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The Summary Justice Review Committee: REPORT TO MINISTERS

Chapter 31: SUMMARY APPEAL COURT

31.1 At present all appeals in summary cases from decisions taken in the sheriff court or the district court are made direct to the High Court of Justiciary. In the case of appeals against conviction, whether or not the appeal is also against sentence, and appeals against acquittal, appeal is by way of stated case. In the case of appeals against sentence only, appeal is by note of appeal setting out the grounds of appeal which is lodged with the clerk of the court from which the appeal is to be taken. In such cases the judge who sentenced the convicted person prepares a report for the High Court. There may be appeals by way of suspension or advocation and by way of a petition to the nobile officium.

31.2 Appeals against conviction or sentence or both, are with leave of the High Court in terms of sections 180 and 187 of the 1995 Act. The question whether leave should be granted or not is dealt with initially by a judge in chambers on the basis of the paperwork provided to him or her. The test is whether there are arguable grounds of appeal. If there are, leave to appeal will be granted. Where leave to appeal is refused the appellant may apply to the High Court for leave to appeal. Once again the matter is determined in chambers without the parties being present and the test remains the same. There is thus a two stage sifting process commonly referred to as the "first sift" and the "second sift". This enables the High Court to dispose of appeals which appear to have no merit whatever without the necessity and expense of a hearing. Many appeals are marked but abandoned by appellants prior to a decision by the High Court. Of those in which leave to appeal has been considered, many are found to have no arguable grounds of appeal.

31.3 The Criminal Appeal Statistics, Scotland 2002 show that the total number of appeals completed in that year was 2,470 of which 452 were High Court appeals and 364 sheriff solemn appeals. There were 1,506 sheriff summary appeals and 148 appeals from the district court, i.e. 1,654 summary appeals. The figures for completed cases are not typical. They show a marked overall drop on the comparable figures for the preceding year, which was more typical of, though somewhat higher than, the average of the years preceding it. The figures for 2001 showed that the number of appeals completed was 3,568 of which 394 were High Court appeals, 539 sheriff solemn appeals, 2,391 sheriff summary appeals and 244 district court appeals, i.e. 2,635 summary appeals. Based on the figures for previous years we consider that it is reasonable to estimate that about 2,450 summary criminal appeals should be completed in an average year.

31.4 The 2002 figures were distorted by a decision to give priority to solemn conviction appeals. That, combined with an increase in the number of appeals against conviction in High Court cases and other demands on court time, led to increased delays in dealing with other kinds of criminal appeals. The Criminal Appeal Statistics, Scotland 2002 record that between 2001 and 2002 the average duration of all completed appeals increased by 50% to 122 days and that there was a 153% increase in the average duration of summary conviction appeals to 316 days. These statistics also show that sheriff summary appeals took 91 days to complete (up 55%); that district and stipendiary magistrates' court appeals took 102 days (up 37%); and that 41% of summary conviction appeals took a year or more to complete. The duration of summary sentence only appeals increased by 14% to 58 days. Solemn sentence only appeals had an average duration of 119 days, a 6% increase.

31.5 A comparison between the targets set for the disposal of criminal appeals and what was achieved shows that most targets were missed by a substantial margin. ⁷⁰ These figures confirm our view that if summary justice is to be truly summary, appeals should, in most cases, also be dealt with significantly more quickly than they are at present. We suggest that one way of assisting the High Court of Justiciary to achieve the targets which have been set for it without causing distortions elsewhere, would be for a new court to relieve it of much of the summary criminal appeal work which it currently undertakes.

31.6 As has been noted almost all appeals go through the sift process to determine whether there are arguable grounds of appeal. Taking overall figures for appeals in 2002, about 8% of appeals were abandoned before the first sift (5% in 2001), 31% were granted at first sift (25% in 2001), 17% refused at first sift with no further appeal (23% in 2001), 6% granted at second sift (10% in 2001) and 38% refused at second sift (37% in 2001). That implies that about 37% of the total number of appeals went to a hearing in 2002.

31.7 The numbers of appeals against sentence which were found to be unarguable is substantial. In 2002 ⁷¹ the numbers of appeals against sentence only were as follows:

Source - SEJD criminal appeals database

31.8 The Committee has considered whether a summary criminal appeal court, at a level below the High Court, should be established with a view to relieving the High Court of the large numbers of appeals against sentence at least. We have discussed this proposal widely. There appears to be general support for it.

31.9 We envisage that, if a summary criminal appeal court were to be established, those who sit as judges of that court would be very experienced summary criminal judges. It does not appear to us to be necessary to employ the judges of the High Court to determine whether an appeal against sentence contains any arguable grounds of appeal and, if it does, to determine whether the sentence imposed is excessive. A summary criminal appeal court should be able to deal with such appeals more expeditiously than the High Court can currently do. The High Court has been overburdened with work continuously in recent years. The Committee considers that the speeding up of summary criminal justice should include speeding up the process of appeals which arise from summary criminal cases.

