SR has discovered that the cost of trials at the High Court, where the most serious cases are heard, is rocketing to around £42 million a year as more and more accused, facing such charges as murder, rape and robbery, plead not guilty.
As recently as 2011, there were 225 High Court trials in Scotland. By 2015 there were 334. This year the number is expected to leap to around 440 – having doubled in only five years. The average cost of each trial to the public purse, in legal aid fees and court costs, is a staggering £95,000.
The trend is unprecedented, shows no sign of being reversed, and is placing severe strains on the ability of the judicial system to cope.
These facts have not been widely reported. We are able to reveal them because of an exchange of correspondence between SR and the Judicial Office for Scotland following an article in this magazine in September.
In the article, we criticised what we regarded as inappropriate remarks by a temporary judge, sitting in the High Court in Glasgow. (The judge said he did not send a convicted man to prison out of anger – 'In truth it enlivened what was otherwise a dull day' – and added, 'as they say, LOL').
We went on to make several wider points about temporary judges, pointing out that when Nicola Sturgeon was the SNP’s justice spokesperson in 2004 she had opposed their increasing use ('Concerns have been expressed about the role of temporary judges for some time') and that one of the permanent judges, Lord Morison, had resigned in protest at their deployment, claiming that they undermined the independence of the judiciary.
Following the publication of the SR article, Baktosch Gillan of the Judicial Office for Scotland wrote to complain that we had given a potentially misleading impression.
Here is Mr Gillan’s reply in full:
In your article, ‘The judges judged’ dated 1 September 2016, you describe temporary judges as having ‘no security of tenure’. However, the majority of temporary judges are sheriffs authorised to sit as a temporary judge. They enjoy security of tenure by virtue of their substantive judicial office. If the need for assistance cannot be met by serving sheriffs, sheriffs sitting in retirement will be used. In addition, retired judges may be used to sit in retirement.
You also state that ‘four are practising members of the Scottish Bar (the equivalent of poachers turned gamekeepers)’. Since 2011 when Lord Gill was appointed as Lord President, the use of these temporary judges has been reserved for use as a last resort. They have been used very rarely over the last four years.
The use of temporary judges is required to ensure that the courts can function throughout the year. Temporary judges are needed as cover when the 34 permanent judges are absent on leave, ill, or on other judicial duties. It also allows a swift flexible response when the numbers of cases increase or the pattern of business changes. Over the last four years the number of cases which proceed to trial has increased significantly. The use of temporary judges has ensured that criminal trials are not delayed.
Although we are grateful to Mr Gillan for clarifying the situation, we are still not entirely satisfied.
First: it seems to us wrong that practising advocates at the Scottish Bar are ever used as judges in the High Court.
Second: if, as Mr Gillan implies, the 34 permanent judges are unable to keep pace with the volume of business, the obvious answer is to appoint more permanent judges rather than to rely on a patchwork network of sheriffs, retired judges and retired sheriffs – and even occasionally practising advocates – to preside over High Court trials.
Between the Judicial Office for Scotland and ourselves, the matter rests. We respectfully differ.
But it was the conclusion of Mr Gillan’s letter that caught our eye: the reference to the ‘significant’ increase in the number of cases which proceed to trial. It was only when we trawled through the official stats that the extent of this increase emerged. We found
that, although the number of cases referred to the High Court has been stable for several years, the number going all the way to trial has risen dramatically.
The conviction rate remains high. Why, then, are so many more guilty people exercising their right to their day in court? It surprises us that there is no official explanation for this phenomenon.
Ryan Stevenson’s claim (11 November) that UOGE (unconventional oil and gas extraction) would be an 'economic boom' for Scotland is refuted by KPMG’s impact study conducted for the Scottish Government. Perhaps he hasn’t read it.
The KPMG report states: 'According to our estimates, the industry could represent an average of 0.1% of Scottish GDP (2015 figure) in our Central scenario and 0.3% in our High scenario which is not a large contribution to the Scottish economy.' The total additional impact of UOGE on the Scottish economy would be a paltry £30m a year over 42 years.
The total of jobs would be 1400 FTE at the peak and even that would depend on how well pads are developed – if it is simply one or two teams going from place to place, the total will be even lower. And many of those jobs will be for HGV drivers, transporting waste water and liquid gas around on Scotland’s roads. Why on earth would Scottish communities give any social licence to an industry that carries such risks in return for such paltry amounts?
