Good morning and welcome to the 15th meeting in 2006 of the Justice 1 Committee. All committee members are present. I ask everyone to ensure that they have nothing on their person that will interfere with the sound; I am sure that the broadcasting staff would be grateful for that.
I am an adviser to the committee.
I am the chairman of the District Courts Association.
I am the member for Banff and Buchan and deputy convener of the committee.
I am the secretary of the District Courts Association and principal solicitor for district courts at North Lanarkshire Council.
I am the member of the Scottish Parliament for Linlithgow and a member of the committee.
I am a justice of the peace in East Lothian and chairman of the District Courts Association training committee.
I am a member of the committee and MSP for Central Scotland.
I am the manager at Dundee district court and chair of the DCA associates group.
I work for the Parliament's research service.
Good morning. I am part of the bill team.
I am also a member of the bill team.
Good morning. I am director of operations with the Scottish Court Service.
I am a justice of the peace in Midlothian and former chairman of the District Courts Association.
I am a member of the committee, MSP for Edinburgh South and a former justice of the peace who sat on the bench.
I am the secretary to the DCA training committee and a depute clerk of court in Aberdeenshire.
I am an MSP for the West of Scotland region, a member of the committee and a former JP who did not sit on the bench.
I am a justice of the peace and chairman of the District Courts Association communications committee.
I am an MSP for North East Scotland and a member of the committee.
Thank you. We will debate three aspects of the bill, starting with its impact on the role of the lay judiciary. After about half an hour, we will discuss the proposals for court unification. Finally, we will discuss the proposals for the appointment, training and appraisal of JPs. The aim of the discussion is to get as broad a range of evidence as we can. We have with us members of the bill team, who will be able to provide clarification.
We believe that the proposals in the bill will take us a step towards achieving some of the things that we would like to achieve, such as a more consistent way of appointing and training justices, so that what we do on the bench is satisfactory. Many of the proposed changes should help achieve to that.
I will ask about some of what Rodger Neilson said and what is in the submissions. Will you help us to understand whether a role for the defence could or should be sensibly introduced when the fiscal seeks to make an early decision or offer? Could the bill be amended to meet the association's concerns about fiscal compensation orders and fiscal fines? Interaction between the defence agent and the fiscal could be formalised to address those concerns. It might be interesting to hear whether that could be done.
The problem lies in the fact that the defence agent becomes involved only after being instructed by the person who is likely to receive the offer or to be prosecuted, who will not be aware of the procedure that the fiscal will follow until he has been contacted. He might not have sufficient funds to employ an agent, so funds would have to come from the Scottish Legal Aid Board. The legal aid system would have to be changed so that it was front loaded, to allow a solicitor to make investigations or to engage with a fiscal before any plea was made or decision was taken. The problem is that the accused might not find people who were willing to act on their behalf.
I suspected that that might be your answer. That leads to a slightly more difficult question. Is the implication that the fiscal should have no power to offer fiscal compensation orders or fiscal fines? The logic of the answer is that they should not have that power.
To some extent, Stewart Stevenson has hit the nail on the head. Our original objection to the fiscal having the power was that it would challenge the basis of our adversarial system. In cases at the lower end, the provision is not very unjust, but it becomes more unjust the more that it is used. Someone for whom appearing in court is, in itself, a huge issue will perhaps seek the easy alternative of paying the fine and getting it off his chest; I am always aware of that. At the other extreme, when even the fiscal considers the usefulness of fiscal fines to have petered out, the person appears in court as a first offender. In that situation we will have muddied the waters further and made it more difficult for those who seek to come up with the right answer, after due consideration, to deal with the person.
Do you oppose any use of fiscal fines or just the provisions in the bill?
We opposed fiscal fines when they were first introduced, because we felt that the fiscal was being asked to do something that put him in the position of being judge and jury. Some time has passed since then and many people say that there is a place for the fiscal fine. It is very convenient to be able to deal with someone who has strayed a little for the first time in his life without having to go to court. Members must remember that the facility also exists for someone to plead guilty by letter, which means that for the person who strays for the very first time the matter can be dealt with in court comfortably.
That is helpful. However, I point out that a fiscal fine does not currently result in a recorded previous conviction, whereas under the bill it would.
I acknowledge that to an extent. That is true.
You will be aware that the McInnes report highlighted the fact that minor cases were being shunted up to the sheriff court because of a lack of confidence in how the district courts and JPs—I speak as someone who sat on the bench as a JP for many years before I became an MSP—were handling minor cases. Was that justified? If there were problems, where did responsibility for them lie? What improvements could be made?
You mentioned the confidence of fiscals in the district courts. I do not know what fiscals are thinking when they sit in their offices around the country, but I know that in my area in the north-east there was a time when it was understood that the fiscal preferred to put cases to the district court than to the sheriff court because the district court was issuing sentences that he felt were more appropriate. I suspect that the story varies round the country.
Having listened to the discussion, I thought that it would be helpful to offer a few observations from the Executive's point of view, although some of the issues were discussed during the previous evidence session.
I will stop you there, because I want to be clear about this. For the first time, the bill introduces the concept that, during any subsequent court case, previous acceptance of a fiscal fine will be disclosed as if it were a previous conviction.
I can clarify that. The information would be brought before the court in the same schedule as a previous conviction. However, it would be made clear that it was an accepted fiscal fine. The judge would be well aware that acceptance of a fiscal fine does not equate to an admission of guilt. The purpose of the provision in the bill is to ensure that the sentencer in any subsequent case has as wide a picture—
Can the judge use that information to increase the sentence that they would otherwise have given?
The judge can use the information as part of all the information that is used in reaching the ultimate decision on a sentence.
