Scottish Independence and Scotland's Future

To look at how we might do better with our Justice system we need to understand the background and the issues and here I am providing this through articles and videos.

The Court System in Scotland

Criminal Justice is a power devolved to the Scottish Parliament. However, Scotland has long had a unique court and criminal justice system which is very different to that within the rest of the UK.

There are two types of criminal justice procedure in Scotland; Solemn procedure and Summary procedure.

The choice of whether to prosecute a case under solemn or summary procedure is made by the prosecution service, known as the Crown Office and Procurator Fiscal Service (COPFS). This affects the sentences available to the court on conviction. The vast majority of criminal court cases are dealt with under summary procedure – 96% of criminal court disposals during 2010-11 were in the summary courts.

Solemn procedure involves the most serious of criminal cases and may ultimately lead to a trial either before a judge in the High Court or before a sheriff in one of the sheriff courts. Trials under solemn procedure are conducted with a jury.

Summary procedure is used for less serious offences (with the charges set out in a complaint) and may ultimately lead to a trial before a sheriff or, in justice of the peace courts. Trials under summary procedure are conducted without a jury.

A jury in a Scottish criminal case is made up of 15 people, with a simple majority (8 or more out of 15) sufficient to establish guilt.

Scottish courts can deliver one of three possible verdicts: guilty, not guilty, and not proven. The not proven verdict is unique to Scotland and has been controversial in the past. Essentially the not proven verdict means that the jury believes the accused may have committed the crime but does not have sufficient evidence to award a guilty verdict. On the other hand, it is not sufficiently convinced that the accused is not guilty. Note that there is not a verdict of innocence. An accused is innocent until proven guilty.

The High Court of Justiciary

The High Court is Scotland's highest criminal court. Edinburgh, Glasgow and Aberdeen have permanent High Court buildings. Throughout the rest of the country the High court sits in the local Sheriff Court building. The High Court deals with the most serious of crimes such as treason, murder and rape, armed robbery, drug trafficking and sexual offences involving children.

Sheriff Courts
There are a total of 49 sheriff courts throughout Scotland. Sheriff Courts deal with crimes which are too serious for a district Court but not serious enough for a High Court. If, however, on the basis of new evidence being provided, a Sheriff can refer the case to the High Court.

Justice of the Peace Courts
Justice of the Peace Courts were created by the Criminal Proceedings etc (Reform) (Scotland) Act 2007 and they replaced former District Courts which were operated by local authorities. As the lowest level of criminal court, Justice of the Peace Courts handle relatively minor crimes such as cases of breach of the peace, minor assaults, minor road traffic offences and petty theft.

Cases are dealt with by a bench of one or more lay justices, apart from Glasgow's justice of the peace court where a legally qualified Stipendiary Magistrate can sit. The maximum sentence that a Stipendiary Magistrate may impose is 12 months imprisonment or a fine not exceeding £10,000. Lay justices can impose custodial sentences of up to 60 days and can impose fines of up to £2,500.

UK Supreme Court
As Scotland remains part of the UK, the UK's Supreme Court is the highest court in the UK. The Supreme Court can become involved in Scottish criminal cases. The Scottish Government is currently looking at ways to stop the UK Supreme Court involving itself with the Scottish criminal justice system.

Juvenile Justice in Scotland

Scotland has a unique Children's Hearing System which is quite different from juvenile justice systems elsewhere in the UK and the world. In Scotland, children (those under the age of 16) are only considered for prosecution in court for serious offences such as murder, assault which puts a life in danger or serious road traffic offences which can lead to disqualification from driving.

Even in these cases, the Procurator Fiscal may well refer the case to The Reporter who can decide to refer the child to a Hearing of the Children's Panel. A child or young person may be placed before a hearing if he/she;

is beyond the control of parents or carers
is at risk of moral danger
is or has been the victim of an offence, including physical injury or sexual abuse
is likely to suffer serious harm to health or development through lack of care
is misusing drugs, alcohol or solvents
has committed an offence
is not attending school regularly without a reasonable excuse
is subject to an antisocial behaviour order and the Sheriff requires the case to be referred to a children's hearing.