The SNP’s 2016 election manifesto declares: 'We will not allow fracking or underground coal gasification in Scotland unless it can be proved beyond any doubt that it will not harm our environment, communities or public health.'
This position accords with the precautionary principle and is the reason for the Scottish Government’s (SG) ban on underground coal gasification (UCG). The same precautionary principle led to New York State’s ban on fracking in December 2014. The compendium of scientific, medical, and media findings demonstrating risks and harms of fracking, compiled by Physicians for Social Responsibility and Concerned Health Professionals of New York, underpins this decision.
INEOS owner Jim Ratcliffe’s assertion that 'there is no science behind the vocal minority’s opposition,' is blatantly false. The expanding body of scientific evidence (200 peer-reviewed studies on fracking published so far this year), presented to the Scottish Government by the Broad Alliance, provides more than sufficient scientific evidence for an immediate ban. It is the view of the Pennsylvania Medical Association, who in October called for a ban on fracking.
Ratcliffe’s contention that over a million shale wells have been safely drilled in the US, and that the US is 'the most highly regulated market' also needs exposing in view of the Halliburton Loophole.
At the behest of Vice President Dick Cheney, former chief executive of Halliburton, the US Energy Policy Act of 2005 exempted the hydraulic fracturing drilling process from the Clean Water Act, Clean Air Act and the Safe Drinking Water Act and stripped the Environmental Protection Agency of its authority to regulate UOGE. Without these exemptions, it is unlikely that the industry would have been able to proceed. The idea that INEOS, the major licence holder in Scotland and across the UK, wants us to take the US as a model for regulation is deeply concerning.
The impact studies show that permitting UOGE will scupper Scotland’s emissions targets. The climate change committee’s impact study says UOGE can only be permitted if it displaces imports – but this is now unachievable because INEOS has a contract to import gas from the US for at least the next 15 years. UOGE produced in Scotland would be additional. A further requirement is that emissions must be offset by reductions elsewhere. The largest forecast is that UOGE would produce 1.6 million tons of CO2e/year by 2035. So where can such savings be found?
As Dr Iain Black put it: '1.6 million tons of CO2e/year is larger than the savings the whole Scottish agricultural sector has been asked to make. So, in effect, we are saying: "Thank you, farmers of Scotland, all your hard work reducing emissions is going to allow us to turn swathes of the central belt into industrial zones and to threaten the water you use." Good luck selling that'.
The climate impact report also demands well-by-well monitoring of emissions and a framework for rapid shutdown. But a recent study by Professor Andrew Watterson of Stirling University found that the UK’s regulatory agencies are not equipped to deliver intensive regulation.
It is implausible that an under-resourced SEPA (Scottish Environmental Protection Agency) could properly regulate something of the nature and scale of the UOGE industry, in the most densely populated region of Scotland where extensive underground mine-workings and geological faulting constitute unique and novel extractive challenges. Moreover, Scottish communities would not agree to additional funding to regulate an industry which represents minimal economic benefit for them or their country. SEPA is stretched to the limit already – how much would their budget need to increase to achieve the regulation needed, and why should we pay it?
KPMG’s study does not even attempt to quantify negative impacts on existing sustainable and currently healthy industries including tourism, construction, farming, food and drink – or our whisky industry, which is reliant on pure, clean Scottish water. Studies in America have shown house prices fall within two miles of a well by 25%, with many home owners unable to sell. Estate agents in the central belt of Scotland report they are already being asked about possible well locations, and have estimated a drop of 10% in house prices.
The industry hails Aberdeen as an example of the prosperity oil and gas could bring communities embracing UOGE but Grangemouth, at the dirty end of the business, is the more realistic comparison. In spite of Grangemouth hosting multiple petrochemical giants, five of the datazones in Grangemouth fall within the bottom 15% of the Scottish Index of Multiple Deprivation and residents’ circumstances are not improving.
On these bases we do not foresee an 'economic boom' from UOGE, but rather a wholesale harm to the economic health and environment of communities across Scotland’s most productive region, and a complete loss of faith in government regulation and action on climate change. That’s a high price to pay for an industry that we now know for sure will deliver no real economic benefit to the Scottish economy.
Donald Campbell writes here on behalf of the Broad Alliance of Concerned Communities Against Unconventional Gas, a lobby group
Photograph of Grangemouth by Islay McLeod