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The Summary Justice Review Committee: REPORT TO MINISTERS

Chapter 7: JUDGES IN THE SUMMARY COURT

7.1 Given its strong and unanimous recommendation for a unified summary court system, the Committee went on to consider the type of judges who should sit. Should this be a mix of lay and professional judges, replicating the current pattern of professional sheriffs who deal with the more serious end of summary cases and lay justices who deal with the remainder? Or should Scotland now move to a wholly professional judiciary?

7.2 Many of the arguments advanced on either side of this debate have been well-rehearsed in other studies. For example, the Committee took account of a number of studies of lay justice in Scotland, in particular "Lay Justice" by Bankowski, Hutton and McManus, ¹⁵ and "All manner of people" by Johan Findlay, ¹⁶ as well as work on the magistracy in England and Wales, including in particular research by Russell and Morgan on their report "The judiciary in the (England and Wales) magistrates' courts". ¹⁷ Members of the Committee also visited 11 summary courts across Scotland as well as a number of magistrates' courts in England and a magistrates' court in Northern Ireland.

7.3 The Committee quickly became aware of strong and conflicting beliefs on this issue. Some individuals and groups argue strongly in favour of a fully professional judiciary, including the majority of professionals who earn their living through work in the courts. Others, including most of those who are involved in or represent lay justice, take the opposite view. In consultation those in favour of professional justice tended to argue on the basis of greater consistency and continuity and the advantage of a robust professional presence on the bench. Those who support lay justices mentioned in particular the advantages of lay justices' local community links and their resultant understanding of the communities they serve.

7.4 The Committee was anxious to inform itself fully of views on this issue not only among those involved in the justice system, but among the general public.

7.5 Its first order consultation, carried out in 2002, attracted largely responses from those involved in the system. Although 62% of responses were in favour of retaining lay justice, this reflected practically unanimous support for the concept from justices and justices' organisations. (Out of 125 responses to the first order consultation 38 were from JP Commission areas and 24 were from individual justices.) Many local authority responses appeared to have been prepared by the part of the Council responsible for district courts. Professional legal organisations were typically in favour of a fully professional judiciary.

7.6 Following on from that consultation the Committee ensured that it tested wider public opinion by covering this issue in some detail in its survey of Scottish public attitudes to aspects of the summary justice system. ¹⁸ The results of that survey revealed that members of the public had the same range of views on lay versus professional justice as those more involved in the system. The researchers screened out anyone involved in the criminal justice system from the public survey: and the survey showed that relatively few of those questioned had had recent contact with the summary justice system (8% had been a victim of an offence in the past 2 years, 4% an accused and 6% a witness: these categories are not mutually exclusive). So it is not surprising that the researchers noted limited understanding of the differences between lay and professional justice, and considerable willingness to admit limited knowledge.

7.7 The key factual differences were explained to respondents (salaries, professional qualifications, etc.) and they were then asked to assign attributes they might expect to see displayed by professional or lay judges. Given the evidence above, we judge that responses reflected views on the principles involved, rather than an assessment of the system based on experience.

7.8 It is worth noting that this sample does appear to reflect the view that lay justice would be more likely to be aware of local sensitivities, but set against this perception is a view that professional judges are more likely to be consistent and less prone to prejudice. This may account for the outcome when the sample was asked whether they would prefer to be tried by a professional or lay judge.

Public Survey: Views on the attributes of lay and professional judges

Public Survey: What sort of judge would you prefer to face on the bench?

7.9 This strong preference to appear before a professional judge sits rather oddly with the views of the sample when asked whether there should be a continuing role for lay justice in the future. Sixty per cent of the sample favoured the continuation of lay justice, with 24% preferring a wholly professional summary system.

7.10 Reviewing the rather confusing picture of evidence on public and professional views, the Committee concluded that the issue of lay versus professional justice was not one which could be resolved in the abstract. Both forms of justice had long histories in Scotland: both had served well in many circumstances: neither was without flaw.

7.11 The Committee concluded, therefore, that a more fruitful approach would be to derive its recommendation from an analysis of the recent history and current context for summary justice in Scotland and further afield, and of the changes which it felt were required. The question to be answered was:

"Given the current state of the Scottish justice system and the recommendations of this Report, which system - lay and professional or professional alone - will best deliver the changes which Scotland's summary justice system now requires?"

On this basis the Committee examined the debates on lay justice since local government reorganisation 30 years ago necessitated major change.

7.12 We noted with interest the series of proposals put forward in 1973/4 when a revised system had to be developed in short order given the imminent abolition of burghs (and the Burgh courts, in which councillors sat in judgement on minor crimes) and counties (including their justice of the peace courts).

7.13 The 1973 White Paper "Justices of the Peace and Justices' Courts" ¹⁹ proposed the creation of a justices' court, on the following basis:

• court to be constituted by three justices of the peace, but with stipendiaries sitting alone playing a part in urban areas;
• justices to sit at least 24 times a year in order to build up expertise and improve consistency;
• the court to have wider powers than the current lay court, to relieve pressure on the sheriff court;
• the court to be centrally administered and financed; and
• staff to be provided by the extension of the legally unqualified sheriff clerk service; but
• clerks to receive special training in order to advise lay judges.

7.14 Reactions to that White Paper revealed a strong body of opinion that all judges should be professional; serious doubts as to whether sufficient lay judges could be found to sit in threes with the frequency sought; and universal opposition to the proposal for unqualified sheriff clerks to advise lay justices.

