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IMPROVING PRACTICE

APPENDIX B THE RESEARCH

Over twenty issues for research were identified at the first meetings of the Review Team. Between January and June 2002, the Review Team engaged in primary research and undertook secondary analysis of previously collected data with a view to informing the report. The main sources of data, their uses and their limitations are reviewed below. This is followed by a summary of the main findings of the research. Tables relating to specific statistical information referred to in the text of the main report are presented in Appendix C.

A. SOURCES OF DATA

High Court of Justiciary Records (I)

The Justiciary Office collects information from its monthly returns to build up cumulative yearly statistics. Justiciary Office records were used to provide information on the number of indictments registered, the disposal of indictments by plea and trial, judge days allocated to the High Court, section 76 diets, preliminary diets and minutes of postponement. Information was collated by the Review Team on most of the items from 1994 onwards. To permit comparison with other data, information was collated on the basis of calendar years, though provided by the Justiciary Office on an April to March basis since 1995.

Crown Office High Court Sitting Lists (II)

The Crown Office produces sitting lists of all indictments listed to call in the High Court. These are arranged by date and location of sitting and provide information on the number of persons indicted per case, the type of diet (adjourned or first diet), the custodial status of the accused, main charge, time-bar of indictment and, in later years, the outcome of the diet. Sitting lists also provide information on the number of courts and judges available at each sitting. High Court sitting lists were examined to establish the volume and location of business.

Data were collected on each of the above items of information from the sitting lists of two complete years, 1995 and 2001, with a view to documenting changes in pressure on the High Court. In particular, the sitting lists were examined for two aspects of that pressure: the volume of cases or business passing through the High Court and, secondly, the impact of statutory time limits on cases passing through the High Court.

Information was entered on EXCEL and analysed using SPSS (Statistical Package for the Social Sciences). The 1995 and 2001 sitting lists were comparable in every respect, except that the earlier list did not contain information on the disposal of indictments. Information appears to have been entered systematically and consistently, except for the omission of information on time-bars of 35 indictments listed in 1995 and 82 indictments listed in 2001.

Sitting lists provide information on all indictments listed to call, whether they are 'new' or 'repeat' business. They therefore provide information quite different from the Justiciary Office monthly reports on indictments received, which report 'new' business only. Information was collected around sitting lists partly because the number of indictments listed to call provides a more robust documentation of the volume and pressure of business in the High Court than Justiciary Office monthly reports, and partly because they provide information on the time-bars of all indictments listed to call in the High Court. However, sitting lists do not permit examination of identifiable indictments, or cases, for their trajectories.

Book of Adjournal (III)

The Book of Adjournal collects information around specific and identifiable indictments and follows those indictments from first diet to disposal. It therefore provides an opportunity to examine indictments for their trajectories. It also provides information with potential implications for the progress of indictments through the High Court, such as the number of productions listed and witnesses cited for each indictment, as well as productions listed and witnesses cited under section 67. The Book of Adjournal was examined by the Review Team with a view to documenting changes in case trajectories over time, as well as identifying the possible causes of these changes.

Because of the time-consuming nature of the data collection from the Book of Adjournal, samples of indictments were selected for study. Cases indicted into the High Court in 2001 were compared with 1995 by examining the first 303 indictments disposed of by the High Court in 1995 with the first 365 indictments registered in the High Court in 2001. (Changes to the recording of indictments were introduced between 1995 and 2001). Both samples comprise 25% of new indictments lodged in those years and, to provide comparability, reflect indictments dealt with at the beginning of the calendar year. A further sample of 365 indictments, lodged at the end of 2001, was later taken with a view to confirming some of the more vivid and /or significant findings of the first 2001 sample (referred to as Sample I and Sample II). The indictments examined in the research constitute 25% of the 1195 indictments disposed of in 1995 and 50% of the 1468 indictments registered in 2001.

Information was collected from the Book of Adjournal for 1995 and 2001 (Sample I) on the following: number of accused per indictment, bail status of accused, main charge, productions lodged, witnesses cited and giving evidence, police witnesses cited and giving evidence, productions listed and witnesses cited under Section 67, outcome, length of trial, sentences of all accused, all adjournments, motions to adjourn and extensions to the time- bar. Only information on trials, productions, witnesses, adjournments and extensions was collected for the second 2001 sample (Sample II).

