Lawyers respond to Lord President’s suggestion 140 day rule may not be fit for purpose

Advocate Niall McCluskey said: “The 140 day rule was extended in High Court cases from 110 days in 2005. Now Lord Carloway is proposing further extension. One of the positive features of Scots law has been its relatively short remand periods compared to other jurisdictions.

“Both the Crown and the courts seem to be suffering from resource issues. Those problems however should not be a basis for requiring accused persons to spend even longer in custody awaiting trial.”

Thomas Ross, president of the Scottish Criminal Bar Association (SCBA) gave an example of how bad the situation can be.

He said: “I have a client who made his first appearance on 31st August 2015. He denies any criminal conduct, but will not have the opportunity to challenge his accuser and give evidence until his trial on 1st July 2016.

“If the jury accept his position, an innocent man will have spent approximately 310 days in custody. The Scottish Criminal Bar Association believe that the Scottish government should be focussed upon reducing the time spent in custody by those presumed to be innocent.”

Brian McConnachie QC (pictured right) told SLN that routine flouting of the rule is “undoubtedly a matter of significant concern at the present time”.

He said: “On Monday 21 December 2015 I appeared at a preliminary hearing in a custody murder case. A trial was fixed for 11 July 2016. This is by no means unique.”

He explained the legislation currently provides that an accused in custody is entitled to have his indictment served upon him within a period of 80 days of his full committal. His preliminary hearing is to take place within 110 days and his trial is to commence within 140 days.

The QC said: “The legislation also provides that any, or all of these periods can be extended by the court ‘on cause shown’. The Crown on occasion, though relatively rarely, will apply to extend the 80/110 day time bar.

“The 140 day time bar is extended in both the Sheriff and High Court several times each day with ‘cause shown’ being a somewhat elastic concept often meaning little more than the courts cannot accommodate the trial. In the example given above the 140 day time bar was extended by something in the region of 170 days! There was nothing particularly complex about the case and both Crown and defence said they were ready for trial.”

And while the nature of trials has certainly changed significantly over recent years Mr McConnachie noted that the 140 day rule supplanted the even tighter 110 day rule following the Bonomy reforms in 2004.

He added it is “extremely rare” that the Crown will attend a preliminary hearing stating they are not ready for trial – suggesting they “apparently have no difficulty with DNA, telephone reports etc”.

The problem, he suggested, is not because of the in-gathering of evidence but is rather a result of the the availability of courts to hear trials.

He said: “Until relatively recently the High Court sat in many different locations throughout the country from Dumfries to Inverness. That has all changed with a deliberate policy decision to close courts and restrict the High Court sittings significantly. Already there are plans for two new High Court trials courts to be created within Saltmarket in Glasgow to try and relieve some of the pressure.”

The advocate added that counsel “very rarely” objects to significant extensions for two reasons: first, because it “suits busy counsel to have the trials relatively far into the distance as it allows the chosen counsel to do the trial” and because the likelihood of a successful challenge to the proposed extension is “virtually nil”.

And while the Scottish system has been held up as an example of efficiency in respect of remand times for those awaiting trial, especially compared to England, Mr McConnachie said that perhaps our system should give up the “pretence of the rule”, essentially agreeing with Lord Carloway about the need for change, albeit for different reasons.

He said: “Perhaps it is time for us to accept those days are in the past as whatever the actual cause of the delays it is highly unlikely that the 140 day rule will ever be adhered to consistently again.

“If that is so then in my view we should cease the pretence of the rule and replace it with one which is realistic and which is only extended when real cause is actually shown and not just because budget constraints mean no available courts.”