31.10 We would envisage that that court would have a panel of judges drawn from the shrieval bench. We envisage sheriffs principal being part-time members of the court. The burden of work, including the need to sift appeals, would be such that sheriffs principal on their own would be unlikely to be able to provide sufficient judicial resources to deal with all of them, given their other responsibilities. We anticipate that a number of experienced sheriffs would be appointed as part-time members of the court for a term of years, possibly three years, which might be renewed. Such sheriffs should have held office as such for a minimum period of years, possibly five years, prior to their appointment as members of the summary criminal appeal court. We consider that there are advantages in having some turnover in the personnel of a summary criminal appeal court in order to broaden experience of its workings and to bring in new blood from time to time. We do not consider that the independence of the judiciary would be undermined by selecting some sheriffs to carry out these part-time functions for a limited period. We suggest that overall responsibility for the operation of the court should be in the hands of a single sheriff principal, who would be appointed to that role on a part time basis for a term of years, possibly three years, and that this appointment could rotate between sheriffs principal.

31.11 How sheriffs should be selected for appointment as members of the summary criminal appeal court is, we think, a matter which should be discussed further if this proposal is accepted. They might be appointed by the First Minister on the recommendation of the Judicial Appointments Board and after consulting the Lord Justice General (see section 11 of the Sheriff Courts (Scotland) Act 1907 and section 95(4) of the Scotland Act 1998). There may be an argument that their appointment should be the responsibility of Scottish Ministers in terms of section 14(4) of the Sheriff Courts (Scotland) Act 1971. Alternatively they might be appointed by the Lord Justice General. That is a matter which we do not consider it necessary for us to attempt to resolve.

31.12 So far as the nature of the work which the summary criminal appeal court should undertake is concerned, we are of opinion that all summary appeals against sentence only should be marked to that court. Provision would require to be made for the summary criminal appeal court at an early stage to be able to refer appeals which raised questions of law or of sentencing principle of wider application to the High Court of Justiciary. That is not to say that the summary criminal appeal court should not have power to determine points of law in the course of an appeal against sentence. On the contrary, it should have power to do so but there would require to be provision for a further appeal to the High Court of Justiciary on a point of law.

31.13 So far as appeals against conviction, against conviction and sentence or against acquittal are concerned, we are aware that many substantive points of law, including the law of evidence, have been determined over the years by the High Court of Justiciary as the result of appeals by stated case from summary criminal courts. The focusing of the issues in a stated case frequently identifies issues which are unlikely to arise in an appeal following a conviction by a jury. Juries do not give reasons for their decisions. It appears to us that there are two alternative procedural approaches. One of these is that all of these appeals should be marked to the summary criminal appeal court with power to (or possibly an obligation on) that court to refer any cases in which points of law of importance appear to arise to the High Court of Justiciary. That would be done without an oral hearing in the summary criminal appeal court.

31.14 The alternative is for these appeals to be marked direct to the High Court of Justiciary with power to that court to refer them to the summary criminal appeal court where the points in issue do not justify a High Court hearing. Only about 13% of all summary appeals involve an appeal against conviction. Few are marked against acquittal. Some of these will not pass a sift or will be abandoned.

31.15 We favour the latter course, namely that all appeals involving conviction or acquittal should be marked to the High Court of Justiciary. It should be open to judges of the High Court carrying out a sift of such cases to direct that the case be dealt with by the summary criminal appeal court. We also take the view that appeals by the Crown against lenient sentences, and appeals by way of suspension or advocation should be marked to the High Court.

31.16 In essence then we recommend that the summary criminal appeal court be restricted to appeals against sentence, and to cases referred to it by the High Court. When hearing appeals against conviction or unduly lenient sentences referred to it by the High Court we recommend that the summary appeal court should sit as a bench of three. We consider that there should be a further appeal from the summary appeal court to the High Court of Justiciary either with leave of the court or on a point of law, but not as of right.

31.17 We have considered whether the proposed summary criminal appeal court should sit in Edinburgh, possibly in Parliament House, or should be peripatetic. If it were to be peripatetic we would envisage that it would sit within each sheriffdom in one or more court locations to which could be gathered a reasonable amount of business. We do not suggest that the summary appeal court should be required to travel to the original location of each case. However, we recognise that even hearing cases within each sheriffdom would represent a considerable improvement on the current position in terms of savings in the cost of representation of those who were convicted. They could be represented by local solicitors in a relatively local court rather than being required to travel to Edinburgh, and to instruct Edinburgh agents and counsel.

