Contents
- Scottish Parliament Justice 1 Committee Wednesday 10 March 2004 (Morning)
- Justice (Northern Ireland) Bill
- Criminal Procedure (Amendment) (Scotland) Bill: Stage 2
- Rehabilitation Programmes in Prisons
Criminal Procedure (Amendment) (Scotland) Bill: Stage 2
While we wait for the Deputy Minister for Justice to join us for item 2, I am afraid that I have to make a rather long-winded announcement. Trust me—this is the shortened version. As this is the first day of stage 2, I will make as clear as possible the roles that we will play in the process. As convener, I will ensure that everyone speaks at the right time, so members should not worry too much.
Amendments have been grouped to facilitate debate, but the order in which they are moved is dictated by the marshalled list. Members will need to refer to the groupings and the marshalled list and should note that we cannot deviate from the order on the marshalled list—once we have moved on, we cannot go back.
Sometimes, because of the way in which they are constructed, it is difficult to group amendments in the way that we would want to debate them. I intend to ensure that we debate both aspects of the complex amendments in the second group. I wanted to split some of the groupings more, but matters are complicated when we vote on amendments, so I agreed to the groupings that are before members. Notwithstanding what I said, there will be one debate on each group of amendments. Members may speak to their amendments if they are in the group, but there will be only one debate on each group.
I will call the lodger of the first amendment in the group, who should speak to and move the amendment. If that member does not want to move the amendment, he or she should simply say, "Not moved". If the amendment is moved, I will call other speakers, including those who have lodged all the other amendments in the group. Please note that members should not move other amendments in a group at that stage; I will call members to move amendments at the appropriate time. Other members should indicate their wish to speak in the usual way. The Deputy Minister for Justice will be called to speak on each group.
Following debate, I will clarify whether the member who moved the first amendment in the group wishes to press it to a decision. If not, that member may seek the committee's agreement to withdraw the amendment. If it is not withdrawn, I will put the question on it. If any member disagrees, we will proceed to a division by a show of hands. I will ask members to ensure that their hands are in the air, as we must count and record the votes, which takes a few seconds.
After the committee has debated amendments, it must decide whether to agree to each section of or schedule to the bill to ensure that we have covered every aspect. If members want to vote against a section, they must lodge an amendment to delete that section. Strange as it may seem, that is the parliamentary procedure.
If there is disagreement on any question, we will go straight to a vote. Please note that any members who choose to leave proceedings for whatever reason do so on the understanding that proceedings will continue in their absence and that divisions will not be held back for their return.
Monday's business bulletin said that the committee would not go beyond the end of section 11 today. I do not intend to go beyond section 10, but members will see from the groupings that we might not get that far anyway. I propose that we continue until about 12:15, as we have other business.
Before section 1
Amendment 80 is grouped with amendments 80A, 80B, 80C and 106.
I hope that amendment 80 is not contentious. I expect it not to be, on the ground that its purpose is to bring into the debate the recommendations that the committee took during discussions for the stage 1 report, paragraph 40 of which states:
"The Committee believes that the managed meeting is an integral part of the process and that it should be mandatory."
As laid out by the Executive, the bill will not make the managed meeting mandatory. The committee made that recommendation in order to ensure that the managed meeting was part of the bill. The evidence that we took from individuals associated with the High Court and various professional groups indicated the importance of, and the emphasis that was placed on, managed meetings' being carried out to an appropriate standard and covering several issues.
We also discovered from evidence that if managed meetings are carried out properly, and the evidence that is taken and the ideas that are discussed at them are recorded properly, that will lead to a smoother passage for the preliminary hearing and the rest of the process. Easing the process for witnesses and victims is central to the bill, so it is important that managed meetings are not seen as an adjunct or side issue and put aside while we hope for the best.
I hope that the committee agrees with my interpretation of the evidence that we took. I also hope that it will support the recommendations in the stage 1 report, agree that the managed meeting is central to the success of the various measures that follow on from it—particularly the preliminary hearing—and that members will support amendment 80.
Amendment 106 is a consequential amendment. If amendment 80 is passed, amendment 106 will also have to be passed to include managed meetings in the long title.
I have no problem with amendment 80A.
Amendment 80B seeks to change my amendment 80—which suggests "3 days" as an amendment to the original bill, which said "2 days"—and to increase the number of days to five. I have no great concern about that. I was seeking to change it from two days to three to give time for the managed meeting to occur and for the written note to be compiled before the two-day deadline. If members think that five days would be more appropriate, I do not mind.
That is all that I need to say on amendment 80. I hope that the committee supports it. We took evidence on managed meetings, which will be crucial to the success of the bill and its component parts.
I move amendment 80.
On amendment 80A, if we are considering the principle and culture of early disclosure, rather than working to deadlines, the idea is to hold meetings as soon as possible, but only when people are prepared, which is the reason for my amendment to Stewart Maxwell's amendment 80. I agree with amendment 80 because everything in it is vital to the success of the bill. The managed meeting should not be an adjunct; it should be an integral part of the bill.
Amendment 80B follows on from that. Having five days before the preliminary hearing would give all parties the opportunity to address any outstanding issues at the managed meeting. That is a reasonable timescale and I am pleased that Stewart Maxwell is happy to support that amendment.
I move amendment 80A.
I will speak to amendment 80C and the other amendments in the group. It can be a bit awkward when the person who convenes the meeting also speaks to amendments, but I will not ask Stewart Maxwell to take the chair because he has many other amendments that he wants to speak to. It is best that I just continue as convener and speak to my amendments briefly.
Perhaps I made a bit of a mess of amendment 80C and it is not really what I intended. Stewart Maxwell was right to point out that the committee was keen that there should be a reference in the bill to the managed meeting. Our stage 1 report suggested that information such as who took part in the managed meeting and the date and time at which it took place should be recorded. Therefore, I fully support subsection (3) of proposed new section 71A that amendment 80 would introduce in the Criminal Procedure (Scotland) Act 1995. Subsection (3) states:
"A written note shall be kept of the managed meeting".
That is in line with our stage 1 report. My intention in amendment 80C was to ensure that the written record would include a reference to the managed meeting, including the information that is specified in subsection (3).
