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Chapter 6: Interviews with Criminal Justice Personnel (The Post-Reform Situation)
The General Impact of the Reforms
6.1 Virtually all respondents agreed that the reforms had greatly improved matters, with one counsel, interviewed almost a year after the reforms took effect, commenting that the new system was "a 500% improvement" (D2). It was generally agreed that most trials now went ahead at the first attempt and that it was relatively rare for an adjournment to be necessary. 69 One judge admitted he had been sceptical when he had originally read the proposed procedural changes, preferring the traditional model of proceeding directly from the service of the indictment to the trial. However, he accepted that this system had become a "shambles" and had come to appreciate the benefits of the reforms (J4), as had another judge who had not expected them to work so well (J6). Several respondents thought that the changes to High Court procedures were just one factor in reducing the problems of adjournments and delay, the other major influence being the Du Plooy decision. 70 Another factor mentioned by several respondents was the restructuring of Legal Aid payments for solemn cases, principally the introduction of a flat fee of £1,250 for an accelerated guilty plea under section 76. 71 These two points will be discussed in more detail below.
6.2 There was a unanimous view that the main beneficiaries of the new High Court procedures were witnesses and jurors, several respondents commenting that Glasgow High Court was now a completely different place on the first morning of a sitting. The representative of a victim support group observed that it was no longer "like Sauchiehall Street" (V1) and, similarly, a defence counsel was relieved that it was no longer "mobbed" with prospective witnesses (D2). Another respondent who worked in Glasgow pointed out that prior to the reforms around 60 trials would have been scheduled for a two-week sitting whereas the total was now in single figures (P6). Similarly, judges commented on the huge reduction in the numbers of trials now scheduled. One had just finished a sitting in Aberdeen for which four trials had been scheduled and all had gone ahead with no problems (J7). A High Court manager made a similar point, stating that the first time he had acted in this capacity some time before, he had 28 trials set down for a two-week sitting with something like 800 witnesses cited; with the drop in the number of witnesses, it was now much easier to organise things better (P7).
6.3 Similarly, one Advocate Depute cited a murder case which he had conducted where the Advocate Depute who had conducted the preliminary hearing had managed to cut the number of witnesses called to court from 70 to 50, thus avoiding inconvenience to 20 witnesses (P2). Another prosecutor thought that, as a result of the earlier scrutiny of the case, the Crown was now able to concentrate on the much smaller number of witnesses cited and make sure that they turned up. Six months after the reforms took place, he was aware of only one trial that had been adjourned because of missing witnesses. He further commented that the new system was particularly good in "victim sensitive" cases where the trials were generally going ahead at the first attempt (P6). The benefits to witnesses of the new system were also emphasised by the representatives of victims' groups (V1, V2, V3).
6.4 In contrast, professional witnesses had not noticed much difference as a result of the reforms. They had always had good working relationships with the staff managing court processes, and thus had been able to put in place procedures which minimised inconvenience and unnecessary trips to court as far as was possible. Some scientific witnesses might, as a result, go to court at half an hour's notice but felt that this was sufficient to reacquaint themselves with the terms of the reports they had prepared. One professional witness did note however that there was now more agreement of evidence and thus less formal evidence was required in court. This meant that staff time was not taken up unnecessarily to the same extent, but it did mean that inexperienced scientific witnesses might get less practice at appearing in court on routine matters before having to give evidence which was contentious, and that perhaps was regrettable (W1).
6.5 Many respondents observed that the new system also had advantages in terms of efficiency. For instance, one judge, interviewed in Aberdeen, commented that court time was being better used than before. In his view, there was much less down-time and he was kept busier than previously had been the case (J6). One or two judges, while accepting all the above, wondered how costly it was to the public purse to have considerable judicial time allocated to preliminary hearings (J4, J6).
6.6 A significant number of respondents were concerned that the early enthusiasm that surrounded the reforms might not be maintained and that there might be at least a partial reversion to the pre-reform position. While most of those interviewed accepted that everyone involved was trying to make the reforms work, some referred to specific problems, for instance: the serving of section 67 notices by the prosecution on the day before a preliminary hearing (J6); the defence deliberately seeking to delay matters through various strategies (C3); Advocate Deputes failing to prepare properly for preliminary hearings (D1); and the defence requesting unnecessary expert reports (P3). It was generally agreed however that the greatest threat to the new regime was posed by the unanticipated, largely unintended, and growing number of continued preliminary hearings. For instance, one High Court manager interviewed in March 2006, who had been sceptical about the reforms from the outset, commented of the number of continuations: "the courts are really struggling; this is the time it's beginning to bite" (P7). The problem of continued preliminary hearings is significant enough to merit detailed discussion and this is postponed until the next chapter.
