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Improving Practice - The 2002 Review of the Practices and Procedure of the High Court of Justiciary by the Honourable Lord Bonomy

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IMPROVING PRACTICE

CHAPTER 9 THE TIMING OF THE PRELIMINARY DIET AND TIME LIMITS

The 110-Day Rule

9.1 It is a general source of pride to those involved in our criminal justice system, to politicians, and to the Scottish public in general that solemn criminal proceedings are conducted expeditiously, and with due regard to the interests of justice, within time limits which do not apply in any other comparable jurisdictions in the world. The best known time limit, which is the envy of many but which no other jurisdiction really wants to have to work to, is the "110-day rule", which requires the trial of a person remanded in custody to start within 110 days of his full committal in custody for trial 142. It has existed in fairly similar form for in excess of three centuries 143. In 1887 it was extended from 100 to 110 days 144. In 1980 the requirement that the trial should be completed within that period was altered to require the trial to be commenced within that period 145. In recent months I have heard and read reference to it as "the jewel in the crown of the Scottish criminal justice system". While a crown may have many jewels, that expression tends to be used to describe the best or most highly prized item in a collection. Historically the 110-day rule has been regarded by many as such, but it is not the most significant time limit in the system.

The 80-Day Rule

9.2 The real jewel in the crown is the "80-day rule", which requires the service of an indictment, listing the charges, witnesses and productions for the case, upon an accused person in custody within 80 days of his committal for trial 146. Should an indictment not be served within that time limit, the accused is entitled to be released from custody. It is only because the Crown have managed to investigate and prepare the case against the accused in custody and indict him for trial within 80 days that the 110-day rule comes into play. The rule that ensures the expeditious preparation of the case and bringing of the case to trial is the 80-day rule. That time limit is seldom extended in practice. It is to the great credit of the Crown that, in spite of the increased pressure upon their staff, they manage to indict custody cases within this time limit. It is a tight limit, but one which the Crown consistently meet and have undertaken to continue to meet. There is no reason why it should be altered.

Extending the 110 Day Period in Current Practice

9.3 In contrast to that, the 110-day time limit is now regularly extended. While that happened in only 11% of cases in 1995 147, it occurred at least once in 23% of custody cases in 2001 148. That is a high figure, bearing in mind that roughly 55% of cases result in pleas of guilty. 149 The period was extended more than once in some cases. The most frequent reason for extension is to allow more time for preparation 150. As already explained in Chapter 5, this is largely because the period between the service of the indictment and the trial diet, usually about the same as that between the 80 th and 110 th days, is often inadequate for defence preparation for trial 151.

Time Between Service of Indictment and Preliminary Diet

9.4 For a preliminary diet to be meaningful, it would require to be held long enough after service of the indictment to enable defence investigations to be completed, the case against the accused to be assessed, his instructions to be taken, decisions to be made as to whether any preliminary issues are to be raised with the Court, and any notice of uncontroversial evidence addressed. With the best will in the world that will generally take the best part of three or four weeks. That immediately raises the question of how a meaningful preliminary diet can be held and a fixed trial diet allocated, all within the 110-day time limit. The answer is that it cannot be done. The question that remains to be answered is whether it is acceptable to vary the 110-day rule, standing the obvious desirability of assigning more predictable trial diets.

9.5 Those opposed to any alteration to the rule might point to the Sheriff Court, where there is a mandatory first diet and the trial must still start within 110 days. However, cases in the Sheriff Court are in the main less complex and easier to prepare than High Court cases. Even then the benefits of having a procedural diet are not seen at the original first diet, but at the second or subsequent calling following adjournment of the first diet, because there may be insufficient time between service of the indictment and the first diet for enough work to be done to make it meaningful. Those opposed might also point to the fact that any variation in the rule would probably require to be introduced into the Sheriff Court, as well as the High Court. Solemn procedure in the Sheriff Court is outwith my remit. However, it would not be appropriate to have different time limits for solemn cases in the Sheriff Court and the High Court. That would leave open to the Crown the theoretical option of proceeding in the High Court in a less serious case because the Sheriff Court time limits had not been met. In Chapter 13 I deal with the question of what cases should be heard in the High Court, and recommend increasing the sentencing power of sheriffs. Were that to happen, the Sheriff Court would have an increased workload, including more serious cases.