However, although I want the bill to require the recording of some information about the managed meeting, my difficulty with the first two subsections of Stewart Maxwell's amendment, and with the position that Margaret Mitchell has taken, is that I think that the bill should not be so prescriptive as to specify the number of days within which the managed meeting must take place. I am quite happy with about three quarters of amendment 80, but I feel that some of it is too prescriptive.
I echo the convener's support for part of amendment 80. However, specifying details in the bill such as the number of days within which the meeting should take place is far too inflexible and prescriptive. Therefore, amendment 80 is a bit like the curate's egg. I would have been much happier if we had had an amendment that merely required that the note of the managed meeting should state who was party to the meeting and the date and time of the meeting. Such an amendment could have been accommodated, but that is not what we have before us. On that basis, I am afraid that, unfortunately, amendment 80 is not the most appropriate in the circumstances.
I understand fully the points that members have made. The bill's underlying policy intention is to encourage better and earlier communication between practitioners, but we recognise that there will be occasions when face-to-face meetings between the parties might not be possible. The important thing is that the parties discuss the issues in the case; they should agree any evidence that is capable of being agreed, decide which witnesses they would require if it is necessary to proceed to a trial, and agree on any plea of guilt that might be tendered. Much of that can be done by telephone, fax or e-mail, without the parties necessarily having to meet face to face. We do not think that a formal requirement for a face-to-face meeting in every case, as amendment 80 and the amendments to it would provide, is necessary.
The time limit for lodging the written record, which is two days before the preliminary hearing, will afford the parties involved the maximum time to prepare and discuss the case. We do not think that it is necessary to impose any further time limits. We think that the matters to be reported on in the written record, and the form and content of that record, are better decided by the court and by those who practise in the courts. That is why the bill provides that the requirements in relation to what has to be reported or what has to be in the written record are to be contained in an act of adjournal; they may then be amended quickly and in the light of experience.
We share the aspirations that have been expressed and believe that many of the amendments in the group have been driven by the best of intentions, but we worry that they could create inflexibility and unintended difficulties. We subscribe fully to the notions of forcing those concerned to co-operate and effecting justice more speedily and more efficiently. We believe that the use of an act of adjournal, which provides the potential to hold discussions with the relevant parties, will enable changes to be effected more quickly if that is required. We believe that the suggestion of including the requirement in the bill, which would need subsequent primary legislation to amend it, would not act in the direction in which we all want to move.
We support the intentions behind the amendments in the group, but believe that the best way to achieve those intentions is through an act of adjournal. We worry that agreeing to the amendments in the group would create a rigidity or inflexibility that could give rise to adverse effects.
You understand where the committee is coming from, in particular the mover of the lead amendment, Stewart Maxwell, who is trying to reflect the committee's position. Concern was expressed about how it would be possible to ensure that the managed meeting actually took place, if there was nothing to that effect in the bill.
We believe that the proposals involving the act of adjournal would ensure that the meeting happened. After stage 2, I will be happy to communicate with the committee to set out more specifically how the arrangements will work.
We would need a written record, to which reference has been made in the bill. That aspect, therefore, is already covered. If further clarification is needed, I will set it out in a letter to the convener, explaining exactly how we think things should operate. Some of our worries have been articulated by committee members, but we have other worries that, if we were to agree to the amendments in the group, we would not achieve the desired effect.
Does that mean that the Executive would not consider putting anything along those lines in the bill?
Anything that goes in the bill must be sufficiently vague as to avoid arguments about prescription. Things might need to be discussed around the act of adjournal and how it might operate, but the attractions of using an act of adjournal are the speed in which changes can be made, the flexibility and the potential for engaging all the relevant parties in making changes. The worry about including something too prescriptive in the bill is that it would take time and would be dependent on finding suitable legislative slots if changes needed to be made subsequently.
For clarification, the issue is the managed meeting.
Are you not talking about the act of adjournal?
The act of adjournal in relation to the written record.
Yes.
I am asking whether you would consider putting anything in the bill that relates to the managed meeting. We do not have any information about what the written record will include. We do not know whether the written record will include a reference to the managed meeting. The problem is that, on the basis of the evidence that we have heard, we do not think that the written record will include any reference to the managed meeting. There is nothing about that in the bill. How can we ensure that the parties will have that meeting?
I presume that the written record will force the parties to have a meeting. The written record will record what is said at the meeting. The requirement for a joint record presupposes discussion. I am struggling to think what we could put in the bill that would clarify matters. I am quite happy to write to you, after stage 2, explaining how we envisage the system operating. However, leaving aside some of the broader issues, the amendments would cause more problems than might be anticipated.
I hear what you are saying, and I note your promise to write to the convener, but I wonder whether you could reflect on what members have said. We wish the Executive to consider putting something in the bill that would be sufficiently vague, to use your word—although I would prefer the word "flexible", or even "robust"—and which would not fall into the trap of being over-prescriptive. I agree that amendment 80 is too prescriptive and inflexible. I am not asking you to come up with something right away; however, could we have an assurance that you will reflect on what the committee has asked of the Executive and reconsider the issue?
I am more than happy to reflect on the comments that have been made and on the aspirations that the convener, Stewart Maxwell and Margaret Mitchell have outlined in their amendments. If we think that something can be added to the bill that would help to clarify the matter, strengthen the bill and achieve what is intended, we will do that. We will also reflect on how we think that those aspirations can best be met and we will return to the committee with some suggestions well ahead of stage 3, to allow the committee to draw its own conclusions. However, at the moment, we are not persuaded that what has been suggested would be the best way of achieving what is intended. We believe that what is set out in the bill and what I have described is a better way. Nevertheless, I am quite happy to give Bill Butler the assurance that he seeks.
I thank the minister for his comments. The evidence that we have received shows clearly that people often work to deadlines, although we are trying hard to change that culture and to have early disclosure. Including the managed meeting in the bill would flag up the fact that the meeting must take place to achieve that culture of early disclosure. For that reason, it is imperative that the provision is included in the bill and I hope that the minister will reconsider doing so.
