« Previous | Contents | Next »
Listen
Executive Summary
This report presents the findings of an evaluation of the High Court reforms arising from the Criminal Procedure (Amendment) (Scotland) Act 2004 (the 2004 Act). The research was commissioned by the Scottish Executive and was undertaken by researchers in the University of Aberdeen School of Law.
The main aims of the evaluation were to:
- Assess the impact of the reforms on the work of the High Court (and to a more limited extent on sheriff court solemn business).
- Determine the impact of the reforms on High Court practitioners and users.
- Evaluate whether the reforms have been successful in: introducing greater certainty that High Court trials, when fixed, will proceed on the appointed day; reducing the unnecessary attendance of victims and other witnesses at trial diets that do not go ahead; and encouraging pre-trial communication and agreement between the Crown and defence.
There were four main components of the research:
- the collection and analysis of statistical data, primarily drawn from the Scottish Court Service's High Court Case Management System ( HCCMS);
- interviews with key criminal justice personnel, principally High Court judges, Advocate Deputes, defence counsel, and representatives of victim support organisations;
- questionnaire surveys of professional witnesses and jurors; and
- observations of High Court proceedings by the research team.
High Court procedure pre-reform
Key criminal justice personnel were asked about the extent of the problems of adjournment and delay in the High Court prior to the reforms. It was generally felt that these were very serious. Various factors were cited to explain this, the most important of which was the existence of an 'adjournment culture' whereby all participants simply expected a high degree of 'churning' of cases. This was manifested in particular, it was claimed, by the failure of parties to prepare adequately for court hearings and judicial acquiescence to repeated requests for adjournments. Other significant factors were perceived to be the under-resourcing of Crown Office, a fear amongst defence counsel of 'Anderson' appeals, the growing number of expert reports and the delays attendant upon obtaining these, and clashes in the diaries of defence counsel. Most respondents thought that legislative reform was the only way to bring about the cultural change necessary to address these issues.
What the reforms did
The key procedural changes introduced by the 2004 Act were as follows:
- Mandatory "preliminary hearings", for judicial management of cases, between the service of the indictment and the trial.
- A requirement for judges to state in open court whether a sentence imposed had been 'discounted' for pleas of guilty, particularly early pleas and, if so, by how much. This change was preceded in October 2003 by the decision of the High Court in Du Plooy v HM Advocate which gave clear approval to a more explicit scheme of sentence discounting than had earlier been the case.
- Replacement of the 110-day time bar - which required that, where a person was remanded in custody pending trial, their trial should commence within 110 days - to a 140-day time bar in the High Court.
In addition, the maximum solemn sentencing powers of Sheriffs were increased from three to five years imprisonment from 1 May 2004, allowing some less serious High Court indictments to be transferred to the sheriff courts.
Main findings
Greater certainty for witnesses
It was virtually unanimously agreed by those interviewed that the reforms had improved the processing of cases through the High Court, with the main beneficiaries being witnesses. It was thought that there was now more communication between the parties, with better preparation by both parties and more agreement of evidence prior to trial. The pre-courtroom meeting demanded by the reforms was rarely formal but usually comprised e-mail exchanges, telephone calls and other informal communications. It was clear, however, that some problems remain, with the proliferation of expert reports creating particular difficulties.
The number of Crown witnesses possibly inconvenienced by adjourned trial diets decreased massively between the two samples, from 16,795 (although some of these may have been countermanded where it was clear in advance that the trial was going to be adjourned) to 1,295.
Cases less likely to proceed to trial diet
The statistical analysis of the HCCMS data demonstrates that preliminary hearings are working effectively in avoiding the need for a trial diet: in the pre-reform sample, 94% of cases proceeded to a trial diet compared to 33.3% in the post-reform sample. This has had very little impact on the average number of court hearings per case because preliminary hearings have simply replaced trial diets.
Removal of preventable trial adjournments
In the pre-reform sample 32.6% of cases had at least one adjournment of a trial diet, compared to 4.5% of cases in the post-reform sample. Prior to the reforms, the most common outcome of a trial diet was for it to be adjourned (37.1% of occasions) and the second most common was a guilty plea (34.8%). After reform, the most common outcome of a trial diet was for the trial to go ahead (63%).
