- The Deputy Presiding Officer (Murray Tosh):
The next item of business is a debate on motion S2M-473, in the name of Cathy Jamieson, on the general principles of the Criminal Procedure (Amendment) (Scotland) Bill.
- The Minister for Justice (Cathy Jamieson):
I am pleased to open this debate on the general principles of the Criminal Procedure (Amendment) (Scotland) Bill on behalf of the Executive. Our partnership agreement gives our clear commitment to reform the operation of the High Court. The outcomes that the bill will deliver are of crucial importance to every person who has an interest in our supreme criminal court functioning well—that is, to every man, woman and child in Scotland.
I begin by placing the bill in the wider context of what the Executive is trying to achieve. To deliver a stronger, safer Scotland we must have a public justice service that is designed around the needs of the law-abiding many and not for the law-breaking few. Modernising justice in Scotland means putting victims and witnesses at the heart of the criminal justice system. Radical, reforming measures are already under way: the Vulnerable Witnesses (Scotland) Bill will ensure that the courts consider the needs of the most vulnerable witnesses; the report by Sheriff Principal McInnes on his review of summary justice will be published next month; and the Crown Office and Procurator Fiscal Service has received significant extra resources to enable it to prosecute crime more effectively. A strategic review of legal aid is under way and is due to report in June with recommendations, and the Sentencing Commission, under the chairmanship of Lord MacLean, a High Court judge, is considering sentencing and bail issues.
Our plans to reform the High Court are a key part of our package of reforms that will modernise the criminal justice system from top to bottom. Let me remind members why that is so important. The High Court of Justiciary should be a model of efficiency to all those who come into contact with it; people should feel that they are being treated fairly and sensitively. However, in reality, the High Court has fallen well below that ideal in recent years. For example, the number of motions to adjourn High Court trials increased sixfold between 1995 and 2001, mainly because parties were not fully prepared. It is not uncommon for a High Court case to be adjourned four times and for it to be called in a different city each time. I have heard horrific stories from victims and witnesses who have been caught up in the delays and who have prepared themselves for court time and again, only to find cases not called. Stress and frustration build up, which leads to a loss of faith in the system rather than a sense of justice being delivered.
In 2001, four out of every 10 sentences that were passed by High Court judges could have been passed by a sheriff—we need to address that.
- Bill Aitken (Glasgow) (Con):
Will the member take an intervention?
- Cathy Jamieson:
I will comment more on that point, but if the member has a specific question I will try to address it.
- Bill Aitken:
Table 13 in Lord Bonomy's excellent report highlights the high percentage of cases in which a sheriff court disposal was allocated, but nowhere is it defined for us the state of the indictment on which the judge sentenced, namely deletions, findings of the jury and so on. Are those figures available?
- Cathy Jamieson:
I will come back to that point later in the debate.
The Criminal Procedure (Amendment) (Scotland) Bill is part of our response to the various difficulties that we have experienced. We want to introduce greater certainty into proceedings—that is a particularly important outcome for victims and witnesses—and to foster a culture that encourages better communication between the Crown and the defence and earlier preparation by both parties. Those objectives have not been plucked out of thin air; they follow from the extensive consultation and discussion by Lord Bonomy and his committee and further consultation by the Executive.
I would like to record the Executive's thanks to everyone who has contributed to the process. What has struck me about the consultation to date is that, although there might be different views about some of the detailed elements of the package, there is a powerful consensus across the spectrum of stakeholders about the key goals and a genuine willingness to listen and to engage with each other.
I am grateful to the Justice 1 Committee and its staff for considering the bill so carefully and producing such a clear and thorough report. I am encouraged that the committee endorsed broadly the key goals of the legislation and the wider reform programme. I am especially pleased that the committee and many of the witnesses that it interviewed accepted our arguments for changing the time limits. Those changes are the cornerstone of the bill and will be crucial in improving the court's efficiency. However, it would have been surprising if the process had not raised questions. Stage 2 will provide an opportunity for close scrutiny of the issues. As stage 2 progresses, we will listen carefully to committee members and maintain a dialogue with stakeholders.
I will respond to three of the main issues that the committee's report raises. First, I will talk about the increase in sheriffs' sentencing powers. The case for increasing capacity in the High Court by transferring cases to sheriff courts is compelling. We are fortunate that a mechanism is available to enable that to happen quickly. Section 13 of the Crime and Punishment (Scotland) Act 1997 provides for sheriffs to impose sentences of up to five years. Last summer, the white paper "Modernising Justice in Scotland: The reform of the High Court of Justiciary" made clear our intention to commence that provision in spring 2004 subject to discussion with sheriffs principal, who have responsibility for business planning in the sheriff courts.
I know that the committee has concerns about early commencement. The sheriffs principal have been consulted on the potential impact of that commencement and, in the light of their views, I am reassured that with the necessary degree of stability in the provision of judicial resources and with careful planning and management of judicial, staff and court resources, the sheriff courts will be able to accommodate the estimated increase in solemn business. The Executive remains committed to commencement in spring 2004. However, I will take time to reflect on what the committee has said. I have asked officials to continue to discuss the implications of early commencement with the various interests, including the relevant trade unions. I will make an announcement on timing as quickly as I can.
The provisions that extend the use of electronic monitoring to support bail conditions respond to views that were expressed in an earlier consultation on electronic monitoring in Scotland. The consensus was that monitoring should be targeted on the small number of cases in which it could provide the additional security that would allow someone who would otherwise be remanded to remain in the community. Before extending the availability of electronic monitoring in bail cases, we will use a pilot scheme to test its impact.
I note the committee's concerns about tagging witnesses. I will return to the overall context that I set out initially. We need to strike a balance that recognises the needs of victims as well as those of others in the system. I am well aware that most witnesses attend court proceedings, no matter how reluctantly. However, some people are obstructive and deliberately do not attend, which causes trials to be adjourned and causes distress to victims and their families. At present, there is often no choice in such cases but to imprison a reluctant witness. Tagging will give the court an alternative to imprisonment—it will restrict the person's movements and provide the means to monitor compliance with those restrictions.
I am well aware that our plans to allow trials to take place when the accused is absent have been controversial, but they are an important element in helping us to rebalance the system in favour of victims. We are not talking about a trivial number of cases. In 2002, 90 trials were abandoned in the High Court because the accused failed to appear. In the sheriff court, the figure was 430.
Of course, safeguards are needed to ensure that trial in the accused's absence happens only when every avenue has been pursued to try to find the accused, but we must bear in mind the perspective of victims, to many of whom justice is denied when an accused absconds. I note what the committee's report says and I welcome the fact that the committee at least accepts the principle that if evidence has been led and the accused absconds, the trial should be concluded. We will continue to consider the committee's comments carefully. Officials will continue to discuss the concerns that have been expressed by others, including the Law Society of Scotland.
I have had only a short time to introduce the debate and I will now make a few concluding points. I welcome the committee's recognition that High Court reform is not simply a matter of legislation. A deep-seated culture change is needed among all High Court practitioners to ensure that we have an efficient and effective court system that is fair for the accused and for victims and witnesses. I am very pleased that there appears to be a shared willingness to embark on that radical culture change. Officials from the Justice Department, the Crown Office and the court service are already working closely with all the relevant interests to ensure that implementation of the legislation will take place smoothly and on schedule in April 2005. A programme board is driving that process and it will develop plans for training, monitoring and evaluation of the reform programme.
Scotland deserves a world-class criminal justice system. The reform of our High Court is a vital component in our package of reforms. By agreeing to the principles of the bill, Parliament will take a vital step forward in delivering a justice system that is fit for the 21st century. I ask for Parliament's support for my motion.
That the Parliament agrees to the general principles of the Criminal Procedure (Amendment) (Scotland) Bill.
- The Deputy Presiding Officer:
I am obliged to the minister for sticking to the time limit. The time for the debate will be very tight indeed.
- Michael Matheson (Central Scotland) (SNP):
Scrutiny of the bill proved to be a complex piece of work and I am grateful for the assistance that was provided by our advisers, Paul Burns and Professor Christopher Gane, in keeping us right on court procedure in Scotland's High Court.
As the minister stated, the background to the bill is Lord Bonomy's review, which was thorough; the process of the review ensured that those who were stakeholders in the High Court system had an opportunity to give their input. The broad aims of the bill are welcomed. It was clear from the evidence that the committee received that the bill has the potential to reform our High Court system in a beneficial way.
The principle of early disclosure is key to ensuring that the bill is effective in delivering the changes that are proposed for our High Court. The bill will introduce measures that depend on improved communication between the Crown and the defence at an early stage. A considerable body of evidence that was received by the committee emphasised the importance of early disclosure from the Crown to the defence to allow early preparation of cases.