The minister said that he thought that amendment 80 was prescriptive but, in many ways, that might be a good thing. Its purpose is to ensure that as soon as the indictment is served, all parties focus firmly on the managed meeting, get their thoughts together and sort out unresolved matters. They will then have a reasonable timescale in which to ready themselves for the preliminary hearing. I hope that, with such an approach, the hearing itself will not continue a culture of adjournment but will find people in the best possible state of preparedness, ticking things off and resolving matters.
I cannot emphasise Stewart Maxwell's comments enough. This issue is crucial to the success of reforming the situation with delays in the High Court.
The question is, that amendment 80A be agreed to. Are we agreed?
No.
There will be a division.
For
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Against
Butler, Bill (Glasgow Anniesland) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Pringle, Mike (Edinburgh South) (LD)
The result of the division is: For 3, Against 4, Abstentions 0.
Amendment 80A disagreed to.
Amendment 80B moved—[Margaret Mitchell].
The question is, that amendment 80B be agreed to. Are we agreed?
No.
There will be a division.
For
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Against
Butler, Bill (Glasgow Anniesland) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Pringle, Mike (Edinburgh South) (LD)
The result of the division is: For 3, Against 4, Abstentions 0.
Amendment 80B disagreed to.
Amendment 80C not moved.
Members have raised a number of points about amendment 80. I am sure that they understand that the amendment seeks to bring to being the committee's wishes as expressed in the stage 1 report and in our discussions about the evidence that we received. I am glad that members have no problem in accepting the latter half of the amendment, and I will not discuss it any further.
As for the first half of amendment 80, the minister said that a managed meeting would have to take place. The committee's stage 1 report recommended that there should be a presumption that face-to-face meetings will take place wherever possible. Subsection (2) of proposed new section 71A of the Criminal Procedure (Scotland) Act 1995 says:
"The prosecutor and the accused's legal representative shall normally attend the managed meeting in person."
Although the wording attempts to make explicit the presumption that face-to-face meetings will take place, it does not make such a presumption prescriptive or inflexible. Instead, it allows meetings that are not face to face to take place. I believe that such an approach matches the committee's intention in this regard.
It is a matter of opinion whether the amendment's terms are inflexible. However, I point out that many of the bill's provisions are inflexible. In fact, the bill forces people to do lots of things. For example, in section 2, subsection (2) of proposed new section 72E of the 1995 act says:
"The prosecutor and the accused's legal representative shall, not less than two days before the preliminary hearing, jointly lodge with the Clerk of Justiciary a written record".
That provision fixes a two-day period in the bill. Given that the written record has to be submitted two days before the preliminary hearing, it seems entirely reasonable—and eminently sensible—to establish a deadline by which the managed meeting must take place to allow time for the written record to be composed and submitted to the court. I neither understand nor accept why it is seen as entirely reasonable to fix a period for certain measures, but not reasonable to allow an amendment that seeks to fix a period to fit in with the bill's existing provisions. I think that that is an entirely reasonable step.
The minister said that, as we will not be able to amend the bill's provisions without primary legislation, it would be more appropriate to use an act of adjournal. I said at the very start that I feel that this issue is so important that it should be included in the bill. Section 21 contains the option to amend sections of an act through statutory instruments that might be laid under the affirmative procedure. Such an approach seems entirely reasonable and appropriately speedy and it would preserve the parliamentary scrutiny of any changes to such an important measure.
The option to use statutory instruments to amend the provisions gives flexibility and allows parliamentary scrutiny. There is already inflexibility in the bill in that it has fixed deadlines and dates for the number of days in which things must be done. Therefore, it is appropriate that amendment 80 should also seek to do that. Amendment 80 seeks a presumption in favour of a face-to-face managed meeting. I believe that the amendment's wording expresses that intent clearly. Amendment 80 does not say that there must be a face-to-face meeting; it attempts to make that the presumption. The desire for that to be the presumption was clear in the evidence that we received. Therefore, I hope that committee members accept what I have said, look back at the stage 1 report and its recommendations, think about the evidence that we received from a range of professionals and support amendment 80.
The question is, that amendment 80 be agreed to. Are we agreed?
No.
There will be a division.
For
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Against
Butler, Bill (Glasgow Anniesland) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Pringle, Mike (Edinburgh South) (LD)
The result of the division is: For 3, Against 4, Abstentions 0.
Amendment 80 disagreed to.
Section 1—Preliminary hearings
Amendment 81, in the name of Margaret Mitchell, is grouped with amendments 82 to 88 and 93 to 105. Before we go any further, I point out to members that a number of pre-emptions are involved in this group of amendments: amendment 93 pre-empts amendment 94; amendment 95 pre-empts amendments 96, 97 and 98; amendment 96 pre-empts amendment 97; amendment 99 pre-empts amendment 100; and amendment 103 pre-empts amendments 104 and 105. Pre-emption means that if the first amendment is agreed to, the other amendment or amendments cannot be called. That is all clear.
The basis of amendment 81 is the retention of the 110-day rule. Amendment 81 would provide for preliminary hearings in custody cases to be held 15 days after indictment. I believe that that is of fundamental importance. The Scottish legal system has an initial presumption of innocence, so I believe that it is unacceptable for anyone to be held in custody for longer than is necessary. For centuries, the 110-day rule has ensured that that did not happen. Amendment 81 seeks to hold the preliminary hearing within 15 days, which would allow for that rule to remain in place.
I believe that what amendment 81 proposes would aid the culture for early disclosure that we are desperately trying to encourage. Rather than people working to last-minute deadlines, we want matters to be dealt with as soon as possible. We want the focus to be on what can be resolved as soon as possible and we want meetings to be held as early as possible to dispose of such matters.
Basically, I lodged amendment 81 as a result of our evidence taking. I have not been persuaded that there is a need to change the 110-day rule. If the culture of early disclosure is embraced by all of the parties concerned, I believe that it will still be possible to fit comfortably within the timetable. It will be possible to have the preliminary hearing within 15 days and still have sufficient time to set a fixed trial date within 110 days. The other amendments in my name in the group are consequential to amendment 81.
I move amendment 81.
The amendments that I have lodged in this group, which are amendments 93, 96, 98 and 99, were lodged for the purposes of clarity in respect of the new provision under which an accused is
"entitled to be admitted to bail".
