Shaping Scotland's Court Services a Dialogue on a Court Structure for the Future

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shaping Scotland’s court services

a dialogue on

a court structure for the future

May 2012

a court structure for the future

WELCOME

This paper has been written for those attending one of the forthcoming dialogue events organised by the Scottish Court Service (SCS). The purpose of the event is to discuss ideas and questions that have emerged from work the SCS is doing to ensure our courts are structured to deliver the best possible service at an affordable cost, and to adapt to the significant legal reforms that are anticipated in the next few years. We hope you find the paper informative and thought provoking, and that it enables you to participate fully in the discussion.

For others who may read the paper, we hope you too find it informative and thought provoking. There will be an opportunity for everyone to comment on the final proposals that emerge from our work when we publish a public consultation paper later this year.

OBJECTIVES FOR THE EVENT

We have structured each event around six objectives:

1. To understand the context of the reforms and financial drivers, and the SCS Board’s four key questions1;

2. To encourage discussion, and a shared understanding, on the likely future shape of the justice system;

3. To explore how court services might help support the future shape;

4. To explore fresh ideas that have not yet surfaced;

5. To gather the major issues that need to be taken into account;

6. To outline the next steps and the sharing of common themes.

For convenience this paper follows the sequence of these objectives.

1 The four questions are set out on page 4. 2

OBJECTIVE 1 TO UNDERSTAND THE CONTEXT OF THE REFORMS AND FINANCIAL DRIVERS, AND THE SCS BOARD’S FOUR KEY QUESTIONS

WHERE DID THE JOURNEY BEGIN?

All institutions should, from time to time, review the structures through which they deliver their services, to ensure those structures remain relevant, effective and affordable. While Scotland’s court system has adapted over the years to new business and new ways of working, the underlying structure has remained largely unchanged. A network of courts across Scotland, many still of Victorian design, support the disposal locally of all types of court business. The High Court, while no longer travelling to all its historic circuit venues, still routinely hears cases in ten locations outside Edinburgh.

This structure has generally served Scotland well, and the role of the courts in delivering local justice is valued by communities. Anything that is perceived to threaten the present structure stirs strong emotions. The SCS recognises and respects this, but we cannot ignore the significant changes to the system that Scottish Ministers have signalled their intention to bring forward in the next few years. The reforms recommended by Lord Gill’s review of the civil courts (which have an impact also on the criminal courts) and those of Sheriff Principal Bowen’s review of sheriff and jury procedure, in particular, will change fundamentally how business is done in our court system. Nor is the SCS immune from the general reduction in funding for public sector bodies in Scotland, and, in common with other such bodies, from the consequential need to find efficiencies in the way business is conducted. The operating budget for the SCS will reduce by 20% in real terms by 2014/15. For these reasons, therefore, the status quo is not a sustainable option for the SCS.

The reform agenda presents a challenge to the Board of the SCS, the judiciary and to all who work in the justice system, to consider what form of court structure will best support those reforms within the reduced public resources available. It would be a singular disservice to the citizen if the Scottish Parliament introduces far sighted reforms, only to see them falter because we have failed to shape the underlying court structure to fit the new ways of doing business.

This then is the challenge: to consider to what extent the current structure of the courts needs to adapt to be ready to support the anticipated reforms effectively, and, secondly, how this can be achieved within reduced operating costs. These elements are closely inter-related, and the work is not being approached merely as a cost reduction exercise.

In addressing this challenge, the Board of the SCS has posed four questions about the structure of our courts in the future. These are:

1. Could the High Court circuit be reduced and, if so, where should it sit?

2. Could sheriff and jury cases be consolidated into fewer centres and, if so, where should they be?

3. Could we manage with fewer buildings where we have more than one in any town or city?

4. Could we manage with fewer courts where we have more than one within a reasonable travelling distance?

In trying to answer these questions, we have looked at the current structure, at where courts are situated, and how each operates in practice. We have anticipated the effect of the reforms proposed and how these would impact on the present structure, and we have taken into account the increasing use of video and other communication technology in the conduct of court proceedings, and the potential for increasing use to be made of this technology in the future. We have considered the outcome of this preliminary work and taken into account the Principles for provision of Access to Justice2 set down by the Lord President, the Lord Justice Clerk and the Sheriffs Principal. From our work have emerged some ideas and an illustration of a court structure that offer the beginnings of an answer.

In September last year, we shared these emerging ideas with the judiciary and with the staff of the SCS across the country, and we are now looking in detail at the points raised in discussions with them.

There is more work to be done before we have a detailed analysis to enable the SCS Board to come to a decision on a final set of proposals for public consultation. The Board has asked that this analysis take account of the views and ideas of key professional groups and others with an interest in the structure of our court system.

This paper is intended to assist you to participate in one of a series of dialogue sessions being held to gather those views and ideas. The paper provides some factual background and an outline of the ideas emerging from our work on the four questions. A tabular illustration of the emerging ideas is provided (Appendix 2).

Nothing has been decided. This is your opportunity to contribute to the discussion before the SCS Board receives proposals and considers what should be put out for public consultation later this year.

2 The Principles are reproduced as Appendix 1. 4

BACKGROUND

Future justice system changes

Major reform of the justice system is planned for the next few years. The most significant for the SCS will be the implementation of the recommendations in Lord Gill’s civil courts review,3 which also have significant implications for the criminal courts, and Sheriff Principal Bowen’s review of sheriff and jury business.4 Scottish Ministers have indicated their intention to implement the recommendations of these reviews.

There are other outstanding recommendations that may have an impact of the way court business is conducted: for example those in Lord Cullen’s 2009 review of the conduct of fatal accident inquiries, Lord Carloway’s recent review of criminal law and practice, and those by the Commission on Women Offenders led by Dame Elish Angiolini QC, which were published in April. A Bill to create a single police service is currently before the Scottish Parliament, and further legislation on the rights of victims is anticipated. These too have implications for the court system.