Change in the timing of guilty pleas
Another point on which there was general agreement was the increased number of early guilty pleas, but this was largely attributed to the decision in Du Plooy, a change in the Legal Aid structure and the new disclosure regime rather than the High Court reforms per se. After the reforms, most guilty pleas (93.1%) were tendered before the trial diet, an increased number by way of the accelerated guilty plea procedure: 30.7% compared with 10.3% in the pre-reform sample.
Time bar extensions
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. It appears that the new 140-day time bar is being extended almost as frequently as the old 110-day time bar was.
Effect of the increase in sheriffs' solemn sentencing powers
It was not possible to determine the impact of this change with any certainty but it seems likely that around 100 to 150 cases per year have been taken out of the High Court and are now being prosecuted in the sheriff courts.
Judicial 'management' of cases at preliminary hearings
It was generally agreed that the success or otherwise of the new High Court procedures was in the hands of the judges and there was considerable concern that variation in judicial practice had the potential for undermining the reforms. It was a common view that the relatively small cohort of judges initially charged with conducting preliminary hearings had adopted a relatively consistent approach, which had led to great success, but that the expansion of this group had seen much more variation in judicial practice. In the view of virtually all respondents, it was vital to the long-term success of the reforms that judges continued to take a pro-active approach to case management, conducting preliminary hearings robustly to check on the parties' state of preparation, querying any delays, and vigorously questioning the reasons for any continuations requested. There was some concern that latterly there had been some judicial slippage in this regard, leading to an increasing and unanticipated rise in the number of continued preliminary hearings.
Effects on practitioners, professional witnesses and jurors
There was a sharp division of opinion about the impact of the reforms, along with the resultant restructuring of Legal Aid, upon the criminal bar. A few senior counsel thought that the loss of income would lead to an exodus of experienced practitioners and a lack of 'new blood' coming in, whereas others thought that the money that was previously available as a result of the inefficiencies of the system had disappeared and that this was no bad thing.
The analysis of a questionnaire survey of professional witnesses found that, in the perception of these respondents, there were few problems involved in giving evidence in the High Court and that the reforms had made little difference to this situation.
The questionnaire survey of jurors indicated some decrease in the proportion of jurors who felt inconvenienced as a result of being cited for jury service. As regards most aspects of jurors' experience, however, there appears to have been little change as a result of the High Court reforms.
Emergence of preliminary hearing churn
Many respondents perceived that a steadily growing number of preliminary hearings are being continued to another preliminary hearing, resulting in scheduling difficulties. In the view of the key criminal justice personnel interviewed in the latter stages of the research, this phenomenon creates the risk of a return to the 'adjournment culture' and the consequent 'churning' of cases. A principal factor in the number of continuations was thought to be the growing variation in judicial approach to preliminary hearings. It was said that some judges take a less pro-active and stringent approach than was originally adopted and this was emphatically borne out by the research team's court observations. Another issue mentioned in this context was the variable quality of court minutes; improvements here might help reduce the number of continuations. Most respondents did emphasise, however, that continuing a preliminary hearing does not have the same consequences as continuing a trial because it does not cause nearly so much upset and inconvenience to witnesses who rarely attend a preliminary hearing.
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. It is fair to say that the latter cases did tend eventually to go to trial rather than being settled. 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.
Conclusion
In brief, the research demonstrates that the reforms have had considerable success. Prior to the reforms, it was common for cases to proceed to a trial diet even though a trial was unnecessary (because the accused was prepared to plead guilty) or premature (because the case was not ready to go to trial). Cases are now far less likely to proceed to a trial diet unnecessarily, which has major benefits for victims and witnesses. While the total number of court diets has not dropped, their nature has: the majority of trial diets have been replaced by preliminary hearings. Similarly, the proportion of guilty pleas has not changed but they are now occurring earlier in the process, often at an accelerated diet under section 76 of the Criminal Procedure (Scotland) Act 1995 or, alternatively, at the first preliminary hearing. The reforms have been effective at reducing the number of what might be termed 'avoidable' adjournments of trials. However, the most common outcome of a preliminary hearing is for the case to be continued to a further preliminary hearing. There is some concern that continuations of preliminary hearings have the potential to partially undermine the success of the reforms.
« Previous | Contents | Next »