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IMPROVING PRACTICE
CHAPTER 12 THE HIGH COURT IN GLASGOW
Background
12.1 It is an essential feature of a circuit system that some of the court personnel must travel from their home base to each circuit court. To locations where the Court sits occasionally, almost all the personnel who work in the Court must travel. That must continue to be the case. In particular, that applies to the clerk, who is the principal administrative official in each court, and the macer, who carries out a variety of practical duties to prepare the court for business and to ensure the smooth running of the court when in session.
12.2 In Edinburgh and Glasgow the High Court sits effectively on a full time basis. In Glasgow there are six courtrooms used exclusively for the work of the High Court. In Edinburgh there is a similar smaller courthouse. However, Edinburgh is home base for staff of the Supreme Courts. The offices of the High Court are in Edinburgh. These courtrooms are part of the Supreme Courts complex of courts. In addition, courtrooms within Parliament House are regularly used for High Court trials which cannot be accommodated in the courts ordinarily available for High Court work.
The Current Practice in Glasgow
12.3 A large number of the court staff in Glasgow are transient. Although the court is in constant session in Glasgow, a fresh complement of judges, clerks and macers. with fresh bundles of case papers, should travel every second Monday to begin work there anew. The theory is rather different from the practice. Trials extend beyond the end of two week sittings much more frequently now than they did in past years. The reasons for that are largely those listed as the causes of the problem in Chapter 5, and also the, in my opinion misguided, practice of using the early days of the sitting to identify the cases in which a trial will not be required at that sitting, and thus delaying the start of those which will. Judges may remain in Glasgow for consecutive sittings. The judge's clerk and macer may remain for the same length of time. Nevertheless, there is a regular turnover of personnel manning the six courtrooms. One clerk is based permanently in Glasgow and has the role of court manager responsible for co-ordinating the work of the various courts. He has been relieved of the routine duties of a clerk in court. Two macers are based there permanently, as are other ancillary staff.
Full-Time Clerks
12.4 The appointment of a court manager in Glasgow is viewed by those working in the Court as a success, whereas the regular changeover of the clerk in each of the other courtrooms is an impediment to the efficient discharge of the work of the Court. The first thing the clerk has to do on arrival at a sitting is establish his post. Each clerk carries a variety of material and equipment which are used in the course of his duties. These have to be put in place. The clerk carries the papers for the sitting and has to arrange them. The papers are brought from the Justiciary Office in Edinburgh, because that is where all High Court papers are processed. In the ideal situation the clerk will have prepared the papers personally, but pressure of work and last minute changes to clerks' duties often prevent that. Time must be spent getting to know the history of, and the state of play in, each case. That inevitably involves duplicating work already done by another clerk. Further duplication of work occurs when that clerk, in keeping with each clerk who works in the courtroom, has to become familiar with the equipment that is there and any idiosyncrasies of the courtroom. Just settling in takes time.
12.5 For administrative reasons, cases indicted to Glasgow and elsewhere are all processed in Edinburgh. A new computerised system for the registration of cases, currently being developed, will mean that the papers will not require to be processed in Edinburgh. If the papers for cases indicted to Glasgow were processed in Glasgow, there would be no administrative reason for a clerk of court to travel from Edinburgh. The presence of a clerk in each courtroom on a full-time basis would provide a focal point around which the administration of that courtroom would revolve. There would be a readily identifiable point of contact for all involved in the work of that court. He could be a recipient and custodian of copies of documents and other materials for use in that court. He would be central to the programming of work for that court and arranging the efficient execution of business there.
12.6 The clerk requires a thorough knowledge of criminal practice and procedure, and must be familiar with all rules and practice relating to sentencing. He is responsible for keeping the formal records of court proceedings, and for issuing the documents on the basis of which effect is given to court orders. His minutes of legal debates before and during trials provide an outline of the proceedings for consideration by the Criminal Appeal Court in due course. The documents for which the clerk is responsible must be completed with a high degree of accuracy and precision.
