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IMPROVING PRACTICE
CHAPTER 13 THE CASELOAD
What Cases does the Court Currently Hear
13.1 The High Court is regarded as the appropriate court to hear (a) all cases which are likely to result in the imposition of sentences beyond the powers of the sheriff and (b) other cases of legal novelty or complexity or of particular public importance 183. Virtually all the business of the Court falls into the first category. As explained earlier, decisions whether to indict cases into the Sheriff Court or the High Court are made by the advocate deputes who conduct the prosecution of cases in the High Court. They are collectively known as Crown Counsel. They "mark" the papers for indictment in the appropriate court 184. A sheriff may nevertheless try cases where the penalty ultimately imposed exceeds three years in custody, since he has power to remit to the High Court for sentence any case where he holds that his sentencing powers are inadequate 185. In practice that is regarded as a power to be used exceptionally, and great reliance is placed upon the marking procedures in Crown Office to identify the correct forum.
13.2 The High Court has exclusive jurisdiction in certain cases. The common law crimes falling within that jurisdiction today are treason, murder and rape, i.e. the current pleas of the Crown, breach of duty by inferior judicial officers - all of which are specifically reserved to the High Court by section 3(6) of the Criminal Procedure (Scotland) Act 1995 - and (perhaps) deforcement of messengers and common law incest. There are also certain statutory offences which are triable only in the High Court, such as offences under the Official Secrets Act 1911 186 and the Geneva Convention Act 1957 187. A number of other cases are reserved to the High Court in practice as the result of policies of the Lord Advocate.
The Historical Development of the Caseload of the Court
13.3 That rationale for the allocation of cases to the High Court is remarkably similar to that which can be derived from the second volume of Hume's Commentaries published in 1800. He described the exclusive jurisdiction in terms of four categories:
(1) the pleas of the Crown - at that time murder, robbery, rape and
wilful fireraising;
(2) the nature of the crimes such that they require to be prosecuted
before the High Court - breach of duty by inferior judges and deforcement of messengers-at-arms;
(3) those where exclusive jurisdiction was conferred by statute
either expressly or by necessary implication because the sentence was unusual, such as banishment, transportation to the colonies or scourging; and
(4) cases involving the death penalty 188.
Throughout the changes over time, which restricted the offences for which the death penalty was appropriate and abolished other forms of punishment, it remained the rule that, at its most severe, the sheriff's solemn jurisdiction was limited to imprisonment, thus excluding, for example, penal servitude. By 1909 and the third edition of Macdonald, Criminal Law, the term of imprisonment which the sheriff could impose had to be under three years, and in practice was never more than two years 189. When penal servitude was abolished in 1949, the sheriff's sentencing power was set at two years imprisonment. 190 That maximum was raised in 1987 to three years 191.
13.4 That maximum sentence had been recommended by the Thomson Committee, which considered, but rejected, a higher maximum of four years, on the basis that cases which merited more than three years imprisonment appeared to be "of sufficient gravity to be dealt with in the High Court" 192. They also recommended the abolition of the sheriff's power to remit to the High Court for sentence 193. In recommending an increase to three years, the Thomson Committee followed the recommendation made in 1967 by the Grant Committee 194, and were in turn supported by the Maxwell Report in 1986 195. The reason advanced by Maxwell for re-examining the sheriff's sentencing powers was that the workload of the High Court was increasing "at a rate where it may shortly be unable to cope with the cases coming before it" 196. When the increase was effected by section 58 of the Criminal Justice (Scotland) Act 1987, it was justified by the Solicitor General for Scotland, in proposing the measure, by reference to these three reports and the volume of High Court work.
13.5 In 2001 26% of accused who were convicted in the High Court were sentenced to periods of detention which can be imposed in the Sheriff Court 197, and 13% received non-custodial sentences. Custodial sentences of more than three years, but not more than five years, were imposed in 29% of cases 198. That group is roughly evenly divided between four and five years. Life sentences accounted for 4% 199 of sentences, and about 22% were determinate sentences in excess of five years custody 200.
What Cases Should the High Court Hear
13.6 I have encountered no disquiet about the fact that the Lord Advocate has power to instruct the indictment of cases in the High Court on policy grounds. Setting policy aside, those who have expressed views are generally of the opinion that the appropriate rationale for defining the respective roles of the Sheriff Court and the High Court is sentencing power. That is broadly because the gravest cases are likely to attract the most severe sentences. It is universally acknowledged that it should be possible for important cases, which may well attract lesser sentences, to be heard in the High Court. The main question to be considered is whether today, in our current circumstances, the work is generally allocated appropriately between the Sheriff Court and the High Court.
Pressure of Business
13.7 I do not find at all persuasive the argument that the increasing volume of business besetting the High Court is of itself a good reason for transferring the work of the Court to an inferior court. If cases merit a hearing in the High Court, then that is where they should be heard. An increase in business should be dealt with by the appointment of additional judges to carry out the work.
