1 | High Court practice and procedure should be revised with the objective of bringing more order and a greater degree of certainty to the conduct of proceedings. The following recommendations are designed to achieve that objective. Some simply require alterations to be made to current practice, while others require legislation. | (Paras.5.36 to 5.40) |
2 | (a) A working party consisting of representatives of the Scottish Executive Justice Department, the Crown, the Association of Chief Police Officers Scotland, and professional bodies representing criminal practitioners should be established to review:(i) how witness statements are taken; and(ii) in what circumstances they might be disclosed to the defence. | (Para.7.5) |
(b) The Crown should routinely issue a provisional list of witnesses to the defence shortly after completion of the initiating petition procedure in the Sheriff Court. | (Para. 7.6) |
(c) The Crown should also provide to the defence information about material developments in the investigation of the case as they occur, and let them have access to all relevant evidence as it becomes available. | (Para 7.6) |
(d) Along with the courtesy copy of the indictment the defence solicitor should receive a copy of all documentary productions which he has not already received. | (Para. 7.6) |
(e) Any other evidence, coming into the hands of the Crown subsequently, should be intimated to the defence immediately. | (Para.7.6) |
(f) The Scottish Executive and Lord Advocate should make resources available to implement the recommendations made by the Crown Office Quality and Practice Review Unit to improve the precognition process. | (Para. 5.16) |
3 | (a) There should be a procedural diet, known as the "preliminary diet", for the judicial management of cases at a stage between service of the indictment and a trial. That diet should be in the High Court. | (Para. 6.21- 6.26 and 8.1 - 8.2) |
(b) The preliminary diet should be mandatory in all cases. | (Paras. 6.23 - 6.25) |
(c) Cases should be indicted to the preliminary diet. The main aim of that diet would be to identify and dispose of those cases in which a trial is not necessary, and to assign either a fixed date, or a fairly accurate approximate date, for trial where that is necessary | (Para. 8.3) |
(d) Preliminary diets might be dispensed with, but only where parties agree that a trial is necessary and satisfy the court on the issues that require to be addressed at the preliminary diet in advance of that diet. | (Para. 6.25) |
4. | (a) Section 196(1) of the Criminal Procedure (Scotland) Act 1995 should be amended to make it clear that pleas of guilty tendered at an early stage in the proceedings will generally result in a lesser sentence, and that pleas of guilty tendered at the trial diet generally will not. | (Para. 7.21) |
(b) The Court should have power to impose a custodial sentence in which part of the custodial period is suspended. | (Para.7.22) |
5 | (a) The normal rule should be that intimation of all material to be used by the Crown at the trial should be given to the defence when the indictment is served. | (Para.7.7) |
(b) There should be a date, a number of days prior to the preliminary diet, after which it should not be open to the Crown to intimate or lodge additional witnesses or productions, except on cause shown to the satisfaction of the court. | (Para. 7.7) |
6 | (a) The Crown should identify all evidence, which they consider is unlikely to be disputed, and intimate that to the defence in a notice of uncontroversial evidence not later than 14 days prior to the preliminary diet. | (Para. 8.8) |
(b) Any challenge of the notice by the defence should be made not less than 7 days thereafter, and should give reasons supporting the challenge. | (Para.8.8 and 8.9) |
(c) The defence should be required, not less than 7 days before the preliminary diet, to prepare a note discussing the line of defence and identifying matters which require attention for the purposes of the trial. That note would form the basis for final defence preparation for the trial, would deal with any notice of uncontroversial evidence and the response thereto, and should also identify evidence which the defence consider to be uncontroversial. | (Para. 8.10) |
(d) Any evidence identified by the defence as unlikely to be disputed at the trial should be intimated to the Crown in a notice of uncontroversial evidence, not less than 7 days before the preliminary diet. | (Para. 8.10) |
(e) The parties should be required to meet and communicate in the week before the preliminary diet, to discuss issues which require resolution if the case is to be disposed of, or a trial diet assigned, at the preliminary diet. The outcome of the meeting should be recorded and a record thereof produced to the court. | (Para.8.11) |
