Thematic report on summary case preparation

317. The first provision for a court hearing between pleading diets and trial diets was made by the 1980 Criminal Justice (Scotland) Act. This Act created 'intermediate diets' and gave the court power to fix such a diet for the purpose of ascertaining -

(a) the state of preparation of the prosecution and of the accused and
(b) whether the accused intended to adhere to the plea of not guilty

318. This was entirely a discretionary power but growing concerns over late pleas of guilty and waste of court and witnesses time resulted in these becoming mandatory (in nearly all situations) in 1995 with the passing of the Criminal Procedure (Scotland) Act 1995. Section 148 of that Act which, subject to later amendment, still stands as the relevant statutory provision in force today.

319. The 1995 Act and later amendments now provide that the court must fix an intermediate diet:

"For the purpose of ascertaining so far as is reasonably practicable, whether the case is likely to proceed to trial…and

(a) the state of preparation of the prosecution and of the accused
(b) whether the accused intends to adhere to the plea of not guilty and
(ba) how many witnesses are required by -

(i) the prosecution
(ii) the accused

and

(c) the extent to which the prosecutor and the accused have complied with the duty under section 257(1) of the Act."

320. In terms of the evolution of intermediate diets, various amendments have made more prescriptive the nature of the courts enquiry while ensuring that new legislation (Sexual Offences/Vulnerable Witnesses/Witness Anonymity) is reflected therein.

321. The preparation for intermediate diet is the first occasion for a full legal review of the case since 'front loading'.

Timescales

322. In terms of the preparatory work which needs to be completed in advance of the intermediate diet, and the duty on the Crown to disclose, it becomes important to consider the time gap between the first calling of the case and the intermediate diet.

323. In the course of our fieldwork the shortest time between first (or continued) calling and intermediate diet we found was one week, and the longest was 31 weeks, with the overall average between the 8 courts for all diets being 10+ weeks.

324. For custody cases it is assumed (for disclosure purposes) that the time between pleading diet (first calling) and intermediate diet is normally 2-3 weeks.

325. These timescales are challenging. However, clearly a gap of only one week between first calling and intermediate diet is insufficient time to allow for disclosure to be effected. This is significant in relation to the conduct of intermediate diet courts.

326. For cases where the accused is admitted to bail or ordained to appear at the intermediate and trial diet the target dates are understandably more generous. This assumption fits with our findings in relation to the timescales for the average gap between pleading diet and intermediate diet. If the timescales were kept there is a (desirable) minimum 8 week gap between the 2 diets to allow disclosure to be effected. In fact wide variations were seen in fieldwork as described above and as shown in Table 1.

Court loadings

327. Intermediate diet courts can vary widely in size, depending on the jurisdiction and of course the business in any particular court. Of the courts we visited the smallest intermediate diet court had some 35-40 cases calling regularly and the largest had at times 80+.

328. When summary justice reform was introduced it was recommended (by the McInnes Committee) that the maximum number of intermediate diets in one court would be about 30. We found intermediate diets with beyond double this number. The time allocated for a Fiscal to carry out their preparatory work is critical and of course should take account of the court loading with which they are working.

RECOMMENDATION 12

We recommend that efforts are made in liaison with Scottish Court Service to limit the number of intermediate diets to the recommended maximum of about 30.

Administrative preparation

329. Administrative staff play a crucial role in the preparation of summary cases. Instructions by Fiscals to carry out certain procedures and processes (such as ordering productions, citing witnesses etc) are meaningless unless the necessary follow up action is taken.

330. Best Practice Guidance states that the 'suggested optimum time for intermediate diet preparation is two weeks prior to the intermediate diet'. It is considered that there was not much to be gained in preparing cases too far in advance since documents requested may not have been received or witnesses cited etc. However, leaving administrative preparation to less than a week before leaves little time to resolve issues, chase up outstanding matters and will inevitably impact on legal preparation and on churn. We found the timing of intermediate diet preparation varied from office to office. In some offices administrative staff started to prepare cases well in advance of this while others only managed one week or less.

331. When checking whether witnesses have been cited all offices made use of the 'Witnesses Cited for Court Report' as referred to above. Some offices also printed executions for all civilian witnesses for the intermediate diet.

