than it was even 12 months ago.
That is helpful.
I want to pick up on some of the points that you have made. The question of the use of section 67 of the 1995 act has been raised with the committee on more than one occasion. Given that you mention the issue specifically in your submission, will you give a brief summary of your understanding of how the relevant provisions in the bill would operate if the bill became law?
As I understand the bill's provisions, the Crown will be required to intimate any witnesses or additional evidence that it had not previously intimated with the service of an indictment. It will have to do that not later than seven days prior to the preliminary hearing. In other words, the Crown will have shown its whole hand before the preliminary hearing.
That was going to be my next question. You spoke about receiving notice of 13 new witnesses on Christmas eve. What is your expectation of the Crown's ability to deliver what would virtually be a sweeping away of the provisions that it has relied on?
It is a bit like Parkinson's law; and this is going to be law. If an overstretched department is given a certain amount of time to do things, the tendency is to leave on the back boiler that which can be left on the back boiler, until the last minute. The last minute is now going to be changed from two days to seven days. It is just a new deadline for people to meet. Often, expert reports—such as the ones that I received on Christmas eve and new year's eve—are dated two or three months previously. I suspect that it was only when the advocate depute who was doing the trial was reviewing the papers that he or she said, "This report has not been issued; it should be sent out. I need it to prove the case." The man or woman doing the trial will eventually say, "Hold on—there are witnesses who are not in the indictment but whom I think I need in order to strengthen or help my case." To some extent, there are afterthoughts.
When should special defences be lodged? Should everything be lodged for the preliminary hearing?
Yes. That is vital.
You raised the question of the continuity of Crown and I thought that I should ask about the continuity of counsel. Lord Bonomy would expect junior counsel to appear at the preliminary hearing and then report back to senior counsel. How would that be done?
If I were representing someone in a murder trial, I would regard the preliminary hearing as a critical diet. The preliminary hearing will become a critical part of the whole proceedings. I would not understand why a senior counsel would not want to be there. Senior counsel are going to have to accept what is, in effect, the new job of being a case manager once they are instructed. That means carrying the can, doing work outside of court, and going to the judge to explain why things have or have not been done. It is wrong to expect junior counsel to do that.
In your submission, you make an important point about unexpected events—for example, when the Crown may claim that a witness will speak to a particular event but the witness then does not. That could upset the whole idea of the preliminary hearing. Will you say some more on that?
There are concerns about what can and cannot be said at preliminary hearings. At that stage, we are not dealing with people having lodged affidavits of what their evidence is. It is a precognition that is taken by someone; it is their words about what someone has said to them. What the defence thinks about the strength of the Crown case—or, indeed, what the defence thinks about the strength of its own case—can be in a state of flux and can change. It is not unusual to have witnesses who have given contradictory statements to the police; and it is not unusual for witnesses to change important nuances of their evidence when they come to court.
Are you simply saying that that issue might not be curable? How would it be cured?
Difficulty with such reviews of how we do things often arises, especially when continental systems are examined. In Europe, the inquisitorial system has all the statements virtually in affidavits and on file before a trial starts, so the opportunity for people to change their positions is different from that in Scotland. We rely on an adversarial system to obtain evidence. In other words, that person's evidence and whether it is reliable are beaten out on that anvil.
We will ask you about that.
That is an example of the differences.
Will you explain how important early disclosure of Crown evidence to the defence is, to make procedures work effectively?
Bonomy is eloquent on that. In the course of its investigations, the Crown uncovers information that it keeps on file until it eventually makes a tactical judgment about whether to include a person as a Crown witness. The Crown decides whether having that person as a witness is to the advantage of its case and whether scientific evidence is relevant to the argument that it wants to make. By and large, the Crown does not tell the defence about the evidence until it has made those judgments.
I will add a broader perspective to that. One fundamental of pleading in criminal and civil cases under Scots law is that there ought to be no surprises when the case comes to trial or proof. In civil cases, that is provided for by a system of relatively full pleadings at which each party pleads the case, so giving notice to the other of the various lines that will be run. The criminal system might initially have been based on similar principles, but it is certainly not any more. The requirement for disclosure and for the case not to be kept back from the other side for any longer than is absolutely necessary is a fundamental principle of Scots civil and criminal law. How that is managed is a matter of administration, or precedent and practice, but early disclosure is not in any sense an innovation. The Crown should lay before the defence the case that it intends to bring and the various strands of evidence that it intends to lead at as early a point as possible.
Should the bill contain a specific provision that directs early disclosure?
The provision that requires the Crown to disclose its evidence and productions seven days prior to the preliminary diet forms that specific provision. If there is a drop-dead provision that says that if the Crown does not do that at that time, it will lose, Parkinson's law will make sure that that happens.
Should the judge have a specific sanction to use against the Crown if it does not meet the deadline and disclose the information, other than referring the matter to the dean of the faculty?
Perhaps the vice-dean will be able to answer that better than I can, but the difficulty with reporting advocate deputes is that, although all advocate deputes who are advocates are subject to the ethical requirements of the faculty, they are also required to carry out their duties as contractees—they are all schedule E employees of the Crown Office, so they are under contract. It would therefore be difficult to report an advocate depute who was making a motion to allow late evidence because someone in the bowels of the Crown Office had slipped up. The vice-dean might be able to comment on that, but I think that the dean would be reluctant to exercise his jurisdiction against a prosecutor. If Parliament sets up the independent investigative or review body of the Crown Office, such complaints might be made to that body.
From the point of view of the faculty, the jurisdiction of the dean in matters of discipline would extend over any advocate depute who was an advocate and who was alleged to be guilty of some form of professional misconduct. I suspect that we are not really talking about that here. I suspect that we are talking about a situation where, for whatever reason—not necessarily because of an individual's fault or a deliberate act—the Crown simply fails to meet a deadline. The first consequence of that is in the hands of the judge at the preliminary diet or at any other part of the procedure. That is an important safeguard, because judicial independence may be brought to bear on the particular issue.
What sanctions would be available to a judge if he decided that the Crown had failed to disclose information that it should have disclosed?
The ultimate sanction is that he might bring about a situation in which it was impossible for the Crown to proceed to trial because an essential part of the evidence simply could not be led. In that situation, the accused would then be free. It is difficult to envisage what lesser sanctions might be—I suspect that Mr Ogg is better placed than I am to do that. Normally, in criminal trials, particularly those in which the accused is in receipt of legal aid, there is no question of an award of expenses against either party. There might be sanctions against individuals. For example, an individual might be called before the judge because he is said to be in contempt of court, but, again, that would be at the extreme end of the issue. I suspect that the sanctions might involve the judge exercising discretion such as allowing a further adjournment or preliminary diet. However, in such a case, we would have the assurance that the sanction was under the control of the judge and was not brought about by the Crown or the defence.
By and large, the judge would simply adjourn the trial diet because not enough notice had been given to the defence. He could simply say that it would be unfair to continue with the trial as a rabbit has been pulled out of a hat. If he adjourned the trial diet, that would make the situation fair again, as the defence would have time to do its job. We are not talking about the judge effectively allowing someone to walk free because a deadline has been missed; we are talking about a judge administering the fairness of the proceedings. His job is to make sure that the trial is conducted fairly. If the Crown pulls a rabbit out of a hat, the judge is under no obligation to say, "Nice rabbit, nice hat, let's get on with the trial." He should say, "We are going to have a further delay, caused by the Crown, which I criticise." If that happened a lot, representations would have to be made to Parliament for further powers because the system would not be working as envisaged.
Most of the evidence that we have had on early disclosure has focused on the need for the Crown to disclose evidence at an early stage to the defence. Does the defence have a role in disclosing evidence to the Crown at an early stage?
If the defence intends to lead witnesses to speak to or rebut any aspects of the Crown case or to lodge any expert evidence or reports, there are time limits in relation to when that can be done. Effectively, that is when the defence discloses its evidence. The Crown can then interview the defence witnesses and experts and get a steer from that as to what the defence is thinking.
I want to ask you briefly about early disclosure. I hear what you say about the legal principle of the right to remain silent and what you say about a culture change. Will it be possible to achieve that culture change if only the Crown is required to disclose its evidence early?
We can act more quickly in taking statements from witnesses if we know who they are and have their current addresses and if we know that they are willing to co-operate.
