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Chapter 7: Interviews with Criminal Justice Personnel (Continued Preliminary Hearings)
The Problem
7.1 As noted briefly in the previous chapter, our respondents unanimously agreed that there had been more use of continued preliminary hearings than had been anticipated and that, as time passed, this phenomenon was becoming more common. Most people, however, were at pains to emphasise that adjourning a preliminary hearing does not carry the same consequences as adjourning a trial because the former does not cause nearly so much upset and inconvenience to victims and witnesses. Nevertheless, there was a growing concern among those respondents interviewed in the latter stages of the research that the increasing 'churn' of preliminary hearings created the danger that the entire reform package might be undermined, leading to a return to the 'adjournment culture'. In mitigation, as it were, one clerk observed that cases with multiple preliminary hearings do tend to go on to a full trial rather than settling at a preliminary hearing; in other words, these tend to be the genuine problem cases (C1). 88
7.2 One judge observed that continuing a preliminary hearing does not matter much if it can be 'slotted' back into the period during which that particular judge is doing preliminary hearings - four weeks in Glasgow, two weeks in Edinburgh and one week in Aberdeen - nor if it is continued to the next sitting in Aberdeen in four weeks time, but scheduling problems arose if that was not possible. There was a possibility that this could "cause the whole system to buckle" (J7). From our observations, it did appear that it was more common for continuations to be set for the next sitting but there were contrary examples - one hearing on a Wednesday in Aberdeen was continued to the following Tuesday in order for a question about admissibility of evidence to be decided; two police officers were to be called as witnesses and it was estimated that the hearing would take about one hour (O27). Similarly, in Edinburgh a member of the research team saw one preliminary hearing continued until the next day so that certain matters could be resolved with the result that a trial date was successfully fixed at the continued preliminary hearing the very next morning (O17). In both of these cases, the continuation had obviously achieved its purpose.
7.3 One fiscal had initially found it "surprising" that there were quite often four or five preliminary hearings in complex cases but he thought that this did not matter because victims and witnesses were not being upset or inconvenienced (P6). On the other hand, a representative of a victims' group commented that, while the position was a great improvement on the pre-reform regime, victims and their families often did not really understand preliminary hearings and thought that each court date would mark an end to their ordeal, only to find it continuing (V1). The representative from another victims' group agreed that victims did not like cases to be prolonged and was convinced this was often a deliberate tactic by the defence (V4). An Advocate Depute was convinced there were a growing number of continued preliminary hearings and it "worried" him when it was the Crown that had to ask for the continuation. He had been in precisely that situation earlier in the day on which we interviewed him as a result of late information having come in from the fiscal's office. However, he did stress that this was better than having to adjourn a trial under the old system (P2).
7.4 Initially, the Crown had had a problem with continuations because of difficulties in getting the papers timeously to the Advocate Depute who was to request the continuation but that has now been resolved. In his view, the danger of slipping back into the pre-reform situation could be avoided if "judges keep a grip on it" but, like other respondents, he observed that the possibility of Anderson appeals meant that counsel exercised a certain amount of caution (P2).
The Reasons for Continued Preliminary Hearings
7.5 According to several respondents, a key factor in the increasing number of continuations of preliminary hearings is that, as was noted in the previous chapter, there is now more variation in judicial approach than there used to be. A common view is that some judges have a relatively lax attitude towards granting continuations of preliminary hearings. One defence agent cited an example of a case where there had been seven continued preliminary hearings and the previous judge had said the next one must be the last and that the parties must be ready to proceed. At the next hearing, which was before one of the judges who were new to preliminary hearings, a further issue had arisen, and the agent had asked for a continuation with some trepidation. According to this respondent, the judge in question had granted it with no questioning or hesitation, stating that delays could not be helped and further commenting: "that's the world we live in" (D7).
7.6 Similarly, one of our court observations (O25) covered six preliminary hearings heard during one morning, of which five were continued, by another of the 'new' judges. Three of these five continuations had previously been continued to the morning in question. As regards one, the previous judge had asked for it to be minuted that this must be the last preliminary hearing, a fact which the Advocate Depute reminded the judge of while not actually opposing a further continuation, yet the judge continued the case for two weeks without challenging defence counsel's request in any way. As regards another, both parties wished a continuation for a fortnight and the judge granted this without question, the entire hearing lasting under three minutes. Another judge commented on this sort of judicial practice in critical terms, observing that he had experience of coming in to cases where there had been five or six continuations and, in his view, these had not all been necessary (J8).
7.7 Those judges who were interviewed towards the end of the research, i.e. after the reforms had had more time to bed in, tended to emphasise that they would not schedule a trial where they were not convinced the case would be ready. Sometimes this would leave them with no option but to continue a case to a further preliminary hearing. One judge, for example, said he had been criticised at the beginning because he had appointed trial diets in cases that were not 100% ready but he did not do this now (J6). Similarly, another said that in the training he had been given, "the one thing" that was emphasised was that judges should not let cases go to trial before they were ready. As a consequence, preliminary hearings sometimes have to be continued, although he stressed that proactive judges can reduce this possibility (J8). Another judge pointed out that, in practice, it is very hard to refuse a continuation if, after appropriate judicial inquiries, it transpires that there is a genuine reason of some sort. In such situations, what one had to do was to see what could be done about the problem, rather than just leaving the parties to their own devices in which case the problem was likely to reappear at the next preliminary hearing (J7).
7.8 Another respondent observed that the increasing number of continued preliminary hearings was a result of practitioners becoming used to the new procedures: "the fear factor has gone". Thus, counsel are no longer afraid to ask for a continuation if necessary, because it is better to do that than postpone the problem to a trial "where you have a room full of witnesses to deal with". Initially, this respondent argued, some complicated cases were being scheduled for trial when they were not ready because of a fear that judges would take a "hard line" (D7).