Unfortunately the bill, as drafted, does not implement Lord Bonomy's recommendation on the practice of disclosure. In giving evidence to the committee, everyone—including the Crown—acknowledged the need to improve the process of early disclosure to the defence. However, I do not believe that the Executive's approach—that the issue can be dealt with sufficiently by using a practice note—is the best way to go about ensuring that early disclosure takes place. The Law Society of Scotland was correct to point out in its evidence that early disclosure is the bill's key provision in relation to preliminary hearings, which will not be effective without it. I hope that the Executive will reconsider the possibility of ensuring that the bill will provide for early disclosure to take place, in line with Lord Bonomy's recommendations.
As it is proposed in the bill, the new preliminary hearing is the centrepiece of a package of measures that will build upon the anticipated early communication and disclosure to which I have referred. Integral to the preliminary hearing is the switch from a sitting system to a system of fixed trial dates. Although switching systems might appear on the surface to be straightforward, members should not underestimate the practical implications that that would have for the daily workings of our courts. The committee and I are aware that extensive work is going on to ensure that that can be implemented adequately.
The committee has outlined its concerns in paragraphs 54 to 58 of its report. I welcome the fact that the minister is already committed to reconsidering section 83 at stage 2. It is crucial that our court administration system, those on the bench, the Crown, and the defence have the resources and systems in place to prove the preliminary hearing system to be effective.
I turn to the new time limits that the bill seeks to introduce. Section 9 will amend section 65 of the Criminal Procedure (Scotland) Act 1995, which contains the time limits for proceedings on indictment in the High Court and sheriff court. Prior to considering the bill, I was opposed to the creation of a new 140-day rule that would end the long-standing 110-day rule, which requires that the trial of an accused who is remanded in custody must start within 110 days of full committal. The 110-day rule has often been referred to as the jewel in the crown of the Scottish criminal justice system. The bill proposes that the 110 days should be extended to 140 days and that the preliminary hearing should take place by the 110th day. That would provide an additional 30 days beyond the 110 days within which the court would have to fix a trial date.
The Justice 1 Committee received mixed evidence on the proposed change to the 110-day rule. The Law Society of Scotland, the Scottish Human Rights Centre and the Howard League for Penal Reform in Scotland all opposed the planned change. However, as the committee took evidence, it became apparent that the 110-day rule can be a moving target. The 110th day can move from day to day if the time limit is extended. Surprisingly, even if the 110th day is moved forward, it is still called the 110th day. Therefore, what is often referred to as the 110th day is not necessarily the 110th day after full committal for trial.
The balance of the evidence that was presented to the committee was that, if we are to address effectively the delays within the High Court system, we will require a package of measures including those that deal with timescales. I continue to hold reservations about extending the timescale. The 140-day limit must be the outer limit. Every effort must be made to ensure that trials take place as early as possible. Any further extension of the timescale would be entirely inappropriate.
The evidence that the committee received raised serious questions about the practicalities of the proposal to allow trials in absence of the accused. The evidence also suggested that the failure of an accused to appear for trial is not a significant problem. That view is held by both the Law Society of Scotland and prosecution practitioners. As the Scottish Human Rights Centre highlighted, the simple problem with the proposal is that we will be unable to identify the accused in the dock because the accused will not be there. Furthermore, the Sheriffs Association believes that such a trial would be a waste of time because, once the person who had been convicted was eventually arrested, they would appeal against their conviction. The majority of the evidence that was presented to the committee—including the evidence of the Lord Justice General, Lord Cullen—was opposed to the proposal for trial in absence of the accused. I hope that the minister will reconsider the matter at stage 2.
The bill contains many good things and the SNP supports the general principles of the bill at stage 1.
- Margaret Mitchell (Central Scotland) (Con):
The Criminal Procedure (Amendment) (Scotland) Bill is extremely important as it seeks to introduce greater certainty into the proceedings of the High Court of Justiciary by introducing measures that, for the most part, were recommended in Lord Bonomy's report "Improving Practice". At the heart of the measures is the requirement to develop a more managed system that promotes better communication between the prosecution and the defence and earlier preparation by both parties. We welcome the general principles of the bill and congratulate the Scottish Executive on recognising and prioritising the need for the legislation.
Lack of preparation by the prosecution or the defence and late submission of evidence—mostly by the Crown—are the two main reasons for delays in business in the High Court. To address those delays, there must be improved communication between the Crown and the defence at the earliest possible stage. In other words, there must be early disclosure of evidence to provide the opportunity for the exchange of information to assist with the early preparation of cases and to identify cases that are ready to go to trial.
The Procurators Fiscal Society has confirmed that, at present, disclosure does not happen in a consistent manner. There must be a fundamental change of attitude on the part of both the Crown and the defence so that a culture of early disclosure is embraced. The monumental shift in thinking that that will require should not be underestimated. Although I am encouraged that the Crown Office representatives state that they are already embracing the early-disclosure culture for complex cases, I am deeply concerned that there is still a tendency for cases that, on the surface, appear to be straightforward not to be subject to the same early-disclosure culture.
By far the best way of resolving issues in the early-disclosure process and of assisting in the preparation of a case for trial is for a meeting—referred to in the Bonomy report as a "managed meeting"—to take place between the prosecution and the defence. The prosecution and the defence would be required to meet prior to the preliminary hearing to establish which issues required to be resolved if the case was to be disposed of or to allow it to go to trial at the earliest opportunity. I believe that for the meeting to have maximum effect, it should be held face to face. Videoconferencing equipment that is to be introduced for vulnerable witnesses could be introduced in courts throughout Scotland to allow face-to-face meetings to take place.
With an early-disclosure culture and a managed meeting having taken place, the aim should be for the mandatory preliminary hearing to become merely a ticking and bumping exercise, confirming that the parties are prepared for trial and allowing the judge to set a trial date. Early disclosure and the managed meeting are the real key to ensuring that the system works. The Justice 1 Committee recognises that and is concerned that the bill does not include proposals for early disclosure of evidence and does not mention or specify arrangements for the managed meeting. I hope that the Scottish Executive will rectify that omission.
Other areas on which the committee disagrees with the Scottish Executive include the proposals relating to trial in the absence of the accused, reluctant witnesses, bail conditions—including the appropriateness of remote monitoring as a condition of bail—and timescales for the shift of business to the sheriff court. Underlying the committee's comments on those proposals and suggestions for change is the recognition of the absolute necessity of ensuring that the measures that are proposed in the bill are adequately resourced.
I share the committee's concerns and agree with its recommendations. I pay particular tribute to the Justice 1 Committee convener, Pauline McNeill, and the committee clerks and advisers for the work that they have done. If the issues that have been highlighted and the committee's recommendations are taken on board, the efficiency and effectiveness of the bill will be improved greatly.
The one issue on which I differed from my colleagues on the committee was the proposal to extend the 110-day rule for those who are remanded in custody. The principle that an accused person is innocent until proven guilty is enshrined in the Scottish legal system. It is therefore unacceptable for an accused person to be denied their liberty for any longer than is absolutely necessary. Quite simply, justice delayed is justice denied. With early disclosure and managed meetings, there is no reason that indictments in the majority of cases—apart from the most complex cases—should not be served well before the 80th day, with the subsequent mandatory preliminary hearing being set at a time that would enable the trial date to fall within the 110 days. In complex cases, that may not always be possible and there may be a delay. At present, that happens in only 25 per cent of cases. The new early disclosure and managed meetings should ensure that that percentage is reduced.
In these circumstances, the exception should not dictate the rule. In effect, that is what is proposed by the extension to 140 days of the time that an accused person can be held in custody. Implementing the extension of the 140-day rule provision could result in the accused being held in custody for up to 12 months if bail is refused. That is unacceptable.
The Conservatives support the Justice 1 Committee's recommendations, with the exception of the proposal to extend the 110-day rule, which would delay justice unnecessarily. We are firmly of the opinion that the case has not been made for ditching the rule, which has existed for centuries and has become, and should remain, the cornerstone of the Scottish criminal justice system.
- Margaret Smith (Edinburgh West) (LD):
I welcome the bill, which has attracted general support from all parts of the criminal justice system and forms a key part of the Executive's reforming justice agenda.
The Justice 1 Committee has been scrutinising the bill for several months. I thank not only our committee convener and clerks, but our excellent advisers, Professor Christopher Gane and Paul Burns. I thank the bill team and the many individuals and organisations who have given us evidence, both formally and informally, at committee and on court visits. I also thank Lord Bonomy for his initial work.
