Petitions
Item 2 concerns the various petitions that are before us. I am aware that members of the public and, in some cases, the petitioners themselves are here today. We have to consider carefully how we proceed on a number of petitions. In a couple of cases, we have already done some work, so that may be a matter of making progress with that work.
We start by discussing petitions PE29 and PE55 together, because they relate to roughly the same area. Everybody will have had a note from the clerk on those two petitions. We have already been doing some work in this area and have written to the Department of the Environment, Transport and the Regions and the Lord Advocate. What do people suggest as the most appropriate way forward?
We have been round the houses with the Lord Advocate on the Dekker petition. He is stating that he is not prepared to allow the procurators to come clean about why they are not taking the issue forward. I suppose that—with reluctance—we shall have to accept that.
However, the Dekkers could benefit from paying attention to Tricia Donegan's submission and two of her requests. The Lord Advocate expresses concern in his response about the impounding of the car. He says that he has put down guidelines, but I wonder whether that goes far enough and whether there should be some move towards ensuring that in all cases where there is a death, the vehicle involved is impounded until all relevant court hearings are completed. That would not just be a guideline; it would be a definite condition relating to such accidents.
The other point is that the families of road traffic victims should have a right to demand a fatal accident inquiry. I worked in industry for many years. If we had a death on site, irrespective of how that death came about, there would be a fatal accident inquiry—there was no question about it. Deaths on the road can be related to industry—for example, if a van driver or a lorry driver is involved. It would be reasonable to allow the families of victims to request an inquiry and, if that request is made, for that inquiry to be mandatory.
I have read again Mr and Mrs Dekker's submission in response to the Lord Advocate. I agree with Phil—I am not sure what we can do with this. I do not accept that there is a policy to downgrade section 1 of the Road Traffic Act 1991 on offences causing death. The Lord Advocate is right about that, although that does not mean that individual matters are always dealt with correctly.
Certain things might be worth bringing to the attention of the Lord Advocate again. For example, I am interested in what has been said about victims' families not being properly contacted. If there is a lack there, something should be done about it.
I am interested in the other petition that Phil mentioned, on the impounding of the motor vehicle. I am not overly impressed by the Lord Advocate's letter on that. Reading between the lines, we can see that he seems to suggest that the fault lies with a silly sheriff who got it wrong. That is not likely to be the case. I have no idea who the sheriff was but I suspect that, in the circumstances, the decision was probably not wrong.
The Lord Advocate says that he cannot appeal that, but he can now appeal a decision in principle. If he thought that the decision was wrong and that the principle should be established that it was wrong, he can deal with that. Simply to blame the sheriff for getting things wrong does not hugely impress me.
I do not quite follow what the Lord Advocate means when he says that his new procedure is that the car should not be released until criminal proceedings are being contemplated. The accused is told that the car is no longer needed and that they should have it examined. What actually happened was not very different from that. I am not clear what the Lord Advocate suggests is the difference; the accused was told that he might wish to instruct an expert to examine the vehicle, that he should have that expert make immediate contact and that he might receive legal advice. He knew by that time that proceedings were being contemplated. I am at a loss to understand what real change the Lord Advocate is suggesting. Like Phil, I think that he has to go further.
I am not persuaded that in every case the vehicle has to be impounded until proceedings are terminated. I appreciate that money is not important here, but the vehicle may belong to an innocent third party and may be worth a substantial sum of money. Reading between the lines, we know that the vehicle was worth virtually nothing: it was an A-registration Escort, or something of that nature.
There must be some system whereby the Lord Advocate keeps the vehicle in place until he has reason to be totally satisfied that inspection has been carried out or refused. For example, if he receives a letter back from the person saying "Thank you very much; I have now inspected the vehicle", or, "I no longer want to inspect the vehicle", he cannot release it simply on the basis that he suggests on page 5 of his letter; he must be more satisfied than that that the issue has been resolved. I do not want to say something inappropriate but, when there is a death, there may be occasions on which the body will not be released for burial until everyone has done what they need to do. The Lord Advocate must do better than his letter suggests.
