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Chapter 5: Interviews with Criminal Justice Personnel (The Pre-Reform Situation)
5.1 This chapter and the two that follow it report the views of the criminal justice personnel who were interviewed about the reforms. Chapter 3 provided details of the research methods used and the numbers and role of interviewees. Each formal interview undertaken was allocated a code number, which indicates the role of the interviewee. The codes are as follows: J = High Court judge; D = defence practitioner; P = Advocate Depute or procurator fiscal; C = High Court clerk (or other court administrator); V = representative of a victim support organisation; W = professional witness. The same approach was used for the court observations - the code O indicates that the information reported stemmed from a particular court observation undertaken by the research team.
5.2 In this chapter and the two that follow it, the masculine gender is used to refer to all respondents, regardless of their actual gender. This is to protect the anonymity of the relatively small number of female respondents.
The General Picture
5.3 Our respondents generally agreed that in the period prior to the reforms the problem of multiple adjournments and ensuing delays in proceeding with cases was very serious. One senior counsel's immediate response to our query about the extent of the problem was that the situation was "hellish" (D1). A representative of a victims' group described the situation as "a shambles", citing a murder case that he thought had been adjourned 24 times (V1). Another senior counsel estimated that of the 60 or so cases down for trial in Glasgow High Court in the standard two-week sitting, only about 20 would be new and these would not be expected to go ahead (D2). The same respondent noted that such was the volume of cases cited to a hearing that the Crown was generally grateful if you came into court with a reason for not going ahead and a judge noted that, for the same reasons, adjournments "suit everyone" (J6). The same judge further remarked that counsel would comment on the fact that a case had been adjourned only once as if this were a good reason for granting a further adjournment without question. One clerk, while sceptical that the reforms would work, thought that the situation was so bad that "anything was worth a go" to try to improve things (C1). Without exception, all respondents agreed that the 110-day rule had little impact on the problem of delay because it was so easy to get an extension.
5.4 Several respondents, while accepting that there were major problems, were not quite so pessimistic. One solicitor-advocate commented that the majority of trials in which he had been involved over the last four years had gone ahead at the first time of asking, but did note that most of the others had been adjourned not just once but several times, particularly where there were multiple accused (D7). An Advocate Depute commented that, while there were "substantial" numbers of adjournments and "numerous" late motions to this effect, he would usually know about these in advance of the actual day and thus would have time to inform the cited witnesses not to attend (P2). Nevertheless, he did then tell us of one witness who was cited to be on stand-by on 36 different occasions. One judge observed that, while the problems were serious, it was sometimes possible to "spill-over" into a third week to finish outstanding cases but this was only possible where the participants did not have commitments elsewhere; he himself had spilled over on his last two visits to Aberdeen (J3).
5.5 Some respondents, while again acutely aware of the problems, thought that the situation had begun improving shortly before the reforms were implemented. This was largely the result of the internal re-organisation at Crown Office which in brief: first, introduced a hierarchical system allocating senior Advocate Deputes to more serious cases and cases of lesser gravity to those with less experience; and, second, provided Advocate Deputes with preparation time before a period of trials. 62 According to one defence counsel, interviewed shortly before the reforms came into effect, there was now more time to liaise with the Crown and agree on various matters (D3), a view which was echoed by an Advocate Depute (P3). Another defence practitioner commented that this had led the Crown to think more seriously about which witnesses they actually needed at trial, thus reducing the numbers of doctors and police officers attending unnecessarily (D7). Another Advocate Depute commented that part of the problem in the past had been the low standard of statements and precognitions but because he now got the papers two weeks before the trial, he could go through them with a "fine tooth comb" and ensure that everything was "tied up" properly (P2).
5.6 Various different reasons were cited to explain the problem of delay and adjournments in the High Court with most respondents referring to a number of these. For example, one judge identified three factors: first, the substantial increase in court workload over the past two decades (primarily because of drug-related cases); secondly, an increase in the preparatory work required to be ready for a High Court trial (and the fact that much of this was delegated to persons such as precognition agents which meant that those taking decisions in the case might not become familiar with it until they read all the papers at a late stage); and thirdly, an increase in expectations as to the way in which a case would be handled, culminating in the decision in Anderson v HM Advocate63 where the appeal court had recognised 'defective representation' by a defence advocate as a basis for an appeal against conviction. As a result, the whole set up had become "ultimately a shambles" (J4). At this stage, it would be useful to consider the more commonly cited reasons for the problems in a little more detail. It should be noted that some of these factors still have an impact and will be raised again when the post-reform position is considered.