The Children's Panel
The Children's panel is a group of people from the community who volunteer their services. They are carefully selected and highly trained. They must demonstrate that they have the best interests of young people at heart. Across Scotland there are around 2,500 children's panel members.

Every Scottish local authority has a children's panel, and panel members sit on hearings on a rota basis. A children's hearing has three panel members, of which there must be a mix of men and women. The hearing is not like a court case. There are no gowns or intimidating rituals. The task of the hearing is not to punish but to decide what the best interests of the young person are. The hearing must decide whether the child/young person should be taken into care or what role other agencies, such as social work should have in the young person's life.

Young Offenders
Polmont is Scotland's national holding facility for Young Offenders aged between 16 - 21 years of age. The prison functions as a national resource, accommodating sentenced prisoners from all over the country. The contracted numbers are 760, with a maximum space for 830, making Polmont arguably the biggest Young Offenders Institution in Britain. Sentences range from 6 months to Life. The average sentence length is between 2 - 4 years.

In recent years Polmont has received a fair degree of negative publicity. In a television programme broadcast in 2006, Polmont was described (by the then Governor) as "the most violent prison in Scotland". Overcrowding has been a serious problem. Overcrowding means that offenders are kept in their cells for long periods with resultant increases in tensions. Overcrowding also reduces the possibilities of staff to address the needs of Young Offenders and change their offending behaviour.

Scottish Criminal Justice System Part 1

Scottish Criminal Justice System Part 2

Scottish Criminal Justice System Part 3

Scottish Criminal Justice System Part 4

UK Supreme Court The Highest Court in the Land

The History of Scottish Law Reporting

Scots Law

Scots law is the legal system of Scotland. It is a hybrid or mixed legal system, containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland law, it is one of the three legal systems of the United Kingdom. It shares some elements with the two other systems, but it also has its own unique sources, institutions and nomen juris.

Early Scots law before the 12th century consisted of the different legal traditions of the various cultural groups that inhabited the country at the time, the Gaels in most of the country, with the Britons and Anglo-Saxons in some districts south of the Forth and with the Norse in the islands and north of the River Oykel. The introduction of feudalism from the 12th century and the expansion of the Kingdom of Scotland established the modern roots of Scots law, which was gradually influenced by other, especially Anglo-Norman and continental legal traditions. Although there was some indirect Roman law influence on Scots law the direct influence of Roman law was slight up until around the 15th century. After this time, Roman law was often adopted in argument in court, in an adapted form, where there was no native Scots rule to settle a dispute; and Roman law was in this way partially received into Scots law.

Logical to keep not proven verdict, says Scots law expert
A Scots law expert has said the not proven verdict is the "logical" one to keep in criminal cases and there is an argument for dropping not guilty.

Douglas Thomson, of the Law Society's Criminal Law Committee, was responding to the Scottish government's plans to study how juries make their decisions.

There are currently three verdicts - guilty, not guilty and not proven.

Mr Thomson said if the Crown failed to prove a case the logical verdict was not proven, rather than not guilty.

Earlier this year, Holyrood's justice committee concluded Scotland's not proven verdict was on "borrowed time" and may not serve any useful purpose.

Mr Thomson acknowledged that there "was not unanimity about the value of the three verdict system".

He told the BBC's Good Morning Scotland programme that within the profession, there is a "fairly solid body of support" that what a jury is being asked to do is decide whether the public prosecutor has proved the case beyond reasonable doubt.

'Appropriate verdict of acquittal'

He added: "Therefore, the logical verdict if the Crown fails to discharge the requirement to prove the case is a verdict of not proven."

But, he said, the difficulty with dropping the not guilty verdict is that it is the "appropriate verdict of acquittal" recognised across the rest of the English-speaking world.

What is the not proven verdict?

Scotland, unlike most of the world's legal systems, has three possible verdicts in criminal cases - guilty, not guilty and not proven

The legal implications of a not proven verdict are the same as with a not guilty verdict: the accused is acquitted and is innocent in the eyes of the law

Not proven is seen by some as offering additional protection to the accused

But critics argue that it is confusing for juries and the public, can stigmatise an accused person and fail to provide closure for victims

Scottish juries were historically able to return only proven or not proven verdicts

A third verdict of not guilty was introduced in the 1700s and became more commonly used than not proven
However, the option of returning a verdict of not proven was never removed

In more recent years, the general perception has been that a "not proven" verdict suggests a sheriff or jury believes the accused is guilty, but does not have sufficient evidence to convict

On Tuesday, the Scottish government set out its plans for the next year in its programme for government.