Procedures Prior to Preliminary Hearings, including Exchange of Information, Pre-Meetings and Completion of Required Forms
6.7 Most respondents thought that communication between the Crown and defence prior to trial had greatly improved under the new system. It was noted that the Crown Practice Statement on Disclosure, which requires that witness statements are supplied to the defence within 28 days of committal, had helped in increasing the number of section 76 pleas (D8, C5). 72 It was also generally agreed that the fact that Advocate Deputes have more time in advance to prepare the cases was very helpful because this meant that defence counsel had a definite point of contact with whom they could resolve various matters in advance of the preliminary hearing. This addresses the concern, noted by some judges prior to the reforms, that the inability of any Advocate Depute to 'claim ownership' of a case until very close to trial inhibited negotiations between the Crown and the defence. Where there is a 'big' case, it is apparently now possible to ensure that the same Advocate Depute handles it all the way through and one prosecutor commented that victims are sometimes reassured that "their lawyer" has been identified prior to trial (P6).
6.8 One Advocate Depute commented that he now had time to identify weaknesses in cases, which were often poorly prepared, and resolve these before the hearing. Often this could be done under section 67 and a further advantage was that this was now not being done shortly before the trial but earlier. He gave an example of a drugs case where he had spotted that a car belonging to one of the accused had not been searched so he had requested that this should take place and a large quantity of cocaine had been discovered. In his view, the Advocate Deputes were putting a lot of effort into cases before the preliminary hearings and, while he personally did not find this particularly stimulating compared with conducting trials, it was making a difference to the progress of cases (P2; P6 echoed this view). Similarly, one defence agent thought that the general state of preparation of the parties prior to trial is now far better than it used to be (D7).
6.9 From the defence perspective, it had often proved very difficult previously to get hold of a prosecutor who knew anything about the case but this had changed now that a specific Advocate Depute was reviewing the papers prior to the preliminary hearing (D2). This senior counsel commented that he found the Advocate Deputes very helpful, particularly when it came to the supply of papers and other information not yet in possession of the defence. Several respondents emphasised that much of this pre-trial communication depended on an "element of interpersonal relationships" whereby each party had to know and trust the other (P1, P2, D2, D4). This was much easier in the High Court where co-operation was "far, far better" than in the Sheriff Court because fewer people were involved (P2). One Advocate Depute did, however, comment that there were certain counsel with whom he always felt it necessary to put things in writing (P1), and one senior defence counsel thought that the advent of solicitor-advocates, particularly when they were acting for the Crown, had weakened the traditional ties between Advocate Deputes and defence counsel who were all members of the Bar (D4).
6.10 This view was not universal however. One defence counsel was highly critical of the preparation, or lack thereof, by some Advocate Deputes. He told us of a case arising out of a general fracas in a small community, which resulted in seven people being accused of murder. Before the first preliminary hearing, that community had "settled matters" and all the witnesses had submitted affidavits, stating that it was not the accused who had perpetrated the assault. The Advocate Depute was aware of this but, for other reasons, the case was continued to a second preliminary hearing. At that hearing, a different Advocate Depute did not know anything about this and had to ask our respondent and the other defence counsel to explain what was happening. Exactly the same happened at two further preliminary hearings, again involving different Advocate Deputes, and the case was eventually listed for a five week trial, even though it was (in his view) perfectly obvious that the prosecution would collapse. This duly happened after three days and our respondent was left with a four week gap in his diary with no work (and, more importantly, from his perspective, no income). As he acidly commented, "this is precisely what the reforms were supposed to avoid" (D1).
6.11 In most cases, it seemed that the compulsory pre-meeting, prior to the preliminary hearing, did not comprise a formal face-to-face meeting as such. More normally, there would be a series of e-mail exchanges, telephone conversations and other informal communications in the run-up to the preliminary hearing (D2, P2). One Advocate Depute commented that with the advent of e-mail and mobile telephones, it was easy to contact counsel prior to a sitting and work out what was happening (P2). This sort of contact was rendered possible, of course, by the fact that the Advocate Depute now receives the papers some days before the preliminary hearing and usually contacts counsel in order to start the process of communication. One counsel commented that he would frequently just drop into the room used by Advocate Deputes in Glasgow High Court to discuss the case and that the latter seemed to appreciate the diversion from the task of simply going through papers for the forthcoming hearings (D2). Several respondents thought that the Practice Direction 73 was too detailed and rigid - "highly formulaic" (D3) - and that the more informal approach that seemed to be developing was preferable and just as effective (D2).
6.12 Nevertheless, various respondents observed that some problems remain. Some commented that the Crown often still faced delays in getting hold of scientific reports from the relevant experts, a problem which pre-dated the reforms. 74 One experienced advocate noted that the Crown are good at sending out the witness statements taken by the police but less so when it comes to documentary evidence, such as warrants, production schedules, expert reports, surveillance logs, etc. (D2). Another defence representative commented that the Crown was not particularly good at passing on information it received after the initial handing over of material demanded by the new disclosure regime (D8). One advocate recalled a case where he had received an expert report, placing the murder weapon in the hands of his client, the day before the trial, which the Crown had received two months earlier. Obviously, he needed to get his own expert report and the trial was adjourned (D1). One judge thought that the defence had adapted to the early exchange of information more readily than the Crown, which still had a habit of coming up with section 67 notices the day before a preliminary hearing, thus compromising the preparations of the defence (J6). Other respondents commented on the effects of Anderson which have not been mitigated in any way by the new High Court procedures; the problem remains that counsel wish to ensure that every possible avenue of the defence has been investigated. Two prosecutors, both interviewed more than six months after the reforms, thought counsel were increasingly requiring psychological reports on their clients and bemoaned the delays this caused (P3, P7).