But you currently get that information.
No. With respect—
You get a provisional list of witnesses from the Crown.
No. If you read chapter 5 of Bonomy, you will see—I think in paragraphs 5.9 to 5.11—that he says, in effect, "That's the theory; now here's the practice."
But in some cases you get that information. You are surely not saying that you never get a provisional list of witnesses from the Crown.
No. The theory is that provisional advance lists of witnesses are given, but that does not always happen in practice—not by a long chalk. The provisional list—or, indeed, the final list—often does not appear in advance. The final list of witnesses may include people who were not on the provisional list, such as experts, fingerprint officers and others who are proving the forensic side of the case, which is an important part of Crown proof nowadays. Those people could not be on the provisional list. The provisional list contains the people whose names and addresses the police have noted. Bonomy is perfectly clear in saying that the root cause of delay in a trial is—
I know. I am sorry to cut across you, but I was interested in your view on whether the defence could prepare cases a bit more quickly before the indictment, if it has a rough idea of who the witnesses will be.
On a case-by-case basis, that might be true. Some firms of solicitors are good at doing that and some are not so good. If the objective is to have trials proceed on a specific date after the 80 days, that will best be helped by early disclosure of witnesses. You talked about a culture shift; the culture shift that I am talking about is one in which people will co-operate towards that objective. However, I do not see how disclosing the defence achieves that at all. You are talking about a different culture there.
Lord Bonomy talks about uncontroversial evidence and says that the procedure for that is not very well used at the moment.
That is to put it mildly. I will tell you what happens. A notice of uncontroversial evidence arrives in a solicitor's office and he fires off a standard letter from his word processor to say that none of it is agreed. I cannot remember a case involving so-called uncontroversial evidence.
I wonder whether I may add to that, based on my experience as a prosecutor. In such matters, it is often overlooked that, ultimately, the case is proved or not proved before a jury. It may be important that the jury hears evidence, even if it is uncontroversial.
It is worth saying that prior to a trial it is difficult to agree evidence. I do not know of many trials during which counsel has said to the Crown, "That's not in dispute. Put it in a joint minute." In such circumstances, the Crown Office can phone the witnesses to say, "You needn't bother coming to speak to your photographs", "You needn't bother coming to speak to the docket that you put on or your service of this warrant," or something of that nature.
I want to take you over your written submission and some of the comments that you have made this morning about fixed trial dates. Correct me if I am wrong, but this morning you seemed to suggest that you support fixed trial dates, because they bring more certainty. However, in your submission, you appear to be opposed to fixed trial dates. You certainly express considerable doubts in your written submission about the practical effectiveness of the proposals to replace High Court trial sittings with fixed trial dates. Do you think that it is necessary to change the current system from sittings to fixed trial dates?
I am sorry if my commentary is unclear or appears to be ambiguous in that respect. That is certainly not our intention. We support fixed trial diets and I believe that our document says as much.
So your fear is that subsection (1) and (2) diets will be the norm and that subsection (3) will almost fall by default, as it involves "a drop-dead scenario". In effect, there will not be fixed dates.
We will end up having to have sittings instead. With respect, my criticism was contrary to what you thought it was. I was criticising proposed new section 83A—we all think that the new section gives definite dates, as that is the objective that all of us are working towards, but in fact it could end up doing the reverse.
You say that it will do so in your submission.
Indeed, things will be worse because currently a judge can say, "I am not going to adjourn from day to day. We have waited long enough—let's get our act together and get started." That has happened.
If you believe that subsections (1) and (2) will become the norm and the option of choice, particularly because of the administrative flexibility that would be provided in the court system, how could such a problem be solved? How would you resolve that problem and get fixed dates? Would you change something in the bill?
The Parliament can create a hierarchy of preferences so that the judge should in normal circumstances appoint a fixed diet. The exception should be when there are special circumstances. A victim might be very vulnerable and there might be reasons to think that his or her state of mental health will not be auspicious on a particular day, or a child witness might have examinations on a particular day but might not be sure on what day those examinations will fall. There might be an anticipated uncertainty or—to use Donald Rumsfeld's dreadful concept—unknowables that we know about. A trial might be vulnerable because of particular features that all of us can identify in advance.
Do you object to the clerk per se being responsible for setting dates, which is an administrative function, and think that the judge should be responsible? Could the clerk set dates if certain safeguards are put in place? You said that a clerk could just make a decision about one court changing things and another court changing things without communicating with those who are involved.
What if there are two clerks in two different courts? They will have different administrative reasons for wanting to continue their work load or their judge's burden from day to day. The judge might be due to chair a meeting of the Parole Board on a Wednesday, for example, so that the trial cannot start then. A person would not know about that and might not be told about it. One of my fears relates to the fact that there does not seem to be any accountability on the clerk's part in respect of giving reasons, explaining why things are happening or, indeed, being required to take submissions from counsel.
It seems to me that what has been said is clearly the case. If there is to be a fixed diet system, the presumption is that any allocation or appointing of a day for the holding of a trial diet should be in accordance with subsection (3) of new section 83A. That should be the general rule. It may be a matter of emphasis as much as anything else, because it is not unreasonable to have some sort of exception to that general rule—whether that is under the control of the judge or of the clerk of justiciary raises separate issues, about which Mr Ogg has spoken eloquently. If there is to be a culture change towards fixed diets and the preservation, if at all possible, of those diets, the emphasis of new section 83A is wrong: it should start, as it were, with subsection (3) and then outline some sort of exception.
That is helpful. We have had evidence from the court administration unit about how it sees the process working. Has it had discussions with the Faculty of Advocates on the matter?
Yes, there have been discussions—on at least three occasions when I have been present—between the faculty and members of the justiciary office or, in one case, a member of the justiciary office who was seconded to the Scottish Executive. As far as the faculty is concerned, there have been such discussions and there is no dispute in principle between the faculty and those with whom we have spoken. We have not had detailed discussions on the particular provision.
We received evidence from Norman Dowie, who mentioned the building of software for electronic diaries, and integration of that information. I know that there are electronic diaries, but he envisioned a more sophisticated measure. Would not that assist in solving some of the problems that you have identified in relation to not knowing where people are and when they are in different courts?
Yes. Mr Dowie is one of the people with whom we have had discussions. That is the sort of procedural change and development that we would support.
I would see that coming in particularly at the last preliminary diet stage, at which the trial diet is fixed. Such electronic media would be useful. I am a great fan of Norman Dowie; he is a splendid modern-minded and foresightful civil servant. I wish that I had his confidence in the Faculty of Advocates's ability to manipulate electronic information.
I am glad that it was you who said that.
Arguably, the extension of the 110-day rule is one of the most controversial proposals in the bill. I do not see anything in your submission that suggests that the Faculty of Advocates is against the proposal in principle, although in your evidence today you suggest that human nature is such that, if the time limit is extended, people will work to the new time limit. Are you opposed in principle to the extension?
No, I am not. My view is that 110 is a number and 140 is another number. A difference of 30 days is significant for a person in jail awaiting trial, but the gains that the change will bring will make it worth while. I think that the dean of the faculty said the same thing in his article in "Holyrood" magazine. There is no magic about the number.
Lord Bonomy suggested that a preliminary diet should take place within nine months of the first appearance on petition of the accused. However, the bill proposes that the time limit should be 11 months, but that the trial should be commenced within 12 months, so there might be only a month's difference. Do you prefer the proposals in the bill to those of Lord Bonomy?
I think that it was I who recommended to Lord Bonomy that the time limit should be nine months.
My question was not in any way planted.
I certainly took Norman Dowie aside and bent his ear at great length about the matter.
I suspect that a time limit of nine months, rather than 11 months, would be more likely to bring about that culture change, because it would clearly indicate to the Crown that, in a case in which the accused is on bail, it must act more quickly than it has done in the past. That is a useful signal, even if there is a rational mechanistic argument for 11 months being sufficient. Although the Faculty of Advocates has not made representations on that, I would support the nine-month limit for that reason alone—it gives a signal to the Crown.
The bill proposes changes to section 196 of the Criminal Procedure (Scotland) Act 1995 in relation to the sentence following a guilty plea. Will you outline to the committee your experience of the way in which the existing provisions have operated? For example, does the existence of a discount create an incentive to accused persons to plead guilty at an early stage?
