The Summary Justice Review Committee: REPORT TO MINISTERS
Chapter 4: SUMMARY CRIMINAL PROCEDURE IN SCOTLAND TODAY
4.1 There are two distinct forms of criminal procedure in Scotland - solemn procedure and summary procedure. An overview of action within the entire criminal justice system in 2001 can be found at annex D. The review was concerned with aspects of summary procedure. In solemn procedure, the trial is before a judge of the High Court or a sheriff, sitting with a jury of 15. The judge or sheriff decides questions of law and the jury decide questions of fact. The Crown decides whether to indict the case in the sheriff court, where the maximum sentence is 3 years, or in the High Court.
4.2 There are two separate courts having jurisdiction in summary cases in Scotland: the sheriff court and the district court. Summary criminal cases may be heard by a sheriff in the sheriff court or by a bench of one or more lay justices in the district court. In Glasgow district court cases are also heard by a stipendiary magistrate sitting alone, who has the sentencing powers of a sheriff sitting summarily. In summary procedure the judge, whether a sheriff, a stipendiary magistrate or a lay justice sits without a jury and decides questions of both law and fact. Summary criminal trials are the most common form of trial in Scotland. Summary criminal proceedings account for 96% of criminal cases prosecuted in court in Scotland.
4.3 The types of offence dealt with in the summary courts range from breach of the peace, shoplifting and fraud to serious assault and weapons offences, but they also include nearly all road traffic offences and a great many other offences. In 2000, almost 50% of persons called to the district court had a motor vehicle offence as their main offence. In the case of the sheriff courts, motor vehicle offences and crimes of dishonesty (such as housebreaking) account for over 50% of offences dealt with.
The Investigation and Reporting of Crime
4.4 The procurator fiscal is responsible for the investigation and prosecution of crime in Scotland. In cases of serious crime, the procurator fiscal will become involved at the earliest stage, often well before a report is submitted to him or her. In cases of less serious crime, the investigation is usually completed before the report is submitted, although the procurator fiscal may direct that further inquiry be undertaken. Most of the cases received by the procurator fiscal are reported by the police. In addition, each year many thousands of people are reported for consideration of proceedings from over 50 specialist reporting agencies, including, for example, local authority enforcement sections, the Driver and Vehicle Licensing Agency and HM Customs and Excise.
4.5 In 1952, the Scottish Court of Criminal Appeal set out the relationship between the police and the procurator fiscal in the following terms, 5 "When a crime is committed it is the responsibility of the procurator fiscal to investigate it. In actual practice much of the preliminary investigation is conducted by the police under the supervision of the procurator fiscal", and went on to say that: "The duty of the police is simply one of investigation under the supervision of the procurator fiscal, and the results of the investigation are communicated to the procurator fiscal as the enquiries progress. It is for the Crown Office and Procurator Fiscal Service and not for the police to decide whether the results of the investigation justify prosecution."
4.6 Under statute, it is provided that, where an offence has been committed, police constables are to "take all such lawful measures and make such reports to the appropriate prosecutor as may be necessary for the purpose of bringing the offender with all due speed to justice" 6 and in directing his or her constables in the performance of their functions, "the Chief Constable shall comply with such lawful instructions as he may receive from the appropriate prosecutor". 7 Specifically, the Lord Advocate may issue instructions to chief constables with regard to the reporting of offences, for consideration of the question of prosecution. 8
4.7 The procurator fiscal has no authority to direct specialist reporting agencies in the investigation or reporting of crimes and offences, but the Crown Office and Procurator Fiscal Service provides guidance designed to enable them to contribute effectively to achieving an outcome in reported cases which best serves the public interest.
4.8 The sheriff court and the district court each have their own history which has led to separate staffing and administrative arrangements.
4.9 There are six sheriffdoms in Scotland each of which has a sheriff principal with sheriffs sitting in each main town. The sheriffdoms have been created for jurisdictional purposes. The areas are: Grampian, Highland and Islands; Tayside, Central and Fife; Lothian and Borders; Glasgow and Strathkelvin; North Strathclyde; and South Strathclyde, Dumfries and Galloway. Apart from Glasgow and Strathkelvin these sheriffdoms are separated into districts for administrative convenience. The boundaries of these districts do not always coincide with those of local authorities. An offence committed in one district of a sheriffdom can be tried in a sheriff court of another district of the same sheriffdom.
4.10 The Scottish Court Service (SCS) administers the Supreme Court and sheriff courts throughout Scotland. It has responsibility for the administration of the Court of Session, High Court of Justiciary, the Office of the Accountant of Court and 49 sheriff courts throughout the country. Those administrative responsibilities include financial management, resource management in terms of court staff and maintenance and development of the court estate. Employees of the SCS act as clerks of court in the High Court/Court of Session and the sheriff court. They are not required to be legally qualified. The SCS has no specific involvement with the district courts although district courts sometimes use sheriff court buildings.
4.11 The present system of district courts was established by the District Courts (Scotland) Act 1975. This Act reorganised the previous system of justice of the peace courts and Burgh courts in the light of the local government reorganisation following the Local Government (Scotland) Act 1973.
