Feeling the squeeze

‘‘Anger as court closure plans approved”; “Court closure plans approved despite protests”. These, and many similar, headlines greeted the decision of the Scottish Parliament’s Justice Committee in June this year to confirm the proposals put forward by the Scottish Court Service, backed by the Justice Secretary, to close 10 sheriff and a further seven justice of the peace courts in order to meet tight budget constraints over the next few years.

It is not surprising that local communities, as well as those who practise in the courts affected, should resent the loss of a facility that, even if few use it most of the time, has a time-honoured place in the fabric of local life. For practising lawyers, such changes coming in tandem with major reforms to the civil and criminal courts only increase the turbulence that has been affecting their business at least since the onset of the recession. But how do the closures fit into the bigger reform picture, and what, if anything, is proposed to compensate for them?

Draconian though they may appear, the closures are only part of a wider restructuring programme that will see most High Court trials concentrated in Glasgow, Edinburgh and Aberdeen, and sheriff and jury cases confined to 16 mainland and four island courts that will also become centres of specialism for civil business, with the remaining courts dealing principally with business within the jurisdiction of the new summary sheriffs.

SCS chief executive Eric McQueen, in post since January this year (and de facto for three months prior to that), was not at the helm through the two years of discussions that led up to the publication last September of the SCS consultation paper proposing the changes now in hand. But with 10 years at SCS, first as area director for Grampian, Highlands & Islands, and then as operational director (Scotland), he led the hard thinking that went on as to how SCS was going to organise its services for the future, given drastic budget cuts alongside the pending civil court reforms.

Intellectual case

“In the early days what we tried to draw up was a coping strategy,” McQueen relates. “We reduced our staff numbers by 120, we reduced court sitting days by around 3,000 and we streamlined our corporate services, saving another £2 million a year, but it was quite clear to us that we had to move more to a transformation of our court services, by investing more into technology and services to deliver high quality performance in the future. So a key part of that was looking at our court structures, where we spend about 40% of our investment.

“We were clear that we wanted to see three things out of that. We had to make sure that they reflected the justice reforms, we had to make sure that we could target investment in the right areas, and with the financial challenges it had to be affordable in the long term.”

Despite the financial imperatives, McQueen attempted to put a positive case for the restructuring when giving evidence to the Justice Committee – as did the Lord President, who, as chair of the SCS board, signed off the consultation paper. A “perfectly good intellectual case” could be made for the changes irrespective of the need for cost savings, Lord Gill told the MSPs. How would McQueen state that?

“There are two points that are important,” he replies. “First, there is a move to a much more pyramid model where cases are heard at the right level, reflecting the proposed degrees of judicial specialism, whether in solemn business, complex civil business, the national personal injury court, the national sheriff appeal court or otherwise. Secondly, it’s a simple fact that if we were sitting today and designing a justice system for Scotland, it wouldn’t look anything like the current pattern of courts, which is a Victorian model that doesn’t really take account of the transport improvements and the technology that we now have. And even without looking at it from a simple cost angle, it’s difficult to see a strong argument for retaining the status quo.”

McQueen himself had represented to the committee that the court structure had to “anticipate” the justice reforms. By that, he explains, he was referring to those enhanced judicial capabilities within the new court structure, based around “fewer specialist centres dealing with more serious cases, and a network of supporting courts dealing with summary crime and lower levels of civil business”.

Capacity issues

The SCS papers made much of the declining volume of civil business in Scotland in recent years. But will that necessarily continue if Lord Gill’s reform proposals (and now those of Sheriff Principal Taylor, who noted that Scotland is “underlitigated” compared with England & Wales), succeed in reducing the perceived barriers to litigating? Could the reformed system cope?

“That’s a fair question”, McQueen responds. “But one thing we have been doing is to take a cautious approach to planning, so we haven’t been relying on a continual reduction in cases. We have made sure in our planning that there is future capacity. Equally we’ve got to bear in mind, particularly in terms of the civil court reforms and the wider Making Justice Work programme, that this is about making the system quicker, more effective, which in turn will free up court capacity.”

Speaking of capacity, some of the merged courts are projected to be operating close to full capacity, with little or no margin for the missing witnesses, staff sickness or other eventualities that are liable to cause delays. McQueen accepts the point as respects Aberdeen and Forfar in particular, but says that plans have now been finalised that will substantially improve both the capacity and the services in these courts, adding that, as with other courts, the transfer of staff and judiciary offers the potential to extend the current court programme by holding additional courts. “Of course we have to accept, like any service provider does, that sometimes things go wrong. So we don’t plan on the basis that everything will run perfectly on a particular day. We know things will go wrong, there will be delays, cases not calling: that’s why we have flexibility in the court programme now and that’s what we plan to have in the future.”

He adds that ongoing monitoring is an important part of the operation. “We certainly won’t be taking our eye off the ball. We’ve got an extensive range of management information in place looking at business volumes, looking at performance of individual courts and we’ll continue to monitor that very closely at a local level but also at a national level.”