Information was entered on EXCEL and analysed using SPSS (Statistical Package for the Social Sciences). The 1995 and 2001 samples were comparable in every respect and provided consistent and robust information on the progress of indictments through the High Court. Only information of the grounds for raising motions to adjourn was limited.

Scottish Executive Justice Statistics Unit (IV)

The Scottish Executive Justice Statistics Unit provided information on sentences passed in the High Court. This was collated to examine trends in High Court sentencing, in particular, non-custodial sentences, custodial sentences within the jurisdiction of the Sheriff Court (up to 3 years) and custodial sentences up to and including five years. Information on sentencing was supplemented by the Review Team's examination of samples of indictments (see III abov e). This revealed some crucial differences of definition, particularly in relation to non-custodial sentences. While information on non-custodial sentencing is restricted to admonitions, probation and community service orders in the Team's research (III), it includes categories not conventionally thought of as non-custodial sentences in data provided by the Scottish Executive Justice Statistics Unit (IV). This explains differences between the two sources of data, particularly in relation to current rates of non-custodial sentencing in the High Court.

B. MAIN RESEARCH FINDINGS

Sources of information are referred to below, as follows:

1. INDICTMENTS, 1995 and 2001

Between 1995 and 2001, the number of new indictments passing through the High Court rose by 23%, from 1,195 to 1,468 (I and II), though annual increases have not been consistent over time. The number of indictments lodged rose to 1,332 in 1996, but fell back in 1998 to its 1995 level. Between 1998 and 2001, there was a 25% increase in the number of indictments lodged, though most of that increase took place between 1998 and 1999. Over the short term, therefore, rates of increase depend on the baseline year selected. Over the long term, however, a more consistent pattern of increase is discerned.

Further information on changes to indictments lodged in the High Court between 1995 and 2001 was gathered from three 25% samples of indictments, one taken in 1995 and two taken in 2001 (III). While there was a 23% increase in the number of indictments lodged between 1995 and 2001, there was almost no increase in the number of homicide and serious assault indictments, while the number of robbery indictments probably decreased (III). In 2001, however, the number of sexual assault indictments was 33% higher than 1995, while Misuse of Drugs Act (MDA) indictments showed an even more dramatic increase of 72%. In 2001, approximately 30% of all cases indicted into the High Court were on MDA charges, compared with 21% in 1995 (III).

Extrapolating from our samples, it is estimated that 440 MDA indictments were lodged in the High Court in 2001, compared with 250 in 1995. In 2001, altogether 273 more indictments were lodged in the High Court than in 1995. Approximately two thirds of this increase involved MDA indictments. The contribution of MDA indictments to the increase in indictments lodged between 1995 and 2001 is clear: indictments increased by 23%, with MDA indictments responsible for a 16% increase in the number of indictments lodged and all other indictments responsible for a further 7% increase.

Other changes were observed from our study of these three samples of indictments (III). The proportion of indictments where at least one of the accused was in custody fell from 56% in 1995 to 39% in 2001, and the actual number of custody indictments also fell slightly (III). The proportion of bail indictments rose from 44% in 1995 to 61% in 2001, and the actual number of these indictments almost doubled. This reflects a significant increase in the proportion of accused indicted into the High Court who had been granted bail, from 52% in 1995 to 71% in 2001 (III). Most indictments involved a single accused, and single accused indictments slightly increased from 70% to 72% of all indictments between 1995 and 2001 (III). Even MDA indictments showed an increase in single persons indictments, increasing from 52% of all MDA indictments in 1995 to 68% in 2001 (III).

2. VOLUME AND PRESSURE OF HIGH COURT BUSINESS

Between the years 1995 and 2001, the total number of cases listed in High Court sitting lists for trial increased by 59%, although the number of new indictments registered increased by only 23%. Thus, just under two thirds of the growth of High Court lists during these years was attributed to an increase in 'repeat business', that is, indictments that had been adjourned from a previous calling (II).

