Chapter 4 – Pleading Diet
161. After the process of 'case marking' a complaint is prepared and the case calls in court for the first time. Other than those appearing from custody the accused may answer a complaint at a pleading diet to which they are cited to attend or by responding to an undertaking to attend.
162. Accompanying the complaint is a 'disclosable' summary of evidence taken from the SPR.
163. On first appearance the accused is asked how they plead to the charge(s) on the complaint. If a plea of guilty is tendered at the outset then the matter can be dealt with there and then although the sheriff may call for background reports before sentencing. These cases did not form any part of our inspection.
164. Where the accused has not appeared, has not replied to his citation by letter or where (either the Crown or) the defence want to continue the case before a plea is tendered for further enquiry the case may be 'continued without plea'.
165. Crown Best Practice Guidance encourages Fiscals to ask the court to continue without plea a case where it is believed that the case is capable of resolution, even where an intimation by a defence solicitor advises that the accused wishes to plead 'not guilty'. We heard of some instances where this practice was used to good effect when CCTV evidence was thought to be central to the case it was then disclosed to the defence and the case was resolved without the necessity of fixing a date for trial. This was wholly dependent on the Crown making an early request for such information or being provided with this at the outset. We heard from some police forces that they were trying to lodge some CCTV footage along with police reports to support such early engagement.
166. We did not look at cases that resolved at this early stage since our focus was on those cases where a plea of not guilty was tendered by the accused and dates were fixed by the court for intermediate diet and trial diet.
Chart 4 - Not Guilty Plea at Pleading Diet - April 2009 to March 2012:
167. SCS statistics show that in 2009/10 51% of new cases resulted in not guilty pleas. This increased slightly to 52% in 2010/11 and 54% in 2011/12. We also looked at data for year April 2011 to March 2012 relating to the eight offices we visited during our inspection and noted variations in results of not guilty pleas from 51% in Alloa to 72% in Inverness.
168. When there is a plea of not guilty the Sheriff Clerk must fix two dates for the accused to attend: intermediate and trial diet. Where the sheriff decides that the accused must be remanded in custody to await trial then the trial must commence within 40 days of first appearance. Any intermediate diet must be fixed for a date before that trial date (normally a week or so before). Where the accused is at liberty pending trial the delay between the first calling and the trial depends on the date provided by the Sheriff Clerk of the court.
169. Procurators Fiscal do have some limited input into the selection of dates for trial. We heard of good practice in advising the court of the need for early diets for cases involving child witnesses or domestic cases. In some jurisdictions we were aware of moves for information about police witness availability to be communicated directly to the Sheriff Clerk so that dates unsuitable to police witnesses in the case could be avoided in setting a date for trial. We should add that in our case review police reports showed no information-gathering from civilian witnesses about their availability. This may be something to be considered for the future as the attendance of witnesses at trial is a common reason for 'churn' at trials.
We recommend discussions take place with ACPOS to encourage more recording of civilian witness availability.
170. Sheriff Clerks must try to balance the different needs of the whole court business in their Sheriffdom and this includes the demands for solemn criminal business and civil business. In addition they are subject to their own end to end target for summary business of 20 weeks from first calling of the case to final resolution.
171. As part of 'Making Justice Work' the court service are looking at court programming with the aid of a simulation toolkit.
172. The average number of weeks between pleading diet and trial diet is monitored by the Scottish Court Service and varies from office to office. The following table shows the average period in weeks as at 31 March 2012:
|Period in weeks from Pleading Diet to Trial Diet at
173. The above figures show that there are varying average periods between pleading diet and trial diet throughout the country with a national average of 14 weeks. These figures include custody trials where the lapsed time is shorter.
174. Our inspection findings were that such periods varied enormously between courts. In a couple of instances there were trial delays in Aberdeen and Edinburgh Sheriff Courts of more than 30 weeks. Periods of 15-20 weeks were fairly common in a number of courts in the cases we looked at. (It should be noted that our case review selection was taken from cases closed in the months between July and December 2011, so the periods are in some cases fairly historical. Nevertheless the figures illustrate the ever changing landscape in which the cases were being prepared for trial). For custody trials the period was usually 4/5 weeks with an intermediate diet a week or 10 days before trial.
175. We noticed that in Glasgow, Paisley and Edinburgh in the cases we reviewed the gap between intermediate and trial was generally 2 weeks. In the other jurisdictions there was usually a 4 week gap. Best Practice Guidance advises that a period of 4 weeks between intermediate and trial diet is preferable. In those offices where a 2 week period is used this leaves little room to rectify any defects.
176. Long periods between pleading diet and trial diet could impact on witnesses remembering to attend and remembering the events to which they were cited to give evidence (see below at 'Citing Witnesses'). Short periods would impact on time available for staff to request, receive and deal with further information, documents, etc. This combined with delays in updating cases left little time to follow process eg disclose all relevant material, etc, in time for the intermediate diet.
177. Custody cases have an obvious impact in that there was always less time to deal with business.
178. There is no system for legal review of the case after first calling. The whole ethos of 'front loading' was that the Fiscals calling these cases in court would be entitled to expect that the initial case preparation instructions by the Fiscal would be complete. We found little evidence of any additional instructions to complement the original marking instructions on the files we reviewed.
179. Even with the front loading system there are still situations where a review of the trial preparation instruction is necessary eg where a partial plea was tendered; where separate trials are fixed for different accused on the same complaint or where one of a number of accused pleads guilty at the outset. We found some instances where this legal review should have taken place but did not happen and some over-citing of witnesses resulted. Again these instances were fairly rare but highlight the need for constant review to be considered by legal staff.