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IMPROVING PRACTICE
CHAPTER 8 THE PRELIMINARY DIET
The Name
8.1 Mandatory procedural diets in the Sheriff Court are called first diets 124. The case then proceeds to the trial diet. It is my understanding that in practice first diets are frequently adjourned, and in some Sheriff Courts the real benefits are found at the adjourned first diet. The need to adjourn the first diet can arise for a number of reasons. In many cases the first diet is too soon after the service of the indictment to be meaningful. Many practitioners frankly concede that attending court for the first diet acts as a trigger to action on matters which have not been attended to as expeditiously as they ought to have been. There may be negotiations which are incomplete. The use of the expression "first diet" to cover the initial diet and the various adjournments is probably a legacy of the days when the trial diet was called the "second diet".
8.2 It would be preferable to have a name that tends to describe the nature of the diet. It could be called a "procedural diet" or "preliminary diet", which is the name used for the current optional procedural diet provided for in section s72 and 73 of the 1995 Act. My preference is for the latter, since it is the name currently in use to describe a procedural diet in the High Court, and it does give a general indication of the purpose of the diet.
The Purpose of the Preliminary Diet
8.3 The main aim of the preliminary diet would be to identify those cases in which a trial is necessary and to assign a trial diet. If it is anticipated that a trial will be necessary, but the case is not yet ready to go to trial, then the preliminary diet would be adjourned. If the other proposals I have made are adopted and are successful, there should be few such cases. In some it may be possible to appoint the trial diet, but also appropriate to adjourn the preliminary diet, in case things that parties envisage completing in time for trial are not completed. The bulk of cases in which a trial will not be necessary should be those in which the accused intends to plead guilty. That in itself may require adjournment of the preliminary diet to finalise the terms of the plea, and to enable those, such as the victims of serious offences and the relatives of homicide victims, who may wish to be present when the case is dealt with, to be informed and given an opportunity to attend.
8.4 I do not envisage the management exercise carried out by the Court extending beyond the issues which the Court is currently expected to address at any preliminary diet, which are the state of preparation 125 of the parties and the extent to which they have tried to agree evidence 126. However, in addressing these issues at the preliminary diet, there should be an entirely different emphasis. The format of section 73(3) of the 1995 Act should be altered to require the parties to state to the Court what further procedure is necessary in the case, and to state further, if there is to be a trial, which witnesses are required to attend court. The preliminary diet should not simply be a starting-gun prompting those involved to address the issues in the case. That should be done prior to the preliminary diet. In our system the case is that of the parties rather than the court, and the obligation should be on them to consider and decide prior to the preliminary diet what further procedure, if any, is necessary in the case.
8.5 When I propose that they should also declare which witnesses are required, I do not mean to suggest that, on issues where there are a number of witnesses, they should decide which particular ones will require to attend court. What I have in mind is that, in cases where certain matters are not in dispute, it should be made clear at the preliminary diet that witnesses will not be necessary to speak to these. A good example is a prosecution under the Misuse of Drugs Act 1971, where so often there is no dispute that drugs were found, what the drugs were, and that they had a particular approximate value. The issues on which witnesses will not be required should be identified prior to the preliminary diet. Inevitably there will be many cases in which a number of issues will be in dispute, and it will be perfectly legitimate for parties to declare that all listed witnesses will be required. However, there is a risk that that would become the norm in the absence of some procedure between service of the indictment and the preliminary diet requiring parties to consider the issues on which witnesses should be required to attend.
Preparation for the Preliminary Diet
8.6 The Thomson Committee recognised that first or preliminary diets might not achieve their full potential in the absence of some mechanism for bringing parties together prior to the diet 127. They recommended that there should be discussions between Crown and defence prior to the diet 128. In one written submission made to me it was proposed that there should be an obligation on those instructed for the defence, or on the accused should he choose to represent himself, to draft a note on the line of defence a number of days prior to the preliminary diet to ensure that attention has been focused on the real issues in the case prior to the diet.
8.7 Both ideas could have a role. However, both fail to take account of the basic principle that the onus in criminal prosecution lies upon the Crown, and that the accused is entitled to require the Crown to prove the case against him and take no positive action himself 129. Any additional procedure designed to focus attention on the issues which are in dispute prior to the preliminary diet must, therefore, be one initiated by the Crown. There is already provision for such, but it is used in a very limited way in the High Court. I now turn to consider how that might be developed.