Yes, I think it does, if they trust the fact that they will get a discount. Let us talk practice and theory. Let us say that I am a judge and I have before me a case of a guy who I think ought to be in jail for eight years because of the crime that he has committed. Although he has pled guilty two weeks before the trial diet, I still think that the guy should get eight years, so I say that he ought to have got 10 years, but I will give him a two-year discount for pleading two weeks in advance of the trial diet, so he ends up serving eight years. I do not think that people who take a judicial oath of office approach their job in that way, but I know how human nature can work subconsciously. You might find the headline sentence drifting ever so subtly upwards; something that would normally attract an eight-year sentence would attract a 10-year sentence. The discount for an early plea is two years so the sentence would be eight years.
Do you think that discounts create improper pressure on accused persons to plead guilty?
That would vary from case to case. Most of the people whom we represent have very low IQs and are extremely dependent on their professional advisers. They might feel guilty about something and they might have done something wrong morally or legally, but they might not have done what they are accused of doing, or they might not have done it to the extent that they are accused of doing it. I can envisage situations in which we would see that it was highly advantageous to a particular accused person to plead early, because he will get the discount and there might be many mitigating factors anyway, which would mean that the headline sentence would be quite low. With the discount, he would serve quite a short period in custody. That person might say, "I did not do this, but everyone seems to be pointing me in that direction." We talk about vulnerable witnesses; there are vulnerable accused persons out there, too. That will have to be considered as part of the culture change.
You have already partly answered this question, but what would happen if there were no discount for pleading guilty? Would it just go back to the headline sentence?
Yes, but I should say that I like very much the bill's emphasis that even on the day of the trial, a guilty plea can be rewarded, if you like, by a discount, because it can save vulnerable witnesses and other witnesses from the inconvenience of having to give evidence. Otherwise, a trial might be lengthy. There may be witnesses who have not turned up on day one and who are at the end of a phone call for the second week. They can be contacted. There could be a tremendous saving to the state and to the witnesses.
The Executive proposes to implement section 13(1) of the Crime and Punishment (Scotland) Act 1997, to extend the sentencing power of sheriffs in solemn proceedings. We have heard evidence that a number of people have concerns about that in terms of inconsistency of sentencing, sentencing drift and so on. Do you have a view on the general question of extending the sentencing power of sheriff courts? Do you also have a view on the types of cases that should be marked for trial in sheriff courts rather than in the High Court?
I have a personal view on that, but I cannot claim that it is part of the Faculty of Advocates criminal bar association's submission. However, I would guess that the view of most of my fellow members is similar to mine. Andrew Hardie—now Lord Hardie—became Lord Advocate after the Government changed in 1997 and Labour took power. During his tenure as Lord Advocate he had the opportunity to implement section 13(1) of the 1997 act, which amended the Criminal Procedure (Scotland) Act 1995, but he did not take that opportunity. I understand that he did not do so because he did not believe that it was appropriate to do so. Clearly, there was a view in the Executive at that time that it was unnecessary to implement section 13(1).
From the faculty's point of view, that seems to raise two implications, one of which is not necessarily in whole-hearted agreement with what Mr Ogg said. The distinction between the High Court of Justiciary and the sheriff court ought to depend on the types of crimes that are being charged. Unless we move to a single-court system, which is implied by what Mr Ogg just said and, indeed, such as exists in the Crown court system in England and Wales, the more serious crimes ought to come before the High Court of Justiciary and the less serious crimes ought to be tried on indictment before the sheriff. We have that distinction at the moment because murder, treason and rape trials must come before the High Court. Whether we expand or alter that list is a separate issue.
We are awaiting the McInnes report on sheriff courts. It has been suggested that the types of case that might be transferred to the High Court would be assaults, robberies and medium-sized drugs cases. You are suggesting that we consider that proposal when we are examining the sheriff court in the round rather than do it piecemeal at the moment, even though the impact will be a transfer of 20 per cent of business from the sheriff court to the High Court.
That is a sheriff court issue rather than a High Court issue. You are right to refer to the McInnes report and the points that Mr Ogg has made about how sheriffs were appointed and whether they were judged to be appropriate judges. Those are all sheriff court issues, so it would be appropriate to consider an increase in sentencing powers when we examine the sheriff court in the round, rather than at the same time as the implementation of Lord Bonomy's reforms.
Before we go any further, I should say that we must finish at a quarter to 12 and we have still to discuss two very important issues. Members should bear that in mind; brevity would be appreciated.
Earlier you gave the example of inexperienced counsel dealing with cases that have been transferred. Will lack of experience cause people to decline taking on such cases because they have come from the High Court? If it will, how widespread would that reluctance be?
Lawyers', particularly young lawyers'—I am thinking of when I was a young lawyer—reach often exceeds their grasp. Most would think that they could do the job: only when we see that they are unable to do it and we see the impact that that has on a client do we see how disastrous that is. I am all in favour of young and newly qualified counsel and solicitors doing trials, but it is ridiculous that they should do trials that, until now, could have been conducted only by experienced counsel because of the consequences for the accused.
I will ask about legal aid, which is available currently when cases are heard in the High Court but which would, under the bill, be heard in the sheriff court. If those cases are transferred to the sheriff court, legal aid will not automatically be available for counsel to represent the accused. Should that be changed? If the cases are transferred, should there be an automatic entitlement to legal aid just as if the case had gone ahead in the High Court?
I would expect there to be such a change, because the circumstances will have changed. When I first started, the sheriff court's maximum sentencing power was two years on indictment. It is easy to understand why the Scottish Legal Aid Board in those days said, "If you want counsel, apply for sanction to authorise counsel." The sheriff court's maximum sentencing power then went up to three years and will now go up to five years, so if the state's view is that people who face charges that attract such sentences deserve the services of counsel, SLAB would simply reallocate the funds to allow counsel in the sheriff court. It would depend on the seriousness of the charge; it is as simple as that. I expect a culture change in the Scottish Legal Aid Board in relation to applications for sanction for counsel. I would not expect the board to change its decisions about refusing counsel in straightforward indictment cases, but if a case would otherwise have been a High Court case, SLAB might decide to grant sanction for counsel more freely than it has otherwise done.
Should sanction for counsel be granted automatically, rather than through application?
Yes—there should be a level playing field. We in the Faculty of Advocates have always moaned about the fact that solicitor advocates were given rights of audience in the High Court—why not, if they are qualified?—but we were not given automatic rights of audience in what we might call their courts, although our people must also learn in the lower courts. I have represented in the sheriff court teachers and social workers who have faced what are regarded as quite slight charges of sexual abuse—for example, touching a child—which are devastating to them, their families, their employment and their careers, and of course it is appropriate for counsel to represent people in those circumstances.
Lord Bonomy says in his report that counsel are sometimes "caught by clashing commitments" because they attempt to fill their diaries because legal aid payments are higher when they are in court. Does that need to change? Should the legal aid rates, which have not changed in the past 10 years, change in order to avoid that problem? If the rates were changed, would that of itself have an effect on current delays in the High Court?
The Faculty of Advocates criminal bar association's submission points out that the culture shift will require management by counsel, which will take place outside court. At the moment, the legal aid structure is geared towards paying us for up time—in other words, we get paid for when we are standing on our feet in court—but we are not paid for anything during down time; for example, preparation is not an item for which we can charge under the table of fees. That will have to change, and I expect SLAB to take that view.
I endorse that. It is vital that the legal aid regulations be altered to take account of proper remuneration for the preliminary hearing and for necessary preparation. The system will fail if that is not done. We have had discussions with the Scottish Executive about that and we are having discussions with the Scottish Legal Aid Board, although a meeting has not yet taken place. I understand that the need to take that into account is acknowledged. It is also a factor in the question that mentioned that legal aid rates have not risen for 10 years. That is a critical factor that has led to difficulties whereby counsel find themselves overcommitted through the reasonable expectation that they ought to earn a living. That is compounded by the present culture of adjournments because counsel cannot simply assume that a trial will take place on the day that they expect it to. They might have to pass the trial away or it might not take place at all.
