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MODERNISING JUSTICE IN SCOTLAND: THE REFORM OF THE HIGH COURT OF JUSTICIARY

Chapter 6: MODERNISED TIME LIMITS

62. Where is this covered in Lord Bonomy's report?

63. Chapters 5 and 9

What is the present law?

62. Under the present law, the time limits for trials under solemn procedure (i.e. jury trials) are as follows:

• Where the accused is remanded in custody to await trial, the trial must start within 110 days of full committal for trial. The prosecution must issue the indictment - the detailed charges which the accused has to answer - not less than 29 days before the start of the trial. The indictment must, therefore, be issued by the 80th day.
• Where the accused is at liberty, the trial must start within 12 months of the first appearance by the accused on petition in respect of the offence. Again the prosecution must issue the indictment not less than 29 days in advance of the start of the trial.

The consequence of inadvertently breaching either the 110 day time limit or the 12 month time limit is that the accused will be free for all time from the charges.

64. The custody time limit can only be extended by a High Court judge, whether in a sheriff and jury or a High Court case. The 110 day or 12 month time limits can be extended by the Court on application by the Crown or the defence or both. The Crown can also apply to extend the 80 day time limit, but not by reason of some fault by the prosecutor.
65. If the Crown fail to bring an accused person to trial within the time defined by statute then the person accused of the crime must be released and can never be tried again. This applies irrespective of the seriousness of the crime. It also applies where all parties were ready for the trial to commence but there has been a simple human error in the calculation of the date.

What are the arguments for change?

66. The 110 day time limit has sometimes been described as the 'jewel in the crown' of the Scottish criminal justice system. This is because it provides a very tight time limit that ensures persons accused of serious crimes are not kept in custody for undue periods in uncertainty about their fate.
67. A long extension of the 110 days is exceptional in Scotland, and confined to highly complex cases such as the 'Lockerbie' case. Unfortunately, however, short extensions have become much more frequent in recent years, particularly in the High Court. As Lord Bonomy found, an extension was granted in only 11% of cases in 1995, but in 24% of cases in 2001. Bearing in mind that over 60% of cases are dealt with as a plea of guilty, that is a very high proportion.
68. The Crown almost invariably manages to meet the 80 day deadline for issuing the indictment, but rarely issues it far in advance of that point. This means that, although the defence will have been able to precognosce (interview) witnesses on the basis of the Crown's provisional list and may have seen reports and some other case documents, the period available to the defence for much of the preparation for trial is normally the 29 days or so between around the 80th and 110th days. There are many steps to be taken during that period. The defence has to study the list of witnesses, carry out precognitions if appropriate, inspect the productions that will be shown to the jury in court, and give notice to the Crown of any special defences or procedural matters that the defence wishes to raise. In addition, the Crown may give late notice of particular aspects of evidence such as forensic reports which then require to be examined by the defence. Lord Bonomy considered 29 days is not an adequate period for defence preparation in the High Court.
69. Lord Bonomy's response to that issue was two - fold. As we have already seen, he laid great stress on earlier Crown information to the defence so that preparation work can start in advance of the indictment and late notification of critical evidence is reduced to the absolute minimum. But he still considered that 110 days overall was too short a time to allow for adequate defence preparation, and liaison between Crown and defence, in the most serious cases.
70. Lord Bonomy recommended no change to the 80 day limit within which the Crown has to serve the indictment. He saw that, rather than the 110 day time limit, as the key 'jewel in the crown' in that it met the requirement that an accused person should not lose his liberty for a lengthy period without knowing the charges he is to face and when he is to be tried for these crimes.
71. He therefore proposed that the 110 days should run, not to the trial, but to the preliminary hearing at which the Crown and defence would appear before a judge to discuss their readiness to go to trial. The trial would have to start within 140 days. He proposed this change should apply throughout solemn procedure.
72. A similar problem for defence preparation can arise at the end of the 12 month time limit which applies in cases where the accused is at liberty. The indictment must be issued at least 29 days in advance of the trial, leaving the defence with a similarly telescoped period for preparation. While the Crown aspires to issue indictments well in advance of the 12 months, this is not always possible and in 2001, extensions of the 12 month rule were sought in 24% of cases.
73. To deal with this, Lord Bonomy proposed that there should be introduced a new 9 month deadline for the case to go to preliminary hearing. This would effectively require the Crown to issue the indictment within 8 months. It would leave a 3 month period during which the case could be set down for trial, allowing the defence ample time to complete their preparations.
74. Lord Bonomy proposed that the consequence of breaching the 140 day time limit should be that the accused should be entitled to apply for bail. He considered that it was wrong that an accused person should escape the consequences of his alleged actions purely because of an inadvertent breach of the custody time limit. However he considered that the consequence of breaching the 12 month deadline should remain as at present.
75. Lord Bonomy recognised that as cases become more complex, it is increasingly likely that it will be impossible in some instances to comply with one or more of the time limits. He recommended that where that is known at a fairly early stage it should be competent to apply to the court to extend the relevant periods, including the 80 and 110 day periods and any other time limit that applies, even though the indictment has not been served.
76. Lord Bonomy recommended that applications to extend custody time limits in sheriff and jury cases should be dealt with by the sheriff.

What were the views expressed in consultation?

77. The Faculty of Advocates and some of the judiciary were in favour of the recommendation. Some other consultees were not persuaded by the arguments and suggested that the recommendations for early disclosure be implemented before a decision is made on modifications to the time limits. They stressed the importance of early case preparation by both prosecution and defence. Some consultees expressed the view that the extension of any custody time limit should always be dealt with by the High Court.

