Chapter 2: Background
2.1 The purpose of this chapter is to provide a brief explanation of the way in which High Court procedure worked before the reforms and the practical changes that have resulted from the new regime. Additionally, it is useful at the outset to provide an account of the statutory and common law backdrop against which the reforms have played out. Finally, this chapter also serves as a type of glossary of the terms commonly used by practitioners when talking about High Court procedure that should prove useful in understanding chapters 5, 6 and 7, which report the findings of the programme of interviews undertaken with criminal justice personnel.
The Background to the Reforms
2.2 In December 2001, Lord Bonomy was appointed to carry out a review of High Court practice and procedure with the following remit:
"To review the arrangements for High Court business at first instance in the light of the increasing demands made on the Court; to review the practices of the Court and those serving the Court and the rules of criminal procedure as they apply to the High Court; and to make recommendations with a view to making better use of Court resources in promoting the interests of justice." (Bonomy 2002, paragraph 1.2)
2.3 Lord Bonomy's review came against a background of a significant increase in business in the High Court, with an increase of 23% in new indictments registered between 1995 and 2001 (Bonomy 2002, paragraph 4.3). This increase in business was accompanied by a phenomenon referred to as the 'churning of cases'. That is, cases were regularly listed for trial but the trial did not go ahead and the case was instead listed for a future trial date, a process that might recur a number of times before the case was finally disposed of. In 2001, 33% of cases involved at least one adjournment and only around 14% of cases actually went to trial at the sitting to which they were first indicted (Bonomy 2002, paragraphs 4.4 and 4.14).
2.4 This phenomenon resulted in a waste of resources and inconvenience to victims and witnesses who might have attended court unnecessarily. It might often have been clear in advance that the trial could not go ahead during the sitting, and victims and witnesses informed near the time that they need not attend, but in many cases this would only have alleviated, rather than removed, the inconvenience and expense caused.
2.5 Lord Bonomy's review made a number of recommendations to improve the efficiency of High Court procedure (set out in full in Bonomy 2002, pp. 116-124). The four key recommendations - accepted by the Scottish Executive in a subsequent White Paper (Scottish Executive, 2003) - were as follows:
- Mandatory "preliminary diets", for judicial management of cases, between the service of the indictment and the trial. This recommendation was given effect by the 2004 Act. Such diets are referred to in the 1995 Act (as amended by the 2004 Act) as "preliminary hearings".
- Amendments to section 196(1) of the 1995 Act to strengthen the practice of 'discounting' sentences for pleas of guilty, particularly early pleas. This recommendation was given effect by the 2004 Act, but was preceded in October 2003 by the decision of the High Court in Du Plooy v HM Advocate which gave clear approval to a more explicit scheme of sentence discounting than had earlier been the case. 3
- Amending the 110-day rule - which required that, where a person was remanded in custody pending trial, their trial should commence within 110 days - to a 140-day rule in the High Court. This recommendation was given effect by the 2004 Act.
- Implementing section 13(1) of the Crime and Punishment (Scotland) Act 1997, which would increase the sentencing power of the sheriff to five years' imprisonment, allowing some business to be dealt with in the sheriff court rather than in the High Court. This recommendation was given effect by statutory instrument, 4 which brought section 13(1) into force with effect from 1 May 2004.
2.6 It should be noted that - if Du Plooy is treated as, in a practical sense, having given effect to Lord Bonomy's recommendations on sentence discounting - this means that the key recommendations came into effect at different times, as follows:
- October 2003: decision in Du Plooy v HM Advocate handed down. 5
- May 2004: increased sentencing powers for the sheriff court came into force.
- April 2005: the system of mandatory preliminary hearings came into force, along with the extension to the 110-day rule.
Also relevant is a Crown Practice Statement on the Provision of Information by the Crown in High Court Cases which came into effect on 1 January 2005, whereby the Crown undertook to disclose to the defence witness statements within 28 days of the accused's first appearance in court and other documentary evidence as soon as practicable. In effect, this meant that the defence was informed of the prosecution case at an earlier stage in proceedings.
