Criminal court: Dealing with delay

Swift and Early RIP?

These two oxymoronic cases about delay (the latter a full bench decision of five judges) have been sidestepped by a three judge opinion which, while running to 11 pages, does not tell the full story.

Lords Carloway and Pentland, who sat on the appeal Barr v HM Advocate, High Court, 28 July 2022 (see next article), will remember the bad old days in the 1980s and 90s when they were advocates depute, and the High Court, previously a Court of Session backwater, came under pressure with the exponential growth of drug trafficking cases.

Those fiscals who precognosced and reported promptly to Crown Office a rape case where the accused was on bail saw the case repeatedly adjourned, with the complainer repeatedly cited and cancelled until close to time bar.

A line was drawn across the sitting list of those cases of custody or bail which had to be dealt with, and the others were often not looked at by counsel. Early pleas by section letter were discouraged by hefty sentences. Discounts were not offered in the High Court, following Strawhorn v McLeod 1987 SCCR 413, but about half the sheriffs ignored that decision as contrary to common sense, and a plea in a jury sitting, even in the High Court, was usually rewarded by a reasonable sentence, such was the pressure the sitting judges were under.

After Bonomy

Fast forward to the Bonomy reforms introduced in 2004, which led to the rapid reduction in the bow-wave of adjourned cases, thanks to sentencing discounts (courtesy of Du Plooy v HM Advocate 2003 SCCR 640, before s 196 of the Criminal Procedure (Scotland) Act 1995 was amended to catch up in 2004), reasonable pleas being offered by the Crown, and the legal aid system being tweaked towards early preparation leading to resolution.

An “early plea” at solemn level might come months after an appearance on petition, as long as it was tendered before the Crown issued a full indictment with lists of witnesses and productions. By contrast it was a brave soul who ascended from the cells to the sheriff summary custody court and pled guilty with a sore head to events which had taken place the night before. Usually the only time the same level of discount was secured in those circumstances was when the accused was what the Americans call a “frequent flyer”, and the inevitable Crown opposition to bail was likely to be successful.

This disjunction between High Court and sheriff court proceedings continued and still continues in the wake of the decision in Barr and the similar cases of Sinclair and Appleby.

I accept that the cases remain outstanding, but they contain important matters of principle and procedure which have nothing to do with their merits. As with other decisions initially known to the Crown and those counsel involved, but not in the sheriff court at judicial, administrative and practitioner level – the most notorious example being HM Advocate v Ashif [2015] HCJAC 100, about statements of uncontroversial evidence, decided in March 2014 but not published until October 2016 – why not anonymise the judgment so that all of the profession and all courts can follow the law as currently determined?

Sheriff court disconnect

As part of the COVID recovery team I had empanelled a jury last week to start one of these cases, but an accused tested positive overnight and it had to be further adjourned on defence motion until next year.

While the High Court pressed on with the Bonomy reforms and aimed to have as few preliminary hearings as possible, sight I fear was lost of one of the main objectives – to stop the repeated citation of witnesses until absolutely necessary. Indeed in the immediate wake of the Bonomy initiative, significant numbers of staff whose job it had been to cite, cancel and recite witnesses could be redeployed elsewhere on more important tasks. Fifty per cent of High Court cases were disposed of before trial diets had to be organised.

In the sheriff court, however, some jury cases dragged on for years pre-trial, often due to delays in the Crown being able to produce crucial evidence such as drug reports and road traffic accident analysis. Skeleton indictments were fleshed out by a string of s 67 notices before a trial could be countenanced. Eventually it was thought a good idea to develop a Bonomy approach to sheriff and jury cases. The Bowen report was published in June 2010, but not implemented until August 2017. Apart from Glasgow, where specialist jury sheriffs have sat for many years, most sheriffs undertake sittings of one to four weeks, and their diaries are filled months ahead with other work: proofs including significant cases diverted from the Court of Session, family cases, extraditions etc. Many sheriffs have been called away to act as temporary High Court judges, and problems arise as one sitting ends and another, to be presided over by a different sheriff, is due to begin.

A further disconnect can be found in the operation of the Judiciary and Courts (Scotland) Act 2008. A board was formed with a large presence of senators and relatively few shrieval representatives, despite sheriffs being involved in 95% of the case work.

Management meetings are held from time to time, chaired by the Lord President, to discuss changes with the senators, but meetings of the sheriffs principal are chaired by an official and as a result edicts issued from time to time by the Lord President have had little or no “trickle down” to sheriffs or the sheriff court.

Tales from practice

Barr mentions the importance of Uruk 2014 SCCR 369, but this opinion was issued at a time prior to the Bowen reforms being implemented, when, as it had always done, the Crown led pre-trial and it, rather than the clerk of court, offered adjourned diets if a case could not proceed then and there.

Apart from those sheriffs immediately affected by the latest decisions, no one else knew. The sheriff clerks still have to be instructed to have sufficient jurors available for all of the jury sitting, so that cases can be indicted on the last day to spill into the next sitting.