Assuming the recommendations of the Gill and Bowen reviews are implemented, the main changes to which the SCS will have to respond are:

• a new salaried judicial office of summary sheriff5, below the level of sheriff, dealing with summary criminal cases, summary cause and small claims cases and some family cases.

• a new sheriff appeal court dealing with both civil and criminal appeals from the sheriff courts and justice of the peace courts.

• a sheriff personal injury specialist court, probably in Edinburgh, with other judicial specialisation managed within sheriffdoms.

• the redistribution of civil cases from the Court of Session to sheriff courts, and at the lower level from sheriffs to summary sheriffs.

• more active management of sheriff and jury cases, in particular a sheriffdom- wide approach to matching cases to court capacity.

• increased use of videoconferencing and other arrangements to support vulnerable witnesses and victims of crime.

3 http://www.scotcourts.gov.uk/civilcourtsreview/index.asp 4 http://www.scotland.gov.uk/Publications/2010/06/10093251/0 5 Lord Gill recommended the new judicial officer should be styled a district judge, but the term summary sheriff is now being considered. 5

Future business volumes

The amount of business we can anticipate coming before the courts is a significant factor in any assessment of future need. On the basis of discussions with the Crown Office and the police, we have taken the fairly cautious planning assumption that High Court and sheriff and jury business volumes will remain flat.

The best assumption on summary criminal business is that a further 5 per cent of sheriff court cases will transfer to the justice of the peace courts during 2012/13, with a corresponding number of justice of the peace court cases transferring to direct measures.6 We are not assuming that a 5 per cent reduction in sheriff summary cases would lead to a corresponding 5 per cent reduction in sheriff summary sitting days, as previous experience suggests that the more serious summary cases left behind take proportionately more current sheriff court sitting time, but we assume that the reduction in cases will create some of the capacity required to maintain current levels of performance.

Although overall levels of civil business have been declining, we are making the cautious assumption that they will be broadly flat, although the business would be significantly redistributed between court tiers should the exclusive jurisdiction of the sheriff courts be increased to £150,000 as proposed in Lord Gill’s review of the civil courts.

Historic business trends are shown in the following table.

6 A direct measure is a statutory penalty, such as a road traffic fixed penalty notice or fiscal fine, which an offender can chose to accept to avoid prosecution. 6

Business Trends

Numbers Registered 2007-08 2008-09 2009-10 2010-11 2011-12 SUPREME COURTS High Court Indictments 1,005 920 789 730 792 High Court Trials : Trials Assigned 487 495 460 404 502 High Court Trials : Evidence Led 446 382 322 269 315 High Court Sitting Days 3,591 3,826 3,912 3,909 3,857 First Instance Sitting Days 2,656 2,711 2,707 2,576 2,733 Solemn Appeals 953 765 870 820 810 Summary Appeals 1,475 1,546 1,486 1,393 1,274 Ordinary Civil Actions Registered 3,264 3,737 4,346 3,631 3,294 Civil Petitions Registered 3,183 1,597 1,675 1,458 1,364 Civil Appeals/Reclaiming Motions 247 300 287 226 261 SHERIFF COURT Indictments (Sheriff and Jury) 6,503 6,293 6,211 5,506 5,815 Solemn Trials : Called 3,234 3,295 2,996 2,975 3,277 Solemn Trials : Evidence Led 552 1,055 1,070 1,166 1,128 Summary Criminal Complaints 97,456 89,667 83,276 78,936 75,091 Summary Trials: Called 50,658 45,006 41,717 40,678 40,336 Summary Trials : Evidence Led 5,772 6,922 7,153 7,189 6,846 Summary Cases Concluded at Trial Diet - - 26,275 26,551 27,429 Ordinary Civil 55,987 46,477 42,810 34,072 26,021 Summary Cause and Small Claims 60,756 79,827 68,914 58,185 54,481 Total Sitting Days 30,121 30,928 31,475 30,885 29,470 JP COURT Summary Criminal Complaints - - 56,758 67,966 58,423 Summary Trials : Called - - 12,728 19,127 17,214 Summary Trials : Evidence Led - - 2,258 3,083 2,828 Summary Cases Concluded at Trial Diet - - 7,086 11,414 10,940 Total Sitting Days* - 5,466 5,346 5,292 5,450 Direct Measures - 59,487 85,827 97,174 103,853 * Estimated figure, includes provision for ad hoc custody courts

Financial considerations

The figures below show the budgets for the SCS set following the Scottish Government’s 2011 Spending Review. The figures are expressed in cash terms (excluding the effect of inflation). The budgets for 2010-11 and 2011-12 are provided for comparison.

SCS Budget 2010-11 2011-12 2012-13 2013-14 2014-15

Revenue £73.6m £69.9m £68.5m £67.4m £65.4m Revenue reduction from -5.0% -6.9% -8.4% -11.1% 2010-11 Capital £20.3m £10.4m £8.5m £6.0m £4.0m

The reductions are substantial. Taking inflation into account, the real terms reduction in the revenue budget from 2010/11 to 2014/15 is 20 per cent. The SCS has no choice but to find ways to deliver its services at lower annual cost.

Savings have been made already, and further savings are planned, in many areas of the SCS budget. Staff numbers were reduced in 2011 by 120, mainly through a voluntary redundancy scheme. Court programmes have been adjusted to reduce the number of sitting days provided by part time judicial officers. We are looking at what might be done to increase the income we receive from fees and the money retained to cover fines collection and enforcement. But on any realistic assessment the SCS will have to find additional savings of around £2 million or more in 2014/15, either as a consequence of changes to the court structure or some other changes that are not already planned.