4.12 Under the 1975 Act, the district courts were aligned with each of the reorganised local authorities. There are currently district courts in 30 of the 32 local authority areas in Scotland, the exceptions being Shetland and Orkney where all summary business is dealt with in the sheriff court. In many local authority areas there is more than one district court, giving a total of 64 throughout Scotland. Each district court has jurisdiction within a Commission Area, which coincides with the associated local authority boundary. The district court bench in Scotland is almost exclusively staffed by lay justices of the peace (the exception being the stipendiary magistrates in Glasgow). The district court convenes with one, two or three justices presiding (the norm being one).
4.13 It is the statutory duty of local authorities to manage the district courts and there is no statutory or administrative provision for any central control or organisation of these courts. Each local authority decides for itself what building and other facilities to provide and how to prioritise the provision and up-keep of such facilities alongside its other estate management responsibilities. Funding from central to local government includes an element for the provision of a district court within unhypothecated revenue support grant, but it is ultimately for local authorities to decide where to target their resources.
4.14 The clerks of the lay district courts are advocates or solicitors appointed by the relevant local authority. It is the clerk's duty to advise justices on matters of law, practice and procedure. However, the clerk takes no part in decisions on conviction or sentence.
Judges in the Summary Courts
4.15 The title of sheriff is an ancient one and can be traced back to late in the first millennium. In Scotland the office of sheriff can certainly be traced to the 12th century. Their original function was as local administrator, military officer, tax collector and judge.
4.16 Sheriffs are appointed from the ranks of solicitors and advocates of at least 10 years' seniority. In practice, newly appointed sheriffs are considerably more experienced than this. The great majority of sheriffs are sheriffs with jurisdiction in one sheriffdom. They are sometimes referred to as "resident sheriffs". So called "floating sheriffs" hold commissions which enable them to sit in any sheriffdom as required. Resident and floating sheriffs have full-time, permanent appointments. There are also part-time sheriffs who are advocates or solicitors who are in practice or who have practised as such. They may be called upon to assist as required in any sheriff court in Scotland. Honorary sheriffs are appointed by the sheriff principal and need not be legally qualified. They may only sit in the court in which they are appointed. They usually sit only when the resident sheriff is not available. They deal mainly with first appearances from custody and may be called upon to sign documents which require a sheriff's signature as a matter of urgency.
4.17 Although a full-time sheriff is normally appointed to the court of a specific district, he or she has jurisdiction throughout the sheriffdom in which that district lies, and the sheriff principal can direct any of the sheriffs of his or her sheriffdom to sit in any district.
4.18 The criminal jurisdiction of a sheriff is both summary (the sheriff sits alone) and solemn (the sheriff sits with a jury). In relation to summary cases the maximum sentence of imprisonment (or detention) and the maximum level of fine which can be imposed by a sheriff are detailed in the table at paragraph 4.29 below. Sheriffs can impose a range of other sentences which include probation orders, community service orders, compensation orders, drug testing and treatment orders, restriction of liberty orders, supervised release orders and extended sentences. Jury trials in the High Court and the sheriff court follow essentially the same procedure. In a solemn procedure case the maximum sentence of imprisonment or detention which the sheriff can impose is 3 years, though the sheriff may remit the offender to the High Court for sentence if the case merits a longer sentence.
The justice of the peace
4.19 The commission of the peace was originally instituted in Scotland in the 16th century. 9 Initially, justices were given the task of administering the county within which they resided until this work passed to the County Councils with their establishment in 1888. Justices of the peace were then left with jurisdiction in the licensing board and minor criminal cases.
4.20 Appointment of justices of the peace is by recommendation from local Advisory Committees to Ministers of persons considered to be suitable in terms of character, integrity and understanding. There are just under 4,000 JPs in Scotland. Most of them are designated as "signing justices" and have signing duties only (such as signing a document for the purpose of authenticating another person's signature). Over 700 full justices are able to sit in judgement in the district court across Scotland. Before sitting on the bench, full justices are trained in basic law, procedure and sentencing issues with a view to ensuring that they exercise their discretion properly in the light of such legal advice as they may receive from their clerks.
4.21 The justice of the peace, along with jury service, is the current embodiment of lay participation in the Scottish criminal justice system. Neither the procedure relating to jury cases nor the arrangements for the lower courts have remained constant over the centuries, but reliance on the knowledge and understanding of local people has been a recurring theme. It is argued that local knowledge enables a justice to respond to local community concerns.
4.22 The fundamental requirement for being appointed a justice of the peace is that a candidate must live within 15 miles of the Commission Area to which he or she is to be appointed - only in exceptional circumstances of public interest will the Scottish Ministers waive that requirement. Similarly, justices' powers extend only as far as the jurisdiction of the Commission Area to which they are appointed.
4.23 The maximum sentence of imprisonment (or detention) and the maximum level of fine which can be imposed by a lay justice sitting in the district court are detailed in the table at paragraph 4.29 below. Lay justices can also impose a range of other sentences including probation orders, compensation orders and totting up disqualifications, but not obligatory or discretionary disqualifications for motor vehicle offences.
