Losing the wait

by Tom Fyffe, Allan Finlayson and others

Overview from Scottish Court Service staff of the main features of the Bonomy reforms to High Court procedure as enacted

The Journal, January 2005, page 12

A weighty concern

The Criminal Procedure (Amendment) (Scotland) Act 2004, which will introduce preliminary hearings into the High Court of Justiciary with effect from 1 April 2005, follows the Review of the Practices and Procedures of the High Court of Justiciary by the Hon Lord Bonomy, Improving Practice, which was presented to Scottish Ministers in December 2002.

In the Review, Lord Bonomy noted that during the period from 1995 to 2001 the number of adjournments in the High Court had risen sixfold, that the vast majority of the motions to adjourn were at the instance of the defence and that the most common reason for the request was that more time was needed for preparation. Adjournments were frequently at the last minute when victims and witnesses were at court expecting the case to proceed. There was a perception that this was leading to a loss of confidence in the system by the public.

The Bonomy vision

Lord Bonomy recommended that High Court practice and procedure should be revised with the objective of bringing more certainty into the conduct of proceedings. To that end he recommended that preliminary hearings should be introduced into the High Court and that trials should only be appointed when parties were fully prepared. He further recommended that, in custody cases, the preliminary hearing should be held within 110 days, that the trial be within 140 days and that the extension of the custody time limit to 140 days should also apply to the sheriff court. In addition he recommended that the consequence for the failure to comply with the 110 and 140 day periods should be that the accused should be entitled to bail as opposed to being for ever free from being prosecuted on the charges on the indictment. He saw no reason to alter the 80 day time limit for service of the indictment by the Crown. In bail cases Lord Bonomy recommended that there should be preliminary hearings in the High Court within nine months of the accused’s first appearance on petition.

To ensure that parties were fully prepared for the preliminary hearing Lord Bonomy recommended that they should be required to meet and communicate with each other in the week before the preliminary hearing and that the result of these discussions should be recorded and the record produced to the court. The purpose of the meeting would be to discuss issues which require resolution either at the preliminary hearing or at the trial diet to be appointed at that hearing. Further he recommended that one of the issues to be considered at the preliminary hearing should be any question relating to the admissibility of evidence which could in the opinion of the court be resolved with advantage before the trial, and that parties should intimate to the court which witnesses they require to attend at any trial diet appointed by the court.

The main aim of the preliminary hearing would be to identify those cases in which a trial is necessary and to assign a trial diet.

The report was published for a four month period of consultation from December 2002 to April 2003 and this was followed by publication of the white paper Modernising Justice in Scotland: The Reform of the High Court of Justiciary, in which the results of the consultation and the proposals for implementation of the report were set out. In the main the Executive accepted all the recommendations made by Lord Bonomy, the major exception being that the proposal that the 110 day time limit be extended in the sheriff court was not taken forward.

What the Act contains

The Criminal Procedure (Amendment) (Scotland) Bill was presented to Parliament on 7 September 2003 and finished the parliamentary process on 28 April 2004 when it was passed by 112 votes to 0. The Act received Royal Assent on 4 June 2004. It can be accessed at: www.scotland-legislation.hmso.gov.uk/legislation/ scotland/acts2004/20040005.htm .

The Act provides that all High Court cases will be cited to a preliminary hearing. At that hearing the court will dispose of any preliminary pleas; and, in cases where the accused has pled not guilty, thereafter deal with any preliminary issues of which notice has been given; any applications under section 275(1) or 288F(2) of the 1995 Act; and any other matter which can be disposed of with advantage before the trial. The court is required to ascertain if there is any objection to the admissibility of any evidence of which notice has not been given which any party wishes to raise and, if so, decide whether to grant leave and dispose of the objection unless it considers it inappropriate to do so at that hearing. The court will be informed by parties of the witnesses required to attend the trial. The court may be required to adjudicate upon an application to direct that a challenge to a notice of uncontroversial evidence be disregarded. The court will have before it a record of discussions, which parties are required to have prepared and lodged with the court two days before the hearing. Child witness notices and vulnerable witness applications under the Vulnerable Witnesses (Scotland) Act 2004 which have been appointed to be disposed of at this hearing will also be considered, once this legislation has been introduced.

The Act provides that where the 80, 110 and 140 day time limits cannot be met, the accused is entitled to be liberated on bail. But before that entitlement is determined the prosecutor is to be heard on any application for an extension of the relevant period. Parties have the right of appeal against the grant or refusal of bail.

The Act provides that solicitors acting for accused in all solemn proceedings must inform the court and the prosecutor of that fact, and of any changes in that position whether by withdrawing from acting or by dismissal. Service of any document, including the indictment, may be made through this solicitor.

Electronic monitoring as a condition of bail is introduced as a possibility and there are further minor changes in relation to bail reviews. The law in relation to witnesses who either fail to attend, or who it is suspected will fail to attend without compulsion, is clarified.