332. All offices use the 'Secure Disclosure Website Print' to identify what disclosure has been done for each case. The print provides very good information and allow Fiscals in court to identify what has been disclosed, when, to whom and whether it had been downloaded by the defence.

333. Administrative staff should prepare cases in advance of the intermediate diet to ensure that all instructions have been followed eg documents have been requested/received/served, witnesses have been cited, disclosure has been done, etc and to check on the current position of any outstanding matters all in preparation for the trial. Their preparation needs to be done before legal preparation in order to provide the Fiscal with an up to date position on the citation of witnesses, disclosure of evidence and any other bespoke instructions.

334. We found administrative actions recorded in a number of ways -

• Noted on the hard copy case instruction sheet
• Updated FOS instruction sheets
• Use of an intermediate diet checklist
• Post-it notes

335. Intermediate diet 'checklists' are used in all offices but the format differed from office to office. In 2 of the offices only legal staff use a checklist and in one office the FOS Instruction Sheet, originally completed with legal instructions, was updated by administrative staff as they carried out these instructions. Post-it notes can become detached from papers and should not be used.

336. It is envisaged that all offices will become paperless and therefore all actions taken will be recorded on the FOS instruction sheet but since only one office was using this system during our inspection this is still some way off indeed. Where used it was supplemented by a checklist of sorts. We consider that the intermediate diet checklist should be standardised and used throughout for consistency.

337. We thought it was desirable for administrative staff to have a standardised checklist (at least within Federation) until the full availability of the electronic case record on FOS.

RECOMMENDATION 13

We recommend the use of one standard method of recording administrative action for preparation of intermediate diets.

Legal preparation

338. Best Practice guidance stipulates that it is essential that Procurators Fiscal undertake thorough case preparation sufficiently in advance of the intermediate diet to ensure that the Crown fulfils its obligations (particularly in respect of disclosure, and sections 257 and 258 of the Criminal Procedure (Scotland) Act 1995) and, as far as possible, is fully prepared for trial.

339. Time was an issue in every office for Fiscals in relation to preparation of intermediate diets. It was apparent from observations and discussions with staff that their focus was on preparing for the intermediate diet court as opposed to preparing the cases for trial.

340. In various offices we were advised by Fiscals that they 'tailored' their preparation of the intermediate diet court to the sheriff who would be presiding over same. For instance, if they knew that a particular sheriff would want particular information or be particularly proactive, their preparation would accommodate this and be more comprehensive. If they knew that a sheriff would be particularly passive and non-proactive their preparation would be more sparing. While this approach is not commendable it is understandable, particularly when court loadings are taken account of.

341. There were both similarities and variations in how Fiscals prepared their courts. A Fiscal preparing an intermediate diet court has many resources at their disposal which can at times create difficulty in drawing them all to use.

342. Generally Fiscals began with the 'hard copy' file before them. This should contain all up to date information on disclosure, citation of witnesses and minutes from those dealing with the case previously. Most Fiscals also had a computer in front of them with screens open in two IT systems. This in itself is an indication of how cumbersome intermediate diet preparation can be and given the number of cases which Fiscals are dealing with regularly, this is particularly so. Additionally in the course of their preparation Fiscals regularly needed to liaise with members of administrative staff in relation to disclosure, productions etc which adds additional potentially time consuming steps.

343. We referred above to the intermediate diet checklist. For legal staff the completion of a checklist can provide a useful aide memoire in relation to their preparation for court. The potential, however, is that the focus shifts from the preparation of the case to the completion of the checklist, particularly where time is short. Care needs to be taken to ensure that any checklist adds value to the case preparation and is completed in a meaningful way by staff.

344. In the office where the FOS Court Instruction Sheet was used as a checklist, this was found by the dedicated intermediate diet Fiscal not to offer the best format for quick referral in court and for that reason he used his own handwritten notes on the file Minute Sheet for this purpose. Additionally the Fiscal found the process of adding a Fiscal instruction, saving and printing the sheet, time consuming.

345. This example highlights some of the difficulties and needs of Fiscals preparing for intermediate diet courts. The difficulties relate to capturing information from a variety of portals and individuals and securing them in one place. The needs relate to ensuring that the information is accessible quickly and cohesively for use in a busy court.