Culture
5.7 It was generally agreed that the most important factor was the 'adjournment culture' which pervaded the High Court. The main reason for its existence was that while, in theory, cases went straight to trial, in reality, they were not usually ready to be tried at the first court hearing and all participants were aware of this. Consequently, there was an expectation that most cases would not go ahead and the Crown compensated for this by citing far more cases for a sitting than could possibly be heard. This exacerbated the problem of 'churning' 64 because all parties knew that this was the situation, thus further encouraging the adjournment culture. 65 Similarly, there was an assumption that court time would not be fully utilised, with one judge expressing frustration at what he viewed as an expectation that no trials would start on the first day of a two week sitting despite the presence of the witnesses (J6). This was because all cases were cited for that day and the time was spent determining the following matters: which accused would plead and could be dealt with; which trials were ready to go ahead; when within the two-week period all these cases would be heard; and which cases would need to be adjourned to another sitting.
5.8 The research team's observations confirmed the above. It seemed that the first day of a sitting usually comprised: long periods when large numbers of lawyers were hanging around in the court engaged in conversation or leafing through their court papers; occasional flurries of activity when various personnel came and went to confer with each other; and an occasional very brief appearance on the bench by the judge to deal with some administrative matter. On one occasion, a trial involving charges of sexual abuse of children was supposed to start on the afternoon of the first day, which was somewhat unusual, because of time bar problems. Nothing else was scheduled for that day and the key witnesses were flying in from Canada, although no-one seemed quite sure when they had been - or were - due to arrive. Mid-morning, while the Advocate Depute and a local fiscal were waiting in court with various advocates (who were engaged in cases scheduled for later in the week) and the clerk was still setting up a computer linking him to the High Court system, the representative from the Witness Support Service, who was anxious not to waste the whole day, got the flight number from the prosecution team, rang Heathrow and discovered the flight was not arriving there until lunchtime. It thus became clear that the trial could not start until the following day and that this could easily have been ascertained by any of the other parties (O2). This typified the lack of urgency and focus that our observations revealed.
5.9 It was generally agreed that a major factor in the problem of delays and adjournments was inadequate preparation either by the defence or by the Crown. This was exacerbated, of course, by the knowledge that at any given sitting, most cases would not go ahead. Unsurprisingly, each side tended to blame the other for being ill-prepared, although most respondents accepted that both the Crown and the defence bore some responsibility. Some judges considered that the difficulty was that no-one could "claim ownership" of a case (J3, J6). For instance, Advocate Deputes might be given the papers at the last minute and so not be in a position to resolve matters with the defence at a sufficiently early stage. One judge commented that it was difficult for the defence to get hold of anyone from the Crown to discuss the case prior to the trial and that the proposed compulsory meetings envisaged by the reforms were a good idea (J3). Similarly, defence counsel might well be new to the case, either because they had only been recently instructed or because they were standing in for a colleague at the last minute.
5.10 Some respondents observed that, with one or two exceptions, judges were not active enough in challenging the need for adjournments. 66 One counsel (D1) commented that some judges themselves contributed to the problems because they expected the court to fit in around their arrangements, a view echoed by one clerk but in respect of only a minority of judges (C2). One judge remarked that, in his view, judges did not generally manage court business - whether civil or criminal - at all effectively, and that it was necessary for judges to be more proactive. He did, however, suggest that most judges were in principle willing to do this, although one or two felt that their function was only to adjudicate and not to manage (J5). Other judges agreed, one noting that the judge had to be prepared to ask questions if an adjournment was requested and not be a "pushover" (J2). Another observed that the pro-active approach taken by some was not adopted by all of his colleagues, some of whom tended simply to "rubber-stamp" adjournments if the parties were agreed (J3).
5.11 The same judge suggested a related problem was that no-one looked at the "big picture", each agency involved being concerned only with its own interests and budget. Thus, it was claimed, the Crown would move cases from one venue to another in order to meet its own targets with scant consideration for the notion that cases should be tried before 'local' juries. Similarly, it was claimed that both the defence and the Crown were happy to extend deadlines for their own purposes, while ignoring the extra cost of keeping the accused in custody and the wider interests of the victim and the public.
