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I welcome the Lord Advocate, Colin Boyd QC, who has appeared before us previously, and Lindsay Anderson, who is the deputy principal for policy work at the Crown Office. Both are here to give evidence on the Freedom of Information (Scotland) Bill.
I understand that you have had a long meeting, convener. I have with me a short statement, but, as you might prefer to get on, it might be better if you were simply to ask questions.
Is your statement short?
It runs to six pages—[Laughter.]
That is not short. You can tell from the groans around the table that the committee has rejected your definition of short.
Fair enough.
We will move straight into questions.
Could we have a copy of your statement?
Yes—I will arrange for it to be circulated.
Thank you. It is handy that the deputy convener is on the ball.
Section 35 creates a content exemption in relation to law enforcement. For example, information will be exempt if its disclosure would prejudice substantially the apprehension or prosecution of offenders or the administration of justice. Would you provide us with examples of the types of information that the Crown Office and Procurator Fiscal Service is likely to release on request, as well as examples of where there is likely to be a refusal?
We will start with a presumption of releasing information whenever possible. One must consider the way in which the section on law enforcement—section 35—fits in with section 34, which deals with investigations by Scottish public authorities. In particular, one must consider section 34(1)(a)(i), which covers investigations into alleged offences by individuals, and whether someone
I am surprised that general guidelines might be thought too sensitive to release.
You will understand that we deal with a wide range of offences covering the serious to the trivial. General guidance about the way in which we prosecute some classes of offenders might be useful to people who wish to circumvent the guidance in some way. For each request, we must consider whether the release of the information will substantially prejudice the prosecution of offenders. I hope that before we reach that stage, we will consider in detail the range of internal documents that we hold and decide on a case-by-case basis whether the release of that type of information would substantially prejudice either the administration of justice or the prosecution of offenders.
Concerns have been expressed about the 20-day limits for dealing with applications and for requesting a review of an authority's decision. Will you be able to deal with requests in the 20-day time frame?
We should be able to deal with a large proportion of requests in that time frame. I certainly hope that we can do so. However, it depends on where the request is made, where the information is held and very much on the age of the information. If we were talking about information that was held in archives somewhere, that process would take longer. However, I hope that we will be able to put in place systems that will enable us to respond within that time scale.
Do you feel that the new regime will impact adversely on the Crown Office and Procurator Fiscal Service?
It will certainly impact on it. I am always conscious of the effect on resources. If the regime were to be introduced tomorrow, there is no doubt that we would not have the resources to cope with it. To that extent, the impact would be adverse. However, I am a believer in greater openness in the Crown Office and Procurator Fiscal Service. Greater insight into what we do and how we conduct our business would be helpful. The service has been damaged by recent events, and greater openness might help to restore confidence in it.
Section 34(2) covers information in investigations into deaths that are not referred to the procurator fiscal or concerning which further investigations are carried out after the PF's inquiries have been completed. We have received written evidence expressing the concern that information that may emerge in the course of a PF's inquiry, which could be caught up in information on matters such as deaths and research that is undertaken into medical errors, industrial diseases and so on, would be exempt under this provision. Do you envisage that that could be a problem?
No, I do not envisage such a problem. When a death is investigated by the procurator fiscal, we try—as far as we can—to assist the next of kin in understanding, for example, decisions that are made concerning whether a fatal accident inquiry should be held. We try to share with them the details of any medical reports that are made available to us. That is a sensitive area, as we are dealing with bereaved next of kin. They want to find out what has happened, but sometimes the details of that can be very distressing. We bring people into the office, often with either the pathologist or a medical expert who has been asked to investigate the medical problem, and share that information with them. We try to do that in a way that is sensitive towards their feelings and which respects their position.
I was driving at the issue of whether some information that has come to light in the course of inquiries that have been undertaken by the PF, before they have decided not to proceed with any legal proceedings, could be useful for those who are researching the death. The case could involve, for example, an industrial disease or some type of medical error. That information could be exempt under section 34(2).
I am with you now. I would like to think further on that matter and write to the committee on it. I have given thought to the question of fatal accident inquiries generally and to how information is collected by the procurator fiscal, but it has not been suggested to me that fatal accident inquiries might be exempt under section 34(2). No doubt I am in error for failing to be briefed on that. I will write to the committee about the issue.
That would be useful.
It is quite a technical issue.