9.6 The principal benefit of being able to assign more predictable trial diets is that the members of the public with an interest or involvement in the case do not require to be brought into the process until the trial diet. Witnesses need not be brought to court or given an optimistic trial date and keyed up to give evidence unnecessarily. That should only happen when a genuine trial diet has been fixed. Modification of the 110-day rule is a price worth paying to remove churning from the system, to introduce more certainty, to avoid bringing members of the public to court unnecessarily and to make more efficient use of resources.. The price would simply be recognition of what already happens in a substantial proportion of High Court cases 152. Apart from sparing victims and witnesses anxiety, greater certainty should produce financial benefits by reducing the time that witnesses in the public services, such as police officers, and jurors spend attending court unnecessarily.

The 110 Day Period in Future

9.7 Section 65(7) of the 1995 Act provides for extension of the 110-day time limit on one of three grounds -

(a) the illness of the accused or of a judge;
(b) the absence or illness of any necessary witness;
(c) any other sufficient cause which is not attributable to any fault on the part of the prosecutor.

I suppose that the innovation of a mandatory procedural diet could conceivably be accommodated by introducing more scope for extension of the time limit. That could be done by quite simply deleting from (c) the words "which is not attributable to any fault on the part of the prosecutor". That would give the Court more discretion to extend the time limit to accommodate the assignment of a trial diet. However, such a vague provision is not consistent with the objective of instilling greater certainty into the criminal trial process.

9.8 Another more radical approach would avoid the risk of introducing greater uncertainty into the system. The introduction of a mandatory preliminary diet could be accommodated by altering the rule to provide that the preliminary diet must take place within the 110-day time limit. It should be possible to allocate a trial diet two or three weeks thereafter, or slightly later to accommodate parties and witnesses. Lest there be anxiety that the period between the procedural diet and the trial diet might tend to drift, there could be a further time limit of 140 days in all for the trial to commence.

Safeguarding the Rights of the Accused

9.9 Were the 110-day rule to be altered in this way, it would be necessary to introduce additional measures to ensure the protection of the accused in custody.

9.10 If at the procedural diet it was clear that the case would not proceed to trial within the custody time limit, the accused should be entitled to apply for bail. His prospects of release would depend in part on the reason for the case not being ready. For example, if that were the responsibility of the defence, his prospects of bail might be less.

9.11 An accused person, who is ready to proceed to trial shortly after the indictment is served, should be entitled to apply to the Court to accelerate the preliminary diet in order to appoint an early trial diet. Similarly, parties should be entitled to apply to the Court to accelerate a trial diet in order to postpone it, if it becomes apparent, for whatever reason, that the trial cannot proceed. This would enable other business to be scheduled and witnesses to be advised not to attend.

Extending the 140-day period

9.12 Since one of the main objectives of this scheme is to appoint trial diets only when they are required and it is known that the case is likely to be ready for trial at the date appointed, there will inevitably be cases in which the preliminary diet is adjourned for further investigation or work to be completed. As a result, it may not be possible to allocate a trial diet within the 140-day period. In these circumstances extension of the 140-day period could be appropriate.

The 12-Month Rule

9.13 The same section of the Act contains the provision that requires all trials to be commenced within 12 months of the first appearance of the accused on petition in respect of the offence 153. No one has suggested to me that that rule requires to be amended. However, in 2001 in some 24% of cases, where the accused was on bail, the 12-month period was extended 154. That highlights the need for earlier indictment of bail indictments to ensure that trials take place within the time limit.