Committee members know from experience that the bill is complex and hard to understand. I want to ensure that, for the purposes of the parliamentary debate, we understand the changes in respect of a breach of the time limits. As we said in our committee report, the bill will make a dramatic difference to the rights of the accused when a breach of time limits takes place.
Section 9(5) amends section 65(4) of the 1995 act by substituting the words "liberated forthwith" with the words
"entitled to be admitted to bail".
On first look at section 9(5), the substitution appears to give an automatic right to bail. The policy memorandum to the bill says
"The Bill provides for an accused to be entitled to bail if the 80, 110 or 140 day limits are breached but the Crown will still be entitled to prosecute providing the trial starts within 12 months of the first appearance on petition before the sheriff."
That gave the committee the impression that breach of the time limits automatically entitled the accused to bail.
The explanatory notes to the bill say that section 9(5) amends section 65(4) of the 1995 act so as to
"provide that an accused may not be detained by virtue of the warrant committing him or her for trial for a period of more than 80 days without an indictment having been served and that where it is not served he or she shall be entitled to be admitted to bail."
The notes go on to state:
"The present time limit is that a trial must commence within the 110 day period. In addition, the subsection amends the present provision by giving the accused an entitlement to bail if these time limits are not complied with."
In our report, we said:
"The Committee understands that this does not mean that the accused will necessarily be released"
if a breach of the time limit has occurred. If the court does not extend the time limits, it must
"release the accused on bail. However, the Crown will still be entitled to have its say on any conditions that may be attached to bail."
I am trying to establish whether the new provisions give an automatic right to bail if the time limits are breached. I also want to get on record what the process is if the Crown either fails to apply for an extension to the time limits or is refused an extension to the time limits.
My understanding, which could be wrong, is that the accused will be brought before court, although I am not sure whether there will be a hearing. I want to be clear about whether the Crown can oppose bail or whether, at that stage, the Crown simply argues for conditions to be applied. I should point out that, as the sole ground for an extension to time limits is cause shown, which considerably slackens the process, it appears that the Crown will be much more likely to have time limits extended. I want to be clear about what the rights of the accused are when such time limits are breached.
All the amendments in my name in this group mean the same thing in effect. They are essentially probing amendments so as to get some clarity in the debate.
I wish to comment on the amendments in the name of Margaret Mitchell, which would retain the 110-day rule, as opposed to the 140-day rule. I sympathise with the concerns that she has expressed. When I first considered the bill, I was opposed to the change to the time limits. However, it is important that the bill is considered as part of a package of measures, and I do not think that it is possible for the 110-day rule to fit in with the package of measures in the bill, which include the preliminary hearing. Therefore, I do not think that it would serve the High Court system well for us to retain the 110-day rule. It is because of the benefits that will be gained from the overall package of measures that the 110-day rule should, I believe, be changed to a 140-day limit.
However, I think that it is important to have a culture whereby prosecutors view the 140-day limit as the outer limit. They should be working to achieve trials within that period, rather than working to the 140-day limit. I would hope that as many cases as possible can be brought before the courts well within the 140-day limit. It is important that ministers ensure that the Crown Office is provided with the necessary resources for that. There needs to be a culture change that will ensure that trials are brought before court as early as possible.
I will address the matter of the effect of breaching the time limits. The purpose of my amendments is for there to be a further 30 days in which the accused may apply for bail, should the 110-day limit be breached. If bail had not been granted by the 140th day, the accused would automatically be liberated, although they could still be brought to trial within 12 months. If the retention of the 110-day limit, which I propose, is not accepted, then amendment 81 would be to the effect that, if the 140-day limit is breached, the accused should be liberated, although they could come to trial within 12 months. I hope that that clarifies the intention behind my amendments.
My amendments are based on the assertion that an accused person should not be held in custody any longer than absolutely necessary, on the presumption of innocence. The 30-day period in which they are entitled to apply for bail, but when they may still be kept in custody, is in line with what many members have already accepted in extending the 110-day rule. I hope that my proposal would be acceptable in that regard. I believe that it is not acceptable to go beyond 140 days, so automatic release should kick in at that point, with it still being possible to bring the trial within 12 months.
The advantage of that approach is that there will be a clear record of the stage that the accused has reached and of the stage at which the process has either worked or fallen down. Accountability is therefore strengthened by my proposal.
As Michael Matheson has said, the proposal that is set out in amendment 81 is to some extent unworkable. Indeed, it strikes at the heart of the bill itself. The proposed changes in the bill are fundamental and, if amendment 81 were agreed to, it would effectively remove everything that is critical to its success.
The bill contains a package of measures proposed by Lord Bonomy that would be workable with regard to defence preparation and trial planning. Before I go into any more detail on that point, I should address Michael Matheson's other comment about the way in which prosecutors might perceive the time limits and the need to encourage people to move before those limits are reached. The changes to and huge additional investment in the Crown Office and Procurator Fiscal Service reflect our commitment to that very principle. There have been changes in culture and methods of working, more staff have been employed and other structural changes have been introduced. All that is part of a process to ensure that the judicial system works more efficiently and effectively. As a result, I give Michael Matheson the commitment that we will work with the Crown Office to ensure that some of the changes in culture and attitude that he seeks are delivered. However, I must in all fairness put on record the fact that many of those changes are already taking place and that, overall, there has been a significant change in the service.
Although Margaret Mitchell's amendments in this group represent an attempt to retain the preliminary hearing as proposed by Lord Bonomy, they seek to have the trial within 110 days instead of following his proposal to have a preliminary hearing within that time and a trial within 140 days. The purpose of a preliminary hearing is to allow parties to indicate to the court their state of preparedness. They require to have discussions and to lodge a written record of those discussions. For the preliminary hearing to be meaningful, the defence must have adequate time to prepare and the current timescale is inadequate in that respect. That is why the present period of 29 days was applied to the preliminary hearing and we would argue that a timescale of 15 days, as proposed in amendment 81, is unrealistic if people are to comply with the bill's provisions.