By happenstance one week we actually had that availability in my court. The previous week I was prepared to proceed on a Friday, having refused an adjournment, but when told the Crown was prepared to go to trial I was forced to adjourn ex proprio motu due to lack of court time when I found I had no jurors left to empanel – fortunately without being appealed. Given the age of the case, doubts as to whether it was truly of sheriff and jury standard and problems over the repeated failure of the male complainer to appear, his female partner being the alleged assailant, I was tempted to consider the nuclear option of deserting the proceedings pro loco et tempore, leaving it to the Crown to re-raise this problematic case, which had been clogging up the court, at a later date at summary level if so advised. That gambit will no doubt become an appellate matter at a later time!

As we have seen in HM Advocate v Graham 2022 SCCR 68, COVID delays in proceedings add to the trauma faced by complainers and can lead to witness attrition. An experienced sheriff could see the signs, and the successful Crown appeal to extend the time bar and hear the trial at an adjourned date proved to be a Pyrrhic victory.

As far as I can see, the result of Barr et al is to move away from the two stage test laid down in Swift and Early to a “balancing of the interests of justice, the interests of the accused in being brought to trial within the statutory time limit, with those of the complainer and the public in general in allowing the system of justice to determine the charges on their substantive merits as opposed to on grounds that are essentially procedural in nature. If the interests of justice dictate that the time bar ought to be extended, cause to do so will have to be shown”.

Summary practitioners may recognise this modern approach is essentially the formula which was laid down in Tudhope v Lawrie 1979 JC 44, Lord Cameron at 49.

Pre-recorded evidence

Good progress has been made at High Court level to hold commissions pre-trial to lock in and have available the complainer’s evidence. Special suites have been built to accommodate this procedure and transcripts are available to jurors to assist their consideration of this crucial evidence. This approach was recommended at para 20 in the Graham opinion, dealing with a sheriff and jury case.

Sadly, the example I and the jury saw of commission evidence in one sheriff court case recently consisted of a single camera fixed on the witness, largely inaudible and invisible questioning from the depute fiscal, and barely audible replies from the witness. Only the defence agent, also unseen, could be heard asking a few questions in cross. Needless to say, it being a sheriff and jury case, no transcript was proffered by the Crown, leaving the jury to assess this evidence as best they could.

There has been jury research undertaken recently using cases based on real ones, with Lord Bonomy presiding. Before there is a rush to innovate further, perhaps there needs to be consideration of the modern jury’s task in presiding over multi-media evidence gathered at different times and played with recordings of varying quality.

Early on in the police investigation there is an interview of the accused by police where various impact questions are put. The camera angle is unflattering and often the accused is obscured by the inset camera showing the room in wider shot. At the commission evidence stage, which is taken later, parties may still not be in possession of the full facts. Fingerprint, DNA and medical evidence are often reduced to an anodyne joint minute lacking any expert commentary; other vulnerable witness evidence is heard online from austere settings, devoid of curtains, where the echoes produced test those in court to tune the equipment to clear and audible levels.

In the final analysis the jury deploys a qualitative assessment over all of this, and sometimes the Crown, like many football teams, lacks quality in the final third in presenting the case to best advantage.

Sentencing discounts: the latest

One area I am all in favour of is reducing sentences of imprisonment for all but the most dangerous and unmanageable. In the conjoined sentence appeals of McDonald and Milligan v HM Advocate [2022] HCJAC 34 (30 August 2022), McDonald pled guilty at an early stage to a charge of causing death by careless driving contrary to s 2B of the Road Traffic Act 1988.

His car had run into the back of a car being driven by a young mother. She had slowed her car in anticipation of a vehicle pulling out and the appellant, who was speaking on a hands free phone call, did not react quickly enough and stuck her vehicle when travelling about 46-49 mph in a 60 mph limit. The other motorist had been driving about 20 mph slower at the time. The collision propelled her car into the path of an oncoming van. She sustained multiple injuries and died at the scene.

The sheriff concluded that the appellant had been distracted by the phone call and had failed in his duty to maintain a sufficient distance between the vehicles. The appellant was a first offender, had expressed genuine remorse and the sheriff considered a community service order with the maximum 300 hours of unpaid work, together with a disqualification, was sufficient.

Both appeals seemed to have been mounted on the risky basis of questioning whether it was possible to reflect the early plea by imposing a non-custodial sentence. The sheriff in his report indicated he would have imposed a sentence of 12 months’ imprisonment less a discount for pleading guilty.

The sheriff had rejected the submission that the level of carelessness had not been of the highest, but decided on the non-custodial sentence. Had he reduced the number of hours imposed in view of the early plea, this would have amounted to a double discount. The appeal was refused.

Milligan’s appeal was dealt with in a similar way. It followed a plea of guilty to having sex with a 14 year old girl when he was 17. The judge considered a long period of community service would be of benefit to this young offender.