Criminal court: Towards proper control

Management of cases by the court, coupled with ownership so that cases are properly progressed to conclusion within a reasonable time, and consistency of approach – these have been the trends over the mid to recent past.

This also heralds the future.

The desire for consistency throughout the country underpins the marking hubs and national specialist units brought in by the Crown.

The procedure for pre-intermediate diet meetings and cases then proceeding to that diet, with guidance applying in all sheriffdoms, and a streamlined system designed to avoid churn and achieve consistency of approach, signposts the route towards a more efficient criminal justice system.

Guidelines by the Scottish Sentencing Council increasingly guide the judiciary with a view to consistency at the point of sentencing. 

Use of court time

In my article at Journal, February 2023, 28, I discussed the opinion of the Sheriff Appeal Court in PF Glasgow v Cooper [2022] SAC (Crim) 8. Part of the focus was on making proper use of court time, and the management of cases so that there is an efficient throughput of business to prevent or, at least, minimise churn. To that end, in both summary and solemn cases, the expectation is that the court will exercise a management function.

For that to happen, the Crown and defence have to play their part. Repeated continuations of intermediate and first diets are to be avoided, all the more so during the recovery programmes for summary and solemn business post-pandemic.

There should be timeous (1) disclosure of evidence which requires to be disclosed, (2) citation of witnesses, and (3) negotiation of joint minutes agreeing non-contentious evidence so that issues can be focused.

Those marking cases for the Crown and preparing guidance for solemn case preparers routinely ensure that instructions are given at an early stage for police statements to be submitted, forensic enquiries carried out and any follow-up matters dealt with. There is no doubt that front-loading contributes to the efficient disposal of business.

Having talked primarily about summary cases, it seems sensible that I draw attention to some recent solemn cases as well.

Conducting first diets

The importance of management/ownership of cases was highlighted by the High Court in S(B) v HM Advocate [2023] HCJAC 5; 2023 SLT 339. 

An appellant charged with wilful fireraising at an educational centre appeared on petition on 16 June 2020 and was indicted to a first diet on 15 January 2021. That diet was continued administratively until 1 March and then 25 May because of Covid-19 restrictions. On 25 May, the diet was adjourned on joint motion for further preparation. It was adjourned on six further occasions, inter alia “for further investigations”, “for discussions to be made” and “for disclosure to be obtained”.

On 16 September 2021, at a first diet, a trial diet was fixed for 7 February 2022. When that diet called, it was adjourned until 6 June due to lack of court time. The 12 month time limit was extended to 10 June, in terms of s 65(3) of the Criminal Procedure (Scotland) Act 1995.

On 6 June, the appellant’s agent was told it was likely that the trial would require to be adjourned because another trial had overrun. On 9 June, the case was called in a court different to the anticipated trial court for the purposes of adjournment. The appellant had previously been excused attendance. His agent, who was probably in the building, was not told of the change of court. There was no appearance by or on behalf of the appellant.

The sheriff granted the motion to adjourn in respect that there was “no court room available”. A new trial diet was set for 20 September 2022, with the time bar extended to 23 September. An appeal was marked against the decision to extend the time limit in absence.

The High Court pointed out (para 3) that at the seven first diets, seven different depute fiscals and five different sheriffs had been present. That reflected a lack of ownership of the case by either the prosecution or the court, particularly disturbing given that the appellant was a child.

Since the sheriff court solemn procedure reforms introduced by part 3 of the Criminal Justice (Scotland) Act 2016, a first diet, like a High Court preliminary hearing, was intended to mark the end of the preparation stage. Continuations or adjournments should be the exception rather than the rule. In terms of s 71B of the 1995 Act, having disposed of any preliminary pleas and issues, the court had to fix a trial diet (para 4).

The procedure followed flew “in the face of the statutory scheme”; the various applications for adjournments should neither have been made nor granted (paras 4 to 10). Routine continuations of first diets for reasons such as those recorded should be refused in favour of fixing a trial diet for a time which allowed any additional preparatory work to be completed and/or granting a time limited order for provision of whatever relevant information was required (para 11). 

If sheriffs did not take firm control of the management of first diet cases, repeated and unnecessary churn resulted and an overloading of first diet courts with multiple continued cases. Sheriffs are given time to prepare cases; the number calling ought to allow them to manage cases appropriately, but to do so, they require the assistance of Crown and defence in carrying out the necessary preparation in advance (para 12).