So it is exactly the same as a previous conviction.
Yes—if there were to be subsequent criminal proceedings in respect of the person. However, if the person were asked whether they had any previous convictions, the answer would be no. It would not be classed as a criminal conviction for the purposes of disclosure, for example, or of the rehabilitation of offenders.
At the moment, the justice of the peace gets a sheet of paper listing convictions. In the future, will that sheet of paper contain a list in which number 1 is a conviction, number 2 is a conviction, number 3 is a fiscal fine, and number 4 is a fiscal fine, or will the two categories be separated?
I am not sure of the exact form in which the information will be provided. I imagine that all the information would be included on a single schedule, but that there would be clear differentiation of the fiscal fines to demonstrate that they were not previous instances in which a person had been found guilty of an offence.
I am not sure that I can see anything in the bill that addresses those issues.
The bill makes it clear that the conviction would be disclosable for a period of two years, but it does not go into the practical operation of the system.
Since the bill team is clearly referring to documents of which the committee is unaware, could it formally let the committee know what the intentions are in this regard? That will mean that we make decisions on the bill on a proper basis.
The issue was raised at the previous evidence-taking session that we attended and is covered in the subsequent letter that we sent to the committee. I refer Mr Stevenson to that letter. However, if the information in the letter is insufficient or if further clarification is required, we would be happy to assist in that regard.
We thank you for the rather extensive letter that you sent. It goes into matters in a great deal of detail and members might need some time to take in its contents.
I notice that the language is becoming almost interchangeable. You said that the conviction would be disclosable for two years. That was probably a slip-up on your part, because it is the fiscal fine that will be notifiable to the court. However, I think that that mistake gives an example of how the fiscal fines will be viewed by a court. I support fiscal fines but I am concerned that it seems that we are being told that, although a fiscal fine will not give someone a criminal record, it will give them a criminal history in relation to that matter being presented to court, if that happens within 24 months of the fiscal fine being made.
It is unlikely that someone would have a lengthy string of fiscal fines because, when considering how to deal with a case, the procurator fiscal should consider whether someone is a persistent offender.
I want to move away from this subject now.
On the issue of procurators fiscals' confidence, or lack of it, in the district courts, the picture across the country is patchy. The confidence of procurators fiscal depends on how well supported the bench is in individual courts. Many courts have designated trainers and clerks and a very well-supported bench. Statistics show that procurators fiscal continue to put relevant cases to such a court. I operate in Dundee, where I used to be a procurator fiscal depute and now manage the court, a position in which I have training responsibility for our bench. At a time when overall district court business is decreasing by 10 per cent, ours has increased by 25 per cent. That is as a result of communication between all the criminal justice partners in Dundee—the fiscals, the defence agents and the bench. Our bench has demonstrated that, with proper training, advice and support, the district courts can deal with cases at the more serious end of the scale. That has been borne out by statistics that were laid before the McInnes committee.
On the issue of the support that is offered to the bench, could you say a bit more about the role of the clerk to the court? We have heard concerns that their role will change when they become part of the Scottish Court Service. How can we manage the situation so that we still have people who are able to offer the support that makes the bench effective, given that we have two separate systems at the moment?
I am concerned that the bill's provisions on the training and support of JPs would represent a drop in standards for many of the benches across the country. For those benches that were hitherto poorly supported for a number of reasons, the bill will represent an increase in standards. At the moment, clerks have a training role that involves appraising justices, examining their performance and ensuring that they can deal with cases effectively when they are on the bench. We liaise with other criminal justice partners in our local areas to ensure that our training meets the needs of the cases that go before the court.
Listening to you, I would be reassured of the part that you are playing in that process. Having visited the West Lothian district court in Livingston, we have seen that it is also playing that part. However, there seems to be inconsistency around the country. How can we ensure that there is a baseline on which we can build and below which we do not let people fall?
That is a recruitment issue. To recruit the best clerks who can give the advice that the justices require, we need to recruit the best criminal lawyers. At the moment, the standard of pleadings in district courts is abominable. Defence agents and fiscals use district courts as a training ground but the standard of pleadings has dropped considerably. In Dundee, the standard has become so poor that the sheriffs have written to the defence agent and fiscals and offered them training. Increasingly, clerks have to rectify misleading submissions that are made by defence agents and new procurators fiscal. That is just a fact of life for us. If we do not have the right person as a clerk, or if we do not make the job attractive, the bench will not be supported and the district court will descend into the law of the jungle.
I support what has been said about the importance of the clerk of court in the training of justices. The DCA represents a combination of the professional and the amateur—the clerk and the JP. We work together and form a team. The justices would be in great difficulty without the high level of training and support that they get in many places.
If that experience could be replicated and confidence grew in district courts, could the power to impose community-based disposals be extended to those courts and to the new JP courts? Surely such a move would allow a better assessment to be made of disposals, lead to better outcomes and give the district and new JP courts more of a role. Your submission suggests that such cases could be dealt with appropriately by the JP court and that they would not have to go automatically to the fiscal for a work order to be imposed. Is there any appetite for giving those courts a greater role in that respect?
I will throw open the question whether more sentencing powers should have been given to the district court.
We have advocated for a long time that justices should be able to impose community-based orders because, in most cases, they are closer to the community. Of course, justices would have to be trained before any such measure was introduced, but I do not see any problem with JP courts handling those matters.
As far as drug treatment and testing orders are concerned, many courts already operate an informal system of deferring sentences to allow people to get locally available drug treatment. That said, the big problem is that such treatment is often not available immediately. However, justices can make those decisions because they are much closer to the community and have more local knowledge.
So you are in favour of extending the power to impose DTTOs to district and JP courts.
Very much so.
