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IMPROVING PRACTICE
CHAPTER 11 THE PRELIMINARY DIET COURT
Where Should Preliminary Diets be Held?
11.1 As I have already indicated, preliminary diets will only be meaningful if held in the High Court. Preliminary diets for Glasgow cases should obviously be held in Glasgow. It is equally obvious that for Edinburgh cases they should be held in Edinburgh. The question is where to hear those for the other circuit courts. It was universally recognised in my discussions with practitioners that such diets could probably only be accommodated initially in Glasgow and Edinburgh. That was not seen as a problem. On the other hand, there would be significant resource implications involved in moving all accused in custody to either Glasgow or Edinburgh for the preliminary diet.
11.2 Devising a scheme under which preliminary diets would be held in courts, where the High Court sits occasionally rather than constantly, would be extremely difficult. It would be difficult to guarantee that the venue for the preliminary diet would also be the venue for the trial. The prospect of securing the attendance of trial counsel at the preliminary diet would be significantly reduced in the case of a court where High Court work was confined to one court room. The principal problem would be the irregularity of the court sitting.
11.3 The only real debate in this area is whether, if Aberdeen becomes a full time court like Glasgow and Edinburgh, albeit with only one courtroom in regular use, it should also deal with preliminary diets. One problem is that the regular calling of preliminary business before the judge, who would be conducting trials in the same courtroom, would tend to disrupt the trial business. Preliminary diet hearings should be confined initially to Glasgow and Edinburgh. In the High Court building in Edinburgh there is a small courtroom ideally suited for the purpose, which is little used for trial business because it is too small to accommodate most cases. In Glasgow I envisage one of the courtrooms being dedicated to preliminary diets and other miscellaneous business. Confining preliminary diet hearings to Glasgow and Edinburgh would fit neatly with the proposals, contained in the report of the Quality and Practice Review Unit, that Crown Office staff responsible for indicting High Court cases, and for all work relating to the case from the point of indictment until the trial, should be based in Glasgow and Edinburgh 174. They are the Crown staff most familiar with the case in its final form, and best able to advise Crown counsel appearing at the preliminary diet in relation to the issues that require to be addressed there.
11.4 Preliminary diets for cases that are expected to be heard in Kilmarnock and Paisley should be held in Glasgow. The Quality and Practice Review Unit's report suggests that the Crown Office staff based in Glasgow should be those dealing with the cases to be indicted in Glasgow, Kilmarnock and Paisley. It would make sense for Justiciary Office to have a base in the High Court in Glasgow, in which the papers for cases in which the preliminary diet will be in Glasgow, and thus the trial diet in Glasgow, Kilmarnock or Paisley, would be lodged and processed. The aim would be to bring cases to trial in the court closest to the location of the crime.
11.5 Edinburgh could easily accommodate preliminary diets in cases where the trial is likely to be heard in Fife, in Falkirk or Stirling and even in Perth, which are all within easy travelling distance. The position is more difficult in relation to cases likely to be heard in centres further north and involving accused, either in custody or on bail, who would require to travel a substantial distance to the preliminary diet. I can think of no way round requiring those on bail to travel to Edinburgh. In the cases of those in custody, consideration might be given to the introduction of live television links between the preliminary diet courts and distant prisons to reduce the heavy travel commitment that would be involved for a short appearance in court. Use of such a link would be appropriate in a limited number of cases. In any case where a plea of guilty was envisaged, the attendance of the accused would be necessary. In general, the purpose of the preliminary diet is more likely to be fulfilled by live face to face contact between accused and their legal representatives. I suspect that movement of prisoners to two centres initially is a price that will have to be paid to secure the advantages that should flow from preliminary diets.
Managing the Business of the Preliminary Diet Court
11.6 Because Paisley and Kilmarnock are within easy travelling distance of Glasgow, the Crown Office that is recommended for Glasgow is a compact unit. The indicters and the staff responsible for managing the business in court at all three locations would be based in the same office in Glasgow, presumably within the High Court building. In Crown Office in Edinburgh the position would be different. Those responsible for managing the business in courts outwith Edinburgh will be based in the offices of procurators fiscal within the area, and will thus be isolated from the indicting members of the team. Although the volume of business in Edinburgh would be less than in Glasgow, it would relate to at least twice as many courts. As in Glasgow, the object would be to assign the trial to the court closest to the location of the crime. The whole operation would, however, be more complex. In light of this, and in view of the difficulty and expense involved for some who will require to travel a significant distance to attend a preliminary diet, particularly to Edinburgh, the Scottish Court Service and the Crown should closely monitor the way in which preliminary diets work in both Glasgow and Edinburgh, and in due course give further consideration to whether holding preliminary diets in Aberdeen for cases which are to be heard in courts from Dundee north would be likely to improve the efficiency of the system.
11.7 Cases could be indicted to preliminary diets on any day of the week. I envisage them occurring every day of the week. In that way the workload would be spread as evenly as possible.
Establishing the Judge's New Role
11.8 In order to enable them to conduct meaningful preliminary diets, judges would require to be given an opportunity to read the available papers. The same judge is unlikely to be the trial judge. That is unlikely to matter in most cases. It would be important for judges to adopt a consistent approach to such diets.
