Court afresh

This paper is to an extent prompted by the article by Jenny Nobbs, “Keep it in the family” (Journal, October 2006, 26). In it the author made a sensible case for improvement in the way family cases are handled throughout Scotland. As Sheriff Principal of Glasgow at the time of the introduction of the specialised family and commercial courts I am delighted, but hardly surprised, that they have been well received by the profession and shown by independent assessment to operate to the advantage of litigants. It seemed fairly obvious to me that directing sheriffs with particular experience and interests to those areas where their expertise could be utilised, and encouraging a greater degree of “ownership” or judicial control of the cases before them, was bound to lead to many improvements.

The creation of these specialised courts did not present as a complex task, given the volumes of work already existing that could be channelled towards them. It would not be so easy to create such courts elsewhere, but in any event my view is that fundamental issues arise in relation to the whole structure of the court system, and the creation of specialist courts should not be allowed to divert attention from these.

Identified need

In relation to the civil courts, two recent reports have highlighted the need for reform. The report of the Adoption Policy Review Group, chaired by Sheriff Principal Cox (6 June 2005) drew attention to problems in the field of adoption, and called for “adoption centres” to be established in each sheriffdom. I strongly support the view that it is essential to handle adoption cases sensitively and in a manner which gives them proper priority.

In November 2005 the Civil Justice Advisory Group, established by the Scottish Consumer Council under the chairmanship of Lord Coulsfield, called for a review of several specified aspects of the civil justice system in Scotland. The Sheriff Court Rules Council has also called for a review, drawing attention to the extent, variance and complexity of procedural demands facing the sheriff court litigant. It is no doubt against that background that the Scottish Executive has given an indication of a judicially led review of “civil court processes”. It remains to be seen when, or whether, such review will proceed and what its remit will be. But it is my view – shared I suspect by many members of the senior judiciary – that it will not be possible to achieve proper reform of the delivery of civil justice in Scotland without radical changes to the whole court structure.

Proposals for such radical reform would require to take into account a wide range of considerations, but for present purposes I intend to set out the three principal reasons why it is necessary, and why a reform of civil “processes” alone will not do.

These are:

    the need to curtail the present levels of business which occupy the time of judges of the Court of Session and High Court of Justiciary;

    the need to physically separate the criminal and civil courts; and the need to give proper cognisance to the significance of recruiting judges and sheriffs from a highly specialised profession.

Supreme courts, ordinary business

In his response to the Executive consultation paper on “Strengthening Judicial Independence”, the Lord President expressed the view that the primary function of the Court of Session should be that of a court of appeal and, at first instance, of review (as in judicial review) or for issues of general importance or exceptional value. The business of the Court of Session, and the High Court of Justiciary, ought to be restricted to those categories appropriate to the Supreme Courts. That view is, in my respectful opinion, beyond argument.

Sitting as a temporary judge in the High Court, it has often occurred to me that most of the cases were no more complex than many tried by sheriff and jury, the only potential difference being the length of sentence. The raising of the sheriff’s power of sentence on indictment, and the effect in many High Court cases of sentence discounts, have blurred the distinction between what might or might not be a High Court case. In reality, as in England, it is only the most serious of cases which merit the attention of a “red judge”. In civil matters, there has long been a view that the Court of Session be not treated as the court of first instance in all personal injury cases, regardless of value. There is, on the other hand, a legitimate concern, which I shall touch on, relating to the consistency in the handling of such cases were they to be dealt with in the sheriff court. But for present purposes I start with the position that the existing substantial content of inferior business, both civil and criminal, diminishes the standing of the Court of Session and results in unnecessary expense both to the public and the Exchequer.