I wonder whether the bill team will comment on that.
There is already a power to attach drug treatment as a condition of probation, although I echo the points that have just been made on that matter.
As a board member of the Glasgow routes out of prostitution project, I have for some time been asking ministers whether DTTO provision can be extended. By and large, fiscals in Glasgow refer prostitutes to the sheriff court, presumably because DTTOs are available in the sheriff court—I do not think that the situation in Glasgow is any different from that elsewhere in the country. Although 90 per cent of prostitutes in Glasgow have a drug problem, there is no option of referring them to the district court, but they are an obvious group of women offenders who might benefit from having the local court deal with their offences. After all, statistics show that more women than men who are dealt with in the sheriff court are remanded in custody. I assume that those women are referred to the sheriff court because a range of disposals is not available in the local court.
We take the point. Part of the reason for that situation is that DTTOs have always been seen as quite a high-tariff disposal and are not normally used as an alternative to the maximum 60-day custodial sentence that district courts can impose.
Are there any further questions about extending sentencing powers to the district court?
I find it strange that DTTOs are considered a high-tariff disposal rather than an early intervention, in which context I would consider them to be of tremendous value in the court. Presumably, they are intended not as a penalty but to help the individual who is in court. We have heard that they are already happening informally. I realise that you do not set policy, but would an alternative point of view not be to consider DTTOs as early intervention and as a way of getting people when they are in front of the justices, before the problems escalate?
That is certainly an alternative point of view.
There is a debate about whether DTTOs should be an early intervention or a high-tariff disposal, but perhaps that is for another day. I presume that costs will come into it at some stage.
Noel Rehfisch mentioned the pilot for the supervised attendance orders. It should be clarified that the pilot that is on-going is of the use of a supervised attendance order as a mandatory alternative for not paying a fine. It is not a pilot of the imposition of a supervised attendance order as a sentence, which we would welcome. We would already have had to go through the process of fining someone. I made the revolutionary suggestion during the McInnes review that having specialised courts—even JP courts—in which every offence of a certain nature, such as road traffic or common-law offences, would be dealt with in one court on a certain day, would help to channel business. JPs could handle that kind of business, which would not just be of a general criminal nature. Many road traffic offenders feel that they are not really criminals and that they should not be mixing with them; although I do not agree with that view, specialised courts would streamline business.
Are you opposed to the use of supervised attendance orders when someone does not pay their fine?
I am opposed to that being made compulsory. The choice about whether to give the person time to pay their fine should be left to the court, but the pilot is along the lines of, "If you don't pay your fine and you are brought to means court, you will get a supervised attendance order."
I have concerns about this. I recently went to Glasgow district court and saw that the JP or magistrate was giving offenders the choice of a fine or 14 days in prison. The whole point of the pilot was to stop people going to prison for non-payment of fines. I have got a view about why the district courts are doing that—I have witnessed it. I support the Executive on this issue. We are trying to stop people from being jailed in the first instance for non-payment of fines. There is widespread support in the Parliament for that stance.
I am not opposed to it.
Given what I have witnessed, I am not convinced that if we leave district courts to their own devices, they will not jail people for non-payment of fines.
I cannot comment on the example that you gave, because I have not seen Glasgow district court in operation. However, mandatory supervised attendance orders are being piloted in Glasgow, so the court is supposed to impose such orders. In Motherwell, we have received transfers of supervised attendance orders from Glasgow, so we know that people have been dealt with in that way.
Would the District Courts Association prefer the imposition of a supervised attendance order to be a decision for the court rather than a statutory requirement?
Yes. As I said, we want supervised attendance orders to be a sentencing option in the first instance. We would prefer not to have to wait for a fine to be imposed—I think that that is the association's position.
During the pilot in Hamilton, there was frustration about the fact that the court had to wait until someone defaulted on a fine before it could impose a supervised attendance order. The SAO often represents a more meaningful and effective approach to the problem. I wanted to clarify that the DCA would welcome the option to impose an SAO as a first disposal, as an alternative to a fine.
The discussion has moved on, but we should reflect on the important points that were made, by Nicola Brown in particular, about the role of the legal assessor in the court setting. The Scottish Court Service greatly appreciates the value of that role. We are determined to ensure that in the unification process we build on the best models that are in operation and make the best use of the valuable skill base of legal assessors. We have instituted a number of steps to realise that objective, following meetings with representatives of the DCA. A model job description was issued to all legal assessors for comment and the intention is to hold a seminar for legal assessors in June to discuss their role and responsibilities.
I want to comment on the issue that was raised earlier about how we might achieve consistent standards. The District Courts Association has put a lot of effort into designing and developing national competences for justices. The difficulty is that we cannot ensure that every area takes on board the standards in training justices. I hope that, rather than the present situation, which is patchy, we will have national standards and that the JSC will issue guidance to ensure that justices in all areas receive the sufficient and necessary training.
I want to return to the availability of sentencing powers, although Cliff Binning has moved on the discussion. One frustration that we have long had on the bench is about our narrow range of powers, which leads us inevitably to use fines as the main disposal. Many people who appear before us are familiar faces. Many of them have drug problems and little income and often appear before us because they have tried to steal money to feed their drug habit. However, it is sometimes difficult to find an alternative disposal to a fine, which means that, further down the road, a means inquiry on the non-payment of the fine is inevitable. I have been told several times that we should always impose the fine, because most people will pay. However, if we do that, the few who are left might end up going to prison, which we want to avoid. By widening the range of powers, we would be able to help some offenders better and, if less fining took place, there would be less chance of people finishing up at a means court and having the alternative placed on them because no other option is left.