The stipendiary magistrate
4.24 In addition to lay justices the district courts may also be presided over by stipendiary magistrates. Unlike justices of the peace who are unpaid laity, stipendiary magistrates are paid professionals. The option of appointing a stipendiary to a busy lay court has existed since the end of the 19th century and their powers were extended soon after their introduction to match those exercised by a sheriff dealing with summary criminal business. The District Courts (Scotland) Act 1975 continues to make such arrangements available.
4.25 It is necessary to have been qualified for 5 years as an advocate or a solicitor before being considered for appointment as a stipendiary magistrate. The approval of the Scottish Ministers is required for a full-time appointment. Similarly, Ministers have statutory authority to direct local authorities to appoint a qualified person as a stipendiary magistrate if it is considered expedient to do so in order to avoid delays in the administration of justice.
4.26 There are only four stipendiary magistrates in Scotland at present, all of whom are based in Glasgow. Like justices of the peace, stipendiary magistrates' jurisdiction extends only as far as that of the local authority and Commission Area to which they were appointed.
The level of business in the summary criminal courts
4.27 There have been very notable changes in the number of cases calling in district courts over the last decade. In 1992 85,000 accused were proceeded against in the district court. By 2002 that figure had fallen to an estimated 37,000, largely as a result of the expansion of alternatives to prosecution (for example, the growth of fiscal fines) and the marking of cases by the procurator fiscal. Further discussion of the decline in district court business can be found from paragraphs 7.18-7.19 (and note para 11.12 on the effect of fiscal fines also). The business in the district courts has therefore approximately halved over a period of about 10 years. The number of sittings in the district courts varies considerably across the country. Between 1992 and 2000 the number of persons called to sheriff summary courts fell by over 15%, before increasing by 11% to an estimated 90,400 in 2002.
4.28 A breakdown of the caseload dealt with by persons proceeded against in each of the courts in recent years is provided in the table below. (Source: SEJD court proceedings database).
Persons proceeded against in court, 1992-2002
* estimated data. ** Includes a small number of cases where court type not known.
Jurisdiction of the summary courts
Sheriff court summary
3 months' imprisonment (but 6 months' where the accused has a previous conviction for personal violence or dishonesty, or other periods where specified by statute)
Maximum fine, currently 5,000 (level 5 - unless there is a lower or higher maximum penalty for a particular offence dictated in statute)
as for sheriff court summary
as for sheriff court summary
60 days' imprisonment
Maximum fine, currently 2,500 (level 4 - unless there is a lower or higher maximum penalty for a particular offence dictated in statute)
4.29 The jurisdiction of these courts so far as imprisonment (or detention) and fines are concerned may be summarised as follows:
Jurisdiction of the sheriff courts
4.30 The jurisdiction of the sheriff court is wide and includes both civil and criminal business. Sheriff courts have jurisdiction in both summary and solemn (more serious) criminal cases and hear cases involving all but the most serious of crimes, such as rape and murder. In cases of solemn procedure, a sheriff may sentence offenders to up to 3 years' imprisonment (or detention of those under 21). In summary cases the maximum is noted in the table at paragraph 4.29 above. There are a very small number of statutory provisions which provide for higher maximum sentences, for example, the Police (Scotland) Act - 9 months and the Misuse of Drugs Act - 12 months. The maximum fine which may be imposed is 5,000, unless there is a lower or higher statutory maximum sum.
Jurisdiction of the district courts
4.31 In geographical terms, the jurisdiction of a district court extends to offences alleged to have been committed within its Commission Area. However, if there are allegations of offences in more than one Commission Area all offences may be tried in an area in which one of them was allegedly committed.
4.32 The district court has jurisdiction to try any statutory offence which is triable summarily, unless otherwise specified by statute. Lay district courts do not have jurisdiction to deal with a number of offences including theft by housebreaking, serious assault, forged bank notes or theft or reset where the value of property is substantial. 10 They cannot deal with cases of dangerous driving because, on conviction, disqualification from driving is obligatory unless there are special circumstances. The lay district court does not have power to disqualify from driving other than under the totting up provisions. The maximum term of imprisonment and level of fine which can be imposed by the district court are set out in the table at paragraph 4.29 above.
4.33 The jurisdiction and powers of the district court may also be exercised by a stipendiary magistrate who has the same powers as a sheriff when dealing with summary business. That means that the maximum powers of sentence in the district court are increased for stipendiary magistrates. Stipendiary magistrates may deal with any of the crimes which may be dealt with by a sheriff sitting summarily, but only if they have been committed within the district court's territorial jurisdiction.
Disqualification from driving
4.34 The Road Traffic Offenders Act 1988 specifies that the district courts may try any fixed penalty offence or any other offence in respect of which a conditional offer may be sent in terms of the offences covered by the Act. As has been noted the lay district court cannot try any offence involving obligatory disqualification, such as dangerous driving or drunk driving; nor can they impose a discretionary disqualification (e.g. for careless driving or using a vehicle without insurance). They are able to disqualify for repeat offences (totting up). The consequence of these restrictions on the sentencing powers of the lay district court is that most road traffic cases are prosecuted in the sheriff court.