The ties that bind

Reported observations made in June by the First Minister and the Justice Secretary again brought into focus the principle of judicial independence. Following a UK Supreme Court judgment on a Scottish human rights issue given by Lord Hope, Lord Rodger, both former Lords President of the Court of Session and other eminent judges, both Alex Salmond and Kenny MacAskill chose to make what have been described as intemperate and unstatesmanlike remarks.

The First Minister, who admitted to "knowing a wee bit about the law", and the Justice Secretary, a former practising solicitor, should certainly be aware of the principle of judicial independence, which has been around for more than 500 years. Indeed, both were party to legislation acknowledging the principle contained in s 1 of the Judiciary and Courts (Scotland) Act 2008, which for the first time enacted in statute the duty of Scottish ministers, amongst others, to uphold the independence of the judiciary and not exert any undue influence.

The concept of judicial independence goes well beyond a restraint on criticising judges or judicial decisions. The principle is subtle in nature and includes the protection of the courts from the Executive and Executive functions. Judicial independence is of fundamental importance in upholding the rule of law and protecting the public. However, developments in recent times sponsored by the Scottish Executive in relation to, amongst other subjects, the funding of the judiciary and administrative arrangements, have introduced challenges to that independence.

Judges as executives

The 2008 Act created a whole new regime for the administration of business in our courts. Section 2 established the Lord President as head of the Scottish judiciary with responsibility for making and maintaining arrangements for securing the efficient disposal of business in all the Scottish courts. That is a major executive and administrative rather than a judicial role and includes the power to give a direction of an administrative character to a sheriff principal, who must comply with the direction.

In addition, s 47 of the Act also gives the sheriff principal of each sheriffdom the responsibility for securing the efficient disposal of business in the sheriff courts of that sheriffdom. If a direction of an administrative character is given to a sheriff or a member of court staff, that person must comply. But all of this is subject to an overriding direction given by the Lord President, who also has the power to rescind any function of the sheriff principal. It will not, therefore, be difficult to envisage that some potential confusion might reign as to respective roles, boundaries may be blurred and competing interests will exist.

The 2008 Act also establishes Scottish Court Service (SCS) as a corporate body. Its function is to provide administrative support for the Scottish courts and the judiciary. It also has an obligation to cooperate with any person having functions in relation to the administration of justice. SCS is governed by a corporate board chaired by the Lord President. Other judicial members include the Lord Justice Clerk, one High Court judge, one sheriff principal, two sheriffs and a justice of the peace. Part-time sheriffs are not represented on the board. The chief executive of SCS is a non-judicial member of the board.

On 1 April 2010, the Judicial Office for Scotland was set up to provide support to the Lord President as head of the Scottish judiciary. The Judicial Office has a director and a section dealing with strategy and governance, which includes a unit for the booking and use of part-time sheriffs.

The SCS circular

Following budget cuts necessitating a 5% reduction in the revenue budget for courts administration, the chief executive of SCS, Eleanor Emberson, in September 2010 issued to sheriff clerks nationwide a circular entitled "Guidance for SCS Court Programmers On Allocation Of Shrieval Resources". This document, ostensibly endorsed by sheriffs principal, had as its main purpose instruction on the use of part-time sheriffs. The nature and extent of endorsement by the sheriffs principal is not known, but neither the Sheriffs Association, representing the bulk of permanent sheriffs, nor the Part-time Sheriffs Association, representing the majority of part-time sheriffs, was consulted prior to the circulation of the document, despite the statutory obligation to cooperate with parties having a function relative to the administration of justice.

The guidance makes observations such as "court programmes should be based on the maximum number of days available per permanent sheriff"; and that "writing time for permanent sheriffs except in the case of lengthy fatal accident inquiries or adoption proofs can normally be undertaken when sheriffs are not sitting on the bench e.g. when planned court business finishes prematurely". Again, the guidance states: "there should be a presumption against the use of part-time sheriffs to provide cover for a permanent sheriff's annual leave".

These observations appear to demonstrate a lack of realism for those working in our sheriff courts who are attempting to run court programmes within a reasonable and efficient timetable satisfactory to the public, whether they be offenders, litigants, witnesses or court practitioners. That guidance has led to such events as permanent sheriffs being asked in spring 2011 to provide definitive dates for annual leave in 2012 under threat of disciplinary action for non-compliance. The guidance also directs that the sheriff clerk in a particular court or the individual responsible for the court programme to be the determining authority on the need for part-time shrieval assistance but under the direction of the sheriff principal. This has led in some courts to part-time shrieval assistance not being requested without prior consultation with the sheriff principal.