7.15 In response, the Government of the day put forward a revised proposal. It announced in Parliament that:

"To ensure that there will be an effective system to deal with summary courts business throughout Scotland when the present Burgh and JP courts disappear following local authority reorganisation in 1975, it has been decided that, instead of the system outlined in the White Paper, the sheriff courts will be expanded to absorb the additional work. A new type of professional judge will be appointed to sit in the sheriff court to assist with the increased business, and the Procurator Fiscal Service and the sheriff clerk service will be strengthened." ²⁰

7.16 There was then a change of government. The incoming government was committed to the retention of lay justice and explored a number of models, including a centralised three-tier sheriff court with sheriffs, stipendiaries and lay justices. Pragmatic considerations - notably the need to find professionally qualified court clerks to support lay justices without depleting the limited stock of independent practitioners - led the government to conclude that the new district courts should be placed within the responsibility of the local authority, with its flexible access to an in-house legal team.

7.17 Other considerations at the time were the need to minimise undue disruption given the already huge upheaval caused by local authority reorganisation, and the need for a seamless and rapid move to a new form of summary justice, given the large number of cases dealt with in the former Burgh and JP courts (80,000 per annum in the Burgh courts, 10,000 in the JP courts). The other consideration was the historic underfunding of the sheriff courts and their consequent inability to pick up the slack. It is, for example, intriguing to note that in 1973, despite the fact that Edinburgh was the only new sheriff court built in the 20th century to that date, jury trials had to be held in the Assembly Hall and had to stop during the General Assembly of the Church of Scotland and also when the premises were in use for the Festival and other events.

7.18 The decision taken in those circumstances, however, might not be the most appropriate decision to take now. Looking at key changes over the intervening years, perhaps the most important is the sharp recent decline in the number of cases dealt with in the district courts (as evidenced by the figures in the table at paragraph 4.27).

7.19 There are a number of reasons for this decline, including the fact that (as noted below) total recorded crime in 2002 was 25% less than the total recorded in 1991. The other key reason for decline is the introduction of a wider range of alternatives to prosecution for use by the police and the procurator fiscal. We discuss this in more detail elsewhere in this Report (chapters 9-11) and consider that the number of cases requiring full court procedure could be further reduced while still taking effective action against offenders. A further reason expressed to us on a number of occasions is a lack of confidence in the district court among procurators fiscal, resulting in many relatively minor cases being prosecuted in the sheriff court instead.

7.20 Other key changes over the last 30 years include substantial sustained investment in the sheriff court estate and in IT to support the handling of sheriff court cases. In relation to the district courts, however, where considerable discretion is left with the local authority as to how much to invest in buildings, training or IT, the pattern of investment across Scotland is patchy. Some local authorities have given a high priority to the needs of district court users and staff; others have given the district court lower priority in the context of overall pressures.

7.21 From a council point of view, a significant recent change is that the strong historical link between elected local office and sitting in judgement over minor local offenders in courts run by local authorities has been permanently broken by the impact of ECHR incorporation into Scottish legislation. Since the Bail, Judicial Appointments etc (Scotland) Act 2000, ²¹ a member of the local authority may not be appointed to office as a full justice, though such a member may continue to be a signing justice. A full justice may sit on the bench: a signing justice may only perform limited functions authenticating documents and declarations.

7.22 The ECHR also places a new range of pressures on all courts to demonstrate that they are, and operate as, independent tribunals within the ECHR context. The recent case of Clark v Kelly²² re-examined the role of the legally qualified clerk to the district court, concluding that while he or she was not part of the court (which would have invalidated it as an independent tribunal) advice given by the clerk should be given in open court. We were told that this has raised the possibility of justices having to hear submissions from parties in the case as to the correctness of the legal advice offered by their assessor and then themselves having to rule on matters of law. We are not aware that this has yet given rise to any real difficulties in practice. ECHR requirements are likely to generate further pressures on Scottish courts to re-examine how they work.

7.23 Looking at the overall profile of crime committed in Scotland, the Committee also noted that, despite an upward fluctuation from 2001, recorded crime in 2002 was still 25% lower than the peak figure recorded in 1991. Between 2001 and 2002, however, while recorded crime went up only by 1%, non sexual crimes of violence and crimes of indecency both rose 9%; within that last category, rapes and attempted rapes rose by 21%. There is room for debate as to what proportion of that increase is attributable to increased criminality, and what proportion to greater willingness to report crime to the police. There is, however, no debate about the impact of these changes on the solemn courts. In addition, the Committee noted the substantial and continuing increase in the most serious drugs cases. Research carried out for Lord Bonomy showed that two thirds of the 23% increase in High Court indictments between 1995 and 2001 was attributable to an increase in the number of serious drugs cases.

7.24 It is therefore not surprising that one of the recent trends in public policy has been the need to move criminal casework downwards throughout the system in order to relieve increasing pressure on the solemn courts. This was reflected in Lord Bonomy's Report on the Reform of the High Court ²³ which recommended that the jurisdiction of sheriffs sitting in solemn procedure should be increased from 3 to 5 years' imprisonment. In the White Paper "Modernising Justice: Reform of the High Court of Justiciary" the Executive indicated that it had accepted Lord Bonomy's recommendation to this effect, and would implement the (existing) legislation in the context of wider legislative reform to the High Court.

7.25 The Committee took the view that in order to accommodate the potential increase in sheriff solemn business it will be necessary to increase the sentencing powers of sheriffs when sitting summarily (this is dealt with in more detail below from paragraph 7.83) in order that they can deal with the less serious cases presently heard under solemn procedure. Continuing with this process, there would need to be an increase in the jurisdiction of whoever heard cases below the level of the sheriff summary court (unless all summary cases were heard by sheriffs, which is unlikely to be an efficient use of resources - see paragraph 7.64 below).

7.26 The Committee took into account the overall trend towards the creation of more specialist courts dealing with particular groups of offenders, and also the growing interest in the concept of community courts as developed primarily in the USA. This latter is seen as a means of connecting communities to their local justice system and dealing with offences that impact particularly on the quality of life in the local neighbourhood.

