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The Summary Justice Review Committee: REPORT TO MINISTERS
Chapter 26: THE ROLE OF THE BENCH IN MANAGING COURT BUSINESS
26.1 If the summary justice system is to become and remain summary in future, the role of the bench in the management of court business must be considered. Sheriffs principal are under a statutory duty "to secure the speedy and efficient disposal of business in the sheriff courts in (their) sheriffdom" (Sheriff Courts (Scotland) Act 1971, section 15). There is no similar statutory duty imposed on sheriffs or lay justices. We have considered whether we should recommend that the bench should be under some kind of obligation to achieve a similar objective. We have concluded that the imposition of a statutory duty on the bench in each court would not, of itself, be likely to achieve a useful purpose.
26.2 We note at this point, that although there is a clear statutory duty placed upon sheriffs principal as described above, they do not have the necessary levers to secure efficient case management. Sheriffs principal can control the input of resources into the system, i.e. they ensure that there are sufficient sheriffs in the right place at the right time to deal with the anticipated flow of business, but they have no control over the outputs of the system. We do not, however, think that it is within this Committee's remit to consider how this situation might be addressed.
26.3 We recognise that many judges do not see themselves as having a role in managing court business. The idea that they might have such a role may be perceived by some as a threat to their judicial independence. They may say that each decision in each case has to be taken on its merits and that how a court performs overall is a reflection of the accumulation of many individual decisions. So, it may be said, there should be no constraints on them as impartial adjudicators in particular cases.
26.4 We would not accept that judges do not manage court business. To the extent that management is about applying skills to make sure that things get done, judges play that role daily by exercising their judicial discretion. They do not have line management responsibility for those who appear before them nor for those who staff the courts. As a result they have to operate to some extent by consensus. They often have to take decisions on issues which may be contentious, such as whether adjournments should be granted and, if so, for how long and whether documents or productions should be allowed to be lodged late. They can set a timetable within which a sequence of actions must be taken. They can accord higher priority to some cases than others. They can bring to an end cases in which there has been unreasonable delay. Though considerations such as the interests of justice will play a very important part in many decisions such as these, these are examples of a different kind of role from what is often seen as the primary role of a judge - substantive decision making.
26.5 In that primary role judges in a summary criminal court have to reach reasoned judgements, having listened to and considered the evidence led and the submissions made to them. In that role the independence of the judiciary is paramount. They must be wholly impartial and not subject to pressures from the Executive or anyone else to decide cases in a particular way. Their decisions are almost always subject to appeal. But the progression of cases from the time they get to court till they are concluded is an exercise of what is essentially, though by no means wholly, a managerial role. Judges should not be influenced by others in reaching the substantive decisions which they do, but hand in hand with their independence goes their responsibility to deliver justice not only of a high standard but quickly and at reasonable cost to both Crown and defence.
26.6 The delivery of high quality justice requires that it is delivered without undue delay. Delay adds to cost and can lead to a denial of justice. Some courts have shown that they manage cases more successfully than do others in terms of the numbers of times they call in court and the average time it takes to bring cases to a conclusion. All courts share an implicit common objective - the delivery of substantive justice which is sound in fact and in law in all cases which come before them within a reasonable time and without undue cost. But at present courts do not know how well they deliver justice in terms of time and cost relative to others. Summary criminal courts should be assisted in their management of court business to ensure that justice is summary, that cases make the progress which they should and that they make that progress in a cost effective way.
26.7 We are aware that in some types of courts the management function of the bench is easier to discharge. In smaller courts, where there is not the pressure of business seen in many of our larger courts, the bench can schedule business more easily to meet the demands of individual cases and secure that proper priority can be given to those cases which justify it. In the larger courts we recognize that a whole system approach is likely to be necessary where all the responsible agencies co-operate to deal with management issues. We note that such an approach was followed for a time in Glasgow Sheriff Court in an effort to deal with backlogs of summary criminal trials and that approach was considered to be successful.