11.9 The judge should be pro-active to the extent only of ensuring that either the case is disposed of or a trial diet is appointed, unless there are sound reasons why neither is possible. The introduction of this new system would be greatly assisted by the consistency and predictability that would result from the bulk of the preliminary diets being heard in the early stages by the same judge. The organisation of business in Glasgow generally would probably benefit from the presence of a presiding or managing judge, to whom any difficulties arising in the early stages of the introduction of this new system could be referred. His role would be an important one, most suited to a judge of considerable experience. It would be helpful to the smooth introduction of the scheme, if a senior judge were appointed as presiding judge in Glasgow for a period of at least six months. Should the appointment prove successful, it may be appropriate to continue the practice of having at least one judge based in Glasgow for that period or longer. If preliminary diets for all courts, other than those in the general area of Glasgow, were to be heard in Edinburgh, then the volume of preliminary diet business there would be somewhat, but not significantly, less than that in Glasgow. A similar appointment in Edinburgh would, therefore, be appropriate.
The Timing of the Preliminary Diet
11.10 In order to encourage the attendance of counsel or solicitor advocate who will conduct the case and the Crown Office indicter and defence solicitor most familiar with the case, the diets should be held at times which will accommodate their commitment to ongoing trials. A working group, comprising representatives of the Crown, criminal practitioners, court staff and judges, should be formed to consider the best arrangement.
Programming Trial Diets
11.11 There would no longer be sittings of the Court in Edinburgh and Glasgow. The Court would be in constant session. Elsewhere, periods of time, amounting in total to approximately the time currently occupied by current sittings, would be allocated for High Court trials.
11.12 The more successful preliminary diets are in identifying and dealing with cases which do not require to go to trial, the more scope there would be for assigning fixed diets to those which do. Initially it would be possible to assign only a limited number of fixed diets. For example, in Glasgow I do not imagine that it would be possible in the first instance to assign fixed diet trials in more than two courts. I envisage that in any week there would also be one or two trials allocated to each of these two courts as "floating cases", to be heard if those assigned to specific dates did not proceed or took less time than estimated. In the other courts in Glasgow, I envisage a number of cases being assigned for trial in the course of a week rather than the current fortnightly period, and all being assigned to the first day of the working week. The number assigned would depend on the size of the cases; each court might be allocated cases estimated to last ten days. I envisage the movement of cases between courts in the course of the week to take up any slack.
11.13 Should a case not be heard within the time assigned to it, because of pressure of business, it would be adjourned to the earliest convenient day. From time to time it may be necessary to adjourn cases because the programme has fallen behind. It is only in the light of experience that it will be possible to assess these matters.
11.14 Cases for trial in Kilmarnock and Paisley would be allocated either to a fixed diet, or to a period of no longer than a week, during which they would be expected to be dealt with. Should the timetabling not work out as anticipated, it might be possible for the court to sit on beyond the allocated period to complete the business.
11.15 The business would be planned in a similar way from Edinburgh.
11.16 An electronic diary system, similar to that used in the Commercial Court, should be introduced, to ensure that the clerk in the preliminary diet court responsible for allocating trial diets would have full details of all diets available. That could be associated with a web site listing preliminary and trial diets.
11.17 The presiding judge would be expected to ensure that cases which merit priority were, so far as possible, given priority. Early diets would be required for the trials of accused in custody. Fixed diets might be appropriate for cases involving vulnerable witnesses or accused 175.
Trials Which Cannot Proceed
11.18 Where a trial cannot proceed because of the failure of an accused on bail to attend, the presiding judge should be able to grant a warrant to arrest the accused and adjourn the case either to a further preliminary diet or trial diet, within two months, if there is some prospect of the accused being traced and the case being dealt with. If longer was required or the future position was uncertain, the indictment would require to be deserted as at present.
11.19 The provision which allows an adjourned case to be transferred to the Sheriff Court should be retained 176. The provision is currently never used. There is scope for its limited use. When a case is about to proceed to trial, the parties are more familiar with it than at any earlier point. Where it appears to the Crown, in light of their full investigation and the information that the defence have relayed to them about the position of the accused, that the case is more appropriate for the Sheriff Court than the High Court, and that case requires to be adjourned, the Crown should identify a suitable Sheriff Court diet for which the appropriate notice could be served.
Trial in Absence of Accused
11.20 When an accused absconds shortly before the trial, the disruption and uncertainty caused can be a source of great anxiety to victim witnesses. It should be open to the court to order the trial to proceed in the absence of the accused in appropriate cases 177. In many cases that would not be possible, because his presence in court may be necessary for purposes of identification. Where there are no problems of that kind, it may be appropriate to proceed to trial to avoid the risk that evidence will be lost or become degraded with the passage of time. For example, in child sex abuse cases the alleged abuser is often known to the victim, and his presence in court would be immaterial for identification purposes.
Training
11.21 The prospects of this scheme, designed as it is to alter radically the current culture of High Court work, being introduced successfully will be greatly enhanced if those who will work under the new system undergo a period of training in its operation prior to its introduction. That applies to COPFS staff, defence counsel, solicitor advocates, solicitors, judges and court staff. Those responsible for training in each of these bodies should organise a programme of training appropriate to their role in time to deliver the training before the scheme comes into operation. That applies particularly to the Judicial Studies Committee, the body responsible for devising and implementing training programmes for sheriffs and judges, who would have the task of ensuring that all judges undergo that training, in view of their pre-eminent role in presiding over preliminary diets and from the outset setting a standard designed to ensure the success of the scheme.
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