The guidance goes on to direct that part-time sheriffs, who have the same duties and responsibilities as permanent sheriffs, should not be allocated to conduct fatal accident inquiries, jury trials, proofs and debates. The objective of this requirement is, ostensibly, to minimise any requirement for a part-time sheriff to return to deal with continued business. Such an executive direction indicating who should do particular business is itself an encroachment on judicial independence. Ironically, the main reason a part-time sheriff has to return to a court is to deal with sentence after summary trial where sentence has been deferred for a social work report, since custody, community service, probation or a community payback order are under consideration for the offender.

Some real cases

Some of the impact of the guidance document can be illustrated by examples. Court practitioners will have others.

In May of this year a part-time sheriff was booked to conduct a proof on contact for two days at Stornoway Sheriff Court. When the case called, the sheriff was advised that the proof was likely to last 10 days. The sheriff rightly did not think it was in the best interests of the six year old child involved to start the proof without a good idea when he could return to hear the remaining evidence. Counsel represented one of the parties, and both the pursuer and the defender had expert witnesses. The sheriff adjourned to determine subsequent days for the proofm, to be advised by the sheriff clerk depute that he would require to contact Inverness for authority for the part-time sheriff to conduct such a lengthy proof. The person at Inverness responsible for the court programme was not prepared to give that authority. The proof was discharged after the sheriff was assured that in about two weeks' time a permanent sheriff would be available to conduct the proof.

The foregoing incident illustrates a quite unsatisfactory state of affairs. The sheriff was compromised into abandoning the proof. Two days of evidence were lost to the court programme. There was considerable public expense with the result that the sheriff, counsel, solicitors and witnesses all went home. To aggravate matters, it transpired that the sheriff principal was not made aware of the situation. It was later drawn to his attention by the Part-time Sheriffs Association. The sheriff was entitled, particularly in the absence of a direction from the sheriff principal, to continue conducting the proof, which had been called and required a signed interlocutor for discharge. A judicial decision was made not to proceed in view of the direction given. Such a direction from a sheriff clerk was an encroachment on judicial independence.

Secondly, a part-time sheriff who conducted a summary trial heard evidence from the complainer and then adjourned the trial after some two hours to deal with custodies. When the trial resumed the procurator fiscal depute and the defence agent had a discussion leading to an agreed plea to vandalism and a statutory breach of the peace. The accused also pled to other charges called as intermediate diets and the sheriff was presented with four other complaints carrying charges of failures to appear in court. The sheriff deferred sentence for reports on all the charges, since the question of a custodial sentence arose and the accused had never before experienced a sentence of imprisonment. The sheriff was advised that the permission of the sheriff principal was required for a return to deal with the deferred sentences. The sheriff principal refused authority for the part-time sheriff to return, sentences being imposed by another sheriff.

This second incident raises a further issue relating to judicial independence. Every sheriff is independent of every other sheriff, including sheriffs principal. The part-time sheriff conducted a trial and heard evidence for a significant period of time. He made a judicial decision to defer sentence for reports and to return to impose sentence. That decision was overruled by an administrative decision presumably based on the guidance issued by the chief executive of SCS. The decision also raises the question as to what the High Court sitting as the appeal court would make of an appeal against sentence where the sentencing sheriff did not hear the evidence of the complainer, had no notes of the evidence but passed sentence based on a narrative which might or might not accord with the evidence given at the trial and might even be narrated by a different procurator fiscal depute.

The reduction of 5% in court revenue budget has seen a dispropotionate cut in the number of part-time shrieval days to accommodate budgetary contraints. Statistics, which appear to carry great weight in a cost saving exercise, show that in 2009 part-time sheriffs were used on 6,053 days. In 2010 the figure declined to 5,341 days. In 2011 the use of part-time sheriffs to assist with the administration of justice is likely to dwindle to approximately 4,000 shrieval days. With some 140 permanent sheriffs entitled to 35 days' annual leave, a grand total of about 4,900 working days, it can be seen that the use of part-time sheriffs will not even cover holiday periods for permanent sheriffs, without considering sheriffs removed from duties in the sheriff court to sit as High Court judges or absent because of judicial training.

