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The Summary Justice Review Committee: REPORT TO MINISTERS
Chapter 16: DEALING WITH MULTIPLE CASES AGAINST AN ACCUSED
16.1 Persistent offenders, many of them under 21, may have multiple summary prosecutions outstanding at any one time. It is not uncommon for there to be 10 or more current cases involving the same person. These cases are often outstanding in one or more court districts and in both sheriff and district courts.
16.2 Where there are several outstanding cases in the same court, that court will usually attempt to get all the cases before the court on the same day, particularly for the purpose of imposing sentence. To get all the cases to call together on the same day will, in practice, usually involve multiple adjournments of some of the cases.
16.3 If there are other outstanding cases in another court or courts it is often argued that cases should be adjourned to await the outcome of at least one of the cases in another court. It may be said that another case is the most serious of the outstanding cases. If the offender is to be imprisoned or sentenced to detention by another court, there would be no point in imposing a different sentence, such as probation, in any of the cases before the present court.
16.4 This culture of multiple adjournments in multiple cases has several undesirable consequences and no advantages. Multiple adjournments add substantially to the delay in disposing of cases. They use up considerable resources, for the Crown, the defence and the courts, wholly unproductively, contributing substantially to the phenomenon of "churning". They delay the sentencing of offenders who will usually be on bail and be able to commit other offences, something which these offenders often do, leading to yet more cases. The advent of a new case or cases can be used as an argument for further adjournments. We believe that this problem, which is very prevalent and an obvious defect in the present system, can and must be tackled.
16.5 At present pending cases cannot be transferred from one court to another nor between sheriff courts and district courts. Procurators fiscal can discontinue a prosecution in one court and include the same charges in a new complaint in another court but that adds to delay and causes additional expense. For these reasons that is not commonly done.
Rolling Up Outstanding Cases
16.6 With new information systems available to COPFS, procurators fiscal, when considering a report by the police, can discover which other cases that particular accused has outstanding and where they are. Courts should be able to access that information too. We believe that, so far as practicable, all outstanding cases involving the same offender should be prosecuted in the same court, and that a routine check should be made in all cases to ascertain whether there are other outstanding cases relating to that accused.
16.7 Normally it would be the task of the Crown to apply to have cases transferred to or from a particular court. However, we consider that the court should also have power to direct such transfers at its own hand. Before any such direction would be made the Crown and, if present, the defence would have to be heard. The test would be whether the transfer was in the interests of justice, bearing in mind the desirability of minimising delay and expense. There should be a presumption in favour of transfer.
Transfer Procedure
16.8 If a court was minded to direct a transfer there might have to be some discussion between procurators fiscal of the courts affected and between the courts themselves as to the practicalities of the transfer before a direction was made. Elsewhere (see chapter 15) we recommend that the principal copy of the complaint, minutes and the like should be the electronic version. Where cases are transferred from one court to another, the court to which the transfer is made should be regarded as holding the principals on its electronic database once the transfer is complete. But both courts should have such access as they may require to the case file. Any copies of complaints, minutes etc which are thereafter printed out should to be regarded as copies for use in that court. It should not be necessary to complete the physical transfer of hard copy documents before the receiving court can start dealing with the case.
Cases at Different Stages
16.9 We accept that multiple cases relating to a single offender may be at different stages when they call in court on the same occasion. Some may have been continued without plea. In others a trial may be pending. Where more than one trial is pending the court should be given power to direct that these trials should be heard together as if the charges on the complaints were charges on the same complaint. There will be occasions when this cannot or should not be done. Most charges of theft, assault, breach of the peace, road traffic offences and the like, though charged in more than one complaint should, in many instances, be capable of being tried fairly on a single occasion rather than individually. The fact that an offender has pleaded guilty to a number of charges and not guilty to other charges in a complaint should not preclude that complaint being rolled up in this way.
16.10 We consider that the court should have power, on Crown, defence or joint motion, to conjoin complaints and direct that they be treated as a single complaint for the purposes of trial. There would, in effect, be a single trial. There should be a presumption in favour of conjunction, except where a motion for the separation of charges would be likely to be granted under existing law.
16.11 For the purposes of sentence however each complaint should remain subject to its own maximum. The court should remain able to make sentences imposed on one complaint consecutive to sentences on any other complaint.