7.9 An Advocate Depute thought that, in cases involving sexual offences, applications by the defence under section 275 to raise the previous sexual history of the victim posed a particular problem in terms of requiring a further preliminary hearing to address the arguments. The problem was exacerbated because, in his view, (a) the legislation is badly drafted and (b) the defence nearly always make section 275 applications out of fear of Anderson (P2). One judge commented that the drafting of section 275 applications by the defence is often very poor (J8). On the other hand, it was agreed by most respondents that preliminary hearings were particularly useful for dealing with these applications, or disputes concerning the admissibility of evidence, because this avoids having to hold a 'trial within a trial', with the consequent inconvenience to jurors and witnesses.
7.10 Two judges referred to what they perceived as an increase in clients being prepared to sack counsel as another reason for continuations, in order to allow a new counsel to be instructed. This is a particular problem where the offence is a sexual one because there is an absolute prohibition on accused conducting their own defence 89 and so such a sacking necessarily means putting off the trial (J4, J5). Members of the research team observed at least a couple of examples of this (O17, O27).
The Importance of the Court Minutes
7.11 There was some judicial concern about the variable quality of the minutes of preliminary hearings, sometimes resulting in difficulties for the judge who had to pick the case up after a continuation. One judge remarked that he read the minutes from any previous preliminary hearings dealt with by other judges, but that all this demonstrated was the different practices of clerks in recording proceedings rather than demonstrating consistency or disparity of approach on the part of judges (J5). Sometimes, the paucity of the information made it difficult to establish exactly what the situation was as regards progressing the case. A clerk pointed out that the minute was only as useful as the judge enabled it to be; if a judge did not deal with all the issues or ask sufficiently detailed questions, this would be reflected in the minute (C5). Another judge confirmed that the minutes were vital because it allowed one to focus on the problems and, if either party had undertaken to do something at the previous hearing, one had a record and could refuse to allow a party to "go back on it" (J7). A prosecutor also noted that defence agents sometimes tried to "back-track" on something they had said at a previous hearing but judges would not allow adjournments on this basis (P2).
7.12 One of the judges referred to above observed that good minutes were also useful at trial because one knows what has been dealt with, particularly in relation to applications under section 275 to question victims in cases involving sexual offences about their previous sexual history (J7). We certainly observed one continued preliminary hearing where there was considerable confusion caused by what had been decided by the judge about a section 275 application at the previous hearing. In the event, the present judge adjourned the case until later in the day and asked the parties to find and listen to the tape of the earlier hearing in the meantime. This proved successful and the matter was satisfactory resolved (O20).
7.13 Another judge emphasised the importance of the minutes, pointing out that, after a couple of continuations, the original information on the progress of the case from both parties, required under the Practice Direction, 90 is out-dated. The judge is then entirely dependent on the minutes in order to understand what has held up progress. In his view, the recent re-grading of the position of the clerks has unfortunately led to considerable variation in the quality of the minutes and he regarded this as "a major problem, possibly undermining the whole system". This judge thought that the decision, which was effectively one of down-grading the role, should be re-visited, although another, or additional, strategy might be to require the parties to submit an update on progress a couple of days prior to a continued preliminary hearing, in order to allow judges to probe more efficiently into the state of the case. On the other hand, a clerk observed that variations in the minutes also reflected the approach of judges at preliminary hearings and the degree of thoroughness with which they had gone through the relevant issues (C5). The judge referred to immediately above added that even where the minutes were good, it is useful for the judge to know in advance what has happened since the last preliminary hearing. This update need not be a fresh 'Schedule 1 and 2' (the forms submitted by each party respectively to the initial preliminary hearing) but simply a short written report from the parties (J8).
Scheduling Continued Preliminary Hearings
7.14 The consensus was that continued preliminary hearings are causing considerable problems for clerks who are responsible for court timetables. Quite simply, there is too little spare capacity to slot these in easily. One clerk noted that, while the plan had been to schedule five preliminary hearings for a day, sometimes seven were being heard in Glasgow and, on one occasion, this had risen to 11. Opinion varied as to whether the main problem of capacity was lack of judges or lack of suitable courtrooms (D2, D7, C3). Several respondents suggested that a permanent High Court should be placed in either Airdrie or Hamilton or in Paisley in order to relieve the pressure on Glasgow. It was observed that sometimes a continued preliminary hearing needed an entire morning dedicated to it, for instance a section 275 application, and this exacerbated the pressure on court time.
7.15 There appeared to be some confusion over the use of sections 75A(5) and (7) which allow, with the consent of both parties, an 'administrative' hearing in advance of any preliminary hearing or trial diet to adjourn that hearing or diet to another date without the accused or counsel being present. One respondent indicated that in Aberdeen this power was used quite frequently in order to reschedule preliminary hearings in advance and thought it was "magic" (P7), but another respondent who practiced primarily at Glasgow High Court had the impression that this procedure was not often used and that judges were not keen on it (D2). Another respondent, who practices primarily in Edinburgh, thought it useful but noted that it was sometimes better actually to go to a full preliminary hearing because some cases "need judicial management" (D7). It was also observed that, occasionally, it is only a day or two before the preliminary hearing that counsel realises that the case is not going to be ready, by which time it is too late to attempt to move it administratively (D2).
Conclusion
7.16 The number of preliminary hearings that are continued (to another preliminary hearing) appears to be growing steadily and to be causing serious scheduling difficulties in the High Court. In the view of respondents 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. One key 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 important factor mentioned 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 preliminary hearings.
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