One of the bill's key objectives is to ensure that parties are fully prepared for trial and that trials proceed on the date that the court sets. That will create greater certainty for victims and witnesses, reduce the unacceptable level of adjournments and provide victims and witnesses with the comfort that a fixed date has been set for a trial. The retention of the 110-day time limit as proposed in the amendments would jeopardise that package of measures. The proposals in the bill retain an accused's right to have a hearing within that timescale while allowing adequate time for preparation and therefore greater certainty that trials are ready to proceed on the date that has been fixed.
The bill amends the 1995 act's provisions on the breach of custody time limits. Under the current law, when the 80-day limit is breached, the accused must be liberated but can still be prosecuted. However, if the 110-day limit is breached, the accused is liberated and cannot be prosecuted. The consequences of such a provision are perverse as far as victims, witnesses and the public interest are concerned. Liberation means just what it says—the accused is unconditionally free for ever. The bill seeks to address that by providing that if the limits are breached, the accused will be entitled to be admitted to bail. That firmly places the onus on the Crown to bring the accused before the court to rectify the situation by seeking an extension of the time limits. Only where the time limits are not extended will the accused be entitled to be admitted to bail.
Perhaps I should expand on that point. I am quite prepared to come back and give further clarification and assurances to the committee, because the concerns that you raise, convener, are real.
Amendment 93 would require the accused to apply for bail. Our policy is that no requirement should be placed on an accused to apply for bail in the situation where the time limits cannot be met. The policy intention is that he is brought to court to have his entitlement to bail determined. That would ensure a degree of judicial management over the detention of the accused awaiting trial. In addition, it would give the court the opportunity to inquire of the parties the reasons for the delay and to inquire of their state of preparedness. Our proposals are an attempt to make the parties more proactive at the margins of the time limits, which I argue is to be preferred.
I hope that we can see the bill's provisions on time limits as part of a structured package that is aimed at delivering greater certainty to proceedings, while striking a fair balance between the interests of the accused and the public interest in prosecuting the most serious criminal offences. That is why we think that there should be a judicial decision on whether to release the accused on bail, rather than an automatic right.
Margaret Mitchell seeks to ensure that the accused should automatically be granted bail at 140 days. It is expected that a time limit of 140 days will be sufficient to allow all trials to commence within it. However, in his review, Lord Bonomy recognised that there will inevitably be occasions when it is not possible to allocate a trial within 140 days, because of the need for further investigation or because further work needs to be done, and that an extension to the 140-day period may be appropriate. That would happen with the most complex and serious cases and therefore there should be no bar to granting extensions where a judge of the High Court, after hearing the parties, considers it appropriate.
Amendments 81 to 88, 94, 95, 97, and 100 to 103, in the name of Margaret Mitchell, would undermine the objectives of the bill and disturb the balance. I hope that she will agree to withdraw amendment 81 and not to move the others, because if they were successful, they would strike at the heart of the bill.
I am happy to come back with further clarification if that is required.
I will ask a few questions for clarity. In the event that the Crown does not apply for an extension to the time limit, or an extension is refused, would the accused then have an automatic right to bail, or could the Crown still oppose bail?
I do not follow you, convener. Are you saying that if the Crown does not oppose bail it could be—
Proposed subsection (8C) of section 65 of the 1995 act states that where the case has gone beyond 110 days, and the Crown has not applied for an extension or an extension has been refused, the accused is entitled to be admitted to bail. Does that mean there is an automatic right to bail?
The issue then would be the conditions, rather than the—
So there is an automatic right to bail.
Yes, but the court would then consider what conditions should be applied.
So the Crown cannot oppose bail. All it can do is argue for conditions to be attached.
That is in the circumstance where the Crown has not opposed bail. If the Crown has not opposed bail, the court can still consider the conditions that would be imposed as part of any bail.
So it is an automatic right to bail, albeit with conditions.
It would be for the court to determine what conditions would be applied if the Crown did not oppose bail.
That is what I am trying to establish: can the Crown oppose bail? I think that you are saying that the Crown cannot oppose bail, because it has had its chance to extend the time limits, so bail is automatic, albeit that the court will attach conditions.
The first thing that needs to be tackled is the extension. In effect, by seeking an extension, the Crown would be opposing bail.
I understand that bit, but say we have gone beyond that. I am talking about the point when the Crown has not applied for an extension to the 110 days or the 140 days, or it has applied but the court has said, "No, you are not getting an extension."
The entitlement to bail is accepted.
The accused has an automatic right to bail and all that the court can determine is the conditions that are attached to bail. Is that right?
Yes.
In other words, the Crown cannot oppose bail at that point.
Yes. If the Crown does not oppose bail—
That means that the court cannot refuse bail.
It is worth pointing out that if the accused did not accept the conditions that the court imposed, he would be returned to custody.
That is helpful.
The minister referred to the proposals in the bill as a package of measures, but the Scottish Executive has already altered some of the proposals in the package that was proposed by Bonomy, so the original proposals are not sacrosanct. The Executive has deviated from them and so have I, because I think that the 110-day rule is still achievable.
I accept the argument that the minister and Michael Matheson made that we are dealing with a culture of early disclosure, but in that culture we hope to move towards not always having set timescales, but dealing with matters as early as possible. For example, the indictment does not necessarily have to be served on the 80th day. The accused appears on petition or is charged after appearing in the sheriff court after seven days, and a full 73 days are available to serve the indictment, so there is no reason for going to the 80th day.
If we start whacking that culture, I firmly believe that the proposals in the amendments will be achievable. They have the advantage of retaining the 110-day rule, which is a landmark in Scottish criminal law. That is a huge prize to gain. After centuries of working well, the rule should not be discarded without at least trying to find out whether the measures in the bill, which all relate to the culture of early disclosure and dealing with matters as soon as possible, have had a chance to work. Not to do that is to throw in the towel.
The presumption of innocence underlies my amendments on bail. No one should be held in custody any longer than necessary.
For those reasons, I will press amendment 81, which is on the 110-day rule.
The question is, that amendment 81 be agreed to. Are we agreed?
No.
There will be a division.
For
Mitchell, Margaret (Central Scotland) (Con)
Against
Butler, Bill (Glasgow Anniesland) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
Pringle, Mike (Edinburgh South) (LD)
The result of the division is: For 1, Against 6, Abstentions 0.
