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THE USE OF HUMAN RIGHTS LEGISLATION IN THE SCOTTISH COURTS
CHAPTER FIVE: FUTURE MONITORING OF HUMAN RIGHTS CASES
5.1 The second principal aim of the research was to assess the feasibility of, and make recommendations for, a nation-wide monitoring system, which would include tracking of human rights cases through the court hierarchy. This research tells us about human rights cases in the early years of the operation of human rights legislation. However, if there is a desire to keep the operation of the legislation under review in the longer term, it would be valuable to have a permanent system for collecting data on human rights cases. Currently, there are no procedures in place whereby the courts themselves could systematically identify and record human rights cases proceeding through the courts. However, as explained earlier, the Crown Office has been keeping a record of criminal cases raising human rights issues since May 1999. Accordingly, we examined the possibilities for future continuous recording of data on human rights cases by court staff and by the Crown Office. Since some of the considerations applying are different for civil and criminal cases it is appropriate to consider each in turn.
CRIMINAL CASES
5.2 Criminal cases may proceed either in the district court, the sheriff court, or the High Court of Justiciary. All cases in the district court proceed under summary procedure, that is, without a jury. In the sheriff court cases may proceed either under summary (sheriff alone) or solemn procedure (sheriff and jury). In the High Court all trials proceed under solemn procedure. Appeals are heard by the High Court acting as court of appeal. There are pronounced differences between solemn and summary procedure, and consequently differences in the role and working practice of clerks of court in the two procedures. Account would have to be taken of these differences in designing any system to identify and record data about human rights cases.
Common problems
5.3 The clerks in both the sheriff court and the High Court whom we interviewed considered that there were several factors which would make it difficult to implement any system for recording and identifying criminal cases raising human rights issues:
- the scope of the exercise required
- the additional burdens imposed on court staff
- the extent to which proceedings were written rather than oral
- whether court clerks had the knowledge and ability to identify human rights points.
The scope of the exercise
5.4 Cases raising human rights issues could arise in either solemn or summary procedure, and in any criminal court. They would not be confined to any particular offence or group of offences. Human rights issues might relate to substantive criminal law, to questions of evidence, or to questions of procedure. Moreover, human rights points might be raised at various stages of the procedure. In short, the field of inquiry would be the whole criminal caseload of the courts. A comprehensive monitoring system would have to adopt methods which would cover all criminal cases and would work in the context of each court and each form of process. This would be a more ambitious task than any other information-gathering exercise currently carried out by court clerks, for example, the recording of sexual offences which relates to a specific and limited group of offences, although the requirement to intimate devolution issues provided a possible short-cut.
Additional burdens on court staff
5.5 Clerks in both the sheriff court and the High Court strongly emphasised that their primary function was to ensure the dispatch of the business of the courts. Whilst they already engaged in information gathering exercises such as the recording of sexual offences, and more generally the production of annual criminal statistics, clerks doubted whether the additional task of recording human rights cases could be accommodated without compromising the smooth running of the courts, which was their main role. Alternatively, if clerks were giving priority to their primary function there was a danger that pressure of time in busy courts would make consistent recording of cases difficult to achieve. There were particular times at which this risk would be greater, for example, where the removal of persons to prison after the custody court awaited the completion of the paperwork by the clerk.
Written and oral proceedings
5.6 In general there ought to be a written record of whether a human rights issue had been raised in any case because a devolution minute should have been lodged, but it cannot be assumed that the correct procedure will always be followed. It is possible that human rights points may raise oral pleading without prior intimation, and the clerk may not necessarily be in the courtroom at the time the issue is raised.
Written and oral proceedings
5.7 In general there ought to be a written record of whether a human rights issue had been raised in any case because a devolution minute should have been lodged, but it cannot be assumed that the correct procedure will always be followed. It is possible that human rights points may be raised in the course of oral argument without prior intimation. We were told that due to pressure of work, clerks will sometimes have to leave the courtroom to perform other tasks while oral argument continues in a case. This means that the clerk may not necessarily be in the courtroom at the time the human rights issue is raised.
Capacity
5.8 Doubts were also expressed about the ability of clerks to identify the cases which raised human rights issues, as this might require significant knowledge of substantive law. It must be borne in mind that the expertise of clerks is primarily in matters of procedure rather than of substantive law. Again, the possibility of using the devolution minutes submitted by accused persons might mitigate this difficulty, but would not do so where no minute was submitted.