The bill is designed to introduce greater certainty into High Court proceedings and to help develop a culture of a more managed system with the emphasis on better communication between the Crown and the defence and on earlier preparation by both parties. Crucially, that better communication and earlier preparation will be assisted greatly by early disclosure, which is critical if there is to be effective dialogue. The Procurators Fiscal Society has admitted that there is no standard system of disclosure at present. I will return to that in a moment.
One of the key parts of the bill is the establishment of preliminary hearings, which will have a central role in the better management of court time and in the reduction in the number of adjournments. Lord Bonomy found that 33 per cent of High Court cases in 2001 were adjourned at least once. In such circumstances, victims are victims twice over—once at the hands of the criminal and then again at the hands of the criminal justice system. If preliminary hearings are used effectively, they will introduce greater certainty, although it is clear that no system will deliver absolute certainty and we should not underestimate the practical problems in introducing a shift to a more fixed trial system.
The preliminary hearings system should increase the number of early guilty pleas; that has been found to be the case in the sheriff court. In the High Court, 65 per cent of pleas are tendered at trial, whereas in the sheriff court that figure reduces to 30 per cent. That situation is made more likely with early disclosure so that the defence can make an early decision about the strength of the Crown's case. That is why the committee suggested that the Executive consider inserting a provision in the bill to reflect Lord Bonomy's recommendation that the Crown should provide the defence with information about material developments in the investigation of the case as they occur and let it have access to all relevant evidence as it becomes available. It is important that the preliminary hearing is as meaningful as possible and we welcome the concept of the managed meeting in order that the two parties can have the earliest possible discussions.
It is clear that greater resources will be required in the justice system to fund the changes. The new system will require greater judicial management of cases; there will also be a greater fiscal work load as a result of managed meetings, the need for a written record and preliminary hearings.
One of the most contentious issues has been the extension of the 110-day time limit in custody cases. The reforms are about the introduction of a realistic system that can be delivered. Introducing a further 30 days to accommodate the preliminary hearing and to better reflect the greater complexity of many modern High Court trials seems sensible. The prosecution will still have to indict the accused at 80 days, but the extra days should reduce the number of adjournments, many of which are currently requested by the defence because of the late delivery of evidence by the Crown. It became clear to the committee that the so-called jewel in the crown—the 110-day rule—was already unattainable and was a moving target. The average additional length of time that was spent in custody was 34 days, which suggests that the 140-day target should be achievable.
The committee heard mixed evidence on the matter, including concerns that were raised by the Law Society of Scotland, but in the end, the vast majority of us, with the principled exception of Margaret Mitchell, were persuaded that 140 days was a more realistic limit and that it still represented a much shorter period than is in operation anywhere else, as the Faculty of Advocates pointed out. However, every effort must be made to ensure that 140 days is the exception rather than the rule and that the situation is monitored closely.
Trial in the absence of the accused was the committee's major concern with the bill. Section 11 allows a solemn trial to go ahead in the absence of the accused and makes provision for the court to appoint a legal representative in the accused's absence. The committee and the overwhelming majority of the witnesses to whom we spoke had problems with that section, not only on issues of principle, but in practical terms. The minister said that the Executive's intention was to save victims and witnesses having to go through trials twice. She admitted that, last year, warrants were made out for the recovery of 90 people who absconded, but we are unclear about the details behind that figure. We believe that there are important principles at stake and that the accused would not get a fair trial in their absence.
After taking formal and informal evidence from legal practitioners, we were convinced that the proposal on trial in absence is not workable. However, we saw some merit in allowing a trial to continue when all the evidence had been laid. Practitioners to whom I spoke said that it would be more effective to increase the length of time that could be added to a sentence, if an accused does a runner, from two years to 10 years.
The committee was concerned about aspects of section 12, which will introduce measures to deal with reluctant witnesses. I heard what the minister said about the measures being a pilot scheme. However, having heard evidence on the issue, the committee felt that much more could be done to support all witnesses with witness packages. We ask the minister to look again at the issue.
The committee generally agreed with the proposals to shift business from the High Court to the sheriff courts and to increase sheriffs' sentencing powers from three years to five years, although, again, we heard mixed evidence. I am sure that sheriffs are capable of dealing with the sorts of cases that are likely to be shifted. However, the committee has concerns about legal aid and feels that those who have the right to representation by counsel in the High Court should have the same right when business is shifted to the sheriff courts.
Generally, I welcome the bill, but it is difficult in six—or even seven and a half minutes—to do justice to a complex and important bill.
- The Deputy Presiding Officer:
We move to open debate. The time limit for each speech is a strict six minutes.
- Pauline McNeill (Glasgow Kelvin) (Lab):
I, too, thank the clerks, our advisers, Chris Gane and Paul Burns, and the committee members. I can vouch for the fact that the bill is the 10th one with which I have been involved; that is probably also the case for Michael Matheson. Members worked hard on the bill because we wanted to do a thorough job. Therefore, we welcome the positive comments that the minister made this morning. It is fair to say that the bill is probably the most complex one with which I have been involved. When we went to see Lord Bonomy, I was pleased to find that he, too, thought that the bill was a complex construction—so we did not feel so bad.
The backdrop to our report was our consideration of a strong Finance Committee report on the bill, which asked us to consider the bill's resource implications and whether a new procedure was needed in the High Court.
The question of the culture change that the bill will make is important. We were all struck by the consensus on the issue among witnesses. They said that they wanted changes and supported the introduction of the new preliminary hearing, which will be more than just a procedure. As we said in the report, the new preliminary hearing will be the centrepiece of an important process that is designed to ensure that there is early disclosure, particularly of the Crown's case, so that parties are more ready to continue when a trial comes about because witnesses and others who would normally attend a trial much earlier will be relieved of doing so, as issues will have been agreed much earlier in the process.
As has been said by others, early disclosure is believed to be the key aspect of the process. We heard evidence from the Law Society of Scotland and others that an early disclosure provision should be included in the bill. We asked the Executive to consider providing stronger mechanisms to ensure that early disclosure takes place and is not left to chance. For the same reason, when we considered the managed meeting, which is part of the process, we said that the presumption should be that there will be face-to-face meetings. We understand the practicalities of doing that, but we are trying to think of ways of ensuring that, early in the process, there are mechanisms that not only facilitate positive thinking and a culture change but ensure that there will be face-to-face meetings.
It is clear to me that there is a great onus on the Crown Office to make early disclosure work. A trail of witnesses blamed the Crown Office for submitting late evidence, which was a bit unfair. I admire the Crown Office's commitment to making the early disclosure procedure work and we want everyone to recognise that commitment. However, the committee wants resources to be put in place for the procedure. We also suggested that, as a gesture of good will, the defence should be required to issue its list of provisional witnesses at the same time as the Crown Office. That would be just a small gesture that would indicate that the defence, too, was committed to the culture change.
Fundamental to the change is the question of deadlines, which is an important issue because some deadlines will change. Seven days prior to a preliminary hearing, everyone will submit their evidence and a judge will assess whether there is agreement or not. To that extent, it is important to note the changing role of judges in the process. They will be much more hands-on and will need the resources to be able to guide the system in its early days.
Witnesses repeatedly mentioned the Crown Office's use of section 67(5) of the Criminal Procedure (Scotland) Act 1995 as a mechanism for submitting late evidence. My strong feeling on that is that the bill is about creating certainty. It should not be about upsetting the balance of the interests of justice and there is a real danger of that if we do not fix that problem properly in the bill, to allow the Crown to submit late evidence where there are special circumstances. We have heard that forensic evidence in particular can delay a case. We wrote to Strathclyde police to ask for any guidance that they could give us on any changes to the system to ensure that forensic evidence was available to the Crown when it should be, and we got a very important response to that inquiry.
The question of time limits has already been addressed by Michael Matheson. It is quite a complex issue and it took us rather a long time to get our heads round some of the details. The proposal involves moving the 110-day limit, but it took us much longer than that to understand the details and just when we thought we understood it we realised that there was still a bit more to the problem. It is important to note that there are fundamental changes from the old provisions to the new provisions, because whereas an accused was free for all time after 110 days—a provision that I support—now, in each circumstance, an accused is entitled to be admitted to bail. I would like to say something about the phrase "admitted to bail". We presumed that that meant an automatic entitlement, but we need to be clear about the fact that, in the bill, that phrase means that there will be a hearing, not simply that someone will be released on bail.
Other members have talked about trial in the absence of the accused. We understand why the measures are in the bill. They are all measures designed to reduce delay, but we had difficulty getting support for some of them. There are issues around bail conditions that we feel need to be examined much more closely, particularly with regard to remote monitoring of bail conditions. We had difficulty pinning down the Executive and its bill team on where that provision was focused. If the provision is to allow a small number of cases—perhaps women offenders who do not need to be in jail—to be handled differently, we would have liked to know that, but at the moment we do not feel that it stacks up.