The committee has heard conflicting views, to say the least, from various witnesses on the subject of trial in the absence of the accused. Your written submission is robust on the proposal. You make the point that absconding is rare and that trial in the absence of the accused would be
If, for example, someone attends a trial that has been going on for a number of days, and then simply absconds and takes the train to London because the trial seems to be going the wrong way, or because a witness who they did not expect to speak up has spoken up, or because evidence has been given to the defence witnesses, and the trial is at the stage when all we are waiting for is the Crown's speech and the defence speech—in other words, if the accused disrupts the trial by clearing off, having first turned up and participated in it—I would see that as falling into the class of misbehaviour. The accused has disrupted that trial as much as he would have done if he had stood up in the court and shouted his head off so that the trial could not take place. He has participated in the process, he has instructed counsel and his agents, he has taken it so far until he did not like it and then he has cleared off out of it. That is an act of will as much as standing up and shouting one's head off is an act of will. I would make a concession that that would fall under misbehaviour. The accused has breached his bail and he has abused the trust of the court, given that the court has said that it will not revoke his bail in the course of the trial to allow him to go home at night and so on.
You say that such a trial would be wrong in principle and incompatible with human rights. However, we have heard from some witnesses that they do not believe that it would be incompatible with the European convention on human rights. How do you feel about that view?
My view is that the European Court of Human Rights has tholed it in the past because of the investigative system of the continental courts where the question has arisen. Most of the trial evidence would already be in the possession of the judge at the judge's instruction—that is why it is called the juge d'instruction in Belgium and France. Estonia, one of the emerging nations that will join the European Union, has the same system. The European Court of Human Rights has looked at the continental system and weighed the question of fairness to the accused in those circumstances.
You are saying that the proposal is wrong in principle and would be unjust in practice.
The proposal is unethical. As a lawyer, I would not be prepared to be appointed by a court to defend an absent client.
My last question would have been about that.
I would decline that appointment. I would not lend the system credence by representing an absent accused. I would not know what questions to ask or why to ask them. Asking a rape victim whether they had consented when the client was not present to say that consent had been given would be outrageous.
Indeed—outrageous.
We will stop the questions there. The faculty's position on trial in the absence of the accused is clear.
That is my most strongly held view.
We appreciate the clarity. On behalf of the committee, I thank both witnesses for attending. The session has been excellent for us. You have given us valuable points that we will take on board while we take evidence and in our report.
In their submissions, Rape Crisis Scotland, Victim Support Scotland and Scottish Women's Aid support the objective of introducing greater certainty into the timetabling of trials. All three organisations refer to the importance of reducing delays because of their impact on vulnerable witnesses. However, do the measures to improve certainty, such as preliminary hearings, risk adding to the delays, perhaps even to the extent of requiring an extension of the 140-day rule? Will that have more of an impact and increase stress and distress?
To us, the provisions in the bill to move away from the sitting system are significant. That can only be a positive development, because the current level of delays in rape trials is unacceptable. We have a worker who is supporting a woman who is on her 22nd court date. Given the distress that such delays cause, consideration of a bill to increase certainty and address that problem is urgent. We hope that fixed trial dates will improve the situation rather than make it worse, as you suggest.
We have heard evidence this morning that, as the bill stands, there could be two ways of looking at the fixed trial date, plus a more flexible approach.
The Scottish Executive has assured us that sexual offence trials will always be allocated a fixed trial date. The bill does not specify that, but that is the intention.
Do you have a view on the 140-day rule, which will extend the time that witnesses, the accused and the victim will have to wait to have their evidence heard and to hear the outcome?
Rape Crisis does not have a view on that rule. In the huge majority of cases that we work with, the accused is always released on bail, so the change will not have much impact.
There are a number of potentially conflicting priorities at play and the bill is a good attempt to address that situation. For us, the most important point is to achieve greater certainty about when trials will proceed. Committee members may be aware that last year in the High Court in Glasgow only 44 per cent of trials proceeded at the time that they were listed to do so; the remaining 56 per cent were adjourned, often on numerous occasions. Sandy Brindley referred to a case with which she was involved in which the trial had been adjourned 22 times. We know of a similar case, in which the trial has been adjourned 23 times, with five changes of venue thrown into the equation. Witnesses are prepared to pay the price of the extension of the time limits and of having to wait slightly longer if that will result in greater certainty that trials will proceed on the date that is listed.
One view is that by making the change we are throwing in the towel, and that we should consider other proposals before we extend the 110-day limit. You say that if the extension works, that will be great, but what do you think about the proviso that we should consider other alternatives first?
If it were realistic to make the system work better with the existing time limits, we would clearly not be uncomfortable with doing so because it is in the interests of victims and witnesses that trials proceed as timeously as possible. However, victims and witnesses expect the parties to be prepared properly and it is important that the time limits allow for that. I understand that allowing time for proper preparation is a critical factor in many decisions to adjourn cases in the High Court.
Many of the written submissions that we have received support the move away from sittings to fixed trial dates. That is understandable, but we have heard that the change will not apply in all cases. Should some types of case always be fixed-date cases? If so, which ones?
Rape Crisis's view is that every sexual offence case should have a fixed trial date because the prospect of giving evidence in a sexual offence trial can be emotionally distressing. The more certainty that we give to women and men who are victims in sexual offence cases, the more we will lessen the distress that is caused by the prospect of waiting to give evidence.
You hope that all sexual offence cases will have fixed trial dates, but as far as I understand the bill, nothing in it states that that will happen. Why do you think that that will be the case?
You are right that the bill does not state that. Unfortunately, in our experience, when bills that have had positive intentions in relation to sexual offence cases have been implemented, those intentions have not always been carried through as well as we hoped. We take a cautious approach; we think that it is always better to state such intentions in the bill in order to provide a legislative basis for them.
But the intention is not stated in the bill.
No.
The preliminary hearing is critical. We argue strongly that cases in which a victim or witness is identified as vulnerable in the context of the Vulnerable Witnesses (Scotland) Bill, which is currently before Parliament, should take precedence and have a fixed trial date. We were given an assurance that that would be considered with regard to how the bill would operate in practice.
You have said that all sexual offence cases should be given a fixed trial date, as should all cases in which there is a vulnerable witness. I can think of a number of other cases in which people would have an equally valid claim for their case having a fixed trial date. The family of a murder victim might have such a claim, for example, and there could be a range of cases in which people would say, "We should have that right. Our case should take precedence." Because somebody has committed an offence against somebody else, people want the case to come to court and they want certainty for their own cases, but it is not possible for all the competing cases to get the certainty of a fixed trial date. Something somewhere has to give. Surely there is a problem with saying that certain cases should get a fixed trial date over other cases.
I must be careful not to stray into matters that it is beyond my professional competence to comment on, but you may be right. The bill attempts to move forward in a range of areas. If it is possible to achieve greater certainty for a wider range of areas than is currently possible—at present, there is almost no certainty for any cases—we would very much welcome that. The system is complicated and there are many conflicting demands and priorities that have to be taken into account in scheduling trial business. However, our view is that the bill's proposals probably represent the best possible way forward, given all the potentially conflicting demands and issues that people face in the trial-scheduling process.
Do you accept that, if we are to have more certainty across a broad range of cases, we cannot say that certain cases must have fixed trial dates, or do you disagree with that?
I disagree with that in principle. There is overwhelming documentation that demonstrates how difficult a sexual offence trial is for the complainer involved. Given what we know about the difficulties of giving evidence in such a trial, there is merit in prioritising certainty and fixed trial dates for those cases. Not being a lawyer, I do not feel able to comment on detailed procedural aspects. I am not the best person to say how that aim should be achieved but, as a matter of principle, we must recognise the distress that is caused in such cases and give as much certainty as possible to those who are involved in them.
The written submissions refer to the possibility of prioritising or fast-tracking cases involving children or other vulnerable witnesses. Could the witnesses expand on how that might be achieved?
The witness service has a high level of contact with children. In the previous financial year, we had contact with 4,500 children. In the first six months of this financial year, we have had contact with around 2,500 children. In relation to safety and intimidation issues, we have supported people on more than 800 occasions—that is about 2.5 per cent of people who are involved in trials. Of those 800 people, 115 were children. If we are to fast-track cases and give them a specific date, children should be given major consideration. I know that the Scottish Court Service has considered fast-tracking, but I am not qualified to comment on how that can be done. That is a piece of project management between the prosecutor and the courts system, but I think that it should take precedence over everything else.