When considering what else could be done to reduce running costs, we have been cautious to avoid undermining the essential effectiveness of the administration of justice. We could, for example, restrict further the sitting of part time judicial officers, primarily part-time sheriffs, to an absolute minimum. This could produce savings in the region on £1.4 million a year. But such a reduction would impact significantly on the programming of court business, and we estimate the period between the first calling and trial of a summary criminal case would increase by around five weeks a year. Delays would also be experienced in scheduling civil business and sheriff and jury trials.

We would need to lose another 100 staff on top of the reductions already achieved to secure the level of cost saving required. While this could produce savings of £2.2 million a year, it could not be achieved without a further voluntary redundancy scheme, and potentially compulsory redundancies. Such schemes have significant and unavoidable

upfront costs. Furthermore the further loss of experienced and technically knowledgeable staff would impact on the capacity of the courts and court offices both to operate effectively day to day, and to adequately support the introduction of the reforms. Inadequate resources for these key functions could be expected to have an adverse effect on the morale of staff and on judicial confidence in the SCS’s ability to fulfil its statutory responsibility to support the operations of the courts.

The actual savings achieved will depend on the final proposals that are approved. However, the current estimate of the potential on-going revenue savings from the court structure proposals illustration in this paper, if taken to their fullest extent, are in the region of £2 million a year, through the closure of split site courts, rationalisation of the High Court and possible court closures. There would also be a saving of an estimated £6-9 million on outstanding building maintenance.

Opting to rationalise the court estate would seem to us to preserve the essential judicial and staff resources to operate the system and allow future investment, particularly in facilities for jurors, victims and witnesses and in communication technology, to be targeted across a smaller group of buildings, maximising the benefit of that investment in the services delivered to court users.

OBJECTIVE 2 TO ENCOURAGE DISCUSSION, AND A SHARED UNDERSTANDING, ON THE LIKELY FUTURE SHAPE OF THE JUSTICE SYSTEM

WHAT DO THE REFORMS MEAN FOR THE WAY WE DO BUSINESS?

The introduction of a new judicial tier, the office of summary sheriff, with a limited, but significant, criminal and civil jurisdiction, is a most fundamental change to the current structure of the sheriff courts, which is founded on the generalist sheriff presiding locally over all sheriff court business.

Summary sheriffs would handle the full range of summary criminal business together with small claims, summary cause and some other civil litigation. As the table earlier in this paper shows, the summary sheriff would undertake what might be regarded as the high volume work of the sheriff courts. Sheriffs, of whom there would be far fewer than at present, once the body of summary sheriffs built up, would spend their time on sheriff and jury business and on the more complex civil cases. The proposal to increase the exclusive jurisdiction of the sheriff court to cases up to £150,000 (from the present level of £5,000) could be anticipated to bring before a sheriff cases that might today go to the Court of Session.

There would be more specialisation among the sheriffs, some in the new national personal injury court (which is expected to be based in Edinburgh Sheriff Court), some in sheriff and jury work, which would be managed on a more centralised basis within each sheriffdom. Less appellate work would go to the High Court and the Court of Session, as all sheriff court civil appeals and summary criminal appeals would go to a new sheriff appeal court, from which there would be a limited basis to appeal to the Court of Session and High Court.

The reforms would move us from the current model in which a single tier of court (the sheriff) deals with all business on a localised basis across the country, sending its appeals to Edinburgh. The new model would need to allow for two tiers (the sheriff and the summary sheriff) dealing with different types of business. The summary sheriff with high volume work, perhaps still largely locally based; the sheriff, the fewer number, dealing with more complex matters, perhaps sitting in specialist centres dealing on an sheriffdom or national basis. And instead of sending appeals to Edinburgh, a new court would be established to hear civil and summary criminal appeals within the sheriff court structure. In the next section we say a more about the implications of these changes on the court structure.

IMPLICATIONS FOR A COURT STRUCTURE FOR THE FUTURE

Court accommodation has evolved gradually over the last 200 years. The design and provision in many courthouses reflect the requirements of times past. Structure and layout often create physical constraints that mean adapting the buildings to new ways of delivering court services is practically difficult. Many of the older court buildings form a significant part of Scotland’s architectural heritage, and are subject to a number of statutory controls on the way buildings are managed and developed. To meet these obligations while at the same time securing the provision of modern court services, requires the SCS increasingly to look at imaginative and flexible ways to use the estate that focus on the needs and expectations of the court users.

The current court structure supports the single tier generalist sheriff dealing with all business locally. The demands on the individual courts are largely imposed by the local jurisdiction, although in a number of courts visits by the High Court have to be accommodated. In as many places as the existing accommodation allows, the justice of the peace court has been accommodated within the sheriff court house. In a few places this has not been practically possible, and the justice of the peace court continues to sit in a separate building.

The reforms present a much less simple structure to support. On one level a central personal injury court has to be accommodated; centralisation of sheriff and jury business within each sheriffdom means that capacity at the centres must be given up for that type of work. If sheriffs are to specialise in certain types of business, are they to move around the country hearing the specialist cases, or would it be more efficient and economical for the business to come to them; if so where should they sit? Summary sheriffs will, as we have seen, take on the high volume summary work of the sheriff courts. The volume of that business, its local connection, and its implications for a great number of people, particularly victims and witnesses, might mean that a dispersed local model remains the most appropriate for providing access to summary justice. The jurisdiction of the locally based justice of the peace courts is unchanged by the proposed reforms, although it can be anticipated that Government will continue to ensure that court cases are being dealt with at the most appropriate level, and this might increase the case load over time .