Trial Scheduling Prior to the Reforms
2.7 Prior to the reforms, the scheduling of cases was primarily the responsibility of the Crown. Cases did not automatically call in court between the service of the indictment and the trial diet, although a party to the case could request a 'preliminary diet' under section 72 of the 1995 Act to raise a matter which could be resolved prior to the trial.
2.8 In the normal course of events, the Crown allocated each case to a two week sitting of the High Court. A 'sitting list' of all cases allocated to each sitting was drawn up. Although each case was, technically, 'listed for trial', it was normally impossible for all cases listed for a particular sitting to go to trial. This was for two principal reasons: first, as regards cases that had not already been adjourned, the initial 'trial diet' was the first time the case had actually come before the High Court and, in many instances, various difficulties had to be sorted out before the case was genuinely ready for trial; second, as it was well known that many cases would need to be adjourned in order to be readied for trial, many more cases were allocated to a sitting than could be tried in order to be sure that sufficient trials would actually take place. Thus, at any given sitting, while some cases would be disposed of by way of a plea of guilty, or desertion by the prosecution, or by going ahead with the trial, many would be adjourned to a later sitting: the 'churning' phenomenon noted earlier. 6
2.9 It should also be noted that in the autumn of 2003, the Crown re-organised the way in which High Court cases were allocated to Advocate Deputes 7 for trial. Previously, it was common for the Advocate Depute responsible for a particular sitting to receive the papers for all the cases listed for that sitting - often 20 or 30 cases - very much at the last moment, perhaps on the Thursday or Friday of the week immediately before the sitting was due to commence. Thus, he or she would have very little time to prepare and determine which cases would go to trial and which cases should be adjourned. Under the new system, Advocate Deputes were allocated a 'preparation' week, immediately prior to a sitting, in order to familiarise themselves with the papers, liaise with the defence and determine whether the cases were actually ready for trial or would require to be adjourned. A few months prior to this, Advocate Deputes were designated as either 'trial' Deputes, whose function was principally to conduct the routine trials in the High Court, or 'senior' Deputes whose role was to take on the more complicated cases and provide advice on other cases where needed (for the background to these changes, see Crown Office (2002)).
Trial Scheduling after the Reforms
Preliminary hearings
2.10 Preliminary ( i.e. pre-trial) hearings were created as a result of the reforms. Where the accused is held in custody pending trial, a preliminary hearing must be commenced with 110 days of his being committed for trial. Where he is at liberty, it must be commenced within 11 months of the date of his first appearance on petition. Both of these periods can be extended by the court on "cause shown". 8 Preliminary hearings are conducted in only three courts: Aberdeen, Edinburgh, and Glasgow. In Aberdeen, where there is only one court, a sitting lasts a month, with the first week being devoted to preliminary hearings, the next two weeks to trials, and the final week to tidying up, for example, completing any trial which has over-run and conducting sentencing hearings and the odd preliminary hearing continued from the first week. In Edinburgh, where more than one court sits at the same time, batches of preliminary hearings are assigned to specific courts at specific times within sittings. Finally, in Glasgow, the volume of High Court business is such that one of the five or six courts which are always running is dedicated to preliminary hearings and does virtually nothing but these. It should be remembered that nearly all preliminary hearings for cases which will be tried in the High Court in Kilmarnock and Paisley are heard in Glasgow.
2.11 The purpose of a preliminary hearing is "to identify those cases in which a trial is necessary and to assign a trial diet" (Bonomy 2002, paragraph 8.3). The court is statutorily required to ascertain a number of matters, including: whether the accused intends to plead not guilty; which of the witnesses listed by the parties will be required to attend trial; the state of preparation of the parties; and the extent to which the parties have complied with their duty to seek agreement of evidence. 9 Preliminary hearings also provide an opportunity to resolve certain other matters prior to the trial, such as disputes over the admissibility of evidence which one party intends to lead; requests for special measures for vulnerable witnesses (under section 271 of the 1995 Act); or applications to lead evidence of the complainer's sexual history in cases involving sexual offences (under section 275 of the 1995 Act). As a development of the new Crown Office procedures described above, Advocate Deputes now receive the case papers up to two weeks in advance of preliminary hearings.