So far, we have heard that you are concerned about the increase in powers for procurators fiscal—specifically, the increase in the levels of fines and the powers that they will have for work orders and compensation offers—and that you believe that the district courts should have more sentencing powers and more options. You are concerned that there might be a dramatic drop in business. The key issue that the committee keeps coming back to is that the Executive says that the theme of the bill is speeding up the summary justice system to reduce delays and get speedier outcomes. If the committee agreed with you that some of the powers that the bill vests in procurators fiscal should rest with the district courts—which will certainly bring more offenders into the system—how would we make the system more efficient? We return continually to the issue of how to get speedier justice.
The fact that people come to court and are dealt with by justices who are local and who understand what they are doing—we get a lot of training on sentencing and understand a lot about it—has a much better effect on people than simply being given a £25 fiscal penalty would have, because in that situation there is no accountability and no responsibility is placed on people not to offend again.
So you do not believe that it is better to have diversions for first offenders.
No, I agree with that. There is a place for fiscal fines, but at present they are overused and applied to the wrong people. People commit serious offences but get fiscal fines—we know that because they do not pay them. There is a place for fiscal fines for statutory offences such as having bald tyres. Many road traffic offences can comfortably and easily be dealt with through fiscal fines. However, I am concerned greatly about the use of fiscal fines for common-law offences.
I do not think that we should ignore the principle that justice should not only be done but be seen to be done. The victims of crime have not been mentioned but, in the past few years, our system has made great strides by investing resources in victim support throughout sheriff courts and by setting up the sister organisation of the Crown Office and Procurator Fiscal Service, the victim information and advice service. That has all been done to give victims greater access to the reasons why things are being done and why the prosecution has proceeded in the way that it has. There is concern that that transparency will be eroded by allowing the expanded use of fiscal fines. That clearly has implications for our system.
The alternative to prosecution that the bill proposes whereby a person will have to take action on receipt of a compensation offer could lead to more delays in the justice system. If the person is deemed to have accepted the compensation offer and then, after means inquiry, the case goes out to warrant or to fine enforcement officers—if that is what is coming in—when the system catches up with the person, they will be able to ask for recall and get the case sent back to the fiscal and brought back to court. We could end up with more delays than there are now; at the moment, if someone is caught after 28 days and they have not paid, the case is automatically sent back to the fiscal, who then has to take further action. That is relatively quick but, if someone is deemed to have accepted an offer, the case could spin on for months if not years.
On speedier justice, the last time I sat on the bench, more cases were continued without plea on the request of the fiscal than I was given the chance to deal with. If someone is charged and they plead guilty to the charge, we deal with it. If they plead not guilty, there might be requests for adjournments and those can be decided. If a request for adjournment is unopposed, it will probably be allowed.
I want to put this point to the bill team. It struck me, on reading the main provisions in the bill, that we will not achieve greater efficiency until we also address the position of the Crown. At some point, we will hear from the Crown Office and Procurator Fiscal Service about its ability to deliver greater efficiency. In my opinion, it is fundamental to the efficacy of the bill that we consider whether the Crown is in a position to deliver speedier justice. A lot of responsibility will rest on the Crown. What discussion have you had on such points? Continuations, for whatever reason, must be coming up regularly.
That is certainly something that we discussed during the previous evidence session and we undertook to get back to the committee on it. Without going into detail about what is in the response that we sent to you, which is among your papers today, I point out that we have tried to set out the programme of work that is under way to ensure that, alongside the legislative provisions that will play their individual parts in ensuring that cases go through certain aspects of the process and bits of the system as quickly as possible, there is an underpinning strategy to make sure that everyone is ready to deliver when the legislation comes into force. Much of that work will need to be done by all the stakeholders to ensure that everybody has a shared understanding of the trajectory of a case, for example, and is working together to get the cases through the system as quickly as possible.
The next topic is the proposals for court unification.
We are a bit concerned about the length of time that it appears that unification will take. Everything will be difficult until everybody is part of the same system. We hope that the process will speed up once the problems with the first group of courts that are unified have been ironed out. It is the first time that I have seen the schedules, and 2014 seems a long time away.
There are practical issues and difficulties that will arise for district courts between now and unification. District courts have embraced the electronic exchange of information on cases. We update them electronically and give the results to the police and the Scottish Criminal Record Office through a software package that is used in every district court in Scotland except the district court in Glasgow, which has its own system. The software provider spoke to me last week and said that it was not going to continue to support district courts beyond 2008. That means that we will not be electronically compliant in accordance with the Executive's wishes. There must be some transitional arrangements to allow such practical issues to be addressed, instead of some areas waiting an inordinate amount of time for unification.
Why can you not get printouts from the DVLA?
The DVLA refused to send the information over a certain type of link that we use because of doubts about the security of that link. The issue has been on-going for 10 years. Following meetings at the DVLA, it finally agreed in February to exchange information via the connection that we want. However, we cannot get the enhancement in place because local authorities will not finance extraordinary projects for district courts in view of the fact that they will no longer have responsibility for the courts. That is the difficulty that we face. If the situation drags on for any length of time, the district courts will be in difficulty.
Perhaps the bill team can at some point—perhaps not today—get back to us on that. What is the intention here? Is the software that is used in the Scottish Court Service to be extended to the district courts?
I can clarify that. We have been in discussions with the information technology provider to the district courts. The matter is on our agenda and is in hand, and we will take it forward as a matter of urgency. It is intended that all courts will operate within the infrastructure that currently serves the sheriff courts. We are upgrading that system, which will be rolled out to all sheriff courts around the end of 2006. Nicola Brown's points are well made and we will continue to deal with such issues as a matter of urgency.