The significant reduction in the use of part-time sheriffs has inevitably led to the lengthening of court timetables, necessitating delays in bringing accused to trial and evidence being heard in civil cases. Indeed, some courts have a policy of not programming any proofs over the summer months, with the consequence that litigants have a long wait for a civil judgment in cases with considerable financial or personal implications. Summary trials are now being set in some courts six months or more after the pleading diet. The situation is aggravated by the fact that, when the trial diet comes around, the trial may well be adjourned through lack of judicial resources, lack of court time, essential witnesses having failed to appear or the Crown having failed to cite the essential witnesses. The result is a further extended period to the trial diet, with the result that witnesses eventually appear in court to give accounts of incidents which occurred 12 to 18 months previously. Targets for bringing an accused to trial have disappeared. It is not summary justice if an accused has to wait such a length of time to come to trial, nor is it in the interests of justice for sheriffs to attempt to determine issues of credibility and reliability where witnesses are trying to remember details of an incident which took place many months previously.

Concern has been expressed that policy decisions are being made by a management team who may have no experience of working within the court system.

SCS has a duty to provide a high quality service and respect judicial independence. The corporate body also has a statutory function to take into account the needs of members of the public and those involved in proceedings in the Scottish courts. That duty encompasses alleged offenders, witnesses, court practitioners and members of the judiciary. A human rights claim by an accused that he is not being brought to trial within a reasonable time may yet be on the horizon. A civil litigant might also be considering the position if a proof is not assigned and evidence completed within a reasonable timescale. A proof that starts in February and ends in July due to court programming cannot be regarded as reasonable. The impact of the evidence can be lost on the sheriff and the agents of the parties. Sheriff court ordinary cause rule 29.17 requires that a proof shall be taken continuously so far as possible. This is a rule being ignored in the extreme.

Independence in sentencing

Encroachment on or erosion of judicial independence does not end there. It can also be found in the area of sentencing. Members of the judiciary are aware of the general principles of sentencing. Each case depends on its own facts, and the circumstances of the offender and any victim. Sometimes the High Court of Justiciary sitting as the court of appeal gives guidance on an appropriate sentence or range of sentence for a particular crime or offence. The appeal court can uphold sentences on appeal, vary, or substitute another sentence. In any event every sheriff has to consider carefully the appropriate sentence, particularly where that sentence is one of custody made in the public interest and public safety. Despite this, sheriffs are finding offenders returning to the courts long before the expiry of the period of imprisonment.

The public might be aware that generally prisoners will only serve one half of their sentence if the sentence is less than four years, but the public may not be aware that prisoners can be released only weeks or months into their sentence on home leave of up to seven nights (authorised by a prison governor under the Prisons and Young Offenders Institutions (Scotland) Rules 2006), or home detention curfew (HDC), introduced in the Management of Offenders (Scotland) Act 2005 and designed, amongst other things, to encourage rehabilitation and reduce reoffending. HDC is a form of early release, prisoners being allowed home before the date they would otherwise be released. Sex offenders are not eligible for the scheme, but violent or dishonest offenders qualify. Offenders released on HDC are subject to a curfew condition that they remain within a specified address for up to 12 hours overnight. To ensure compliance with the curfew condition, offenders are monitored remotely by electronic equipment known as a tag.

Significantly, despite residing in the community from which they have been withdrawn by the sentence of the court, offenders are regarded as still serving their sentence at home. The public will not be aware that a police officer is not entitled to arrest the "prisoner" for a breach of his curfew. The decision to grant HDC is made by an official of the Scottish Prison Service, following a risk assessment of the offender which will include information from a social worker. As far as the public is concerned, the decision to release is not known and is made anonymously. The decision to imprison is made publicly in open court. It is perplexing for sheriffs to find offenders, who have been sentenced to periods of imprisonment after careful and due consideration and in the public interest, back in their courts charged with crimes well before they have served half the sentence imposed.

Apart from being seen as a fraud on the public, HDC also usurps the authority of the court and undermines judicial independence, which includes respect for decisions and the protection of the public. Judges send offenders to prison or detention not solely for rehabilitation but also as punishment for crimes and to protect citizens and their property by removing offenders from the community. In the majority of cases, rehabilitation has already been attempted by way of probation, community service, and more recently community payback orders which provide a whole range of options to rehabilitate the offender.

