Chapter 7 – Intermediate to Trial Diets
407. Where at the intermediate diet the case was simply continued to trial, the case would return to administrative staff with any necessary last minute follow up work instructed by the Fiscal in court that day. Follow up work in many cases was simply a continuation of the administrative processes set in place earlier in the case and any necessary chasing up of items still awaited. Where there were one or more continuations of the intermediate diet this could leave only a day or so until the trial.
408. In the rare cases where some agreement of evidence was intimated at the Intermediate court it was up to the Fiscal to prepare any Minutes of Agreement. We spoke to Fiscals carrying out the intermediate diets about their post intermediate diet work. Some had 'ring fenced' time to carry out any follow up work which enabled them to give the necessary time and attention to what was still needed to ensure the case proceeded as planned.
409. One Fiscal told us that it was only after the intermediate diet court that a real focus could be given to those cases still proceeding to trial (since there would be fewer cases in this category with pleas of guilty and warrants accounting for a proportion of the cases no longer proceeding). This is contrary to the ethos of front loading the work to ensure the trial is fully prepared and ready before the intermediate diet but is reflective of the current reality in many offices. We certainly saw in our case review of closed cases continuing notes by both administrative and legal staff as urgent work was done to get the case ready for trial (if not done earlier).
410. Where there was no such ring fencing of time for post intermediate diet work we heard that it was sometimes simply not possible for the intermediate diet Fiscal to prepare the necessary Joint Minute of Agreement of evidence before the trial diet. This was because of more pressing priorities of preparing a court for the following day or other reasons. Generally where there was clear agreement about a witness's evidence they were countermanded (their attendance excused) for trial.
411. Just as at intermediate diet the reasons for churn at trials were many and varied. There were still some (few) cases where the Crown was not prepared and a motion to adjourn was made. The most common reason for Crown motions to adjourn was because of the absence of (some or all) Crown witnesses in the case. We have already described in some detail the process of citing witnesses to attend court, whether by postal service or personal service. Unfortunately even when citations had been served some witnesses simply did not turn up.
412. Since we did not observe trial diets we are unable to comment on actual cases other than those reviewed after they had closed. Here we found evidence that in some cases the Crown sought and obtained warrants to arrest some witnesses who failed to appear. Differing practices were evident around the country. One or two sheriffs commented on the Crown's failure to seek warrants and deal with them robustly.
413. In order to seek a witness warrant in court the trial Fiscal would have to produce evidence of proper citation and we were not clear whether it was common for Fiscals to have copy executions of witness citation in their trial papers. Some Fiscals told us of having to adjourn the court to seek these copies rather than having them to hand. The Crown's practice of storing executions of witness citation on a data storage facility on an IT system (Power Retrieve) means that they are not readily to hand in paper form for the court. It is best practice to have such paper proof of citation in court papers especially where witness difficulties are anticipated. Close liaison between legal and administrative staff would be essential just before the court to ensure these were to hand.
414. In some Sheriff Courts there was support available from the police to try to trace and bring to court on the day of the trial witnesses who had failed to appear. After early successes in courts where this practice was initiated we heard that it became progressively less successful as some witnesses (who were no strangers to court themselves) often made themselves scarce.
415. Where non-attendance of witnesses was perhaps down to error of forgetfulness a new pilot trying out the texting of reminders to witness's mobile phones may prove a useful additional tool in securing their attendance. This pilot is still to be evaluated. We heard that the PDSO uses technology in this way to issue reminders to their clients about their court appearances.
416. Aside from the Crown motions to adjourn we found that just as many if not more reasons for churn at trial were down to the absence of the accused or on motion by the defence. Failure to appear at trial was common in every jurisdiction and inevitably resulted in a warrant to arrest the accused and the witness who had turned up being told to go home and await news of if and when the case would be set down for trial again. If on arrest the accused pled guilty that would be an end of the matter.
417. Defence motions to adjourn were for various reasons and may be concerning the availability or attendance of defence witnesses or concerning further investigations for the trial.
418. Another reason for churn at the trial, again evident in each court we reviewed, was the lack of court time. In practice there are a number of trials fixed for each court. Loadings of trials varied enormously. Some trials courts might only have a handful of trials and be very manageable. In one closed case we noted the exceptional position where a Fiscal noted on the minutes that the trial was adjourned though lack of court time, there being 16 cases set down for trial in the court that day of which 4 were priority custody cases. In reality the court loadings mean that there is simply not enough time to get through evidence in each of the trials.
|Continued to Further Trial Diet (no evidence led)|
|Number of related accused||Continuations||%age|
|2011/12 (to March 2012)||46,544||15,765||33.9%|
419. The above figures show that there has been a slight decrease in the percentage of adjournments where no evidence was led, however, a third of cases are still being adjourned at the trial diet which suggests that there are issues impacting the process of business at trial.