7 | (a) To enable the judge presiding at the preliminary diet to appoint appropriate further procedure and ensure the orderly conduct of the proceedings, the parties should be obliged to explain to the court, as they are at present when there is an optional preliminary diet, the state of preparation of their cases and the extent to which they have tried to agree evidence. | (Para. 8.4) |
(b) The parties should also be required to state to the court what further procedure is necessary in the case and, if there is to be a trial, which witnesses are required to attend court. The presiding judge should determine any unresolved issue over the evidence that may be regarded as uncontroversial. | (Paras.8.4, 8.5 and 8.10) |
8 | (a) The preliminary diet should be the point from which periods of time, for example, for the giving of notice of a special defence, should be calculated, and the diet at which generally, but not exclusively, all preliminary and procedural issues should be dealt with. Existing procedures by minute and petition should continue to be available to enable matters to be raised at any convenient stage, but the preliminary diet should in general be the latest stage for dealing with preliminary and procedural matters. | (Para. 8.14) |
(b) The time limits for making applications to be considered at the preliminary diet should be rationalised to require all to be made no later than seven days, or whatever shorter period is considered appropriate, before the preliminary diet. | (Para. 8.14) |
(c) There should be added to the list of issues which may be dealt with at the preliminary diet "any question relating to the admissibility of evidence which could in the opinion of the court be resolved with advantage before the trial". | (Paras. 8.15 - 8.20) |
(d) Parties should require leave of the presiding judge to appeal against any decision made at a preliminary diet. | (Para. 8.21) |
9 | (a) Preliminary diets should be heard initially only in Edinburgh and Glasgow. Their operation should be monitored, and consideration should in due course be given to whether they should also be held in Aberdeen. | (Para.11.3) |
(b) To oversee the introduction of the preliminary diets, a senior judge should be appointed as presiding judge in Glasgow and a similar appointment should be made in Edinburgh, in both cases for a minimum period of 6 months. | (Para.11.9) |
10 | (a) Preliminary diets could be heard on any day of the week and should be held at times which will accommodate the commitment of parties' representatives to ongoing business. A working group, comprising representatives of the Crown, criminal practitioners, court staff, and judges should be formed to consider the best arrangements. | (Para. 11.10) |
(b) An electronic diary system should be introduced to ensure that the clerk in the preliminary diet court would have full details of all dates available. | (Para. 11.16) |
(c) Those responsible for training the various personnel involved in preliminary diets should organise and implement programmes of training prior to the introduction of the scheme. | (Para.11.21) |
11 | (a) The 110-day rule should be modified to require the preliminary diet to take place within 110 days, and the trial to commence within 140 days, in cases where the accused is in custody. | (Para. 9.8) |
(b) There should be a new time limit requiring cases, where the accused is not in custody, to be indicted to a preliminary diet within 9 months of the first appearance of the accused on petition. | (Para. 9.14) |
(c) The grounds on which time limits may be extended by the court should be rationalised. The only ground for extending a time limit should be "cause shown". | (Para. 9.17) |
(d) Applications to extend time limits in Sheriff Court cases should be heard by the sheriff. | (Para. 9.20) |
(e) The accused should be entitled to apply to the court to advance the date of the preliminary diet in order to obtain an early trial diet. | (Para. 9.11) |
(f) Where a case cannot be dealt with within the custody time limits, the accused should have a right to apply for bail. | (Para.9.10) |
(g) The sanction for detaining an accused in custody beyond the custody time limit should be altered. The accused should no longer be "forever free from all question of process", but should be entitled to apply for, and be released on, bail. | (Para.9.21) |
12. | (a) The High Court should continue to sit throughout Scotland. | (Para. 10.4) |
(b) There should be a court room in Aberdeen for the exclusive use of the High Court. The property already available for the provision of such a court should be converted as soon as possible. | (Paras. 10.8 and 10.9) |
(c) The High Court should sit regularly in Dundee. The Scottish Court Service should identify suitable accommodation to convert to court accommodation to restore Dundee to its place in the High Court calendar. | (Para. 10.11 and 10.13) |
(d) The scheme to provide a suitable court room at Perth for occasional use by the High Court should be implemented. | (Para. 10.12) |