The Sentencing Power of the Sheriff
13.8 A further increase in the sentencing powers of sheriffs to four or five years was canvassed by the Government in a consultation paper in 1993 201, but they decided for the time being to make no proposals. However, in a subsequent consultation document in 1996 202, the Government sought views on an increase in the maximum from three to five years. They did so because of certain changes, which they perceived as having occurred since 1994, viz. a growth in the number of remits for sentence, a projected increase in the level of High Court business (albeit that in 1994-95 business fell by 18%) 203, and the fact that by then the High Court as a Court of Appeal had explicit statutory power to issue guidelines on sentencing 204. Following that consultation, section 13(1) of the Crime and Punishment (Scotland) Act 1997 provided for an increase in the maximum to five years imprisonment. That provision has not been brought into force.
13.9 Consultations with solicitors practising in the towns where the High Court sits regularly, and with the Criminal Bar Association of the Faculty of Advocates, found the majority of consulted practitioners opposed to any increase. They were more opposed to an increase to five years than one to four.
13.10 There was a view among practitioners consulted that sentencing in the Sheriff Court is less consistent than it is in the High Court. That is a very difficult issue to address, because the sheriff deals with a far broader range of cases than does the High Court judge. It was presented to me as a perception held so widely that I am bound to recognise it. Concern was expressed that many sheriffs were appointed in circumstances which did not envisage the Sheriff Court dealing with such serious cases, and that many had little experience of serious criminal cases. There were occasions on which that inexperience showed even under the present regime. It was also suggested that the overall standard of advocacy is not as high among solicitors as among advocates, and hence not of the same quality in the Sheriff Court as in the High Court, with the result that the quality of justice is inevitably less consistent. It was even suggested, as it was in response to the Government's consultation, that the most able and experienced people in the system tend to be appointed in general to the High Court bench, and that fairly serious cases presently presided over by the most able judges would be subjected to less rigorous scrutiny. A number of solicitors felt strongly that they would inevitably be expected to carry a much greater burden of responsibility for remuneration which is inadequate for the work currently done. They felt entitled, in view of the rates paid, to turn to others with greater experience for reassurance.
13.11 The arguments relating to the quality of the judiciary undoubtedly had greater force when the Sheriff Court relied much more on the services of temporary sheriffs and the Crown had no right of appeal against a lenient sentence. There was a very large number of temporary sheriffs, some of whom sat infrequently 205. There are now far fewer sheriffs who sit part-time. On average they sit for longer, and so acquire experience more quickly. Since less reliance has to be placed on them, there is greater scope for ensuring that the more serious cases in the Sheriff Court are dealt with by permanent and experienced sheriffs. Any sentence imposed by a sheriff may be quashed, not only on the ground that it is excessive, but since 1993 also on the ground that it is unduly lenient 206. The Criminal Appeal Court has power to substitute an appropriate sentence 207.
13.12 Sheriffs are predominantly in favour of an increase in their powers, since they see in that potential for dealing with a better quality of work, which they regard themselves as qualified to undertake. The views of current High Court judges are mixed. There is much less opposition to an increase to four years than there is to five.
The Appropriate Limit
13.13 Sentences of four and five years in custody are frequently imposed in the High Court for drug offences in the moderate range and for various cases of assault and robbery 208. There is often little to choose between the circumstances of these cases and the circumstances of serious cases involving the same offences in the Sheriff Court. There exist Lord Advocate's policy guidelines about the quantities of drugs which should lead to prosecution in the High Court. It is the experience of most High Court judges that there are many marginal cases, currently prosecuted in the High Court, where a sentence that a sheriff could impose would be adequate. Other guidelines relate to robbery at commercial premises. A mugging in the street might be prosecuted in the Sheriff Court, whereas a similar attack over the threshold of an adjacent shop would be indicted in the High Court. The difference in approach seems to be more a matter of policy than gravity.
13.14 There has been a major change in the type of crime prosecuted in the High Court in the last forty years, but particularly since the early eighties. There has been a massive increase in drug trafficking cases. Many indictments involve trafficking in moderate amounts of drugs to secure funding to maintain a drug abuse habit. One seldom sees evidence of a lavish lifestyle in these and other cases involving similar quantities of drugs. There has also been a large increase in robberies at commercial premises carried out with makeshift weapons or with knives or similar instruments that are used to threaten and not to cause injury. Such cases do not in general require to be presided over by judges of the High Court.
13.15 A certain superficial attraction towards four years as the appropriate dividing line between the jurisdiction of the Sheriff Court and the High Court is to be found in the role of four years as the borderline between short-term and long-term sentences. A short-term prisoner is one serving a custodial sentence for a term of less than four years, who is generally entitled to release after serving one-half of his sentence 209. A long-term prisoner is one serving a custodial sentence for a term of four years or more, who is entitled to release on licence after serving two-thirds of his sentence and who may be released after serving one-half. However, it is significant that sentences of four years in custody are defined as long-term sentences. While there is much to be said for logical consistency in the criminal justice system and relating the jurisdiction of the two solemn courts to short and long-term sentences respectively, the link would be no more than coincidental. Were the sentencing powers of the sheriff to be increased to four years, the sheriff imposing such a sentence would be imposing a long-term sentence. In the Kincraig Report in which the system of early release of prisoners was examined and recommendations for change were made, the proposed dividing line between and long and short-term sentences was five years 210. It may be that the present system exists simply because it is consistent with the policy decision that was made for England and Wales.