Solemn and summary procedure
5.9 The clerks also drew attention to certain differences between solemn and summary procedure which might affect the feasibility of monitoring human rights cases.
Solemn procedure
5.10 All trials in the High Court and many sheriff court trials are conducted by solemn procedure. Solemn procedure makes greater use of writing, both in terms of material submitted by the parties and records made by the clerks, than does summary procedure, and the Justiciary clerks thought that it ought to be easier to implement a system for identifying and recording human rights cases in solemn than in summary procedure, whilst still emphasising the points made above about pressure of work and primary function. They thought that it would require a significant change in culture for staff to see this as part of their job.
Summary Procedure
5.11 As stated above, the oral element is more prominent in summary procedure. If we assume that human rights issues will occasionally be raised without intimation then this places a greater premium on the clerk's presence in court. In fact the clerk is much less likely to be in court throughout the proceedings in a summary case in the sheriff court 92 than in a solemn case. Whilst clerks do endeavour to ensure the court record is complete and, even if they have to leave the courtroom temporarily, the sheriff will often later bring issues to the clerk's attention to be added to the record, these absences inevitably make it less likely that monitoring of human rights cases would be fully comprehensive and reliable. Sheriff Clerks felt that the task of recording the substance of human rights arguments as they arose in court was a fundamentally different task from their main task of ensuring that the courts process cases efficiently. Moreover, in the larger and busier sheriff courts, many people would be involved in any monitoring system, some of them relatively junior or inexperienced, a factor which would make it more likely that human rights arguments, especially those made orally, might sometimes be missed.
The mechanics of implementation
5.12 If a decision in principle were taken to require court clerks to monitor human rights cases procedures then appropriate procedures would have to be created. The clerks in both the sheriff court and the High Court thought that the best approach would be to create a specific human rights field in the computerised case management system for criminal cases, so that the presence or absence of a human rights issue could be checked for any case simply by looking at this field. 93 The extent of the information that could reasonably be expected to be recorded would by limited by the factors described above (pressure of business, etc.), and, for the same reasons, the records made might not be entirely reliable.
The District Court
5.13 The existence of the district court is an additional complication as they are not administered by the Scottish Court Service, but by local authorities. If prosecutions in the district court were left out of any monitoring system it would not be comprehensive. On the other hand, if they were included, special provision would have to be made for the recording of data as they do not use the case management systems used in the sheriff courts and High Court.
The role of the Crown Office
5.14 As indicated earlier, as a consequence of the case law on the meaning of 'devolution issue' all challenges to any aspect of a prosecution on human rights grounds ought to be intimated to the Lord Advocate, by way of a devolution minute. Since May 1999, the Crown Office has maintained a database of all devolution minutes and, subject to the possibility that human rights arguments are sometimes made orally without intimation, this database provides a comprehensive record of all criminal cases raising human rights issues since devolution. We were able to check the reliability of this database as we used the Crown Office record of devolution minutes as a means of tracing human rights cases in court records. We found that the High Court records corresponded exactly with the Crown Office database, and the sheriff court records corresponded closely. In a few sheriff court cases which appeared in the Crown Office database, there was no mention of a human rights point in the court records. This is more likely to be because the court did not record the point than any error in compiling the Crown Office database.
Recommendation
5.15 In the light of the above we recommend that future monitoring of human rights cases should be based on the Crown Office database. As explained more fully in the Appendix, we consider that the Crown Office record of devolution minutes intimated to it under Section 98 and Schedule 6 to the Scotland Act 1998 provides a complete record of human rights cases raised, subject to a small margin of error. Comparison with court records suggests that they are a less reliable source as it more likely that human rights cases would be missed for the various reasons given above. Using the Crown Office database would also obviate the difficulty relating to the District court.
5.16 We recognise that if human rights points are made orally without formal intimation then such cases will not appear in the Crown Office database. However, it appears likely that if monitoring were conducted through the courts that a substantial number of such cases would be missed, so a court-based system would have little advantage there. The information would be limited to what appeared in the devolution minute but, as Chapter Two indicates, that is a significant amount of information, and would permit analysis of a range of issues relevant to the operation of human rights legislation. It also unlikely that a court based system would provide more detailed information both comprehensively and reliably.
5.17 There are considerable advantages in making use of an existing and reliable system. However, it will be important to consider the resource implications for the Crown Office of performing this function. We have not attempted to quantify these.
