Lady Dorrian Review Governance Group: Specialist Sexual Offences Court Working Group Report

Part 8: practice and procedure in the New Court

Some members of the Group suggested that one of the new practices or methods of management that the New Court could adopt could be a move from a floating trial model to a fixed trial model. RCS and Victim Support Scotland (VSS) in particular wished fixed trials to be introduced. Such a model was perceived as adding greater certainty for complainers and witnesses; while a floating trial model was seen as not being truly compliant with trauma-informed practice for vulnerable witnesses. In addition, COPFS indicated that from their perspective, floating trials caused an administrative burden as consideration had to be given to the allocation of c74 prosecution counsel (Advocates Deputes "ADs") to undefined dates. In contrast, while accepting the need and rationale for improving the experience of all court users, some members expressed concerns about the introduction of fixed trials in the New Court without addressing issues and challenges with the current approach which would equally apply to a fixed trial model. The concern was that without addressing the challenges prevalent in the current system; rather than improving the experience for complainers, witnesses, accused and the justice system generally, there was significant potential for greater delay with the time between PHs and trials increasing significantly, with less efficiency and flexibility, potential empty courts and the Covid-19 backlog growing. Their preference was for the issues identified as causing challenges for court programming in the floating trial model to be managed and improved in so far as possible first. It was acknowledged in the first instance that this was not a matter for legislation and that the overall efficient progression of business of the New Court would remain a matter for the Lord Justice General or such other officials identified in the New Court's ultimate governance structure, the need for which is discussed above.

To inform discussions and considerations of the introduction of fixed trials in full or in part, the SCTS provided unpublished data and information to the Group to help illustrate the challenges the current practice of estimates, late pleas and adjournments posed, and the flexibility the floating model provided in contrast to a fixed model. It was explained that currently floating trials were used in the High Court for all but exceptional solemn business. High Court programming for all 20 trial courts was proactively managed via meetings with the Crown. Loading (i.e. the number of cases assigned to each trial court) reflected the estimates of length given, and the cases identified, by the Crown and defence as ready for trial.

Importantly, contrary to initial perception of some members of the Group, it was submitted that the floating model provided flexibility and a degree of certainty for all court users. For the period April to end July 2022 data indicated that the vast majority (94%) of all High Court trials that proceeded, called within 4 days of the identified start date of the float, with 26% on the identified date, followed by 19% on the first day of the float.

It was explained by SCTS that estimated and actual trial length figures provided by Crown and defence played a significant role in court scheduling and impacted the running of trials. An automatic move to a system of fixed trials for cases without seeking to make improvements to estimates and minimising adjournments and pleas at the start of, and during the trial, in so far as possible had the potential to significantly impact on trial programming, courtroom utilisation and churn; resulting in more uncertainty and further delays working contrary to the hoped intentions of members. For example in quarter 1 of 2022/2023 the Group was advised that the High Court was provided with accurate estimates in only 32 out of 150 occasions (21%), with 56% of trials exceeding the trial estimate. It was highlighted by some practitioner members that this data indicated the difficulties professionals faced in estimating trials generally, which was not a science. A number of variables were at play at any given time, with some not foreseeable at the time of the estimate given to the court. Covid-19 and general illness impacted witness, staffing and professional availability and the ability to proceed with cases and trial duration. Duration of the trial could also be influenced by the trial judge to some extent. The point of note for particular consideration, it was submitted by SCTS, was that a floating model provided a flexibility which a fixed model could not. If a trial finished early other cases in the float could be moved in to the court. If a case spilled over its estimated length there would be an impact on when the next scheduled trial can start, potentially delaying its start significantly or leading to its adjournment; impacting counsel and solicitors' ability to accept instructions. A floating trial model allowed the potential for other cases to be moved to other courts, a fixed model would not.

It was acknowledged by all that more could potentially be done by practitioners to improve the interim floating model situation, while also acknowledging that some aspects, particularly regarding witnesses and illness remained outwith their control. There was a real impetus within the Group to improve the scheduling model and to work collaboratively to achieve that. The inevitable lead in time before the introduction of the New Court provided justice partners the opportunity to explore and potentially further address these challenges and concerns raised. That progress in this regard should continue to be reviewed.