I am not persuaded by what Phil Gallie says about the fatal accident inquiry. I do not think that that is practical. The situation of people at work is already regulated by statute: for any death at work, there must be a fatal accident inquiry. In many cases of death on the road, it is possible to understand what happened. There are hundreds of deaths on the road—which is a terrible tragedy—for which it is not appropriate to have a fatal accident inquiry, although relatives will always want one. I have reservations about the practicality of saying that a fatal accident inquiry must be carried out every time a relative asks for one—that is going too far.
On every occasion, a senior procurator fiscal should sit down and discuss the matter with relatives. The lack of communication is one of the problems. There must be greater explanation and discussion, and people must feel that they have been more involved in the process. However, the idea that the final decision will always rest with the relative would bind the system too much and would be unworkable.
At the outset, I should have welcomed Cathie Craigie to this meeting. She has a constituency interest in the case of Mr and Mrs Dekker. I know that she would like to speak on the matter, but Christine Grahame has indicated her interest and will speak first.
I do not agree with Phil Gallie that, following a road traffic accident, there should be a mandatory fatal accident inquiry if a relative asks for it. Like Gordon Jackson, I do not think that that would be practical or even necessary in all circumstances. I would like to know the policy of the Crown Office on fatal accident inquiries in the event of road traffic accidents, and what principles it applies. That information would be useful, although I do not know whether it is contained in the plethora of papers that we have received.
My second point relates to the preservation of evidence. That made no difference to the petitioner because, as a third party, they were not aware that evidence was about to be destroyed that would constitute their interest in the case. Should there not be an obligation on the Crown Office to intimate that the vehicle is available for inspection to third parties who may be involved in subsequent civil proceedings? Otherwise, someone may not realise that they can make a civil claim until much further down the road, when the evidence is gone but they might want an independent report into the state of the vehicle—for instance, the state of its brakes.
My third point arises out of my ignorance of criminal law, and refers to the Lord Advocate's response to Tricia Donegan's petition. The paragraph of that letter that struck me says that
"it is not possible under the Criminal Procedure (Scotland) Act 1995 for the Crown to appeal against the acquittal of an accused who has been prosecuted on indictment."
I do not know why or whether that should be the case.
An appeal cannot be made on an acquittal. Until recently, the Lord Advocate could not appeal the point of principle on an acquittal. Now he can appeal the point of principle to establish what the law should be, although that will not change the outcome. However, I cannot remember when that provision was introduced.
That was what I was curious about. I did not know about that corner of the law.
Thank you, convener, for giving me the opportunity to speak to the committee today. Mr and Mrs Dekker, the main signatories of petition PE29, are my constituents.
As committee members are knowledgeable about the case, I shall not go into it in any detail. However, by way of introduction, I would say that the signatories of the petition, like other residents of the Cumbernauld and Kilsyth area, are at a loss to explain why this matter was not brought to court as a case of dangerous driving. I understand that the committee is not an appeal body, but I ask whether there is any way in which it could further investigate this issue. The committee's remit is to consider and report on matters that relate to the administration of civil and criminal justice; it should investigate the claim that was made in the Dekker family's evidence that the Crown Office has a policy of downgrading driving offences.
In his letter to the convener of 5 January, the Lord Advocate does not accept that point, as Gordon Jackson said. However, he states that the fact that such a perception exists
"is in itself a matter of concern and should not lightly be dismissed."
I, too, think that it is a matter of concern. The view is held throughout Scotland that there is a policy of downgrading—it is not only the Dekker family who believe that. I accept that the Lord Advocate gave his opinion and responded to the committee in good faith. However, the fact that the perception exists means that this committee has a duty to investigate the matter. I would not want to prescribe the way in which the committee should pursue the investigation; I ask simply that it takes further advice on whether the Lord Advocate can be brought to give evidence and whether statistical information can be gathered.