Finally, I would like to comment on moving business from the High Court to the sheriff court. I am concerned about the work-load issues involved, although we did not have problems with the sentencing powers. I have looked at the question every which way. I am not a mathematician, but I cannot accept that moving 20 per cent of business down to the sheriff courts results in 7 per cent more work for those courts. I know that that is a trick and that the extra work load must be in the system somewhere. It is important that the timing is handled properly. The Procurators Fiscal Society of Scotland told us that it was not involved in talks with the Crown Office. That concerned me, because if the people in the front line are to ensure that there is a smooth translation, they must be involved.
- Mr Stewart Maxwell (West of Scotland) (SNP):
I join fellow members of the Justice 1 Committee in thanking the witnesses who came along, the advisers and the clerks for helping all of us out in handling a complex piece of legislation. It is not my 10th piece of legislation but my first, and I found some difficulty in getting my head round it at the start.
The reform of the High Court is a major piece of work and the Criminal Procedure (Amendment) (Scotland) Bill is a major bill. It is critical that we get it right. If we make a mistake at this stage, that mistake will be with us for quite some time to come, so it is important that we get the basics right when making this change. I certainly welcome the general thrust and the general principles of the bill and its intended changes, but its success is dependent on all the different elements of the bill working together, as well as the measures that are not in the bill. Also, and most important of all, there must be a change in the general culture of all parties working in the system.
One of the most important aspects of the changes is early and full disclosure by the Crown to the defence. That is critical to the success of the bill, but it does not form part of the bill. Perhaps the Executive should reconsider its opposition to that matter and accept the committee's view that a provision should be inserted into the bill that would reflect Lord Bonomy's recommendations in that area. One specific problem relating to early disclosure is that of police witness statements, and that issue arose on several occasions. Lord Bonomy recommended that a working group be established to look into the issue, but the Executive has so far rejected that proposal.
That issue has been discussed for decades. As I understand it, the debate has been going on for some 25 years without any progress being made, so it is time that we came to a conclusion on the matter and made some progress. I believe that the best way forward is for a working party to be established with a tight remit and a short timetable for completing its work, as Lord Bonomy suggested. I urge the Executive to change its mind on that matter and implement that recommendation as soon as possible.
One of the other critical factors in changing to the new system is managed meetings. Managed meetings are one of the proposed reforms but, yet again, they do not form part of the bill. Managed meetings will allow the parties to discuss some of the outstanding matters and the outcomes of meetings will be recorded and produced to the court. Given the importance of the managed meetings and the fact that they will pave the way for the preliminary hearings and will assist in making those hearings a success, they must be mandatory and should, wherever possible, be face-to-face meetings rather than conducted by telephone or e-mail.
The introduction of preliminary hearings is probably the most crucial change to the current procedure and the one that could be of most benefit to the system. A series of benefits should flow from the hearings. Those will include clearing up any outstanding issues between the parties, such as relevancy and competency; dealing with special defences; dealing with some issues surrounding the admissibility of evidence; dealing with vulnerable witnesses; addressing the state of preparation of the parties; dealing with the availability of witnesses; getting early pleas, which are very important—if we get early pleas in a reasonable proportion of cases, that will make a big difference; and establishing fixed trial dates.
Preliminary hearings are the centrepiece of the bill and their introduction is almost universally welcomed. However, introducing preliminary hearings means that it is necessary to change the 110-day rule to 140 days. When we started consideration of the bill my instinct was to oppose that change, as I was concerned about the possibility of prolonged incarceration of accused persons beyond 110 days. However, like some other members, I was unaware that the 110-day rule was a bit of a misnomer as in effect a trial could begin on the 114th day or, it seems to me, any other day beyond 110 days.
Bringing people to trial in as short a period as possible is central to our system of justice. After listening to the evidence, I am on balance persuaded that including the change to 140 days will not erode that principle. However, we need to monitor the situation closely to ensure that people are not being held for longer periods. A genuine concern is that there will be an upward drift in periods of incarceration. I accept the change to 140 days to gain the prize of the preliminary hearings, but we must ensure that that helps to speed up justice and does not slow it down.
On fixed trial dates, I certainly welcome the move away from sittings. However, there is concern that we may end up with the continuation of sittings by default if there is not a presumption of fixed trial dates. That concern was raised because of the possibility that there will be overuse of the provision that allows trials to be fixed from day to day—in other words, floating trials. I know that people do not like us to call them that, but trials that are being fixed from day to day seem to me to float. There must be a presumption in favour of genuinely fixed trial dates in the proposed new section 83A of the Criminal Procedure (Scotland) Act 1995. I think that the Minister for Justice has already said that the Executive will consider the matter again. I certainly welcome that assurance.
I am concerned about the courts' ability to fix trial dates. It is clear that many people expected that an electronic diary would be the answer to the problem of co-ordinating diaries between all the different parties involved. However, the evidence that we received indicated that the electronic diary is at the development stage and is some distance away from being implemented.
I do not want to say a great deal about trials in the absence of the accused. I fully support the comments on that proposal in the report. There is little support for the proposal and I believe that it would not be in the interests of justice if it were implemented.
I do not believe that the tagging of reluctant witnesses is a measured response to a perceived problem. It treats potential witnesses in the same way as convicted persons who have been tagged as part of their sentence. I commend the evidence given to the committee by the witnesses from the University of Wolverhampton and in particular their comments on the provision of witness care programmes. That would surely be a better way forward than tagging people.
On the issue of increasing the sentencing power of sheriffs, I am concerned—as are others—about the possibility of an upward sentencing drift in sheriff courts. I also share the concern of others about the removal of automatic representation by counsel for cases that are transferred to the sheriff courts from the High Courts. On the face of it, that seems to downgrade certain cases and to lead to a loss of rights for the accused persons. I ask the Executive to support what the committee has recommended in its stage 1 report.
The bill is a very important piece of work. It is a shame that we have only six minutes in which to speak. There are a lot of good recommendations in the committee's stage 1 report and I hope that the Executive will take them on board.
- Bill Aitken (Glasgow) (Con):
Lord Bonomy's excellent report on the running of the High Court painted an alarming yet honest picture of a system that is filled with delays and is in danger of being overwhelmed by the number of cases. His proposals contain a number of excellent suggestions. The proposals on increased judicial management of cases, the treatment of witnesses and High Court locations are all aspects with which the Conservatives could go along 100 per cent.
However, I want to highlight one or two issues in relation to which there are potential difficulties. First, the increase in the sheriff court's sentencing powers will undoubtedly reduce the High Court's case load but will inevitably lead to a corresponding increase of approximately 22 per cent in the sheriff court's case load. Like Pauline McNeill, I cannot quite get my head round how the measure can be implemented without placing considerable pressure in the short term on the sheriff court, which is already overburdened in places such as Glasgow. Although I accept that Sheriff Principal McInnes might well recommend an increase in summary sentencing powers to 12 months, along the lines that I suggested when we debated the criminal justice system, I recognise that there will be a difficulty in that respect. If the goal of the bill is to alleviate the burden on the High Court, it should succeed, but why should the lower court pay the price?
Public protection in relation to sentencing and plea bargaining issues must also be considered closely. Frankly, the appropriate time to plead guilty is at the intermediate diet in the lower courts, but of course the increase in diets that Lord Bonomy has recommended should lead to a reasonably satisfactory conclusion, in terms of an increased case throughput.
However, should someone get a substantial discount for a guilty plea? Early pleas symbolise the acceptance of responsibility and justify discounted sentences, but the bottom line is that it is unacceptable and outrageous that accused persons should be able to play the system—as currently happens—and exploit delays in the court system, to achieve delays in the time period during which they should face justice and to ensure that they receive a reduced sentence.
The abolition of the 110-day rule—or the extension to 140 days—is probably the most controversial and detrimental suggestion for the Scottish justice system. As the Deputy Minister for Justice will cheerfully confirm, I am all for locking people up, but I happen to like them to be guilty before they are locked up. That is a serious civil rights issue: the time that someone should spend in custody awaiting trial should be the minimum possible and if we do not have the resources to ensure that trials can start timeously—and clearly there is a problem, due to the number of adjournments that the Crown has to request—we must examine the system. We must change working systems and practices to make them more efficient and we must consider the resources. Frankly, not only is the proposal contrary to natural justice but it will damage the justice system. We have prided ourselves for many years on having a system that is fair to everyone.
- Pauline McNeill:
The Justice 1 Committee asked one witness whether we should preserve the proposal for preliminary hearings and stick with the 110-day rule. It was accepted that if the limit were not moved back, the Crown would have 30 fewer days in which to prepare its case—it would have 50 days. Does the member want to retain the preliminary hearing and the 110-day rule or does he want to dispense with the preliminary hearing in order to protect the 110-day rule?