One item was on justice reform. It said it wanted to commission "independent jury research to consider the dynamics of decision-making by juries, including the current jury majority and three verdict system, helping to inform future proposals for the reform of the criminal justice system".

Mr Thomson supported the government's plan to commission research, but said there were questions about how research should be carried out.

'Unique system'

He added: "We have to recognise that Scotland has a unique system within the English-speaking, common law world.

"We are the only country that has 15 jurors, three verdicts and where a simple majority of eight out of 15 is sufficient for a guilty verdict.

"We don't know if juries are reaching verdicts for the proper reasons, because there are impediments at the present time to carrying out jury research."

He said: "There are requirements under the Contempt of Court Act which preclude jurors from being individually asked questions about how they reached their deliberations.

"There are perhaps very good reasons why individual jurors can't be questioned about how they reached a verdict in a jury room. It has been considered in the recent past that there may be methods by which academics and researchers can carry out research and avoid breaching the terms of the Contempt of Court legislation by asking jurors questions like: Did they understand the directions they were given by the judge?, Did they understand the verdict system?, Did they understand what beyond a reasonable doubt meant?"

"Most lawyers understand how jurors reach a verdict in most cases... but there is always a concern, potentially, that jurors might not have fully understood everything they've been told.

"Unlike England, for example, there is no requirement to introduce the case to the jury - it's only at the end of the case that jurors are given direction on the law.

"There is some suggestion that there would be a benefit in judges giving more detailed directions both at the start and as the case continues as to how the procedure operates."

Sunday Post Investigates: Scotland’s £10 million court ‘charade’
Written by Andrew Picken, 23/10/2016

THOUSANDS of witnesses are being called to trials in Scotland’s courts each year which have no chance of going ahead – wasting £10 million of public money.

An investigation by The Sunday Post today lays bare how witnesses who bravely offer to give evidence against criminals have their time utterly wasted by delays and postponements to cases.

And we can reveal entire shifts of frontline police officers can be cited to appear at cases they know stand virtually no chance of proceeding – in a waste of police time too.

Legal insiders claim court bosses are calling trials to ensure they “hit targets” even though they know they will be adjourned because there’s not enough time for them to be heard.

Our probe – the first in a new series of Sunday Post investigations – reveals how:

There’s been a 65% increase in the number of cases adjourned due to “lack of court time” over the last five years.

Witnesses claim they are being left to hang around for days at a time with limited access to food or water.

Independent estimates reveal almost half of summary cases did not proceed as planned in Scotland’s sheriff courts last year.

The Scottish Courts and Tribunals Service (SCTS) last night dismissed claims that trials are scheduled to hit targets and said there was “clear evidence that our court programming and scheduling of trials is effective”.

But one sheriff, speaking to the Post on guarantee of anonymity, said: “It is a joke."

“Every day I know there is not a hope in hell that all of these trials will be going ahead, as do the court staff and lawyers, but the ridiculous charade has to be acted out for the sake of meeting target dates.”

Figures obtained by the Post show the number of High Court, Sheriff Court and Justice of the Peace Court trials adjourned due to a lack of court time has jumped from 2,608 in 2011/12 to 4,302 in 2015/16 – a 65% hike.

This compares to a 27.7% increase in the number of trials over the same period.

Legal insiders say that even with a conservative estimate of three witnesses per trial this is nearly 13,000 witnesses turning up to court unnecessarily.

A report from Audit Scotland published last year revealed how the sheriff court system was coming under increasing pressure with more cases going to trial and taking longer to conclude.

Between 2010/11 and 2014/15, the average length of time that a case took to complete increased from 19 weeks to 22 weeks.

Over the same period 10 sheriff courts have been closed and the overall budget of the Crown Office and Procurator Fiscal Service (COPFS) has been reduced by the Scottish Government.

Court bosses have legal limits on how long it takes for a case to be heard but the SCTS also has its own 26-week performance target or cases to be dealt with.