Preliminary Hearings and Judicial Proactivity
6.13 It was generally agreed that the success or otherwise of preliminary hearings was in the hands of the judiciary (a view shared by judges themselves). Two counsel, spoken to before the reforms, predicted that judges would take very different approaches, some being very forceful and pro-active, others less so (D4, D5). One Advocate Depute, interviewed around the same time, predicted that if judges were "too heavy handed" in implementing the reforms, there was a danger of senior defence counsel withdrawing their cooperation (P3). Another thought that the first year of preliminary hearings would be crucial in setting the tone (P1). Virtually all respondents interviewed after the reforms agreed that the original judges appointed and trained to conduct preliminary hearings 75 had been relatively successful in adhering to a common and relatively pro-active approach, although most thought there was some degree of variation in the approach taken by different judges (D1, D2, D7, P2, P7). Our observations tended to confirm these views.
6.14 One Advocate Depute was pleased that the judges were now asking "searching questions" and commented that defence counsel were usually fully prepared because of the consequences to their reputation if they were not (P2). One judge observed that if counsel were not fully prepared he gave them a "bit of a ticking off" or "gentle encouragement" because there are no real sanctions that can be imposed (J4). Another judge commented on the lack of sanctions, stating that counsel should not be "shouted at" in court, and said that he thought in England an order could be made for wasted costs, an idea which might be worth examining (J1). On the other hand, a number of judges took the view that it was essential for them to be "tough" (J3) for preliminary hearings to work effectively, and to refuse requests for continuations where appropriate. One said that if an adjournment was rendered necessary through the fault of one of the parties, he would give that party "a bit of a kicking" because if "you put them through the wringer", they are less likely to do it again (J7). Our observations certainly revealed several occasions when counsel or their agents were subject to fairly severe - although often implicit - criticism from the bench. In one instance, the previous hearing had been continued in order that the defence could interview a key witness but, under persistent questioning from the judge, it gradually emerged that the defence solicitors had done virtually nothing about this. No-one in the court room was left in any doubt that the judge was extremely annoyed, as also was the defence counsel who was clearly highly embarrassed by the tale which emerged from his repeated whispered exchanges with the defence agents (O18).
6.15 Several respondents commented that judges had to be sceptical about the reasons offered by counsel to justify delays and emphasised that these needed to be explored. One judge gave an example of a case where he was told that a defence expert would not be available on a particular date but he nevertheless refused a motion to adjourn the trial and the expert suddenly became available (J5). Another referred to a pre-reform case where counsel claimed that he could not start a murder trial on a particular date because of civil court commitments. The judge stated that the murder trial had to take priority and subsequently discovered that in reality the advocate had had a ticket for the Porto v Celtic UEFA cup final in Spain (J2). On the other hand, one prosecutor thought that most judges were still "too polite" and would "listen to anything" in a way that sheriffs would not (P7). In our observations, we saw several examples of both types of approach. One point that emerged from our observations was that judges sometimes more or less invited counsel - usually the Crown - to oppose the other party's motion for an adjournment but that counsel (presumably because of a desire to maintain good working relationships) were extremely reluctant to do this. On more than one occasion, one of which was the instance referred to in the previous paragraph, it was clear that, if counsel had intervened, the judge would have refused the motion yet the judge would not take such a step unilaterally.
6.16 It was generally agreed that variation in judicial practice has greatly increased with the expansion in the number of judges conducting preliminary hearings 76 and that this was unfortunate. One respondent suggested that this might be because the first cohort of judges all had special training, whereas, as far as he knew, the second batch did not (D7). One of the original judges noted that the initial eight preliminary hearing judges had been appointed because it was believed that they would be pro-active (J5), and another suggested that keeping the "team" small would have been more "prudent" (J3). Certainly, one of the judges brought in as part of the second batch admitted that, while he had received some training on conducting preliminary hearings, experience had led him to developing a "better feeling" for them and he was now more proactive than he had been at first. He also commented that with more judges involved, there might be "less unanimity in approach" (J7). Another of the new judges emphasised that there was now considerable variation in judicial approach (J8). Again, our observations amply confirmed these views, ranging from one judge who rigorously questioned the parties about every aspect of the case to another who appeared to regard the preliminary hearing as a fairly useless bureaucratic exercise and simply accepted everything he was told by counsel.
6.17 An Advocate Depute noted that when preliminary hearings were first introduced, defence counsel were preparing fully but, latterly, he felt that some were not properly focussing on the case until the last minute (P2), a view shared by a couple of judges but in relation to all counsel rather than just the defence (J3, J5). Another prosecutor observed that preliminary hearings are not always being "done properly" by all concerned and commented adversely on variations in judicial practice (P7). Another respondent agreed that, with the expansion of the judicial pool, "there has been some slippage": one of the original judges went through every question on the forms the parties fill in before the hearing, whereas one of the new judges was not interested in anything other than the number of witnesses the parties intend to call and their estimate as to how long the trial will last (D7). One defence counsel, who was particularly scathing about the effect of the reforms, thought that only four judges were conducting preliminary hearings properly. He cited one of his recent cases where evidence was led from two ambulance men who had arrived at the scene of the crime after the victim had been taken away by two of their colleagues; their testimony was completely unnecessary yet neither the judge nor the Crown had taken the appropriate action at the preliminary hearing (it seems he did not regard himself as bearing any responsibility) (D1).
