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The Summary Justice Review Committee: REPORT TO MINISTERS
Annex A: NOTE OF DISSENT
Sheriff Brian A Lockhart Mrs Helen G Murray JP
INTRODUCTION
1. We support the principle of the unification of the summary criminal court system. By that we mean that all courts should be funded by the Scottish Executive and administered by the Scottish Court Service. We agree with the conclusion that sheriffs should continue to hear summary criminal business, but we do not agree with the introduction of the proposed summary sheriffs to replace lay justices. We suggest that there is a place for lay justices in our summary criminal justice system and dissent from the proposition that lay justice should be abolished.
2. We think that the onus is on those recommending the abolition of lay justice to demonstrate that it is intrinsically undesirable and unworkable in the overall context of the unified summary court system, centrally administered, which the Report proposes and which we support.
3. Our arguments, set out below, are based on what we see as the inherent desirability of retaining the role of the lay justiciary in dealing with less serious crimes, and the absence of concrete evidence that moving to an all professional judiciary will significantly improve the delivery of justice in such cases.
4. We would not argue that lay justice as it operates is perfect and we set out below our proposals for improvement. Nor are we arguing that lay justice is better because it is cheaper to provide and therefore more efficient. The costing evidence from the main Report reveals some difficulty in costing accurately the total cost to society of the way in which summary justice, lay or professional, is provided. While we consider that greater efficiency and cost effectiveness could be achieved by making fuller use of lay justices with the enhanced powers and disposals we suggest below, our arguments are not based on saving money. We recognise and develop in more detail the arguments for greater investment in quality lay justice, particularly in respect of recruitment and training. These will have resource implications.
5. We therefore invite Ministers to consider the following questions:
- Is lay involvement in the dispensing of summary justice desirable in principle? and
- Is it possible and cost effective to improve the delivery of lay justice to fit in with a new unified system and to safeguard and enhance its credibility?
6. Only if Ministers conclude that the answer to both these questions is "no", we submit, should they decide that the correct way ahead is to move to a fully professional summary justice system.
ARGUMENTS FOR LAY JUSTICE
Community Participation
7. Lay justice is a powerful expression of community participation in the regulation of society. It seems inconsistent to retain it in the most serious cases - in which completely untrained juries make key decisions on the evidence - but to remove it in the context of summary justice.
8. Reflecting the views of Lord Justice Auld on English and Welsh magistrates, Scottish justices "have an important symbolic effect of lay participation in the criminal justice system which should not be undervalued". The existence of citizens across the country, with a practical understanding of what the law is and how it works, is of great importance in a democracy.
9. That lay justice is not found in other parts of the world, apart from England and Wales, ignores the fact that lay involvement depends on the cultural and political tradition of a country. The role of Scottish justices of the peace has evolved over a period of 400 years and is capable of further evolution.
The nature of the lay judiciary
10. Arguments in favour of lay justice which have been put to the Committee include:
- the importance of community links and community awareness which Justices of the Peace enjoy;
- the proposition that the lay bench represents the community it serves;
- the capacity of non-professionals to reach a balanced judgement on their peers;
- the fact that justices are volunteers who are less vulnerable to case-hardening.
11. Justices to whom the Committee spoke felt strongly that they had a good understanding of the issues which affected the community within which they were delivering justice. We recognise that strength.
12. The main report quotes figures on the composition of the lay justiciary which suggest that it is not fully representative of the Scottish population. We would, however, observe that the figures in the main Report refer to all justices. In practice, however, in 2001-02 of the 3790 serving justices in Scotland, 1806 were "signing justices" and 1984 full justices, of whom only 729 were needed for court duties. There appear to be no available statistics showing an analysis of those who sit on the bench, nor any evidence that they represent a narrow part of the community, since no information on the social status, age or gender of bench - serving justices is collected.
