The Summary Justice Review Committee: REPORT TO MINISTERS
Chapter 20: INTERMEDIATE DIETS
20.1 When an accused pleads not guilty to a charge or charges on a summary complaint the court will fix a diet of trial. It will also fix an intermediate diet, commonly for a date 14-28 days before the date for the trial. Intermediate diets were introduced in April 1996 because it was found that on the day fixed for the trial a large number of trials did not go ahead. This usually happened because of one or more of the following occurred:
- the accused did not appear;
- there was a plea of guilty;
- the procurator fiscal was prepared to accept a reduced plea;
- some witnesses had not been successfully cited or had failed to answer citations;
- the defence was not properly prepared;
- the court had set down too many trials for that day in which pleas of not guilty were adhered to, with the result that not all of them could be heard that day.
20.2 The intention was that the intermediate diet would sort out most of these difficulties in advance of the trial so that witnesses did not needlessly attend on the day of the trial in cases which would not be going ahead. In theory the intermediate diet should have resolved all or most of these problems in the great majority of cases.
20.3 In terms of section 148(1) of the Criminal Procedure (Scotland) Act 1995 the purpose of an intermediate diet is to ascertain:
"So far as is reasonably practicable, whether the case is likely to proceed to trial on the date assigned as the trial diet and, in particular - the state of preparation of the prosecutor and of the accused with respect to their cases; whether the accused intends to adhere to the plea of not guilty, and the extent to which the prosecutor and the accused have complied with the duty under section 257(1) of this Act."
Current Use of Intermediate Diets
20.4 It is apparent from figures which we have seen that the success of intermediate diets varies very considerably from one court to another. Effectiveness, as measured by the number of intermediate diets that dispose of the case without the need for any further diet, and without an apprehension warrant being issued, ranges from 16% to 43%, with the average being 25%. (This does not of course measure how effective intermediate diets are at securing agreement of evidence and reducing the numbers of witnesses required.) In some courts they are regarded as a considerable success in achieving their objectives. In others they are regarded as a complete waste of court time and resources, with few cases being disposed of at that stage but many pleas of guilty on the day of the trial. These attitudes are reflected in the figures. In many courts unrealistically large numbers of intermediate diets are set for a morning or afternoon, which precludes any possibility that they will involve a useful examination of the readiness of a case. It was represented to us that it is unlikely that a court will deal as effectively as it might with intermediate diets if more than about 30 cases are fixed for the same time in the court diary, e.g. for 10 a.m., 12 noon or 2 p.m. In many courts the numbers fixed are much higher than that.
20.5 Sometimes the defence have not even received a list of the Crown witnesses prior to the intermediate diet. We were told that in at least one large urban court the Crown sometimes does not know at the intermediate diet which witnesses it intends to call. In many courts the Crown may be unaware whether or not citation of any of the witnesses required for a trial within the next 2 to 4 weeks has been effected successfully. On other occasions some citations may have been returned but others not.
20.6 We were often told that the defence have found it impossible to get hold of a procurator fiscal to discuss a case prior to an intermediate diet and even more difficult to speak to a procurator fiscal who has any knowledge of the case. Procurators fiscal told us that they often had difficulty contacting defence solicitors, attempting to return calls. These complaints more often came from those who practise in large courts than small, where the level of co-operation and communication is generally good. But the level of co-operation to be found, for example, in Aberdeen Sheriff Court and in Aberdeen District Court appears to enable intermediate diets to work much better in these relatively large courts than they do in some others of comparable size. The hopes for intermediate diets have been largely fulfilled in some courts, but hardly at all in some others.
20.7 Intermediate diets have not been as effective as they should have been in reducing the numbers of witnesses who are required to attend court to give oral evidence. We were told that, in one court area at least, the defence were requiring the Crown to call all those who had played any part in the forensic examination of Crown productions, such as DNA samples. Perhaps five scientific staff from a laboratory would have to attend court so that the Crown could lead evidence of every movement of the sample and stage in the analysis. In such cases the defence hope was that there would be a gap in the Crown case which, arguably, might cause it to fail. We would be concerned if it did not prove possible, through the effective use of intermediate diets, to eliminate this unnecessarily cumbersome approach to the proof of what are essentially simple facts: that the sample reached the laboratory, that it was analysed, and that the analysis produced particular results. If the defence wish to challenge the analytical methods or the accuracy of the conclusions this should be made known at the time of the intermediate diet and that is then an issue that must be addressed by the prosecution evidence at the trial.