A commitment to early trial dates for cases involving children or vulnerable witnesses will be meaningless if the preliminary hearing happens only towards the deadline, which is 11 months. If the preliminary hearing goes right up to the wire like that, it is much too late, and there is no point in even considering early trial dates. The Crown Office and Procurator Fiscal Service needs to identify early on its wish to prioritise cases involving sexual offences or children. There would need to be a much earlier preliminary hearing to make that meaningful. We would applaud the commitment to consider having early trial dates, which could have a big impact in lessening distress. The proposals must be meaningful, however. The proposed legislation allows for having an early trial date, but it will be very much up to the Crown Office whether the proposals work in practice.
Rape Crisis Scotland's submission raises the potential advantages of an early preliminary hearing; in that regard, it identifies special measures for vulnerable witnesses. I take on board your point about the preliminary hearing having to be early.
Our preference would have been for Lord Bonomy's original recommendation of nine months. The earlier that the preliminary hearing takes place, the more certainty there can be for the witnesses, particularly in relation to special measures. You would need to take guidance on whether the nine-month deadline would be feasible for the preparation of cases, but that period would have been our preference.
Unless I have read it wrongly, your submission seems to assume that there should be only one preliminary hearing. Is that your view? Are you aware that some of the evidence that we have received suggests that there could be several preliminary hearings?
I was not aware that there could be a number of hearings.
If people who come before the judge are not ready to proceed, the judge has the right to tell them to go away, work on it and come back later. It is quite likely that there will be not just one preliminary hearing.
The overall aim must be to try to keep the schedule as tight as possible, to increase the amount of certainty for the witnesses.
Would your main point on this subject be that the special measures that vulnerable witnesses might obtain should be identified at the first preliminary hearing, so that a witness would know as far in advance as possible what was going to be done for them?
We would like special measures to be identified as soon as possible. That would strengthen the provisions of the Vulnerable Witnesses (Scotland) Bill. We do not think that the way in which that bill is set out provides the best way of achieving improvements for women who are involved in sexual offence cases. To improve certainty, there should be automatic entitlement to special measures. The bill as introduced increases the certainty that women could be waiting for up to 11 months to find out whether they have a right to any special measures, never mind which ones.
It has been suggested that it would be helpful to have early disclosure of police witness reports to the defence. Do you have a view on that and on the possible impact on witnesses?
I have limited experience on that issue. Our interest in the changes to the disclosure regime concerns solely whether it would make a positive difference for victims and witnesses.
It has been put to the committee that there are concerns about the quality of the witness statements that are taken by the police. If any scheme were to use witness statements instead of precognitions, the statements would have to be of sufficient quality to allow the defence to use them rather than having to precognosce witnesses. In that regard, would you like more to be done in relation to improving the quality of police witness statements?
It is many years since I worked in England and Wales, so my position might be completely out of date. I offer it in the hope that it is not.
In your written statement, you expressed concern about bail provisions. The bill would make it possible for a person who has been refused bail to apply to the court for admission to bail subject to remote monitoring or tagging. What are your views on that proposal?
Our views are set out in our written submission. Since the advent of the ECHR, which means that all crimes are now, technically, bailable, we have anecdotal evidence that more people who are charged with serious offences are being granted bail. In itself, that is not a matter that gives us concern. What concerns us is that more people than previously have reported to us incidents of intimidation and harassment that might not have taken place had the accused person been on remand. There are a lot of conditionals in what I am saying, but I make no apology for that as our analysis is not scientific or empirical but is based on what our practitioners on the ground are telling us.
In your written submission, you refer to the complexities surrounding the encouragement of early guilty pleas. Could you say more about that from the victim's perspective? How would they feel about early guilty pleas?
Three issues are probably involved. The first is that not all victims and witnesses welcome having to give evidence in court. Again, that statement is conditional, in that some people want the opportunity to stand up in front of a court and give an account of what happened and the way in which that may or may not have affected them.
Although some people prefer the person to plead guilty early on, so that they do not need to go to court, others prefer to have their day in court, as it often called. Is it right in principle that people should have their sentence discounted at all, just because they happen to plead guilty? Given that they committed the offence, is it right in principle that the victim of a crime should see the person get a reduced sentence just because they plead guilty?
There is probably a difference between my personal and professional opinions and between my opinions and what certain victims might say. It is difficult to express a conclusive view about what victims feel about that. I understand the complexities around the issue and the fact that there is a danger that sentence discounting could be seen as a managerialist intervention in the dispensing of criminal justice.
Would that concern be affected by the fact that judges will have to explain the reasons for the discounts that they give?
That is an important development. We welcome it, and I am sure that the public would, too.
A similar point, which might help us to understand the issue, is that confusion is caused when pleas are accepted under deletion of certain offences. Victims and witnesses do not understand why those pleas result in lesser sentences. They have difficulty in accepting how the sentence relates to the crime. Those pleas cause distress to victims, witnesses and their families.
That was exactly the point that I was going to make. The women with whom we work who have reported a rape to the police find it very distressing and hard to understand when a plea bargain is made in which the accused pleads guilty to a lesser charge. There are examples of cases in which the accused pleads guilty to a lesser charge that does not involve a sexual element. That raises big issues of public safety. A slightly patronising element is also involved when decisions are made to go for a plea bargain or for a charge that is based on the woman in a rape case being saved from having to go through a trial, if the woman is not consulted about those decisions. Before making the assumption that women would prefer to be saved from the ordeal of going through a trial—many women might prefer to go through a trial—we should at least have the courtesy of asking the victim before agreeing to a lesser charge with a far smaller sentence.
Many changes to the criminal justice system are being proposed, including the idea of victim statements. Is a straightforward problem with early guilty pleas that they do not merge well with victim statements? If somebody gives a victim statement, the judge is supposed to take that into account. At the same time, if the accused pleads guilty early, the judge is also supposed to take that into account. Are those two things pulling in opposite directions? Given the people that you deal with, how do you feel about that?
I suppose that there is the potential for those things to pull in opposite directions. The question would probably be better directed at a member of the judiciary by asking them how they would reconcile the two things.
One thing that concerns me about the discount arrangement is that, if the discount is greater than the Crown would have liked, the Crown might take the case to the appeal court, which would increase or extend the difficulties for the family. The defence always has the option of taking the case to the appeal court. By creating a situation in which the Crown might also do so, those difficulties might be enhanced and we might find that there are more appeal cases. Obviously, that would have an impact on families and victims.
That completes our questions. I thank the witnesses for their evidence, especially the evidence on the connection between the bill and the special measures for vulnerable witnesses. We will certainly take that point on board very seriously. Your comments on the discounting of sentences for early guilty pleas will be useful for our report. I thank all three of you for your evidence this morning.
As far as I can see, SACRO generally welcomes most of the bill's provisions in so far as they contribute to the reduction of delay and the promotion of efficiency in the system. What aspects of the bill are particularly useful in that respect?
We have generally focused on the areas about which we have some concern but, overall, the major thrust of the bill is clearly to reduce delays and inefficiencies. As an organisation that works with people who are both victims and offenders, we think that anything that will help to remove the inefficiencies and delays that are currently experienced is bound to be welcome. We are not an organisation whose daily business is within the courts in the same way as that of solicitors and advocates, so we have chosen not to make representations on those areas.
My question is about time limits. The proposal to change the custody time limits might result in people spending longer in jail. Do you have a view on that?
Are you referring to the extension of the 110-day rule?
Yes.
We are concerned that people would be in custody for longer, especially in the context that the proportion of prisoners who are on remand has increased substantially during the past year—we do not want that proportion to increase further. I refer back to the evidence that was given by the witnesses from the Scottish Human Rights Centre. I agree with everything that they said and with everything that Derek Ogg said this morning.
That is helpful. Thank you.
SACRO appears to give guarded support to the proposal in section 14 that relates to bail and remote monitoring of compliance with bail conditions. Will you say a little more about your concerns about that?
As you rightly point out, we are not opponents of electronic monitoring. If remote monitoring is targeted properly, it can contribute to public safety and reduce the remand population, and we welcome it on those grounds. Our concerns are about the possibility that it might be seen as a panacea and that more qualities might be attributed to it than it can deliver.