7.27 However, the Committee also noted that at the heart of the approach of the New York Red Hook Community Court - and of such related Scottish developments as the drugs court - is the commitment of a very small core of professional judges devoted to this court alone and able to review personally the progress of those brought before them. The Red Hook Court has, we believe, a single judge. The success to date of the Glasgow Drug Court is closely tied not just to increased resources and better joint working but crucially to continuity on the shrieval bench, with two sheriffs only sitting.

7.28 This continuity would be extremely difficult to achieve with lay justices, who currently sit only around seven times per year on average and, consequently, are unlikely to build up the necessary experience and expertise, even if they were to sit more frequently than at present.

7.29 If, then, the trend is towards a more sophisticated and differentiated approach to individual offenders, it seems likely that professional judges will be better able to provide the continuing contact over time and the consistency required, either in the context of specialist courts (on which see our views in chapter 18) or through more consistent "rolling-up" of cases faced by an accused (on which see our recommendations in chapter 16).

7.30 Finally, the Committee considered briefly the position in other jurisdictions. In many parts of the Commonwealth there is now no lay justice involvement in summary criminal cases, though in some jurisdictions justices of the peace may sign warrants and play a part in the juvenile justice system. The trend has been to move to an all professional judiciary. This is particularly so of Canada and Australia, with the exception of Western Australia where justices of the peace sitting as a bench of two may deal with bail applications and hear minor criminal cases including road traffic matters. They may not impose custodial sentences. A number of Committee members visited Northern Ireland and observed that, with the exception of the juvenile court (where lay members formed part of the panel) it operated wholly with professional judges. The system of resident magistrates worked well and their independence was perceived as important.

7.31 A notable exception to the move away from the use of lay justice is England and Wales. Justices have an extremely long and well established history in England, the first statute instituting the office dating from 1361 and there being evidence of their existence even earlier than this date. ²⁴ In addition to their judicial duties they conducted a number of important administrative roles. The institution of justices in Scotland is somewhat more recent. The first Scottish statute creating justices in burghs was in 1587. In a statute of 1609 James VI extended them to counties, reflecting his experience of the English system. ²⁵ Attempts were made in the 16th and 17th centuries to amalgamate the Scottish and English legal systems but these were not successful. ²⁶ The responsibilities of justices of the peace have evolved both north and south of the border over the centuries into their current, mainly judicial, form.

7.32 The structure and workings of the criminal courts in England and Wales were considered in detail in the Auld Report, ²⁷ published in October 2001. That report recommended that the Crown Court and magistrates' court be replaced by a unified criminal court consisting of three divisions. The lowest of those divisions (the magistrates division) maintains the role of lay magistrates south of the border in hearing the more minor summary criminal cases. The report also recommended that lay justices should be able to sit with professional district judges in the higher district division. Lord Justice Auld noted in his report that "No country in the world relies on lay magistrates as we do, sitting usually in panels of three, to administer the bulk of criminal justice". ²⁸ This proposal was not accepted.

7.33 Having considered the position in England and Wales, we considered that the history and current role of the English magistracy is significantly different from that of the Scottish lay judiciary.

7.34 English magistrates deal with the full range of summary criminal cases; they have the same sentencing powers as the District Judges (the English equivalent of our stipendiary magistrates) and deal with around 91% of summary business. Their sentencing powers have for many years been significantly higher than those of Scottish JPs, and have recently been increased. For example, in 2003 they were able to sentence to 6 months' imprisonment, or, in certain cases involving more than one offence, to 12 months. The Criminal Justice Act 2003 contains provisions to raise their custodial sentencing power to 12 months in respect of any one offence, although those provisions are yet to be commenced. They also have an extensive family and civil jurisdiction. They almost invariably sit in threes.

7.35 Scotland, by contrast, is a small jurisdiction in which a majority of summary cases are already handled by a professional judiciary. Scottish JPs now deal with around one third of summary business; as we have noted elsewhere, they rarely impose a custodial sentence (only 1% of persons with a charge proved before a JP in the district court received a custodial sentence in 2001).

7.36 We therefore concluded that the English experience does not necessarily point the way ahead in the very different Scottish context.

The Committee's Recommendations and their Implications for Summary Business

Diversion from prosecution

7.37 Elsewhere (particularly chapter 11) in this Report the Committee has taken the view that without wishing to appear to trivialise or belittle categories of cases, especially their impact on victims, it is nonetheless the case that a court prosecution (even in a lay court) is an expensive and often inefficient way of dealing with offences that could more effectively be dealt with through alternatives to prosecution. Interestingly, 60% of those questioned in the public survey were in favour of alternatives to prosecution: most of them had heard of fiscal fines and fixed penalties.

7.38 If the recommendations in this Report are accepted the Committee believes there could be a significant reduction in the number of less serious cases prosecuted in the courts. In particular, the Committee believes that the recommendation that those choosing not to pay a fiscal fine offer should have to take the initiative in opting for court procedure or face the fiscal fine becoming a registered fine (para 11.21) will have a notable effect on the number of cases that currently appear before lay justices. Present figures indicate that around half of all fiscal fine offers are not accepted (see para 11.18 for the detailed figures). It is believed that many of those failed fiscal fine offers reach court out of inertia on the part of the accused rather than a wish actively to contest the allegation. About 75% of those who are prosecuted having failed to accept a fiscal fine plead guilty. Visits to district courts and discussions with officials there suggested that a substantial proportion of cases appearing before the court are failed fiscal fine offers. Figures showing the exact proportion are not available, but Crown Office statistics drawn from 2002-03 data suggest that 70% of district court cases are new to the system (and therefore not offers of diversion which have been rejected). Much of the remaining 30% will, however, represent prosecutions where a fiscal fine offer has not been accepted. ²⁹

7.39 Calculations to show the net effect of the changes proposed in this Report on the summary case load are necessarily very approximate as they are subject to a number of variables, in particular, the overall crime levels and the attitudes of procurators fiscal on how to deal with a particular level of crime given an increased range of diversion possibilities.