Crown Office Resources
5.12 Several respondents commented on the under-resourcing of Crown Office (D3, J2, J3). One Advocate Depute (P3) observed that the problem of a lack of Advocate Deputes had been very serious in the recent past but that the situation had now improved (P3). A related complaint was about the quality of Crown Office staff, with one senior counsel noting that Crown Office was finding it hard to attract Advocate Deputes (D1). In this context, a judge commented on the poor remuneration they receive (J2). Two defence representatives noted that Advocate Deputes were reluctant to take decisions, preferring to refer matters back to Crown Office for advice (D1, D4). They thought that the explanation for this lay partly in the inexperience or poor quality of Advocate Deputes and partly in an increasingly 'hands-on' approach by Crown Office (D1). Another defence counsel, in an informal conversation, expressed the view that the increasing use of 'fiscals' in the High Court, i.e. Crown Office staff who are solicitor-advocates, had led to a deterioration in the standard of prosecution (D4). On the other hand, one respondent observed that a specific solicitor-advocate employed as an Advocate Depute was particularly efficient and well-prepared compared with Advocate Deputes with less criminal experience who had come from the Bar (D7).
5.13 It is fair to say that adverse comments about Crown Office staff were considerably more muted amongst judges, although two judges felt that their quality was variable and declining (J2, J4). One of these commented critically on the standard of fiscals who were managing High Court work, alluding to their failure adequately to prepare the case and, in particular, a frequent failure to cite witnesses. This judge also noted that such staff were often insufficiently experienced for the role they had to play (J2). A third judge remarked that he was aware of the view that the quality of Crown staff was poor but did not feel that he was in a position to evaluate it (J3). More than one respondent observed that failures by the Crown led to material not being provided to the defence until the last minute under section 67, which allows the Crown to cite additional witnesses with the leave of the court right up until the last moment before trial (J2, D3). A High Court clerk, who was interviewed along with a judge, in response to critical comments about the Crown by the judge, emphasised that it had to be appreciated that, given the Crown's shortage of resources, fiscals and Crown Counsel were always in the position of "fire fighting" (C1). Similarly, one judge thought that if the Crown were properly resourced, cases could be prepared properly at an early stage, thus avoiding the problems posed by section 67 notices (J3). He had recently presided over a complex trial, with seven accused, where an "inexperienced" Advocate Depute had received the papers - "boxloads" - only five days before the trial (which had lasted for 40 days) although the judge commented that the Advocate Depute had done a very good job in the circumstances.
Anderson and Expert Reports
5.14 Many respondents commented on the impact of the decision in Anderson v HM Advocate.67 For instance, two judges remarked that this meant that counsel - with a few particularly experienced exceptions - no longer felt able to exercise their professional judgment to ignore or abandon certain lines of enquiry: everything had to be investigated and laid before the jury. A particular manifestation of this problem was the increased need for expert reports and their non-availability or late arrival which led to delays (J2, J3). One defence counsel cited the example of DNA reports which are usually tendered late by the Crown under section 67 (D1). Such reports are complex, and can, it was claimed, make or break a case. Therefore, particularly in the wake of Anderson, they require detailed consideration by the defence, thus often necessitating an adjournment (J2 and J6 also made this point). It was generally agreed that defence counsel now tended to be much more scrupulous in following up all possible lines of enquiry, no matter how hopeless they appeared to be, in order to protect themselves against an appeal based on defective representation. This extended to requesting various expert reports that would not have been called for pre- Anderson, the obtaining of which led to adjournments (P1, D3). One Advocate Depute was clearly exasperated by the number of "bogus", as he saw it, reports now called for (P3).
Counsel's Diaries
5.15 Another problem, cited by many respondents, was 'double-booking' by defence counsel. It was generally agreed that the pre-reform system meant that counsel felt they had to take on a lot of cases because, if they did not, the adjournment or collapse of most of these might result in them being left with no work. Further, defence counsel had to be ready to start a large number of cases on the first Monday of the sitting - one counsel estimated eight (D2) - although none of these would go ahead on that day. Later in the sitting, counsel might well have started one case only to be told another was to go ahead in a different court in the next day or two. That always caused problems because: another counsel would then have to be found, often simply to ask for an adjournment; the paperwork needed to be handed over; the solicitors might not be happy with the replacement; and the accused might be discontented that their counsel of choice was not there to represent them. Some respondents observed that the problem of double-booking was exacerbated by the fact that there are a small number of well-known defence counsel whom accused tend to want (D3, J3). This was borne out by the court observations where a member of the research team observed the judge becoming irritated because of the insistence of a junior counsel that the accused in a murder case wanted a particular senior, who had already taken on the case, to represent him at trial. As a result of the latter's other commitments, this was going to necessitate a two-month adjournment and an extension of the time-bar (O11).