The challenge is to provide capacity, both physical and in sitting days, at appropriate places to deal with the various types of business. It is difficult to see how this could be achieved without moving business out of one place, to make room for other business.

If, for example, sheriff and jury work is to be handled in fewer locations, that puts jury accommodation at those locations under pressure. This leads to the question: what might be removed from those centres to create capacity? And so thinking turns to whether the High Court should continue to sit at that place, or whether it should cease

to visit, thereby releasing capacity. If sheriff and jury work is removed from a court, how can the capacity that is released be used. Is it sensible to move in other business, or is it appropriate to consolidate the remaining business in another court from which similar capacity has been released, thereby releasing a whole building? These questions pose a range of difficult issues, and our preliminary ideas about resolving some of them are outlined later in this paper.

A further factor in getting the right balance of court capacity to business need, is the increasing need to improve services for victims and witnesses, and to examine greater use of video-conferencing technology for the conduct of court proceedings. This can, in turn, create the need for additional accommodation, and mean that the physical presence of victims, witnesses and accused in the courthouse is lessened. Work is ongoing, under the auspices of the Scottish Government’s Making Justice Work programme, to develop further the use of video-conferencing technology in the court process.

None of these factors can be looked at in isolation. Taken together they offer an opportunity to structure reforms to our court provision radically, and in a way that will serve well into the future.

OBJECTIVE 3 TO EXPLORE HOW COURT SERVICES MIGHT HELP SUPPORT THE FUTURE SHAPE

GUIDING PRINCIPLES

The senior judiciary have developed the Principles for provision of Access to Justice to which the SCS must have regard when considering the places in which courts should be located, and the court services that should be provided, in fulfilment of its statutory responsibility to support the Scottish courts, and the judiciary of those courts.

These principles recognise that the efficient disposal of court business is an overriding priority and that what is involved in the delivery of criminal justice locally may vary according to the level of jurisdiction being exercised. They also emphasise that the SCS must look ahead to future demands on the court system, rather than simply the current position.

The Principles are reproduced in full as Appendix 1.

We read the principles as challenging the SCS to give particular priority in its analysis to (a) assessing the impact of any options on the efficient disposal of business, (b) travelling times to court, (c) maintaining broad eligibility for jury service and (d) considering how to balance the need for suitable standards of accommodation and facilities, including video-conferencing, with the desire for local delivery of criminal justice. We have attempted to do this when developing our initial ideas in response to the four questions posed by the SCS Board.

THE SCS BOARD’S FOUR QUESTIONS

In the following paragraphs we outline the thinking that has emerged from our analysis to date. As we have said, there is work still to be done to consider the detail of comments made by the judiciary and court staff when we shared our thoughts with them at the end of last year, and we anticipate further such work to review the observations and develop the ideas that will be forthcoming from the dialogue sessions which this paper supports.

It is too early for us to say whether our thinking offers a real answer to the four questions posed by the SCS Board, although we are confident it is based on sound analysis. In offering our thoughts for discussion, we do not suggest that there are no other ideas to consider.

When considering our initial ideas, it would be helpful (for the purposes of the event) if you could test them in the following way:

What is good about these ideas?

What is bad about these ideas or missing from the discussion?

What impact will these ideas have in supporting delivery of justice?

What other options are available?

In the following paragraphs, we outline briefly our ideas under each question and thereafter offer some discussion on the court structure that follows from bringing the ideas together. The major issues that have emerged from consideration of ideas are set out later under Objective 5.

The court structure described is illustrated in tabular form in Appendix 2.

Could the High Court circuit be reduced and, if so, where should it sit?

The High Court currently sits in three dedicated centres (Edinburgh, Glasgow, Aberdeen), periodically in eight circuit courts (the sheriff courts at: Dundee, Dunfermline, Inverness, Kilmarnock, Paisley, Perth, Dumbarton and Livingston) and regularly in Edinburgh Sheriff Court: a total of nine additional venues.

Two alternative sitting patterns have emerged. One would see High Court activity being centred on the existing dedicated sites in Edinburgh, Glasgow and Aberdeen, with overflow capacity provided in both the east and west of Scotland (most likely Livingston Sheriff Court and Greenock Sheriff Court). This routine sitting pattern would be supplemented by a rural location where, in the particular circumstances of a case, it would be in the interests of the administration of justice for the trial to be heard locally.

The reasoning for this three centre approach is twofold. Firstly our analysis indicated that there is not always a connection between the place where the crime was committed and the venue chosen for the trial. Secondly, there would be a need to release sitting capacity in the sheriff courts to allow the creation of sheriff and jury centres. There would also be some operational financial savings.

The second option retains a more regionalised pattern of sittings, although in fewer locations. Under this option, the High Court would sit in the three dedicated centres of Edinburgh, Glasgow and Aberdeen, and also in Ayr, Perth and Inverness. This option would also include the overflow capacity at Livingston and Greenock mentioned earlier.

Could sheriff and jury cases be consolidated into fewer centres, and, if so, where should they be?

Sheriff and jury business is currently conducted at 47 of the 49 sheriff courts. The idea was based on a more centralised approach where that business would be conducted exclusively in 14 of the 49 sheriff courts.

The 14 courts would be: Edinburgh, Livingston, Paisley, Dumbarton, Kilmarnock, Airdrie, Hamilton, Ayr, Dundee, Falkirk, Dunfermline, Aberdeen, Inverness and Glasgow.

Could we manage with fewer buildings where we have more than one in any town or city?

At the beginning of 2010 there were 13 sheriff court districts in which SCS delivered services from more than one building in the same location. A total of 31 buildings were in use, which is arguably 18 more than required. The idea is based on closing a further 14 sites in the Sheriff Court Districts of Glasgow, Aberdeen, Inverness, Dunoon, Kilmarnock, Airdrie, Dumfries, Hamilton, Dundee, Kirkcaldy. Four JP Courts were incorporated into the sheriff court house during 2011-12, namely Ayr, Kilmarnock, Paisley and Perth.

