The Scottish Government

« Previous | Contents | Next »

Listen

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

Chapter 8: GREATER CERTAINTY THAT TRIALS WILL PROCEED

Where is this found in Lord Bonomy's report?

115. Chapters 8 , 9 and 11.

What is the present law?

116. An accused person who appears on petition has no certainty about when or where his trial is to take place until he is served with the indictment outlining the charges he faces and listing the witnesses the Crown will call and the productions they are relying on. Even at that stage he is only provided with information telling him what sitting his trial will call in. This is a window of 10 - or sometimes in practice even more - court days within which his case may or may not call.
117. Warrants can be issued for the arrest of a witness who either avoids citation because s/he wilfully evades the police, or who once cited does not appear for trial. Once arrested they must either find financial security for the court to ensure attendance or be remanded into custody until their evidence is given. Research conducted on behalf of Lord Bonomy indicated that witness problems were the most common cause of adjournments sought by the prosecution.
118. In addition currently the Crown must be in a position to have available for calling as a witness by either the Crown or defence all witnesses listed on the indictment. Even if a witness is speaking to a minor matter only, the Crown cannot excuse that witness without consent of the defence. There is no requirement on the defence to alert the prosecuting authorities that a particular witness is essential.
119. Where a forensic scientist is required to give evidence, a notice is served on the defence identifying the two scientists involved in the preparation of the report and naming the scientist the Crown will call unless challenged. When trials are delayed this notice can become out of date and cause a problem for the laboratories in committing the named scientist who may have leave or other court commitments to meet.
120. Trials can also be aborted if an accused on bail fails to appear or absconds during the trial. Even if all the evidence has been led, when an accused absconds during a trial there is no provision for the trial to continue and the jury to reach a verdict.
121. In addition, under Section 67 of the Criminal Procedure (Scotland) Act the Crown can serve further evidence on the defence until 48 hours before the trial starts. This could include (for example) forensic reports or the final result of a DNA analysis on which the defence will require to commission its independent tests. Inevitably this causes the defence to request, and receive, a further adjournment.
122. Paradoxically, inefficiency can also result from the absolute requirement in solemn procedure for the accused to be present at every hearing - even procedural hearings in which they have no active role.

What are the arguments for change?

123. Consultees - particularly the general public - identified the importance of being clear that trials will start on time, and that once started they will continue until a verdict is reached. These principles should not be easily thwarted by unco-operative witnesses or accused.
124. At the same time the current system results in a number of witnesses who will not, in the event, be called having to attend court. For each case indicted by the Crown to a sitting the witnesses listed on the indictment are, unless previously excused with consent of the defence, required to plan to attend to give evidence. Even if the trial is not one of the 60+% which ends abruptly in a guilty plea, or the further 24% which are currently adjourned, they may simply not be called at all.
125. Lord Bonomy recommended that the law in relation to the court's handling of reluctant witnesses should be clarified, and that courts should be able to reinforce the requirement on a witness to attend by monitoring the witness electronically. He also recommended that action should be taken to improve the arrangements for ensuring that witnesses come to court, proposing a working party involving the Crown Office and Procurator Fiscal Service and the Association of Chief Police Officers (Scotland) to report back on a national system for witness citation.
126. He also proposed that it should be possible for parties to change the dates of the preliminary and trial hearings.
127. Lord Bonomy recommended that in certain circumstances the trial should be able to proceed in the absence of the accused. In addition should an accused fail to appear for trial and a warrant be issued for his arrest the indictment should remain 'live' for a period of up to 2 months to enable the accused to be arrested and the trial to proceed without the need for the Crown to prepare and serve a new indictment. He also, however, recommended that there should be a less rigid requirement for the accused to be present at procedural hearings which focus on purely technical matters (one example would be a post conviction hearing continuing custody pending the receipt of a detailed psychiatric report).
128. He also recommended a review of the arrangements for the citation, excusal and attendance of jurors with a view to eliminating unnecessary attendance at court and clarifying the nature of their commitment to jury service. He also made some recommendations about jury management in court, including the proposal that the jury should be the last to take their place in court and the first to leave it.
129. In relation to the supporting information available to judges, Lord Bonomy recommended that scarce social work resources should be focused on the timely completion of post trial Social Enquiry Reports, with a review of the needs for reports pre - trial. He also recommended that Social Enquiry Reports should be delivered in parallel to the Court and the defence, rather than to the Court alone as at present.

What were the views expressed at consultation?

130. There was strong support for the entitlement of the accused to apply to the Court to obtain an early trial date, as well as for the provision to enable parties to postpone it. These recommendations were essentially non-controversial. While there was support for the principle of more flexible sanctions in relation to reluctant witnesses, consultees advised that consideration be given to those witnesses who are reluctant to give evidence for very good reasons. There was broad agreement with the proposal that reliance on the evidence of one forensic pathologist should be permitted. Trial in absentia, however, was very controversial. Comments on the recommendation relating to Social Enquiry Reports were limited but generally supportive, particularly from the six local authorities who responded on this point. There was opposition to the idea of direct service on the defence.