Amendment 81 disagreed to.
Amendment 4, in the name of the minister, is grouped with amendments 6, 7, 9, 45, 46 and 50.
The preliminary hearing is designed to enable the court to dispose of all preliminary matters so that the trial can proceed without disruption. Parties are required to give notice before that hearing of any preliminary issues, including objections to the admissibility of any evidence. However, after the period of notice expires, other matters that relate to the admissibility of evidence may arise. Amendment 4 recognises that the court should be able to consider whether to deal with those matters at the preliminary hearing. Amendment 50 gives the sheriff at the first diet the same powers to deal with objections to admissibility for which the appropriate period of notice was not adhered to.
The amendments also address concerns that were raised at stage 1 that some issues of admissibility cause serious disruption to trials by creating trials within trials. Amendment 50 introduces new section 79A into the 1995 act. The proposed new section will provide certain safeguards before leave may be granted for an objection to be raised after the preliminary hearing or first diet. The new section will also enable the court to appoint a further diet to deal with the objection and to allow the matter to be dealt with without the need for witnesses and jurors to wait around for the trial to start. We recognise that it will not always be possible to prevent trials within trials, but amendment 50 seeks to prevent them by ensuring, as far as possible, that issues in relation to admissibility of evidence are dealt with prior to the trial diet.
I move amendment 4.
Amendment 4 agreed to.
Amendment 5, in the name of the minister, is grouped with amendments 15, 52 and 53.
The bill seeks to improve procedures for victims and witnesses in the High Court. Amendments 5, 15, 52 and 53 seek to ensure, as far as possible, that only those witnesses who are identified by the parties as essential need to attend court. The provisions on preliminary hearings seek to ensure that trial preparation by the parties is focused and meaningful. In addition, parties have a duty under the 1995 act to agree evidence.
Amendments 5 and 52 provide that, at the preliminary hearing in the High Court or at the first diet in sheriff court solemn proceedings, the court must ascertain from the prosecutor as well as from the accused which witnesses are required to attend the trial. Amendment 15 provides that, if the preliminary hearing is dispensed with on the joint application of the parties, the application must identify which witnesses will be required by the prosecutor as well as by the accused to attend the trial. Amendment 53 provides that the prosecutor has a duty to cite only those witnesses who are identified as necessary by the prosecutor or the accused at the preliminary hearing or the first diet in the sheriff court.
The amendments will ensure that the question of which witnesses are likely to be required to attend court is clarified, both for the court and for the parties. That will assist with the organisation of witnesses for trials and prevent many witnesses who are not considered essential from having to attend trials.
I move amendment 5.
Amendment 5 agreed to.
Amendments 6 and 7 moved—[Hugh Henry]—and agreed to.
Amendment 8, in the name of the minister, is grouped with amendments 10, 47, 48 and 49.
The emphasis in new section 72 of the 1995 act, which is introduced by section 1 of the bill, is that preliminary matters should be dealt with at the preliminary hearing or a further diet that takes place before the trial diet. Amendments 8, 10, 47, 48 and 49 were lodged in the recognition that that might not always be possible and that some issues of admissibility are best dealt with by the trial judge. The amendments therefore give the court the option of allowing preliminary matters to be dealt with at the trial diet.
Amendments 47 and 48 amend new section 79(4) to provide that, in cases in which a court, at a preliminary hearing or first diet, has allowed a party to raise a preliminary matter without giving the requisite notice under the 1995 act, the court may appoint that matter to be dealt with at the trial diet.
Amendment 49 introduces to the 1995 act new section 87A, which makes provision about how matters that are held over until the trial diet should be disposed of. In general, such matters will be disposed of before the jury is sworn, to avoid disruption to the trial. In particular, the effect of the provision will be to avoid the disruption that is caused when objections about the admissibility of evidence are dealt with by a trial within a trial.
At present, the unpredictable nature of trials within trials causes disruption to trial planning and programming and inconvenience to witnesses and jurors who cannot be present in the courtroom when the issue is being dealt with. The judiciary and legal profession were supportive of measures that would help to avoid trials within trials, but the profession was also concerned that we should recognise that there might be circumstances in which trials within trials were necessary. We hope that the amendments address those concerns.
I move amendment 8.
On your last point, I take it that the amendments are designed to prevent trials within trials but will not constitute a bar to them.
No. We recognise that there could be circumstances in which an issue needed to be debated.
Amendment 8 agreed to.
Amendments 9 and 10 moved—[Hugh Henry]—and agreed to.
Amendment 82 moved—[Margaret Mitchell].
The question is, that amendment 82 be agreed to. Are we agreed?
No.
There will be a division.
For
Mitchell, Margaret (Central Scotland) (Con)
Against
Butler, Bill (Glasgow Anniesland) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
Pringle, Mike (Edinburgh South) (LD)
The result of the division is: For 1, Against 6, Abstentions 0.
Amendment 82 disagreed to.
Amendment 11, in the name of the minister, is grouped with amendments 19 and 20.
Under the current law, the indictment can be deserted either simpliciter or pro loco et tempore. If the indictment is deserted simpliciter, the 1995 act states that the prosecutor cannot raise a fresh indictment unless that decision is reversed on appeal.
Amendment 19 clarifies that, where the court has deserted the preliminary hearing simpliciter, that has a similar effect and proceedings are at an end, unless the decision is reversed on appeal. Amendment 20 is for clarification of the application of the custody time limits that are applicable where a case that was previously indicted to the High Court is re-indicted in the sheriff court. It provides that, in that situation, the sheriff court time limits apply. Amendment 11 clarifies that the reference in section 72A(3)(b)(i) to the court deserting the diet is a reference to the preliminary hearing.
I move amendment 11.
Amendment 11 agreed to.
Amendments 83 to 88 not moved.
Amendment 12, in the name of the minister, is grouped with amendments 18, 35, 37, 51, 55, 58 and 61. I point out to members that amendment 35, if agreed to, would pre-empt amendment 69.
The purpose of the amendments is to restructure the provisions in the 1995 act relating to the alteration, adjournment and postponement of diets. Amendment 51 inserts in the 1995 act new section 75A, which applies to both the High Court and sheriff and jury courts and makes provision in relation to all diets. The other amendments are consequential.