7.40 Notwithstanding these caveats, the Committee estimates that the net effect of the proposed changes - and of changes recently introduced by the Home Office extending the range of road traffic offences eligible for fixed penalties - could be a reduction of 25% - 30% in the summary caseload (see para 7.46 below).

7.41 It may be helpful to summarise the basis of this calculation. In 2001 just over 130,000 people were proceeded against in the summary courts. The vast majority of these are single accused cases. The table at paragraph 11.36 suggests that a doubling of the fiscal fine to 200 could potentially impact on around 24,500 cases currently prosecuted each year in the summary courts because of the number of fines of between 100 and 200 currently imposed in those courts. As we note in that chapter, actual impact is likely to be lower, both because up to 30% of district court prosecutions are related to failed fiscal fines and because the statistics reveal nothing about the record or status of offenders being fined. Many will have a recent relevant criminal record or a track record of rejecting or failing to pay fiscal fines which may have made them unsuitable for a fiscal fine offer. On the other hand, procurators fiscal often told us that ineffectiveness of the system for enforcement of fiscal fines discouraged the offer of such fines in many instances. If they had had more confidence that fiscal fines would be effectively enforced they would have been willing to offer fiscal fines more frequently and at higher levels. On balance it seems reasonable to assume that around half of the cases currently prosecuted in the first instance and fined between 100 and 200 might be suitable for diversion if the fiscal fine was raised to 200. If the fiscal fine was to be increased to 500 the impact would be greater.

7.42 There is considerable potential to divert from prosecution a number of road traffic offences through the increased use of fixed penalties, but initiatives in that respect would relate to the reserved matter of road transport and would be outwith the competence of the Scottish Parliament. The Home Office has, however, recently changed the range of road traffic offences which can be dealt with by police fixed penalties, bringing offences which generated around 15,000 cases in the summary courts in 2001 within the ambit of diversion. There is a sharply increasing trend throughout the United Kingdom and in other common law jurisdictions in the use of fixed penalty notices and the like, replacing low level prosecutions with administrative sanctions. Again, not all of those who are (for example) currently prosecuted for lack of insurance will be suitable for an FPN, but a reasonable assumption might be that around 50% of those cases - 7,500 - would be suitable for diversion.

7.43 In addition, the proposal for fiscal compensation orders (see para 11.43 below) could remove a significant number of cases from the courts. On the assumption that at least 50% of the cases in which a compensation order forms a main or ancillary penalty could be dealt with through a fiscal compensation order, and that a significant proportion of certain other minor offences currently dealt with by prosecution and fine could be so dealt with, we estimated that between 5,000 and 10,000 cases could be diverted.

7.44 We also notice the potential impact of proposals in the Anti-Social Behaviour Bill for police to issue fixed penalty notices for a wide range of low level, anti-social and nuisance offending. We do not, however, think that these will greatly increase the numbers taken out of prosecution altogether: these are offences which would probably attract a fiscal fine at present.

7.45 In addition, our proposals for changes in the way in which fiscal fines and police fixed penalties are enforced - requiring the accused to opt into the court process or face a registered fine, plus a surcharge - are specifically aimed at reducing the number of failed fiscal fines which come to court. The table at paragraph 11.18 shows that in 2002-03 around 17,000 fiscal fines - 50% of those offered - were not accepted. Research evidence suggests that around 80% of such cases were prosecuted. The available research on fiscal fines (see footnote 26) indicated that around 75% of those who had not responded to the offer of fiscal fine, and were prosecuted, simply pled guilty when their case came to court. ³⁰ Thus, a reasonable assumption for the impact of the change in enforcement arrangements might be 17,000 x 80% x 75% = just over 10,000 fewer prosecutions.

7.46 The cumulative effect of these changes, we estimate, would be that 30,000 to 40,000 cases - around 25% to 30% - should no longer require prosecution. These are the least serious cases calling in the courts. Around one-third are cases where a full court process had not been envisaged by the initial disposal, and the court was dealing with the failure of the initial attempt at diversion. If we can deal with that failure more robustly without prosecution it will greatly relieve the pressure on the summary courts.

7.47 Taken together, the effects of a downward movement of cases - more serious and complex cases appearing in the summary system - plus the effects of less serious cases being diverted out of the system, suggested to the majority of the Committee that there would be a decreased need for a class of judge imposing relatively light penalties. Even at the lowest end of the court spectrum there would be a requirement for significantly increased sentencing powers.

7.48 If the level below that of a sheriff summary court were to continue to be operated in the main by lay justices, most of the Committee would not be able to support the increase in sentencing powers which would be necessary, particularly if justices continued to sit as infrequently as many do at present, and singly. At present most lay justices, many will argue quite rightly, do not use the full extent of their sentencing powers. As noted above, only about 1% of sentences imposed in the district court by a justice of the peace are custodial. Many of the justices met by Committee members on visits to district courts said that they had never imposed a custodial sentence in their judicial career. Some of these said that they would be happy to do so in the right circumstances and with further training. The District Courts Association observed that justices would require further training to deal with extensions in their sentencing powers, such as disqualification from driving.

7.49 Other justices, however, took the view that it was not the role of the lay justice to impose custodial sentences. The view of the majority of the Committee was that they would not support a system which envisaged substantially greater use of custodial sentences by lay justices.

