New baseline needed for cases awaiting trial: Carloway
Scottish criminal courts are no longer expected to return to pre-pandemic levels of cases awaiting trial, the Lord President revealed yesterday at the opening of the new legal year.
In his address in Parliament House, Lord Carloway said that although good progress had been made with the recovery programme, which aimed to restore the courts to their pre-pandemic capacity, due to the “ever-increasing volume” of indictments and complaints libelling sexual offences “we no longer expect to restore matters to the pre-pandemic position. We need to adjust our expectations and set a new reasonable baseline for the number of cases waiting to go to trial at any one time”.
Modelling now predicted that “the number of High Court cases waiting for trial will recover to a new reasonable baseline level by March 2025, and sheriff solemn trials by March 2026”. The Lord President did not indicate what that baseline might be. Solemn cases are still waiting about twice as long to come to trial – more than 40 weeks compared with around 22 weeks – as before the pandemic.
Turning to reforms in progress, Lord Carloway said the summary case management pilot in Dundee, Hamilton and Paisley sheriff courts had brought earlier resolution of proceedings and a reduction in witness citations, and work was underway to extend it to Glasgow. The creation of facilities for children and vulnerable witnesses to pre-record evidence and give evidence remotely was being accelerated. Plans to move to virtual custody hearings were being accelerated due to the disruption in prisoner escort services.
Without referring to the controversy over judge-only rape trials, on which judges have submitted critical comments in evidence to the Scottish Parliament, Lord Carloway described as “encouraging” the proposals for reform in the Criminal Justice Bill currently before Holyrood, as to which, “Overall, the judiciary believe the bill proposes a number of measures which, in principle, represent improvements to the existing system.”
The judiciary welcomed the reforms “insofar as they aim to make giving evidence a less traumatic experience for witnesses, “including the creation of a right to anonymity and to independent legal representation for complainers in relation to applications under the rape shield legislation, the establishment of a specialist sexual offences court and the abolition of the not proven verdict”.
At the outset of his remarks, however, the Lord President repeated the criticisms by the senior judiciary of the Regulation of Legal Services (Scotland) Bill, which “as currently drafted, gives rise to serious constitutional concerns about the rule of law and the separation of powers. It is a threat to the independence of the legal profession and the judiciary”.
The bill allows the possibility of ministerial intervention in regulation. This would lead, Lord Carloway stated, to Scotland being “viewed internationally as a country whose legal system is open to political interference”, which would have “serious adverse consequences”.
He reiterated: “The only way to ensure that lawyers will be able to stand up for the individual, whether a person or an institution, against the Government of the day, is for the Lord President, and the Court of Session, to remain as the ultimate regulator of the legal profession.”
Regarding the civil courts, Lord Carloway praised the recent introduction of live streaming for Inner House hearings, and the new and improved Civil Online portal. The volume of tribunal work was increasing, which required a sufficient level resources from Government.
“We are working hard to deliver these improvements, but, as ever, we can only do as much as resources allow. We will continue to do what we can within budgetary constraints. I ask only that the Government continues to support us by providing us with sufficient funding to continue to deliver core services, as well as these improvements to the system.”
The Lord President concluded by welcoming individually the 15 new King’s Counsel, and by inviting the Vice Dean of the Faculty of Advocates, Ronnie Renucci KC, and the President of the Law Society of Scotland, Sheila Webster, to speak.
Mr Renucci referred to the hard work undertaken daily by all those working in the criminal courts to keep the system running and moving forward, in the face of the problems caused by the diminishing numbers of those practising. Faculty would “continue to attempt to recruit the brightest legal talent from all walks of life and in doing so promote diversity”, and “It is refreshing to note that this year there are more female devils due to start the foundation course in October than males.”
Focusing on the two contentious bills before the Scottish Parliament, Mrs Webster regretted that the “serious flaw” of Government powers in the Regulation Bill was detracting from its positive elements, such as new forms of regulation for legal businesses and restrictions on who can call themselves a lawyer. She also voiced “serious concerns” over the Justice Reform Bill – not only regarding judge-only rape trials but also the removal the not proven verdict. And she “bitterly regretted” that legal aid reform was once again missing from the recently announced Programme for Government.