Members agreed that the use of fixed trials should be an aspiration for the New Court. That there might still need to be for some flexibility in the model ultimately used by the New Court to ensure efficiency and avoid unnecessary court downtime and negative impact on the recovery programme however.

Progressing matters

The Group considered how progress could be made to help reach its recommended aspiration of an improved court programming model with fixed trials including potential alternatives to the immediate introduction of a wholescale fixed diet system. It felt that ongoing consideration and review would have to be given to the landscape and data available going forward by those responsible for the programming of the New Court, particularly when the commencement date for the New Court was known.

Use for selected cases

It was suggested by some members of the Group that if fixed trials could not be introduced automatically or wholescale into the New Court then as a minimum they should be used for selected cases. It was suggested that it could be used in those perceived rare situations, where a complainer was giving live evidence. This suggestion and perceived 'rarity' proceeded on the assumption that the Lady Dorrian Review recommendation (recommendation 1) that all complainer evidence could be pre-recorded would apply. It was acknowledged that there would be practical, albeit not insurmountable challenges to such an approach. E.g. identifying such cases would require detailed and considered preparation prior to and at the Preliminary Hearing by the parties supported by case management- which the Group recommended in any event. There were, or might be, situations where a change to live evidence might not be foreseeable at such a procedural stage. Rather it may be dictated by the facts and circumstances close to or at trial, which might be hard to address/be captured for such an approach. Further detailed consideration would be needed on the circumstances it would apply and how it would work in practice. There was some support for this suggestion within the Group, and progression of it is accordingly recommended subject to the challenges and practicalities referenced and the individual circumstances of cases.

More engagement and collaboration between justice partners

The Group acknowledged that concerns about complainer and witness certainty were not solely or strictly connected to, or are a consequence of, the actual floating trial process itself necessarily, but rather they related to a number of factors or inputs in to it, which had the potential for improvement now and also as part of the case management within the New Court too. In addition to taking steps now, it was submitted and agreed that the New Court, provided a unique opportunity to improve the causes of current challenges, and on the face of it inadequacies, and that should be a particular focus of the practice and procedures it introduced in so far as possible. A recommendation has been made to that effect.

Communication with complainers

Practitioner members of the Group themselves acknowledged that the floating trial concept was challenging to understand and follow for them. Members therefore felt that in line with improving communication and complainers understanding as per recommendation 3 of the Lady Dorrian Review there was merit in continuing to improve communication and complainer understanding of the concept, covering in particular the factors that might impact when their trial might in fact start. The single point of contact, as recommended by the Lady Dorrian Review, could, if implemented, support that further.

Practice and procedure in the New Court recommendations:

The Working Group Recommends that:

• the introduction of fixed trials in the New Court should be a key aspiration, with the introduction and potential use of such a model kept under constant review prior to, at commencement of, and throughout the operation of the New Court by those responsible for the New Court and, or its programming. The model used by the New Court should ultimately seek to achieve an optimum balance between efficiency and flexibility
• fixed trial diets for those cases in which a complainer's evidence has not been pre-recorded and therefore they require to attend the New Court to give 'live' evidence should be used in so far as possible and practicable, taking cognisance of the individual circumstances of the case
• in the interim there should be concerted efforts by justice partners involved in the High Court trial process to review the respective roles they play and collaborate and engage further in the identification of cases for trial, provision of estimates, and trial duration with a view to improving efficient use of current trial diets and trial scheduling in so far as possible and practicable
• with a view to improving programming and efficiency of the use of the trial model to be adopted, in so far as possible and practicable, the New Court should aim to encourage, via the use of judicial oversight and case management in particular, improved engagement and communication between prosecutors and defence to facilitate the identification of cases ready for trial, improved estimated duration of trials and efficiency during trials. Progression in this regard may be assisted with the ultimate conclusions of the review in to defence statements recommended by the Lady Dorrian Review
• meantime and in line with the recommendation made by the Lady Dorrian Review for improved communication to complainers, there should continue to be steps taken to improve communication with complainers regarding how the floating trial model operates, and their general understanding of the concept in so far as possible and practicable