7.50 A further aspect which is relevant to a potential increase in the seriousness and complexity of cases at the lower end of the summary court spectrum is the varying practice throughout Scotland of the number of justices who sit on the bench. In many district courts, particularly the urban courts, it is usual practice for justices to sit singly. In other district courts, some of which were visited by the Committee, such as Haddington, the practice is for justices to sit in threes. Arguments have been advanced in support of both methods, usually boiling down to the relative benefits of speed for the single justice as compared to ensuring greater consistency and value of spreading adjudication and sentencing decisions among three heads rather than one. Almost invariably the justices in each category took the view that their approach was correct and indeed some said that they would not wish to sit at all if they were obliged to change.

7.51 The Committee noted with interest the objections raised on grounds of practicality to the recommendations of the original 1973 White Paper for a unified lay justice court in which justices always sat in threes with a commitment to sitting days much in excess of that generally practised now. In the view of the majority, these objections would apply equally now. In addition, the difficulties which can arise with scheduling cases with three judges where a trial spills over a single day were highlighted by a number of district court clerks. Given that any increase in the complexity of cases at this end of the spectrum is likely to lead to more trials not being completed in a single day, it was felt by many on the Committee that this could pose problems for a system reliant on lay judges, particularly if sitting as a bench of three. It was also noted that three justices tend to take longer to reach a decision than one.

A Proactive Bench

7.52 Elsewhere in this Report (chapter 26) we take the view that one of the key challenges in delivering effective summary procedure is for the bench to take a more proactive role in managing the cases that appear before them. This need will be accentuated as those cases become more complex and difficult and as sentencing becomes more centred on individual offending behaviour.

7.53 The Committee could not find robust Scottish evidence as to whether a lay judge is any less likely than a professional judge to take such a proactive role, but there is some evidence from English studies to this effect. Research carried out in England and Wales by Professor Rod Morgan "The Judiciary in the Summary Magistrates Court" ³¹ in 2000 found as follows:

"Stipendiary magistrates deal with all categories of cases and appearances more quickly than their lay colleagues because they retire from court session less often and more briefly ... They also deal with cases more quickly on average ... This means that stipendiaries hear 22% more appearances than lay magistrates per standardised court session. If stipendiaries were allocated an identical caseload to lay magistrates, it is estimated that they would deal with 30% more appearances.

The greater speed of stipendiaries is not achieved at the expense of inquisition and challenge: on the contrary, hearings before stipendiaries typically involved more questions being asked and more challenges being made."

7.54 The research also showed that 45% of appearances before stipendiary magistrates led to adjournments compared to 52% of appearances before lay magistrates. This is both because stipendiaries were less likely to be asked for an adjournment and because they were more likely to refuse a request. This degree of variation, if replicated in Scottish courts, would become significant if a step change in the level of case management is required from the bench and if it is accepted that professional judges are intrinsically more likely to feel confident in dealing with professional prosecutors and defence agents.

7.55 While there has been no comparable research carried out in Scotland (which would be less easy to do than in England as there is only a very limited number of courts where professional and lay judges deal with similar business), the view that professional judges dealt more crisply and more robustly with cases was supported in discussion with the professional organisations that work in the summary courts - although not by justices themselves.

The Committee's Conclusion:

7.56 A large majority of the Committee concluded, therefore, that the right approach was to move towards a wholly professional judiciary. The minority disagree, and their recommendations are set out in a note of dissent at annex A.

7.57 Before setting out in detail how it proposes such a judiciary should function, however, the majority considered it was important to deal with two particular objections which may arise - community participation and cost.

Community Participation

7.58 The first issue relates to the value of the link allegedly provided by lay justices between the criminal justice system and the local community in which the district is situated. However, the available statistics do not necessarily demonstrate a particular close match with the profile of the Scottish population.

7.59 The available data on justices of the peace in Scotland are set out below.

There are just over 3,800 justices of the peace in Scotland. Of this total:

• around 700 justices regularly sit on the bench;
• just under 1,100 (28.5%) of all justices are female;
• 8.3% of all justices are aged between 40-49;
• 24.7% of all justices are aged between 50-59;
• 27.1% of all justices are aged between 60-69;
• 38.6% of all justices are aged 70 and over.

7.60 Information on the social status and ethnic origin of justices is not collected. Similarly information about the extent to which justices live in areas which generate high levels of prosecutions is also not available. We were told by justices of the peace in both Scotland and England how difficult it is to recruit and retain younger justices who are in employment.

7.61 The majority recognised that it would, over time, be possible to achieve a closer match with the Scottish population. The majority was not, however, convinced that the effort and cost involved in this exercise would necessarily be the best way of improving community involvement in the justice system.

7.62 We noted with interest the piloting of local criminal justice boards chaired by the sheriffs principal. One possible model for a wider community involvement in the system would be for those boards to be supported by a local consultative forum, which could feed in views on blockages and delays to the local system and could also be a good opportunity for professionals and lay people to meet face to face and explore their understandings (and misunderstandings) of how the system works. Another model would build on the arrangements already in place in some areas for meetings between senior police officers, the procurator fiscal and representative groups from local communities.

7.63 Such a forum could also provide community views on a wider range of aspects including priorities and the policy decisions of the police and procurators fiscal. We commend this suggestion to the Executive as one worthy of development.

Cost Issues

7.64 The second issue relates to costs. The obvious assumption when comparing the likely costs of a wholly professional system with the present system is that the former system would be likely to be more expensive because of the need to pay salaries to and provide pensions for professional judges. It is, however, important to remember that each lay court has the support of a legally qualified court clerk, whose costs (as well as the costs of administration and overheads) need to be factored in.