346. We saw other examples of Fiscals completing checklists and supplementing these with their own individual notes. While Fiscals will have their own individual ways of working this is perhaps indicative that the present formulae for intermediate diet checklists is not yet fit for purpose.

347. One Fiscal commented that there would be a benefit in incorporating all information in one place. IT fixes may assist either along with or as an alternative to an extension of administrative preparation to ensure that all information required by the Fiscal is available to them in one place, and in a format that they are able to extend, adapt or use as an aid in the conduct of the court. We thought that what was needed here was a formal record capturing the legal evaluation of the case being quite separate from the process information already provided in the administrative checklist. This should be part of the case file on both the paper file and IT system for future reference.

348. In every office we visited it was apparent that Fiscals were preparing their intermediate diet courts subject to time constraints in view of the number of cases they had. The SPR appeared to be the main focus in relation to considering the case, as of course it would have been for the marking Fiscal. In most offices the SPR was read or at least the analysis of evidence therein at this stage. However, importantly the full statements should be available to the intermediate diet preparation Fiscal.

349. With very few exceptions we were consistently told by Fiscals that full statements were not always read as they did not have the time. They effectively cherry picked the cases in which they would read the full statements. There were particular time constraints where despite the intermediate diet Fiscal being considered "ring fenced" they in fact had to deal with a variety of other matters during their preparation time such as warrant applications, proceeds of crime applications, deaths enquiries.

350. The cases where full statements were read tended to be cases which were not straightforward or where the Fiscal had highlighted issues from the SPR. In terms of adding value to the case and in terms of legal analysis a reading of the full statements is essential. The SPR is the version of events filtered through the mind of the reporting officer. The full statements are the version of events in the words of the witness themselves. There is no substitute for reading these in preparing a case for trial. The reporting officer in summarising the evidence may have glossed over or omitted facts as spoken to by the witness which could be pivotal to the conduct of the trial or important in the context of agreement of evidence which will be missed if the full statements are not read. This is as likely in a simple case as it is in a complex case. Additional witnesses may need to be cited and others countermanded.

351. In our review of closed and live cases we saw examples of cases being discontinued after the intermediate diet on full statements having been read. In other cases statements did not contain the evidence as anticipated and a plea was agreed.

352. In one office, in one of the live cases we reviewed we saw that a holistic review of evidence made a real difference to the legal preparation of a case. The Fiscal identified that a former co‑accused would be required as a witness in order to prove the case and an instruction was issued to that effect. Had the case not been prepared to this extent this may have been missed.

353. Considering the evidence in a case does not only mean considering the written statements and documents. It also means viewing the CCTV evidence, looking at documentation and perhaps 'labels'. Once again consideration of this evidence suffered due to the lack of time on the part of the intermediate diet Fiscal. Increasingly cases are reliant on CCTV evidence and it is crucial that this is viewed as part of legal preparatory work. We now see situations with disclosure where CCTV evidence will have been disclosed and viewed by the defence agent in advance of the intermediate diet but the Fiscal in court will be unsighted in relation to same, putting them at a clear disadvantage. They will not have seen their own evidence whereas the defence agent may have done. This is clearly unacceptable.

354. In one office we saw clear evidence of a more holistic approach to the legal preparation of cases driven by leadership. Court loadings were considered and managed to a maximum of 50 new intermediate diets in each court, providing clear parameters for court staff, albeit well beyond the numbers envisaged by summary justice reform. A rota structure was put in place to support legal staff in focusing on case preparation. Administrative and legal functions were clearly separated and defined and staff urged to concentrate on their particular functions. This empowered staff to fulfil the responsibilities assigned to their role and take real pride and ownership in their work. Members of the team had real confidence in each other and their work. This led to a cohesive, genuine team approach which was apparent through interviews with team members at all levels.

355. Legal consideration of cases was positively encouraged, which is to be commended. Cases should not simply be processed through a series of events. They should be considered, analysed, decisions made and progressed accordingly. Legal staff are pleaders, not processors.