Proposals for Intermediate Diets
20.8 We have considered whether, as some suggested to us, we should recommend that intermediate diets should be abolished. For those courts in which they are currently regarded as a waste of time and resources that would be a welcome recommendation. However, if intermediate diets were to be abolished the mischief which they were designed to avoid would return in courts where they work well at present. We see no reason why, if intermediate diets can be made to work in some places, they cannot be made to work throughout the court system. We were encouraged by the consultations which we had with those who are involved in intermediate diets to believe that there is a widespread wish that they should work properly or not at all. We are clear that they should continue and should be made to work better. The Committee feels strongly that intermediate diets should be regarded in all courts as an essential part of the process of managing court business.
20.9 There are a number of key elements that we wish to address in considering how to improve the effectiveness of intermediate diets:
- role of the bench;
- ensuring the Crown and defence have the information necessary to proceed;
- the agreement of evidence and witnesses required for trial; and
- ECHR issues.
Role of the Bench
20.10 In general terms we take the view that the bench has a very important role to discharge in ensuring that intermediate diets are an effective stage in the court process. We should make it clear at the outset that we are aware that in many courts intermediate diets are conducted by the bench in a thorough fashion. But we were told that this is not a consistent picture. Judicial experience and consistency of approach, between and within courts, are needed and are capable of raising standards of case management. If the steps which require to be taken are taken in advance of the intermediate diet, the bench will be able to adopt a pro-active role and to secure progress in the case and vice versa. This is an aspect of case management by the bench which would, we think, benefit from additional training, with emphasis on best practice in the management of intermediate diet courts and of individual cases at intermediate diets.
20.11 If, on the other hand, as all too often happens, there has been insufficient preparation for the intermediate diet and the procurator fiscal or the defence is unfamiliar with the case, the court will be frustrated in its attempts to progress the case and prevent the attendance at trial of unnecessary witnesses. There requires to be a change of court culture, involving the Crown and the defence as well as the courts, to make intermediate diets work effectively. The result ought to be that only cases which are genuinely ready to proceed to trial are continued to the trial diet. We take the view that the intermediate diet should not be seen as a bureaucratic stage to be ticked off before the trial gets underway, but rather as a certification that the case is ready for trial.
20.12 Turning to more specific issues involving the role of the bench in intermediate diets, we take the view that the primary responsibility for allowing a case to pass forward from the intermediate diet to trial rests with the judge. We are aware that in some cases the Crown and/or the defence will not be able at the intermediate diet to say conclusively that the case is ready for trial, in terms of whether witnesses have been cited, evidence agreed where possible and pleas discussed if necessary. We are aware that in some such cases, far too many at present, the Crown and/or the defence will assert to the bench that these matters will be in order in time for the trial. If the court is satisfied that the case will indeed be ready to proceed on the day of the trial it should of course be continued to the trial. However, if we are to reach a position where intermediate diets are a real check on the preparedness of cases for trial, if the court is not so satisfied, the intermediate diet should normally be continued to ensure that the outstanding matters have been dealt with before the trial. All applications for adjournment of trials should be closely scrutinised on their merits. We recognise that there will be occasions where the interests of justice demand that the trial be postponed. But the emphasis should be on progressing the business in the court, and to that end the court programme should be so designed to allow early adjourned trial diets to be fixed (say within four weeks) to discourage spurious applications for adjournment.
20.13 We are aware that what we propose will be considered to be difficult and may run the risk of appearing to lead to further pressure on court time in the first instance. Nevertheless we are convinced that without a culture change, which will require the co-operation of all involved, particularly the Crown, the Court Service and defence agents, but most importantly, led by the bench, there will be no change to the conduct of intermediate diets. We were told (and agree) that it is essential that all the judges in a particular court adopt the same approach to intermediate diets.
Section 148(2) of the 1995 Act
20.14 The present position in terms of section 148(2) of the Act is that if, at an intermediate diet, the court concludes that the case is unlikely to proceed to trial, the court "shall" postpone the trial diet unless, having regard to previous proceedings in the case, it considers it inappropriate to do so. We are concerned that the way that this provision is expressed is not consistent with a more proactive court accepting responsibility for judicial case management (which we regard as essential) and may contribute to the numbers of unnecessary adjournments. We would prefer that the emphasis be changed so that a court might more easily conclude that a continuation of the intermediate diet without adjourning the trial is the appropriate outcome if a case is not ready to proceed to trial.