The introduction of fiscal fines and fiscal compensation orders has also led to the erosion of judicial independence in respect of protection of members of the public. Procurators fiscal are empowered to issue fines of between £50 and £300 on individuals for alleged offences. Compensation orders can be imposed to a ceiling of £5,000. The decision to offer a fiscal fine or compensation payment, or both, is made on the basis of a police report on an incident. Sheriffs and criminal law practitioners recognise that what appears in a police report can differ radically from evidence given in court. By accepting a fiscal fine or the payment of compensation, an alleged offender can avoid prosecution and the possibility of a conviction which is recorded. Practical difficulties arise concerning enforcement of payment, since no court order exists for the imposition of the penalty, some two thirds going unpaid. Fiscal fines and compensation orders, known as direct measures, were introduced principally to allow the sheriff courts the space to deal with more serious offences, but an individual on benefits being ordered to pay £300, or pay compensation in four figures, must take the alleged offence into the more serious category to be tested by an independent tribunal.

In 2008 fiscal work orders (FWO) were introduced on a pilot basis in selected local authority areas. The FWO can be regarded as a further encroachment on the role of the sheriff in the sentencing process. But this scheme is also seen as an alternative to prosecution, the idea emanating from the McInnes review of the criminal justice system. The pilot scheme allows alleged offenders to be offered supervised work placements by the fiscal, rather than face prosecution. Again it is based on a police report. The number of hours of unpaid work in the community can be between 10 and 50, and the work requires to be completed within six months. The fiscal is both prosecutor and judge in determining an alleged offence and the number of hours of work to be carried out. Inevitably it raises the question of enforcement, including where there has been partial completion. If a FWO is not completed, the alleged offender is prosecuted. A difficulty could well arise where an alleged offender elects, on advice, to go to trial and is acquitted. Does he have a claim, or would he be regarded as having relinquished his claim because he opted, initially, to undertake a FWO to avoid a prosecution? There is also the additional problem that the Crown may not be able to prosecute in the public interest if the prosecution is not commenced within six months of an alleged statutory offence.

Avoiding any observation on any human rights issue arising from a FWO, until this scheme was introduced orders to carry out unpaid work in the community were the exclusive province of judges. Community service orders can be imposed by sheriffs only after conviction and, significantly, as an alternative to a custodial sentence. Such an order can only be made after the sheriff obtains a social enquiry report which will include reference to the ability of the offender to carry out hours of unpaid work. Since 1 February 2011, sheriffs now have power to make community payback orders, again after conviction, of between 20 and 100 hours without the need for a criminal justice social work report, but it is ascertained from the defence agent that the convicted offender is willing and able to undertake such hours of work. The involvement of the Crown in a penalty system where there has been no proof of commission of a crime or a conviction has to be seen as affecting the rights of the citizen, and consequently an erosion of judicial independence protecting these rights.

A time for vigilance

Readers will recall the executive embarrassment caused by the judgment in Starrs v Ruxton 2000 SLT 42, where there was a judicial ruling that a temporary sheriff did not constitute a fair and impartial tribunal. Indeed, the chief executive of SCS recognised in the guidance issued to sheriff clerks that the adjournment of business due to lack of shrieval resources could "ultimately result in compensation claims against SCS". It is almost bizarre to consider that, as a result of the 2008 Act, there could be a human rights claim or litigation against SCS as a corporate body with a corporate board consisting of the Lord President as head of the Scottish judiciary and other judicial members, where judgment would require to be made by one of their colleagues and subject to appeal to more colleagues.

The independence of the judiciary was invaded by the introduction of the Judiciary and Courts (Scotland) Act 2008. It also made inroads into the doctrine of the separation of powers. The 2008 Act has made the relationship between the judiciary and the executive more controversial. An executive role has been given to elements of the judiciary. SCS, as a corporate body, is obliged to submit an annual report to the Scottish Parliament. Budgetary requirements have increased the challenge to judicial independence. Whilst it is accepted that the budget for the operation of the judicial system in Scotland is not infinite, adequate funding must be in place to guarantee judicial independence. Administrative decisions should not be made without some lateral thinking on the impact such decisions will have on judicial independence which, in the words of the Judicial Office for Scotland, "is the cornerstone of our system of government in a democratic society and a safeguard of the freedom and rights of the citizen under the rule of law".

Lord Phillips of the UK Supreme Court in February of this year emphasised that there should be constant vigilance on the part of judges to protect judicial independence, drawing attention to the fact that it was budgetary and administrative arrangements which held the key to the day-to-day independence of the court. Chief Justice de la Bastide of Trinidad and Tobago, in an address in 1999 referring to threats to judicial independence not necessarily being frontal attacks, said: "there is more than one way to skin a cat". This is an observation which the Judicial Office for Scotland, the SCS, sheriffs principal and every member of the judiciary would do well to bear in mind.