Could we manage with fewer courts where we have more than one within a reasonable travelling distance?

A number of courts sit relatively infrequently, are within reasonable travelling distance of another court or have small population settlements within the sheriff court district. The idea was based on identifying courts that were below two key tipping points:

(a) those sitting three days per week or less (insufficient business volume); or

(b) those in a settlement with 20,000 or less population that is within 20 miles of another court (insufficient distance).

The following 20 courts fall into one of these categories and could therefore be considered for closure, subject to the necessary statutory approval:

o Insufficient Business Volume: Dornoch, Duns, Kirkcudbright, Tain, Peebles, Rothesay, Annan JP, Coatbridge JP, Cumbernauld JP, Kirkcaldy JP, Irvine JP, and Lochgilphead.

o Insufficient Distance: Alloa, Cupar, Dingwall, Forfar, Haddington, Lanark, Selkirk, and Stonehaven.

DISCUSSION

Consequences of fewer court locations The ideas underpinning the four questions are inter-dependent. The withdrawal of the High Court Circuit may be a prerequisite to any consideration of closure of a second site in a sheriff court district: for example withdrawal of the High Court from Kilmarnock would be required before any consideration could be given to the future of Irvine JP Court. Similarly, the sheriff and jury business currently conducted in Stirling would have to be accommodated elsewhere to create capacity to accommodate the summary business from Alloa. The initial ideas also present a range of possible permutations that may need further modelling in light of further discussion.

The operational implications of the initial ideas have been assessed in a number of ways. For those courts which would have to accommodate additional business, consideration has been given to whether it would be feasible to accommodate the conjoined business (that is the current business and that proposed to be transferred from another court) within the available courtrooms in the court house. An analysis of business volumes comparing previous years’ workload with future projected workload to determine the feasibility of conjoining the business has also been carried out.

We recognise there are concerns that the capacity of a smaller court estate would be insufficient to accommodate existing pressures. However on the basis of the assumptions about business levels and the changes to the system which will be brought about by the reforms, our assessment is that there would be sufficient court capacity to deal with the anticipated volume of business in the majority of locations. There are five courts7 where further thought would need to be given to how this could be achieved. A solution may be found in programming court business in such a way that available courtrooms are in use from 9.30 am to 5 pm. This would offer a solution at each of the courts. Other options may be available to meet local considerations: for example in the case of Hamilton, there would be an option to transfer in only the business of Lanark Sheriff Court, leaving the JP Courts of Hamilton and Motherwell to continue operating separately. In Dundee, there would be the possibility of transferring in only the business of Forfar, perhaps with the continued centralisation, in Dundee, of the sheriff and jury business for Arbroath, Forfar and Cupar. There is more work to be done on assessing capacity in individual locations before the public consultation.

WHAT WOULD A COURT STRUCTURE BASED ON THE EMERGING IDEAS LOOK LIKE?

In Appendix 2 we provide an illustration of how our thinking translates into a court structure. We have taken account of the recommendations of the civil courts review, principally the introduction of the summary sheriff. As the summary sheriff is expected to have a civil jurisdiction restricted to summary cause and small claims litigation, and

7 Jedburgh, Airdrie, Hamilton, Dundee, Inverness. 16 some family matters, provision has to be made for the handling of other civil business at another court location.

The courts highlighted in green would handle sheriff and jury business. Those courts highlighted in yellow would, in this illustrative model, be proposed for closure. The ultimate decision on whether a court should cease to be held at a place rests with the Scottish Parliament.8

Owing to the particular considerations attaching to our five remote island courts,9 no change to the range of business dealt with at those locations is anticipated. It would be for the Sheriff Principal to determine the most appropriate allocation of sheriff and summary sheriff resources to preside over the programme of business at these locations.

8 More information about the statutory process is given in on page 21. 9 Lerwick, Kirkwall, Stornoway, Lochmaddy, Portree 17

OBJECTIVE 4 TO EXPLORE FRESH IDEAS THAT HAVE NOT YET SURFACED

As we have said, we do not suggest that there are not other ways to answer the four questions posed by the SCS Board, or to support the reforms. Those attending the events will bring a diverse range of experience and perspective to consider the issues outlined in this paper, and we wish to take the opportunity of the collective discussions to allow new and fresh ideas to emerge.

Although the SCS has no role in making court rules or developing the law, where potential changes in those substantive areas relate to our statutory responsibilities we can make representations on these matters to the Rules Councils and to Scottish Government, so your ideas need not be constrained.

The following are offered, merely to spark your own thinking, if that is helpful:

• could more radical use be made of video and other communication technology?

• could certain court business be delivered on-line, perhaps in real-time?

• could certain business be dealt with in accommodation hired on an ad hoc basis?

• is there more scope to deal with matters without the physical presence of parties?

• is there more scope to secure access to justice through means other than formal court process?

• is there more scope to reduce further the time required in court by mechanisms to require parties to agree facts?

And then, there are the fresh ideas that have evaded us entirely; but not so you.

OBJECTIVE 5 TO GATHER THE MAJOR ISSUES THAT NEED TO BE TAKEN INTO ACCOUNT

We outline below the major considerations that have been identified through our own work and from the comments helpfully provided by the judiciary and staff who have considered our thinking. We anticipate further issues will be identified by the events, and it is important we take account of the major concerns in our further work and in the analysis that will go in due course to the SCS Board.