Evidence capable of agreement

356. As referred to at the outset of this chapter agreement of evidence is an important aspect of summary justice reform. In preparing intermediate diets Fiscals appeared alive to this as a matter for consideration and several advised that they would contact agents proactively in this regard.

357. In our closed case review we found that evidence capable of agreement was not always identified by Fiscals. This is significant in the context of minimising inconvenience to victims and witnesses and saving resources, both financial and in terms of court time, not to mention in terms of the Crown's statutory obligations.

358. We found almost no evidence of engagement with the defence in relation to resolution of cases, discussion of evidential issues or seeking to agree evidence in our review of the closed paper files. In fact in one case we found correspondence from an agent in relation to resolution of the case unacknowledged. This is not to say that there was no engagement, simply no evidence of same. That having been said, it is essential that those dealing with cases have all information available to them. If there has been engagement with the defence in relation to any of these matters, it is crucial that this is accurately recorded and dated for anyone dealing with the case thereafter. This avoids double handling of issues and allows staff to make informed decisions.

359. The situation as detailed above is clearly not in the spirit of summary justice reform where a much more proactive approach was envisaged. We did see some evidence of proactive approaches by Fiscals during our office and court visits, however, these tended to be done on an ad hoc basis by phone fairly close in time to the date of the intermediate diet and so outcomes were mixed.

360. Our legal system is adversarial (the burden of proof rests with the Crown) and those conducting their business in our courts have their own opposing agendas. The Crown cannot make the defence engage, they are adversaries and indeed the Bench has no sanction to impose on parties should they fail to engage with each other.

361. That being said, there are clear gains to be made by the Crown in adopting a proactive approach. Firstly, they would be complying with the legislation and their internal guidance. Secondly, being prepared and having been proactive in contacting the defence, even fruitlessly, the Crown would be in a much stronger position at the intermediate diet. The Crown should aspire to the position where they are prepared and confident in advance of the intermediate diet, having fulfilled all of their duties and obligations. The sheriff making enquiry as, he should, in compliance with the legislation, as to the state of preparation of the case would know the Crown had played its part and it would fall to the defence to explain their position and if necessary their lack of engagement. Defence agents themselves advised that the more prepared the Crown were at intermediate diet the more likely it was that the spotlight would then shine on them.

362. During our live case review in attendance at intermediate diet courts we routinely heard the Fiscal asking the defence if evidence could be agreed. In accordance with the legislation and guidance this should have been considered and secured in advance of the case calling in court.

363. This tied in with our findings from our closed case review where we found a lack of evidence that the agreement of evidence had been considered and actioned and a lack of evidence that there had been any discussion between the Crown and the defence in relation thereto.

364. A useful tool in relation to avoiding the need to lead evidence at trial is the Statement of Uncontroversial Evidence (s258 Criminal Procedure (Scotland) Act 1995). The Best Practice Guide advises that these should be used where possible in summary cases and in view of the statutory timescales for challenge these should be served on the defence at least 10 days before the intermediate diet. This reinforces the point that intermediate diet preparation less than two weeks before the diet does not allow the Crown to meet their statutory obligations or internal guidance. In all the closed cases we reviewed we saw not one Statement of Uncontroversial Evidence. This starkly illustrates how underused this particular tool is.

Communication with defence

365. Another facet in relation to the agreement of evidence is the relationship and communication between the Crown and the defence. The prosecutor has a general duty to identify evidence which is capable of agreement and to take all reasonable steps to secure the agreement of evidence of the other party from the moment the accused pleads not guilty until the first witness is sworn.

366. In terms of the Best Practice Guidance where possible Procurators Fiscal should make proactive contact with defence agents, even by telephone, to discuss cases prior to the intermediate diet, particularly where the defence has not taken advantage of any opportunity to discuss the case with the Crown.

367. The thrust of summary justice reform was that the Crown should be proactive in relation to the agreement of evidence, as laid down in the legislation and echoed in their guidance.

368. We found a variety of approaches in relation to engagement with the defence in the offices we visited. There were some good practices which operated successfully and some areas, where despite valiant efforts by the Crown, to engage the defence seemed reluctant so to do.

369. In one office intermediate diet clinics and dedicated phone lines had previously been in place. However, the uptake from agents was so limited that they were not viable and so discontinued. The present arrangement in that office is that agents are now contacted on an ad hoc basis by the dedicated intermediate diet Fiscal. From the Crown perspective the defence seemed to adopt a last minute approach.