Adjournments
26.8 The Committee noted the considerable variation in courts throughout Scotland in the percentage of diets which are adjourned. The average number of times a case calls in court varies considerably from one court to another. Some courts seem to be able to bring cases to a conclusion much more effectively than others. As far as trial diets are concerned adjournment rates ranged from 9% to 41% in 2002-3. 64 Even excluding small rural courts, there were significant variations from, for example, 23% in Edinburgh, to 35% in Perth and Paisley. Given the numbers of cases with which a busy sheriff court like Glasgow deals, even a marginal movement towards the lower end of this spectrum would have a significant effect on the speed at which the system moves and the numbers of witnesses who are inconvenienced.
26.9 Research conducted by Leverick and Duff 65 suggests that the most important factor in minimising adjournments is management by the bench. Sheriffs were seen by other parties in the court process as having considerable discretion not just in deciding whether or not to grant an adjournment request, but also in the extent to which they actively questioned a party requesting an adjournment as to whether it was really necessary. It was noted that in many cases where the defence and prosecution were agreed on the need for an adjournment that fact was often not questioned by the bench.
26.10 During the practitioners' workshops organised by the Committee, there was discussion of the extent to which there exists an "adjournment culture" in some courts. There was broad agreement that there is such a phenomenon in the workshops in Edinburgh and Glasgow, but less so in the event held in Aberdeen. A number of reasons for the common granting of adjournments were identified, and are dealt with elsewhere in this report, in particular problems with citation of witnesses, ineffective intermediate diets and the need to obtain social enquiry reports.
26.11 A counter view was expressed to the Committee by some of those consulted that allowance had to be made for individual sheriffs and court circumstances. It was important to maintain fairness for both the accused and the Crown. Aggressive challenging of requests for adjournments had, in some courts, undermined that balance. In any event sheriffs principal had statutory responsibilities for ensuring the efficient running of courts in their area and could decide where and when sheriffs sat and what cases they heard - sheriffs did not have those powers. If it was thought that sheriffs were not sufficiently proactive in progressing cases then it was up to the sheriff principal to intervene.
26.12 While acknowledging the need to maintain fairness and also the fact that adjournments could in some circumstances assist the efficient management of business, the Committee was in agreement with the broad conclusions of the research that if the bench was proactive, fewer adjournments were likely to be requested and those that were requested were more likely to be necessary.
Management Information
26.13 It seemed to the Committee that there needed to be a greater consistency of approach to caseload management from those who sat on the bench. Because there are variations within courts between judges in this respect there is a tendency for proactivity on the part of those who favour that approach to become less effective. But there are a few larger courts where there is not the same readiness to grant adjournments as there is in others. Part of the problem is that, in the absence of information to the contrary, each court tends to think that it handles its business well or at least as well as it can in the circumstances.
26.14 In chapter 33 we set out the management information which should be collected in relation to the operation of courts and on a court by court basis (see paragraph 33.20 in particular).
26.15 Only by monitoring the performance of courts in that or a similar way can it become known how effectively particular courts process trial cases. We believe that the information should be provided to judges on a court by court basis at regular intervals showing the extent to which there is deviation from the mean over a period and in a format which demonstrates how well the business of each court is managed over time - to enable them to manage the business in their court in an informed way. Judges should have access, so far as they need it, to the management information which is likely to be gathered by local criminal justice boards.
Training
26.16 We believe that the Judicial Studies Committee has a role to play in training judges in the management of court business. We consider that, for the future, it will be necessary to provide the bench with training in the skills required for the effective management of the business which they handle.
26.17 It could be illuminating for some judges to learn what the consequences of adjournments are likely to be both in cost terms and for those affected by the decision to adjourn and how other judges manage their business apparently more successfully. We should add that we do not see business management and throughput as ends in themselves. That could lead to injustice all too easily. But where there are significant differences between courts in the apparent effectiveness of their disposal of summary criminal business some effort should be made to identify why that is so and to disseminate best practice.
We recommend that the Judicial Studies Committee provide further training for judges in the management of summary court business.
We recommend that management information should be provided to judges on a court by court basis at regular intervals showing the extent to which there is deviation from the mean in relation to the number of adjournments granted at the various states of the process, the overall time taken to deal with cases and the implications for witnesses, victims and accused.
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