I raise a different and perhaps slightly contentious issue. The bill could lead to a situation in which there were no JP courts. Under section 46(5), the Scottish ministers would have regard to matters such as the capacity of sheriff courts when determining whether a JP court was necessary. Is the District Courts Association concerned that one outcome of the bill might be fewer lay courts in Scotland than we currently have or fewer such courts than it thinks are justified?
We are concerned about that. The principle behind lay justice is that it is local justice that involves the community. The reasons for having the current number of lay courts will probably continue to apply. If the new JP courts are to be local, we cannot close many down without losing that. For example, when cases in north-east Scotland were sent to one court, what could have been a 15-mile trip for the accused and witnesses became a 60-mile trip by public transport. Such factors must be considered if there are plans to close down courts.
I have a rural background and I feel strongly about the matter. It is often thought that cases of a similar nature can be adequately dealt with by a justice who has experience of such offences, which is true to an extent. However, it is important that a justice deals with cases in his area, because he knows what issues are important to the community—he knows what type of behaviour is getting up people's noses locally. He will return to the community and hold up his head, having dealt with the issues. He is known to be the local justice.
I will play devil's advocate. In my experience, the public often seek a more extreme outcome, so I am a little concerned that you say that you respond to what the community wants. That is one of the concerns that McInnes had, particularly in relation to the consistency of decisions. Surely, the decision that is made must be made without regard to what the community thinks. The concern must be the fairness of the decision in relation to the nature of the crime that has been committed.
There is validity in what you say. I need to be more precise.
I think that we should ask the member for Edinburgh South for his view.
There is concern that the bill gives ministers the powers effectively to abolish JP courts across Scotland. One of the issues that has been raised relates to areas such as Duns, which is a small community. If the justice deals firmly with certain people, there might be repercussions because everybody knows that he is the justice; in some parts of the country, justices might not want to sit in their local community. What do the witnesses think about that?
I want to give Andrew Lorrain-Smith the opportunity to clarify the context in which he made some of his comments. I invite him to agree that one of the key skills that someone who sits on a bench of any character is likely to have to exercise is to remember which hat they are wearing. Unless the person who is sitting on the bench is capable of making their decisions wholly objectively and being able to account for those decisions wholly on objective criteria, the decisions may well be open to challenge. Therefore, it is important that, when a justice comes into the court to sit on the bench, they leave behind at the court door their other authority and knowledge because that knowledge is not knowledge that, in a legal sense, they have when they sit on the bench. It would be useful if Andrew Lorrain-Smith were able to confirm that he agrees. In a sense, it is the same when we sit as members of the committee: we may know things as individuals that we cannot legally know as members of the committee. There is a distinction. One of the key skills that a magistrate of any kind needs is the ability, when sitting on the bench, to separate the different parts of their life. I hope that nothing that Andrew Lorrain-Smith has said suggests otherwise. It would be useful to have that clarification or, if I am wrong, for him to tell me that I am wrong.
I do not want to interrupt the flow, but I will quickly provide a couple of factual points that are useful to the discussion.
Does that mean that it might be decided to move some business from the sheriff courts to the district courts?
I am not an expert on the marking exercises that the Crown Office has carried out or the review of its marking policy, but I understand that it will consider the outcome that is required in a particular case to determine at what level in the system the case should be tried or what sort of intervention should be applied. Therefore, it would be less a matter of asking which court a case should go to and more a matter of asking what outcome was being sought in the case. However, I do not want to say anything further on a matter on which I am not an expert.
The Crown Office should be able to tell us what it is doing on that. The information was disclosed to us when we considered the Bonomy bill, when it moved 22 per cent of business down and then adjusted the marking policy so that, broadly, that percentage of cases moved from the High Court to the sheriff court. I would expect the Crown Office to be able to give us similar information and to tell us whether it has the same idea in mind.
I am not aware of exactly what the Crown Office's marking work to date has involved. It has certainly looked at cases being pushed out to alternatives to prosecution. We can look into that.
Mike Pringle mentioned the idea of a three-justice bench. That was the opportunity that I was waiting for. It is perhaps not fully realised that about 25 per cent of district courts sit with a three-justice bench. It is one of the areas in which the District Courts Association has kept its options open, recognising that both the single-justice bench and the three-justice bench have advantages. Each has grown out of a set of situations in a local community, and the supporters of each back their system strongly. I come from a three-justice bench, and all my justices hope that the opportunity to have that will continue. There are, of course, implications for training and—as you perhaps suggested—for credibility and acceptability in the community.
How is it decided whether to run a three-justice bench?
It is a matter of custom and use.
So, there is no special category of cases.
No. However, a three-justice bench is particularly useful in a trial. There are other occasions when a single justice can—and, obviously, in many other parts of Scotland does—deal with the matter effectively.
Do you support the idea that guidance should be issued on the use of a three-justice bench?
All that I seek is a continuation of the opportunity to make a choice locally.
One of the criticisms in the McInnes report concerns the consistency of decision making. I wonder whether it might be helpful to make it clear to everyone in which circumstances a three-justice bench would be used rather than a single-justice bench.
In my experience in Edinburgh, every case that comes in front of the district court is heard by one justice. In Duns, there is always a three-justice bench because that is what happens there. We are not talking about different types of cases; it is just that only one justice is used in Edinburgh. I do not know whether one justice is used in Dundee.
There were a number of points in Mr Pringle's earlier comments.
In which area are you?
Dumfries. The whole of Dumfries and Galloway uses treble benches, which helps with consistency. I have no objections to sitting singly for means courts, pleading courts and lots of other things, but for a trial it is especially important that there is a treble bench.
We will discuss appointments later but I want to ask about the suggestion that there should be three people to a bench. Would you be able to fulfil your obligations? As Mike Pringle said, the amount of time that people are called to sit could be trebled. What effect would that have on JPs' time and on their willingness to give their time?