Our detailed proposals and how we will implement them

78. Like Lord Bonomy and our consultees, we believe that there should be firm time limits for High Court trials and that these are a crucial safeguard to our justice system. Like them, we agree that the key 80 day time limit for the Crown to issue an indictment should remain unchanged, although as cases become more complex that deadline becomes increasingly challenging for the Crown.
79. However, we also believe that there is room for improvement in how the time limits actually operate. A time limit which is extended in a significant number of cases - around half of those cases which actually go to full trial - has become ineffective in practice in safeguarding justice. The result of extensions can be inconvenience for witnesses, and uncertainty and anxiety for victims. Extensions also lead to churn in the business of the High Court with knock on effects for other cases and for all the agencies involved. And the accused does not benefit from postponements which leave him or her in uncertainty for longer than necessary.
80. We therefore believe there should be a solution which provides realistic deadlines that will be met in all but the most exceptional cases.
81. Lord Bonomy has put forward a package which we believe delivers this solution. The package modernises the operation of the 110 day time limit so that it marks the deadline for the preliminary hearing rather than the trial. The effectiveness of this change depends on the preliminary hearing being properly managed to ensure that cases are ready for trial on fixed dates.
82. The change will mainly benefit the defence, creating more certainty for accused persons whose stay in custody could otherwise significantly exceed 110 days. The defence will require to come to the preliminary hearing with a clear view of the preparations still required for trial and how long these will take. If it is not possible for the trial to be held within the 140 day outer limit, it will be possible to apply for an extension, but the intention should be to be ready for trial within the 140 days.
83. There will also be some benefits to the Crown in allowing more leeway to resolve problems over witnesses such as expert witnesses, who may have other commitments and who need fixed trial dates which accommodate those commitments.
84. The change will also be of wider benefit to victims and witnesses generally, to save them from preparing themselves repeatedly for trials that are postponed.
85. We therefore propose to legislate to provide that the 110 day time limit will apply from the accused's full committal for trial to the new preliminary hearing to be introduced in the High Court, with the further safeguard that the trial must start within 140 days of full committal.
86. This change will only be effective if judges in the High Court actively manage preliminary hearings. There is a responsibility on the parties to come prepared to the preliminary hearing but there is also a need for a more proactive approach to judicial case management to hold the parties to account.
87. We do not plan to make a similar change in the sheriff and jury court. As has been pointed out by a number of our consultees, the 110 day deadline is extended far less frequently in the sheriff court than in the High Court, and the sheriff court also manages to accommodate a first diet in the period available between issue of the indictment and trial. We would not wish to alter a timetable which is working satisfactorily in the sheriff and jury court and - unlike Lord Bonomy - we see no intrinsic reason why the arrangements should be the same in both courts. However, we do agree with Lord Bonomy that extensions to custody time limits in sheriff court cases be considered by the sheriff.
88. There are other important differences between the two courts, particularly in the way the Crown manages High Court and sheriff court cases. The preparation of a High Court case is generally complex and resource intensive for the Crown. The case management of High Court indictments is handled centrally by the Crown Office in Edinburgh, although the Procurator Fiscal's Office at Glasgow High Court has recently been brought under the management of the Crown Office and now plays a greater role in the management of indictments. Sheriff court solemn cases are dealt with locally and are less likely to require legal representatives and witnesses to be assembled from different parts of Scotland, with the delays that this can involve. Communication is easier in the local forum, and it is easier to resolve timetabling difficulties.
89. Regarding the deadline in non-custody cases, we have considered carefully the views of our consultees. It is to the benefit of justice for criminal cases to start as soon as possible while witnesses' memories are still fresh and they are able to give their best evidence. It also avoids unnecessary delay and anguish for victims, and it ensures that people who are charged with serious crimes are dealt with quickly and effectively.
90. But we have to recognise that different cases require different amounts of preparation and that the Crown have a difficult job in balancing the use of resources to make sure that the interests of justice are met. In some cases, for example involving child witnesses, speed may be of the essence. In others, involving complex documentary evidence, thorough preparation is essential and this may be very time-consuming.
91. We consider that the Crown must have the scope to manage its limited resources in the most effective manner and that a general deadline of 9 months to preliminary hearing is a step too far at this time. It would be wrong to legislate in such a way as to recreate the culture of extensions and postponements which led to this review in the first place. It is also worth noting that the 12 month limit itself is a demanding one. It has no counterpart in many other legal systems, and was only introduced in Scotland in 1980; before that there was no time limit at all in bail cases.
92. We can see logic, however, in the defence having the same minimum amount of preparation time in non-custody cases as in custody cases, and this points to a limited change - to require the preliminary hearing in High Court cases to be held within 11 months of the accused's first appearance on petition, which effectively means that Crown will have to issue the indictment within 10 months. We propose to legislate to this effect.
93. We also agree with Lord Bonomy's analysis that a better balance would be struck between the rights of the accused and the wider rights of society were we to provide that where the Crown is unable to bring a case to trial within the custody time limit, the accused should be entitled to be released on bail. S/he will still have the protection of the 12 month bail limit, and will know that if the case does not come to trial within 12 months of the first appearance on petition the charges will be dismissed for all time. This change will apply to all solemn custody cases.
94. We will also legislate to provide for a single ground for extension of time limits - that of 'cause shown'. It will have to be demonstrated to the satisfaction of the court that there is good reason for the extension.
95. The Crown manages to serve an indictment within statutory time limits in almost all cases, but there are, as Lord Bonomy recognises, cases of exceptional complexity where it is clear before the indictment is served that it will not be possible to bring the case to trial within the statutory time limits. We agree that in such cases the Court should have the discretion to extend the relevant periods, after hearing the legal representatives of the Crown and the defence.

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