Constant breaches of 140 day rule ‘oppressive and unconstitutional’
Today Scottish Legal News reveals that the 140 day rule, once the “jewel in the crown” of the Scottish criminal justice system because of its guarantee of justice without undue delay, is being routinely ignored and that remand wings in Scotland’s prisons are now bursting with prisoners awaiting High Court trials for up to 10 months.
We have spoken to several leading defence lawyers all of whom are angry and frustrated at what can best be described as a shocking state of affairs.
Every advocate and solicitor we spoke with had examples to recite and all believe that the disregard for the 140 day rule (extended in 2005 from 110 days with the promise that its extension would not be the thin end of the wedge.) is now systemic and oppressive.
They argue that the erosion of the 140 day rule is unconstitutional and putting judges in an impossible situation.
One senior QC said: “Sheriffs are remanding prisoners in the belief that they will face trial within 140 days as laid down by statute. But it is just not happening.”
A triple whammy of lack of judges, lack of court space and lack of resources for the preparation of trials mean that victims of crime are denied timeous justice while accused persons languish in prison completely contrary to the spirit of Scots law.
And the president of the Scottish Criminal Bar Association, Thomas Ross, fears the situation is set to worsen: “Every busy High Court practitioner has noticed that the period between preliminary hearing and trial is getting longer and longer.”
Mr Ross added that at a preliminary hearing on 24 October he had a trial assigned for 6th May 2016.
“The custody time limits applied to the accused, with the result that the 140 day time limit was extended by 164 days!,” he added.
And this is not a temporary situation according to the SCBA president. Worryingly, he said that “all of the data available would suggest that things will get worse before they get better.”
Mr Ross added: “It is essential that the trend be monitored so that a proper assessment can be made of what is required to reverse it.
“Until people oppose the extensions nothing will change.”
George Donnelly, vice president of the Dundee Bar Association said that when the 140 day rule for High Court trials was introduced practitioners were promised that it would not be the thin end of the wedge.
“Yet it is routinely disregarded in an oppressive and unjust way,” he added.
He warned that the seriousness of this problem has not been acknowledged adding that it is a matter of constitutional importance and that if the rule is to be changed it should be the subject of legislation by the Scottish Parliament and not left to judges who are having to work within the crippling constraints of the system.
He said: “The fact is that the system is broken. There are not enough judges or court rooms to try these cases and not enough resources or facilities to prepare the cases.
“I have one case, which is not complicated, and the two accused have been on remand since February with a trial date set for next month. That means they have served ten months — the equivalent of a 20 month sentence with full remission.”
Mr Donnelly mentioned another case where he thought the Scottish legal system had been brought into disrepute.
He said: “I represented an English client charged with serious offences and told him that unlike England he would not be left to rot on remand here in Scotland. I have now had to go cap in hand to this client and tell him that is exactly what is happening to him.”
Presently in Glasgow, trial dates in the High Court are being fixed for next March/April/May.
Ross Yuill, president of the Glasgow Bar Association warned: “The Crown are underfunded and do not have the resources to cope with the number of cases being reported to them on a weekly basis.
“This has a direct impact on the view the public have of the justice system. Leaving aside for a moment the very important rights of an accused the alleged victims of crime are having to wait years to get closure on cases involving them. That is unfair and leads to people losing faith in our justice system.”
The Scottish Legal Action Group (SCOLAG) is also concerned at the routine breach of the rule.
SCOLAG convener and criminal defence solicitor Eamon Keane said: “As far back as 1701 there is record of Scots law correctly recognising the fundamental importance of adhering to strict time limits when an accused individual has been remanded in custody awaiting trial.”
He added: “ It is obvious however that the current 140 day limit now appears to be being routinely extended in the High Court. Many accused individuals are refused bail in these circumstances and remanded in custody meanwhile.
“Worryingly, in my personal experience, the reason for the delay ostensibly appears to be a lack of resources on behalf of the Crown resulting in their inadequate preparation for trial.
“The Scottish Legal Action Group is concerned that this issue is eroding the fundamental right to trial without undue delay and impeding effective access to justice in Scotland as a result.”
Earlier this year, SLN made a freedom of information request of the Scottish Courts and Tribunals Service (SCTS) asking how many trial dates in High Court and Sheriff Court solemn trials in the past three years were set outwith the 140 day statutory period.
SCTS declined to comply with the request, however, saying it would exceed its upper cost limit to gather the information – a decision we have since complained about to the Scottish Information Commissioner.
A Scottish government spokesman said in response to the issue: “There can be no extension of the 140-day remand limit without approval of the court, upon application from either the prosecution or defence. The court’s decision to grant or refuse an extension can be appealed.
“We have no plans to change the law around the High Court remand limit.”
A senior QC responded: “it will not do for the Scottish government to hide behind judges whom they are placing In an impossible situation.”