370. We were told of another office (not one of those inspected) which had gone to the extent of having an additional Fiscal available for discussion with agents within the court building while the intermediate diet court was ongoing. While this is, on one view, a little late in the day in terms of having agreement of evidence or indeed pleas agreed in advance of the intermediate diet, it was, however, intended to meet the needs of parties. Defence agents would be at court, they would have access to their clients who would also be in attendance, and, even had there been no opportunity to do so before, they would be in a position to discuss disclosure with their client, take instructions and therefore be in a position to have meaningful discussion with the Crown.

371. Where arrangements put in place by the Crown seemed to work best they tended to be based in the court building on the same day or very close (afternoon/day before) to the intermediate diet court. Overall we saw very little engagement from the defence in relation to discussing intermediate diets in advance. This was despite varying court cultures and physical arrangements. Where there was engagement it focused more on the resolution of cases by way of plea rather than on the agreement of evidence. There may well be an understandable frustration on the part of the Crown that despite efforts made and resources put in place, the uptake by defence agents is minimal. However, it does have a statutory obligation in relation to the agreement of evidence.

372. Looking at this from the perspective of the defence the picture is a little different. In discussions with defence agents around the country we were advised of various factors which assisted and encouraged them to engage with the Crown. Where meetings or discussions took place within the court building, they found this useful, the convenience factor clearly assisted here, together with the fact that if the meeting was on the same day as the intermediate diet, this allowed for discussion with their client. Defence agents also appreciated discussing their cases with experienced, dedicated intermediate diet court Fiscals. Their view was that resolution of a case was more likely to be effected by a Fiscal with some seniority/experience as these Fiscals seemed more willing or able to exercise some discretion in relation to their decision making.

373. In some offices the defence cited late disclosure as a difficulty and in some of the intermediate diet courts we visited this did seem to be borne out to a degree. The defence agents took the view that without disclosure they were not in a position to discuss the case meaningfully with their client. In one office the defence perception was that there was a lack of preparation on the part of the Crown and generally there appeared a perception that the Crown had insufficient time to prepare cases.

374. In many areas the defence complained of a lack of response to correspondence sent. This was an issue identified in our examination of closed cases. In the closed cases in 6 of the 8 offices we looked at we found evidence of unanswered correspondence from defence agents and other parties including witnesses, victims and complainers.

375. Many offices had put in place measures to allow for ease of contact with Fiscals including intimating direct line phone numbers etc. Despite this however agents still generally found difficulty contacting Fiscals (at times due to their unavailability as a result of court duties).

376. Agents took the view that both proactive calls from Fiscals and knowledge of the contact details of an 'allocated Fiscal' would assist.

377. From early 2012 (post our inspection visits to offices) the Crown was offering defence agents the opportunity to sign up to a new secure email service. Given the timing of this in relation to our inspection the impact is as yet unknown. It is anticipated that this will deliver savings in time and avoid the difficulties agents have contacting Fiscals by phone when they are involved in court duties. It is the intention of COPFS to move to a position over the next year where all disclosure and correspondence with defence agents and members of the Faculty of Advocates in relation to criminal cases is handled electronically.

Optimum time for legal case review

378. At present (under current guidance) the first legal review of initial legal instructions takes place at any time between two weeks and one day before the intermediate diet. Our view was that even two weeks before intermediate diet was too late. It seemed to us that what was needed was a holistic legal review of the case at the point when all the statements and productions (including CCTV) were to hand and about to be disclosed. Following such a review of the evidence, the letter accompanying full disclosure should propose areas for agreement and provide a named legal contact. Only by doing this would the Crown fulfil its statutory obligations for the intermediate diet.

RECOMMENDATION 14

We recommend that a holistic legal review of the case should take place when full disclosure is made to the defence including proposals for agreeing evidence and a named point of contact.

Advance notice trials

379. We said earlier that cases that merited some extra trial preparation were, for the most part, being identified at the marking stage.

380. These broadly fell into three categories: those which were complex due to the nature of the charges or the point of law which might need researched; those which involved high volume of witnesses and/or productions; those involving child or vulnerable witnesses whose evidence would require special measures.