I have been a justice for 20 years. Before the most recent reorganisation, there were four areas in Dumfries and Galloway. Dumfries took particular care to have the right number of justices to give three at a time a sitting of once a month. That was how it worked but the system has since been dropped because we have amalgamated with a much bigger area where they have far too many justices. You have to be careful to have the right number of justices to match the sittings—whether you are sitting as a single bench or a treble bench.
Is recruitment a problem in some areas? If so, would requiring more justices cause problems?
I have no experience of an area with a recruitment problem, but Nicola Brown might know more.
There are vast recruitment problems in city courts.
Has the system developed differently in city areas and rural areas?
For a number of reasons, the DCA supports the status quo—that is, the option of having either three judges on a bench or a single judge on a bench. However, recruitment is a problem. As I have said, I am the manager at Dundee. We have only 11 bench-serving justices and we sit every day. People therefore sit once a fortnight. Most city justices work full time and it is difficult for them to get time off work to attend court for such duties. We have been lucky with our justices because their employers have been very understanding. However, recruitment is difficult. If we moved to having treble benches, I do not think that we could continue to deal with business as we do at present. Different areas have different needs.
The point is critical, so I will continue the discussion. Richard Wilkins has a comment from the Executive's point of view.
I have a brief point of fact. When discussing one-person benches in comparison with three-person benches, we examined the figures as best we could. About a quarter of the courts have three-person benches but, as has been said, most of those courts are in rural areas, so they deal with a bit less than a quarter of the business.
I am more concerned now than I was when the matter was first raised. I am forming the clear impression from those who sit on three-person benches—and perhaps from those who do not—that a three-person bench is more desirable, particularly in a trial. However, some areas could not have three-person benches because we do not have the people. The inconsistency that was highlighted in the McInnes report may be a valid criticism, even if we adopt the system under the bill of predominantly or exclusively one-person benches. I need that to be thrashed out. Are the advocates of three-person benches saying that such benches reach better decisions—yes or no?
We will get a snapshot of that.
I ask Richard Wilkins for information. I have experience of sitting as a justice in Edinburgh eight or nine times a year. Was the figure that you gave for three-person benches based on justices continuing to sit for the same number of times as they sit at present? Unlike Dundee, Edinburgh had no problem with recruitment when I was a justice. We always had a long waiting list of people who wanted to sit on the bench. It would be interesting to flesh out the figure of 1,400. Will everyone sit the same number of times? In some places, the number of JPs could increase.
That would be the figure if every JP in each area sat for the same average number of sittings as at present. The average throughout the country is about 12 sittings a year, although it varies between local authority areas. If the average number of sittings per JP remained the same, that is how the stats would pan out. However, if the number of sittings per JP were increased, fewer JPs would be needed.
We need to thrash that out. You say that the average number of sittings throughout Scotland is 12 per year. Notwithstanding the problems, about which I will return to Nicola Brown, that number is particularly low—it is one sitting a month. Is the Executive concerned about that? Do we not want people in any profession or job to make decisions more regularly, so that they gain the required level of expertise, or am I looking at the matter in the wrong way?
That is an issue. A balance must be found between ensuring that we can recruit and retain enough people, so that the burden is not too significant, and ensuring that people sit often enough to be experienced. In England, the equivalent minimum requirement is 26 sittings a year, which is significantly higher than the current average in Scotland.
Is it better or more desirable to have a three-justice bench?
It is difficult to say whether that approach is better or more desirable. In Dumfries we think that the three-justice bench is the right approach, particularly in trials, because three people listen to the evidence—remember that we are lay people—and someone might pick up on something that the others did not notice. Obviously that cannot happen when there is a single-justice bench. I do not know whether single-justice bench decisions attract more appeals than do three-justice bench decisions—perhaps there is research on the matter. The three-justice bench offers a more consistent basis for sentencing, because we work with different justices every time we sit.
When I was appointed as a justice, I wanted to sit on a three-justice bench, but as I became more experienced I became happier with the single-justice bench, which is the status quo in Midlothian—we get used to the way in which we work.
We can come back to you, but I want to pursue the desirability of having a three-justice bench. We have acknowledged that Graham Coe's position is that the three-justice bench should be an option, but it is important that we hear other views.
I usually sit on a three-justice bench, but I have sat on my own and I feel quite comfortable doing so, so I have experienced both approaches. I do not think that a verdict that I reach when I sit on my own is any worse than a verdict that I reach as part of a three-justice bench. If the training is adequate, we should be able to take the decisions.
Can the bill team explain the basis on which the number of JPs required was calculated? The figure that was given for a universal single-justice bench system seems to be simply a third of the figure for the triple-justice bench approach.
Yes.
Right. I was particularly struck by Johan Findlay's point that, although she strongly advocates a triple-justice bench for trials, she nonetheless thinks that that is entirely unnecessary in many other instances. Therefore, I suspect that we should not be unduly influenced by the figure that 1,400-odd JPs would be required at the end of the day. Will you clarify the issue?
If we had a system in which three justices were used for trials only and one justice was used for means inquiry courts and other business, the figure would certainly be significantly less than 1,400, although I have no idea how much less, because I did not do the calculations on that basis.
I agree with Stewart Stevenson. In my experience, a justice of the peace conducts a relatively small number of trials in relation to all the other business that they do. I, too, was struck by Johan Findlay's comment. We should consider seriously how we adjust when justices sit. I do not know what Nicola Brown would say about this, but perhaps the people in Dundee could sit as a triple-justice bench only when they did trials and singly the rest of the time. I do not know how more people can be recruited in Dundee—there is a clear difference between Edinburgh and Dundee in that respect. As Rodger Neilson said, there are never fewer than three magistrates sitting on a bench in England and most, if not all, of them are lay people. Perhaps we need to look at something in between. What are your comments on that?