(e) Provision should be made for the transfer of a trial diet, and of the jurors cited thereto, administratively from one court to another convenient court, with the agreement of parties and without any formal calling or attendance at court. | (Para. 10.15 and 10.16) |
13 | (a) A provision should be introduced to enable parties to apply to the Court to accelerate a trial diet in order to postpone it, if it becomes apparent that the trial cannot proceed. | (Para.9.11) |
(b) Where an accused fails to appear for trial, the Court should have power to grant a warrant to arrest the accused and to adjourn the case to a further preliminary or trial diet within two months. | (Para.11.18) |
(c) The court should have power to order a trial to proceed in the absence of the accused in appropriate cases. | (Para. 11.20) |
14. | (a) Full-time clerks of court should be allocated to each courtroom in the High Court in Glasgow. | (Para. 12.5) |
(b) The Faculty of Advocates should appoint an administrative assistant in the High Court in Glasgow to liaise with court staff in programming and organising the commitments of counsel. | (Para. 12.12) |
15 | (a) Judges should generally sit on criminal business for minimum periods of four weeks, and for longer periods of varying lengths, where that will help to introduce a greater degree of certainty into the programming of business. | (Para. 12.15) |
(b) There should be added to the pool of temporary judges those who are able to make an open-ended commitment, or a firm commitment for a lengthy period, to the work of the High Court at first instance, such as experienced sheriffs, who might be replaced in their Sheriff Courts by part-time sheriffs. | (Para.12.18) |
16 | (a) The Scottish Executive should now implement section 13(1) of the Crime and Punishment (Scotland) Act 1997 to increase the sentencing power of the sheriff to five years custody. | (Para. 13.17) |
(b) The Scottish Court Service should give careful consideration to how the transfer of business from the High Court to the Sheriff Court would be accommodated. | (Para. 13.19) |
17. | (a) The new procedural arrangements should be operated in a way which encourages counsel and solicitor advocates, who will present cases in court, to commit themselves to these cases throughout. | (Para.14.11) |
(b) The rates payable to lawyers for criminal legal aid work should be the subject of general review in the context of determining rates for the additional and different elements of work proposed. The Scottish Executive and the Faculty of Advocates should enter into early negotiations about the introduction of the graduated fees scheme proposed by the Faculty of Advocates. The prospects of achieving the primary objective of injecting greater certainty into High Court proceedings would be increased by the inclusion in any revised criminal legal aid payment scheme of payments designed to encourage those instructed to commit themselves to cases and to ensure that they are properly remunerated whether the case proceeds to trial or is disposed of prior to the trial. | (Paras.14.9 - 14.15) |
(c) If the sentencing power of the sheriff is increased, the Scottish Legal Aid Board should review their policies in relation to granting sanction for the employment of counsel and solicitor advocates in cases in the Sheriff Court. | (Para. 14.16) |
(d) In assigning a trial diet, the court should have regard to the existing commitments of counsel and solicitor advocates with a view to accommodating their commitment to the case. | (Para. 14.11) |
18 | (a) When a case is adjourned for sentence, every effort should be made to adjourn it to a date when the judge will be in the same court. | (Para. 15.8) |
(b) To avoid unproductive callings of cases adjourned for sentence, it should be possible to adjourn routinely for four weeks, and for up to eight weeks on cause shown, whether the accused is in custody or not. | (Para. 15.7) |
(c) If adjourning a case to Edinburgh is unavoidable, it should, if possible, be adjourned to call on a Monday. | (Para. 15.8) |
19 | (a) The attendance of accused at court for any formal continuation of a case, or where personal attendance will serve no useful purpose in the preliminary stages of the case, should be eliminated. The elimination of unnecessary attendance could be assisted by the provision of television links between courts and prisons. | (Paras. 15.5 and 15.6) |
(b) When responsibility for the movement of prisoners to and from court, and for their security at court, is transferred to an outside agency, national arrangements should be put in place to ensure the arrival of accused at court a minimum of forty-five minutes before the court is due to sit and that accused are not required to travel unreasonable distances on the day of their appearance. | (Para.15.11) |