The Lord Advocate's letter also made a point about the involvement of the families, which Gordon Jackson and Phil Gallie mentioned. Although the Lord Advocate is of the opinion that families are involved in the process, that does not seem to be happening in every case. We must realise that families need to be involved and should be able to find out as much as they want to know. I ask the committee to consider that aspect of the Lord Advocate's letter.
What concerns me about the Dekker and Donegan petitions is that, although the circumstances and issues are different, they have a common thread.
The Dekker case was not tested in court as it should have been; similarly, the Donegan case was not tested in front of a jury. The running theme is that the legal mechanics have blocked those cases by not allowing either a jury or, in the Dekker case, a judge to consider the circumstances before a decision was reached. The overriding principle of our legal system is meant to be that someone sits in judgment, independently to make a decision that is based on the facts and circumstances. The theme of these two petitions is that that was never allowed to happen.
I realise that our options are reduced, but I would like the committee to keep the Dekker case on the table. The Dekkers have still not had an answer to the question why their case was not tested in front of a sheriff or jury.
I am at a loss to understand the Donegan case. The Lord Advocate's letter suggests that the Crown Office was never founding on the car. If anyone was founding on the need for that production, it would have been the defence, which was given the opportunity to examine the car but did not take it. I would have thought that an inference could have been drawn from the fact that the defence did not take up the opportunity to examine the car. Focusing on the car is a red herring. We know from other road traffic cases that there is a common theme: people accused under such circumstances often claim a mechanical defect. I do not understand why that was not tested before a jury.
I am concerned that, in both cases, neither a jury nor a sheriff got a chance to examine the circumstances and to come to a decision based on that examination. I am certain that, whatever the outcome, the families would have felt an awful lot better had they at least gone through the court system in order to get an answer.
It is important to clarify the distinction between the two cases. The Donegan case was an error—in my judgment, a mistake was made. It does not matter who made it. It was either made in releasing the car or in allowing the car to be destroyed. Alternatively, a sheriff made a wrong decision and the matter should have gone before a jury, as everyone intended. Unpalatable as it may seem, such mistakes happen in any system. That is what happened in this case: something went wrong.
The Dekker case is different. It did not go before a jury because the Lord Advocate, having looked at all the evidence, decided not to launch a prosecution. That is his inalienable right. There cannot be a legal system in which he is not the person who makes that decision. That does not mean that every decision will be correct, or that everyone will agree with it, but there cannot be a system in which an aggrieved person—a person who feels that they have been assaulted, or a relative—has the right to say that their case must go before a jury or be prosecuted. That is so ingrained in our system that, although the Lord Advocate sits in our Parliament, he cannot be questioned on his decisions. His protection is specified in statute, under the Scotland Act 1998. We may want to change that.
The present review of the criminal justice system in Northern Ireland has suggested that the equivalent legislation there should be changed and that the emphasis should be the other way round. As a body, the Parliament could make that change if we felt it appropriate. However, in the end, a decision will be a matter for the Lord Advocate. The Dekker case did not go before a jury for the proper reason—a decision had been made. The Donegan case did not go before a jury because a mistake was made. The cases are quite distinct.
What Gordon Jackson is saying represents the view of people who are steeped in the Scottish legal fraternity. There is an acceptance that the Lord Advocate is infallible.
No—I have spent my life saying that he is not.
Well, if the Lord Advocate is the sole arbiter, and if no one can question his decision, that must be the case—he must, in effect, be seen as infallible. He makes a decision and does not have to explain it, which puts him beyond any independent analysis of the merits of that decision.
That is why I have favoured a second step which, in this case, would—perhaps impractically, I accept—lead down the fatal accident inquiry route. Without a doubt, justice is something that people must feel comfortable with. They must be able to believe in it and live with it. The people who have suffered as a consequence of the events in the two cases that have been mentioned cannot have any faith in our justice system.