Practical difficulties with recruitment arise in places other than Dundee. For example, information has been given to the Scottish Executive about difficulties in West Lothian. The issue is not only about recruiting; it is about retaining people throughout the training to become a JP. When people realise the onerous number of sittings and other issues, they sometimes take the responsible view that they do not want to waste our time any further and so rightly drop out of the training.
We have almost moved on to the final part of the discussion, which is about recruitment, training and standards. It has been helpful to get a view on the issue of single-justice panels versus triple-justice panels, but we have heard enough about that issue and we need to think about what you have said.
Justices should definitely have a minimum number of sittings. One sitting a month is probably not quite enough, but that is often all the time that people can get off work. For example, we have teachers who are allowed only one day a month away from school. If we do not ensure that people know what they are signing up to at the start, the drop-out rate will be high. If we are left with a core number of people who are available all the time, that will not be lay justice, because they will be like sheriffs who sit in court every day. When we recruit, we must ensure that people are aware of what they are signing up to and that they can fulfil the commitment.
I whole-heartedly agree that there should be a minimum number of sittings. In my area, the justices like to sit more frequently. We consulted them all about how frequently they thought they needed to sit to feel confident on the bench and they agreed that they require a minimum of once a month. If a justice sits less frequently, training becomes even more important. If a justice sits more regularly, they are constantly facing the issues and getting experience.
I am certainly interested to hear what the justices think about the two points I am concerned about. The bill says that justices only need to have three days of training a year, which is totally inadequate.
I was an ex-officio justice, and such justices never sit on the bench. My understanding is that the bill does away with that position so the issue will not arise.
It might be helpful to consider three different categories of justices, rather than two, if that would be any use. There are justices on the supplemental list who have very limited signing functions; those include the ex-officio justices. The bill will do away with that category of justice altogether.
Do the witnesses believe that elected local councillors should be taken completely out of the picture? We have already removed them from the bench but some of them have signing duties. Do the witnesses agree with that?
Local councillors are not allowed to sit on the bench as a justice because of human rights legislation. A case was taken—I do not know whether it went through the High Court of Justiciary—and now local councillors are not allowed to sit on the bench, although they can still sign.
That is right, but with court unification, those contradictions will not arise. I just wondered whether there was a view about it. Local council members are in tune with their communities; they sign divorce papers and that sort of thing. Should we get rid of that too?
The system is a bit unwieldy, given the vast number of justices of the peace. It is difficult to keep track of them, particularly if they have passed on and are no longer available. Lists of justices appear and it is very difficult to keep those lists up to date. The system that is being proposed is far better because it does away with that vast number of signing justices. I am comfortable with the idea that councillors have signing duties, albeit that signing documents that have judicial significance would still be restricted to the bench-sitting justices.
The DCA's submission makes it clear that the association is opposed to the idea of justices being reappointed every five years. I ask Phyllis Hands to put the association's concerns on the record.
The bill introduces all kinds of ways to remove a justice. If a justice is not up to scratch we should not have to wait five years to remove them. If it is known that appointment is for only a limited period of time, such as five years, a justice might be allowed to sit until the end of the term, rather than action being taken immediately. If appointment is for life, action would have to be taken—it would be summary action, like the justice that we are meant to be dispensing.
I support that. The case for the five-year appointment has not really been made, unless it is the Executive's intention to appoint all members of the judiciary for five years. If that is the case, the proposal needs to be debated and the Executive should give its reasons for it. I do not see why justices should be placed in that position.
Stipendiary magistrates have grave concerns about the proposal—it would not be a good career move to become a stipendiary magistrate if the appointment was for only five years.
The concept of introducing a five-year reappointment rule throughout the system is an interesting one, which I might come back to.
It is for the local committees to deal with their own justices. The committees are responsible for the rota, so the basic answer is that they would not put such a justice on the rota or, if the justice was on the rota, they would deal with means court work more than anything else.
So the answer is yes.
The answer is yes—sort of.
That is fine. That is a practical solution.
So you do not think that the case has been made for the five-year appointment. Is anyone opposed to the idea of the minimum number of sittings being 12 in a year?
No.
Mike Pringle has expressed the view that three days' training is not enough. Do you have a view on that?
We definitely agree. We made the point in earlier discussions that it might be advisable to have three days' training followed by a period when the justice would go out and do their own investigation in a sitting court and gather their own information about the role that they are expected to play. They would then come back for a further two days' training before they were—
Let loose.
I broadly agree with Phyllis Hands. I do not think that the figure of three days appears anywhere in the bill, although you may have heard it being mentioned. There is a power for the Lord President to prescribe whatever training they consider to be necessary, which is one of the reasons why the Judicial Studies Committee is currently discussing with the District Courts Association various issues to do with training. I expect that the views of JPs will figure strongly in whatever guidance comes out on the issue. The figure of three days does not appear in the bill, but there is a power for the Lord President to set a minimum requirement and a scheme of training for induction.
What expenses do JPs get for doing their duties? How does the system work?
They get mileage for their cars and they get something like £6.35 for more than four hours and £13 for more than seven hours. They do not get paid very much.
If they are employed, does the employer in most cases pay their salary per day they get off?
I think that the figure is up to £72 per day to replace any salary that they lose.
In the 20 years during which I have sat as a justice, I have never been paid anything for my time. I get petrol money, but I have never been offered any other remuneration. I think that a lot of justices do it only for the mileage, and I know that if people have to take a day off work their expenses will be reimbursed in some way or other.
