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IMPROVING PRACTICE
CHAPTER 4 THE PROBLEM
Introduction
4.1 Over a period of more than three centuries the High Court has adapted well to major social and cultural changes, and has developed in a way that has enabled it to cope with the material impact these changes have had on the business coming before the Court. That is particularly true of the way in which the Court coped for most of the last century with the remarkable changes that occurred during that time. In the last third of the century the volume of work coming before the Court grew to such an extent that it has come to dominate the business of the Supreme Courts. During that period the complement of judges increased from 18 to 32 38.
Volume of Business
4.2 The work of the High Court as a court of first instance now accounts for around 50% of the combined working time of all the Supreme Court judges 39. Since some judges have assigned specialised jurisdictions, such as the Commercial Court, the result is that others may spend the bulk of their time presiding over criminal cases at first instance. Because strict time limits apply in these cases, which do not apply to cases on appeal or to civil cases, priority in managing business must be given to them. The degree of success with which that business is allocated, managed and conducted determines the availability of judges for the remainder of the business of the Supreme Courts.
Number of New Cases
4.3 In recent years the volume of new indictments has fluctuated. Prior to 2001, with the exception of 1999, the year in which the largest number of new indictments was registered was 1993 40. Between 1995 and 2001 there was an increase of 23% in the number of new indictments registered 41.
Adjournment of cases
4.4 Over the past few years there has developed widely among those working in the High Court the impression that business is not dealt with efficiently. The problem has been described to me by a number of people as the "churning of cases". Cases are currently allocated by the Crown to two week long sittings of the Court at which varying numbers of cases are listed for trial. For the information of all involved in the sitting a list of the cases, known as a "sitting list", is compiled. Instead of being dealt with either by plea or trial at the sitting to which they are first indicted, cases are often adjourned to a later sitting. A significant number are adjourned on more than one occasion. In 33% of all cases listed in 2001 the trial was adjourned at least once 42. Each time that a case is adjourned it is appointed and listed to call at another sitting. As a result the same indictment may appear a number of times for trial at a series of sittings throughout the year. Our procedure allows an indictment to be adjourned for up to two months at any given time 43. If the adjournment is limited to that length of time, drafting of a fresh indictment and re-service upon the accused is unnecessary.
4.5 In 1995 the position was quite different. Only about 7% of cases listed were adjourned at least once, and very few were adjourned more than once 44. There has, therefore, been a dramatic reduction in the prospects of a case proceeding to trial or other disposal at the sitting to which it is initially indicted.
4.6 Between the years 1995 and 2001 the total number of cases listed to call at a sitting for trial increased by 59% 45, although the number of new cases actually registered with Justiciary Office increased by only 23% 46. The difference between the two figures reflects the high number of cases adjourned from sitting to sitting, which adds to the pressure on the Court and all working in it.
4.7 This change has also greatly increased the distress and disruption caused to victims, relatives of victims, witnesses and jurors, and has resulted in the inefficient use of resources throughout the High Court.
4.8 The court hearing at which a motion to adjourn is dealt with generally contributes nothing to the progress or management of the case. Parties are often agreed, in which case the hearing is generally a formality. If they are not agreed, the hearing is largely concerned with the justification for the motion. It is unusual in these circumstances for a judge to take the opportunity to try to direct the future progress of the case.
4.9 Because most cases are heard on circuit, the adjournment of the business of a court, which so often occurs without warning to the Court administration, frequently means that the judge cannot be assigned to other duties and a valuable and expensive day of court time is lost. The judge may be able to turn his attention to other work, such as deliberating, and writing his opinion, upon a civil case that he has heard but has not yet decided, but that is a matter of chance rather than the result of planning. Some of the Court staff may be able to attend to other duties, but it would be unusual for all to be productively redeployed for the whole day. Counsel receive a full day's fee for attending court simply to appear in court and consent to or make a motion to adjourn a case 47.
4.10 The anticipation of members of the public is often at odds with that of the lawyers involved in the case. The latter are usually the first to know that a case is likely to be adjourned; the public on the other hand are often assembled in expectation that a case will be heard, and are not only surprised but extremely disappointed when it is postponed. Such adjournments often cause further distress and anxiety to victims and their families, and may undermine public confidence in the criminal justice system.
4.11 Quite apart from the impact churning has on the public and on the use of judicial resources, it is a phenomenon which is inherently wasteful of resources generally. The re-scheduling of a case is a major exercise, mainly affecting the Crown. The defence generally have few witnesses and can readily make alternative arrangements. On the other hand, the Crown have to countermand the attendance of all their witnesses and rearrange their attendance for the adjourned diet. It is likely that the preparatory work done by the advocate depute who was to conduct the trial will be wasted, as he is unlikely to be the advocate depute at the sitting to which the trial has been adjourned. Adjournments result in a great deal of wasted time and duplicated effort.
4.12 In contrast, once up and running, trials tend to proceed smoothly and to be conducted efficiently.
4.13 While distress and inconvenience to members of the public, who are witnesses, interested observers or jurors, can never be eliminated, the public, quite rightly, expect that, in a modern, sophisticated legal system, it should be possible to so organise business as to reduce the level of distress and inconvenience that is caused at present.
4.14 The challenge for this Review is to try to achieve a situation in which the members of the public involved or interested in a case, and those working in the public services and professions who are required as witnesses and who have so many other important duties, are brought to court at the stage when the case is likely to be heard. That involves identifying in advance of the trial diet those cases in which a trial is likely to be necessary and those in which it clearly is not, and trying to introduce into the whole system a greater degree of certainty about when cases will be heard. That should result in the more efficient use of the time of everyone involved in the criminal justice process without in any way prejudicing the interests of justice. In 2001 only around 14% of cases actually went to trial at the sitting to which they were first indicted 48.
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