I sympathise with Gordon Jackson on the Donegan case. The Lord Advocate now acknowledges that there was a mistake. The first thing that we must do is to ensure that such a mistake never happens again. That is why I suggest as an acceptable solution that vehicles be impounded or a written statement be signed by all sides of the argument saying that everybody has had their chance and the vehicle can be released. However, I must question the Lord Advocate's right to make a decision without scrutiny. Regardless of whether the Parliament queries the matter in the longer term, surely we are here to discuss and think about it today.
We have to make a decision on how to proceed. We have reached an impasse on the present situation with regard to the Lord Advocate. He says that there is not a policy about how such cases are prosecuted. The perception of many people is that there must be a policy, otherwise what is happening would not be happening. I think that we will not get any further now, because the Lord Advocate says that there is not a policy.
We have to decide how to proceed on the cases that we have discussed and whether we think anything further can usefully be done. Some important points have been made. One—about the Crown Office giving at least some reasons for its decisions about, for example, not proceeding with cases, or otherwise—has been made before in a different context. We mentioned that during our consideration of freedom of information. It is an issue that we can return to—we have every right to do so. Whether that can be done in the context of these two petitions is a different matter entirely.
While I have sympathy with the reasons for the request that families of road traffic victims have a right to demand a fatal accident inquiry, I would have to point out that either everybody will have the right to a fatal accident inquiry or they will not. If we were to say that that right is automatic for one category of people but not for another, we would effectively be saying something about a death—that one death does not justify a fatal accident inquiry whereas another does. Granting an automatic right for one category of people effectively means that we think that there should automatically be an FAI in respect of all deaths.
If we examined that proposition, we would have a responsibility to examine carefully the implications for the whole system. I do not think that anybody has begun to quantify what it would mean. I am not just talking in pounds, shillings and pence—money is not the issue—but in terms of court time and the vast number of knock-on effects. I am not sure that we can consider the issue in the context of these petitions—it covers a much bigger area.
There is real concern about the perception of a policy developing at the Crown Office, notwithstanding the denial of the Lord Advocate, so I suggest that we suspend consideration of both these petitions until we get the results of the research being done at the Department of the Environment, Transport and the Regions on sentencing and road traffic death cases. The results of that research are to be published in the autumn and it would be foolish of us to start an inquiry that would replicate less effectively work that is presently being done by officials elsewhere.
I suggest that we keep these items on the agenda until the autumn, when we will have the results from the DETR. It will do in much more detail what we—I suspect not as effectively—would be trying to do. We would then return to the issue of road traffic accidents. Let us be fair about this: that should not just include accidents that cause a death—very serious injury can also be devastating. We could then consider whether we want to examine road traffic more fully, always keeping in mind that our agenda is already jam-packed.
Do any members have strong views about that?
I agree with much of what you have said but, with regard to the preservation of evidence, we could write to the Lord Advocate—as you said, convener, we cannot see terrific distinctions between what actually took place and what he has said in his guidance—and raise my point about third parties. That is what the petitioners would have needed. They were not parties to the criminal proceedings. We could still deal with the preservation of evidence and detach it from road traffic accidents in general and fatal accident inquiries.
That is a much narrower point. I am happy with that.
Could we concentrate on Gordon Jackson's point about the appeal and question the Lord Advocate on it?
I must say on the record that the current provisions may not have been in force at the time.
We could ask for clarification on that.
It would be of comfort if we received a letter saying, "Now it would be okay. The aim is to solve the problem."
But we need to put on record the fact that our justice system operates on the basis that when someone is acquitted, that is it as far as they are concerned—end of story. There is a good reason for that: it is so that prosecution does not become persecution, where people are hounded year after year and are re-tried, no matter how often they are found to be not guilty. That would be a different kind of justice system, which would lead to enormous injustice.
I wish to make it clear that I cannot give my all-embracing support to that statement.
That is fine. You can note your dissent, but I feel strongly that that is not an issue that we should pursue.
Phil feels strongly about this issue, as do other people, but if we are to look at the accountability of the Lord Advocate—I hope that I do not sound patronising—we cannot reach a view on that based on what we have been discussing. We would need a full, separate inquiry with evidence from all kinds of people, because any change to current practice would be a sea change in our legal system. I have my view and others have theirs. I may turn out to be wrong, but we would have to have a separate inquiry. We could not address this issue on the basis of one case or one petition.