6.18 Another experienced defence counsel confirmed that some judges are more willing to allow continuations and that you know that if you are in front of one of these "the heat is off". There are now, in his view, one or two judges before whom everyone can take a relaxed approach, not really doing the necessary work prior to the preliminary hearing, and be confident of a continuation without much in the way of recriminations. On the other hand, this respondent observed, there are one or two judges who are very particular and counsel appearing before one of them will make sure they are "up to speed". He further explained that, in such situations, there will often be a considerable burden on the defence solicitor because counsel will want to ensure that the former has covered all avenues, and the solicitor too can be given a "hard time" by the judge if he has been tardy in preparing for the case (D2). Certainly, the researchers, during court observations, saw examples of defence solicitors being questioned, through counsel, in searching detail about exactly when and how they conducted enquiries in the case.
6.19 It was generally agreed that if the reform package was going to succeed in the long term, it is essential that judges remain pro-active and committed. One judge emphasised how important it was for judges to prepare properly for preliminary hearings and read all the papers (in contrast to a trial where this is not necessary), in order that they were in a position to encourage progress (J4). Another commented that it was essential for judges to 'police' preliminary hearings in order to move cases along (J8). Several respondents commented that the relative lack of success of intermediate and preliminary diets in the sheriff courts was because many sheriffs had never taken them seriously and regarded them as a 'rubber stamping exercise'. Consequently, those sheriffs who had conducted such diets properly became disillusioned very quickly and simply 'gave up' after a couple of months (D6, D7). Such respondents expressed a hope that preliminary hearings did not suffer the same fate. Several noted that the collegiate nature of the High Court, and the far smaller number of judges involved, was vital in this context because it was much easier to agree and adhere to a common approach.
6.20 On the other hand, some judges commented that they were aware that practice varied, although a couple commented that it was quite difficult to know exactly what approach other judges were adopting (J5, J6). One of these (J6) was fairly confident that they share "broadly the same approach", although he observed some of his colleagues felt the need to go through every "box" on the Schedules submitted by the parties, whereas he preferred to be less formulaic - if both sides say they are ready to go to trial, he will accept that (J6). The other observed, more pessimistically, that while he kept very full minutes of what happened in court, some of his colleagues did not and this made it difficult at subsequent preliminary hearings to determine exactly what the parties had agreed to do to ready the case for trial (J5). It should be noted that, according to our respondents, continued preliminary hearings are rarely heard by the same judge as conducted the previous hearing, 77 a point to which we will return in the following chapter.
6.21 Several advocates, interviewed prior to the reforms, anticipated that some difficulties would arise in securing the attendance of the same counsel at both the preliminary hearing and trial. In their view, if the judges were not sufficiently flexible in allowing senior counsel to instruct someone else to appear at the preliminary hearing, the system would not work (D3, D4, D5). Two were worried that if senior counsel were required to attend a preliminary hearing, this would prevent them from starting a trial in the prior few days because this might preclude them from attending the preliminary hearing (D4, D5). There was also a worry that, where senior counsel were allowed to get another advocate or their junior to appear at the preliminary hearing, there were difficulties in allocating the set fee for conducting the preliminary hearing. The former would have done the bulk of the preparatory work, the other would appear at the preliminary hearing, yet only one would be paid by SLAB (D3). 78
6.22 On the other hand, one counsel, interviewed after the reforms took effect, observed that now one knew one's commitments in advance, it was much easier to avoid potential diary clashes. For instance, one could ensure that continued preliminary hearings, sentencing diets and the like, did not clash with trials one was scheduled to conduct (D2). A solicitor-advocate commented: "There is without doubt much more certainty. You are able to plan much better" (D7). One judge confirmed that this was the impression he had formed (J7). One defence agent was slightly more sceptical, taking the view that the small number of senior counsel engaged in criminal defence work all take on too many cases, hoping they can juggle them for as long as possible, purely for financial benefit and will then "ditch them" at the last minute (D6). Another counsel had argued that part of the problem was that too few senior counsel were trusted by the accused (D3), but the defence agent referred to in the previous sentence pointed out that this was an impression those senior counsel were keen to foster because it made good business sense (D6).
6.23 One prosecutor felt that judges need to work out a common policy as regards defence advocates' diary commitments as a factor in scheduling trials because sometimes judges would take these into account and sometimes they would not (P7). One judge, interviewed fairly soon after the reforms had taken effect, commented that the timetable in Glasgow was influenced heavily by the availability of defence counsel, to the extent that particular courts were referred to as "so and so's court". In his view, this was not healthy (J5). Another judge held the view that certain senior defence counsel were still able to get court business scheduled around their own workloads despite the reforms (J6). One defence counsel was also of this opinion, commenting that the rest of the criminal bar in Glasgow was extremely irked by what he perceived as the favourable treatment reserved for some counsel (D1).
