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No conflict between case management and right to fair trial: Carloway

12 March 2019

The notion that judicial case management conflicts with the accused's right to a fair trial is outdated; and European human rights rulings make it imperative that each judge takes control of the cases allocated to them.

Lord Justice General Carloway made these observations in an address to the Royal Faculty of Procurators in Glasgow, in which he tackled both the issue of case management in complex trials and that of sentencing guidelines.

On case management, Lord Carloway said it had come to be realised that many cases could not be conducted fairly within the historic strict time limits in Scots criminal procedure. These were also much shorter than those permitted by Convention jurisprudence, which however also contained other rights.

"It is a significant fact that in the High Court, almost no cases proceed within the statutory time limits. There are good reasons for this too; notably the need to ensure that the defence, not the Crown, are ready to proceed to trial with its
preferred representation", he pointed out.

He went on to quote the former Lord Chief Justice, Lord Judge, who described "active, hands on, case management" before and during the trial as "an essential part of the judge's duty", and who added: "To enable the trial judge to manage the case in a way which is fair to every participant, pre-trial, the potential problems as well as the possible areas for time saving, should be canvassed.… The objective is not haste and rush, but greater efficiency and better use of limited resources by closer identification of and focus on critical rather than peripheral issues."

Lord Carloway gave particular attention to the agreement of uncontroversial evidence, in which "the judge's hand is strongest". Statutory provisions on this had been controversial when first proposed, but academic opinion had convincingly argued that they did not conflict with underlying principles of Scots law.

Commenting on sentencing guidelines, the Lord Justice General accepted that they aided transparency but repeated the Lord Justice Clerk's recent warning against a reactionary introduction of guidelines which have not been properly considered and tested".

Click here to view the full address.

 

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