Investigation and prosecution of sheriff solemn cases: thematic review

Chapter 3 – Sheriff and Jury Reforms

32. The majority of the recommendations proposed in the Bowen Report were enacted in the Criminal Justice (Scotland) Act 2016 (the 2016 Act).^[11] Many mirrored changes made to the High Court system by the Bonomy reforms^[12]including indicting to a first diet only^[13] the submission of a written record and increased judicial management over court business.

33. The key changes were:

• Cases are indicted to a first diet only;
• A duty was placed on the prosecution and defence to communicate within 14 days of the service of the indictment and to prepare and lodge a written record of their state of preparation to the court no later than two court days before the first diet;^[14]
• Trial diets are allocated at the first diet only once the court is satisfied that the case is fully prepared;
• Trials are allocated to a specific date and only continued for a maximum period of four days before being commenced, adjourned or discontinued;
• SCTS assumed responsibility for scheduling solemn cases;
• Time limits were altered to bring them in line with High Court procedure.

Time Limits

34. Time limits regulate the maximum time that can elapse between a person appearing on petition and the first diet and the commencement of a trial^[15] and apply to every charge for each accused. The end of the time limit is commonly referred to as the "time bar". Time limits differ if the accused is remanded or on bail. The 2016 Act amended solemn time limits as follows:

• Increased from 15 days to 29 days the period that must elapse between service of the indictment and the first diet
• Provided that the first diet must call within 11 months of the accused's first appearance at court for bail cases and within 110 days for custody cases
• Increased the maximum length of time that a person can be remanded in custody pending a trial on indictment in the sheriff court from 110 days to 140 days.

The reforms were designed to:

• Reduce waste and inefficiency through improved level of preparation of cases prior to the first diet by the prosecution and defence
• Achieve earlier and more effective communication focussing the issues in dispute and reducing adjourned trials
• Improve the speed of disposal of cases
• Reduce the number of witnesses required to attend court and improve the experience of victims, witnesses and jurors
• Increase judicial management of Sheriff and Jury business; and
• Increase public confidence in the system.

Implementation

Practice Note Number 3 of 2015: Sheriff Court Solemn Procedure

35. In anticipation of the proposed legislative changes, some of the recommendations were progressed, through a criminal courts practice note^[16] issued in December 2015. It provided guidance on the contribution expected of the prosecution and defence to enable the judiciary to manage sheriff and jury cases. It covered five areas of sheriff and jury business:

• Management of Solemn Business – it placed the onus on sheriffs to be actively involved in the management of the solemn business of the court, notably at the first diet stage, with a view to maximising the utilisation of court time.
• Communication between the Prosecution and the Defence – it required the prosecution and defence to have meaningful communication prior to the first diet and to fully address the court on the matters set out in the written record, including the steps taken to agree facts which are unlikely to be disputed.
• Disclosure and Defence – the prosecution was expected to have complied with disclosure requirements and the defence to timeously lodge a defence statement^[17] setting out the nature of the defence and any matters of fact on which the accused takes issue with the prosecution.
• Conduct of First Diets – emphasising that the first diet is intended to be the end point of preparation rather than the starting point, it stipulated that a full explanation for any motion for a further first diet by the prosecution or the defence would be required. Following a plea of not guilty the court will ascertain whether the defence and prosecution:
  • have considered the evidence they may require to lead at the trial;
  • have taken steps to ascertain whether any of the witnesses will require special measures, by reason of she/he being a child or a vulnerable person, or require the services of an interpreter;
  • have disclosed the witnesses they intend to call and ascertained their availability to attend.
• Conduct of Trial Diets – the prosecution and defence must provide a reasonable estimate of how long the trial is likely to last. Having regard to securing the efficient use of court time, the responsibility for determining the running order of trials remained with the prosecution.

36. Thereafter the legislative reforms were implemented incrementally between 29 May and 31 July 2017.

37. Prior to their implementation COPFS established a project team to prepare for the transition. Various strands were considered:

Training – There was a combination of training initiatives for the staff. A task force went out to all local court teams to deliver face-to-face training to SLMs and business managers highlighting the key points of the reforms with a focus on interacting with sheriff clerks. It emphasised the need to put in place a process for first diet preparation and on managing the trial business.

A mandatory e-learning package for all staff involved with investigating and prosecuting sheriff solemn cases was also introduced.

Workload – Through the use of overtime and extra resources, the Local Court teams worked to reduce the number and age profile of such cases. There was, therefore, a healthy age profile prior to the reforms being fully implemented.

Petition Tracker – COPFS developed a Real Time Petition Tracker that holds data for all accused that appeared on petition on or after 1 April 2016. It is updated weekly and pulls information from the COPFS IT system including the target first diet date, relevant time bars and estimated length of trial information enabling statistics to be produced on the number of live indictments and how many trials are fixed. It is accessible by SCTS and is a critical tool to assist with predicting levels of business and planning court calendars.

SCTS Solemn Criminal Reforms Sheriff and Jury Implementation Steering Group

38. In addition to the preparation undertaken by COPFS, under the Chair of Sheriff Principal Pyle, SCTS established an implementation Group. It comprised of members of the judiciary; Sheriff Clerks from various jurisdictions; members of SCTS headquarter units specialising in Management Information, Legislation, IT and Training; and representatives from COPFS.

39. The Group identified key indicators to assess the success of the reforms and monitored these through a bespoke suite of Management Information reports. These included –

• Number of Section 76 pleas as a % of registered indictments
• Number of accused who pled guilty at first diet as a % of first diets
• Number of accused where proceedings concluded at the first diet as a % of first diets
• Number of accused that pled/concluded at continued first diets as a % of continued first diets
• Trial attrition rates.^[18]

Performance

40. In their 2018/19 Business Plan SCTS reported that the reforms have improved the efficiency of case management and reduced levels of case churn.

41. Management Information held by SCTS comparing 2014/15 – the last full year before the practice note – with the current financial year 2018/19 make favourable reading.

	2014/15	2018/19	Percentage point change pre and post reforms
Number of Section 76 pleas as a % of registered indictments	18%	22%	4 percentage point increase
Number of accused who pled guilty at the first diet as a % of first diets	11%	28%	17 percentage point increase
Number of accused who pled guilty at a continued first diet as a % of continued first diets	13 %	16%	3 percentage point increase
Number of accused where proceedings were concluded at the first diet as a % of first diets	14%	32%	18 percentage point increase
Number of accused where proceedings were concluded at a continued first diet as a % of continued first diets	17%	23%	6 percentage point increase
Pre-trial attrition % of indictments registered to trials called	28%	45%	17 percentage point increase
% of trials adjourned due to a lack of court time	7.1%	2%	5.1 percentage point decrease

Key Finding

Following implementation of the reforms, key performance indicators demonstrate an increase in earlier resolution of cases and reduced churn.

42. COPFS has a KPI to serve indictments in 75% of all sheriff and jury cases within eight months of first appearance on petition. Chart 1 illustrates that, following the reforms, compliance with the target has improved. It was met and exceeded in 2017/18 and 2018/19.

Chart 1