- Bill Aitken:
We seek to expedite the system in a way that is consistent with the principle of fairness to the accused person. Clearly we want the system to be so organised as to minimise the time delay, so we would seek to confirm the earlier aspect. That is the way in which we must operate.
There is an important principle here: an accused person should not be in custody for any more than the minimum time necessary for the case to proceed. The 110-day rule places an added discipline on the Crown to ensure that that happens.
There is much in the committee report with which we can go along. We must examine the operation of the High Court and accept that the existing system is not working in the way in which we would like it to work. I think that there is a general acceptance of that on the part of the Executive. The voluminous document contains many evidently commonsense proposals that we will certainly support as the bill progresses.
The basis of the increased sentencing powers for the sheriff courts, however, leads to a degree of unease. The increase might happen in time, certainly but, in the short term, if we seek to implement the proposals too speedily and expeditiously, we will end up with a bottleneck at the sheriff court, which will be contrary to the smooth running of the system. Certainly, I think that the Minister for Justice and the Lord Advocate require to look again at the matter.
Margaret Mitchell quite correctly described the 110-day rule as the jewel in the crown of the Scottish legal approach to matters. Anything that would upset a system that has been in place for centuries has got to be looked at carefully first.
- Bill Butler (Glasgow Anniesland) (Lab):
I will preface my remarks by stating my appreciation, as other committee members have done, of the hard work, advice and thoroughgoing professionalism that was displayed throughout the preparation of the stage 1 report by the committee clerking team. I also add my sincere thanks to our two excellent advisers, Professor Christopher Gane and Mr Paul Burns—believe me, their help was invaluable.
As indicated in the report, our scrutiny of the bill was far from straightforward. As we said, the bill is a complex piece of work. I believe that the committee's labours have proved worthwhile.
A warm welcome has been accorded to the aims of the bill. The Sheriffs Association, the Law Society of Scotland, the Faculty of Advocates, police organisations and Safeguarding Communities-Reducing Offending indicated their view that the objectives of the bill are positive and, if realised, will reduce delays and inefficiencies.
As members have said, the bill is the result of wide-ranging consultation that arose in the main from the recommendations that were contained in Lord Bonomy's report, which was published on 11 December 2002. The Bonomy report demonstrated the urgent need for reform. Between 1995 and 2001, there was a 23 per cent increase in the number of new indictments that passed through the High Court. As a consequence of that, the culture of adjournment had grown to the degree that 56 per cent of trials at Glasgow High Court last year were adjourned. That is a wholly unacceptable state of affairs.
It is widely acknowledged that adjournments cause anxiety and distress for victims and witnesses and that they undermine public confidence in the criminal justice system. The reason why the bill is before the chamber today at stage 1 is to address such shortcomings.
In general terms, the bill seeks to introduce measures that will depend on improved communication between the Crown and the defence at an early stage. The guiding principle behind the main provisions that are contained in the bill is to create a culture that offers witnesses and victims greater certainty about matters such as the date on which a trial will proceed and so prevent unnecessary adjournments. I believe that that laudable, overarching objective of the bill is one to which every member in the chamber can subscribe.
The report highlights a number of elements in the bill that were met with general approval. As other members mentioned, those include the need for early disclosure, the managed meeting, the creation of preliminary hearings, the necessity for fixed trial dates, a more intensive role for judges in respect of the management of cases and the extension of time limits to 140 days. All those elements are viewed as essential to the construction of a more modern and more efficient Scottish justice system. The committee is in agreement on all the elements in the bill except for the dissent on time limits that was evinced by Margaret Mitchell.
In the short time that remains to me I will concentrate on one proposal on which the committee's judgment diverges from that of the Executive. I am referring to the provision that is contained in section 11 for a solemn trial to proceed or to be concluded in the absence of the accused. In her opening speech, the minister acknowledged that the provision was controversial; she was correct in saying so. Paragraph 135 of our report makes it abundantly clear that the
"Overwhelming evidence presented by practitioners and other witnesses suggests that it would be difficult for the person appointed to represent the interests of the accused to conduct the case in the absence of any information about lines of defence."
That very practical impediment is only one aspect of what the committee views as a worrying proposal.
The committee's worries spring from much of the evidence that it heard when the matter was discussed. For instance, the Law Society is not in favour of the provision and the Sheriffs Association expressed "very clear reservations", particularly if the accused is absent throughout the whole trial.
I realise that, although the overall percentage of people who fail to attend for their trials is small—in High Court cases it is about 3.5 per cent—it leads to the situation in which around 1,630 witnesses who were cited to give evidence required to be cited again.
I accept what the Deputy Minister for Justice said in his evidence to the Justice 1 Committee on 14 January. He said:
"The victim and society have rights."—[Official Report, Justice 1 Committee, 14 January 2004; c 505.]
He also said that justice must be delivered not frustrated. That was reiterated and echoed by the Minister for Justice in her opening speech. However, along with all members of the Justice 1 Committee, I remain extremely sceptical about the appropriateness of the proposal, given that justice must be not only swift but balanced. We feel that the proposal lacks that proper sense of balance. I note that the Minister for Justice said in her speech that it is the important element in helping to rebalance the system in favour of the victims. We are all for that, but what good does it do victims if someone who has absconded is apprehended and a retrial is ordered on appeal, and the victims and witnesses have to go through the whole process again? That is a serious consideration.
It is for that reason and for others that the committee felt obliged to reject the proposal that an accused can be tried in their absence from the outset. I was glad to hear the minister state that the Executive will continue to consider the committee's comments on that matter. I hope that the Executive will consider the proposal and reflect on it during the next stages of the bill.
Notwithstanding that concern, and despite other concerns that have already been referred to, I am pleased to lend my support as a member of the Justice 1 Committee to the motion before us today to agree the general principles of the Criminal Procedure (Amendment) (Scotland) Bill.
- Colin Fox (Lothians) (SSP):
It is a remarkable coincidence that the debate is taking place on the same day and at the same time that the United Kingdom Home Secretary decides to continue to detain 14 people without charge or trial in Belmarsh prison in London for yet another year. The debate also takes place against the background of hundreds of people—as the minister knows—being held on similar grounds at Guantanamo Bay, in breach of international law and judicial process.
The Executive, having identified problems in the efficiency of the courts and the length of time it takes for cases to come to trial, all too often proposes to amend the judicial process and impinge upon the current rights of accused persons as its solutions. There are dangers of which we must beware.
For me, this is primarily a debate about judicial resources and their management: other members have mentioned that. The policy memorandum makes it clear that it is important that the Executive wishes to strike a balance between the rights of the accused and the rights of victims and witnesses. Bill Butler stressed the importance of striking the right balance when he spoke. Every member in the chamber would agree with that.
However, on all too many occasions and according to all too many key tests, it appears to me that defendants are losing out because their right to a fair trial is being reduced. That reduces our reputation for civilised justice and brings our justice nearer to that of countries whose legal habits we have rightly sought to criticise over a long period. Under the proposals, accused persons will lose the right to be tried under the present timetable. They will lose the right to be freed if the state has not brought them to trial within one year, they will lose the right to trial in their presence and they will lose the right to represent themselves. Those are important considerations.
Before I offer my two key concerns, I make it clear that there is much in the bill that I welcome; there is much in it that attempts to improve the efficiency and effectiveness of the High Court. The principle of early disclosure of information is welcome although, as Lord Bonomy freely admits, that will be more dependent on a culture change in the profession than on anything else. Equally, the preliminary hearing—the keystone of the entire bill—is welcome because it will provide greater certainty that cases will proceed on the date on which it has been decided they will proceed. The roles of managed meetings and written notes are part of that.
Estimates vary as to how much may be saved, but it is suggested that perhaps as many as one third of all cases may meet an early disposal with an early guilty plea. That is a welcome initiative—we might wonder why it has not been tried already.
In the rest of the meagre time that has been allotted to me, I will highlight two of my concerns about the bill. I have spoken out previously against increasing the time limit of the 110-day rule. For me, that rule is a key principle in Scots law and is among the most forward-thinking of such rules in the world. The rule means that Scots law, if it has any part to play in the 21st century, is regarded throughout the world as forward thinking. That key principle is now under sustained assault. Why do we have this proposal? Is it because the pressure on the system is too great, or because some defendants walk free on a technicality—even though the number of cases in which that happens is, as the minister knows, negligible—or because the time limits are in practice missed in 25 per cent of cases? Those are key questions; they allude to the failure to apply resources to the process.
