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Chapter 11: Summary and Conclusions
11.1 This chapter summarises the main findings of the research and draws some overall conclusions.
Summary of Findings
11.2 Our findings in relation to the four main aspects of the research (the statistical analysis; the interviews with criminal justice personnel and accompanying court observations; the juror and professional witness surveys; and the analysis of sentencing statistics) are set out below.
Statistical analysis
11.3 There is considerable evidence to indicate that preliminary hearings are working effectively in ensuring that trial dates are only set for cases that require them and are ready to go to trial. It is now rare for a guilty plea to be tendered at a trial diet: only 11.3% of trial diets resulted in a guilty plea in the post-reform sample, compared to 34.8% of trial diets in the pre-reform sample. Likewise, only 6.9% of guilty pleas were tendered at trial diets in the post-reform sample, compared to 89.7% in the pre-reform sample.
11.4 It is also now rare for trial diets to be adjourned. Trial diets per se were less common in the post-reform sample, with 66.7% of cases being settled at a preliminary hearing or at a section 76 hearing. Only 4.5% of cases in the post-reform sample had at least one adjournment of a trial diet compared to 32.6% of cases in the pre-reform sample. Likewise, looking at the outcome of each individual trial diet, only 16.2% of trial diets resulted in an adjournment, compared to 37.1% of trial diets in the pre-reform sample.
11.5 The use of the section 76 procedure for accelerated guilty pleas has increased: 30.7% of guilty pleas were tendered at a section 76 hearing in the post-reform sample, compared to 10.3% in the pre-reform sample.
11.6 There is evidence to suggest that witness inconvenience has been vastly reduced following the reforms. Not only is the proportion of cases that proceed to a trial diet far lower in the post-reform sample (33.3% compared to 94.0%) but, as already noted, the incidence of adjourned trial diets has also been vastly reduced. On a very crude measure (which assumes that all of the witnesses listed on the indictment were inconvenienced when a trial did not go ahead on the scheduled date), 16,795 Crown witnesses in the pre-reform sample were inconvenienced by adjourned trial diets, compared to 1,295 in the post-reform sample.
11.7 The findings also suggest that agreement of evidence may be more common following the reforms, thus reducing witness inconvenience still further. The average trial length in the post-reform sample was shorter than that in the pre-reform sample (4.88 days compared to 5.85 days) and this could not be accounted for by the cases in the post-reform sample being less complex; if anything the reverse was true. The proportion of Crown witnesses listed on the indictment who actually gave evidence was also lower in the post-reform sample - an average of 47.8%, compared to 50.6% in the pre-reform sample. Both of these findings suggest that there may have been an increase in the use of the agreement of evidence provisions in the 1995 Act or, equally, it may be that more time is now available for case preparation, enabling the parties better to identify those witnesses who are actually necessary to the case.
11.8 Less positively, in the post-reform sample, 38.7% of cases had two or more preliminary hearings; indeed, 10.6% of cases had four or more preliminary hearings. In fact, the most common outcome of a preliminary hearing was for that preliminary hearing to be continued. Continued preliminary hearings were most common in rape cases and cases involving other sexual offences. When a preliminary hearing was continued, it was rare for the same judge to preside over the continued preliminary hearing as presided over the first preliminary hearing. Where cases had three or more preliminary hearings, it was almost unheard of for the same judge to have presided over all of them.
11.9 There is also evidence to suggest that the new 140-day time bar is being extended almost as frequently as the old 110-day time bar. There was at least one extension granted to the custody time bar in 25% of cases in the pre-reform sample compared to 21.5% of cases in the post-reform sample. Because the analysis focused only on cases that were indicted and concluded within the relevant 12 month period, while the comparison is valid, this is likely to be an under-estimate of the proportion of cases in which an extension was granted both prior to and subsequent to the reforms.
Interviews with criminal justice personnel
11.10 It was generally agreed that the problems of adjournment and delay in the High Court prior to the reforms were serious and that an 'adjournment culture' existed whereby case 'churning' was accepted as inevitable. It was almost unanimously agreed that the reforms had improved the processing of cases through the High Court and that delays and adjournments were massively reduced, a finding that was confirmed by our statistical analysis.
11.11 The majority of those interviewed were of the opinion that, following the reforms, there was better communication between the parties prior to the first court appearance and better case preparation by both the Crown and the defence. It was also generally agreed that the number of early guilty pleas tendered under section 76 had increased dramatically, but it was suggested that the principal reasons for this were the decision in Du Plooy, the introduction of the fixed Legal Aid fee for such an appearance, and possibly the earlier disclosure of the prosecution case.