Sheriff and Jury Business There is concern that drawing sheriff and jury business into a few specialised centres would reduce the relevance of local knowledge across the courts, and create the potential for a loss of skill among the judiciary. These are valid points, but the implications for the judiciary of the justice system reforms which have been outlined earlier will be significant. The possible centralisation of sheriff and jury business is only one part of these wider changes. Consideration would have to be given to how judicial training and judicial career development may need to change in light of the reforms and any specific changes that may come from the court structure proposals. It should also be observed that if summary sheriffs are introduced, the transition to the new judicial structure may take ten years or more and there would need to be a plan for maintaining the skills of sheriffs in smaller courts during that transitional period.

Concern has also been expressed that a more centralised arrangement for jury trials would adversely affect the opportunity for citizens to serve on a jury. Each year around 4% of the population eligible for jury duty are cited for that duty. This provides for the 0.5% (around 21,000) of the eligible population who are actually required to serve annually as jurors. We estimate that if the current ideas for jury business were adopted, around 0.08%, (around 3,000) of the eligible population would serve in a court other than the one in which they would currently serve. The catchment areas for jurors would be very much dependent on the final agreed model, but 86% of all jurors would be unaffected by the current idea to consolidate sheriff and jury business in 14 court locations.

Risk Consolidating business into fewer court centres does increase risk. Having fewer sites reduces the options available for responding to any exceptional events, unusual peaks in demand or unforeseen growth. The counterbalancing factor is that consolidation can be seen as creating a better environment in which to tackle the issues that underpin waste or churn10 in the system. The opportunity to reduce churn means that there is still significant potential flexibility even within a consolidated court

10 A case is said to churn when it cannot be heard on the day assigned and is continued to another date, when all concerned must again attend court. Cases commonly “churn” because the accused or a witness does not attend. 19 structure to provide options to relieve pressure on the system even if it has to respond to exceptional events or unforeseen growth.

Geography and Demographics Each sheriff court district is unique in terms of the catchment area that it serves. The relative location of population settlements within that district, the availability of suitable and reliable transport routes and areas of population growth are all factors that can directly affect access to justice. A significant amount of the comment we have received from local judiciary and court staff highlighted these access to justice issues and, in particular, suggested that more remote population settlements in some districts may have difficulty in securing access to justice if the current court was closed. We accept this is a major consideration.

If court closures are to be considered the issues relating to local access to justice would be explored in full detail and a public consultation document would summarise our analysis of the impact of travel time increases based on average journey times from key locations by public transport. The indications of our work to date on travelling times is that, as a minimum, the structure illustrated in Appendix 2 would present a model that nationally would enable at least 90% of High Court users to be within two hours travelling and at least 90% of sheriff and JP court users to be within one hour travelling time. For some small groups of court users, travelling times potentially reduce.

Another issue of particular concern locally is the loss of local access to, and visibility of, justice for communities. We will work to the Principles for provision of Access to Justice and balance local access against efficient disposal of business. An important consideration for us is how we can continue to ensure effective reporting of local cases in the media. This, in reality, is likely to be a significant factor in the continued visibility of local justice for the majority of people who rarely, if ever, enter a court building. We would anticipate discussing this with the locally based media, who play an important role in the reporting of local justice.

Loss of historic courts It has been suggested that the scale of the savings is not significant enough to justify the loss of some of Scotland’s historic courts. We know there is strong civic pride in our local courts, and any proposal to change the current structure stirs strong emotions. We understand and respect this. However, as we have mentioned earlier in this paper, the current consideration is not just about looking for financial savings, but also to consider the kind of court structure we need to meet the new ways of delivering court business and the expectations of modern Scotland’s citizens. A structure that served the people well in the 19th Century may not serve them well in the 21st Century. The current dialogue is about looking to the future and the court system we want to have, however proud we are of the one we have had up till now.

OBJECTIVE 6 TO OUTLINE NEXT STEPS AND THE SHARING OF COMMON THEMES

WHAT HAPPENS NEXT?

The last event is scheduled to take place on 1 June. After that we will analyse the experience of the six events and identify the common themes that emerged. We would hope to share a fairly brief outline of those common themes with the participants from all the events.

The conclusions from the events, the ideas and the major issues identified will be incorporated into the work that is ongoing to provide a comprehensive analysis of the issues, to accompany a detailed business case and financial appraisal of the proposals for consideration by the Lord President, the Sheriffs Principal and the SCS Board. We would anticipate this stage being completed during August 2012. We would expect the SCS Board will then decide the proposals on which a public consultation should take place. The consultation would run over the Autumn 2012. Following analysis of the consultation, we would anticipate a decision by the SCS Board in January 2013.

Any changes proposed to the way the business before the courts is allocated would be for the Lord President and the Sheriffs Principal to decide given their statutory responsibilities for securing the efficient disposal of the business in the courts for which they have responsibility. Should the SCS Board decide to recommend that a sheriff court should close, it would be for Scottish Ministers to consider that recommendation and make the necessary order. The order takes the form of a of statutory instrument11.

Ministers can make such an order only with the consent of the Lord President of the Court of Session and the Scottish Court Service.

The order is subject to annulment by the Scottish Parliament, so it is Parliament who has the final decision as to whether a court should close.

We would anticipate a phased implementation of any changes beginning in 2013/14, and continuing progressively as the body of summary sheriffs builds up.

Scottish Court Service May 2012

11 Section 3 of the Sheriff Courts (Scotland) Act 1971 21

Appendix 1

Principles for provision of Access to Justice

Preamble

A. The following principles have been prepared in discussion among the Lord President, the Lord Justice Clerk and the Sheriffs Principal. These set out broad principles to which they require SCS to have regard in making provision of support under ss.61 and 62 of Judiciary and Courts (Scotland) Act 2008 (2008 Act) concerning the places in which courts should be located and court services should be provided. In planning for the future of the court estate, account should be taken of anticipated demands including developments in the practice and procedures of both criminal and civil business and the requirement to consult publicly and seek approval from Parliament for any substantial changes to sheriff and justice of the peace court locations.