7.65 Two pieces of research work are relevant to this issue: research conducted in England and Wales by Professor Rod Morgan (as above) and research commissioned by the Committee and carried out by Professor Frank Stephen of the University of Strathclyde in 2003. ³²

7.66 The English research is of limited application to Scotland, particularly because in the English context three magistrates sit as the norm whereas in Scotland justices more generally sit singly. It does, however, usefully highlight the issues which need to be taken into account:

"If only directly attributable costs (salaries, expenses, training) are considered, lay magistrates are much cheaper because they are not paid directly and many do not claim loss of earnings. A sizeable minority do not even claim their allowable travelling expenses. A lay magistrate costs on average 495 per annum compared to the 90,000 per annum total employment costs of a stipendiary. These translate into a cost per appearance before lay and stipendiary magistrates of 3.59 and 20.96 respectively. When indirect costs (premises, administration staff etc) are brought into the equation, however, the gap between the 2 groups narrows, to 52.10 and 61.78." ³³

7.67 The cost analysis above did not include opportunity costs - the costs of the loss to the economy of a lay magistrate's participation in his or her normal business. When they were included, opportunity costs altered the balance to 70.80 per appearance before lay magistrates compared to 61.78 for a stipendiary magistrate. This is despite the fact that stipendiaries are generally agreed to deal with more complex and difficult cases which are liable to take longer.

7.68 The research conducted by Professor Stephen set out to use a statistical method to compare the financial costs of the different courts which dispensed summary criminal justice in Scotland - district courts, stipendiary magistrates' courts and sheriff summary courts. The conclusions relevant to this part of the Report were that all district court commission areas have higher running costs per case than all the sheriff courts with the exception of those in Glasgow and Edinburgh. Even Glasgow and Edinburgh sheriff courts have lower running costs than most district court commission areas. Many sheriff courts were able to operate at a lower cost per case than district court commission areas even when the Scottish Court Service central costs, including capital costs and sheriff salary costs were included.

7.69 Professor Stephen's research did not attempt to establish underlying reasons for the variations in cost between courts and commission areas. It is clear, however, that the steep fall in the number of cases dealt with by the district courts over the last 10 years is likely to have had a marked effect and to have left many district courts working well below their optimum case load, leading in turn to higher running costs.

7.70 Because of the complexities, neither of these pieces of research can be said to show conclusively that in general professional justice is "cheaper" than lay justice - or, indeed, the reverse. Professor Stephen's work suggests, however, that in the particular Scottish context the sheriff courts are generally operating more efficiently and at a lower cost per case than the district courts. Thus lay justice does not currently seem to have a cost advantage in Scotland.

7.71 A final aspect relevant to the costs involved is consideration of potential costs associated with developing the present system of lay justice to a standard which the Committee would feel able to support. At the very least a substantial training effort would be required to ensure that lay justice was able to operate consistently across Scotland at the standard the Committee would like to see in terms of proactive case management; and further investment would be required if it was decided that justices were to sit as a bench of three in all areas. In other words, stand-still is not an option. All members of the Committee - including those who feel strongly that lay justice should be retained - agree that retention of lay justice would need to be accompanied by a substantial investment in recruitment, training and development.

The Majority View

7.72 The conclusion of the substantial majority on the Committee was that a number of factors led them to recommend that Scotland should now move to a wholly professional justice system. In summary, these factors were that:

i. If our other recommendations are accepted, there will be significantly fewer prosecutions in future for more minor offences which form the bulk of the current business of district courts. The future summary case load is likely to be substantially composed of more serious, more complex and longer summary cases than is the average for sheriff courts at present;

ii. If lay justice were to be retained the lay courts would have to have much greater sentencing powers if they were to take on a considerable proportion of the summary caseload and the lay justices would have to be prepared to use those powers. Otherwise the Crown would continue to choose to prosecute most summary cases before professional judges. Most of the Committee are not convinced that the increased sentencing powers which would be required are appropriate for lay justices;

iii. Lay justices would have to be prepared to make a major time commitment to justify the much enhanced training which would be required and the bench time which that training would imply. It would be even more difficult than it is at present to recruit justices who mirrored the profile of the Scottish population in terms of occupation, age and place of residence, especially if there were to be benches of three justices;

iv. There is a need to relieve pressure on the higher courts, which requires the lower courts to take on more serious cases. Hence at least some increase in sentencing powers for the judges in these courts is required;

v. The principal theme of this report is that the summary system needs to become more summary, and that in turn requires proactive judges willing to challenge defence and prosecution delays;

vi. The principle of community involvement in the criminal justice system is recognised as being valuable. But justices do not represent a full cross-section of the community and more representative ways of achieving this could be devised;

vii. It is not the case that a professional system would be significantly more expensive than the current system, especially when bearing in mind the relative speed of working of the types of judge and indirect costs.

A large majority of the Committee recommends that we move to a system that employs only professionally qualified judges. A minority on the Committee takes a different view and has submitted a separate note of dissent (annex A) to that effect.

Developing the New System

7.73 On the assumption that we should move to a unified system under the administration of the Scottish Court Service where professional judges hear all summary cases, the options are for sheriffs to deal with all summary business or for a new category of professional judge to hear all or some summary business.

7.74 It seems clear that in purely numerical terms (see paragraph 7.80) we would be close to a position where if no account was taken for the need to maintain courts in any given location (in other words if each court was used to near its current maximum capacity) there would be nearly enough sheriffs overall at present to deal with all future summary business.

7.75 Clearly, however, this is an unrealistic proposition as there will always quite properly be a need to ensure the local delivery of justice. Cases cannot be moved around the country to suit the convenience of court schedules. There are a number of other arguments why this would not be a satisfactory solution.

7.76 First, as has already been mentioned, the context of this review includes the need to relieve the pressure on the higher courts. This implies a movement of cases from the High Court to the sheriff and jury court, and in turn a movement of cases from solemn to summary procedure. So those wider changes will increase the number of more serious offences with which the summary courts can and do deal.