You have helpfully explained what is involved in bail supervision. However, you said that you work in only some areas of Scotland. Why is bail supervision not available throughout Scotland?
In theory, the Scottish Executive Justice Department is very supportive of the local authorities that fund bail services and is in favour of bail services in principle. However, as far as we can establish, the funding in most areas allows local authorities to deliver only very limited bail services. For example, they might deliver some degree of bail assessment or a bail information service as a supplement to their court social work service. One imagines that the fact that bail supervision is not without cost might make the Executive slightly more reluctant to follow our recommendations and wishes.
I endorse those comments. As Donald Dickie has said, our organisation is not opposed to electronic tagging per se where it is a direct alternative to custody or remand. However, the Scottish Executive bill team has told us that it will consider introducing our proposal to allow tagging only in tandem with supervision in one of its proposed pilots. We hope that that will happen in an area with a well-established bail supervision service. That said, as Donald has pointed out, if our proposal were to be accepted there would have to be a significant increase in the provision of bail supervision across the country. Indeed, there would also have to be an increase in the information available to sheriffs about the availability of bail supervision in their area and about the aims, objectives and effectiveness of such supervision in order to give them confidence in using it in tandem with electronic tagging.
On a point of clarification, do people who are sentenced to electronic monitoring also receive supervision?
Not necessarily. At present, some people receive supervision while others do not. People are usually sentenced to electronic monitoring under the terms of restriction of liberty orders, which can be imposed on their own or in conjunction with probation or other community service orders. Based on all the research evidence that we have identified, we feel that it is better to carry out electronic monitoring in tandem with support mechanisms.
So there is a general concern about restriction of liberty orders.
Yes. If electronic monitoring or whatever is simply planted in an offender's home without proper consultation or assessment of family circumstances, there is a risk that it might make some circumstances more difficult, exacerbate matters and lead people into further offending.
But the figures show that the pilots have been highly successful and that there has been a high level of compliance.
There is a reasonably high success rate of compliance, but so far the take-up in Scotland is small. I think you will find that, statistically, the figures are not all that significant. This may not be strictly relevant to the bail issue, but the intention is partly for restriction of liberty orders to be an additional weapon in the armoury of sentencers and sheriffs. There is no evidence that such orders have made any impact as an alternative to custody; they are just another disposal in the increased number of disposals that are available to the court.
The bill proposes to amend section 196 of the Criminal Procedure (Scotland) Act 1995 with a view to encouraging early guilty pleas. Do you agree that it is proper to do that?
We have not given that a huge amount of consideration, to be honest. As I said, we are not engaged on a day-to-day basis with the workings of the court. We have heard from today's discussion that a balancing act is required. As an organisation that helps social work services to provide the disposals and sentences of the court—enhancing probation and so on by providing programmes—we know that it is proper for the sentencer to take a whole lot of different issues into account when considering the sentence.
With all the caveats about that being a personal view, if it is reasonable to allow discounting for early pleas of guilty, do you have a view on how small or large the discount should be?
As an organisation, we do not have a view. We have focused on the areas that are in our remit.
We are reluctant to be drawn into a discussion that we have not viewed as our business to think about or consider properly.
But obviously it will have an impact on everybody involved in the system.
Yes. Clearly, there is the potential in theory—as Mr Ogg would say—for sentence discounting to have an impact, in that people might serve shorter sentences, which would relieve prison overcrowding and reduce the increase in the prison population, which is created largely by people serving long sentences. That is the theory. However, I thoroughly agree with the comments made about the psychology of sentences. Sentencers are perfectly aware of all the different factors—the statutory discounting of sentences, the 50 per cent period and so on. I do not feel able to predict the outcome.
We ask that question because in their evidence to Lord Bonomy prisoners said that it was important to maintain the principle of discounting sentences. We thought that you might take a view.
I turn to the proposal to extend the sentencing powers of sheriff courts from three years to five years in solemn proceedings. Your submission contains clear concerns about that, and you believe
We think that that should be the case for reasons that are very similar to those that Mr Ogg expressed. Given that individuals' liberty is at risk for a lengthy period, they are entitled to the best hearings and the highest-quality representation in court that are available. The nature of the experience of the judges, the prosecution and the defence in the High Court means that it is inevitable that hearings in the High Court will be of a superior standard.
It was quite shocking to hear from Mr Ogg how a very raw recruit to the solicitors profession could represent someone who was liable to receive a five-year sentence. Such defendants must be represented by people who have adequate experience. The use of new recruits with little experience would not necessarily provide justice. Mr Ogg made that point eloquently this morning.
It is also important to pay attention to what the vice-dean of the Faculty of Advocates, Roy Martin, said. I took him to be saying that it was just as important to ensure that cases were heard in the appropriate court as it was to ensure that each of the courts had the right sentencing powers. We agree with that.
If such sentencing drift happens, a consequence that concerns us is a rise in the prison population and an increase in overcrowding. I understand that the proposed change is due to be implemented reasonably quickly—perhaps before the McInnes report is published—and we do not know whether there are implications that should be taken into account before any other measures are implemented.
It has been put to the committee that a proportion of the cases that go before the High Court, which would attract a sentence of about five years, are not particularly complex and could readily be dealt with through the sheriff court mechanism. One of my concerns, which emerged from the evidence that we received before Christmas, is that it appears that an individual who has been involved in a serious matter but whose case is not complex will not be automatically entitled to be represented by an advocate in the sheriff court, whereas if their case had gone to the High Court, they would have had such an automatic right. It appears that the Scottish Legal Aid Board will apply criteria—as yet unknown—to determine whether that individual should be entitled to have an advocate represent them in the sheriff court.
I am not clear how those points could be assured.
I echo that. Members will understand that it is difficult to imagine the final outcome and the consequences of proposed legislation. We could be some way down the road before we establish what the actual outcomes are.
I will give an example that relates to the concerns that you expressed over access to the correct level of legal representation. If the Scottish Legal Aid Board decides that people whose cases will be transferred to the sheriff court will automatically be entitled to the same legal aid provisions that they would have received had their case gone before the High Court, would that provide you with the assurance that you seek?
That would certainly go some way along the road, from the perspective of the offender.
If a body such as the Sheriffs Association states that it is confident that there will not be a sentencing drift in the way in which sheriffs handle cases, would you be assured?
That is a much more speculative proposal because the Sheriffs Association does not have responsibility for sentencing policy. As far as I am aware, sentencing policy is not produced explicitly; as members know, it is done by precedent and appeal and so on. It would be dangerous to work on the basis that an association of sheriffs can predict what individual sheriffs will do. The variation in sentencing throughout Scotland demonstrates that that would be a risky road to take.
Your submission states that Scottish Executive statistics "illustrate inconsistencies" in sentencing. Are those figures publicly available?
Yes. However, although the figures for summary cases are in a publication on sentencing profiles, those for solemn cases are not in published form.
For convenience, if you have those figures, will you send them to the committee?
Of course. If they are available to me, they must be public.
That would be helpful. That brings us to the end of our questions. I thank the witnesses for their evidence, which has been helpful, particularly the written evidence on the importance of bail supervision and on how restriction of liberty orders should operate.
The Procurators Fiscal Society appreciates the opportunity to comment on the bill.
In your professional experience, are police witness statements taken in a form that is appropriate for disclosure?
Obviously the quality of those statements varies. As I was coming through on the train this morning, I read with interest some of the evidence given by the Association of Chief Police Officers in Scotland and the Scottish Police Federation when it was disclosed—no pun intended—that statements can be taken in a variety of different circumstances. Statements can be taken at the time at the scene of a minor incident when the parties are sober or unaffected by drugs, or they can be taken much later. It might take hours to take a proper statement. For example, it might take the best part of a morning to obtain properly a statement from a rape victim.
There are statements that would not be suitable for disclosure. My colleague gave an example of a rape victim. If we get a police statement that gives a rape victim's address, for example, that would obviously not be suitable for disclosure in its present format.
What is your experience of the effectiveness of pre-trial diets in the sheriff court in solemn and summary proceedings? Do they make an effective contribution to the efficiency of the system?