13. We acknowledge that in the past the process of identifying candidates to become a JP has in some cases tended to produce a bench much in the image of the one which preceded it, rather than improving the representative nature of the bench with each succeeding generation of JPs. Nevertheless, they do reflect, not perfectly and with room for improvement, the mix of the community from which they are drawn. Improvements are already happening. In the last 20 years, there has been a move in a number of areas towards a more open system of recruitment where nominations come from the local community and there is a structured and robust selection thereafter. In addition, changes are in immediate prospect in the process of appointing members of Justice of the Peace Advisory Committees (JPACs) - critical to the process, since they recommend candidates for JP office to Ministers. The changes, essential to bring JPACs into line with public appointments procedures, will make appointments to them more open and bring an element of external accreditation to the recruitment process.
14. Looking at recent appointments alone does suggest that change is happening, albeit perhaps slowly. For example, the Scottish Ministers appointed 60 Justices in 2001-02 of whom 24 (40%) were female. Two came from ethnic minority groups. We recognise the arguments for keeping information on social, occupational and ethnic origins of JPs. We think that, building on the improvements already made, it will be possible to make the composition of sitting Justices broader and more consistent with the range of social and ethnic backgrounds in the Scottish community and therefore give better expression to the principle - which we firmly support - of involving community members in the delivery of justice. However, these comments must be seen in light of the overarching principle of judicial appointments which must be that the best candidates are appointed.
15. We are not opposed to the proposal in the main Report that thought should be given to giving local communities and individuals scope in other ways to make their views felt in the criminal justice system. A local criminal justice forum - perhaps a consultative group of lay persons feeding into the local criminal justice boards recommended by the Normand Report and now being piloted - may well be an excellent idea. We would submit that it is no substitute for direct involvement of lay people in dealing with less serious offences which have a real impact on community wellbeing.
The capacity of lay justices to perform their judicial role
16. We see no reason why lay justices should not properly fulfil the judicial role. We saw evidence of this on our visits to district courts.
17. A judge in the summary criminal court is concerned with sentencing, assessing evidence in trials, regulating proceedings and controlling conduct in court. These activities are governed by legal rules, which define the area of discretion within which the judge has to work. Lay justices must understand the legal framework within which the court operates and the procedures to be followed. This knowledge can be gained through appropriate judicial training. On points of law and evidence they have the advice of legally qualified clerks.
18. The key qualities required of a judge, however, include the ability to follow a reasoned argument, think logically, act with confidence and fairness and make decisions. The possession of these qualities depends on personal characteristics and experience of life. Individuals from a range of backgrounds have many, sometimes all, of these qualities and therefore could become good judges.
19. As Lord Thomson said in his foreword to the booklet "What Scots Magistrates Should Know":
"A few lucky people may be born judges but most of them have to learn to be judges the hard way. Being a judge is just a job like any other job. You have to work at it and learn how to do it."
Sound training is needed at all levels, even for the born judge, because the public is entitled to demand the very highest standards from all, lay and professional.
20. We note that some individuals and groups argue strongly in favour of a fully professional judiciary, including the majority of professionals who earn their livings in courts. They base part of their argument on the grounds of greater consistency on the part of professionals, but no objective evidence for this has been produced.
WILL ABOLISHING LAY JUSTICE HELP TO SOLVE THE CURRENT ISSUES IN THE SUMMARY JUSTICE SYSTE?
21. The evidence gathered by the Committee, and the responses to the First Order Consultation, identified major issues in the summary criminal justice system to be:
(a) The time taken for the police to report cases to the procurator fiscal;
(b) The time taken to get cases started in court;
(c) The time taken for cases to reach a conclusion in court;
(d) Procurator fiscal service under-funded and under-staffed;
(e) Lack of disclosure of information by the Crown to the defence which would allow early resolution of cases;
(f) Lack of preparation of cases for whatever reason by both prosecution and defence leading to abortive intermediate and trial diets;
(g) The manner in which legal aid operates in that solicitors who plead guilty at an early date for their clients are not adequately remunerated;
(h) Too many late pleas;
(i) Ineffective citation of witnesses;
(j) Delays in enforcement of warrants;
(k) No apparent system of discounting for early pleas;
(l) Delays in breach proceedings in respect of non-custodial disposals;
(m) Key personnel in the criminal justice system not doing what they were meant to do when they were required to do it.