Likewise, I have never been paid anything. On the minimum number of sitting days a year, I should point out that, in the time that I have been a justice, I have sat as infrequently as once every six months, which was a nightmare, and as frequently as fortnightly. When I had sat fortnightly a few times, I really felt that I was in gear with the thing. It makes a huge difference, and there is no getting away from the fact that the best training is sitting.
I note what you say about things not being the same in every case. If we are about raising standards and challenging the perception of inconsistency, we would have to have some training related to a minimum number of sittings. I agree with Andrew Lorrain-Smith that the best training is probably sitting, but whether that can be aggregated over a long period or whether slightly more training should be factored in if it cannot be achieved is a matter that the committee must consider.
Would that, in essence, be one of the arguments for a three-person bench in certain circumstances, so that justices can keep up their level of involvement?
Yes, in the short term. In Midlothian, we had to ask some justices to stand down because they were not sitting often enough.
Do they want to come to Dundee? [Laughter.]
There were some who were happy to stand down. If we changed to a three-person bench, that would multiply our sederunts by three in the short term.
In certain circumstances.
The arithmetic gives you the answer. In the long term, it is a matter of matching the court rota to the number of justices or the number of justices to the court business.
I know that you were kind enough to accept my suggestion of having a treble bench for trials, but in some areas, including mine, that would be difficult to achieve.
We have not accepted anything.
I meant that you seemed supportive of my suggestion.
I would like to link the three-justice bench to training and to what happens in England. In England, the basic training is to be a winger, and there is separate training for the person who is to chair the bench. There has been something similar in my area in relation to a three-justice bench. For the first year after induction training is complete, justices sit only as supporting justices. I feel that linking the three-justice bench with the training is a useful way of ensuring that experience on the bench can be built up. It does not involve simply sitting at the back and watching; those trainees are part of the system itself.
We have talked about the appointment and training of JPs, but we have not covered the appraisal of JPs, although one view on it was expressed. Do you have any comments to make on appraisal?
We note that the appraisal of JPs will be undertaken by JPs, to ensure judicial independence. I certainly see a role for the legal adviser in the appraisal of JPs, and the people who train the justices must have something to say about their readiness for appraisal. I always think of appraisal as being derived from and linked with the training cycle, rather than a tool that the organisation can use to get rid of someone.
I have a quick question about the appointment of JPs and the fact that there is no provision for appeals. Would anyone like to comment on that?
Appeals against what?
I understand that there is no right of appeal for justices who have not been included on the list of JPs that will be appointed. Is that right?
Are you talking about those who are not re-appointed at the end of five years?
No. I am talking about those who will be appointed the first time. There is no right of appeal for those who are already JPs, but who are not appointed.
That could become more of an issue. As the bill is framed, supplemental list JPs will not be offered reappointment, but full JPs will be offered reappointment; it is up to them whether to accept that appointment. We would not expect there to be any appeals unless a factual error had been made. If we were to increase the level of safeguard, so that a larger number of full justices of the peace were not appointed under the new system, we would have to consider how the legislation was phrased and whether the test was still a specific point of fact. At that point, we might need to start thinking about appeals. However, if the test remains a point of fact, we would not expect there to be a need for an appeals procedure. That is how the bill is framed currently.
Mike Pringle said that there might be concerns that some justices would be appointed inappropriately. If we went down the road that he suggested and did not appoint them, would there have to be an appeals process?
That would depend on the exact mechanism used. If an objective, factual test were applied to ensure that a large number of JPs who do not have experience of sitting on the bench were not appointed to do so, an appeals process would not be necessary; however, if a broader measure to determine which JPs were appointed were used, we might need to consider the need for an appeals process. We are not at the stage of working out the exact phrasing of legislation and considering what tests and mechanisms might stem from it, but there is a potential issue there.
Will there be an appeals process for reappointment after five years?
No. A decision on that will be made by the sheriff principal. Several of the grounds for reappointment are issues of fact, but one is to do with the inadequate performance of the function of a JP, which might involve the consideration of appraisal issues. The sheriff principal can also consider other grounds that they think are relevant. We do not envisage an appeals process in the reappointment of JPs. We envisage reappointments being made after the sheriff principal has made a decision on the basis of the facts presented.
Phyllis, can you give the committee any figures for the number of JPs, by court and number of sittings?
The number of JPs in each area?
Per district court, and an idea of how often they sit.
I think that that information is in the statistics that are produced by the Executive. I do not know how reliable they are.
I have probably got some of the figures here, but I might e-mail them to Phyllis first, to check whether they are all right. Between us, we can certainly provide you with quite a lot of that information.
We would like to see the finished version. The committee will look into the treble bench and the minimum number of sittings. We will want to see how the situation is looking across Scotland before we take a view on those issues.
I know that the statistics show a three-man bench in North Lanarkshire, although what we actually have is three courts with one man on each bench.
That is why we would like to see the number of court sittings and the number of justices.
We would welcome an input by the legal adviser for the sheriffdom when the appraisal committee considers appraisal. We would also welcome a training and appraisal scheme for the legal advisers. We think that it is important that, if the justices are being subjected to that scheme as volunteers, it is only fair that professionally employed people are subjected to the same system.
I propose that we finish there, unless there are any issues that you feel have not been covered. You make some points in your written submission that we will not have time to go through today, but I assure you that we have noted them and will discuss them with other witnesses in regard to other important aspects of the bill.
Thank you for inviting the DCA to give evidence.
I also thank the bill team. It has been really helpful to have you here to clarify points as we have gone along. Thank you for your full and extensive letter in reply to many of our points. I am sure that we will have others to raise, but you would expect that.
Meeting suspended.
On resuming—