5.16 The problems of double booking were well illustrated by another incident that occurred during our research. During a conversation with one counsel, he told us that on the day before, he had been told that a case which the prosecution had previously informed him would be adjourned as a result of the unexpected and unauthorised absence of an expert witness was now going to start on the following day because the witness was going to be flown home from holiday (D4). Shortly afterwards, while we were still talking to this advocate, he received a phone call from Crown Office indicating that a rape case, which he had previously been informed would not be taking place that sitting, was also now going to start on the following morning. Clearly, this counsel could not start two trials at the same time and commented, in a rather stressed fashion, that he would have to resolve this problem by the following morning.
Unavoidable Problems
5.17 It was generally agreed that it was impossible to avoid having some adjournments, for instance, if a key witness simply did not turn up for trial. Several respondents also observed that it was human nature to leave things until the last minute, while accepting that the reforms could do something to discourage this approach (P1). Similarly, one judge thought a certain amount of "human error" was inevitable, referring to a case that he had just adjourned because the defence had failed to instruct an expert to prepare a report quickly enough (J2). One Advocate Depute commented that if it was a case of the defence not having got around to interviewing witnesses then the judge might refuse an adjournment but that if various scientific reports were not ready, the judge's hands were tied (P1). This respondent and various others mentioned that judicial concern about not breaching Article 6 of the ECHR (the right to a fair trial) was crucial in this sort of situation.
5.18 A couple of respondents also referred to the type of scenario described in the preceding section, where the accused or instructing solicitor wanted a particular counsel who was not available on the date in question (D3, P1). In their view, it was best to wait until that counsel was available, one commenting that many accused would simply sack any alternative imposed upon them. A judge referred to a "major change" that had occurred recently, namely the growing practice of accused sacking their counsel (J4). "Where did this culture come from?" he wondered, while commenting that it was a most effective way of prolonging events. It was difficult to get round because judges had to allow a fresh counsel to be appointed to protect everyone involved, including witnesses and complainers.
The Necessity of Legislative Reform
5.19 It was generally agreed that the problems in the High Court could only be solved by cultural change. Two judges, for instance, were firmly of the opinion that this was what was required more than anything else (J1, J2), another being very firmly of the view that the problem was cultural rather than systemic (J4). While some respondents accepted that legislative reform might be one way, and perhaps the most effective way, of changing culture and attitudes, others disagreed. One Advocate Depute (P3) commented that it was "using a sledge hammer to crack a walnut" (P3). Another respondent thought there was no need to wait for the reforms to take effect before challenging the adjournment culture, commenting that judges differed in their approach to adjournments, with some questioning such requests quite vigorously (D7). The latter tendency had been increasing and, in his view, might help to solve the problems. One of the judges, who consciously took a pro-active approach to case management and thus, for instance, questioned all requests for adjournments, also thought legislative reform unnecessary (J2).
5.20 Several respondents noted that the decision in Du Plooy v HM Advocate68 where the appeal court had endorsed explicit sentence discounts for pleas (particularly early pleas) of guilty was having a major impact. In the words of one interviewee, "word is getting out to the prisons" about discounting and this was reducing the number of adjournments and delays (D7). One judge thought that the increased prevalence of sentence discounting - at least informally - was already having some effect even prior to the decision in Du Plooy (J4). Another judge, who was one of the eight appointed to begin preliminary hearings, referred to media perceptions that discounted sentences imposed following pleas at preliminary hearings were "soft". He recognised that there was something to this because the key in getting the new system to work would lie in being "tough" on procedure but more "open-minded" as regards sentencing (J3).
Conclusion
5.21 It was generally agreed that the problems of adjournment and delay in the High Court prior to the reforms 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 timeously for court hearings and judicial acquiescence in agreeing 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 requested; and the delays attendant upon obtaining these, and clashes in defence counsels' diaries. Most respondents thought legislative reform was the only way to bring about the cultural change necessary to tackle these issues.
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