Notices of Uncontroversial Evidence
8.8 Perhaps the greatest potential for focusing the attention of parties on the issues in the case, and addressing the two basic elements that would arise at a preliminary diet, lies in the development of the current provisions regarding uncontroversial evidence set out in section 258 of the 1995 Act. There could be provision for intimation of a notice of uncontroversial evidence 14 days before the preliminary diet, and for any challenge to be made not more than 7 days thereafter. These time limits currently apply, but in relation to the trial diet 130. Such notices are little used in practice, and are confined in most cases to fairly formal matters, such as records of a tenancy or of benefit payments. There is considerable scope for their extended use. Essential to the expansion of their use is the allocation of resources to the Crown for that purpose.
8.9 One reason for their current limited use is that those acting for the accused tend to respond by automatically challenging the notice without paying particular regard to its terms. That may be because they have not been able, in the time available, to complete their investigations to the point where they can take an informed decision on the terms of the notice. Automatic challenge means that the Crown are required to prove the points in the notice and the notice is defunct 131. In the context of judicial management of cases, there is scope for changing this rule without impinging upon the basic principle that the onus lies upon the Crown. It would not be unreasonable to require the defence to give a reason for contesting the notice. Should the Crown consider that the reason given does not justify contesting the notice, then the matter could be aired at the preliminary diet with a view to the presiding judge determining whether the Crown should be required to prove the points in issue or may rely on the terms of the notice. In this way the Crown could identify in such a notice those chapters of evidence which they consider that the interests of justice do not require to be proved by oral evidence in court. The notice would thus form a framework for the identification of the witnesses who are not required to attend court. There is, on the face of it, no reason why the notice should not have attached to it the statements of witnesses, which the Crown consider to be uncontroversial, and which could be read to the jury.
Defence Note
8.10 The defence could be required, not less than 7 days before the preliminary diet, to prepare a note discussing the line of defence and identifying matters which require attention for the purposes of the trial. That note would form the basis for final defence preparation for the trial. It would deal with any notice of uncontroversial evidence and the response thereto. The note should also identify evidence which the defence consider to be uncontroversial. Notice of that evidence should be intimated not later than 7 days before the preliminary diet. Any dispute about the need to prove that evidence by leading witnesses could be resolved at the preliminary diet.
Pre-Preliminary Diet Meeting
8.11 In the week before the preliminary diet parties should be obliged to meet, or communicate in some other way, to discuss any issues which require resolution if the case is to be disposed of, or a trial diet assigned, at the preliminary diet. Some consider that such an obligation is unenforceable. It may be that imposing a requirement upon the parties to certify that they had met or communicated with each other, and to lodge that certificate in court on the day before the preliminary diet along with a formal record of the outcome of the meeting or communication, would ensure that the obligation was complied with.
Duty to Try to Agree Evidence
8.12 None of these suggestions involves any departure from the principle that there is no obligation on an accused to prove anything. The existing duty on both Crown and defence, to endeavour to reach agreement on as much evidence as they can, is clear 132. These proposals are designed to give more focus to an existing obligation which is more honoured in the breach than the observance. Subject to the requirement that special defences must be intimated, an accused person is entitled to remain silent as to his line of defence 133. The note prepared for the defence would, therefore, remain confidential. However, the court would be entitled to inquire whether a note was prepared, and to inquire whether particular issues, that may be controversial or a source of difficulty for the management of the case, were identified, and whether a genuine effort to agree uncontroversial evidence was made at the meeting.
The Issues Which May Be Raised
8.13 This diet would be the appropriate place to hear all the issues for which there is presently specific provision that they can be the subject of a preliminary diet. The final category in section 72 of the 1995 Act is "some point, as regards any matter not mentioned … above, which could … be resolved with advantage before the trial". That provision allows parties to raise a wide variety of issues for resolution. Matters which are currently raised by minute (such as postponement, or the taking of evidence of child witnesses by CCTV or with screens, for which there are specific statutory provisions) or petition could be heard, as could applications under section 259 of the 1995 Act to admit hearsay evidence. There is no reason why the specific provisions and the current practice relating to such matters should not continue in force so that they can be raised at any convenient stage. For example, one would hope that petitions to recover documents would be presented at an earlier stage. However, it would contribute greatly to the management of business if it was generally understood that the latest stage at which all such matters would be dealt with would be the preliminary diet. That could be done by requiring all applications to be made no later than the preliminary diet. Matters relating to the administration of the case might also be raised, for example, the need for an interpreter or the need to interrupt proceedings more frequently than usual to cater for the attention span of a young witness or a young accused.