12.7 He is also the administrative interface between the judge and the parties, and between the Court and potential, and then balloted, jurors. He is the Court's point of contact with agencies which serve the Court, such as the Social Work Department, and those who are called upon occasionally to assist the court, such as medical experts and nowadays drug abuse experts. In order to be effective, he must be a good communicator, and relate well to all with whom he has contact. He is also the Court's point of contact with the administrative support that must be called upon as and when required, such as technicians to operate technical equipment, and additional policing to provide added security at tense moments. Judges are isolated from the administrative arrangements that have to be made to run the court. They inevitably come to rely heavily on their clerks to manage their court. In undertaking that task the clerks have to exercise knowledge and experience, and public relations and management skills.
12.8 Under the system now proposed there would be added to his responsibilities a much greater management role. He would, in conjunction with his colleagues in other courts, ensure that the courtroom was fully utilised, and that arrangements were made to accommodate in other courtrooms cases which might not be dealt with in his courtroom. It is vital that good clerks within the service are encouraged to take up the posts that would be created in Glasgow, and that they should in due course be replaced by staff of at least equal calibre.
12.9 The judges consider that the Supreme Courts have been well served for the most part by the clerks working there in recent years.
12.10 Clerks should in theory to travel to, and work in, Glasgow, when the judges to whom they are assigned are there. Judges value the judge/clerk relationship. The allocation of clerks, and indeed macers, to particular judges can result in the development of a good working relationship and a level of understanding that in turn produces efficient and effective working practices. Many judges feel strongly that that relationship should be maintained so far as possible, whether they are working in Edinburgh or elsewhere. However, records show that most judges have their allocated clerk with them for less than half of their working time. A judge could continue to have an allocated clerk for work in Edinburgh and on circuits elsewhere, but the value of the relationship described does not outweigh the benefits that would flow from having a full-time clerk in each of the Glasgow courts. Every effort could be made to allocate the same clerk to a judge each time that judge sits in Glasgow, with a view to maintaining the benefits of the judge/clerk relationship.
Procurator Fiscal Sitting Manager
12.11 Under the proposals of the Quality and Practice Review Unit, there will be Crown Office staff in Glasgow responsible for indicting cases and for all work in the case thereafter to the point of trial 178. The Crown staff most familiar with the cases will thus be on site. It may be that the Chief Executive of the Crown office would wish to consider whether the sitting manager, responsible for co-ordinating the work of the various courts, should continue to be a legally qualified member of staff. It may be a better use of resources to engage legally qualified staff in core prosecution work, wherever possible, and to commit those with experience and training in management to the role of sitting manager in Glasgow. The same approach might be appropriate for Kilmarnock, Paisley and Edinburgh. The position may have to be viewed differently in other courts where the Quality and Practice Review Unit envisages the sitting manager being based in the locality rather than in Crown Office 179.
Faculty of Advocates - Administrative Support
12.12 Although solicitor advocates now conduct a substantial number of cases, the majority of accused are represented by counsel. I have already discussed a number of problems relating to the availability of counsel. Those with experience of working in the Court, including members of Faculty themselves, believe that if the Faculty had administrative support based in Glasgow, working closely with the sitting manager and the clerk who is court manager, the problems would have been reduced. The Faculty have already agreed in principle to establish such a post, but no one has been appointed. The implementation of the proposals in this Review should bring order to the business of the court, but will not substantially reduce the business of the court. The same need will remain for administrative support to co-ordinate the work of counsel and liaise with court staff in organising the commitments of counsel and ensuring their availability.
Judges
12.13 Just as I found general support for the High Court continuing to sit on circuit throughout the country, I found a similar level of support for the most senior judges in the country continuing to sit on circuit in Glasgow. Just over 50% of the business of the High Court is dealt with in Glasgow 180. A high proportion of the most serious cases are heard there. The continued presence of the most senior judges in the country to deal with that workload is seen as according due recognition to the importance of the work of the High Court in Glasgow.