Last year 35% of cases breached this limit and Audit Scotland estimated “almost half of summary cases did not proceed as planned in sheriff courts in 2014/15”.

The watchdog added: “We estimate the cost of cases repeating stages unnecessarily, could have been as much as £10 million in 2014/15.”

Meanwhile, the watchdog released the findings of focus groups it had held on the issue with witnesses. Some complained they had been left waiting for days to give evidence, while two thirds had experience of waiting at least two hours, and around a third at least four hours.

Some said their witness waiting room had limited or no access to water or other refreshments, and no access to food.

A lack of ventilation or windows was also raised. And in addition, some also said the stress and nerves they felt over giving evidence was exacerbated by the time they had to wait and the conditions they had to wait in.

The SCTS points out that the majority of adjournments are at a sheriff’s own initiative.

But sheriffs have told The Sunday Post the reality of this is they often have little choice but to adjourn cases as it is already obvious trials are not going to happen because, for example, the one already running is going to take the rest of the day.

In addition, the unwritten protocol is for prosecutors or defence solicitors to invite a sheriff to use his or her own initiative to adjourn a trial as neither side want to be seen as asking for an adjournment.

A SCTS spokesman said: “In recent years the reporting and detection of crimes, particularly domestic abuse and sexual offences, has increased, reflecting proactive policing and prosecution and greater victim confidence to report crimes.

“These cases have not only increased in volume but are more complex cases often requiring more court time, with cases proceeding to trial increasing by almost 30%.”

The number of cases adjourned due to a lack of court time represented 5% of all trials called last year.

The SCTS spokesman said this ratio of adjournments to trials has only varied by around 1% over the last five years.

The spokesman said: “Court programming is very complex by its nature and we need to constantly predict and readjust based on the numbers of cases that are likely to proceed to evidence based trials.

“Any suggestion that trials are scheduled to ‘hit targets’ is complete nonsense.

“Had this been the case the percentage of cases adjourned would have increased significantly.

“The fact that it has remained within a 1% variance is clear evidence that our court programming and scheduling of trials is effective.”

Experts have warned delays in the courts are spiralling out of control and now victims’ charities want new technology to help ease the burden.

Victim Support Scotland has told a Holyrood probe into the justice system many victims and witnesses experience stress, anxiety and lose out financially.

Its submission to the justice committee says: “This stress, anxiety and inconvenience caused to victims and witnesses, who will have mentally prepared themselves to give evidence, is avoidable.

“We believe that consideration should be given to the use of technology to cite and countermand witnesses.”

The Scottish Borders Rape Crisis Centre has echoed this view.

It believes technology could be used more, particularly in terms of videoing police statements and playing those to court, so victims do not need to attend.

Independent estimates reveal almost half of summary cases did not proceed as planned in Scotland’s sheriff courts last year and there’s been a 65% increase in the number of cases adjourned due to “lack of court time” over the last five years.

An Audit Scotland probe found witnesses claim they are being left to hang around for days at a time with limited access to food or water.

The Sheriffs’ Association revealed some courts are experiencing “significant” delays and called for increased funding.

In his submission to the inquiry on the Crown Office, Ayrshire GP Dr Robbie Cummings, who is also a forensic medical examiner, said on one occasion he had to cancel the appointments of 40 patients only to find he was not needed in court.

He said: “When we are short staffed, I cannot leave the surgery without causing so many problems that the risk to the health of my patients overrides any other consideration and I would have to accept the consequences of failing to appear.”

The Scottish Court and Tribunal Service told the inquiry it was working to tackle the problem and was transforming into a modern service.

The 2015/16 audit of the Scottish Police Authority
The Scottish Police Authority and Police Scotland continue to suffer from weak financial leadership and considerable budget pressures, the Auditor General has reported today.

Annual Police Plan - Police Scotland
2016/17

The Integration of the British Transport Police in Scotland into Police Scotland
This consultation paper sets out proposed arrangements to integrate the British Transport Police in Scotland into Police Scotland. It invites views on how we can ensure a smooth transition towards integration; ensure railway policing in Scotland is subject to appropriate oversight by the Scottish Parliament; and maintain the specialist skills, knowledge and experience of our railway police officers.
The civil justice system in Scotland – a case for review?
The final report of the civil justice advisory group