31.18 The fact that the summary criminal appeal court sat locally should have an effect in increasing consistency of sentencing throughout Scotland. We would envisage that members of the summary criminal appeal court would sit in sheriffdoms of which they are not serving sheriffs or sheriffs principal to hear appeals. Judges of that court would require to have a commission which allowed them to sit anywhere in Scotland. They should be able to sift cases in whichever part of Scotland they happened to be and not be restricted to sifting them in the sheriffdom or sheriff court district in which the appeal arose. It is desirable that the sifting process should be carried out in the great majority of the cases which are appealed by a sheriff principal or sheriff who does not normally sit doing first instance criminal work in the court from which the appeal emanates. We would envisage that a summary criminal appeal court would make arrangements for its decisions on sentencing to be made available to other sentencers throughout Scotland, possibly by means of a sentencing information system maintained on an electronic database.

31.19 If there is a new summary appeal court we envisage a system of sifts in accordance with the present statutory framework, with the first sift being conducted by a single judge and the second sift by two. A judge who has refused leave to appeal at any stage in a particular case should not be involved in any later stages of that case. We consider that the summary criminal appeal court hearing sentence only appeals in which leave has been granted should sit as a bench of two. In the event of disagreement, a case where a point of importance arises or where the court is hearing a case referred to it by the High Court we consider it should sit as a bench of three. The summary criminal appeal court would be expected to hear and determine summary appeals promptly and efficiently. Part of its role should be to enhance sentencing consistency in summary criminal courts throughout Scotland.

31.20 We would anticipate that the legal aid costs of appeals would be less than they currently are, especially if the appeals were to be heard in the part of Scotland in which they arose. Judges of that court would only require to attend a court other than their home court for oral hearings of appeals. Sifting could be carried out in chambers as part of their ordinary working day. We would not anticipate that membership of the court would lead to any additional salary being paid. Membership would not entail a full-time commitment and should not do so. It is of advantage that the members of the court should have current, or at least recent, experience of summary criminal cases. We would expect that it would be necessary to appoint someone, probably a sheriff principal, to be responsible for the operation of that court. It would be desirable to monitor the cost and efficiency of such a court. If such a court were to be established, baseline data for the costs of the present system and the time it takes the present system to process cases should be acquired as a basis for monitoring the effectiveness of the changed system.

Legal Aid for Appeals

31.21 The experience of many sheriffs and justices is that large numbers of summary appeals against sentence are marked which have no realistic prospect of success. We believe that the current arrangements concerning legal aid for appeals contribute to the numbers of cases in which appeals are marked. There is an initial grant of legal aid to cover advice on the prospects for an appeal. The current regulations do not enable the Scottish Legal Aid Board to consider whether the appeal has any merit in most cases. The expenditure of legal aid on such appeals is without effective scrutiny. Very often the sentence appealed against will be well within the range of sentences commonly imposed on such an offender for that type of case. The experience of sheriffs and justices is borne out by the sifting processes applied by the High Court of Justiciary, which refuses a high percentage of appeals which are considered to be unarguable.

31.22 We recommend that provision should be made for the Scottish Legal Aid Board (SLAB) to scrutinise the merits of summary appeals before legal aid is granted for them. That would require primary legislation. Such scrutiny would be likely to reduce the number of appeals which are marked and which are unarguable. That in turn would be likely to lead to savings for judges at first instance and on appeal, as well as for court staff.

We recommend that there should be a summary criminal appeal court.

We recommend that the summary appeal court should hear all summary appeals against sentence. Provision should be made for the summary criminal appeal court to refer any appeals which raised questions of law or of sentencing principle of wider application to the High Court of Justiciary.

We recommend that all appeals involving conviction or acquittal or lenient sentence should continue to be marked to the High Court of Justiciary. It should be open to judges of the High Court carrying out a sift of such cases to direct that the case be dealt with by the summary criminal appeal court.

We recommend that the summary criminal appeal court hearing sentence only appeals, in which leave has been granted, should sit as a bench of two but, in the event of disagreement or where a point of importance arises, should sit as a bench of three.

We recommend that the judges for the summary appeal court should be drawn from the shrieval bench. We envisage sheriffs principal being part-time members of the court. We also envisage that a number of experienced sheriffs would be appointed as part-time members of the court for a term of years, possibly three years, which might be renewed. Such sheriffs should have held office as such for a minimum period of years, possibly five years, prior to their appointment as members of the summary criminal appeal court.

We recommend that overall responsibility for the operation of the court should be in the hands of a single sheriff principal, who would be appointed to that role on a part time basis for a term of years, possibly three years, and that this appointment could rotate between sheriffs principal.

We recommend that the summary appeal court should be peripatetic. Appellants could be represented by their own solicitors in a relatively local court.

We recommend that provision should be made for the Scottish Legal Aid Board to scrutinise the merits of summary appeals before legal aid is granted for them.

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