I move amendment 12.
Amendment 12 agreed to.
Amendment 13, in the name of the minister, is grouped with amendments 14, 16 and 17.
The amendments remove the references to the "Clerk of Justiciary" appointing a trial diet where the court has granted an application under new section 72B to dispense with a preliminary hearing. In its evidence to the committee, the Faculty of Advocates was uncomfortable with the references, believing that only the court should have the power to appoint the trial diet. We have taken that on board and the amendments address those concerns.
Amendment 17 simply clarifies that the power of the court to dispense with the preliminary hearing has no effect on the calculation of any time limits or notice periods that, in the 1995 act, are fixed with reference to the date of the preliminary hearing. The date originally fixed for a hearing that is subsequently dispensed with will continue to be the date for the purposes of such time limits or notice periods.
I move amendment 13.
Amendment 13 agreed to.
Amendments 14 to 20 moved—[Hugh Henry]—and agreed to.
Amendment 21, in the name of the minister, is in a group on its own.
Amendment 21 clarifies the intention in relation to provisions introduced by the bill, which, on the one hand, require the accused to state at the preliminary hearing how he pleads to the indictment and, on the other, allow preliminary hearings to take place in the absence of the accused. The amendment inserts provisions in new section 72D to clarify that, ordinarily, accused persons should be present at a preliminary hearing. However, it is recognised that there may be good reasons why an accused need not or cannot attend. The provisions therefore give the court the power to allow the hearing to proceed when it considers that cause has been shown for the accused's absence. When it does so, the accused is treated for the purposes of proceedings at the hearing as having pled not guilty.
I move amendment 21.
Amendment 21 agreed to.
Section 1, as amended, agreed to.
Section 2—Written record of state of preparation in certain cases
Amendment 22, in the name of the minister, is grouped with amendments 25 to 30.
New section 72F, which is inserted in the 1995 act by section 5 of the bill, imposes a duty on solicitors acting for accused persons who are indicted into the High Court to notify the court and the Crown that they are acting. It also imposes a duty to inform them when the solicitor is dismissed or withdraws from acting.
The amendments are related to amendments 24, 31, 32, 33, 36, 54, 57 and 60, which extend the provisions of new section 72F to cases indicted into the sheriff court. The amendments are concerned with the consequential adjustment of the provisions for notification and intimation in so far as they relate to the Crown.
Subsection (1) of new section 72F provides that notification is to be given to the court and the Crown Agent. For cases that are indicted into the sheriff court, the intention is that notification should be given to the court and the procurator fiscal for the district in which the case is to be tried. Amendment 25 therefore substitutes for the reference to the "Crown Agent" in new section 72F(1) a reference to the "prosecutor". Amendment 29 inserts a new subsection that defines "prosecutor"—for the purposes of the duties to notify and to inform notification—as the Crown Agent for High Court cases and as the procurator fiscal for solemn proceedings in the sheriff court.
Amendment 26 makes further provision in relation to the situation where intimation is given by a solicitor prior to an indictment being served that he is acting for an accused in relation to a charge that is under investigation. In practice, such intimation is often given following appearance by the accused on petition. Amendment 26 therefore introduces provision that, where such intimation has been given to the procurator fiscal for the district in which the charge is being investigated, that will be taken to be notification to the prosecutor for the purposes of new section 72F(1). Accordingly, where such intimation has been given, no further notification is required, whether the case is subsequently indicted in the High Court or in the sheriff court. If the solicitor subsequently withdraws or is dismissed, he is still required in High Court cases to inform the Crown Agent of that. In relation to solemn proceedings in the sheriff court, the duty is to inform the procurator fiscal.
Amendments 27 and 28 make consequential amendments to subsection (2) of new section 72F. Amendment 22 makes a consequential amendment to the provisions of new section 72E of the 1995 act, which is introduced by section 2 of the bill and provides for a written record of the state of preparation in certain cases. Subsection (1) of the new section currently provides that the section applies where a solicitor has notified the Crown Agent under section 72F(1). As explained, it might be that, under section 72F as proposed to be amended, the solicitor will not have notified the Crown Agent but will have intimated to the procurator fiscal prior to the indictment being served. It is therefore more appropriate that the reference in new section 72E should be to notification to the court under section 72F(1), which must occur in every case where a solicitor is acting. Amendment 22 therefore substitutes for the present reference to the "Crown Agent" in section 72F(1) a reference to the "Court" instead.
I move amendment 22.
I seek clarification from the minister. When you use the term "solicitor", do you mean "legal representative"? Would that term cover a solicitor advocate or counsel, for example?
A solicitor advocate is by definition a solicitor.
Would it cover counsel?
No.
So the term "solicitor", rather than "legal representative", is correct.
Amendment 22 agreed to.
Amendment 89, in the name of Stewart Maxwell, is grouped with amendment 91.
The Justice 1 Committee stage 1 report states in paragraph 45:
"The Committee is content that the format of the written record should be determined by an Act of Adjournal provided that the Committee is supplied with more detail on what should be contained within the written record in advance of Stage 2."
As far as I am aware, we received no further information on what would be contained in the act of adjournal in advance of stage 2, which commenced today, and that is why I lodged amendments 89 and 91.
It seems reasonable that some detail should be provided so that people are aware of the effect that that part of the bill would create. I lodged the amendments on the basis that, since we have not received that information, some detail should be provided. Amendments 89 and 91 are probing amendments and I hope that the minister will be able to address some of the concerns that have been expressed to us by legal professionals. I am concerned that we have had no information to clarify the position. We hoped to have the information by this stage so that we could accept that the act of adjournal was the correct method for dealing with the matter. If the minister can give us that detail, I would be happy to accept that.
I move amendment 89.
I support Stewart Maxwell's point. Having signed up to the general principles of the bill, the committee should be able to ascertain the likelihood of achieving a reduction in any delay. However, as we said in our report, we remain concerned that much of the information will not be presented to the Parliament and although it is good that the written record is covered by the bill, there is no detail about what the record will contain. It would be helpful if the minister could indicate whether we are likely to see some detail before stage 3. The committee is pushing the issue to ensure that the maximum amount of information will be available to the Parliament. At the stage 3 debate, when members catch up with what has been happening in this committee, they will ask, "If the bill purports to be able to reduce delay in the High Court, what mechanisms will achieve that?"