22. Where possible, these issues have had the attention of the Committee. It is noteworthy that, since the evidence was gathered, some of the issues have already been addressed. Very considerable additional resources have been made available to the Crown Office and Procurator Fiscal Service; police reporting targets have been set; a new system of citation of witnesses was introduced by Crown Office, with new target times of citation for fiscals and the police; there has been a High Court decision on sentence discounting; a committee has been set up to address delays in breach proceedings in respect of non-custodial sentences.
23. As the list above indicates, the key concern of the Committee was to eliminate delays and inefficiencies in the system, ensuring that summary justice could be delivered more speedily. We are not convinced that the abolition of lay justice would contribute to this goal. The evidence in the main report for slower justice in lay courts is English, and not based on Scottish experience. In the same research paper Professor Morgan also notes that factors other than the identity of the judiciary - for example, waiting times - significantly influenced overall court efficiency.
24. There is no evidence of a groundswell of public dissatisfaction with the current judges in the summary system. It is certainly not clear that the abolition of lay justice would resolve the above issues.
The advantage of a lay court
25. The sheriff court at present struggles to deal with its caseload. Problems of efficient dispatch of business will increase as a result of the Bonomy proposals to increase the solemn jurisdiction in the sheriff court from three to five years. As is noted in the main report, there is a need to move criminal case work downward throughout the system to relieve increasing pressure on the solemn courts.
26. The existence of a lay court running parallel to the sheriff court would allow less serious cases to be dealt with expeditiously rather than competing for priority, as in the present overstretched sheriff court. There various cases are said to be "priority" perhaps because the accused is in custody, because of the nature of the case, or the identity of certain witnesses. These priority cases preclude the hearing of what are seen as "non-priority cases". We recognise that every case is important to the persons involved and it is wrong that, because a case is seen as "non-priority" that those involved should have to wait for justice. The district court is a major resource, currently underused, which could absorb more business and take the pressure off the sheriff court.
Reduction in court business
27. While we fully support the principle that cases should where appropriate be diverted from prosecution, we are sceptical about the assumption in the main report about the number of cases overall that could be diverted from the courts altogether by way of a fine, thus greatly reducing the volume of business at the lower end.
28. It is the duty of the police to investigate crime. It is the duty of the Crown to prosecute crime. It is the duty of the judges in summary courts to determine guilt and impose sentence. We consider that great care should be taken before vesting substantial extra powers in the police or the Crown. Police should only be empowered to impose fines by way of Fixed Penalty Notice in well defined and minor circumstances. In acknowledging the success of fiscal fines to date, we should be slow to give to the Crown a major sentencing role in addition to that of independent prosecutor.
29. Many of the alternatives to prosecution are appropriate only to first offenders or offenders with minor records not charged in conjunction with anything more serious. We understand that this point was made, for instance, when new police FPNs for road traffic offences were introduced in mid-2003. It would not be appropriate for police to give a fixed penalty notice to someone who has a substantial criminal record or a number of outstanding fines. It is understood that records will be kept at the Scottish Criminal Records Office of fines recorded against any individual. Where there are a number of outstanding fines, there should be a prosecution. Many offenders need support and advice in the community, not more fines which they cannot pay. Courts are in a position to provide these services through the various non-custodial sentences now available.
30. Discussions with procurator fiscal suggest reluctance to impose fines at levels much higher than those presently available, so we query the scope for increased diversion from increasing the fiscal fine limit. We also see limited scope for fiscal compensation orders. There is the question of fairness. Is it right that someone with means could escape prosecution and a criminal record by paying a large amount of compensation, while someone who cannot pay is prosecuted? We agree with the views of consultees that fiscal compensation is not appropriate for physical injury and suggest that not all offences involving damage to property are suitable for diversion. In many cases, the damage forms only a small part of the criminal conduct cited in the complaint and/or the accused has such a substantial criminal record that diversion would not be seen to be appropriate.