I agree with Margaret Mitchell that the 110-day rule is a keystone and that it has an important part to play. The Executive has rejoined by saying that the 110-day rule is not the issue and that the 80-day rule is the jewel in the crown. However, the 80-day rule is also under attack, given that the proposals will undermine defendants' right to release, which will become simply a right to be considered for bail. For me, modernising time limits seems to be a euphemism for extending the length of time that defendants may spend on remand. That is modernisation at the expense of the accused's rights.
In evidence, the Faculty of Advocates compared the situation here to that in England, where people
"can languish in jail for a year before someone gets round to trying them."—[Official Report, Justice 1 Committee, 7 January 2004; c 417.]
The proposals are an unnecessary month-long step in the direction of a similar slippery slope. I was aghast when I saw the evidence that the Faculty of Advocates gave about a case in Belgium in which a defendant has been held in custody without trial for eight years. The Faculty of Advocates highlighted the fact that the European Court of Human Rights says that no breach of human rights has taken place in that case. Thank God that Scots law is miles ahead of the European Court of Human Rights in some regards.
There is no need to change the 110-day rule. If we need to introduce the preliminary hearing, we should have it at 50 days and we should provide more resources, rather than take away defendants' rights.
Trials in the absence of defendants are too high a price to pay. Many lawyers have said that they will not queue up to take cases in which the defendant is absent. The Law Society for Scotland has made it clear that appeals are likely to succeed and that retrials may take place. I am glad that the minister said that she will pay heed to the grave concerns that have been expressed in the debate and in evidence, and that she will take on board the need for changes to the bill.
- Mike Pringle (Edinburgh South) (LD):
I am pleased to speak in support of the bill, which is part of the Executive's commitment to improving the justice system in Scotland. The bill is about delivering good justice through cutting delays and reducing uncertainty in the High Court. It has been welcomed by judges, jurors, lawyers, police, witnesses and victims of crime.
The policy memorandum states that the bill is designed to introduce much greater certainty into High Court proceedings, and to help to develop a more managed system and a culture that emphasises better communication between the Crown and the defence and early preparation by both parties. If that aim can be achieved and all parties are prepared to consider the proposals as an opportunity to make real improvements in the High Court, that can only make our justice system better.
The bill will deliver greater certainty for victims, witnesses and jurors, but I hope that it will also deliver a system of justice in which members of the public have greater faith, and in which they are therefore more willing to take part. There can be no doubt that, at present, the experience of having once given evidence leads to many witnesses' reluctance ever to come forward again.
The minister and others have mentioned that, in 2002, 90 warrants were issued for the apprehension of accused persons who failed to attend the High Court for trial. As members have said, that amounts to 3.5 per cent of High Court cases. In an attempt to reduce delay, section 11 of the bill will provide for trials to proceed or to be concluded in the absence of the accused. A legal representative would act on behalf of the accused at the trial, and the accused would have the right of appeal—although they would not have the right to be tried again. That radical proposal has been widely criticised. The Law Society of Scotland stated that the accused failing to appear for trial was not a significant problem. However, I suggest that it was a problem in those 90 cases. A total of 1,630 witnesses were cited to give evidence in those cases, so there was clearly a problem for them in that their turning up time and again was a waste of their time.
There was a clear example of the problem during a recent sensitive case that involved two young girls. The evidence had finished and the prosecutor and the defence had made their speeches to the jury; all that remained was the judge's charge. The court was adjourned for the weekend, but the accused absconded. The witnesses then faced the ordeal of going through the whole process again, knowing that the perpetrator was free.
However, a trial in the absence of the accused must be used only as a last resort. If the accused thought that his sentence might be increased because of it, his absence might be discouraged. If the accused failed to turn up for the trial, making an adjournment necessary, his or her legal representative could then be told that, if the accused failed to turn up a second time at a newly arranged trial date, the trial would go ahead without them. As I suggested, the accused would know that that could result in a longer sentence if they were found guilty.
Lord Bonomy reported citation problems with witnesses as a major reason for the Crown's seeking adjournments, which causes delays in the High Court. The High Court is currently empowered to detain a witness who has deliberately avoided citation or who has absconded. The bill proposes an additional option of releasing a witness on bail on condition that they be electronically tagged. Studies at the University of Wolverhampton found that the number of non-attendees was relatively small. I accept that. Furthermore, the researchers believe that the best way in which to reduce non-attendance is by creating better systems throughout the criminal justice system and by offering better support, rather than by criminalising witnesses.
The Justice 1 Committee was unconvinced by evidence that suggested that the option to tag reluctant witnesses is necessary. Furthermore, it was noted that failure by a witness to attend court might be related directly to fear and intimidation, rather than its being a demonstration of their disrespect for the court. In relation to that, it was proposed that the bill should state clearly that section 12 relates to recalcitrant witnesses rather than to reluctant witnesses. With regard to genuinely reluctant witnesses, the Justice 1 Committee suggested that the Executive provide witnesses with an adequate support package to enable reluctant witnesses to testify.
Another problem with tagging witnesses is this: how do we keep in touch with them? We seem only to be able to track them at home. Any reluctant or recalcitrant witness would be aware of that and would not be at home on the day of the trial. You can take a horse to water, but I am afraid that you cannot make it drink. The way to encourage people to give evidence is to have a better system. The bill proposes such a system and offers better support for witnesses.
Finally, I would like to comment on the proposal to increase the sentencing powers of sheriff courts. In 2001, four out of 10 sentences that were passed by the High Court could, under existing powers, have been passed by a sheriff court. To increase the sentencing power of sheriff courts from three years to five years is a sound proposal. Strong evidence suggests that a guilty plea is much more likely in a sheriff court. That would save considerable court time and—perhaps more important—witness time. Those are not bad reasons for transferring certain cases to the sheriff courts.
The suggestion that judges should take into account early pleas, and that they should state when passing sentence whether consideration of when the guilty plea was made has led them to discount the sentence could also save court and witness time.
The aim of the bill is to improve High Court procedures: it will do just that. It also aims to improve the system for witnesses and it will do that as well. That is perhaps the most important aspect of the bill.
- Marlyn Glen (North East Scotland) (Lab):
I will make use of discussions in committee about understanding time limits and say that I regard the three minutes—now two minutes—that have been allowed to me as an outside limit, not as a target. I mean to concentrate on one aspect of the proposals, so I hope to be able to keep my comments inside the new time limit, in the same way as we would all encourage courts and court services to keep within the time limits that are set out in the bill.
The intention behind the bill is to improve the experience of justice in Scotland. Most people do not come into contact with the law on a day-to-day basis but, when they do, it is essential that their experience is not negative and confusing. It is essential that the lay person's experience of justice is not one of unexplained delays and inexplicable procedures.
To highlight one radical proposal, it seems to me that talk of electronic diaries rings harshly in Parliament hall across the road, where customs go back to a different century and culture; for that reason, we do not have to continue to have them. In fact, the Scottish courts are already changing by embracing new technology including video links, laptop computers and recordings to consider evidence. A culture shift is already happening and the bill's intention is to facilitate it.
As has been said, one of the problems in an increasingly busy environment is delays. Among the recorded reasons for delays are motions to adjourn that are caused by problems with witnesses. Witnesses can be expert witnesses from the police or medical profession, but there has been a concentration on trials' being delayed because of non-professional witnesses' not attending.
I emphasise that it is misleading to divide witnesses into two categories, because we are talking not about a dichotomy but, as in so many other fields, a spectrum. This spectrum has vulnerable witnesses at one end and recalcitrant witnesses at the other. Between the two extremes are many different witnesses who have different problems, which range from fear of intimidation to their not having been properly served notice to appear. I find the label "reluctant witness" to be too broad and inexact for it to be helpful. It is essential that it is made clear that section 12 of the bill relates to recalcitrant witnesses and there needs to be more conclusive evidence on how electronic tagging will improve the situation.
I commend the study of witnesses that was carried out by the University of Wolverhampton: it debunks the modern myths of witnesses' having lives that are too chaotic for them to turn up in court and cites factors such as child care, travel and time off work as reasons for non-attendance of witnesses. That aspect of changing the culture is hugely important, not least because of its effect on public perceptions of the whole justice system. We need to address not just the waiting, but people's not knowing why there is a wait.
- Mike Rumbles (West Aberdeenshire and Kincardine) (LD):
I welcome the opportunity to be the final Liberal Democrat speaker in this short but effective stage 1 debate on the Criminal Procedure (Amendment) (Scotland) Bill. Many good and long overdue reforms are outlined in the bill, one of which is on time limits. I am happy to see that if time limits are breached, the accused will not simply be set free as happens currently, but will be entitled to be considered for bail. Even if bail is granted, the accused will be subject to trial within the 12-month time limit. That is an important improvement that will restore some public faith in the justice system.