12.14 Some have suggested that there would be advantages in having full-time judges in Glasgow. These judges would specialise in criminal work and would not have duties elsewhere. That would solve the problem that days towards the end of a sitting can be lost because a judge cannot afford to start a case that will spill over into the following week when he is due to sit in Edinburgh or in another circuit town. Appointing such full time judges would be a significant innovation. They would fall into a completely new category created specifically for Glasgow. If there was general dissatisfaction with the way in which criminal business is dealt with at present by judges of the High Court, then there would be a case for looking at such an innovation. There is no such dissatisfaction. No one has indicated any particular benefit to the interests of justice that would accrue from the introduction of permanent criminal judges in Glasgow.
12.15 The problem that has to be addressed is the allocation of judges to Glasgow for such periods of time as will enable trials to be programmed in the way that I have already outlined. Other benefits would flow from judges spending significant blocks of time in Glasgow or on criminal business generally. If the basic period for which a judge was assigned to Glasgow was four weeks rather than two, that alone would provide greater flexibility in the execution of the business of the Court, and substantially reduce the potential for time to be lost because a judge cannot start a trial. Some judges have indicated willingness to sit in Glasgow or on criminal business for longer periods than four weeks, adding greater flexibility to the system. Judges could also be assigned to criminal business for a specific period in the way that judges are nominated to preside in the Commercial Court. Judicial willingness to be adaptable will be a major asset in endeavouring to introduce a greater degree of certainty into the programming of business.
Temporary Judges
12.16 There will always be pressures on the judicial resources of the Supreme Courts, which will require the temporary engagement of additional judges to ensure that business is not postponed 181. That additional cover is currently provided by retired judges and temporary judges. Only one of the retired judges sits in criminal cases at first instance. The others sit only in Divisions of the Inner House of the Court of Session, which hear appeals in civil cases, or in the Criminal Appeal Court. Certain sheriffs principal sit occasionally in the Criminal Appeal Court, particularly when appeals against sentences imposed in summary cases are being heard. A number of sheriffs have been appointed temporary judges, but the only ones recently sitting regularly are retired sheriffs. One other temporary judge sitting regularly in criminal cases at first instance is a senior Queen's Counsel. Another senior Queen's Counsel sits regularly in the Outer House of the Court of Session to deal with civil business at first instance.
12.17 There are, therefore, a number of temporary and retired judges, who are called upon to sit to relieve pressure. However, no particular commitment of their time is required of them, and most are not expected to undertake first instance criminal work. As a result, when there is a demand for an additional judge or judges over and above the usual complement for criminal trials, that requirement regularly has to be met from the ranks of permanent judges, who are replaced in the Court of Session and the Criminal Appeal Court by temporary judges. Judges' court commitments are regularly rearranged at short notice. There should be greater certainty in a judge's commitments throughout the years. There should be a larger pool of temporary judges willing and able to step in when a replacement or an additional judge is required at short notice.
12.18 The Lord President has taken steps to address this problem. In September he announced the appointment of five Queen's Counsel as additional temporary judges. The majority are to undertake first instance criminal work. The expanded pool of temporary judges should reduce the extent to which the commitments of permanent judges are altered at short notice. There should thus be greater certainty in the programming of judicial commitments. The extent to which that can be achieved will depend upon the availability of the additional temporary judges. There is a need for temporary judges who are able to give either an open-ended commitment or a commitment for a lengthy period, such as six months, to the work of the High Court at first instance. That may be a difficult commitment for busy senior counsel to make. The same result might be achieved if the practice was revived of appointing a limited number of experienced sheriffs to be temporary judges, but this time securing their commitment to the High Court for longer periods. While absent from their normal Sheriff Court duties, these sheriffs could be replaced by part-time sheriffs 182. Making this additional judicial resource available would increase the prospects of introducing greater stability into the system in general. The introduction of preliminary diets should make it easier to identify in advance those periods for which temporary assistance will be required.
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