Broadly, yes they do. However, they work when the sheriff takes a proactive role in managing business, particularly summary sheriff court business. If a proactive role is taken in a case—which might be huge—minds can be focused on whether the parties are ready and early pleas can be delivered. That is mirrored in what happens currently in first diet courts. If managed correctly, and if parties are co-operative and willing to take matters seriously and indicate their state of preparation or willingness to plead, pre-trial diets can work.
I share Val Bremner's view. Lord Bonomy emphasised in his report that there should be judicial management of cases, so that the judge does not just sit there as some kind of referee in the so-called adversarial procedure but reaches down—to use current jargon—and involves himself by asking whether, if witnesses' evidence is not in dispute, it can be agreed to avoid the witnesses having to come to give evidence. He could get the parties to focus on the issues that are in dispute. That process of separating the wheat from the chaff might leave the parties with a small issue to resolve in the course of a criminal trial. Some cases always look as though they are going to go to trial; in others there is room for a plea. An assault case with the defence of self-defence and a rape case with the defence of consent will probably go to trial, but drugs cases and assault cases with no special defences are, to coin a phrase, often ripe for a plea.
I turn to issues that came up this morning when we discussed preliminary hearings with witnesses from the Faculty of Advocates. It has been suggested that the Crown relies heavily on section 67 of the 1995 act in relation to the production of lists of witnesses. The impact of the bill will be to wipe away that provision so that all evidence has to be submitted seven days before the preliminary hearing. What impact will that have on your work?
That could have a substantial impact on our members' work. It is true that in a fairly high percentage of cases, the Crown relies on notices under section 67, but there is no complacency on the part of our members. Increasingly, we find that evidence such as forensic evidence comes in late in the day and as soon as we have it, we send it out. This goes back to the thinking behind the bill. There will have to be a culture change. All parties who provide us with evidence will have to consider where their priorities lie because, if we are going to have to produce the evidence sooner, we will have to get it sooner. A lot more work will have to be done at the front end of the process. Our members are willing to do that; it is a question of whether they have the resources and time to allow them to do it.
Would you go as far as to say that if you do not get the required resources, the measures will fail?
It is difficult for me to say exactly what resources will be required if the bill is passed. There is no doubt that with the advent of the preliminary diet, the managed meeting, the record of preparation and early disclosure, additional work will be required. It should not be forgotten that my colleague and I are aware that there is concern about the relaxation of the 110-day rule. That will not benefit our members, because the preparation for service of the indictment will still have to take place at largely the same time that it does now. There will be additional burdens in relation to pressure to disclose and prepare. Those are appropriate burdens and we have no difficulty with them, but we will need more time and legal support. The package that the COPFS has considered will take that into account. I do not know how the figures were worked up so I cannot comment on whether what is proposed is sufficient.
From what has been said on the time limits, you could have a shorter time scale in which to get in your evidence if the courts take the view that most or all of the evidence should be available seven days prior to the preliminary hearing. At the moment, however, you can rely on section 67 if evidence arrives late so, arguably, you will have a shorter time scale.
That is correct.
I ask you about the written record of the state of preparation of the parties. There is no detail in the bill as to the form that it should take. Do you think that we need more detail or can that be left for further work?
The preliminary diet in the High Court is modelled to a large extent on what is known as the intermediate diet in the summary procedure, where cases are a lot less serious. Areas of good practice in various sheriff courts around the country have been identified as the best way of dealing with such cases.
There are different views on whether a trial date needs to be fixed before or at the preliminary hearing. What is your view about that, given what you have just said?
I do not think that our members would have a particularly strong view. I was interested to hear Sandy Brindley this morning putting up a convincing case for rape cases to be among those that ought to be fast-tracked. However, we seem to be in an era in which so many cases have to be fast-tracked that it is difficult to put a case on what could be described as the slow track, or to send it by second-class post. There are cases that involve children and other vulnerable witnesses and there are cases that involve elderly people. Which is more urgent: a case that involves a 15-year-old or one that involves an 85-year-old? It might depend on the circumstances. There are race cases and cases that involve drugs. There are cases where there is a genuine threat to public safety. Those are all competing demands. The trick is to try to juggle them in the most acceptable way all round, bearing in mind the interests of the public, the accused, witnesses and the professionals who are involved in the system, because they all have a job to do.
Good afternoon. You have already touched on this but, for the avoidance of doubt, is it your position that the extension of the time limits might result in the work that has to be done within them being expanded or will the extension help you to achieve what is required of you?
There could be additional pressure on our members, but it would be because of the whole package of measures—early disclosure, the preparation for the preliminary diet and any additional work that is required for the managed meeting or the record of preparation.
If we turn that round, instead of extending the time limit, what if a greater emphasis were placed on resources being put in place to enable you to achieve the pre-trial disclosure that everyone agrees is a good thing? How do you feel about the suggestion that a Crown case manager should be appointed to take charge of a case from the very beginning, to avoid the use of section 67 notices? Such notices have been used in the past when, at the last minute, through no fault of their own, someone has been handed a case file and has realised that certain things have to be brought out. That may happen because of a lack of resources or just because of the way things work out.
In our experience, a section 67 notice is not usually served because evidence has just been found in our department or because evidence has not been thought of by a colleague; it is usually served because evidence has been received from the police—or from someone else such as a forensic scientist. I would be uncomfortable about accepting that what you suggest is the usual reason for a section 67 notice being served.
Are you saying that, in 100 per cent of cases, the same person follows the case throughout?
Before a case is reported for final instructions, the investigation of the case is usually—but not in every case—the responsibility of one individual. All sorts of things can change—there can be holidays and sick leave and cases sometimes have to be reallocated as people move on to other duties. However, generally, cases are allocated to one person. That person may not necessarily see the case right through to the trial; they will see it through its investigation stage, after which it may be handed over to the responsibility of a High Court legal manager.
Would there be an advantage in the same person seeing a case through and keeping on top of things? In what percentage of cases does responsibility change hands earlier on in the system? In other words, how often does one person really take control?
I will try to answer that. I will take the second part first and say, no, I cannot estimate the number because I just do not know. I do not know whether such figures are available.
Given the volume of cases with which the COPFS deals, would one of the best ways of making the system work better be the allocation of more procurators fiscal?
To be fair to the COPFS, a good deal of work has been done and continues to be done that focuses on case preparation, doubtless in preparation for the package of measures that the bill will introduce. The department is looking at the issue. The work is resource intensive because the cases are serious and must be investigated properly. We do not make the decisions in the department, but I am sure that the department has been well advised and is considering the measures that it needs to put in place to improve the delivery of the service to the public.
I want to press you a bit on your last point. Derek Ogg said that he has not seen any substantial changes or improvements as a result of the Pryce-Dyer package. Is that your view? Is the Pryce-Dyer package sufficient, or is more needed? This is your opportunity to hold forth.
If you are referring to improvements in the High Court, the running of the High Court is not just down to the COPFS or our members. From what we understand within the department, the Pryce-Dyer report initially focused on internal management changes and changes in how we deliver certain services. I understand that for some time the department has been focusing on solemn work, again with a view to the changes that the bill may bring about. Therefore, as a professional society, we can only wait to see what the result of that will be.
Fair enough.
Derek Ogg, like many others, was referring to being able to get a fiscal on the phone when it was necessary to speak to them. Whether that has been a good or a bad experience varies around the country. However, the availability of fiscals could be crucial to the management of early disclosure. That is what Derek Ogg was driving at. In that sense, it is relevant to ask you about the Pryce-Dyer report because it was meant to deliver more fiscals on the ground for people to talk to.
I turn to section 11 of the bill and the proposal for trial in the absence of the accused. We have already heard that some witnesses view the proposal as controversial and problematic. I have just two questions on the proposal. In your experience, could a trial be properly conducted if the accused never appeared before the trial court?
I am happy to try to answer that. We have not taken a straw poll of our members, but I am confident that the view of most fiscals would be that a trial in the accused's absence should be confined to minor, non-imprisonable offences. There is provision in existing legislation for such a trial for minor matters, such as speeding. It is not so terribly bad if someone gets their licence endorsed with three penalty points when they are not present in the court. However, being jailed for life in one's absence would be a different matter.
I do not want to stray too far into the surreal, but if such a trial were taking place, would it present any particular problem or set of problems for a prosecutor?