7.77 In addition, while our recommendations will help to ensure that less serious offences can be dealt with effectively without coming to court, they will mostly impact on business currently dealt with in the district courts. We recognise that a substantial volume of summary business of the nature and level currently dealt with in the sheriff court will remain, as well as a reduced case load of the type currently handled in the district court.

7.78 We therefore need some extra judicial capacity in the system, not just to ensure that justice can be delivered locally but to avoid excessive pressure on resources at the summary end which might undermine our goal of quicker, more effective summary justice. At the same time, it is arguable that to use sheriffs to deal with all summary business, especially the high volumes in the urban courts, is an inefficient use of a highly qualified and highly paid judicial resource. We recognise that "district court" type work will remain, albeit there will be less of it.

7.79 We therefore think that there are good arguments for a new class of judge with a criminal jurisdiction which extended only to summary business. An "entry level" judicial post which could handle the more routine business would free up sheriffs to deal with the more serious cases including, in particular, summary cases which would previously have been handled in the solemn courts and those solemn cases which would previously have been prosecuted in the High Court.

7.80 The Committee is not able on the level of information currently available to specify the number of this new class of judges that would be required, although preliminary discussions with SCS suggest that initially it might be in the order of 20-25.

7.81 The Committee recognises that the primary requirement would be likely to be in busy urban courts where there is a sufficiency of summary business to keep a professional summary court judge busy, and where there is also solemn work as well as civil business for sheriffs to deal with. In rural areas where there may be less criminal business, it would make sense for sheriffs to continue to hear summary cases as well as solemn cases. In this respect the new judge would fulfil a role similar to that of the stipendiaries in the Glasgow district court.

7.82 The Committee has given some consideration to the name for the new type of judge. A number of options were put forward and discarded. Any term including the word "judge" such as "summary judge", "community judge" or "district judge" runs the risk that the new posts will be seen as superior to sheriffs in the eyes of the public. There were also other drawbacks such as the fact that some of the new judges would probably be a national resource rather than a community or district resource. Stipendiary magistrate was considered as a reasonably accurate description of the function but the Committee preferred a new name to mark the change in arrangements. "Junior sheriff" and "sheriff depute" were also considered, but the Committee preferred "summary sheriff" as an accurate description of the job while remaining within the Scottish tradition that people look to the sheriff court for most local justice.

7.83 Turning to the criminal jurisdiction for judges in summary cases, including both sheriffs and summary sheriffs, the options considered by the Committee were:

• 60 days' imprisonment, 2,500 fine (as for lay justices at present);
• 3 months' imprisonment (6 months' for repeat offences or cases involving violence or dishonesty) , 5,000 fine - (as for sheriffs and stipendiaries at present);
• 6 months' (12 months' for repeat offences or cases involving violence or dishonesty), 10,000 fine (as for sheriffs under summary procedure in the Crime and Punishment (Scotland) Act 1997, but not yet brought into effect; 10,000 fine - taking account of inflation since the 5,000 maximum was introduced);
• 12 months', 5,000 fine (as proposed for lay magistrates in England and Wales in the Criminal Justice Act 2003); and
• 12 months', 20,000 fine (recognising that the power to imprison for up to 3 months has an associated maximum fine of 5,000 and that a fourfold increase in custodial powers should be accompanied by a similar increase in the maximum level of fine).

7.84 The first option was discounted by the Committee as it would not address the need to accommodate the pressure to move cases downward through the system to the lower courts, and there would appear to be no good reason why sentencing powers should not be at least as high as that of the stipendiary magistrates that currently sit in Glasgow district court. The Committee then considered the second option, which represents the status quo in the sheriff summary and stipendiary courts. In view of the increased seriousness of cases that will be heard in the summary system in future, this option was also rejected.

7.85 The Committee then considered the third option - the sentencing powers for sheriffs set out in section 13 of the Crime and Punishment (Scotland) Act 1997 which, to date, have not been commenced. The Committee noted in this context the intention to commence the sections of that Act relevant to sentencing under solemn procedure. However, the Committee believes that the sub-section relating to summary procedure does not go far enough. To limit the imposition of a 12-month sentence to repeat offences involving violence or dishonesty would unduly restrict the sheriff in dealing with more serious cases summarily. The most serious summary cases which are dealt with at present do not necessarily involve offenders with previous convictions involving violence or dishonesty. If this distinction was ever valid we do not think that it should be perpetuated. This option could frustrate the full range of proposals aimed to ensure that both the High Court and sheriff court are well placed to devote appropriate attention and effort to cases at the appropriate level and could lead to bottlenecks with cases being prosecuted at a higher level than they should be.

7.86 The Committee noted the provisions in the English Criminal Justice Act 2003 which has recently completed its Parliamentary stages for a general maximum sentence of 12 months as the maximum which English magistrates will be able to impose for a single offence (fourth option above). It agreed that 12 months was an appropriate sentence for summary judges to be able to impose. It felt, however, that the accompanying proposal of a maximum fine of 5,000 for the English magistrates was too low.

7.87 The Committee therefore recommends that, in order to equip summary judges with the disposals that will be necessary to deal with cases that will be heard summarily in future, they should be able to imprison for a period of up to 12 months and impose a maximum fine of up to 20,000 (maintaining the 3 months-5,000 ratio) with no distinction in the maxima for a first or subsequent offence.

