140 day rule: SCTS hits back at claims delays caused by lack of court capacity

While lawyers have told Scottish Legal News that High Court trials delays are due to court capacity, Eric McQueen, SCTS chief executive, argues that the answer is not to create more courts but to radically reform the justice system, putting digital technology at its heart.

Asserting that High Court trial delays are caused by a lack of court capacity is both inaccurate and misses the point.

The closure of a small number of sheriff courts has had no impact on High Court sittings, and in fact, there is now more court capacity available to the High Court than ever before.

Overall levels of crime, including violent crime, have fallen in recent years. However, the reporting and detection of some crimes, in particular sexual crimes and domestic abuse, have increased. These increases reflect more pro-active policing and prosecution, better evidence gathering, advances in DNA science and the greater confidence of victims in reporting certain crimes, including historic sexual and physical abuse.

Although the number of cases indicted into the High Court has remained reasonably stable over the past four years, there has been a 60% increase in the number of High Court cases that go to trial. This equates to around 160 more trials each year. For reasons which remain unclear, accused persons seem less likely to plead guilty ahead of trial than previously. The stage has been reached at which about half of all cases proceed to trial. This is unprecedented.

In an era of statutory disclosure, examination of DNA findings and technical analysis of social media and text messaging, it is only right to question whether the narrow window allowed by statute for the commencement of a trial, after the service of the indictment and the fixing of a Preliminary Hearing by the Crown, is sustainable or in accord with modern principles of fairness and justice.

Continually creating court capacity may be thought to be a short term, albeit expensive, strategy. It does not, however, begin to address the fundamental downstream causes of why trials take longer both to prepare and to conclude. We need to start by finding out where the problems lie and develop the right solutions to any problems discovered.

The Scottish Courts and Tribunals Service Report on Evidence and Procedure will shortly be published; hopefully stimulating the debate necessary to find these solutions. The report will promote radical digital reform of the way criminal cases are managed and trials are conducted. In particular, the report will question the need for procedural decisions to be made in open court, the need for accused to attend personally at procedural hearings and, importantly, the requirement for all witnesses to attend court and testify on oath when their evidence is either not controversial or not to be challenged.

Radical reform, exploiting the opportunity which digital technology presents, is needed to make sure we continue to have a justice system that matches public expectations in the 21st century. The idea that we should continue to operate a system, including its time constraints, designed for a bygone era is an impractical one.

The suggestion that the existing rules should be replaced with ones which are realistic, whereby new time limits should then only be extended in exceptional circumstances, may be a sound way forward.