31. We note the proposals in the main report that persons who are sent an offer of a fiscal fine or fiscal compensation order and do not respond will have a fine or order registered against them without conclusive proof that they have received the offer. The Stewart Committee was concerned about the "concept of deeming guilt by silence". We share that concern. If an offer is not accepted, there should be prosecution.
32. Courts are also required to deal with instances where diversion is challenged. Such challenges may increase as a result of fiscal fines and fixed penalty notices being enforced as fines (and not civil debts) and the proposal that they be referred to in subsequent proceedings. Future proposals for fine enforcement, we consider, will need to retain a role for the court in the interests both of justice and of credibility. We therefore feel that there will continue to be a substantial role for judges who deal with the less serious offences in summary business - lay justices.
THE RIGHT APPROACH
33. In short, we suggest that the right approach here is that taken by Lord Justice Auld in his recent monumental review of criminal procedure in England and Wales: to explore;
"Whether there is a clear need for change and if so, what change might be feasible and sufficiently worthwhile to justify the disturbance of well established structures and procedures."
34. Lay justice has a long history, and, in our view, there is no objective evidence before the Committee that overall it has failed to deliver justice to those accused who have come before lay courts. In our visits to district courts around Scotland, we have seen a variety of practice, some better than others, but we do not think that we have seen justice denied through the use of lay justice. The continuation of lay justice is supported not only by those who responded to our own first order consultation (responses to which were, we accept, dominated by those involved in or representing lay justice) but also by respondents to the public survey. As the main Report records, 60% of those responding to this public survey thought the use of lay magistrates should be continued, with 26% preferring a wholly professional system. 59% thought that both lay and professional judges were consistent in the way they deal with cases. 64% thought both were impartial and not prone to prejudice.
35. Interestingly, recent support has come from the highest level of the judicial system - in the form of dicta in the High Court of Justiciary and the Judicial Committee of the Privy Council in the case of Clark v. Kelly, which related to the role of the legal assessor in the district courts. In the Judicial Committee of the Privy Council in 2003 Lord Rodger of Earlsferry, a former Lord Justice General, said:
"District Courts have operated since 1975 when they replaced the old system of Burgh Courts and Justices of the Peace courts. During that time they have increasingly gained the confidence of the public, the legal profession and the High Court of Justiciary."
36. In this context we therefore invite Ministers to consider carefully, before abolishing lay justice, whether they are convinced that abolition will produce an improvement in the justice delivered to those accused of less serious offences.
LAY JUSTICE IN PRACTICE: THE CURRENT DISTRICT COURTS
37. As the discussion above highlights, however, we do agree that if lay justice is to be retained, improvement must be made in a number of key areas:
- consistency of support and management;
- recruitment;
- training; and
- the court estate.
38. We would argue that any difficulties can be overcome through structured change and proper investment, producing a more confident and representative bench, delivering consistent justice across Scotland.
39. Before looking at this in detail, it may be helpful to note the context in which the district courts currently operate.
40. It is the statutory duty of local authorities to manage the district courts. Each local authority decides for itself what building or other facilities to provide and how to prioritise the provision and upkeep of such facilities alongside its other estate management responsibilities. Each also decides on the priority to be given to the training of justices, the provision of clerks, and the services of administration staff.
41. There is a variation in the standard of provision across the country. Some authorities are very generous and give great encouragement to lay justices by providing the highest standard of services for them and other court users, including the local fiscals, defence agents, police, court staff and, very importantly, members of the public. Some authorities, on the other hand, appear to have difficulty with this approach.
42. This variation contributes to the variation in quality of services to the court. It particularly affects the training of justices at both local and national level. If not properly funded, training cannot be properly provided. Clerks need to be trained too, not just in their court role but also in how to train and support their justices. Without adequate training it is difficult to attain a high standard of performance in court. It must be emphasised, however, that despite the difficulties in some commission areas, the quality of lay justice can be very high. With central administration, direction and funding and a uniform approach to the needs of all court users, the general performance of everyone involved can be improved.
