Crime and Criminal Justice Research Findings No. 42Intermediate Diets, First Diets and Agreement
of Evidence in Criminal Cases: an Evaluation
Frazer McCallum and Professor Peter Duff: Aberdeen University
This research was commissioned by The Scottish Office to investigate the impact of changes, introduced by the Criminal Justice (Scotland) Act 1995, relating to intermediate diets, first diets and the agreement of evidence. The research covered district, sheriff summary and sheriff and jury cases and the impact of the legislation on the progress of cases and on prosecution witnesses was examined in detail.
- A majority of the personnel engaged in the court process, who were interviewed as part of the research, generally welcomed the increased use of intermediate and first diets, as well as the greater emphasis placed on the agreement of evidence, since the changes made by the Criminal Justice (Scotland) Act 1995.
- The increased use of intermediate and first diets led to a significant decrease in the number of trial diets held, although the increased use of intermediate and first diets also meant that there was generally an increase in the total number of court diets held.
- The most common outcome of both intermediate and first diets was for the case to be continued to trial.
- A significant proportion of both intermediate and first diets resulted in the conclusion of the case.
- Interviewees generally indicated that witnesses were one of the main beneficiaries of the changes. Analysis of case records confirmed that the greater use of intermediate and first diets has resulted in a significant increase in the proportion of prosecution witnesses countermanded before trial (e.g. the percentage countermand figure, i.e. countermands as a proportion of citations, for Glasgow Sheriff Summary Court, more than doubled from 24 per cent before the changes to intermediate diets, to 50 per cent after the changes).
- Information gathered from case records generally gave no indication of a significant increase in the number of prosecution witnesses countermanded due to agreement of evidence.
The Criminal Justice (Scotland) Act 1995 (the provisions of which are now consolidated in the Criminal Procedure (Scotland) Act 1995) included provisions: (a) designed to enhance the level of use and effectiveness of intermediate diets in summary cases (an intermediate diet must be scheduled in most cases); (b) to introduce mandatory first diets in sheriff and jury cases; and (c) to encourage the use of provisions aimed at avoiding the need to lead oral evidence at trial through the agreement of evidence which would otherwise require to be proved by the testimony of witnesses in court. Intermediate diets and first diets (within summary and solemn procedures respectively) are held in advance of trial diets in order to confirm that the trial is likely to proceed on the scheduled date, as well as to consider whether there is any scope for the agreement of evidence. The changes introduced by the Criminal Justice (Scotland) Act 1995 were intended, firstly, to reduce the number of trials which are cancelled or adjourned on or shortly before the scheduled trial diet (for example, as a result of a late 'guilty' plea or the non-availability of an essential witness) and, secondly, to reduce the number of witnesses who attend court to give evidence which could have been agreed by the parties.
Courts Covered by the Research
Samples of court and/or prosecution files were examined at a total of eleven courts, consisting of: five district courts (Edinburgh, Glasgow Stipendiary Magistrate, Glasgow Lay Justice, Kirkcaldy and Motherwell); four summary sheriff courts (Aberdeen, Alloa, Glasgow and Peterhead); and two sheriff and jury courts (Aberdeen and Glasgow). The samples covered cases dealt with both before and after the relevant changes introduced by the Criminal Justice (Scotland) Act 1995. In addition, interviews were conducted with judges, court clerks, prosecutors and defence lawyers working at the eleven courts. Finally, the observation of court proceedings, at times when intermediate or first diets were being dealt with, was undertaken at the same courts.
Views of Personnel Involved in the Court Process
The increased use of intermediate and first diets, as well as the greater emphasis placed on the agreement of evidence since the changes made by the Criminal Justice (Scotland) Act 1995, were broadly welcomed by a majority of those interviewed. However, a large minority of interviewees were against some or all of the changes.
Witnesses were generally perceived as one of the main beneficiaries of the changes. The large number of witnesses required to attend court for trials that did not proceed, and/or cited more than once, was said to be one of the most serious problems with the system prior to the changes. The impression gained from interviews was that more frequent and better use of intermediate and first diets, together with more agreement of evidence, had significantly reduced the number of witnesses affected by such problems.
Many of those interviewed were of the opinion that the changes had increased their workload (although it was sometimes stated that this had resulted in cases being better prepared). Other interviewees thought that their overall level of work had not changed much but that there had been a shift in the time when that work had to be done (i.e. more work at or before intermediate or first diets and less at or before trial diets).
A common factor in many of the interviews was the belief that the efficacy of the new provisions for intermediate diets, first diets and agreement of evidence is dependent upon developing and maintaining a court culture where accused, defence lawyers, prosecutors and judges all approach cases with a view that potential problems should be addressed, possible pleas discussed and the agreement of evidence considered at an early stage in the case.