Du Plooy, Preliminary Hearings and Guilty Pleas
6.24 Nearly all respondents were of the view that recently there had been a sharp increase in the number of guilty pleas 79 but, as noted above, most were of the view that the judgement in Du Plooy was more influential than the reforms per se. In the wake of this appeal court decision, which formalised sentence discounting for early guilty pleas, the number of such pleas had already begun to rise sharply before the new procedures were implemented. Thus, it is difficult to assess the impact of the reforms on this phenomenon. Whatever its effect, one procurator fiscal summed up the common sentiment when he said that, as a result of Du Plooy, preliminary hearings largely comprise "a big queue of people wanting to plead" (P5). In his estimation, around 20-30% of cases would have ended up at trial before Du Plooy and the reforms, but in their aftermath he thought the figure was closer to 5-10%. Another defence agent estimated that the number of trials he now did was about half of what it had previously been (D7). 80
6.25 Several respondents emphasised the importance of sentence discounting being transparent, one noting that it reduced the likelihood of defence counsel waiting until the morning of the trial to assess the pressure on the Advocate Depute with the aim of cutting a good deal for their client (P1). One or two respondents thought that the proportion of guilty pleas had essentially hit its peak and would be unlikely to increase further (D2). A senior counsel thought that more clarification and consistency in sentence discounting was necessary to increase the impact of Du Plooy (D3). In a similar vein, one judge thought that the decision was "far too general" and that "proper sentencing guidelines" were needed. He added that a one-third reduction was appropriate for a section 76 plea but was too generous for a plea at a preliminary hearing and that a 10% discount was appropriate for a plea at a trial diet (J5). One senior counsel thought that judges should be allowed to say at the preliminary hearing what the sentence would be if a guilty plea were to be tendered, thus encouraging accused to plead guilty at this stage (D3). It is worth noting that an equivalent practice is now permitted in England. 81
6.26 Other respondents, while accepting that the clarification of sentence discounting in Du Plooy had played an important role in increasing the number of early guilty pleas, were sceptical about the reality. Their view was that judges were often taking a higher starting point than they would have done pre- Du Plooy, explicitly applying the applicable discount, and thus arriving at much the same sentence they would have imposed in the past (D2, D7). Some respondents were uneasy about the ethics of sentence discounting. For instance, one judge observed that he was particularly concerned that the accused secures too great an advantage: first, because the charge is often reduced by the Crown in order to obtain the guilty plea; second, the agreed narrative and lack of witnesses giving testimony means the "nasty bits" tend not to come out in court; and finally, the discount is applied to the reduced charges rather than the original, and probably more accurate, charge (J7). At least one other judge voiced general concerns about the justifiability of sentence discounting for similar reasons while accepting, as did virtually everybody, that it brought great practical benefits (J3).
6.27 Some respondents commented that there were still major disparities in the approach to sentencing taken by different judges. Thus, where an accused appears at a preliminary hearing before one of the judges known as a heavy sentencer, it is very unlikely he will plead guilty, preferring to wait and take his chances before the trial judge. In the view of these practitioners, it was imperative that the "hard hitters" were not assigned to preliminary hearings (D3, D7). That view was explicitly shared by two judges (J3, J4). Two other judges noted that the plea rate might also depend on the extent to which the Crown were prepared to accept 'soft pleas', i.e. be willing to reduce the charges in order to secure a guilty plea. One of these thought that prior to the reforms the Crown had done this more often: in his view, there was now more time available for trials and so the Crown were less prepared to reduce the charge(s) significantly just to avoid having to go to trial (J6). Conversely, the other said that he thought the Crown was now accepting some "pretty soft pleas" and that this view was shared by a number of his colleagues (J5).
6.28 In the view of most respondents, the other important factor in the increase in early guilty pleas is the new Legal Aid structure under which advocates now receive £1,250 for a section 76 application which allows an accelerated guilty plea by the accused, often before the indictment is served and the preliminary hearing is set. This is regarded as "easy money" and thus, from counsel's point of view, is preferable to a guilty plea being tendered at a preliminary hearing (J5, D6), as well as ensuring that the accused is entitled to the maximum possible sentence discount (D7). Section 76 applications are further encouraged now because they are no longer all heard by the Lord Justice-Clerk - four respondents commented that at one time when the post was held by a judge who was perceived as a hard sentencer, there were virtually no section 76 applications because accused were better off pleading guilty on the morning of the trial (J4, P3, D4, D6).
6.29 Most respondents thought that, in essence, there was only so much that could be done to persuade accused to plead guilty; it was simply not always possible. An Advocate Depute commented on what he termed the "irrationality" of accused which meant that they would not always take the most advantageous course of action but would pursue the short term aim of staying out of jail for as long as possible by pleading not guilty until the last minute (P3). One judge made a rather different point, noting that the client would invariably follow counsel's advice and that the problem of the defence "running trials" when there should have been a plea was a reflection of the declining quality of practitioners. He was adamant, however, that counsel were not doing this for financial reasons because, in his view, more money could be made doing things other than conducting trials (J4). On the other hand, another judge wondered whether the financial interests of counsel might affect the time at which a plea was tendered, namely on the morning of the trial rather than at the preliminary hearing (J8).