16.12 We do not believe that this proposal should cause any particular difficulty with criminal legal aid, or at least none which cannot be overcome. We acknowledge that on occasions different solicitors will have been acting for an accused in connection with different complaints in different courts when two or more cases have been brought together in the same court. If a number of complaints were to be conjoined into a single complaint, it would clearly be sensible and probably necessary for there to be a single defence agent.
16.13 We take the view that in most instances it would be better not to transfer cases where a trial has taken place but sentence has not yet been imposed. It might in many circumstances cause less delay if the court were to proceed to sentence irrespective of potential sentences in other courts. If a case was transferred after a trial and a finding of guilt, the court to which the case is transferred would find it helpful to have a brief summary of the facts established at the trial. We would expect the transferring court in those circumstances to provide a report in an electronic form (which might be attached to the minute transferring the case). The Crown would, in a few cases, have to invite the transferring court to cancel any outstanding warrants, for example, requiring witnesses to be brought before the transferring court.
16.14 In this context we note that a court may only take into account a conviction for an offence committed prior to the commission of the offence under consideration. 48 An offender who has engaged in a course of criminal conduct over a period may plead guilty to some charges and not guilty to others, with the result that he or she may have convictions arising during that course of criminal conduct, some of which are for offences prior to and others are for offences subsequent to the offence then under consideration by the court. Convictions subsequent to the commencement of the current proceedings cannot be laid before the court even though the offences concerned predated the offences in the current complaint. The court when sentencing should be able to consider the whole of the offending behaviour without artificial restrictions of that kind. We recommend that the law is changed to enable all convictions to be taken into account at the time of sentencing irrespective of whether the offences were committed prior to or subsequent to the offence under consideration.
Deciding Which Court Should Deal with the Cases
16.15 If cases are to be transferred from one court to another, the court to which they should normally be transferred is the court of the area where the accused lives. In the event of conviction and community sentences being imposed it is preferable that the offender be dealt with in the area where community sentences will be carried out. We are of course aware that probation orders and community service orders can be transferred by the court which imposed them to the court district where the offender lives. But if it became competent for some but not all courts to impose, say, structured deferred sentences or probation orders with regular reviews, as is the case with drug courts and the Hamilton youth court pilot project, the court which makes orders of that sort should be the court in which the reviews will take place. The youth court has as its rationale that both the needs and the deeds of the offender will be addressed in the round. If the youth court pilot were to be rolled out to other parts of Scotland it would be more or less essential that only one court, normally the offender's home court, took on that task. Having cases calling in other courts for sentence could lead to sentences of imprisonment or detention which may result in considerable effort and expense invested at another court, aimed at tackling the causes of that person's criminal conduct, being frustrated and wasted. When an offender receives a sentence which is subject to continuing review it is important that any later criminal cases are dealt with in the court where the review requirement is operative. Much the same considerations already apply to drug courts.
Witness Considerations
16.16 We recognise that rolling up multiple cases to be heard in a single court could potentially mean longer journeys and more inconvenience for witnesses. However, our experience suggests that most offenders who commit offences do so for the most part within a relatively local area which may include more than one court district. It is relatively rare for an offender who lives in Glasgow, for example, to commit offences in Aberdeen. Where that occurs it may not be practicable to transfer a case.
We recommend that, where possible, all outstanding complaints against an accused should be dealt with in the same court, in most cases preferably the court in whose jurisdiction the accused lives.
We recommend that when there are cases outstanding against the same accused the Crown or the defence should be able to apply to have cases transferred to or from a particular court so as to bring the outstanding cases together in the same court.
We recommend that the court should have power to direct such transfers at its own hand, having heard the Crown and, if present, the defence.
We recommend that the court should have power, on Crown, defence or joint motion, to conjoin complaints and direct that they be treated as one for the purposes of trial.
We recommend that for the purposes of sentence each complaint be dealt with separately and should remain subject to its own maximum.
We recommend that the law be changed to enable all previous convictions to be taken into account irrespective of whether the offences were committed prior to or subsequent to the offence under consideration.
We recommend that where cases are transferred from one court to another the transfer should be carried out electronically; it should not be necessary to complete the physical transfer of hard copy documents before the receiving court can start dealing with the case.
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