Practice note aims to regulate complex High Court trials

An initiative to ensure that complex High Court cases are kept within reasonable time limits has been embodied within the first practice note issued by the court this year.

The practice note, entitled “The Management of Lengthy or Complex Criminal Cases”, was launched yesterday by Lady Dorrian, the Lord Justice Clerk, at a gathering of judges and practitioners in the High Court in Glasgow. It includes a protocol that is the result of collaboration between the judiciary, the Crown Office and the legal profession, designed to promote best use of public resources and enable a jury to better remember and assess evidence.

For trials involving complex crimes, or multiple accused, the protocol calls for judges to manage the case from "cradle to grave" with an early, detailed understanding of their complexities.

Primarily aimed at cases likely to last eight weeks or more, it calls for:

• prosecutors to provide an early outline of key facts and evidence;
• defence agents to provide an early statement;
• better use of uncontroversial evidence being agreed in advance of trial;
• better use of focused evidence during trial.

This will enable the court to address the real issues of dispute in a case. The protocol may also be followed in suitable cases which are estimated to last for more than four weeks, and which have been identified by the Crown as likely to benefit from its measures. It "summarises the good practice which experience has shown can assist in bringing about some reduction in the length" of complex trials, the best handling technique for which is "continuous management by an experienced judge nominated for the purpose".

The protocol suggests that most cases should be completed within three months, and this should be exceeded only in exceptional circumstances. It states: "The intention is not for the judges to take control, but for the judge to direct and manage the efforts of those involved in a flexible way which assists identification of key issues, enables the trial to focus on the primary issues in dispute, and keeps the eventual trial within manageable limits."

Launching the protocol, Lady Dorrian thanked all those involved. She told guests from across the justice system: "It has been most encouraging to receive such broad support for the initiative, and what it aims to achieve."

She added: "Ultimately, as the text of the protocol explains, ‘the judge will try to generate a spirit of co-operation between the court and the advocates on all sides. The expeditious conduct of the trial and a focusing on the real issues must be in the interests of all parties’. I sincerely hope that these new measures will be received in a similar spirit, and that their implementation will encourage commitment and creativity in lengthy and complex proceedings in our criminal courts in a fair and efficient manner."

Also speaking at the launch were the Lord Advocate, James Wolffe QC, the Dean of the Faculty of Advocates, Gordon Jackson QC, and the President of the Law Society of Scotland, Graham Matthews. The Lord Advocate said the practice note had been built on "mutual respect" and reflected lessons learned from previous complex prosecutions. The Dean of Faculty agreed that the aims of the practice note could be achieved in the "spirit of co-operation" where respect was given to both the defence and the prosecution. The President added that the move towards best evidence was something that could be welcomed by everyone, including juries.

Click here to view the practice note, which takes effect from today (10 May 2018).