Scheduling Trials
6.30 In general, it seemed that fixed trial diets were not being used much, the preference being for 'dedicated floaters' (where the trial is scheduled anytime in a specific court within what is usually a four day period, usually after another trial), although some complex cases and lengthy trials start on fixed dates. This system allows more flexibility, yet still ensures trials take place within a reasonably specific timescale. An Advocate Depute pointed out that the High Court manager can allocate floating cases to whichever court becomes available first in Edinburgh and Glasgow because more than one trial court is sitting at the same time. In Aberdeen, however, where the interview took place, it is different because there is only one trial court. Thus, if one trial ends earlier than planned, one can be left with "down time" with nothing productive to do because the trial to follow cannot start until the next day. He did go on to say that the courts were not being run for his benefit nor that of the defence and that the people who mattered, namely victims and witnesses, were benefiting from the new system (P2). It was observed by one judge that more use could be made of pure 'floaters' ( i.e. cases not allocated to a specific High Court location), particularly in the west, although certain types of case, for instance, rapes, were not suited to this approach (J6). One defence counsel complained about the use of dedicated floaters because they meant holding periods in one's diary open but not getting paid until the trial actually started (D1).
6.31 Most respondents who were interviewed in the latter stages of the research thought that the High Court had become very congested recently and there was a lack of trial slots as well as difficulties in fitting in continued preliminary hearings (see the next chapter). For instance, a solicitor-advocate who practices mainly in Edinburgh held the view that, even where cases were ready at the first preliminary hearing to proceed to trial, it was difficult to find an available date within the time bar and where there had been one or more continued preliminary hearings, it was virtually certain there would have to be an extension to the 140-day limit for accused on remand. He had heard that similar problems had arisen in Glasgow, observing that there simply did not seem to be enough courtrooms or judges. In one of his recent cases, at the first preliminary hearing, the trial had been "farmed out", in his words, to Inverness for this reason, despite the fact that all the witnesses were from the south of Scotland or north of England (D7). More generally, it was thought that there was some movement of cases between venues beyond that necessitated by the fact that preliminary hearings only take place in three venues (D1, D2, D7, P2). For instance, it was not unusual for Glasgow cases to be tried in Paisley or Kilmarnock where this seemed suitable (D2) but one Advocate Depute expressed the view that pressure on the court diary sometimes meant that no attention would be paid to the circumstances of the case in allotting it to a particular venue (P2).
6.32 Judges were particularly concerned about the location in which trials took place. This was partly because it was important that justice should not be "centralised" in Edinburgh and Glasgow (J1), but also because it was important to do things locally (J3, J4, J5, J6). Some judges expressed the view that cases were moved around Scotland purely for administrative convenience and to meet targets with little regard to the inconvenience to witnesses and others (J3, J4, J6). One judge gave the example of a rape trial in Inverness over which he had presided in which none of the accused, witnesses nor the victim had come from north of Edinburgh and many had come from England (it is probable that this is the same case to which D7 referred above). In this judge's view, not only was this unfair on all concerned in the trial, it was entirely unfair to ask people from Inverness to give up their time to serve on a jury for a case that had no connection with their locality. This was not a 'one-off' because the trial he was sitting on in Aberdeen during the forthcoming week was a Glasgow case (J6). A clerk subsequently informed the research team that the former case had been very unusual and had been moved to Inverness as a last resort because it was the only "slot" open before the time limit expired (C5). In his view, every attempt was made to schedule trials at the appropriate High Court location but the commitments of defence counsel sometimes made this impossible to achieve within the 140-day time limit in custody cases.
6.33 In the view of the last judge referred to above, "something is wrong with the electronic diary", although he made it clear he was not complaining about the keeper of the diary who was working within certain constraints, and he observed that the situation of adhering to time limits and finding appropriate locations might now be worse than it was prior to the reforms. This respondent thought that one solution would be to make alternative venues available for High Court trials, suggesting that Ayr Sheriff Court would have been both suitable and appropriate for a recent case of his that had been sent to Inverness (J6). Another respondent also suggested that the problems related more to a lack of suitable courtrooms rather than judges but he was less optimistic about the number of alternative venues. He cited Hamilton Sheriff Court as an example of a courtroom "from a bygone age" which was unsuitable for High Court trials (C3).
6.34 Most respondents were of the view that it was impossible to ensure that all trials went ahead as planned and that there was a certain irreducible amount of adjournments and consequent delay that could not be avoided. For example, the accused or a key witness might simply not turn up or other unforeseen circumstances might intervene. One respondent had recently been involved in a case where a witness had rung the night before the trial to say that his son had been taken into hospital and that he could not attend (P2). Similarly, one judge had recently had a trial where after a week one of the accused "had done a runner". The trial did continue because there was a second accused but this judge thought that ECHR fears led to accused being granted bail too readily, particularly once trials were underway (J8). An Advocate Depute observed rather ruefully that it made little difference whether court timetabling was in the hands of the prosecution, as it had been prior to the reforms, or High Court administrators, as it now was, because in reality, it was the accused who controlled the timetable (P4).