Section 148(4) of the 1995 Act
20.15 In terms of section 148(4) of the Act: "At an intermediate diet, the court may ask the prosecutor and the accused any question for the purposes mentioned in sub-section (1) above." In our view section 148(4) requires the court to ask questions to ascertain the matters referred to in that section if the information is not provided by the Crown and the defence. It is not clear how far the court can legitimately go in terms of sub-section (4) in asking questions as to what will be in issue at the trial and which particular defences are to be run at the trial. For reasons which we will explain, we consider that this should be clarified with a view to enabling the court to identify the issues which are to be in contention at the trial, encouraging the agreement of the evidence of witnesses in relation to matters which are not contentious and reducing the numbers of witnesses who have to attend the trial.
20.16 We are aware that some courts have adopted a consistently robust approach by asking such questions. We are unaware of any appeal having been marked, challenging that approach. That is a constructive role for the court. It is designed to ensure that the trial takes no longer than is required, with no more witnesses attending court than are necessary. We are also aware of courts whose approach has been much more cautious. We recommend that section 148(4) be amended to make it clear that the bench may ask any questions relevant to the identification of the issues which will be in contention at the trial with a view to minimising the witnesses required to attend the trial.
Sentence discount at intermediate diet50
20.17 If a sentence discount is available and known to be available, and if it is applied consistently at intermediate diets up and down the land and across each court, there will be an incentive to resolve those cases which should be resolved. We envisage that it would be rare that any discount of sentence would be available at the trial diet. We do not say that there will be no circumstances in which some small discount might be appropriate on the day of the trial, because we can envisage some, but not many. Sparing a witness the need to go into the witness box to recall a particularly harrowing experience could be reflected to some extent in the sentence, if there was a good reason for a last-minute change of mind. But in the generality of cases we see no reason for the courts to allow any discount of sentence for a plea on the day of the trial or during the trial. Accordingly we recommend that at the intermediate diet the court should confirm that the accused is aware that a sentence discount is likely to be available at that stage but is unlikely to be available at the trial diet.
Ensuring Equality of Information
20.18 We have already dealt (in chapter 14) with the need for the Crown to ensure that a summary of the evidence is provided to the defence with the service of the complaint and we will consider the desirability of the police obtaining signed witness statements (in chapter 21). We take the view that if the defence are to be expected to come to a realistic position on their case at the intermediate diet they need to be fully aware of the evidence that the witnesses cited by the Crown will give if called. Consequently we propose that full signed civilian witness statements taken by the police and police witness statements should be made available to the defence sufficiently far in advance of the intermediate diet for them to receive proper consideration. Similar considerations apply to other types of evidence, such as productions and access by the defence to copies of audio, video and CCTV tapes. We would suggest that the defence should have copies of the statements and the opportunity to have access to productions, tapes and other recordings as soon as possible and certainly no later than 7 days, where an accused is in custody, and 14 days, where an accused is at liberty, before the intermediate diet.
20.19 The intermediate diet should be seen as the last opportunity before the trial to adjust and tender a plea if one is to be tendered. In most cases the intermediate diet should be the last stage at which the Crown takes a decision not to proceed with the trial. It follows that the Crown must ensure that it is fully informed before the intermediate diet. A decision by the Crown, on the day of the trial, for whatever reason, not to proceed further with the case comes too late to avoid the inconvenience and expense to most, if not all, of the witnesses and others attending court that day and, further, may cause valuable courtroom, judicial and practitioner resources to be wasted.
20.20 So far as the defence is concerned, under the regime which we propose, they should have available to them before the intermediate diet all the information which they require to take full instructions from the accused as to what plea is to be tendered. We can see no reason why, at the intermediate diet, a decision should not be taken as to any plea which should be tendered. There seems to be no reason why that decision should be postponed until the day of the trial. It should not be postponed in the hope that an essential Crown witness will not turn up for the trial. There should be an incentive not to postpone such a decision. Both sides should by then be fully and properly prepared.
20.21 Bearing in mind the need to ensure trials proceed on a basis of equal information, we are of the view that, where the defence intend to rely on a special defence of alibi, self-defence, incrimination, insanity or any statutory defence, then this, together with details of any potential defence witnesses, should be intimated no later than the intermediate diet or any continuation thereof. We recommend that the law should be changed in this respect. There would require to be a statutory exception to this requirement which the court could grant on cause shown, particularly to address situations where the Crown had failed to fulfil their obligations to the defence. We have considered whether the defence should be required by statutory provision at the intermediate diet to disclose to the Crown and the court all intended lines of defence. That is a matter which could be a subject for consultation. However, our view is that such a requirement could raise difficulties, particularly in terms of the ECHR, which could not easily be resolved by legislation. Further, in the course of a trial an unforeseen but ultimately successful line of defence may emerge, of which an accused should not be deprived.
