Time to embrace English approach

There is a committee reviewing summary justice in Scotland. At the same time Lord Bonomy has been reviewing procedures in the High Court. No one has been looking at sheriff court solemn procedure. It is unfortunate that the opportunity was not taken to consider our criminal procedure and practice as a whole. We have one system of criminal procedure, with variations between solemn and summary. This is not an academic point. Indeed, it is a practical one, because we cannot reach any sensible conclusion as to what reforms we need without considering our criminal court structure as a whole. We have too often in the past suffered the results of illogical piecemeal reform and a further dose of ad hoc changes is unlikely to have any long term beneficial effect. The time has come for the consideration of a bold recasting of our system of criminal courts to fit them for this century. In considering any such reforms, the public good should be the only concern. We should not consider sectional interests. For instance, I have heard suggestions that work should be retained in the High Court because solicitors are inadequately remunerated for work they do in the sheriff court. Of course, all lawyers should be properly paid. However, it cannot be a good reason for keeping work in one court rather than another that this will enable solicitors to be paid more. I think that some members of the public would think this was a reason for moving the work! With these thoughts in mind, I have put down in writing some proposals I have thought out in relation to our system of criminal procedure. These are not casual thoughts. I have matured them over many years. This seems a good time to give them an airing. I believe the time has come for radical change. No doubt, like all radical proposals, they will not be welcome at first, but I hope people will be prepared to consider them on their merits.  

One Solemn Trial Court

In my opinion, it is long overdue that we should have one solemn trial court, similar to the Crown Court in England. This reform took place about 30 years ago in England and no one I have spoken to there would suggest going back to the old system. This court would be presided over by a judge, who could be either a High Court judge or a sheriff, depending on the nature of the case. There should be no limit to the sentencing powers of sheriffs as such. However, the Lord Justice General would lay down rules that certain classes of case, for instance murder, rape and perhaps certain others, should be dealt with by a High Court judge. Otherwise, cases would be allocated to a particular level of judge under general directions issued by the Lord Justice General as head of the court. Any particularly difficult decision as to which level of judge should deal with a particularly difficult or sensitive case could be referred to him or the Lord Justice Clerk or another senior judge appointed for this purpose.

There would be one summary court sitting in various buildings locally. Those sitting in it would be both stipendiary and lay magistrates. Properly trained lay magistrates should do the bulk of summary criminal work. In this connection, the training of lay magistrates should become the responsibility of the Judicial Studies Committee. However, there should be an adequate number of full time stipendiary magistrates, who should be legally qualified and available to sit in the summary court in the more difficult cases and generally as required. I would prefer sheriffs to sit only in solemn cases, but I accept that they could perhaps sit in the most serious summary cases.

The Crown should continue to decide in the first instance whether a case should be in the solemn or the summary court. There should, however, be a right in the judge or judges in the summary court to remit to the solemn court if they consider that the case is too serious for them to deal with. A plea of guilty made in the summary court would not be binding if the case were remitted to a court with greater sentencing powers.

Sentencing Powers

The solemn court would have the full sentencing powers of the High Court at present, although there is an argument in favour of a general limitation in sentencing powers in relation to particular crimes. The lack of any such maximums is of course a direct result of the fact that the vast majority of crimes are dealt with at common law and not as statutory offences. The argument is largely theoretical, because in the present climate the maximum penalties for most common law crimes would be set at figures that the courts would not be likely to want to exceed. However, the setting of statutory maximum sentences would at least give the courts some indication of the degree of seriousness with which the legislature regards any particular crime. It is also a rather curious result of our present system that the Crown can at least in theory prosecute an accused on indictment for a breach of the peace and this could result in a period of life imprisonment. Flexibility is no doubt desirable, but there should be limits!

The limit of the powers of the summary court should be twelve months’ imprisonment. This is now to be the normal limit of the summary courts in England, which are composed overwhelmingly of lay magistrates. This also appears a significant threshold keeping in mind the law relating to early release and supervised release orders. (Whether there should be so much use of sentences below twelve months is another matter, to which I may return).

Appeals

Appeals in solemn criminal cases could be dealt with as at present. However, there should be a local court of appeal in summary criminal cases consisting of a sheriff and two experienced magistrates. There would be a further right of appeal to the High Court sitting as a court of appeal, but only on a point of law certified as such by the first court of appeal or by the High Court itself.

This would be an economic and sensible use of the time of expensive judges. Sheriffs would deal only with cases that justified their time. Even more important, supreme court judges would deal only with matters that justified the use of their time. They would be able to deal with important appeal work in solemn cases and in the smaller number of certified summary cases, along with their civil work. I understand that at present there is great pressure on the supreme court and consequent delays. Summary appeals could be dealt with much more quickly and locally. A local appeal court in the form of the sheriff principal deals with civil appeals in sheriff court cases. This is very acceptable because it is quick and cheap and there is no reason why a local appeal court should not be perfectly acceptable in summary criminal cases. The proposed appeal system would also bring sheriffs and senior and experienced magistrates together to the advantage of both and certainly to the advantage of local criminal justice.

This new system would also do away with the situation where a sheriff can sentence an accused person to three years in prison, but if he thinks he merits four must remit him to another judge, who has heard nothing about the case and may not agree with that assessment anyway.

Sentencing Advisory Panel

On the question of sentencing, I have many thoughts, but I shall mostly leave them to another paper. However, I will say two things at this stage.

In the first place, I think the time has come that judges should make it clear that a discount should be given for an early and unqualified plea of guilty. The discount should be for an early plea, not for one on the morning of the trial. Further, there is little point in giving a discount unless the judge makes it clear he is doing so and probably the amount of discount he is giving.

Secondly, I think it is important that the High Court in its capacity as the Court of Criminal Appeal starts to issue sentencing guidelines. There have been suggestions put forward that any increase in sentencing powers for sheriffs will lead to an increase in sentencing inconsistencies. Of course, the court will continue to have full powers to deal with appeals against sentences in solemn cases. However, is the suggestion really that the only way to achieve consistency in sentencing is to restrict sentencing in serious cases to High Court judges? There is a real question as to whether there is consistency even among them. In any event, it is strange to suggest that in a properly developed legal system the only way to achieve consistency is to restrict sentencing to a such a select group. That is a primitive model for an advanced society. I would suggest that the correct and principled way to achieve consistency in a mature system is for the Court of Criminal Appeal to issue guidelines to all judges. This system has existed in England for many years and a Sentencing Advisory Panel now helps them.     

These proposals will no doubt be controversial and nothing remotely like them may ever happen. In the meantime, however, it is a matter of great concern that the provisions of the Crime and Punishment (Scotland) Act 1997 for increased sentencing powers for sheriffs have not been brought into force. It might be thought that the Executive is frustrating the will of Parliament expressed in statute. The object of allowing Government to set the date when a statutory provision comes into force is to allow an appropriate date to be fixed for some change. It is not to enable the Executive to negate a decision of the Legislature. If this provision is not to be brought into force forthwith, the Executive should propose to Parliament that they repeal the provision. The Executive cannot repeal a legislative provision passed by Parliament and they should not be able to suspend indefinitely any such provision. While the Executive’s refusal to bring these provisions into force may be legal on an interpretation of the commencement clause of the statute, it might be thought to be unconstitutional.