A 9-Month Rule

9.14 It would help greatly in the programming of more predictable trial diets, if there were available to the Court staff responsible for programming the diets a greater latitude of time in which to allocate trials where the accused is on bail. In contrast to custody cases, where only two or three weeks will be available, it would be helpful if a window of the order of three months was available, prior to the expiry of the 12 month deadline thus introducing a greater degree of flexibility into the programming. That could be guaranteed if an additional time limit, requiring the preliminary diet to be held within 9 months of the first appearance of the accused on petition, was introduced.

9.15 In practice some cases will be ready for indictment well within the time limit, and others will require all the time available. Cases should be indicted as soon as that is possible. I envisage the minimum period of notice remaining at 29 days. Where early indictment is possible, it would be for the Crown to determine whether to give longer notice or to give the minimum notice with a view to having an early preliminary diet.

Accommodating Extremely Complex Cases

9.16 As cases become more complex, it is increasingly likely that it will be impossible in some instances to comply with one or more of the time limits. That may well be known at a fairly early stage. When that is the case, it should be competent to apply to the court to extend the relevant periods, including the 80 and 110-day periods and any other time limit that applies, even though the indictment has not been served. That seldom occurs at present. However, it is now plainly foreseeable that such a situation may arise from time to time.

Extending Time Limits in Other Circumstances

9.17 The grounds on which existing time limits may be extended should be reviewed with a view to rationalising them. The 12-month limit can be extended "on cause shown" 155; the 80-day limit may be extended "for any sufficient cause" 156 unless the indictment has not been served because of fault on the part of the prosecution; and the 110-day period may be extended where the Court is satisfied that delay in the commencement of the trial is due to (a) the illness of the accused or of a judge, (b) the absence or illness of any necessary witness, (c) any other sufficient cause which is not attributable to any fault on the part of the prosecutor 157. It is difficult to see why the existing test for extending the 12-month period, that is "on cause shown" 158, should not apply to applications generally.

9.18 Should the Crown fail to meet the 80-day time limit, then the consequences would be as at present. The accused would be entitled to immediate release and would have to be brought to trial within the 12-month time limit 159. Were it to be introduced, the 9 month time limit would also apply to his case.

9.19 Should the 9-month time limit not be met, then the case could only proceed against the accused if the Court granted an extension of the period.

9.20 Any application to extend the 80 or 110-day periods must be made to a judge of the High Court, even in Sheriff Court cases 160. I can see no reason why all applications for extension of time limits in Sheriff Court cases should not, like applications to extend the 12 month period, be heard by the sheriff.

Sanction for Breach of the 140-Day Rule

9.21 One quite separate issue arises in relation to the existing 110-day rule, and would arise in relation to the proposed 140-day rule. Should the trial of an accused person who is remanded in custody not be commenced within that period, he must not only be liberated forthwith, but he also "thereafter shall be for ever free from all question or process for that offence" 161. Such a final determination, within four months of the commencement of an investigation, is regarded by many as an absurd and unjust outcome for the human error of miscalculating the period of time in custody. It is pointed out that such a mistake could result in substantial injustice, where a person charged with a particularly serious and odious crime could not be tried. On the other hand, many point to the extraordinarily few circumstances in which that consequence has resulted, and claim that that sanction has a particularly valuable effect in ensuring that cases are promptly investigated and accused persons are not subject to unnecessary delay in being brought to trial. They maintain that, if the sanction for detaining someone in custody beyond 110 days was merely that he could apply for, and would be entitled to, release on bail, then the current high standards, which ensure that a wary eye is kept on custody cases because of the imperative of the existing sanction, would simply fall. I find the former argument more persuasive, especially since the 12-month time limit would also apply were the accused to be released, and the sanction for failure to comply with that time limit is effectively the same as the current sanction for failing to comply with the 110-day rule, although worded differently as follows:

"(a) shall be discharged forthwith from any indictment as respects the offence;
and
(b) shall not at any time be proceeded against on indictment as respects the offence".

It has not been represented to me that that rule should be modified.