You are in charge of prosecutions and of the prosecution service. I accept that it is important that you should be independent and that people such as me should not be able to lean on you—I do not have any power, but more powerful people should not be able to lean on you. Do you think that it is possible that more information could be given about the reasons for your decisions? I am not suggesting that you should lose your independence. However, if you could provide information that was not otherwise available to the public and that explained the reasons for your decisions, that might help you to defend your position where people were worried by a failure to prosecute in particular cases or by a tendency to plea-bargain in certain courts, which resulted in a lot of villains being let off. Do you think that you could provide more information without losing your independence?
The short answer to that question is yes. However, this is a very sensitive area. From speaking to prosecuting authorities in other countries, I know that there is a wide range of views about whether it is possible to provide information while maintaining independence. England is moving cautiously towards giving reasons for decisions. In most cases, I would not be particularly happy to do that publicly. First, I do not think that it is right to expose individuals to the accusation that, although I cannot prove it, they may have committed an offence. That would open up the possibility of trial by media. Secondly, I think that publicly stating my decision or the decision of Crown counsel would begin to impinge on the independence of the system. I am very anxious to ensure that decisions do not become party-political footballs. Given the quasi-political nature of the Lord Advocate's position, that could easily happen.
I am interested in section 36, which deals with confidentiality. Section 36(1) says:
That subsection really relates to information that might pass between solicitor and client. For example, under it, one could maintain in legal proceedings that such communications were confidential.
Surely if I said to you, "Mr Boyd, I am going to tell you something in absolute confidence, and I will not tell you it otherwise," and you said that, in your professional capacity, you were prepared to accept it on that basis and to give that undertaking, you could not disclose that information later on in the proceedings if it were needed.
If you came to me as a client and disclosed that you had committed some offence, I would be bound by professional privilege from releasing such information.
No, I did not mean that. I meant that both parties had consented to keep the information confidential.
The court would not look very happily on that. You might come to me with an allegation that Mr Jackson—or anyone—had committed an offence. I do not want to pick out the deputy convener.
Mr Jackson is very robust.
I have been done for speeding in my time.
You might come to me with information that suggested that someone had committed an offence. Even if you believed that you had told me the information in confidence despite the fact that there was no solicitor-client or counsel-client relationship, I could not maintain in legal proceedings that such information should be exempt. The fact that you or I maintain that the information has passed between us in confidence does not bind the court if someone else wants that information.
You have lost me. If an informant with key information about a crime provides you with that information on the grounds that it will be confidential and that they will be exempt from any proceedings, surely that exemption must be granted.
Yes. Such an exemption would be given under section 35, on law enforcement, or under section 34.
Where exactly in section 34?
Section 34(1) says:
What if the information is not acted on, or contains other information that could be disclosed? You are just catching everything in that exemption.
I am sorry, convener. I do not read section 36 as—
I am taking you up on your comments on section 34. You gave the example of an informant who provides information that is used in a prosecution. However, what happens if no such prosecution takes place? I presume that none of the information that has been exempted could be accessed. Should not a substantial prejudice test be applied in this regard as it is elsewhere? The exemption seems absolute.
I do not think that you are misunderstanding the matter. The substantial prejudice test is in section 35, which is on law enforcement. Section 34 deals with investigations. You are right that there is an exemption in perpetuity, but that is to protect investigations and to ensure that information that is given to the police or the prosecuting authorities can remain confidential. That confidentiality is essential for the proper maintenance of the prosecution of crime and enforcement of law.
The Lord Advocate referred to section 34 and police inquiries. My concern is how the provisions might apply to public authorities that have a regulatory role, such as the Health and Safety Executive, environmental health departments or trading standards departments. If they carry out investigations and submit a report to the local procurator fiscal, and the fiscal decides not to prosecute, is it not reasonable to remove the right to exemption for the information that that report contains?
I do not believe so. It is important that the reporting authority knows that the reports that it submits to the procurator fiscal will not be transmitted on. The confidentiality of reports, particularly from the police, but also from other authorities, is very important. Those reports often contain highly confidential information.
Would it not be the case that UK legislation, rather than Scottish legislation, would apply to cross-border authorities? I was referring specifically to Scottish public authorities.
I appreciate that, but you picked out the HSE as an example. That is the one area in which we might consider that disclosure would be in the public interest. We would still have to consider the public interest even where the exemption would apply.
I am sorry that we are under such pressure today—the pressure that we are under with the bill is ridiculous and I am getting very cross about it. It is not your fault, Lord Advocate.
Delirious.
Somebody is delirious. Thank you.
Meeting continued in private until 13:10.
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