43. Funding from central to local government includes an element for the provision of the district court with unhypothecated revenue support grant, but this is not ring-fenced and it is up to each local authority to decide where to target its resources. They receive no central funding specifically for recruitment and training.
A unified court system administered by the Scottish Court Service
44. We feel strongly that the first key step in improving lay justice is to implement the Committee's unanimous recommendation for a unified court system. Justice is a national service and, while we support fully lay involvement in delivery, we do not see that as equating to licence for local variations in provision of estate, practice and management which are unjustified in terms of efficiency and effectiveness. In particular we note the response of the Central Advisory Committee on Justices of the Peace to the first order consultation where they said:
"The Committee expressed concern that local authority administration of the district courts could lead to variations in funding, estate and training. It was felt that there was a case for bringing the administration of all criminal courts under the co-ordination of the Scottish Court Service."
These sentiments received support from representatives of the District Courts Association and clerks of court and also from justices to whom we spoke.
45. We recognise the contribution made over the years by the District Courts Association to give guidance, information and training to justices. Despite limited resources, it has run regular weekend training courses, disseminated information through its newsletters, produced good practice guidelines, a district court charter and a manual on signing duties. Of particular significance, it has developed a training programme based on standard national competencies. Its expertise could be of great value in implementing the new system.
PROPOSALS FOR THE STRUCTURE OF THE SUMMARY JUSTICE SYSTEM
46. We recognise that we must demonstrate how we think a retained lay judiciary would work in the context of a unified court system.
47. We propose that within the new unified court system, administered by the Scottish Court Service, there should be two divisions - the sheriff court division, dealing with more substantial and serious criminal business, and the district court division, dealing with less serious business. These divisions would be run by the Scottish Court Service but would operate separately. The sheriffs principal would have a statutory duty to secure the speedy and efficient disposal of all summary criminal business within their sheriffdoms. They would be assisted by local Criminal Justice Boards set up on the lines recommended in the Normand Report and now being piloted.
48. The sheriff court division would have power to impose custodial sentences of up to 12 months, fines of up to 20,000 and all the current non-custodial disposals available to them. The district court division would have power to impose custodial sentences of up to 3 months, power to disqualify from driving (we recognise that extending power to disqualify beyond "totting up" offences may be a reserved matter under Road Traffic legislation) and power to impose fines of up to 5,000. Facilities should be available in all areas to allow the imposition not only of Probation Orders, but also of Community Service Orders, Supervised Attendance Orders, and Restriction of Liberty Orders. Although cases requiring imposition of a Drug Testing and Treatment Order, which are very resource-intensive and designed for significant and regular offenders, would probably be taken in the sheriff court, consideration should be given when the new regime has settled down as to whether resources can be made available to allow this disposal to be available in the district court division.
49. We consider that the availability of additional disposals in the district court would enable a significant number of cases currently prosecuted in the sheriff court to be dealt with in the district court division.
50. As at present, all decisions about allocating cases between the two divisions would be taken by the procurator fiscal. There should be no statutory provision dictating the criteria for allocation of cases between the two divisions, but guidance should be produced for procurators fiscal from Crown Office.
51. We would expect that normally less serious summary cases would be allocated to the district court division, where custodial sentences would not normally be anticipated in the first instance. However, power to impose a custodial sentence of up to 3 months should be available if required, for example in dealing with repeat offenders. In particular, the court should be able to impose a custodial sentence if an offender defaulted on a Probation Order, a Community Service Order, a Supervised Attendance Order or a Restriction of Liberty Order.
52. Cases for prosecution in the district court division would not, however, be expected to include any case, however minor, involving any new or complex issues of law or any serious matter of public interest, or any case expected to be particularly lengthy.
53. On the basis of the sentencing range suggested and as a result of increased range of disposals being made available, in particular the power to disqualify from driving, the district court division would be able to deal with a significant number of lower end cases currently prosecuted in the sheriff court. This would free up capacity in the sheriff court division to allow sheriffs to deal with more serious cases. Special courts, such as Drug Courts, Youth Courts and possibly in the future Domestic Violence Courts should be in the sheriff court division. There should be a facility to transfer cases from the district court division to the sheriff court division to facilitate a rolling up of cases where appropriate.