7.88 A fine of that order may be imposed more often on companies and businesses than on individuals. The Committee recognises COSLA's concern for simple but adequate means of dealing with regulatory offences, and considers that a substantial increase in the fine level which summary courts can impose will help towards that end. Prosecuting businesses on indictment would expose them to the risk of an unlimited fine unless otherwise provided by statute. We can see considerable merit in enabling most cases in which the accused is a company or other form of incorporation being dealt with summarily. If an offender is sentenced to a period of detention or imprisonment of less than 4 years he or she is entitled to be released after serving half the sentence. Effectively a maximum sentence of 12 months detention or imprisonment really means 6 months. For professional judges sitting summarily, other than in England and Wales at present, the lowest maximum sentence which the Committee is aware of in Commonwealth countries and Northern Ireland is 12 months. Two years is not uncommon.

7.89 The Committee is aware of concerns about "sentence drift", the suggested phenomenon whereby if judges are given higher sentencing powers there will be a general uplifting of the going rate for all offences leading to an increase in the prison population. Clearly this would be a matter of concern given the high prison population we have at present when compared to other jurisdictions. In proposing an increase in sentencing powers, we are clear that we do not intend any such uplift of the going rate for all offences, but rather we wish to extend the range of offences that can appropriately be dealt with in the summary courts.

7.90 However, we are not aware of any studies that have satisfactorily demonstrated this effect. In 1988 the sentencing powers of sheriffs sitting with a jury were increased from 2 to 3 years. While there was an increase in the proportion of sentences of between 2 and 3 years after this date, this was in line with a longer-term increase in the length of custodial sentences, which continued throughout the 1990s. For example, custodial sentences of over 3 years - High Court sentences - doubled as a proportion of the total between 1984 and 1999. The figures suggest that longer-term factors of political context count for more than jurisdictional change in influencing the length of sentences.

7.91 We therefore would not regard the theoretical risk of sentence drift as an adequate reason for failing to increase the sentencing powers of summary judges. In relation to the prison population, we note the creation and role of the Sentencing Commission and feel that the Commission, rather than ourselves, should address the issue of identifying more effective sentencing strategies to deter reoffending. We would also suggest that the Sentencing Commission keeps under review the effects of an increase in sentencing powers.

7.92 If, then, the sentencing power of sheriffs sitting summarily is to be increased, the Committee would take the view that there is no reason for there to be any distinction made between sheriffs and summary sheriffs. A different summary jurisdiction would not produce any advantages that we can think of, but it would undoubtedly lead to less flexibility in court management and scheduling.

7.93 There are a number of other aspects to the proposal to establish summary sheriffs that the Committee has considered, which are worth listing briefly.

7.94 The Committee thinks that there would be considerable advantage if the summary sheriff was conceived as a national resource rather than as a resource necessarily limited to a local jurisdiction. There are of course perceived advantages to a judge being aware of local issues. However, to the extent that this makes any difference in practice, we believe that it is counter-balanced by the argument that justice should be dispensed consistently. It was certainly our impression that the need for consistency was seen as being as important as the need for local sensitivity. Given these apparently competing claims, the Committee is of the view that the flexibility to deal with variations in workload suggests that while a summary sheriff should normally be based in a given locality, serving one or more courts in that locality, he or she should not be limited to hearing cases in that area only. However it would be possible to experiment in busy, predominantly urban areas with the concept of local community courts presided over by the same summary sheriff.

7.95 Not only would this further assist in court scheduling flexibility, it has also been suggested by a number of judges with experience of summary business that a constant diet of nothing but such business would lead to case-hardening and lack of job satisfaction. A civil jurisdiction would also help with the career path aspect discussed below. Summary sheriffs might be given jurisdiction to deal with summary causes, small claims, interdicts and matters requiring an urgent or early decision, for example, and power to deal with interlocutory matters.

7.96 The establishment of a post of summary sheriff could offer a first step on a career path that could progress to the position of sheriff and then High Court judge. At present there is no such career path, although it is noted that a lack of civil law experience could count against summary sheriffs progressing to the full shrieval bench. This development of a career path could have the effect of attracting younger people, women and people from ethnic minorities to become summary sheriffs, and in the process thereby creating a judiciary more representative of the population generally. It is noted by the Committee that there would be likely to be an attraction for many of those who are currently employed as legally trained clerks in the district courts to apply to become summary sheriffs.

7.97 The Committee noted that moving to a fully professional summary bench would have implications for the legal aid system. Currently there is a differential between the amounts paid under the summary legal aid scheme to defence agents representing clients in the district courts compared to that paid for cases in the sheriff courts. We do not see any reason for there to be a differential between cases calling before summary sheriffs as opposed to sheriffs. The effect this proposal would have on the legal aid fund would require further consideration prior to its introduction - although it should be borne in mind that the range of proposals made in this report will impact upon the number and type of cases heard generally in the summary courts.

7.98 In proposing the new post of summary sheriff, the Committee is not of the view that this would lead to a cut-price version of the service delivered by sheriffs. We would envisage qualifications such as 5 or 7 years in practice as a solicitor or advocate. We are also aware that the salaries that would be required, while less than the 100,000 paid to sheriffs, would still need to be substantial. In this context we note that district judges in England and Wales, with a broadly similar jurisdiction, are paid approximately 80,000 and are subject to the recommendations of the Senior Salaries Review Body.

We recommend that there should be a new class of professional judge to deal with summary business where there is a need. That judge should be known as a "summary sheriff".

We recommend that while summary sheriffs would normally be based in a given locality, they would not necessarily be limited to a particular local jurisdiction, and could be used flexibly to relieve pressure in other areas. We recommend that some might be appointed on a part-time basis.

We recommend that the criminal jurisdiction for judges in summary cases should be a maximum 12 months' detention or imprisonment and a 20,000 fine. There is no reason for a distinction in this respect between sheriffs and summary sheriffs.

We recommend that consideration be given to summary sheriffs having some civil jurisdiction in addition to the criminal jurisdiction we have suggested.

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