Time Limts
6.35 It was generally agreed that the extension of the time bar in custody cases to 140 days had made little difference in that, as a result of the number of continued preliminary hearings and the congestion in the court diary, a large number of extensions were still necessary. As noted above, one judge thought the situation might now be worse than before the reforms (J6) and another was concerned that the new time limit would become the norm (J3). A further judge observed that multiple accused cases often resulted in particular problems (J5). One respondent, interviewed almost a year after the reforms, estimated that over 50% of cases now need a time bar extension and that they are granted without question (D7). 82 A judge, interviewed prior to the reforms, was firmly of the view that the 110-day rule was the "jewel in Scotland's crown" and should not have been relaxed, because people would always work to time limits and do everything at the last minute (J3). However, when interviewed at a later stage, he was more relaxed about the change and took the view that applications to extend time limits were becoming less frequent (a view with which J7 agreed). Another judge made the point that defence counsel often will not object to extensions because the accused will be better off on remand than as a convicted prisoner (J5).
6.36 An Advocate Depute was unhappy about the practice of delaying non-custody trials for many months in order to leave room in the diary for custody cases, citing a case where the preliminary hearing was held in February and the trial was scheduled for September (P2). A judge also deplored the tendency to postpone non-custody cases until the last minute (J4). One respondent (D2) thought that part of the problem is that the accused does not get enough notice of preliminary hearings. The 29 days between the issue of the indictment and the hearing does not give the accused enough time to get full legal advice by the time of the preliminary hearing nor does it give the defence agent sufficient time to carry out the necessary preparatory work (D2). Another thought that the limit should have been increased to 180 days: it is impossible to prepare big murder cases in 80 or 110 days and there is little point in promising to bring a case to trial within 140 days and then to extend the time bar several times (P7).
Agreement of Evidence
6.37 The consensus was that more evidence was being agreed prior to trial. One advocate commented on the tension between the duty to do one's best for one's client and the drive to agree more evidence prior to trial. In his view, the defence could not disclose too much before or at the preliminary hearing: "Why should you alert the prosecution to potential weaknesses in their case?" (D3). For similar reasons, another respondent, interviewed before the reforms took effect, thought that the provisions on agreement of evidence would be approached "with some care". He commented that some counsel are very "traditional" and will not agree anything before trial. On the other hand, this respondent thought that, since the duties of Advocate Deputes were restructured, 83 fewer witnesses were being forced to attend court unnecessarily because the preparation week enabled the Crown both to think about which witnesses it was essential to bring to court and discuss this with the defence (D7). One Advocate Depute, interviewed prior to the reforms, thought the defence would be more prepared to agree straightforward evidence because of a fear of criticism from the judge at the preliminary hearing (P1). One of his colleagues, interviewed several months after the reforms, took the view that this was precisely what had happened (P2).
6.38 Judges agreed that they had a duty to encourage the parties to agree evidence and should be as robust as they could in their attempts to do so. Several commented that their powers in this regard did have limits however and they had to be conscious of the accused's rights and the requirements of a fair trial under Article 6 of the ECHR. For instance, one judge said that they could "mutter platitudes" but not go too much further (J6) and another noted that one could not "probe too deeply" for fear of undermining the case (J3). For example, although they have a statutory power to disregard challenges to notices of uncontroversial evidence if they are felt to be unjustified, 84 there is no indication that this power was being used. Various judges referred to the problem of "elusive" (J6) joint minutes relating to the agreement of evidence which are always on the verge of being signed but are usually not lodged until half-way through the trial rather than at the preliminary hearing (J4, J6, J7).
6.39 One interesting development seems to be the practice of both sides settling upon an 'agreed narrative' in advance of a guilty plea. One counsel indicated that this was not "a formal requirement"; "someone had just done it one day" and others had thought it a good idea and followed suit, until it had come to be seen as good practice. The Advocate Depute would usually produce a draft and it would then be edited by defence counsel and the Advocate Depute. Following the guilty plea, the judge would keep the agreed narrative. This practice was useful for all parties because it provided a record of what had been said and, from the defence perspective, it meant that counsel could go through the narrative with the accused to explain the sentence (D2). Two judges remarked on the development with particular approval (J3, J5) and, in the court observations, the research team saw several examples of agreed narratives being read out in court.
Legal Aid
6.40 Most respondents agreed that the effect of the reforms combined with the changes to solemn Legal Aid via the introduction of fixed fees had led to a considerable loss of revenue to the defence bar as a whole. One advocate, interviewed prior to the reforms, estimated that the income of most criminal defence counsel would drop by about 20% as a result (D3). A couple of months after the reforms were implemented, another advocate commented that all advocates at the criminal bar had expected to see their incomes drop by around £30,000 to £40,000 but the situation now seemed to be worse than this (D4). This respondent and another defence counsel (D1) were extremely bitter about the Legal Aid position. They cited the number of senior counsel who have left or are in the process of leaving the criminal bar (mostly to become sheriffs) as a result of the decrease in income. Their principal worry was that good quality people were being lost and were not being replaced because criminal work is now so unattractive in financial terms.