In fairness, I think that that would have less of an effect on the conduct of the prosecution case than it would on the defence. Clearly, we do not rely on the accused as part of our case; we might have their admissions to the police, but those could be read in their absence. Such trials, of course, depend on the identity of the accused not being at issue.
The bill makes new provision for the apprehension of witnesses. In your experience, is the non-appearance of witnesses a significant problem in proceedings on indictment?
Yes. I think that I am quite well qualified to give an answer, because although I am here in my capacity as the president of the Procurators Fiscal Society—I was described as the chair, which was very flattering—in my day job I am the procurator fiscal at Paisley. Before going to Paisley, I worked in Glasgow and in Edinburgh, where one of my responsibilities was to manage High Court sittings. It was something of a revelation to move to the Saltmarket in 1996, just before the new extension was built, when we were using the north and south court, Lanarkshire House—now the Corinthian, of course—the sheriff court and sundry other buildings.
We heard earlier—I think it was from Victim Support Scotland—that some witnesses are fearful of giving evidence and feel intimidated. However, you are saying that others are as well aware of what it feels like to be the accused as the accused themselves and might not want to incriminate a friend or associate. In what sorts of cases might you apply for a warrant for the apprehension of a witness? It has been suggested that we should refer to recalcitrant, rather than reluctant witnesses, as there is a big difference between a person who is reluctant to be a witness because they are fearful and one who is reluctant because, frankly, they do not want to shop a pal.
Yes, absolutely. As I raised that point, I am happy to pursue it. As Lord Bonomy said in his report, one has to be extremely selective about the steps that one takes to secure the attendance of witnesses.
The bill makes provision relating to sentencing following a guilty plea—we discussed that earlier. Is it your experience that, in general, courts allow a discount for a guilty plea? How is that currently working in practice?
That is happening in summary business in the sheriff court. It can work if the court is given the full information and the cases are managed properly from the bench. As a fiscal, care has to be taken that, in the case of an early plea the fiscal tells the court, for example, that witnesses have been cited but their time has been saved—they have not been required to attend. The earlier a plea, the better it is for the witnesses. On some occasions we can even have an early plea when we have not yet cited witnesses. We consider that to be helpful.
We have heard conflicting evidence about how helpful an early plea is. It has been said on the one hand that somebody who decides to plead guilty early in the process can save vulnerable witnesses, for example, from giving evidence. On the other hand, what does it say about justice if someone can get a reduced sentence because they have pled guilty to something, perhaps even if they have not done it? I presume that you are aware of the difference of views.
We would have to distinguish between cases such as the example that you have given, of a rape case, and the more ordinary run-of-the-mill summary business. In a rape case our members would not negotiate any form of plea—that would be a matter for the advocate depute. As I understand it, best practice would be that we would try to involve the victim if that is possible. However, there is of course no point in approaching the victim until you have the offer of a plea. It would be silly and irresponsible to perhaps raise the victim's hopes that they would not have to give evidence. We would not involve the victim until a plea was on offer. Although the victim's views are taken into account, it is a matter of clear practice that the final decision would be for the advocate depute.
When I started in the fiscal service, more years ago than I care to remember—more than 20 years ago—the views of the victim were not such a central feature of the process as they are now. For example, it would now be almost unheard of in a murder case for the prosecutor or advocate depute to decide to take a plea to culpable homicide without first having the common courtesy and decency to speak to the next of kin. As prosecutors, we would always stress the fact that the final decision as to what plea to accept lay with us, but you have to weigh up the pros and cons as to the distress that might be caused by people giving evidence.
Generally speaking, would you say that the victim or the victim's family should play a part in the process and at least have their views sought?
In the more serious cases, that is certainly a practice that is being encouraged. We cannot say that it has happened in every case, because we have heard, even today, of cases in which it has not happened, but that is the practice that is encouraged and should be adopted. It would not necessarily happen in the less serious summary cases. However, I think that we would both say that, in our experience, we have heard more witnesses than we can remember saying, "I'm so glad I don't have to give evidence." It is rare for someone to say, "Well, I wanted to go in there and say my piece."
In general, do you feel that the fact that judges will now have to say why they have come to a decision on a discount and what thought processes were involved in coming to the sentence is a positive step forward?
It is difficult for us to comment on that, because sentencing is really not a matter for us, unless something goes awry and a sentence is considered to be unduly lenient. However, everyone involved in the justice system would welcome transparency, and if that is a move towards transparency, it is welcome.
I would like to turn to the proposal to extend the sentencing powers of the sheriff courts in solemn proceedings from three years to five years. Could you outline the practical implications that you think that will have for prosecutors and for your members?
We discussed that before coming here. The figure that we have heard quoted is that perhaps around 20 per cent of the High Court's current business would come down to sheriff-and-jury level. The practical effect of that is that more of our members will be in court, prosecuting more cases; that is an inevitable consequence. The flip side of that is that, when they are in court doing those trials, they cannot then be preparing High Court cases. Again, it is a question of how best to use the resources that exist and of whether those resources are adequate. However, it is difficult for me to give an opinion as to whether they are adequate until we see, once the change goes ahead, how many cases come down and need to be prosecuted in that way.
Do you think that there could be serious resource implications if that is not managed properly?
There will probably be resource implications however it is managed. As Val Bremner says, there will be more sheriff-and-jury cases for fiscals to prosecute, because a proportion of those cases—let us say 20 per cent—would previously have been prosecuted in the High Court by advocate deputes.
If that change does go ahead and 20 per cent of the work of the High Court moves down to the sheriff court, is it just a case of waiting to see what the implications are, or should we be looking to ensure that certain resource provisions are made before change takes place? I am trying to get a feel for what can be done to ensure that problems are not encountered as a result of a lack of resources.
Obviously, it would be better if work could be done in advance. I believe that the Crown Office and Procurator Fiscal Service has already considered the matter, but I do not know the details. We are not privy to any view that the COPFS may have formed, but it has worked out the implications of the bill for its legal and administrative support costs. I hope that it has taken account of the expanded requirement for sheriff and jury deputes.
What cases would you expect to indict in the sheriff court rather than the High Court? Can you give us any practical examples?
The Crown Office would decide which cases would come down, but I would expect that drugs cases of lower value could come down and perhaps cases that now go to the High Court but that attract sentences of less than five years. Certain cases in which there have been robberies but in which no weapon has been used, or similar cases, could be considered. However, it is not for me to say what should happen; such decisions would be taken by those in the COPFS's High Court unit.
To be fair, previous committee witnesses have mentioned roughly the same kind of cases that Val Bremner does. John Ewing, who is the chief executive of the Scottish Court Service, was asked that question and he referred to drugs cases. Cases that involve assaults with weapons and stabbings in the street that might have been indicted as attempted murder, but in which the allegation of attempting to murder has been deleted and the case has been left as an attempt to endanger life, disfigure or impair could be considered. Cases involving death by dangerous driving under section 1 of the Road Traffic Act 1991 might also be considered. Such cases increasingly go to the High Court, as there is a public clamour for higher sentences for those who kill by dangerous driving, but such people do not always receive a sentence of more than five years—the sentence might simply be worth more than three years.
What do you think about the suggestion that there could be a sentencing drift if sheriffs' sentencing powers are extended?
We listened to SACRO's representation and, as solicitors who have practised in the sheriff court, perhaps we thought that something of a disservice was being done to solicitors and sheriffs. A number of highly qualified solicitors are well able to undertake the defence of persons who might hitherto have been dealt with in the High Court, but who could come to the sheriff court as a result of the powers that we are discussing. The same applies to sheriffs. There are many experienced sheriffs, some of whom are appointed as temporary judges to the High Court. It would be unfair to say that, because a case may now go to a sheriff court, there could be a problem with a sentence. It is not for us to comment on sentences, but we do not see any particular difficulties.
Finally, I would like to check one thing with you. I understand that the aim is to shift business to sheriff courts from April 2004. Has the Crown Office's management consulted you about that prospect?
No.
Are you aware of the implementation date?
No, I was not aware of the date.
Okay. I thank the witnesses for giving evidence. We have not received a written submission. Do you intend to forward one? I hope that you will, as it would be useful for us in considering the evidence.
We can certainly do so.
Thank you very much.
Meeting closed at 13:34.