In 1995, there were 104 High Court sittings and 223 courts to deal with 1326 cases listed to call on the High Court sitting lists (II). On average, every calling was allocated 1.7 days in court. In 2001, there were 110 High Court sittings and 250 courts to deal with 2102 cases. On average, every calling listed in 2001 was allocated only 1.2 days in court (II). Pressure of business was indicated by calculating the number of cases set down for every court sitting. In 1995, 6 indictments, on average, were set down for every court sitting. In 2001, however, this had increased to 8.4 indictments for every court sitting, a rise of almost 50%.

The research found considerable variation between High Court venues. In Inverness, for example, just 7 cases were set down for every court sitting in 2001 and callings were allocated, on average, 1.5 court days each. In Aberdeen, on the other hand, 12 cases were set down for every court sitting and callings were allocated, on average, just .8 of a court day. This was in marked contrast to 1995 when 5.5 indictments were set down for every High Court sitting and every indictment listed was allocated, on average, 2 full court days (II).

Between 1995 and 2001, there was a 12% rise in the number of court days and court sittings available (II), compared with a 23% increase in the number of new indictments registered and a 59% increase in the number of cases set down for trial in the High Court. Even had there been no increase in 'repeat business', the number of court days and court sittings available did not keep pace with the increase in new cases indicted into the High Court.

There was no increase in the average number of witnesses cited and productions lodged per indictment between 1995 and 2001.

3. ADJOURNMENTS

One third of all first instance throughput in the High Court in 2001 was the result of a successful motion to adjourn (III). Between 1995 and 2001, the number of diets adjourned into a sitting increased approximately six-fold (III and II). There was an even greater rise in adjourned diets amongst homicide and sexual assault indictments, which increased ten-fold or more between 1995 and 2001 (II). In Glasgow, almost half of all cases listed to call in 2001 (488 out of 1077 cases) had been adjourned into the sitting. Indictments adjourned into the High Court in Glasgow constituted 23% of all cases listed to call in the High Court in 2001, (488 out of 2102 cases listed to call).

While High Court sitting lists provided an opportunity to examine the contribution of adjournments to the business of the High Court, the Book of Adjournal provided an opportunity to examine indictments for their contribution to the prevalence of adjournments. In 2001, between 27% (Sample I) and 38% (Sample II) of all indictments were adjourned at least once, compared with only 6% in 1995. Between 11% (Sample I) and 17% (Sample II) of all indictments went on to be adjourned a second time and around 7% of all indictments were adjourned for a third time (III). While adjournments were found amongst only 5% of custody indictments in 1995, they were found amongst 23% (Sample I) and 30% (Sample II) of custody indictments in 2001. A similar increase was found amongst bail indictments. While adjournments were found amongst only 8% of bail indictments in 1995, they were found amongst 29% (Sample I) and 43% (Sample II) in 2001. Although the number of new custody indictments decreased slightly between 1995 and 2001 (see 1. above), the total number of adjournments arising from them increased seven-fold. While new bail indictments almost doubled in that time, the total number of adjournments arising from bail indictments increased eight-fold (III).

Motions to adjourn increased six-fold between 1995 and 2001 (III). While more than half was raised by the Crown in 1995, only 20% were raised by the Crown in 2001. In 2001, motions by the Defence accounted for 83% of all motions to adjourn indictments subject to the 110-day rule and 77% of all motions to adjourn bail indictments (III). The main reasons raised by the Crown were 'problems with witnesses' and 'pressure of court', while the main reason raised by the Defence was 'more time needed' (III). Opposition to, and refusal of, motions to adjourn were very rare.

Motions to adjourn were related to going to trial (III). Indictments for sexual assault and homicide were more likely to go to trial and they generated more adjournments than other cases, while indictments MDA charges generated fewer adjournments than most other cases and were least likely to go to trial (III). In 2001, approximately 52% (Samples I and II combined) of all indictments going to trial were adjourned at least once, compared with only 9% in 1995 (III). Adjourned indictments were also more likely to go to trial than indictments that were never adjourned. In both 1995 and 2001, approximately 50% of all adjourned indictments went to trial, while the trial rate was considerably lower amongst indictments that were never adjourned (35% in 1995 and 25% in 2001) (III).