I turn to one or two issues about which my Liberal Democrat colleagues and I have serious concerns, some of which have already been highlighted. Our major concern is about holding trials in the absence of the accused. Section 11 of the bill allows a trial to go ahead in the absence of the accused and makes provision for the court to appoint a legal representative in the accused's absence. The committee, and indeed the overwhelming majority of witnesses who gave evidence, also had problems with that provision, not only on issues of principle but for practical reasons.
The Deputy Minister for Justice told the committee that the Executive's intention was to save victims and witnesses from having to go through trials twice. Mike Pringle quite rightly highlighted that issue. The minister admitted that last year 90 people had warrants made out for their recovery because they had absconded, but we are a little unclear about the details around that figure. We believe that important principles are at stake and that accused persons would not get fair trials in absentia. We agree with the Law Society for Scotland and with Lord Rodger that to cite the R v Jones case in England or other European cases is to fail to recognise the substantial differences in criminal procedure between jurisdictions. Many of us on the Liberal Democrat benches are convinced that the proposal, as it stands, is not workable.
However, we see merit in allowing a trial to continue when all the evidence has been led, after identification, after counsel has been appointed and instructed on an on-going basis in response to evidence, and far enough on in the trial that the presence of the accused is not necessary. There is a subtle difference between that and what is proposed in the bill. We look to the Executive to lodge an amendment that will encapsulate that.
I turn to the issue that prompted me to speak in the debate. Having read through the Executive's proposals and the Justice 1 Committee's report, I was struck by the issue of police witness statements. Members might know that I am not a member of the committee and that I therefore speak about the issue from a distance, as it were. However, I was amazed to read that police witness statements are not currently routinely issued to the defence. I first came across the matter last year during my experience of the criminal court system, although I stress that I was taking part as a witness and not anything else. When I gave evidence to the police, I was amazed that the fact that there were several accused persons meant that I had to go over the same evidence many times to different people. I cannot believe that police witness statements are not currently issued to the defence. To do so would save everybody an awful lot of trouble.
On early disclosure of evidence, Lord Bonomy stated that, in order to prepare their cases and advise their clients what plea to tender, defence lawyers need notice of the case that is to be presented against the accused. He recommended that the Crown should routinely issue to the defence a provisional list of witnesses shortly after initiating petition procedures in the sheriff court; that it should provide to the defence information about material developments as they occur in the investigation of events; and that it should provide access to all relevant evidence as it becomes available and provide a copy of the indictment and all documentary productions and other evidence.
As the committee said in its report—I commend the committee for its good work—the bill does not implement the recommendations that were made by Lord Bonomy on the practice of disclosure. The minister commented that we want to retain flexibility in the system, which is fair enough, and the Crown Office has accepted the need for improved disclosure to the defence. Of course, there are degrees of improvement—I would be happy if disclosure were greatly improved and I would be unhappy if it were not. The committee agreed that early disclosure is the key to ensuring early preparation of cases, but was not convinced that a practice note can guarantee delivery of early disclosure.
- The Deputy Presiding Officer (Trish Godman):
You have one minute.
- Mike Rumbles:
Gosh! Time flies.
The committee recommends that the Executive should consider inserting in the bill a provision that would closely reflect Lord Bonomy's recommendation that the Crown should provide to the defence information about material developments in the investigation of the case as they occur, and that it should let the defence have access to all relevant evidence as it becomes available. In this stage 1 debate, I would say that that would be natural justice. The defence needs to know what the charges are and what the evidence is so that it can prepare a proper defence.
This bill is about reforming the system and making it more effective and efficient. As I said, coming to the issue from afar, I commend the committee for its work.
- Miss Annabel Goldie (West of Scotland) (Con):
This has been a useful debate, even if it has been held under unfortunate time constraints. We would all agree that the administration of criminal justice in Scotland has, in recent years, become a field that is increasingly strewn with boulders and that among the significant boulders are, undoubtedly, the problems of delays, adjournments and lack of preparation, to which numerous speakers have referred, including the minister, Michael Matheson, Pauline McNeill, Margaret Mitchell, Bill Aitken and others. That issue is at the heart of the embryonic formation of the problems.
The bill tries sensibly to address some of those issues. The mandatory preliminary diet is sensible but, if that diet is sensible, it is my view that the managed meeting is absolutely critical. Nothing will focus the minds of the accused and his law agent more than a fixed trial date: lawyers and accused persons are human beings and—unless they are aware of when the sword of Damocles might fall—they are unlikely to consider with urgency when preparations should be made, when thought should be given to certain matters and when questions should be asked.
Critical to how we address the matters of preparation and early disclosure is a change of attitude on the part of the Crown Office and Procurator Fiscal Service. I was having a look at the increased volume of work in the High Court between 1995 and 2001, which saw an approximately 23 per cent increase in new indictments. That increase is significant, but I say to the Lord Advocate that it is not formidable; it is no more than many other organisations have had to cope with. In coping with such increases, those organisations have had to consider their procedures, management, technology and so on and they have had to think about how they can better progress and more swiftly process their business. The Crown Office and Procurator Fiscal Service is no different and issues that relate to such aspects need to be considered.
I have a lot of sympathy for early disclosure's being included in a mandatory framework. I have an uncomfortable feeling that a code of practice might prove to be a limp directive—again, the matter is about focusing minds and making people who are crucial to the provision of this vital service for society realise that there are specific checks and balances that must be observed.
Capacity is another boulder. The High Court has been under strain and it may be that, in theory, transfer of business to the sheriff courts is the way forward. I do not disagree with that in principle, but the biggest boulder of all would then roll into place. That boulder is resources. Without significant resources, the transfer of business simply will not work. Pauline McNeill and Bill Aitken spoke eloquently to that point.
Although I accept that the bill genuinely seeks to get some of the boulders out of the field, it is important that we do not crush healthy activity in the process or—which would be equally alarming—deposit other rubble in place of the boulders that we remove. I will consider one or two of the bill's specific proposals. I have concerns about the proposal to allow those who are refused bail to apply for bail while they are electronically tagged. It seems to me that an individual who has been refused bail and who has been deemed to be a danger to the public will be a danger with or without a tag.
Like Mike Rumbles, I am concerned about the provision to allow a trial to go ahead in the absence of the accused. Important principles are at stake and there is a grave danger that the accused would not receive a fair trial in his or her absence. I also have difficulty with the plans to force judges to give discounts for early guilty pleas. Again, that might be a sensible proposal, but surely it is watered down by the current system of automatic early release. If offenders know that they will get early release, they might be less likely to plead early because they will not serve the full sentence that is handed down by the court.
I turn to one of the most significant areas that is at risk and which is in danger of being crushed under the bill; that is, the removal of the 110-day rule. I understand that Lord Bonomy found that only 25 per cent of cases require extensions to the 110-day rule, which does not seem to me to justify abolition of the rule; it means, rather, that 75 per cent of cases proceed timeously under the current arrangements. It seems to me that with early service of the indictment, managed meetings and preliminary diets can be adjusted to cope with the procedure. Colin Fox made that point well. I say to the Executive only that the 110-day rule is one of the most valued and respected embodiments of our criminal justice system in Scotland. Fairness to the accused is vital and it seems to me to be illiberal for an innocent accused person to be detained for longer than is necessary. I must say that the proposal is regrettable and that I have not heard any compelling argument that justifies removal of this essential safeguard: I do not think that there is any problem that cannot be addressed intelligently by other mechanisms. We would thereby retain something of which we should be proud. The 110-day rule is an important component of safety for the accused in our criminal justice system.
That said, the bill offers a variety of mechanisms that will improve the administration of justice in Scotland so—subject to my earlier comments—I endorse and welcome its general principles.
- Nicola Sturgeon (Glasgow) (SNP):
Like every other speaker in the debate, I think that there are many sensible provisions in the bill—in fact, I consider most of them to be basic common sense. In time, if not immediately, they have the potential considerably to speed up justice and to deliver a much better system for the victims of crime and those who are accused of it.
However, certain things have to happen if the bill's intentions are to be translated into practice. First, as Annabel Goldie and others have said, clear rules on early disclosure of information by the Crown to the defence are vital. I share Mike Rumbles's disappointment that Lord Bonomy's proposals have not been translated into the bill. That is a missed opportunity that the Executive might care to correct at stage 2. It is important to reflect on the fact that although the vast majority of motions to adjourn trials are made by defence agents, those motions are more often than not necessitated by the Crown's late preparation or late delivery of productions and lists of witnesses. The early disclosure rules are crucial to the bill's successful operation.