Our detailed proposals and how we will implement them

131. The Court rather than the Crown will fix the date of trial. It is recognised that there may be practical difficulties for the Crown in establishing the availability of witnesses for any date to be fixed. We are currently working with our criminal justice partners to establish a model that would work to the satisfaction of all concerned. The overall aim is to fix a date for trial when parties are ready to proceed and avoid wasted attendance at court by those who are witnesses in the case and limiting the concern and trauma associated with that. We recognise, however, that it will be necessary to retain some flexibility in the system to bring in trials at short notice to make optimal use of judicial and court resources.
132. We will implement Lord Bonomy's recommendation that it should be possible to bring forward the date of preliminary hearing and trial.
133. As already noted, strong reservations were expressed in consultation about Lord Bonomy's recommendation in relation to trial in absentia. We are considering how best to balance the rights of the accused against the rights of victims and witnesses not to have their case repeatedly adjourned because one or more accused repeatedly fail to attend or because the accused absconds at a late stage in the trial. This is an exercise the House of Lords has felt able to perform in England and Wales in R v Jones( Anthony) [2003]1 AC 1.
134. A possible option would be to legislate to enable the Court to allow a trial to proceed exceptionally in the absence of the accused where there was clear evidence that the accused was aware of the hearing date and had absconded and the Court was satisfied that the case could proceed without unfairness. The classic cases for such consideration would be those where there were several accused and one or other was apparently attempting to thwart the trial process, where the accused absconds after repeated adjournments at defence request or - perhaps the clearest of all - where an accused on bail absconds after evidence has been concluded. Such a power would probably be exercised very rarely by the Court, but it would act as a deterrent to accused who may be inclined to play - or take a chance with - the system. Further we will implement Lord Bonomy's recommendation that when an accused has failed to appear for trial and a warrant issued for his arrest the indictment will remain 'live'.
135. Lord Bonomy recommended that it should be possible to monitor reluctant witnesses electronically. We propose to use the High Court Bill to take forward our proposals for the introduction of electronic monitoring as a condition of a bail order. Electronic monitoring is currently used to monitor compliance with a restriction of liberty order (RLO); the policy intention has always been that the RLO should be used as an alternative to custody for high tariff offenders. Adding the possibility of electronic monitoring on bail will provide courts with an additional option to reduce unnecessary remand in custody while retaining some central control which will restrict an accused's movements in the community.
136. We agree that the only current options in relation to an unco-operative witness - finding financial security or being remanded in custody - are too stark, and that a wider range of choices needs to be available. We therefore propose that the status of witnesses who abscond or are reluctant to attend should be altered to enable the appropriate court to place them on bail as an alternative to remanding them in custody. Thereafter appropriate conditions of bail could apply, including the power of the police to arrest a witness without warrant in the event that they consider the witness has breached or is likely to breach any of the conditions of bail. In time, electronic monitoring of witnesses might be an option, but in the short term our intention is to pilot electronic monitoring as a condition of bail for accused persons who would otherwise be remanded in custody.
137. The Crown Office and Procurator Fiscal Service and the Association of Chief Police Officers in Scotland are reviewing practical measures to improve arrangements for citation and excusal of witnesses, including the possibility of extending postal citation by the Crown to the High Court. The question of establishment of a new body responsible for citation of witnesses is one which should be given further consideration in light of the review already in hand and the detailed modelling, which is underway as between the Scottish Court Service and the Crown Office and Procurator Fiscal Service, of the arrangements for fixing and managing trial diets which will, under Lord Bonomy's proposals, only be determined at the preliminary hearing.
138. We propose to amend s 281 of the Criminal Procedure (Scotland) Act 1995 to allow for either of the scientists mentioned on the indictment to give evidence about the contents of a forensic science report. That evidence, unless challenged, will be sufficient evidence of the contents of the report. This is a small but useful change which gives additional flexibility while ensuring that the court continues to hear from a scientist who has undertaken the work concerned.
139. We recognise the importance of the jurors' role. In consultation with jurors they expressed general satisfaction with their experience. Most did not find the experience inconvenient and thought that what inconvenience there was could not have been avoided. The telephone information line helped reduce inconvenience for most. The majority also thought that the length of the court day was about right and some of those who had not been selected would have been happy to remain in court longer to increase their opportunity to serve.
140. Many of the proposals in this White Paper are designed to ensure that trials go ahead at a fixed date far more often than at present. We think that they address the key concerns that jurors do have and do not think that a full-scale review is called for at present. We can look at this again once the new arrangements have bedded in.
141. We also propose to require the defence to advise the court at the preliminary hearing as to the witnesses on the indictment they require to attend.
142. We will undertake further consultation on Lord Bonomy's recommendation in relation to Social Enquiry Reports to gain a broader spread of views, including those of the Association of Directors of Social Work and the Law Society, on the recommendation before we take this one forward.

« Previous | Contents | Next »