Only in exceptional circumstances should a trial which has already been adjourned due to lack of court time be adjourned again for the same reason, especially where the accused
is a child (para 14).

When deliberating an extension of time under s 65(3), there is a statutory requirement for the court to give parties an opportunity to be heard; when the appellant’s agent could not be located immediately, consideration should have been postponed until later in the day. It should have been possible for the Crown or court to have communicated effectively with the agent; failure to do so was a substantial irregularity (paras 17-20).

Notwithstanding the seriousness of the failure, the court required to be satisfied that, had the agent been present, a different decision might have been reached, namely one that would have ended the prosecution of a serious charge. Having regard to the procedural history, with at least some delay attributable to the appellant’s belated amendment to the defence statement and consequent application for an excessive degree of disclosure, that would not have been in the interests of justice. The appeal was refused.

Extensions of time

As can be seen, one of the court’s management functions is to adjudicate on applications for extensions of time and adjournments.

In Barr v HM Advocate [2023] HCJAC 9; 2023 SLT 324, an appellant charged with an abusive course of conduct towards his partner contrary to s 1 of the Domestic Abuse (Scotland) Act 2018 appealed against a decision to extend the 12 month time limit under s 65(3)(b) of the 1995 Act.

The sheriff and parties relied on what had hitherto been thought the approach – a two stage test based on dicta in HM Advocate v Swift 1984 JC 83 and Early v HM Advocate 2007 JC 50. At stage one, the question was whether the Crown had shown a sufficient reason to justify an extension; at stage two, whether, if it had, the court should grant an extension in all the circumstances.

In this case the reason for the application, as with a previous application, was the complainer’s absence. On the previous occasion the Crown had obtained a witness warrant, but had not enforced it as it had not been passed to the Crown by the court. The case had been timeously indicted, and so was within the period wherein the court could be expected to exercise a management function.

The ultimate position of the Crown was that had the witness warrant been received, it would have been enforced. However, the High Court provided a different perspective (para 21): “It is quite inappropriate in sexual and domestic abuse cases for complainers, who may be regarded as vulnerable, to be arrested and thus kept in custody pending liberation at a court appearance, or perhaps even until the trial diet, thus adding to any trauma which they might have already sustained. The appropriate course is, at least initially, to persuade the complainer to attend the trial, no doubt by, amongst other things, putting in place vulnerable witness measures. Better still… steps should be taken to have the complainer’s testimony taken on commission.”

At a first diet on 30 May 2022, the sheriff, applying the two stage test, extended the time limit. The trial had previously been adjourned to 8 August.

The High Court distinguished Swift and Early as being of their time and different in their facts. However, these authorities were not overruled. A larger bench would, of course, have been required for that. 

The position is neatly set out in the opinion delivered by the Lord Justice General (para 16): “The introduction of the 12 month limit, with its provision for an extension on cause shown, must now be viewed in light of the incorporation of the reasonable time requirement in article 6(1) of the European Convention into domestic law. Having regard to the jurisprudence on the interaction between the reasonable time requirement and the general right to a fair trial (Spiers v Ruddy 2009 SC (PC) 1), it may often be difficult to resist an application for an extension of the 12 month time bar when the trial remains due to start within what would be regarded as a reasonable time under the Convention, where a reason for an extension has been proffered and no additional prejudice to the accused is demonstrated.”

Where does that leave us? Well, in the words of the Lord Justice General: “It may still be valuable to pose the two questions… desiderated in Swift, but the single true question for the court, when it is being asked effectively to stop a prosecution in a solemn case because of the non-appearance of a crucial witness at a trial diet, is: where do the interests of justice lie? This will involve a balancing of 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 libelled on their substantive merits as opposed to on grounds that are essentially procedural in nature.”

Course of abusive behaviour

I made a passing reference earlier to the Domestic Abuse (Scotland) Act 2018: a cue to discuss some appeal cases on aspects of charges under s 1. These are now very common in the courts, though parties are often unaware of the cases I refer to below.

Section 1 makes it an offence to engage in a course of behaviour which is abusive of a partner or ex-partner, in circumstances where a reasonable person would consider that course of behaviour to be likely to cause physical or psychological harm, and the offender either intended the behaviour to cause such harm or was reckless as to whether it did so. References to psychological harm include fear, alarm and distress.

By s 2, abusive behaviour includes behaviour which is violent, threatening or intimidating, and has as a purpose, or would be considered by a reasonable person to be likely to have, a range of effects amounting to controlling behaviour towards a complainer. References to violent behaviour include sexual violence. For completeness, s 10 stipulates that behaviour means “behaviour of any kind”, including communication as well as intentionally failing to do or communicate something. A course of behaviour involves behaviour on at least two occasions.

