shaping Scotland’s court services a dialogue on a court structure for the future May 2012 1 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. 3 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.