4. TIME LIMITS AND SITTINGS

There was little difference between 1995 and 2001 in the proportion of cases affected by a statutory time limit within the sitting. In 2001, the time limit in just under one half (47%) of all cases listed to call in the High Court time-barred during the sitting in which they were listed to call, compared with 49% in 1995 (II) ²⁷³ (1) . The main difference between 1995 and 2001 was not in the proportion of cases that were time-barred within the sitting but in their numbers. This increased from 645 cases that were listed to call in 1995 to at least 993 in 2001 ²⁷⁴, a rise of 54% (II). During the same period, however, the number of new indictments registered increased by only 23% (1).

The explanation for this apparent conundrum was found in the contribution of adjournments to the pressure of statutory time limits on the High Court. Adjourned trial diets were more likely to be time-barred in the sitting than first diets, and this was increasingly so over time. In 2001, 73% of adjourned diets were time-barred in the sitting, compared with 62% in 1995. The actual number of cases adjourned into the sitting increased dramatically over this time (from 95 in 1995 to 781 in 2001) (II). As a result, the actual number of adjourned diets that were time-barred in the sitting increased ten-fold between 1995 and 2001, from 58 to 570.

While the number and proportion of adjourned diets in which the time-bar fell within the sitting rose between 1995 and 2001, cases were in general brought to court earlier and put less time-bar pressure on the courts. In 1995, 48% of indictments were affected by a statutory time limit at the sitting to which they were first indicted, compared with only 36% in 2001. In 2001, therefore, the procurator fiscal service was successful in indicting a higher number and larger proportion of new cases to a sitting at which they would not be affected by statutory time-limits. It accomplished this despite a rise in the number of indictments registered. Although the number of first callings entered on High Court sitting lists increased from 1231 in 1995 to 1313 in 2001 (II), the number of new cases that time-barred within the sitting fell by about one fifth (from 591 in 1995 to 473 in 2001).

5. EXTENSIONS TO STATUTORY TIME LIMITS

Extensions to statutory time limits were examined in the context of changes in the volume of new indictments registered over time, and changes in the number and proportion of custody indictments.

In 1995, cases listed in the High Court were as likely to be custody indictments as bail indictments. By 2001, however, just under two thirds of all indictments listed to call in the High Court were bail indictments (II). High Court lists reflect changes in the statutory time limits of cases indicted into the High Court. Samples of indictments selected in 2001 and 1995 show that only 39% in 2001 were custody indictments, compared with 56% in 1995 (III). Thus, despite the fact that the number of indictments registered in 2001 was 23% higher than 1995 (I), custody indictments are estimated to have dropped from 680 in 1995 to 540 in 2001 (III), a fall of 20%. This reflects an increasing number and proportion of accused granted bail amongst persons indicted into the High Court.

There was a marked increase in the number of extensions granted between 1995 and 2001 (III). During this time, extensions of the 110-day period tripled and extensions of the 12- month period increased ten-fold. While one extension was granted in every 10 new indictments registered in 1995, one extension was granted in approximately every two new indictments registered in 2001. This does not mean that extensions of the statutory time limit were granted to every second indictment in 2001. More than one extension was granted in many indictments, with three or more extensions granted in a considerable number (III). In 1995, by contrast, it was extremely rare for any time limit to be extended more than once.

The likelihood of an extension being granted rose from 9% of all indictments registered in 1995 to 24% of all indictments registered in 2001 (III). In 1995, extensions were more likely to be granted in custody indictments. In 2001, however, extensions were as likely to be granted in bail indictments as in custody indictments. Extensions were granted at least once in 24% of all bail indictments compared with just 6% in 1995. Bail indictments comprised approximately 60% of all indictments registered in the High Court in 2001 (III) and approximately 60% of all extensions in that year were to the 12-month period (III).

The research also found a considerable rise in the likelihood of extensions among custody indictments over this period. In 1995, one extension was granted in 9% of custody indictments, while a further extension was granted in only 2%. In 2001, however, one extension was granted in 23% (or 1 in 4) of all custody indictments, while further extensions were granted in 9% (III).

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