Discussion Between Parties in Advance of the Intermediate Diet
20.22 We see real advantages for the Crown and the defence discussing in advance of the intermediate diet the matters referred to in section 148(1) and have considered whether to recommend a statutory requirement for there to be such a meeting prior to the intermediate diet. Although we see great value in such a meeting we think that a statutory requirement for it would be difficult to enforce given the lack of any credible or proportionate sanction. We do not think that such a meeting need necessarily be face to face. The important thing is that the issues are considered by both sides in a constructive way and that each discloses their position to the other. That could be done by an exchange of e-mails or a telephone conversation, as long as the issues are properly addressed. Such an exchange should take place no later than the day before the intermediate diet. We are of the view that this is an issue where best practice, driven by a proactive bench, is the way most likely to achieve progress and that that would be preferable to a statutory requirement on the Crown and the defence to discuss the case.
Agreement of Evidence and Witnesses Needed for the Trial
20.23 Section 257 imposes on the Crown and the defence a duty to seek agreement of evidence. It provides, in part, as follows:
"(1) Subject to subsection (2) below, the prosecutor and the accused (or each of the accused if more than one) shall each identify any facts which are facts -
(a) which he would, apart from this section, be seeking to prove;
(b) which he considers unlikely to be disputed by the other party (or by any of the other parties); and
(c) in proof of which he does not wish to lead oral evidence, and shall take all reasonable steps to secure the agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties) shall take all reasonable steps to reach such agreement."
Section 256 (minutes of agreement or admission), section 257 (duty to agree uncontroversial evidence), section 258 (notice of uncontroversial evidence), sections 280 and 281 (routine evidence) and various other provisions of the Act, many of which implemented various recent recommendations by the Scottish Law Commission, 51 set out procedures for seeking to agree non-contentious evidence.
20.24 Section 257 is not complied with in large numbers of cases in which it might have a part to play. There are many summary criminal trials at present in which police and civilian witnesses are cited to attend court to give evidence when the evidence which they are likely to give is of a relatively formal or straightforward nature over which there is no material dispute. Section 257, if used as intended, could make it unnecessary for them to attend court. Commonly one or two police officers attend court to give evidence about each aspect of the case. If evidence is not disputed the first officer may not be cross-examined; the second is then not called. Very large numbers of witnesses attend court but are not called, frequently because the evidence which they would have given is not contentious. Examples of such evidence include:
- the cautioning and charging of accused by the police and the response to such charges;
- the transmission of documentary and other productions, for example, from the scene of a crime to an analyst;
- the testing of the accuracy of police car speedometers in some speeding cases; and
- the ownership of property which has been stolen.
20.25 The extent to which evidence will not be in contention at the trial is to a very large extent capable of being resolved at the intermediate diet. It is in the interests of the victim and the potential witnesses that it should be so resolved and it is in the wider public interest that trials should not take longer than necessary. Only witnesses who in the interests of justice are essential to the case should be required to attend personally to give evidence at the trial. Accordingly, we can see no reason in principle why the court should not actively intervene to try to prevent witnesses, whose evidence is not in material dispute, from being required to attend court. That means that the court must be able, at the intermediate diet, to ascertain which issues will, and which will not, be contentious at the trial.
20.26 The Committee considered how best to strike a balance between the rights of witnesses not to be cited unnecessarily and the rights of the defence to put the prosecution case to the test and confront prosecution witnesses. We considered whether the court should be provided with signed statements of the evidence of witnesses, which are claimed by the Crown or the defence to be non-contentious, at the intermediate diet and should be empowered to direct that the evidence of these witnesses as recorded in these statements should be the evidence of that witness in the case, with no need or, indeed, right for parties to cite the witnesses at the trial. Solicitors with whom we discussed that proposal pointed out that very often police statements of particular witnesses will have been taken from the point of view of what appears to the police at that time to require proof. Some matters to which the witness could speak may not be covered and the statements may, to that extent, be incomplete. While our overriding concern remains to minimise the number of witnesses cited unnecessarily, we can see the force of that argument, although (given the nature of routine and uncontroversial evidence) we judge that omissions will rarely be material to the case.