Making it happen

The Criminal Procedure (Amendment) (Scotland) Act 2004 (Commencement, Transitional Provisions and Savings) Order 2004 was made on 22 September 2004. Some of the provisions of the Act were introduced with effect from 4 October, some from 4 December, with the remaining provisions (apart from minor exceptions relating to the Vulnerable Witnesses (Scotland) Act) being introduced with effect from 1 February 2005 to enable preliminary hearings to commence in the High Court with effect from 1 April 2005. Those provisions of the Act affected by the Vulnerable Witnesses (Scotland) Act will come into force on the same day as the provisions of that Act are implemented.

The reform programme will have a significant effect on the operation of the High Court, and much is being done to try and ensure that the courts will be in a position to accommodate the changes with as little disruption and inconvenience to court users as possible. It might be convenient to consider this in more detail under the following subheads:

Court programming

One of the most important changes that will be introduced by the reforms is to the way in which High Court business will be programmed. The new preliminary hearing procedure will take place in every case, and a significant amount of court time will be required to accommodate the preliminary hearing programme. Preliminary hearings will be held on a daily basis in Glasgow, and on two or three days per week in Edinburgh, with, on average, five cases being programmed for each daily sitting and lasting for one hour each. The hearings will commence at these two locations in April 2005, and they will also be held in Aberdeen when increased High Court accommodation becomes available there in June of next year.

The use of the preliminary hearing procedure will greatly reduce the number of cases being allocated to a trial diet, as the court will not allow that to be done until it is reasonably certain that the trial will be in a position to proceed on the date allocated.

The concept of trial sittings will disappear and be replaced by trial periods which will, however, be fixed at the various High Court locations in a similar manner as at present. As it is anticipated that a large number of cases will reach final disposal as a result of the preliminary diet hearing, the case loading for these trial periods should be much less than at present, with more than three or four cases for each trial period being unlikely.

Trial periods will include both fixed and floating trials. In Glasgow and Edinburgh, the floating trials (which will not be allowed to float for more than four days after the first date to which they are assigned) will not be allocated at the start of the period to particular courtrooms, but simply en bloc. This will allow for maximum flexibility in assigning individual cases to courts as they become available during the trial period.

A paper on court programming, which sets out the scheme in more detail, can be found on the court service website via the link mentioned at the conclusion of this article.

The electronic diary

Under the new system, the responsibility for the allocation of cases to trial will pass from the Crown to the court, although the Crown will control the allocation of cases to the preliminary hearing diets.

This change has required the Scottish Court Service to develop a method of support whereby trial diets can be allocated speedily in response to the decisions of the court as to their timing and location. To do this, an electronic diary system is being developed to enable clerks of court, in court, to check diet availability and allocate cases accordingly. The trial diets will be allocated at the conclusion of the preliminary hearings.

Accommodation and information technology

Although not contained in the recent legislation, Lord Bonomy’s report Improving Practice did recommend that better accommodation should be provided at court for the use of victims and their relatives, to enable them to view proceedings in private where doing so in court might prove to be too stressful. The Scottish Court Service has a programme of works in place to provide suitable accommodation which will see, by the end of March 2005, victims’ and relatives’ viewing room facilities at 13 of the most commonly used circuit courts. In tandem, closed circuit television facilities will also have been installed at 23 courts which will be used in future to enable vulnerable witnesses to give their evidence when the provisions of the Vulnerable Witnesses Act come into force.

Wherever possible, these rooms have been located at some distance from the trial courtroom, and separate accommodation has been made available for relatives and next of kin who are not giving evidence.

Evaluation and monitoring

The success, or otherwise, of the reform programme requires to be closely monitored. To achieve this, a research team has been engaged to evaluate the effects of the new legislation. The team will observe court proceedings and carry out interviews with judges and court practitioners to seek their views on how the reforms are working. Feedback will also be obtained from jurors, victims and witnesses by means of questionnaires or input from the various support organisations, and comprehensive statistical information will be downloaded from the High Court computer management system.

The information collected for analysis will include:

the number of preliminary hearings held and whether they required adjournment or continuation;
the extent to which the court programming worked as planned;
information on applications to extend the custody and bail time limits; and
cases involving trial in absence.

The research team commenced work in October 2004 and the programme will run until July 2006, when a report on its findings will be prepared for publication. The programme will include a comparison with the current system, and data from High Court sittings stretching back to the year 2002 will be analysed to inform this.

A website has been specially set up to give information on the reform programme. It contains further information on various topics and can be accessed at www.scotcourts.gov.uk/bonomy.

In brief: Key features of the reforms

Defence solicitors must advise the Crown, and court, that they are acting, and if they cease to act. Indictments and other notices can be served on solicitors recorded as acting.

Crown will provide defence with copies of witness statements (excluding precognitions) within 28 days of first appearance, unless exceptional circumstances exist.

Indictments must still be served within 80 days of full committal. New preliminary hearing must take place in custody cases within 110 days, and trial commence within 140 days, or accused entitled to release on bail.

Crown and defence to lodge written record of state of preparation prior to preliminary hearing, and be ready to advise court fully as to readiness for trial.

Hearing to dispose of preliminary pleas and issues (including questions of admissibility), unless inappropriate to do so.

Trial date will be set at hearing, either a fixed date or a date to float by no more than four days from the date set.