54. A court in the sheriff court division would be presided over by a sheriff sitting alone and a court in the district court division by a lay justice who would sit with a legally qualified clerk. We do not see a continuing role for stipendiary magistrates in the district court division and would not therefore envisage those currently in post being replaced when they retire. However, pressure of work in Glasgow may render this necessary.
55. We do not think it is necessary for lay justices to sit in threes, given the jurisdiction suggested. The greater number of lay justices at present sit singly with a legally qualified clerk and are keen to continue to do so. Moving longer and more serious cases from the sheriff court may well result in more part-heard trials with a requirement to reconvene the court at a later date, and is likely to result in more cases having to be adjourned for reports prior to sentence. The difficulties in getting a bench of three together on an adjourned date might complicate matters and cause delays. If there is concern about justices operating singly, we are confident that this can be met through more comprehensive nationally organised and funded training to improve their skills.
56. The view has been expressed that sitting in threes produces a more confident bench which makes more consistent decisions, but no evidence was produced in support of this view. It is certainly not apparent in the Scottish Borders commission area where three benches sit singly and one sits in threes. We have observed that the move from a triple to single bench in West Lothian led to a more effective and efficient court, where justices were carefully selected and well trained.
57. We accordingly see distinct and separate roles for sheriffs and lay justices in the future summary criminal justice system. We consider the sentencing powers which we propose for the two separate divisions to reflect a proper balance and to allow a significant increase in the range of cases which may be dealt with by lay justices.
ISSUES THAT WOULD REQUIRE TO BE ADDRESSED IF THESE PROPOSALS ARE ACCEPTED
Court estate and staffing
58. The implications for the court estate and staffing would be different from those which would arise if the recommendation of the main Report was accepted. There would be a necessity for the Scottish Court Service to review the court estate to accommodate the two levels of court, and to employ sufficient staff, in particular legally qualified clerks, to sit with lay justices on a full or part-time basis.
Existing JPs
59. Ministers would require to note that JPs would no longer be appointed to the local authority commission areas but, on the proposal above, probably to areas based on sheriff court districts. As these districts differ from local authority areas and from police and COPFS areas in some places, we see considerable advantages in making new commission area boundaries co-terminous with sheriff court districts as well as police and COPFS areas. The commissions issued to current JPs would need to be reissued. Consideration would need to be given as to how best to match the distribution of justices to the level and location of court business.
60. We would also draw Ministers' attention to the fact that only a
fifth of Scottish justices actually sit on the bench. Our recommendations reflect a commitment to a representative bench of lay justices who sit in courts throughout Scotland. Recruitment efforts should be concentrated on such justices, and Ministers may wish to consider whether the provisions for signing justices to be recruited in the same process are appropriate.
Recruitment of justices
61. Once courts are no longer linked with local authority areas, careful thought would require to be given to achieving a high national profile for recruitment on a consistent basis across Scotland without losing the element of local involvement and ownership. We need to widen awareness of the role of the lay justice and what it offers to the community, together with a more open and externally accredited selection process.
62. The approach taken in relation to recruitment for Children's Panel members may be a useful model. We understand that a national recruitment campaign is organised and funded; this supplements local campaigns overseen by Children's Panel Advisory Committees (CPACs) using common materials, images and themes. Candidates are then interviewed and recommendations put forward to Scottish Ministers by the CPAC in each local authority area. The chairs and the majority of members of the CPACs are Ministerial appointments; others are appointed by local authorities. We understand that the review of the Children's Hearings system will be looking at the current arrangements to consider whether they best support the system.
63. Building on the current model in the Hearings system, a possible approach in Scotland might be national recruitment of JPs, with interviewing and recommendations for appointment carried out by reconstituted Justice of the Peace Advisory Committees (JPACs) based on sheriff court districts. JPACs might have a lay chair appointed by Ministers following open competition. Members of JPACs might be recruited by public advertisement to produce a mix of lay members and members who are bench-serving justices. Consideration could be given to the nomination of one or two members from the local shrieval bench and from court users.