Critics have also claimed that the redundant court buildings will be hard to sell, with their upkeep leading to a further drain on SCS resources. But McQueen insists that SCS’s financial planning does not assume the availability of sale proceeds. Where they arise – and he claims a good record for the organisation in making such disposals to date – they will be ploughed back into IT and improving court services.

Feasibility agenda

A model often held up as the blueprint for the future is the new justice centre at Livingston, a complex housing police, Crown and local authority support services as well as the court facilities. The Justice Committee was told that four areas are under consideration, and McQueen confirms that feasibility studies are planned in Borders, Fife, Highland and Inverness, with Borders first off the mark and due to report in February 2014. There is no fixed remit for the working group, McQueen says, beyond exmining “what a different model of justice might look like in the Borders”: it might include justice centres; how technology might allow hearings from different centres across the area; but again “there’s no reason why they can’t conclude that the model we have at the moment for Selkirk and Jedburgh is sustainable for the future”. Once that study is complete, “we’ll look at feasibility studies in the other areas”.

He admits it is not yet clear where the money would come from. “The funding is not going to be easy, and clearly is not within SCS budget at present, so part of it is long term and part will depend on what comes out of those feasibility studies. But this is about a partnership arrangement, so it involves looking at funding across the whole justice system, and in some cases it might be about using existing money in a different or a better way rather than it always being about new money.”

One thing that is clearly on the agenda is extended use of IT. SCS has committed to providing video links in the locality ahead of each sheriff court closure; of the first wave in November, links are already in place for Rothesay and Dornoch, “and we’re working with the local authority to get the same provision available in Kirkcudbright”.

But that is only a small part of the IT programme. Apart from the vulnerable witness facilities, pilot schemes are operating to conduct High Court appeals by video link to the appellant’s place of remand, and solemn procedure appearances in Glasgow Sheriff Court through a link to Barlinnie. Over the next 12 months, SCS aims to extend the High Court pilot, for example to bail appeals, and the Glasgow-Barlinnie link to other areas, as well as to explore the feasibility of High Court preliminary hearings being done by videoconference.

For civil business, with fewer security issues, the possibilities are greater. Early prospects include hearings involving adults with incapacity, child protection orders, child welfare hearings, adoptions and permanence orders: “Where the legislation allows these hearings to take place at the moment, we could start developing solutions in quite a short space of time”, McQueen states.

Reform schedule

What sort of timetable is he working to, for the main justice reforms? While decisions are for ministers, the Courts Reform Bill could come into force in early 2015, soon after the final phase of court closures and around the same time as the reduced High Court circuit. Financial year 2015-16 may well be a “trigger year”, with the first appointment of summary sheriffs, the institution of the national personal injury court and the sheriff appeal court, and the first sections of the remodelled civil procedure rules – a major undertaking. That will be the start of a phasing-in process, including the move to sheriff and jury centres: “It’s going to take a while before we have summary sheriffs up to their full number, whatever that will be, as it also depends on the retirement of sheriffs and when those replacements will be made. So the sheriff and jury business will be phased in over a five to 10-year period, making sure each time that we have capacity in the right place, and the technology in place to deal with some of the travel issues.”

Meanwhile, however, the financial squeeze goes on. But not quite as hard as originally projected: after making it clear to the Government and the Justice Committee that a £4 million capital spending allowance would have been barely enough to keep its buildings wind and watertight – and McQueen says that a major benefit of the work on the Court Services consultation has been to demonstrate the need for further investment – ministers have found an additional £8.5 million for building improvements and reducing backlog maintenance since last year, and capital budgets for the next two years have increased from £4 million to £7 million. “So there has been recognition of the pressures, there is money that is being delivered for that, and we will continue in future years to make priority bids where we need to make investment in those areas. I think we’re in a strong position to live up to our vision to deliver a stronger court service.

“I go back to what I said at the start – the three things we needed to do were to plan for the justice reforms, to invest in technology and services, and to make sure it is affordable in the long term. With the plans now in place I’m confident we are on track to deliver all three.”

Closing down

November 2013 sees the first of the court closures, affecting the sheriff and JP courts at Kirkcudbright (business transferred to Dumfries) and Dornoch (to Tain), Rothesay Sheriff Court (to Greenock), and the JP courts at Annan (to Dumfries), Cumbernauld (to Coatbridge), Irvine (to Kilmarnock) and Motherwell (to Hamilton). JP court business in Portree, Stornoway and Wick will merge into the sheriff court in each town.

The timetable then runs like this:

May 2014: Sheriff and JP court business in Arbroath transfers to Forfar, in Cupar to Dundee, and in Stonehaven to Aberdeen.

January 2015: Sheriff and JP court business in Dingwall transfers to Inverness, in Duns to Jedburgh, in Haddington to Edinburgh, and Peebles to Selkirk.