I echo what has been said. The committee requires a degree of comfort with regard to the detail that the written record will contain. It is important to have that specific assurance, and I hope that the minister can give us the comfort that we all seek. I will be interested, as I am sure other members will be, to hear what the minister says in response.
On behalf of Margaret Smith, I echo those comments and endorse what Bill Butler said. I know that that is exactly how Margaret feels.
Thank you. That is helpful.
The amendments in this group are to the provisions of proposed new section 72E of the Criminal Procedure (Scotland) Act 1995, which is inserted by section 2. The proposed new section provides that, in proceedings in the High Court, parties are to lodge jointly a written record of the state of preparation of their cases prior to the preliminary hearing.
Subsection (4) of proposed new section 72E provides that the form and the content of the written record will be prescribed by an act of adjournal. Amendments 89 and 91 seek to remove the power to prescribe the content of the written record by the act of adjournal and to set out detailed requirements on that content in a new subsection of the 1995 act. Our argument, which is similar to the discussion that we had earlier, is that we do not believe that it is necessary or desirable to prescribe the detailed content of the written record in primary legislation, as the amendments seek to do.
We think that the content of what should be included in the written record is better suited to an act of adjournal. We believe that it is desirable that there should be the opportunity for discussion with the judiciary, the Faculty of Advocates and the Law Society of Scotland on the detail of the information that is to be contained in the written record. Providing for that detail to be set out in an act of adjournal would allow that opportunity.
One of the things that we intended to do was to consult the Faculty of Advocates, the Law Society of Scotland and others, not about the specific act of adjournal but about some of the content issues. It is a bit difficult to consult ahead of certain decisions being made, but if it is possible, we could consult the Crown Office, the Law Society of Scotland and the Faculty of Advocates ahead of stage 3, and we could give the committee a draft outline of what comes from those consultations.
Stewart Maxwell asked a specific question about the detail of the act of adjournal. We were unable to prepare an act of adjournal for a bill that has not been passed, because one would flow from the other. I hope that, if our consultation goes into some of the details of what should be included, we can come back to the committee ahead of stage 3.
Views on the information that it is considered desirable to include in the written record may develop with experience of the new procedures. Again, that brings us back to our argument about the use of an act of adjournal rather than putting detailed provisions in the bill. As I said in our previous discussions, we think that using an act of adjournal will give us the opportunity to respond more readily and more appropriately when that needs to happen.
I am happy to assure Stewart Maxwell, Bill Butler and the convener that we will reflect on any comments that are made. We are not persuaded that putting specific provisions in the bill is necessarily the best way to progress, but we shall see what we can come back to the committee with ahead of stage 3, with regard to consultation.
The bill says:
"as may be prescribed by Act of Adjournal."
That is a matter for the Scottish courts. You said that you might be able to furnish the committee with information before stage 3—
On the consultation. We do not intend to consult on the specific act of adjournal. You are right that that would be for the court—
Would it be possible for the committee to get an idea about what information might be in the act of adjournal? Presumably there is a draft somewhere.
We can certainly ask the Lord Justice General whether he might be prepared to give an outline of what an act of adjournal might include.
I am sure that the minister understands the committee's concern that, as it stands, the matter is effectively left wide open. We have no idea exactly what would be contained in the act of adjournal, or what would be likely to be contained in an act of adjournal. However, the minister says that he will attempt to provide more detailed information and that he will provide some feedback from consultation, so I will not press the amendment.
Amendment 89, by agreement, withdrawn.
Amendment 90, which is in my name, is in a group on its own. The amendment would remove the words
"may be prescribed by Act of Adjournal"
and insert words to the effect that the written record would be prescribed by Scottish ministers.
On balance, I agree with the Executive that the content of the written record is probably best decided by the court and not by Scottish ministers. I lodged the amendment, however, because I feel that we are at odds with the Executive on getting assurance for the Parliament that there are provisions in the bill to force the parties to be prepared for the preliminary hearing. One way of achieving that would be by making the content of the written record a matter for Scottish ministers. That would mean that the Parliament would have before it a note of what will be contained in the written record. The Parliament could say whether it considers that the written record will achieve what it sets out to achieve, which is to ensure that the parties are prepared prior to the preliminary hearing.
There is a bit of déjà-vu here—we discussed the same issue earlier. The committee wants to get the message across to the Executive that it feels strongly that the Parliament ought to be able to feel that there is a commitment in the bill to ensuring that people are forced to consider what they should be doing before the preliminary hearing. Without any such reference, we will simply be saying that we will rely on good faith. The purpose of the bill is to reduce delay and to introduce a new hearing, yet we would just be letting everyone get on with the matter, without any parliamentary scrutiny. Amendment 90 is a probing amendment, but we wanted to impress upon the Executive the importance of that principle.
I move amendment 90.
I echo what the convener said. Will the minister reflect upon the concerns that were expressed by the convener and see what can be done to address them? I seek a degree of comfort from the minister.
I am certainly prepared to see whether we can address those concerns. However, we share the convener's hesitancy about amendment 90. We know the principles of what you are trying to achieve, but we are not entirely persuaded that the amendment is the best way of doing that. It might be rather strange if supplementary rules for procedures that are introduced by the bill were made by ministers, by means of a statutory instrument, when such rules in relation to other parts of criminal procedure are provided by an act of adjournal.
We note the concerns that have been expressed and give a commitment to greater consultation. We will try to report back to the committee on the results of that consultation and to provide members with more information ahead of stage 3. However, unless we see something striking to the contrary, it is still our view that the best way of proceeding is through an act of adjournal. We will take away the committee's concerns and reflect on them.
Based on what the minister has said—and reserving my right to return to the issue at stage 3—I will not press the amendment.
Amendment 90, by agreement, withdrawn.
Amendment 91 not moved.
Section 2, as amended, agreed to.
I propose to stop there, as it is 20 past 12 and we have made reasonable progress. I thank the minister and his team for their attendance. We will see them again next week.