Necessary split

Restriction of the business before the Court of Session and High Court would inevitably lead to its redistribution in the sheriff court. It would be likely to become something in the nature of a “Crown Court” where all criminal business, barring the most serious, would be heard. Even before one begins to consider the issue of whether it is right that civil cases should be dealt with in that setting, it is clear that the majority of sheriff court buildings could not cope with an influx of criminal business without something else having to go. The obvious answer is to separate civil business. That would then address the very proper concerns raised in the report of the Civil Justice Advisory Group about (a) the intimidating atmosphere of courts which are primarily devoted to civil business, and (b) the disruption of civil proceedings necessitated by the “prior” claims of criminal business. It would also facilitate the provision of proper facilities for adoption cases as called for by the Cox Committee.

Separation of civil and criminal business would also address what, in my experience, is becoming something of an issue at least at sheriff court level, namely the ability of those recruited to the bench to deal with both categories of business to a standard which meets reasonable public expectations. I have seen cases in my own jurisdiction, involving delicate questions of care of children, having to be re-heard due to the inexperience or unsuitability of the part-time sheriff assigned to them. I have heard a solicitor practising in one of Scotland’s larger towns, say that no one should raise a civil action in the sheriff court there because no sheriff would be qualified to deal with it. These situations are wholly unacceptable. I can understand the views of personal injury lawyers who lack confidence in the sheriff court. To an extent, similar problems arise in relation to the handling of serious criminal cases by new sheriffs with no previous criminal law experience.

Sauce for the gander

This situation has arisen partly because the approach of the Judicial Appointments Board does not, I believe, encourage the recruitment of “generalist” practitioners, but largely because the complexity of the law in every field, and certain market forces, have compelled both branches of the legal profession to specialise. The generalist is one of a dying breed. But if it is inappropriate to expect practising lawyers to have a grasp of every area of law, there must be a serious issue as to whether it is right to expect it of judges. The sheriff court bench is not a training ground; new sheriffs engage with the public from day one. In theory at least, an individual who has spent 20 years as a family lawyer could be appointed today and expected to preside over a significant jury trial tomorrow. That cannot be right. To those who say “It has always been thus”, I answer (1) that the law used to be simpler; (2) that there used to be more generalist practitioners around; and (3) in any event our expectations of a bench with better skills are higher.

It would be unwise to produce an instant solution, but what I envisage involves at the top the Court of Session and High Court dealing with cases at appeal, and restricted categories of first instance business. Lessening the burden on these courts would, hopefully, enable the functions of the two to become distinct with the judges deployed appropriately. The sheriff court, whether in that name or some other, would be the principal criminal court, probably subdivided to deal with solemn and summary business. A two-tier sheriff court judiciary is not an impossible scenario; the Summary Justice Review chaired by Sheriff Principal McInnes recommended it. The new JP courts would deal with a segment of summary criminal business. Separate civil courts would be sited throughout the country, not to the extent of existing sheriff courts, but in major centres. They would have a dedicated judiciary recruited from those with appropriate experience.

A worthy ambition

Such a system would, I believe, have significant advantages. Judges would be positioned within the structure, and when appropriate assigned to individual cases, in a way which reflected their experience and status. The judiciary would become more “manageable” without necessarily becoming “unified”. Management of business would improve without the constant headache of addressing the relative priorities to be given to criminal and civil business. A judicial career might become more attractive to those specialist practitioners who currently view the prospect of a fresh career, predominantly in crime, as of no interest. From the public point of view the potential advantages are greater still. There would be more confidence in a system in which judges at each level were used according to their experience and aptitudes. Distinct civil courts would facilitate “access to justice”.

Whilst the creation of such a system would be a major task, it should not be regarded as too daunting. Reforms in recent years have tended to address crises: the reform of practices in the High Court came about because much of its work had ground to a halt, and the need to reform summary justice came from a recognition that it had ceased to be “summary”. What we need is some vision of a better system without waiting for the present one to buckle under the strain. An updated Scottish court structure would be a worthwhile achievement for, and legacy of, the next Scottish government.

    Edward Bowen QC is Sheriff Principal of Lothian and Borders