There were one or two e-mails on PE29 and, by inference, on PE55. RoadPeace is based in London and is the national organisation for road crash victims. It wants to give evidence to us on this matter. We will send it a holding letter saying that we will wait until the Department of the Environment, Transport and the Regions produces its research before we decide how to address this matter. We also had an e-mail from an individual, Steve Stradling, who has done research on driver attitudes and behaviour at the University of Manchester and Napier University. I will ask the clerks to forward that e-mail to committee members and to Cathie Craigie as a matter of courtesy. We had a brief e-mail from Mr and Mrs Dekker yesterday with regard to today's proceedings.
We have another three petitions on the agenda and we have to deal with the draft report on prisons, so I suggest that we take five minutes to go through one or two of the other petitions, and those that we cannot deal with today will be put on the agenda for next week's meeting.
The next petition is from James and Anne Bollan. We can deal with this one briefly because we have already decided that we want to look at legal aid and access to justice. In those circumstances, the issues that the petitioners raise would be better wrapped into that broader inquiry. Does anyone take a different view?
No.
We will let the petitioners know that their petition is still live, but that there is little point in our trying to deal with it separately when we have already decided to look at legal aid.
There is a petition from a group called Concern for Justice, about which I have some concerns. I asked the clerk to do a fairly detailed background note to this petition because it arises out of a long-running theological dispute in the Free Church of Scotland that I am loth for this committee to get involved in. On the face of it, the petition is not about that theological dispute, but it arises out of an incident that was part of that dispute. I am concerned about that. First, the Justice and Home Affairs Committee is not the place where we want to get involved in such issues. Secondly, it is a specific case and we have been clear that we do not want to re-hash particular cases. We are not another appeal court. We have had to say that to a lot of people. Thirdly, the petition calls on Parliament to look at what sheriffs or judges say in court about cases or individuals and whether they should be in some way answerable for their comments.
I have read the petition. There are some difficulties. One of the problems is that in any case, whether civil or criminal, by definition, evidence will not be believed. Witnesses will be regarded as not credible or not reliable. A decision will be made that effectively casts enormous doubt on a side of the case or a group of witnesses. If we go down the line the petition proposes, I am not sure that we will not get into enormously difficult territory, because every time a witness is indicated as not reliable or not credible, the danger is that sheriffs or judges will be opened up to some kind of scrutiny on that issue.
I share your concerns about this petition. As you know, a couple of us on this committee are members of the Public Petitions Committee. I raised my concerns when I first saw it, without even knowing the background to it. We should send a message to people who think they can use the Parliament's committees as a way of having a trial reheard. There is a danger that the petitioners are trying to draw us into a tit-for-tat exchange on a theological discussion, and I want no part of it. We should end this petition today and dismiss it.
If the issue that we are being asked to look at is whether sheriffs or judges should have absolute privilege in court, for me that also ends the petition, because sheriffs and judges must have absolute privilege so that they can do their job. Very often, cases will turn on the judge's view of a witness's credibility. That is a principle of law that I am not prepared to concede.
The fact that the people who are involved in this case are not named and that there is an organisation that seems to turn solely on this particular court case also concerns me. When I first saw the document from Concern for Justice, I could not see any other issue or circumstance that came under the banner of the organisation. I am for dismissing this petition forthwith.
I wholly endorse what Pauline McNeill has said. I, too, am a member of the Public Petitions Committee. It is essential that judges have privileged status, whether they are sheriffs or are in the Court of Session. If they behave in an untoward fashion or overstep the mark, there are disciplinary proceedings that can be enacted. It is par for the course for a sheriff to say, "I am afraid that I do not find your evidence credible." It comes down to that. Witnesses are on oath and the sheriff may well say that. I am with Pauline on this. The petition has to be dismissed.
