Footnotes
1. See paragraph 3.7 below.
2. See paragraphs 3.10 and 3.11 below.
3. See paragraph 2.29 below.
4. Crime and Punishment (Scotland) Act 1997 (Commencement No. 6 and Savings) Order 2004 ( SSI 2004 No. 176).
5. The amended sentence discounting provisions in section 196 of the 1995 Act came into force in October 2004 but practically speaking these made little difference given the decision in Du Plooy (see paragraph 2.29 below).
6. See paragraph 2.3 above.
7. Although Crown Counsel have been described in statute as 'Advocates Depute', Crown Office has traditionally referred to them as 'Advocate Deputes', which is the title we use throughout this report.
8. These 'time-bar' provisions are contained in s65 of the 1995 Act, as amended.
9. The 1995 Act, as amended, s72.
10. Some of this material is drawn from the note "Preliminary hearings - court programming proposals", dated 29 September 2004. At the time of writing, it was available online at: http://www.scotcourts.gov.uk/bonomy/docs/programming29april04.pdf.
11. See the 1995 Act (before amendment by the 2004 Act), s66(6).
12. See the 1995 Act (before amendment by the 2004 Act), s67(5).
13. See the 1995 Act (as amended), s67(5).
14. See the note on Du Plooy v HM Advocate, below, paragraph 2.29.
15. The 2004 Act, sch 1 paragraph 26.
16. See the 1995 Act, as amended, ss274-275B.
17. 1996 JC 29.
18. Grant v HM Advocate 2006 SLT 563, per the Lord Justice-Clerk (Gill) at [25].
19. Strawhorn v McLeod 1987 SCCR 413.
20. See, e.g., Khaliq v HM Advocate 1984 SCCR 212.
21. This came into force in October 2004, some 6 months before the provisions on preliminary hearings.
22. 2005 JC 1.
23. per the Lord Justice-General (Cullen) at [1].
24. That is by the end of March 2005 for the pre-reform sample or the end of March 2006 for the post-reform sample. A case is defined as concluded when the accused is found guilty or not guilty; pleads guilty (and that plea is accepted by the Crown); has a warrant put out for his or her apprehension; or the case is deserted.
25. SPSS is a statistical analysis software package for social scientists.
26. The size of the discount should, however, be recorded in the minute.
27. The term "High Court manager" refers to a procurator fiscal with responsibility for managing High Court criminal business.
28. As a result, four interviews were undertaken with representatives of victim support organisations: see paragraph 3.16 above.
29. Exceptionally, the Lord Justice-General consented to allow access to jurors from recently completed High Court sittings.
30. The minor differences between the two versions of the questionnaire are not relevant for the purposes of the comparative analysis presented in chapter 9.
31. A case is defined as concluded when the accused is found guilty or not guilty; pleads guilty and his plea is accepted by the Crown; has a warrant put out for his or her apprehension; or the case is deserted.
32. The slightly lower post-reform completion rate may be partly caused by some of the simpler cases being moved to the sheriff courts - see paragraph 4.6 below.
33. Culpable homicide or causing death by dangerous driving.
34. The practice in the High Court is that a warrant signals the conclusion of a case and a fresh indictment is raised when the accused is apprehended. This is then registered as a fresh case with a new reference number. The timescale of the research meant that it was not possible to follow up those cases where a warrant was granted to see what happened if/when the accused was apprehended.
35. 2005 JC 1. See paragraph 2.29 above.
36. The appeal court in Du Plooy did not set out rigid rules for the size of the discount (and nor has any subsequent case), but did state that, broadly speaking, the earlier a guilty plea is tendered, the greater the discount will be (up to a normal maximum discount of one third).
37. A factor suggested by a number of those interviewed - see paragraph 6.28 below.
38. See paragraph 6.28 below.
39. For a full explanation of these different types of hearing, see chapter 2.
40. It should be noted that while these figures are valid for comparative purposes, they are under-estimates, focusing as they do only on cases that concluded within the 12 month sample period (see chapter 3).
41. In the narrow sense i.e. the new preliminary hearing introduced by the 2004 Act.
42. For the pre-reform sample, this comprises all s275 and s72 hearings. For the post-reform sample, this comprises all preliminary hearings.