11.12 Respondents were of the opinion that there was considerable variation in judicial practice in relation to the conduct of preliminary hearings, something that was confirmed by the programme of court observations undertaken by the researchers. Some judges take a highly proactive approach to managing preliminary hearings, probing the state of preparation of the parties, questioning any delays and vigorously probing the reasons for any continuations requested. Others take a more passive approach, granting continuations without thoroughly questioning the parties as to their necessity. It was a common view that the relatively small pool of judges initially appointed to preside over preliminary hearings were relatively consistent in their approach but that with the expansion of this group, variation in practice has developed.
11.13 Virtually all those interviewed after the reforms had come into operation referred to the largely unanticipated phenomenon of continued preliminary hearings. It was generally thought that these were becoming more common as time passed. The variation in judicial approaches to preliminary hearings was thought to be one of the principal explanatory factors, with some judges acceding to requests for continuations without pressing the parties on their necessity. There was a general worry expressed by those interviewed in the later stages of the research that the growing number of continued preliminary hearings had the potential significantly to undermine the reforms and result in a reversion to the 'adjournment culture'.
11.14 It was the view of virtually all respondents that it was vital to the long term success of the reforms that judges were prepared to be proactive in managing preliminary hearings. It was unanimously agreed that the judiciary is the key to ensuring the efficiency of the High Court and that all the other parties have little choice but to fall into line. Consequently, there was a view that the High Court judges needed to ensure that there was more consistency in their maintenance of a pro-active and rigorous approach to case management.
11.15 The same judge rarely presides over consecutive preliminary hearings and thus it was felt to be vital to the effective management of preliminary hearings that detailed minutes are taken, especially in relation to any undertakings made by the parties involved. This enables the judges presiding over continued preliminary hearings to inform themselves as to the commitments made by the parties at previous hearings and to question them effectively about the need for any further continuations. The quality of minutes was thought to be variable and not always adequate for this purpose.
11.16 Other factors too contributed to the need for continuing some preliminary hearings, in particular, delays in obtaining expert reports. It was observed by many respondents that, largely as a result of the fear of Anderson appeals, many more expert reports were now being sought by the defence.
11.17 Opinion was divided about the effect of the reforms on the criminal bar. Some respondents thought that the new Legal Aid provisions would lead to a loss of income; a consequent exodus of experienced practitioners; and difficulties in recruitment. Others were of the opinion that the new Legal Aid fee structure was fair and merely prevented practitioners from being able to benefit from the inefficiencies of the system. There was a view, primarily expressed by defence respondents, that defence counsel should be paid more for preparation and some other respondents commented that the Legal Aid payment structure for solemn cases should be more 'front-loaded'.
Professional witness and juror surveys
11.18 The survey of professional witnesses suggested that there was a reduction in the proportion of witnesses who were not told early enough that there was no need to attend court. This may be an indication of improved communication between the court and the witnesses following the reforms. It was also the case that a smaller proportion of professional witnesses were not told about the trial date early enough, although this figure was not high to start with, indicating that this was never a particularly serious problem.
11.19 The professional witness survey also showed a slight improvement in the proportion of professional witnesses attending court only for the trial to be adjourned or to be called later in the day than expected. It was also the case, however, that the proportion of respondents who felt that they had been kept up to date regarding delays and progress in the case was slightly lower in the post-reform sample.
11.20 The survey of jurors suggested that, subsequent to the reforms, there has been a reduction in the proportion of jurors who attended court for more than one day but who were not eventually selected for jury service. There was also a decrease in the proportion of jurors who felt that they had been inconvenienced by being cited by jury service and, among those who did experience inconvenience, a reduction in the proportion who felt that this was avoidable.
11.21 In both the pre-reform and the post-reform survey of jurors, the vast majority of respondents were happy with the length of the court day and most would also have been happy to extend this and sit until 4.30pm.
Analysis of sentencing data
11.22 While it is difficult to draw any firm conclusions, it seems likely that, as a result of the increase in sheriffs' sentencing powers, between 100 and 150 cases per year have been taken out of the High Court and are now being prosecuted in the sheriff courts.
Overall Conclusions
11.23 It is clear that, on many measures, the reforms have been extremely successful. Compared to the pre-reform position, far fewer cases now proceed to a trial diet at all; trial diets are rarely adjourned; and guilty pleas are rarely tendered at trial. The consequent reduction in witness inconvenience and stress is likely to have been considerable. The only potentially significant problem is the extent to which preliminary hearings are continued.
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