The second point I wish to make—Pauline McNeill may wish to associate herself with it—is that the Public Petitions Committee is to consider what it deals with and how it operates. This kind of petition may well be an issue that is raised. A principle has to be at issue in a petition: we do not want the Justice and Home Affairs Committee and the Public Petitions Committee being set up as another court of appeal. Do you agree, Pauline?
Yes.
We will review this matter.
Even though I am sitting here silently, I should declare an interest. I wrote a professional opinion on the case some years ago, although not for any of the parties on the petition.
I agree that we should write back saying that we recognise that these people may well be aggrieved. There is more to this than a theological dispute. People who are writing to us are genuinely aggrieved. I make no comment on whether they have a right to be aggrieved, but we should write back to say that we cannot tamper with the freedom of sheriffs and judges to announce their decisions. Otherwise, the system simply cannot operate. We cannot go into what is behind the privileges of sheriffs and judges, even if we do not always agree with them.
We frequently do not.
In the matter referred to in this petition, the people who were named never got the chance to make any comments at all to the sheriff. They were simply criticised by the sheriff without his having heard them. Is not that wrong? That is the principle behind the petition. I can understand a sheriff hearing evidence and saying that it is not credible—he is entitled to make that judgment—but the fact that the individuals in question never had a chance to present a case is a matter for concern. I find it difficult to understand how anyone could make a judgment in such circumstances.
In fairness, we must remember what a criminal trial is about. This matter arose out of a criminal trial. The accused must make a case for his defence and the prosecution must prove a case against him. In that sense, nobody else is answering any case at that criminal trial. It is often the case that many names will be bandied about and referred to during a trial, but none of those people—witnesses or anybody else—is there to answer a case. Only the accused and the prosecution have to do that.
As far as I can see, nothing happened in this case that does not happen frequently in criminal courts. The difference in this case is that there was public and media interest in the trial and in the detail of the sheriff's judgment. If we start to say what a sheriff can or cannot say, we will effectively prevent a sheriff from explaining the reasons for his decisions.
We have just gone through a period of saying that we are not happy because the Lord Advocate will not explain his reasons for decisions. We will get into difficult territory if we say that we do not want to hear explanations for various types of decisions by sheriffs. We are on dangerous ground and I cannot see how we can investigate this issue, even at face value. Tampering with the privilege of judges will create endless problems.
There would also be an impact on MSPs. Nobody has a right of reply in the chamber other than MSPs, and we assume the honour and good conduct of MSPs and suppose that their statements are made in good faith. You are right to say that we are opening up an enormous can of worms about privileged situations, which would extend to us as well. I say that not as a matter of self-interest, but as an observation.
I understand all that. To some extent, the onus is on the prosecution to ensure that its witnesses or anyone else who is named is informed. I do not want to interfere with a sheriff's rights; I accept what you say about that. However, I am concerned that the prosecution may not have advanced its case in a way that could be considered fair to everyone.
We cannot discuss sheriffs' rights without going into details of a specific case. That is the problem.
That is exactly the point that I wanted to make. Although the people involved say that they do not want to go over the case again, an investigation would rely on the supporting evidence. To discuss it, we would have to go into what happened in court. That rules out a discussion. We are not here to provide another opportunity for people to appeal against a perceived injustice.
To deal with the case we would have to ask the Crown Office to deliver the court papers to us. The committee cannot get involved in such a situation.
The Crown Office would probably not allow it.
That is right. As Gordon says, we could probably not do it anyway. I cannot see how we can take the matter further. I therefore suggest that we regretfully advise the petitioners that we feel there is no prospect of our being able to deal with the issues that they raise.
We cannot deal with the petition from Mrs Eileen McBride today. It raises serious issues, including the European convention on human rights, which Phil Gallie is always concerned about. I would prefer to give that petition more time at another meeting.
We will now move on to the draft report on the Scottish Prison Service. As agreed, this item will be taken in private, so the official reporters are excused—no doubt to their great relief.
Meeting continued in private until 12:33.