5.18 This recommendation assumes that the law on devolution issues remains the same. Lord Bonomy's review of the practices and procedures of the High Court of Justiciary found that devolution issues were a source of delay and, that where they challenged acts or failures to act by the Lord Advocate in his role as a prosecutor, they did not raise constitutional issues. He, therefore, recommended that Schedule 6 to the Scotland Act 1998 be amended so that the Lord Advocate's decisions and actions in the prosecution of crime would no longer be treated as a devolution issue. 94 As yet, the Scottish Executive has not announced any intention to implement this recommendation. If it did then our proposal for continued monitoring would not be practicable. In that case it would be necessary to consider whether it would be worthwhile, in view of the difficulties mentioned above, to implement a court-based system.
CIVIL CASES
5.19 Civil cases raising human rights issues could arise in any court and under any procedure. As indicated earlier, the devolution issue procedure cannot be used, as many human rights claims in civil cases will not raise devolution issues. Therefore, any system for gathering data about human rights cases would have to be based in the courts and rely on the clerks of court. Account would have to be taken of differences between procedures and courts in designing any such system.
Common problems
5.20 The types of problems faced in designing and implementing a system are essentially the same as those faced in criminal cases although, as discussed below, the extent of the difficulties posed might be different, in relation to:
- the scope of the exercise required
- the additional burdens imposed on court staff
- the extent to which proceedings are written rather than oral
- whether court clerks have the knowledge to identify human rights points.
The scope of the exercise
5.21 The problem of the field of the inquiry is greater than in criminal cases: there is a greater variety of procedures and a much greater diversity of subject matter in terms of substantive law.
Additional burdens on court staff
5.22 Clerks in both the sheriff court and the Court Session made the same point as was made in relation to criminal cases that their primary function was to ensure the dispatch of the business of the courts. Although some of the pressures experienced in criminal cases which created a need for urgency were absent (for example, persons in custody) from civil cases, they were concerned as to whether the additional task of recording human rights cases could be accommodated without compromising the smooth running of the court, which was their main role.
Written/oral proceedings
5.23 In general civil cases rely more heavily on written pleadings than criminal cases but there are enormous variations between procedures, with small claim procedure being particularly informal and generating little in the way of written records.
Capacity
5.24 Whilst the presence of written pleadings is a factor likely to make it easier to identify the cases which raise human rights issues, the concern about the ability of clerks to recognise that a human rights issue has been raised is possibly more pressing on the civil side given the wider variety of subject matter contexts in which human rights claims might be made.
The mechanics of implementation
5.26 As with the criminal cases, the clerks in both the sheriff court and the Court of Session thought that the best approach would be to creating a specific human rights field in the computerised case management system for civil cases, so that the presence or absence of a human rights issue could be checked for any case simply by looking at this field.
5.26 However, although it would be technically feasible to add a human rights field to the case management system, the extent of information that could reasonably be expected to be recorded would be limited by the factors described above (such as pressure of business), and, for the same reasons, the records made might not be entirely reliable. There would be likely to be a difference between the reliability of the information gathered according to the procedure. Court clerks had more confidence about the reliability of the process in Court of Session cases and in sheriff court cases brought under Ordinary Procedure or otherwise commenced by initial writ, because the reliance on written procedure made it less likely that a human rights point would be missed than in criminal cases. However, there remains the possibility that clerks would fail to recognise human rights issues because of their limited knowledge of substantive law, especially if a writ contains no obvious indicator such as a reference to the Human Rights Act or the Convention. They had much less confidence in relation to the informal procedures, summary cause and small claim.
5.27 Summary causes and small claims pose greater problems because the procedures are less formal, rely more on oral hearings, and the papers are retained by the successful party and not the court at the end of the case. However, human rights issues are raised in the less formal procedures, and if they were omitted from any system then it would not present an accurate picture of the incidence of human rights litigation. As an experiment, we provided both sheriff courts in our study with a pro-forma for the summary cause heritable court (the eviction court). In the larger sheriff court, 26 human rights cases were recorded in one month (all relating to the eviction of asylum seekers). Whilst this may have been an atypical month, it illustrates the point that human rights cases may arise in all procedures.
Recommendation
5.28 Since the research concluded the Scottish Court Service have added a field in their computerised case management system for recording that a human rights point has been raised. This is used for cases in the sheriff court, High Court, appeal Court and Court of Session. Although it could not be expected that the data would be fully comprehensive, it would be indicative.
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