B. These principles should be read together. In certain circumstances one or more of the principles may need to take precedence over another. All of them must be construed within the statutory duty of the Lord President for the efficient disposal of business in the Scottish courts12, and the responsibility of each Sheriff Principal for the efficient disposal of business in the courts within his or her sheriffdom13. In providing services in support of the courts of Scotland, and the judiciary in those courts, SCS cannot be asked to provide services at a cost greater than the resources made available by the Scottish Parliament for that purpose.

Principles

C. The provision of services by SCS must be compliant with Article 6 of the ECHR: that is to say that it must support the determination of a citizen’s rights and obligations or of any criminal charge against him or her by way of a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The manner in which compliance with this Article is achieved is not tied to the number of locations at which SCS provides its services, but it must not do so in a manner that effectively denies to the citizen access to the determination of a right or obligation

12 S.2(1) Judiciary and Courts (Scotland) Act 2008 (asp 6) 13 S.15(1) Sheriff Courts (Scotland) Act 1971 (c.58) and s.61 Criminal Proceedings etc. (Reform)(Scotland) Act 2007 (asp 6) 22

in civil cases, for example, by reason of excessive cost or the inaccessibility of the venue, or effectively prevents a citizen accused of a criminal charge having a fair trial by reason of, for example, material difficulties in obtaining the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him.

D. Subject to the efficient disposal of business, it is desirable that criminal justice be delivered locally. Quite apart from the convenience of witnesses and the interest of victims, this engages the local community in the administration of justice, including providing the opportunity to serve as justices or jurors. What is involved in the delivery of criminal justice ‘locally’ may vary with the level of the jurisdiction being exercised.

E. The SCS should ensure that most people will be able to travel to their local court by public transport so as to arrive at the start of the case in which they are concerned, and be able to return home by public transport on the same day. That local court should as a minimum be able to hear and determine summary criminal cases and lower value, or more straightforward, civil matters. Provision of services beyond that minimum will be determined by reference to the statutory duty of the Lord President and the Sheriffs Principal in respect of the efficient disposal of business in a particular area.

F. Within each courthouse appropriate facilities must be provided for criminal trials, civil proofs or other hearings where the physical presence of parties or witnesses is required. The use of video conferencing (for example in procedural stages of criminal proceedings or interlocutory or preliminary hearings in a civil case) which may avoid the need for parties to be physically present in a courtroom is in appropriate circumstances acceptable. The appropriateness of the use of video conferencing in a particular case must, subject to any rule of law, be a matter for the presiding judge or sheriff to determine.

G. SCS should seek to provide services that allow the administrative business of the courts (submission of documents in civil cases, payment of fines etc.) to be undertaken without the need for physical attendance at a court or courthouse, particularly in respect of those parts of Scotland which are remote and where public transport provision is scarcer.

H. Save where the exceptions provided in Article 6(1) of the ECHR apply, judgment should be pronounced publicly. It is important therefore that court buildings and court proceedings are publicly accessible and that the courts provide information about their work to communities or individuals with particular interest in given cases and to the public more generally.

I. In providing the facilities for civil and criminal proceedings and in providing services to court users generally, the SCS must ensure that the accommodation or service is :

I.i. fit for purpose;

I.ii. accessible, safe and secure; and

I.iii. consistent with future arrangements for expenditure of public funds.

February 2012

Appendix 2

ILLUSTRATION OF FUTURE COURT STRUCTURE (including business introduced by Civil Courts Review) F

Sheriff Court Summary Sheriff

Summary Crime Sheriff Appeal Personal High Court Solemn Civil/Misc and Civil Court Injury Court JP Court

LOTHIAN AND BORDERS

Edinburgh SC and JP NO EDINBURGH EDINBURGH EDINBURGH YES YES EDINBURGH PEEBLES PEEBLES PEEBLES PEEBLES HADDINGTON HADDINGTON HADDINGTON HADDINGTON JEDBURGH JEDBURGH SELKIRK SELKIRK DUNS DUNS

Haddington SC and JP POSSIBLE CLOSURE

Peebles SC and JP POSSIBLE CLOSURE

Livingston SC and JP YES* LIVINGSTON LIVINGSTON LIVINGSTON NO NO LIVINGSTON * overflow only

Jedburgh SC and JP NO NO NO JEDBURGH NO NO JEDBURGH DUNS DUNS SELKIRK SELKIRK

Duns SC and JP POSSIBLE CLOSURE

Selkirk SC and JP POSSIBLE CLOSURE

GLASGOW AND STRATHKELVIN

Glasgow SC and JP NO GLASGOW GLASGOW GLASGOW YES NO GLASGOW

SC - Sheriff Court JP - Justice of the Peace Court Appendix 2

Sheriff Court Summary Sheriff

Summary Crime Sheriff Appeal Personal High Court Solemn Civil/Misc and Civil Court Injury Court JP Court

NORTH STRATHCLYDE

Paisley SC and JP NO PAISLEY PAISLEY PAISLEY YES NO PAISLEY GREENOCK GREENOCK ROTHESAY ROTHESAY DUNOON DUNOON

Dumbarton SC and JP NO DUMBARTON DUMBARTON DUMBARTON NO NO DUMBARTON OBAN OBAN CAMPBELTOWN CAMPBELTOWN

Greenock SC and JP YES* NO NO GREENOCK NO NO GREENOCK * overflow only ROTHESAY ROTHESAY