381. The extra preparation work required for these trials varied. We found mixed evidence in our case reviews about the extent to which cases actually got the extra preparation that these factors merited. We identified good practice in a couple of offices where dedicated Fiscals had the responsibility for certain types of advance notice trial.

382. In one office, for example, a dedicated Fiscal had the responsibility of preparing all the child witness cases. These were allocated to her from the first calling and she carried out all the legal work necessary to ensure that identification of the accused was secured to allow the child to give evidence behind a screen or remotely via CCTV. We understand that this good practice had to be discontinued due to changes in the way summary business was being managed in that office which was disappointing.

383. In another office we learned of a dedicated Fiscal dealing with all the benefit fraud cases. Early and effective preparation along with proactive engagement with the defence resulted in a fairly high 'resolution' rate in these cases.

384. Each office had systems in place for allocating advance notice trials to Fiscals where they had been identified. There were a range of ways in which Fiscals were notified that the case was allocated to them. In one office this was by hand delivery of the case file with a note instructing review by a specified date before the intermediate diet. Less formally others emailed the Fiscal concerned with a note of the allocation and left it up to the Fiscal to retrieve and prepare the case.

385. In some offices the legal manager carried out the allocations whereas administrative managers were responsible for doing this in other offices. We took the view that should be done by legal managers who would be aware of all that was involved in the preparation of such cases. They would decide the person best suited for the task taking account of development, expertise, recent experience, current caseload and court commitments.

RECOMMENDATION 15

Advance notice trials should be allocated only by legal staff and appropriate time allowed for their preparation.

386. It was not always clear that Fiscals being allocated advance notice trials were expected to have the preparation work completed before the intermediate diet court. Certainly, in those closed cases reviewed where the marking Fiscal had marked for 'advance preparation' we found little evidence of any actual preparation before the intermediate diet. Yet, given the importance of securing agreement of evidence and focusing the issues the time just before and at the intermediate diet is critical. We thought that opportunities were being missed especially in these sensitive, complex or bulky cases.

387. In one office recent restructuring of legal duties resulted in the creation of a team of senior and experienced Fiscals dedicated to trial management and especially designed to focus on such cases. At the time of our inspection we found that, due to staff shortages in that unit, those given that responsibility were simply not able to carry out the duties to any significant extent and described their day to day job as 'fire-fighting' with cases imminently due on court. Indeed it was a common theme from legal staff interviewed that whilst the 'advance notice' label and allocation were good in theory, there was rarely enough time to carry out the preparation work that the case merited.

388. The main complaint from trial Fiscals around the country was that they did not have sufficient time to devote to the preparation of their trials. Where the need for 'advance preparation' was highlighted there seemed to be an expectation that Fiscals would simply make the time, for example where their trials courts finished early one day. Many Fiscals reported to us that this was simply inadequate for any meaningful and thorough case preparation. Some prepared cases at home in their own time.

Continuations of intermediate diets/churn

389. Churn refers to cases repeating steps in the process. Churn has been referred to in the media by High Court judges and been the subject of both internal and external scrutiny. The observation of live intermediate diets to assess reasons for their continuation was also the focus of some work by Criminal Justice Co-ordinators.

390. One aspect of churn is the continuation of intermediate diets to a further or continued intermediate diet.

391. The following table^[23] shows the national statistics relating to the number of continuations at intermediate diet over a three year period to March 2012:

Table 4

392. The above figures show that (over the 3-year period) the percentage of continued intermediate diet cases has remained fairly static.

393. Although there is no formal internal COPFS measurement of the reasons for the continuations in one office we visited the District Fiscal monitored this and used the results to highlight particular issues to be addressed either at office level or with criminal justice partners. We recognise this as good practice. Another office carried out a review in September/October 2011 to identify reasons for continuations and findings showed a variety of causes including lack of forensic report and agents not downloading disclosure documents but it also showed improvements in citing witnesses and availability of CCTV. In another office Fiscals were asked to note reasons for churn on minutes for monitoring purposes. Staff in all offices told us that they were very aware of 'churn' and were trying their best to address the reasons.