2.12 The main possible outcomes of a preliminary hearing are as follows. First, the accused may tender a plea of guilty which is accepted by the Crown. Secondly, the court may appoint a trial diet for the case. Thirdly, the court may continue the case to a further preliminary hearing if the parties' state of preparation is not sufficiently far advanced to allow a trial diet to be appointed. Fourthly, if the accused fails to attend at the preliminary hearing, a warrant for his arrest may be issued.
2.13 When preliminary hearings were first introduced, in April 2005, they were heard by a pool of eight High Court judges specifically appointed by the Lord Justice-General for this purpose, although initially only six of these participated. Towards the end of 2005, however, the pool of High Court judges who presided over preliminary hearings was increased to 13.
Categories of trial diet10
2.14 Under the new system of appointing trials, there are three categories of trial diet:
- Fixed trials. These are trials which are set down for a definite starting date and a prescribed number of days in a specific court.
- Dedicated floating trials. These are assigned to a specific court, but with a starting date which may 'float' for a prescribed number of days. This accommodates the possibility of a previous trial running for longer than has been anticipated.
- Floating trials. These are not assigned to a specific court, but are instead allocated to one of the three main regional High Court locations (Edinburgh, Glasgow and Aberdeen). A trial can 'float' for up to four days after the assigned starting date, and can be allocated for trial at any High Court location - not necessarily within the same region - during that period. If the trial does not begin within that period, the case should be adjourned to another period as a fixed trial.
Common Procedural Devices
2.15 This section outlines some of the more common procedural devices which are referred to throughout the report.
Preliminary diets (as opposed to preliminary hearings)
2.16 Prior to the reforms, it was open to any party to a case to request a "preliminary diet" under section 72 of the 1995 Act to deal with any pre-trial issue - such as a plea in bar of trial, or an objection to the admissibility of certain evidence which could be determined pre-trial. As a result of the reforms, section 72 has been replaced with general provisions governing preliminary hearings, which are mandatory in all cases.
Section 67 notices
2.17 Section 67 of the 1995 Act, along with sections 66 and 68, sets out rules relating to the provision of lists of witnesses and productions. Under the Act as it stood before the reforms, lists of witnesses and productions had to be included with the indictment, which itself had to be served on the accused not less than 29 clear days before the trial diet. 11 However, the prosecutor could apply for leave to examine any witness or put in evidence any production not included in those lists, provided that notice of the witness concerned was given to the accused not less than two clear days before the trial. 12 Subsequent to the reforms, the general rule is that the prosecutor is not permitted to call any witness or use any productions which are not included on the list attached to the indictment unless they were named on a list provided to the accused no less than seven days before the preliminary hearing. The court may waive this requirement of at least seven days notice on cause shown. 13
Section 76 pleas
2.18 Under section 76 of the 1995 Act, an accused may give notice in writing "that he intends to plead guilty and desires to have his case disposed of at once". In such a case - assuming that the Crown accepts the plea - no preliminary hearing will be necessary. Because such pleas save the greatest amount of court time and result in as little inconvenience to victims and witnesses as possible, they are likely to result in a substantial reduction in sentence in recognition of the guilty plea. 14
Section 75A and section 80 applications
2.19 Prior to the 2004 Act, it was possible - under section 80 of the 1995 Act - for a party to apply for a postponement of any trial diet before the day on which the trial was due to take place. Such applications required a court hearing.
2.20 Section 80 was repealed by the legislation implementing the reforms. 15 Now, a new section 75A makes provision for applications to postpone any diet in advance of its scheduled date, including preliminary hearings and trial diets. If all parties join in the application, the court is entitled to determine the application - which will be placed before a judge in chambers - without a hearing.
Section 271 applications
2.21 Applications can be made under section 271 of the 1995 Act requesting special measures for 'vulnerable' witnesses, for instance children or those adults with learning difficulties. In such cases, the court must consider whether special measures are required for the purpose of that witness giving evidence. Such measures may range from simply putting up a screen in court to prevent the witness from being able to see the accused, to allowing the witness to give evidence from a different location through a live television link, or to being allowed to submit a prior statement by that witness as his evidence in chief.