Rothesay SC POSSIBLE CLOSURE

Kilmarnock SC and JP NO KILMARNOCK KILMARNOCK KILMARNOCK NO NO KILMARNOCK IRVINE

Irvine JP POSSIBLE CLOSURE

Campbeltown SC and JP NO NO NO CAMPBELTOWN NO NO CAMPBELTOWN

Dunoon SC and JP NO NO NO DUNOON NO NO DUNOON LOCHGILPHEAD LOCHGILPHEAD

Lochgilphead SC and JP POSSIBLE CLOSURE

Oban SC and JP NO NO NO OBAN NO NO OBAN

SC - Sheriff Court JP - Justice of the Peace Court Appendix 2

Sheriff Court Summary Sheriff

Summary Crime Sheriff Appeal Personal High Court Solemn Civil/Misc and Civil Court Injury Court JP Court

SOUTH STRATHCLYDE, DUMFRIES AND GALLOWAY

Airdrie SC and JP NO AIRDRIE AIRDRIE AIRDRIE YES NO AIRDRIE CUMBERNAULD COATBRIDGE

Cumbernauld JP POSSIBLE CLOSURE

Coatbridge JP POSSIBLE CLOSURE

Hamilton SC and JP NO HAMILTON HAMILTON HAMILTON NO NO HAMILTON LANARK LANARK LANARK LANARK MOTHERWELL

Motherwell JP POSSIBLE CLOSURE

Lanark SC and JP POSSIBLE CLOSURE

Ayr SC and JP YES* AYR AYR AYR NO NO AYR * Option 2 DUMFRIES DUMFRIES STRANRAER STRANRAER KIRKCUDBRIGHT KIRKCUDBRIGHT

Stranraer SC and JP NO NO NO STRANRAER NO NO STRANRAER

Dumfries SC and JP NO NO NO DUMFRIES NO NO DUMFRIES KIRKCUDBRIGHT KIRKCUDBRIGHT ANNAN

Annan JP POSSIBLE CLOSURE

Kirkcudbright SC and JP POSSIBLE CLOSURE

SC - Sheriff Court JP - Justice of the Peace Court Appendix 2

Sheriff Court Summary Sheriff

Summary Crime Sheriff Appeal Personal High Court Solemn Civil/Misc and Civil Court Injury Court JP Court

TAYSIDE CENTRAL AND FIFE

Dundee SC and JP NO DUNDEE DUNDEE DUNDEE NO NO DUNDEE FORFAR FORFAR FORFAR FORFAR CUPAR CUPAR CUPAR CUPAR ARBROATH ARBROATH

Forfar SC and JP POSSIBLE CLOSURE

Cupar SC and JP POSSIBLE CLOSURE

Falkirk SC and JP NO FALKIRK FALKIRK FALKIRK NO NO FALKIRK STIRLING STIRLING ALLOA ALLOA

Stirling SC and JP NO NO NO STIRLING NO NO STIRLING ALLOA ALLOA

Alloa SC and JP POSSIBLE CLOSURE

Dunfermline SC and JP NO DUNFERMLINE DUNFERMLINE DUNFERMLINE NO NO DUNFERMLINE KIRKCALDY KIRKCALDY PERTH PERTH

Arbroath SC and JP NO NO NO ARBROATH NO NO ARBROATH

Perth SC and JP YES* NO NO PERTH YES NO PERTH * Option 2

Kirkcaldy SC and JP NO NO NO KIRKCALDY NO NO KIRKCALDY

SC - Sheriff Court JP - Justice of the Peace Court Appendix 2

Sheriff Court Summary Sheriff

Summary Crime Sheriff Appeal Personal High Court Solemn Civil/Misc and Civil Court Injury Court JP Court

GRAMPIAN HIGHLAND AND ISLANDS

Aberdeen SC and JP YES* ABERDEEN ABERDEEN ABERDEEN NO NO ABERDEEN STONEHAVEN STONEHAVEN STONEHAVEN STONEHAVEN * Mercatgate Annexe PETERHEAD PETERHEAD BANFF BANFF

Stonehaven SC and JP POSSIBLE CLOSURE

Banff SC and JP NO NO NO BANFF NO NO BANFF

Elgin SC and JP NO NO NO ELGIN NO NO ELGIN

Fort William SC and JP NO NO NO FORT WILLIAM NO NO FORT WILLIAM

Inverness SC and JP YES* INVERNESS INVERNESS INVERNESS YES NO INVERNESS * Option 2 ELGIN ELGIN DINGWALL DINGWALL DINGWALL DINGWALL TAIN TAIN FORT WILLIAM FORT WILLIAM DORNOCH DORNOCH TAIN TAIN WICK WICK DORNOCH DORNOCH Dingwall SC and JP POSSIBLE CLOSURE

Tain SC and JP POSSIBLE CLOSURE

Dornoch SC and JP POSSIBLE CLOSURE

Peterhead SC and JP NO NO NO PETERHEAD NO NO PETERHEAD

Wick SC and JP NO NO NO WICK NO NO WICK

Cont/

SC - Sheriff Court JP - Justice of the Peace Court Appendix 2

Sheriff Court Summary Sheriff

Summary Crime Sheriff Appeal Personal High Court Solemn Civil/Misc and Civil Court Injury Court JP Court

Kirkwall SC NO KIRKWALL KIRKWALL KIRKWALL NO NO NO

Lerwick SC NO LERWICK LERWICK LERWICK NO NO NO

Lochmaddy SC NO LOCHMADDY LOCHMADDY LOCHMADDY NO NO NO

Portree SC and JP NO PORTREE PORTREE PORTREE NO NO PORTREE

Stornoway SC and JP NO STORNOWAY STORNOWAY STORNOWAY NO NO STORNOWAY

SC - Sheriff Court JP - Justice of the Peace Court