43. For the pre-reform sample, this comprises all s275 and s72 hearings PLUS all s80 applications for a postponement of trial diet made in advance of the trial. For the post-reform sample, this simply comprises all preliminary hearings. It does not include s75A applications for an alteration of the date of the preliminary hearing or the trial diet, as these do not always require a court hearing to take place. Adding in the figures for s75A applications makes little difference to the figures anyway. It would result in an average figure of 2.14 court hearings per case in the post-reform sample instead of the 2.03 shown in table 4.8.
44. Once again, s75A applications have been excluded from this analysis as they do not always require a court hearing to take place.
45. Case deserted (including a plea of not guilty being accepted by the Crown), warrant granted, plea in bar of trial upheld.
46. See paragraphs 4.44-4.56.
47. It should be noted that not all trials that commenced ran to conclusion - a minority in each sample (35 in the pre-reform sample and 25 in the post-reform sample) were deserted part way through or terminated when the accused tendered a guilty plea which was accepted by the Crown. Trials that commenced but did not conclude have been left out of this analysis as, by definition, they tended to be shorter than average and would have distorted the figures in table 4.14.
48. This may well be due to the increase in sheriffs' sentencing powers that is likely to have resulted in a transfer of business from the High Court to the sheriff courts (see chapter 10). (It should be remembered that many of more the complex cases were excluded from both samples because of the time-table within which the research had to be conducted, although this does not affect the comparability of the two samples: see paragraph 3.7.)
49. This was an explanation suggested by a number of participants in the interviews: see paragraph 6.37.
50. As chapter 3 explained, it was not possible to analyse the reasons for continued preliminary hearings, as this information was not recorded on HCCMS.
51. Some indication that continued preliminary hearings might be becoming more prevalent can be drawn from our analysis. If one examines only those cases indicted in the first six months of the post-reform sample (to minimise the problem of cases missing from the dataset because they have not concluded), 39.5% of cases indicted from April to June 2005 had more than one preliminary hearing. This had increased to 46.6% of cases indicted from July to September 2006.
52. The figure of 573 is greater than the sum of the individual n totals because some offences which only very occasionally formed the main charge in indictments have been excluded from the table except in the "all cases" figure.
53. In the data supplied to the researchers, the identity of specific judges was concealed by using a code number for each individual judge. Thus it was possible to tell whether the same judge presided over two different preliminary hearings, but not the actual identity of that judge.
54. A point made by a number of those interviewed: see paragraph 7.11.
55. Data was not available on defence witnesses.
56. Plus any added by s67 notice, a potential fourth measure, although not one on which data was systematically available (see chapter 3).
57. Both of these factors were mentioned in the interviews with criminal justice personnel: see paragraphs 6.3 and 6.37 below.
58. See paragraph 4.40 above.
59. This refers to the longest period of time an accused can be held in custody before trial. This period can be extended by the court. See chapter 2 where the provisions on time bar are explained in more detail.
60. 64% compared to 69%: see table 4.1.
61. This figure refers to the total extension of the time bar e.g. where the time bar was extended three times, once for 14 days, once for seven days and again for seven days, the total length of the extension would be 28 days. It makes more sense to look at the length of the total extension in each case, rather than the length of each individual extension.
62. See paragraph 2.9 above.
63. 1996 JC 29. See paragraph 2.25 above.
64. See paragraph 2.3 above.
65. The same problem was identified as arising in the sheriff courts some years ago: see Leverick and Duff (2001).
66. Again, the same phenomenon was noted in the sheriff courts some years ago: see Leverick and Duff (2001) .
67. 1996 JC 29. See paragraph 2.25 above.
68. 2005 JC 1. See paragraph 2.29 above.
69. This perception is borne out by our statistical analysis: see paragraph 4.25 above.
70. See paragraph 2.29 above.
71. Under the Criminal Legal Aid (Scotland) (Fees) Amendment (No. 3) Regulations 2005, Schedule 2 Part 1.
72. For evidence of the increase in s76 pleas, see tables 4.4 and 4.6 above.
73. This was issued by the Lord Justice-General prior to the reforms and provides detailed guidelines for the conduct of preliminary hearings.
74. See paragraph 5.14 above.
75. See paragraph 2.13 above.
76. See paragraph 2.13 above.
77. This perception was borne out by our statistical data: see paragraph 4.56 above.
78. For the response of SLAB to this point, see paragraph 6.44.
79. Actually, this perception is not quite accurate. The statistical analysis shows that what has increased is early guilty pleas; the proportion of accused who plead guilty was roughly the same in the pre-reform and post-reform sample: see paragraph 4.16 above.