(c) Accused who are not in custody should be required to attend court forty-five minutes before their case is due to start and, at the close of each day's proceedings during a trial, to remain within the court building for forty-five minutes after conclusion of the day's proceedings. At each location for the High Court sits a room should be designated as the room to which the accused should report for these periods. | (Paras. 15.14 and 15.16) |
20 | (a) Action should be taken to rationalise and improve the arrangements for a citation of witnesses. The COPFS, in association with ACPOS should establish a working party with a remit to report on a national system for the citation of witnesses and the establishment of a body responsible for the citation of witnesses, possibly answerable directly to, or a branch of, the COPFS. | (Para. 15.23 and 15.28) |
(b) The circumstances in which a warrant to apprehend a reluctant witness might be pronounced, and the procedure which should follow upon his apprehension, should be regulated by statute. Consideration should be given to providing the court with the additional options of releasing the witness on bail and of tagging and monitoring the movements of the witness. | (Paras.15.35 and 15.36) |
(c) There should be a telephone answering service for witnesses in the public service. They should be obliged to contact the service for updated instructions about their attendance at court each evening, once the trial has started. | (Para. 15.40) |
21 | (a) Arrangements for the citation, excusal and attendance of jurors should be reviewed with a view to eliminating the unnecessary attendance of potential jurors at court, making their commitment to jury service clearer, and ensuring that the widest possible cross section of the public serve as jurors. | (Paras.15.46 to 15.50) |
(b) During a trial the jury should be last to take their place in court and first to leave. | (Para. 15.50) |
(c) The standard court day during trial proceedings should be from 10am until 1pm and 2pm until 4.30pm, subject to modification by the trial judge whenever appropriate. | (Para. 15.51) |
22 | (a) Witnesses at court, awaiting the call to give evidence, should be informed hourly of the progress of the case. | (Para. 16.7) |
(b) At each location where the High Court sits there should be accommodation for the private use of victims, and the next of kin of deceased victims, in the event that the proceedings become too stressful. The feasibility of providing a CCTV monitor showing proceedings within the court room should be explored. | (Para. 16.9) |
23 | (a) The Court should be given a general power to determine whether, in the particular circumstances of any case, special arrangements, not otherwise provided for by statutory provision, are necessary to take the evidence of a particular witness. | (Para. 16.12) |
(b) There should be available to the trial judge the papers relating to any application made for special arrangements to take the evidence of a vulnerable witness, so that the trial judge is fully informed about the sensitivities that apply to ensure that nothing inappropriate is done inadvertently. | (Para.16.13) |
24 | (a) Schedule 6 of the Scotland Act 1998 should be amended to make it clear that acts, or failures to act, by the Lord Advocate as prosecutor, and anyone acting on his authority or on his behalf as prosecutor, are excluded from the definition of a "devolution issue". | (Para. 17.14) |
25 | (a) The Crown should give consideration to using the procedure, which permits reliance on the evidence of one forensic pathologist, in appropriate cases. | (Para.18.3) |
(b) The Crown should give consideration to using the procedure which permits reliance on certificates to prove matters relating to the analysis of drugs. | (Para. 18.4) |
(c) Consideration should be given to introducing a similar provision for the evidence of forensic pathologists, so that their certificate might provide sufficient evidence of the facts relating to an autopsy. | (Para. 18.4) |
(d) Consideration should be given to amending section 281 of the Criminal Procedure (Scotland) Act 1995 to provide that, where the Crown intend to rely upon the evidence of one of two forensic scientists or pathologists, they need not specify which. | (Para. 18.5) |
26 | (a) The practice of routinely requesting pre-trial social enquiry reports should be reviewed, and consideration should be given to whether it would be a better use of resources to put arrangements in place to expedite the preparation of reports post-trial. | (Para. 18.7) |
(b) When requesting a social enquiry report, the court should advise the reporting social worker of the name and address of the accused's solicitor, to whom a copy of the report should be sent direct. | (Para. 18.8) |
27 | (a) In order to monitor the effectiveness and efficiency of any new procedure introduced, a robust management information system should be installed in Justiciary Office. | (Para. 19.3) |