13.16 With a view to assessing the likely impact of increasing the sentencing power of the sheriff to five years upon the division of work between the Sheriff Court and the High Court, Crown Office carried out an experiment over a six week period in June and July of this year to try to judge what percentage of cases that were marked for High Court proceedings would in these circumstances have been marked for Sheriff Court proceedings. Of the cases presently indicted in the High Court, 22% were identified as suitable for Sheriff Court proceedings. Significantly 55% of the cases involved drug trafficking, 24% involved assault and robbery, and 12% assault to severe injury. These are all offences commonly prosecuted in both courts. Another significant finding was that these cases generally involved about 50% fewer witnesses than the cases which continued to require High Court proceedings. These findings suggest that increasing the sentencing power of the sheriff to five years would result in the transfer to the Sheriff Court of cases of a type that sheriffs are already used to dealing with. They also suggest that the impact of such an increase upon the Sheriff Court would be less than might be expected on the basis of the sentence statistics which I quoted above. That is an encouraging finding, since many Sheriff Courts are already under pressure from their existing workloads.
13.17 There is no doubt that the sentencing power of the sheriff should be increased. The extent to which it should be increased is debatable. It is important that judges of the High Court should deal with the most serious cases, and should not be involved in cases which can be dealt with perfectly adequately in the Sheriff Court. An increase in the power to five years would transfer to the Sheriff Court more serious cases of a similar kind to those currently prosecuted there. The Scottish Executive should now implement section 13(1) of the Crime and Punishment (Scotland) Act 1997 and increase the sentencing power of the sheriff to five years. It would, of course, remain open to the Lord Advocate to indict in the High Court any case that he considered should be heard there on account of the novelty or difficulty of any point of law raised or the importance of the case.
Preparing for the Change
13.18 The Judicial Studies Committee should arrange appropriate training for sheriffs to prepare them for their extended role.
13.19 Although the cases which would be transferred to the Sheriff Court would be spread over a much larger number of courts than they are in the High Court, there would be significant concentrations in certain Sheriff Courts, such as Glasgow and Edinburgh. The Scottish Court Service would require to give careful consideration to how the transfer of this business would be accommodated within the Sheriff Court.
The Sheriff's Power to Remit a Case to the High Court for Sentence
13.20 When the sheriff's sentencing power was increased to three years, there was a fear that there would be a significant increase in the number of sentences imposed between two and three years. That was based on the view that there was a significant number of cases which sheriffs might have considered remitting, but chose instead to deal with by imposing the maximum sentence open to them. The same risk has been identified in my consultation. On the other hand, there is no clear evidence that such was the result of the increase in 1988. Even if that were to occur, the Criminal Appeal Court would very quickly resolve the problem. Having said that, even a short-term increase in the prison population could give rise to serious problems. My impression from consulting sheriffs is that the risk is imaginary rather than real. In any event, I consider that it serves a very useful purpose to identify the potential risk, and to stress the importance of avoiding an inappropriate reaction to having additional power. The fact that 39% of persons indicted to the High Court attract sentences that could competently have been imposed in the Sheriff Court 211 rather militates against the idea that there is a body of cases in the Sheriff Court receiving artificially restricted sentences.
13.21 While providing reassurance in one area, that same figure gives cause for concern on another front. Although there may be many reasons why individual cases are properly marked for High Court proceedings but ultimately attract only Sheriff Court sentences, 39% overall is a rather high figure, indicative of a rather cautious approach to the marking of cases in Crown Office. It is undoubtedly difficult to make absolutely accurate decisions on choice of forum on the appearance of a case from paper and without foresight of the case that the accused intends to present in his defence. However, if it turns out that a case indicted in the Sheriff Court merits a custodial sentence in excess of the sheriff's powers, there is the safety net of the sheriff's power to remit the case to the High Court for sentence 212. That power is little used in practice. Courts have occasionally been critical of the Crown for indicting a particular case to the Sheriff Court thus requiring the sheriff to exercise his power to remit. That discloses a view that the power to remit is there as a sort of emergency measure. On the other hand, some see it as an inherent part of the system, since they consider certain types of case inappropriate for trial in the High Court. A particular example is an indictment involving multiple charges of housebreaking. There is a view that that should be tried in the Sheriff Court, and that the sheriff should remit to the High Court for sentence, depending on the gravity of the conviction recorded. There are others whose experience is that housebreaking was regularly prosecuted in the High Court in light of the gravity of the offence or the record of the accused pointing towards a sentence in excess of three years.
13.22 There is nothing in the existing statutory provision to suggest that it should be regarded as other than an inherent part of a coherent system for distributing the prosecution of solemn cases between the Sheriff Court and the High Court. A clear understanding that that is the position should encourage more robust marking of cases by Crown counsel. It is only right that all possible steps should be taken to ensure that it is the most serious and most important cases that are heard in the High Court. There is no reason to doubt that care would continue to be exercised in the marking process to ensure that that remained the case. On the other hand, excessive caution could be eliminated.
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