Section 275 applications16
2.22 Under reforms introduced by the Sexual Offences (Procedures and Evidence) (Scotland) Act 2002, where the accused is charged with a sexual offence, the accused's counsel is barred from asking questions directed to or leading evidence on the complainer's sexual history, character, or certain matters relating to his or her credibility.
2.23 Counsel may, however, apply to the court for permission to admit such evidence or ask questions on these matters. An application - which can be very detailed and time-consuming - must contain details of the evidence or questioning proposed and the reasons for the application. Prior to the reforms, section 275 applications were heard at pre-trial hearings arranged specifically for this purpose. After the reforms, section 275 applications are heard at preliminary hearings and must be lodged at least seven clear days before those hearings.
Key Cases
2.24 Two significant decisions of the High Court - Anderson and Du Plooy - have had a major impact on practice and were referred to repeatedly by interviewees. Details of these cases are set out here for reference.
Anderson v HM Advocate
2.25 In Anderson v HM Advocate, 17 decided in December 1995, the appeal court recognised what is referred to as "defective representation" as a ground of appeal against conviction. In accordance with Anderson, a failure by the accused's counsel to put his defence properly before the court can result in a conviction being quashed on appeal. However, what might be regarded as "strategic" or "tactical" decisions on the best way in which to put the accused's case are not subject to challenge in this way: this is a matter for counsel's judgment. (For further discussion, see Shiels 1997, 2000; Johnston 2003.)
2.26 The appeal court has recently stressed that an ' Anderson appeal' against conviction should not be lodged speculatively, but only where "(1) it sets out a prima facie case that on the information available to trial counsel the defence was not properly put before the court, and that in consequence there was a miscarriage of justice; (2) it specifies that allegation on all material points, and (3) there is objective support for it". 18
Du Plooy v HM Advocate and 'sentence discounting'
2.27 Prior to 1995, it was a formal rule of Scots law that an accused person should not receive a lesser sentence purely because he had saved court time by pleading guilty. 19 However, that rule may not always have been firmly applied in practice, and it was at least accepted that a lesser sentence could be imposed where the guilty plea had spared vulnerable witnesses from giving evidence. 20
2.28 The general rule was changed in 1995, when permissive legislation on sentence discounting first came into force in Scotland, initially in section 33 of the Criminal Justice (Scotland) Act 1995 and now in section 196 of the 1995 Act. For the first time, it was recognised in statute that a sentencer "may" take into account the fact and timing of a guilty plea when passing sentence for a particular offence. This provision was strengthened by the 2004 Act as a result of Lord Bonomy's recommendations. Section 196 of the 1995 Act was amended and it now stipulates that the court "shall" - rather than "may" - take into account an early guilty plea. In other words, the court must recognise this fact in passing sentence; it is not optional. As such, section 196(1) of the 1995 Act now states as follows:
(1) In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pled guilty to an offence, a court shall take into account -
(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and
(b) the circumstances in which that indication was given.
Section 196(1A) of the 1995 Act requires that the court must, in passing sentence, state whether the sentence imposed has been reduced as the result of a guilty plea, and that reasons must be given if a discount is not applied.
2.29 The amendment of the 1995 Act, however, only incorporated into statute what had already been stated in case law. In October 2003, some 12 months before the amended section 196 came into force, 21 the appeal court recognised, in the case of Du Plooy v HM Advocate,22 that "[f]or some time it has been apparent that it would be desirable for the court to take the opportunity to give guidance… as to the basis of, and scope for, an allowance in the sentencing of an accused in respect of the fact that he has pled guilty, and the form which such an allowance might take". 23 In Du Plooy, the court held that a guilty plea should result in a discount normally no greater than one-third of the sentence which would otherwise have been imposed, and that the extent of the discount should be stated by the judge in open court. The extent of the discount will depend on a number of factors, primarily the timing of the plea. Broadly speaking, the earlier a plea is tendered, the greater the discount. (For further discussion, see Leverick 2003, 2004).