64. There require to be national standards and procedures for the recruitment of justices which are consistently applied across the country. Vacancies should be publicly advertised. A selection process which is transparent and fair to recruit from all backgrounds is central to the success of the system in future. Any new procedure should aspire to achieve a body of justices who truly reflect the communities they serve. Recruitment procedures both for JPACs and for justices should be compliant with the OCPA Code.
Training
65. The very best training must be provided to ensure that lay justices deliver the highest quality of service to every community in Scotland. Excellent models for competence-based training, initiated by the District Courts Association and delivered locally, already exist and are in operation to varying degrees in several commission areas. What is required is central commitment to resource and implement them across the country. We suggest that they could be directed and developed further under the auspices of the Judicial Studies Committee, leading to mandatory training programmes for new and existing justices. This might profitably involve sheriffs. Regular competence based training for clerks would also be necessary. Although training should be under the supervision of the Judicial Studies Committee, we envisage that most of the training would have to be and should be delivered locally.
66. Justices have already shown a heartening willingness to undertake training, and we can see no difficulty in this extending to the major time commitment that training to deal with more cases will involve.
Minimum number of sitting days
67. Ministers may wish to consider whether to set a formal target for the minimum number of days per year on which a justice could sit. In England and Wales at present the target is 26 half-day sessions (13 days per year). There is no simple answer to this and we recognise the different levels of demand in urban and rural areas. Nonetheless, if justices are to be well trained we recognise that the cost of that training and the commitment which it entails would need to be reflected in a commitment to sit regularly. Otherwise full advantage would not be made of the investment in training which has taken place and the justices would not sit often enough to gain the experience which they should have to sit in judgement on their fellow citizens.
68. The average figure given for Scottish sittings is 7.4 days per year. It should be borne in mind that at present there is a pool of experienced justices who are greatly underused and have the capacity and willingness to take on much more work. With more business this figure would increase. More business would also reduce running costs in most courts and make the district court division clearly cheaper than indicated in Professor Stephen's research, which did not show conclusively that lay justice is cheaper than professional justice, or vice versa.
CONCLUSION
69. We regret that our strength of feeling on this particular issue has led us to register a note of dissent to the recommendations of the Committee as a whole on this one point. However, we feel strongly that the decision on the future of lay justice should be made on the grounds of principle rather than of expediency, tidiness or personal preference.
70. We consider that, with their capacity to deal appropriately with cases on different levels of seriousness, there is a separate role for both sheriffs and lay justices in the two divisions of the summary criminal justice system, and our proposals reflect our views on this matter.
71. We submit that it is possible to remedy any perceived shortcomings in the present system without taking the more drastic step of ending the direct participation of lay people in delivering justice to those who offend in our communities.
72. We do not accept the conclusion of the majority that Scotland should now move to a wholly professional justice system. We think that with a proper selection procedure and well focused training the sentencing powers which we propose should result in a substantial amount of business being properly handled by lay justices. We are not aware of any argument that the lay justice court, currently constituted, is in breach of ECHR. We see no reason why, with appropriate training, lay justices should not be pro-active and willing to challenge defence and prosecution delays. Revised selection procedures should allow justices to be even more representative of the communities they serve.
73. The case for the abolition of lay justice is not rooted in research or objective analysis of the performance of Scottish district courts. The argument is not whether there is a future for lay justice, but rather how the overall system can be improved to secure a future which imparts confidence to everyone: victims, witnesses, accused persons, court users and, above all else, the communities they serve.
74. Scottish justices of the peace of the 21st century continue an ancient tradition of voluntary public service. Their willingness to be actively involved in their communities' problems is worthy of support and development.
75. If Ministers were to accept the submission of COSLA that local authorities should continue to administer the district courts on the basis of full funding of this service from the Scottish Executive and an agreement of a national framework within which local administration is undertaken, we would submit that the arrangements for the division of business between the two levels of court would be as set out in this note.
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