394. In the context of intermediate diets, however, not all churn is bad. Cases can be adjourned from their first fixed intermediate diet to a continued/further intermediate diet without jeopardising the trial diet. The reasons for such adjournments are many and varied. Examples included evidence which had not yet been disclosed for the first intermediate diet but was being delivered the following day, an essential witness had not been cited and the Crown had a new address at which to cite or the Crown and defence believed that the case could be resolved and time was required to facilitate this.

395. 'Churn' of this nature can avoid pleas on the day of trial, lost court time due to motions to adjourn on the day of trial and, perhaps most importantly of all, the inconvenience and expense of victims and witnesses coming to court for a trial which will not proceed on that day. Even with robust systems in place for preparation of intermediate diets there are still imponderables and not everything is deliverable within the gift of the Crown.

396. If the situation means that the first trial diet cannot be sustained a motion to adjourn might be made at the continued intermediate diet/further intermediate diet but it will not have been for lack of effort on the parties behalf. If the case resolves in a plea, so much the better, if not, then the original date for trial remains available.

397. We spoke to Sheriffs and Sheriff Clerks in most of the jurisdictions we visited. Several Sheriffs advised that they would rather continue an intermediate diet than abandon the trial diet completely which is consistent with the position stated above. The general consensus was that preparation was key and that the Crown should be more prepared in order that the issues to be decided at trial were in narrower scope. Additionally the bench was broadly supportive and tending towards a more proactive approach at intermediate diets with consideration around case management.

398. In our closed and live reviews of cases we found that reasons for having a further intermediate diet were various, only some of which were attributable to the Crown. Common reasons for intermediate diet churn attributable to the Crown were in relation to CCTV, forensic reports or further expert evidence relating thereto or because of now known difficulties for witnesses attending court on the date fixed for trial. Lack of full disclosure was cited also, although this was more likely to be in relation to productions in general rather than statements.

399. Just as many cases seemed to churn at the intermediate diet for reasons outwith the control of the Crown. Indeed during a visit to one court there were 11 motions to continue intermediate diets. These motions were joint motions, defence motions, or by the court itself.

400. The reasons for such motions varied widely and included illness or absence on the part of the accused, obtaining of specialist reports, change of agency, late instruction of solicitor by client, awaiting or viewing CCTV, and, on occasion, awaiting or loss of disclosure.

401. Legal aid issues were cited also although we were unable to determine what the issues were in the closed cases. Certainly in 'live' intermediate diet observations these related to the accused's failure to co-operate in providing the necessary documentation in support of the application or change of defence solicitor and were not due to any delay on the part of the Legal Aid Board.

402. Where the accused failed to appear the Crown would normally seek a warrant to arrest the accused. At our live intermediate diet observations we noted some balanced decisions by Fiscals seeking to retain the trial where the agent thought that the accused had good reason for failing to attend. This would prevent the whole trial preparation having to be abandoned with consequent witness inconvenience.

Role of the sheriff

403. The importance of the role of the sheriff in relation to the management of court business was recognised in the McInnes report as previously referred to:

"We recognise that many judges do not see themselves as having a role in managing court business. The idea that they might have such a role may be perceived by some as a threat to their judicial independence. They may say that each decision in each case has to be taken on its merits and that how a court performs overall is a reflection of the accumulation of many individual decisions. So, it may be said, there should be no constraints on them as impartial adjudicators in particular cases.

We would not accept that judges do not manage court business. To the extent that management is about applying skills to make sure that things get done, judges play that role daily by exercising their judicial discretion."

404. Across the country there appeared to be a lack of uniformity in the approach by sheriffs. Some were very proactive while others were less so. We spoke to several about how they perceived their role in these courts. It was apparent that, depending on court loadings and their own workload, they could see that more Shrieval intervention may be of benefit. This was also reflected in some of our discussions with defence agents.

405. The role of the sheriff is critical in the conduct of the courts over which they preside and indeed often the conduct of those who appear in their courts reflects their attitudes and involvement, whether that be passive or proactive.

406. We observed one group, chaired by a sheriff, where a proactive approach was adopted in addressing and resolving problems at intermediate diet. This included the sheriff keeping track of individual cases and holding parties to account.