In A(C) v HM Advocate 2022 SCCR 267, the appellant was convicted of a charge under s 1 narrating a series of different types of abusive behaviour. There was corroboration of at least four types of behaviour alleged.

The opinion delivered by the Lord Justice Clerk made it clear that the Act created a new offence constituting a separate crime known as a course of conduct. That had been stated by the Lord Justice General previously at para 37 of Wilson v HM Advocate 2019 SCCR 273.

At para 10 of A(C), the Lord Justice Clerk said: “It is the course of behaviour which is the core of the offence, and it is thus the course of behaviour – in other words proof of behaviour ‘on at least’ two occasions – which must be established by corroborated evidence. Once there is corroborative evidence of this kind it is open to the jury to determine that other incidents equally form part of the course of conduct, even though spoken to by only one witness… it is the proof of a course of conduct which constitutes the relevant essential element of the offence.”

This is the evidential position which applies in relation to a single charge of assault in a “single episode of assault”. Every element does not require to be corroborated.

That is, of course, different to the position in Wilson, where an omnibus charge of assault included several incidents over a period of a month, each of which had to be viewed as separate crimes requiring corroboration rather than elements “in a single episode of assault”.

In A(C), the correct directions had been given by the sheriff and the appeal was refused.

Behaviour likely to harm 

A different aspect of s 1 was considered in Walker v PF Dunoon [2022] SAC (Crim) 9. The charge libelled that between 20 August and 10 September 2021 the appellant engaged in a course of behaviour abusive of his ex-partner by repeatedly loitering at a primary school while she was collecting his child.

To establish the actus reus of the offence in terms of s 2 of the Act, the court required to find that the appellant’s behaviour was (1) directed at the complainer, and either (2) that by simply being at the locus (where the complainer objected to his presence), his behaviour could be regarded as violent, threatening or intimidating, or (3) that a reasonable person would consider his behaviour likely to have one or more of the relevant effects in subs (3), such as frightening the complainer.

The mens rea requires a finding that either the appellant intended to cause the complainer psychological harm or he was reckless as to whether his behaviour had that result.

The locus was close to the school. The appellant was attempting to observe his five year old daughter leave school. He had recently been awarded contact every Friday. She was to be collected at 3.45pm from a contact centre a few minutes’ walk from the school.

On 20 August the appellant sat on a public bench and waved to his daughter. She waved back. The complainer objected to the appellant’s presence after this incident. The findings in fact made no reference to her being distressed. A solicitor’s letter was sent to the appellant, but there was no evidence of this stating that the complainer was threatened, intimidated, fearful, alarmed or distressed. The appellant’s solicitor advised him that there was no legal restriction on attending to observe his daughter leaving school. On 27 August, he remained in his vehicle at the locus, and was observed by the daughter. The complainer was not present. On 10 September, he went to the locus and again remained in his vehicle.

The SAC made it clear that these cases are fact sensitive, and mere presence at a locus had the capacity to fall within s 10 of the Act. However, it was difficult to see how the sheriff could have concluded that the appellant was reckless as to whether his behaviour was likely to cause the complainer psychological harm, given that he took legal advice and remained in his vehicle on the second and third occasions.

There was no finding to support an inference that the appellant’s behaviour was violent, threatening or intimidating, or had as one of its purposes frightening the complainer, in terms of s 2(2). Likewise there was no finding that the appellant was aware that the complainer was fearful, alarmed or distressed simply by his presence. The findings did not support an inference that his behaviour was directed towards the complainer. When considering a no case to answer submission, the sheriff had focused purely on the second part of s 2(2)(b)(ii), namely whether the behaviour would be considered by a reasonable person to be likely to have one or more of the relevant effects.

The opinion in this case emphasises the importance of addressing the finer points of the legislation and, from a sheriff’s perspective, the care needed in drafting findings in fact, particularly where the legal matrix is a complicated one.

Drug treatment orders 

Finally, a postscript to a previous article by Sheriff Crowe in which he lamented the temporary unavailability of drug treatment and testing orders in Edinburgh. This necessitated the less than ideal workaround of community payback orders with conduct requirements, plus reliance on voluntary agencies to supervise treatment. 

I am pleased to report that these orders are now making a gradual but very welcome comeback as staffing issues are resolved.