I support in principle mandatory preliminary diets, but I inject a note of caution. As Stewart Maxwell said, the preliminary diet's success will depend on two conditions. It is obvious that the parties to the case will have to be prepared for the trial to proceed when the preliminary diet takes place, but the preliminary diet will also depend to a great extent on judges' willingness to be more proactive and hands-on in managing cases. We all know that, but perhaps we should not take it for granted that it will happen when the bill comes into force. More effort might be needed to ensure that it happens.
Intermediate diets in sheriff court summary trials, of which I have limited experience, have not always speeded up the progress of cases. If preliminary diets are supposed, roughly speaking, to perform the same function, it will do no harm to examine practice and to learn lessons, if there are lessons to be learned, from the operation of intermediate diets in sheriff courts.
I have three concerns, all of which other speakers have talked about at length. The first is the extension of the 110-day rule. I note from the Justice 1 Committee's report that several witnesses—Michael Matheson mentioned the Law Society of Scotland and the Scottish Human Rights Centre—and the committee had reservations about the extension. Like Michael Matheson, I share those reservations. I accept that the committee decided on balance to support the extension but, like Margaret Mitchell, I retain a lingering doubt that a bill that is intended to speed up the administration of justice is no place for a measure that will extend time limits. However, rather than argue about 110 days versus 140, I will comment on a potentially more fundamental concern, which others have touched on and some have approached from different perspectives.
I agree that when a time limit is breached, the result should not be that the accused gets off scot free; I think that everybody would agree with that. However, I believe equally that it is fundamental that we have a maximum time for holding any accused person in custody awaiting trial. The bill does not guarantee that time. I share some of the concerns that Colin Fox expressed. When the 140-day rule or the 80-day rule is breached, the accused has the right to apply for bail. However, as Pauline McNeill said, that does not mean an automatic right to bail—it is a right to make an application, which can be opposed and denied. The Crown can instead apply for the 140-day rule to be extended. The length of an extension and the number of applications for extension are unlimited so, in theory, accused persons could be held in custody awaiting trial for very long periods. That involves an issue of principle and I ask the deputy minister not only to comment on it during summing-up but to reflect further on the point.
I will touch on the increase in sheriffs' sentencing powers, because I welcome Cathy Jamieson's comments on that. Like Pauline McNeill, I am concerned not about the principle but about the practicality of increasing sheriff courts' work loads. I echo the committee's concern about early implementation and the risks of progressing with the change before we know what Sheriff Principal McInnes is likely to recommend at the opposite end of the sheriff court scale. I welcome the minister's commitment to take the matter away and to reflect on it further. That is an important concession.
The final area to touch on is the one that has, surprisingly, proved to be the most controversial, which is trial in absence. It is surprising to me because the measure would impact on so few people but, in the same way as others—particularly Bill Butler—I think that the issue is one of principle. I also note that various witnesses have expressed concern. I have mulled the matter over and my view is that no matter how worthy the intention—I accept that it is worthy—trial in absence would be practically difficult if not practically impossible, except perhaps in cases in which all the evidence has been led. The committee made that point.
The evidence of the Law Society of Scotland and solicitors on that issue is particularly compelling. I cannot imagine the circumstances in which any solicitor anywhere in Scotland would agree to represent and conduct a trial on behalf of an accused person who was not present. The issue is one of principle, but there is also a serious issue of practicality that the Executive must consider.
The bill should be welcomed. That said, there are issues of principle and practicality that require further consideration. I hope that the Executive will now reflect on some of those points before we move to stage 2 consideration of the bill.
- The Deputy Minister for Justice (Hugh Henry):
This has been a good, albeit unfortunately short, debate on a bill that represents significant progress and will make the most fundamental changes in 20 years to our solemn criminal procedure.
People have used the term "foundation stone" in relation to certain aspects of the justice system. The bill is important because it lays the foundation stones for building a safer and stronger Scotland. It is critical that we restore public confidence in our judicial system and ensure that the needs of victims and witnesses are given due weight and proper consideration. Unfortunately, those needs are sometimes overlooked and neglected.
I have been heartened by many of the constructive comments made by members of the Justice 1 Committee, who did a power of work in considering a complex proposal, as well as by other members who have come relatively fresh to the debate. There is a shared will in the Parliament that justice should be improved and delivered. Everyone wants us to have a system that can work well in practice.
I am also heartened by the fact that the emphasis of the debate has shifted since first we made our proposals. People have started to acknowledge some of what is being suggested and to recognise that Lord Bonomy has proposed sensible measures that can make a practical difference to dealing with some of the delays and other problems that plague our High Court.
Public confidence is eroded when cases are repeatedly put off, when people give up their valuable time to turn up and are then sent away, when people have to wait an inordinate length of time for justice to be considered, never mind delivered, and when people have to psych themselves up to come to court—a difficult experience for many—only to have to go through that traumatic experience not once or twice, but perhaps three, four or five times. That is a disgrace, because it puts people off the justice system and diminishes their ability to contribute to it. Those are issues that we have to address.
We are also trying to deal with issues such as witnesses not turning up. People who fail to turn up are trying to avoid playing their part in the justice system, sometimes because of fear and intimidation, but sometimes in a deliberate attempt to thwart justice. I will return to that issue later, but I remind members that there are people who, at a very late stage in the process, abscond in order to prevent justice from being delivered. We want to tackle all those matters.
We also want to change the adjournment culture in the High Court, to which several members referred. We want to make that culture a thing of the past by creating a degree of certainty that trials will proceed. We will strive for that as a key objective. A number of measures will be part of that process—I have not time to go into the details of those today, although we will return to some of the issues at stage 2—but judicial management of cases is an important one. Several members referred to the significance of the preliminary hearing and of having fixed trial dates that are set by the judge. We also want to give the accused the opportunity to plead at a point before trial, as a number of members suggested.
Perhaps it is for those reasons that many people have now generally been persuaded of the merits of our proposed changes to the time limits. However, I recognise that the formidable combination of Colin Fox, Bill Aitken, Annabel Goldie and Margaret Mitchell—it would be a brave person who would take on such a combination—may be the reason why Nicola Sturgeon was having second thoughts even at this late stage. Even though we are faced by such formidable opposition, I think that we are doing the right thing, as many members have recognised.
The provision for trials in absence of the accused has probably been the most contentious issue. As members have indicated, we do not expect many such trials, but we recognise that trials are sometimes postponed because the accused does not turn up at all or because, in some cases, the accused flees justice either at an early stage during the trial or, occasionally, at a very late stage. Mike Pringle graphically described one case in which the accused absconded during the last weekend of the trial. Not only did that have a huge impact on a large number of witnesses, but it left two young people exposed to the possibility that they might be required to go through the whole traumatic process again. The accused absconded after all the evidence had been led.
- Mike Rumbles:
There is a large measure of agreement on the particular point that the minister makes, but people are a little more concerned about a complete trial in absentia.
- Hugh Henry:
I welcome that agreement. I think that there is still a case to be made for the broader measure, although we will give consideration to several of the points that have been raised. In the interests of justice not only for the accused but for witnesses and victims, these issues need to be given proper consideration. We cannot allow one individual to undermine the whole justice process at a very late stage in the trial.
The tagging of witnesses was also mentioned. Marlyn Glen and others highlighted the need to distinguish between reluctant and recalcitrant witnesses and we will reflect on that. However, the aim of the bill is to allow the tagging not of victims who are just reluctant to give evidence but of people who potentially face jail if they refuse to turn up and give evidence.
I think that there has been some misunderstanding of the disclosure issue. A number of members claimed that the Executive has departed from Lord Bonomy's proposal. Paragraph 7.7 on page 36 of Lord Bonomy's report states:
"The normal rule should be that intimation of all material to be used by the Crown at the trial should be given to the defence with the indictment."
However, he made no recommendation about disclosure. He said only in recommendation 2(c) that
"The Crown should also provide to the defence information about material developments in the investigation of the case as they occur, and let them have access to all relevant evidence as it becomes available."
In fact, the Crown is going further—it is proposing to disclose witness statements, to which the defence would not be entitled under our current procedure. We are not departing from the Bonomy report, but are proposing to go further.
I will deal quickly with Stewart Maxwell's point about the need to establish a working party. Discussions between the Crown Office and Procurator Fiscal Service and the Association of Chief Police Officers in Scotland are on-going and we should wait to see what those deliver. However, we are doing what a working party would expect to be done. I am not sure that a working party is needed when that is happening.
I have run out of time and must conclude. This has been a good debate and some valid and forceful points have been made. I appreciate the wide support and welcome that have been given to the proposals. Before stage 2, we will reflect on the specific points that members have made. However, like Cathy Jamieson, I am heartened by the support that exists and the chamber's intention and desire to modernise our justice system and to advance a set of proposals that we think will make a considerable difference.