20.27 We therefore recommend that where evidence of a witness contained in a signed witness statement and notified to the other party in advance of the intermediate diet as uncontroversial appears to the court to be non-contentious, the court should, on the application of either the Crown or the defence, have power to direct that that statement shall be admissible as evidence in the case. The new power could not be exercised without the court hearing both the Crown and the defence, and being able to form a view that it is not necessary in the interests of justice for that witness to attend court to give oral evidence. Any such direction would require to be recorded or minuted. This proposal will require amendment to the time limits set out in sections 258, 280, 281, etc. for notification of uncontroversial and routine evidence (for details, see paragraph 20.32 below).
20.28 In practice it will normally be the Crown which is seeking agreement of uncontroversial evidence. If the defence is unable or unwilling to provide a sufficient explanation of why a particular witness requires to attend court to give oral evidence, the court should have power to direct that the signed statement of the witness concerned will be admissible as evidence in the case and that it is not necessary for the Crown to call that witness (see chapter 21 for discussion of our recommendation that such statements should be rendered admissible). Where the court has given such a direction but the defence wish the witness to give oral evidence, the defence should continue to have the right to call that person as a witness on its own behalf. The same should apply to the Crown in relation to defence witnesses whose evidence is contained in a signed witness statement.
20.29 If a witness is not cited by the opposite party to give evidence, the statement will then be admissible evidence of the facts to which the witness attests. If the witness is cited, the judge will have two sources of admissible evidence in relation to the relevant facts and it will be for him or her to assess their relative weight. This change should not preclude the present practice of using an inconsistent prior statement by a witness to test the credibility and reliability of that witness, i.e. if the witness contradicts or departs from what is in the statement.
20.30 We do not believe that our proposals for intermediate diets would contravene Article 6 nor any other Article of the European Convention on Human Rights. Article 6(3)(d) provides that the accused has the right "to examine or have examined witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her". The court may properly assess the relevance of proposed evidence. The use of signed statements obtained at earlier stages in the process is not inconsistent with this provision, provided that the rights of the defence are respected. (See Reed & Murdoch: Human Rights Law in Scotland at p. 363) "As a general rule, the accused must be given an adequate and proper opportunity to challenge and question a witness against him or her, either when he makes his statement or at a later stage. Article 6 does not grant the accused an unlimited right to secure the appearance of witnesses in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a witness." ( Mellors v United Kingdom 2003 SCCR 407 at page 420D).
20.31 The Committee takes the view that the court should have an informed opportunity at the intermediate diet to consider the relevance of the proposed evidence and should be able to make directions as to the extent to which oral evidence is necessary at the trial, but should not be able to make a direction in such a way as to deprive an accused of the opportunity to challenge any prosecution witness at trial nor to lead any evidence which he or she regards as contentious.
20.32 We believe that our proposals in relation to intermediate diets strike a fair balance. Notice will be given to the accused of the Crown case and of the issues which the Crown consider to be relevant (in the form of a summary of the evidence along with the complaint, together with copies of full signed witness statements, in advance of the intermediate diet). Where the Crown seeks to argue that certain evidence is routine or uncontroversial, the defence will have been so notified in advance of the intermediate diet under revised time limits in amended sections 258, 280, 281, etc of the 1995 Act.
20.33 Our proposals are also designed to enable the court to ascertain which issues are to be disputed at the trial and on that basis to take a view as to whether it is necessary to hear all the possible witnesses at the trial. If the court directs that the statement of a witness should be treated as evidence of that witness at the trial, the accused would not be deprived of the opportunity of having that witness examined in person. The witness can nevertheless be called by the defence.
20.34 In summary we envisage best practice for intermediate diets would include the following:
Prior to intermediate diet:
i. the Crown should provide the accused's solicitor or, if no solicitor has been appointed, the accused, with copies of police and signed civilian witness statements and copies of relevant documentary productions. This should be done as soon as reasonably practicable, but in any event at least 7 days before the intermediate diet if the accused is in custody, and at least 14 days before the intermediate diet if the accused is at liberty. In addition facilities should be made available for any label productions to be inspected and any CCTV, video or audio taped evidence to be viewed or heard before the intermediate diet;
ii. the Crown should identify and intimate which statements and other evidence, such as tapes, are considered to be non-contentious and which witnesses they intend to cite. Any statement considered to be non-contentious should be signed by the witness;
iii. both Crown and defence should make full use of the provisions of section 257 of the 1995 Act and the various procedures which lead to the agreement of non-contentious evidence;
iv. Crown witnesses should be cited sufficiently far in advance of the intermediate diet for executions of service to be available at the diet in order that the court will know that the trial is in a position to proceed;
v. the solicitor for the accused should be properly briefed and in receipt of full instructions prior to the intermediate diet and in time to permit the exchange with the procurator fiscal;
vi. the Crown and the defence should discuss, no later than the day before the intermediate diet, face to face, by an exchange of e-mails or by telephone:
- the matters referred to in section 148(1);
- any point about the evidence which requires clarification;
- whether a reduced plea would be accepted and;
- the agreement of non-contentious evidence, having regard to the relevant sections of the Act.