Calculation of Periods of Notice
8.14 The preliminary diet should also be the date from which all other periods of time are calculated. I have already mentioned the position in regard to intimation of material by the Crown. Lists of witnesses and productions for the defence should be lodged at least two days before the diet. There should be provision for special defences being lodged no later than seven days before the diet. There are different time limits for applying for optional preliminary diets under current proceedings, depending upon the subject raised 134. These should be rationalised to require all applications to be made not later than seven days, or whatever shorter period is considered appropriate, before the preliminary diet.
Hearing Disputes about the Admissibility of Evidence
8.15 The preliminary diet might also provide a partial solution to the vexed problem of trials within a trial to deal with issues over the admissibility of evidence. Between the mid 1970s and 1999 the question of the admissibility of a statement made by an accused person, particularly to the police, on an occasion between the offence and the trial, was left to the jury to determine 135. The cases usually raised factual questions about how the statement had come to be made, whether it was made freely and voluntarily or was extracted by unfair or improper means, and whether it would be fair to the accused to admit it in evidence. In November 1999 a bench of five judges decided that that approach confused the issue of the admissibility in law of the statement and the quite separate issue of what weight the statement should be given in a consideration of all the evidence in the case 136. The first issue was one for the trial judge to determine as a matter of law. As a result, it is often necessary for the trial judge to hear evidence about the circumstances surrounding the making of the statement outwith the presence of the jury, and to determine the admissibility of the statement. If it is admissible, the evidence must then be led again in the presence of the jury, whose task it is to evaluate it in considering a verdict.
8.16 That practice causes difficulties in the conduct of a trial. In some recent prominent cases trial judges have expressed concern about the length of these hearings, which can interrupt the presentation of the case before the jury for a number of days 137. That can create difficulties for the lawyers conducting the case, who have to adjust their plans for the conduct of their case to ensure that it is presented with the emphasis intended. The delay caused by such significant interruptions must inevitably affect jurors' recollection of the evidence heard earlier in the case.
8.17 The issues which arise in this way may be capable of determination in advance of the trial. They are often free-standing issues dependent upon the evidence of a limited number of witnesses. The suggestion has been made that they could be dealt with under the current system at a preliminary diet 138. However, the Criminal Appeal Court has expressed reservations about the propriety of following that course 139. The same doubt has been expressed in relation to endeavouring to deal with a challenge to the validity of a warrant prior to the trial 140. While that may be the situation in some cases, there are likely to be others in which the matter can be dealt with in advance of trial. It may be said that the evidence led in the course of the trial, prior to the contentious issue arising, may cast some relevant light on it. However, there is no rule that requires evidence in a trial to be led in a particular order. It may be a matter of chance what evidence has been led prior to the stage at which the objection is taken. There may be some concern that the circumstances at the trial might turn out to be different from those presented at a preliminary diet. Should the evidence have been declared inadmissible, then that would not matter. Should the judge at the preliminary diet have decided that it was admissible, then it should be open to the accused to renew the objection in the event of a material change in circumstances in the course of the trial.
8.18 There should, therefore, be added to the list of issues which may be dealt with at a preliminary diet "any question relating to the admissibility of evidence which could in the opinion of the Court be resolved with advantage before the trial".
8.19 The volume of evidence may be such that the appropriate course would be to adjourn the preliminary diet for the purpose of hearing the evidence and submissions on the issue. It might also be appropriate, should that be the only outstanding preliminary issue, to assign a trial diet and appoint the issue of admissibility to be determined by the trial judge immediately before the jury are empanelled.
8.20 To adopt this procedure would provide a means whereby disruption to the presentation and hearing of evidence in a trial could be reduced in appropriate circumstances. One could never expect all potentially disruptive objections to the admissibility of evidence either to be identified in advance of the trial or to be capable of resolution in advance of the trial. There will inevitably continue to be cases in which the presentation and hearing of evidence is interrupted for substantial periods of time.
Appeal against Decisions Made at Preliminary Diet
8.21 Under the current system an appeal against a decision made at a preliminary diet may only be taken with leave of the presiding judge 141. That rule should be applied to the mandatory preliminary diet
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