Data From Court and Prosecution Files
1. Use of intermediate, first and trial diets
The increased use of intermediate and first diets led to a significant decrease in the number of trial diets held, although the increased use of intermediate and first diets also meant that there was generally an increase in the total number of court diets held.
2. Outcomes of intermediate, first and trial diets
The most common outcome of an intermediate diet was for the case to be continued to trial. This was, since the introduction of the changes made by the Criminal Justice (Scotland) Act 1995, the outcome in 38 per cent and 40 per cent of all intermediate diets held respectively in the four summary sheriff courts and the five district courts. However, a significant proportion of intermediate diets also resulted in the conclusion of the case. During the same period, 25 per cent and 20 per cent of all intermediate diets held respectively in the summary sheriff courts and the district courts, resulted in the conclusion of the case (either as a result of a 'guilty' plea or because the prosecution deserted the case or accepted a 'not guilty' plea).
A similar picture was found in relation to the outcomes of first diets at the two sheriff and jury courts, although rather higher proportions of first diets were either concluded by a plea of 'guilty' (to some or all charges) or were continued to a further first diet.
In relation to trial diets, the research suggested that an increase in the use of intermediate and first diets had resulted in a greater likelihood of those cases which did reach a trial diet actually proceeding to trial (although this was still the outcome in only a minority of trial diets). This does not mean that there was an overall increase in the number of trials proceeding, but rather that there was a decrease in the number of trial diets with other outcomes.
3. Witness citations and countermands
Analysis of case files indicated that the greater use of intermediate and first diets led to significant increases in the proportion of prosecution witnesses countermanded (available information did not allow the study of defence witnesses). For example, the percentage countermand figure (i.e. countermands as a proportion of citations) for Glasgow Summary Sheriff Court more than doubled from 24 per cent, before the changes to intermediate diets, to 50 per cent after the changes (or, in terms of numbers of countermands per 100 cases, increased from 178 to 304).
Further analysis indicated that increases in the proportion of witnesses countermanded were not generally at the expense of an increase in the proportion of witnesses who were cited more than once.
4. Agreement of evidence
Information gathered from court and prosecution files generally (with the possible exception of Glasgow Sheriff and Jury Court) gave no indication of a significant increase in the number of prosecution witnesses countermanded due to agreement of evidence. The number of countermands that resulted from agreement of evidence remained very low when compared with the total number of countermands. These findings were contrary to the expectations of many of those interviewed as part of this research.
Possible explanations for the limited impact of agreement of evidence on witness countermands include the possibility that the drive to settle cases (e.g. by an agreed plea) at the earliest opportunity might mean that some witnesses, who would otherwise have been countermanded as a result of agreement of evidence, were instead countermanded because the case was concluded. Another possible reason for the apparent lack of success is that it is arguably in the accused's interest to withhold agreement right up to the morning of the trial, on the off-chance that the relevant witness(es) become unavailable (for whatever reason). Adversarial ideology emphasises that the accused does not have to help the prosecution prove the case against him and is entitled to hear all the evidence in open court.
The case samples suggested that an increase in the use of intermediate and first diets sometimes led to more warrants (i.e. non-appearance warrants granted due to the failure of an accused to appear at a court diet) overall, but that it also led to fewer warrants being granted at trial diets. In addition, they suggested that the reduction in the number of warrants granted at trial diets was achieved by a combination of: (a) avoiding the need to hold as many trial diets; and (b) a reduction in the likelihood of a warrant being granted at those trial diets which were held.
6. Adjournment of trial diets
The research did not support the concern expressed by some interviewees that the increase in the use of intermediate diets and first diets might lead to more adjournments of trial.
1. Intermediate and first diets
The research indicated that the increased use of intermediate and first diets had a positive impact on various aspects of the criminal justice system (particularly in relation to the early countermanding of witnesses). It also indicated that this positive impact was felt very quickly after the introduction of mandatory intermediate and first diets. It is, however, highly probable that the effectiveness of these provisions is largely dependent upon the various people involved taking positive steps to make them work. Each case must continue to be approached with the view that potential problems should be addressed and possible pleas discussed at the earliest appropriate opportunity. In other words, a culture of co-operation must be encouraged and maintained. More practically, it is also vital to ensure that there are workable arrangements that allow the necessary communication between the people involved to take place (e.g. discussions between the prosecution and defence in advance of a scheduled intermediate diet or first diet).
2. Agreement of evidence
It is probable that both the influence of adversarial ideology, and the fact that intermediate and first diets encourage the early resolution of cases, contributed towards a lack of success in relation to the agreement of evidence. The introduction of measures which clearly reward the accused where evidence is agreed and/or provide a sanction where evidence is not agreed might be expected to encourage more agreement. Such measures are, however, likely to be controversial (particularly in view of the existing adversarial ideology). Designing workable incentives/sanctions might also be difficult in view of the fact that any scope for agreement of evidence varies greatly from case to case and might be disputed by the parties involved.
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