At the intermediate diet
i. the court should ascertain whether the case is likely to proceed to trial on the date assigned for the trial. The Crown and the defence should inform the court whether any witnesses have not been cited, the number of witnesses to be called, the probable length of the trial, whether it should be part-heard and whether the trial should have priority over other trials, e.g. because there are vulnerable witnesses. The intermediate diet should be seen as providing certification that the case is ready to proceed to trial on the date assigned;
ii. the court should seek confirmation that the accused has been made aware that a sentence discount will be likely to be available for a plea of guilty at that stage but is unlikely to be available at the trial;
iii. if there is to be a plea of guilty, either as libelled or to a reduced plea, that plea should be tendered at the intermediate diet;
iv. the court should warn the accused that if he or she fails to appear for trial at the appointed time the trial may proceed in absence;
v. the court should ascertain which issues will be in contention at the trial with a view to minimising the number of witnesses required to attend to give evidence for both the Crown and the defence;
vi. if there is scope for agreement of non-contentious evidence, it should be agreed at the intermediate diet;
vii. if the evidence of a witness has been identified by the Crown as routine or non-contentious, a signed witness statement should have been provided before the intermediate diet to the accused or his or her solicitor and certified under section 258 as uncontroversial or section 280 or 281 as "routine". If agreement has not been reached as to whether the witness requires to attend court to give evidence, the court should hear parties as to whether it is in the interests of justice that the evidence of that witness as contained in the statement should be given orally. In the event that the court takes the view that it is not necessary in the interests of justice that the evidence be given orally, the court should make a direction that the signed statement of the witness be produced at the trial as admissible evidence in the case. This should be minuted by the clerk of court. Only witnesses who are essential to the case in the interests of justice should be required to attend personally to give evidence. Witnesses who are to give only formal evidence should not be required to attend. If the court gives a direction that the statement of a Crown witness should be treated as admissible evidence in the case and the defence wish that witness to give oral evidence, the defence should indicate whether it intends to call that witness as a defence witness. Similar procedures should apply in relation to defence witnesses whom the Crown wish to call;
viii. if the court is satisfied that the case is or will be ready to proceed to trial, it should be continued to the trial diet. The court should be informed by both the Crown and the defence if any special equipment is required, e.g. to play CCTV tapes. The court should be informed if any special facilities are required for vulnerable witnesses;
ix. if the case is not ready to proceed to trial, the court should fix a further intermediate diet or postpone the trial diet;
x. the court diary should allow adjourned trials to be accommodated at an early date, normally no more than 4 weeks later.
We recommend that intermediate diets should continue, that they should be made more effective and that judges should receive additional training in the management of them.
We recommend that section 148(2) of the 1995 Act be amended so that there is not a presumption that a trial will be adjourned.
We recommend that section 148(4) of the 1995 Act be amended so that the bench may ask any questions relevant to the identification of the issues which will be in contention at the trial with a view to minimising the number of witnesses required to attend the trial.
We recommend that either party should be given the right to challenge the refusal of the other party to accept the evidence of a witness as non-contentious and seek a court direction on the matter.
We recommend that in such circumstances, if the evidence of a witness appears to the court to be non-contentious and if the signed statement of that witness provided to the court appears to cover all material issues to which that witness is likely to be able to speak, the court may, having heard both parties, direct that that statement shall be admissible evidence in the case without the witness having to speak to it.
We recommend that where such a direction has been made the party who did not accept that the evidence was non-contentious, may cite the witness to the trial.
We recommend that in such circumstances, both the statement of the witness and his or her oral evidence should be admissible evidence at trial.
We recommend that at the intermediate diet the court should seek confirmation that the accused has been made aware that a sentence discount is likely to be available for a plea of guilty at that stage but is unlikely to be available at the trial.
We recommend that statutory and common law special defences should be intimated no later than the intermediate diet or any adjournment of that diet.
We recommend that not more than about 30 intermediate diets should be set per part court day.