80. In fact there are only slightly fewer trials but there are far fewer trial diets because accused tend to plead guilty earlier: see paragraph 4.16 above.
81. R v Goodyear [2005] EWCA Crim 888.
82. Our statistical analysis suggests that while the actual figure may not be quite as high as this, there is little difference between the pre- and post-reform periods: see paragraphs 4.68-4.80 above.
83. See paragraph 2.9 above.
84. The 1995 Act, s258(4A).
85. See paragraph 6.10 above.
86. SLAB confirmed that the system had been 'tweaked' slightly since it first came into place.
87. SLAB advised us that the fees regulations specifically state that other work can be claimed in another case (not the same case). Provided counsel remains available at court in case the trial proceeds that day, chargeable work in respect of other cases may be undertaken on that day, other than conducting a hearing or trial.
88. This is confirmed by the statistical analysis: see table 4.19 above.
89. See s288C of the 1995 Act.
90. See paragraph 6.11.
91. Those who regularly appear as witnesses as part of their job (as opposed to civilian witnesses).
92. Although see table 8.3 below, which suggests that the proportion has actually stayed around the same between the two samples.
93. This figure is not entirely consistent with that in table 8.1, where 47.3% of respondents in the post-reform sample indicated that they were called to give evidence. The only real explanation for this is respondent error, with respondents perhaps not reading question 1 carefully enough to realise that one of the events they were being asked about was whether or not they gave evidence. The difference between the two figures is not sufficiently large to make any real difference to the results.
94. On this, see also table 8.4 above.
95. On this, see also table 8.1 above.
96. See table 8.3 above.
97. For example, at question 5 (which asked respondents if they had experienced various specific events on the most recent occasion they attended court) one respondent drew a line from the tick box answer indicating they were not told early enough that there was no need to attend court and, at the end of it, wrote: "Rarely happens. I attend court frequently and <5% of cases do I get told I've been cancelled." Another respondent wrote: "I have attended court on numerous occasions but have never given evidence." Clearly these respondents are not referring to a single post-reform experience of attending court but rather to their experience in general.
98. The pre-reform questionnaire can be found in Samuel and Clark (2003), pp. 95-98.
99. This is demonstrated more reliably by the data which the researchers hold on overall trial lengths (above, paragraph 4.38).
100. A high percentage (48%) of respondents did not answer this question. It should also be noted that although theoretically only those who said they had experienced inconvenience should have answered this question, this was not the case in practice.
101. Appendix 4, Table 1.
102. Appendix 4, Table 2.
103. Appendix 4, Tables 5 to 7.
104. 2005 JC 1. See paragraph 2.29 above.
105. Questions varied depending on whether the interview was conducted prior to or following the reforms and the role of the interviewee. This particular discussion guide was used for the interviews undertaken with High Court judges in the period after the reforms. A copy of the discussion guide was normally given to the interviewee in advance of the interview.
106. Representing a decrease of 12.1%.
107. Representing a further decrease of 8.3%.
108. Representing an increase of 9.9%.
109. Representing a further increase of 4.2%.
110. By virtue of s27(9) of the 1995 Act, sentences of over three years could - prior to the sentencing powers of sheriffs in solemn procedure being generally increased to five years - be given in the sheriff courts where the substantive offence was aggravated by having been committed while the accused was on bail.
111. Percentage of total sentences for that month.
112. Total for 11 months.
113. Percentage over the 11 month period.
114. See www.scottish.parliament.uk/business/bills/10-criminalProcedure/b10s2-introd-en.pdf.
115. 2005-06 is the latest full year for which figures are available.
116. Silent Witnesses: Police Witnesses Attending Court, Lothian & Borders Police, 2004. See http://www.lbp.police.uk/publications/Silent%20Witnesses.pdf.
117. 'Staff costs' include employers' pension and National Insurance contributions.
118. The costs of provisions in the Financial Memorandum relating to remote monitoring of compliance with bail conditions will be taken into consideration during the evaluation of the remote monitoring pilots.
119. 'Staff costs' include employers' pension and National Insurance contributions.
120. 2005-06 is the latest full year for which figures are available.