6.41 Opinions about the legitimacy or fairness of the Legal Aid changes differed widely. The majority of respondents, including some senior defence counsel, argued that much of the money that was previously available as a result of the 'inefficiencies' of the system had disappeared and that this was no bad thing. For example, senior counsel might previously have found themselves supposed to be conducting two trials at the same time and thus would be forced to get another advocate to appear at one and request an adjournment. That would net the replacement counsel £300 for 30 minutes work but now that advocates generally know what they are doing on any given day, such clashes are much less common (D2). The same respondent thought that "those who were busy are still busy" as did another senior defence counsel (D3) and a prosecutor (P6). Similarly, an Advocate Depute pointed out that it was the "adjournment advocates", i.e. those who made their living from doing non-controversial adjournments and the like, who were losing out while "good" defence agents were still getting plenty of work (P2).
6.42 On the other hand, the two senior counsel mentioned above were so disillusioned by the drop in their income that they were vehemently opposed both to the Legal Aid restructuring and the reforms (D1, D4). One was particularly annoyed by the (in his view) entirely foreseeable collapse of a five week trial after three days which had left him with little or no work for over a month. 85 While this, he felt, was the most extreme example of the iniquities of the new regime, he had also been involved in two other scheduled trials which had collapsed, for which he had set aside the required period of time in his diary, leaving him with no income for this period. In his view, this system was to the advantage of solicitor-advocates who could do alternative work in their offices or conduct cases in the lower courts to fill in such gaps. This same counsel argued that the reforms demanded that counsel take "ownership" of their cases, which he has done by preparing properly for preliminary hearings, appearing at them or securing the attendance of another counsel whom he has briefed properly, and blanking out large periods of time in his diary for trials. This has cost him a lot but, in his view, SLAB have not reciprocated by funding him properly for his efforts (D1).
6.43 While not all respondents were quite so disillusioned, there was general agreement that the structure of solemn Legal Aid was not quite right, but most accepted that this was something which would improve over time although various matters still needed to be resolved (D2, D7, J5). 86 In particular, the preparation for a preliminary hearing can take days, especially in a big or complicated case, and practitioners felt that they were not being adequately compensated for that, the fixed rate being the same as for a day at trial and, for a continued preliminary hearing, one half of that amount. This problem has been exacerbated by the new disclosure regime, which has led to vast amounts of material being supplied to the defence by the Crown (D7). Another advocate, interviewed prior to the reforms, made a similar point, arguing that even after the Legal Aid reforms the bulk of the money is earned at the closing stages of a case, there being little reward for preparatory work. He was concerned that the "real losers" would be junior members of the faculty dealing with low priority floating cases. While they would be paid for 'waiting days', they would not be paid for any other work done on those days, for example, if they engaged in preparatory work on another case because they could claim only for one or the other (D3). 87 A judge contrasted Legal Aid for criminal work with that for civil work which is "front loaded", with an emphasis on dealing with as much of the business as possible at the beginning of proceedings (J2).
6.44 While the fees regulations allow for separate payments to be made to one advocate to prepare for the preliminary hearing and to another advocate for conducting that hearing a further, related problem in the view of some advocates is that each fee can be paid only once in each case (D1, D4, D7). Thus, if one advocate prepares for the hearing but is unable to conduct it, as a result of a supervening commitment, a second advocate will also have to prepare but only one can be paid. In SLAB's view, any fee-splitting, for example where both counsel seek payment for preparation, is a matter for counsel to sort out: essentially, it is a well-recognised principle of taxation that one does not pay two people to do the same job. In addition, some respondents argued that SLAB should deal with requests for 'extraordinary' expenditure much quicker because, they claimed, delays in SLAB's decision making sometimes slowed things up. Many of these requests are actually quite routine - for example, to get access to mobile phone records - and, very often, the cost of a continued preliminary hearing necessitated by the delay is much greater than the expenses required which may only be two or three hundred pounds (D2, D4, J5). One respondent commented that judges were so infuriated by such problems that two of them had suggested he write to SLAB to see if a more practical approach could be taken (D2). On the other hand, SLAB stated that High Court work was prioritised and, where sufficient information is supplied with the request for extraordinary expenditure, a decision is usually taken on the same or the following day. It was observed that such requests are made by solicitors rather than advocates and sometimes the Board can be cited as a reason for delay without the full facts being available to the court. It was thought that this practice was decreasing because the court clerk can now phone SLAB and check the exact situation within ten minutes.
Conclusion
6.45 There was virtually unanimous agreement 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 better communication between the parties prior to the first court appearance (formerly a trial diet but now the preliminary hearing), with more disclosure of evidence by the prosecution and better preparation by both parties. The compulsory pre-courtroom meeting 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. Another point on which there was general agreement was the increased number of early 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 reforms per se. As regards the increase in the time-bar from 110 days to 140 days in custody cases, most respondents were of the view that large numbers of extensions were still being granted. 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.
6.46 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 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 and that, consequently, parties were less well prepared, more likely to request continuations and that such applications were more likely to be granted. The major result of this change was an increasing and unanticipated rise in the number of continued preliminary hearings. This was causing difficulties that were serious enough to jeopardise the success of the entire reform package and, therefore, this issue is examined in more detail in the next chapter.
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