Justice 2 Committee, 15 Jan 2003

Meeting date: Wednesday, January 15, 2003

Official Report 108KB pdf

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Criminal Justice (Scotland) Bill

Item 3 on our agenda concerns the Criminal Justice (Scotland) Bill. I refer members to a letter that we have received from the Deputy Minister for Justice, Hugh Henry, which provides the further information on electronic search warrants that we requested at stage 2. Members will recall that the committee asked a number of questions about amendment 16, which dealt with electronic search warrants. The Executive agreed to withdraw the amendment, so that it could clarify some of the issues that we had raised. It has now done that in a paper, which is attached to the minister's letter. I hope that members have had a chance to examine the paper. If they are still not satisfied, they may now raise any issues that they consider to be unclear.

The Executive appears to be reasonably satisfied that everything is in order. However, I am concerned that there appears to be no hands-on facility in the process from start to finish. I am all for technology, but there must be someone at the end of it. Here we are dealing with permission to search people's homes, which should not be granted lightly.

By setting up such a system, we will dilute judicial control of the activities of the police, which is not always satisfactory. That makes me sound terribly liberalistic in my outlook, which most members would regard as uncharacteristic. However, the issue that I have raised must be borne in mind.

On the basis of the answers that we have received to our questions, however, I have no serious objections to the provision.

I read with interest the material that the minister provided in his letter and in the attachment to it. Nothing in that material leads me to believe that I should oppose the amendment that was withdrawn and that we expect to be lodged again at stage 3.

However, my experience in a previous life leaves me with one or two unanswered questions. In December, the minister offered to provide the committee with a direct briefing. I recognise that not all members of the committee may want to be involved in that, so I would be happy to act as a reporter on behalf of the committee, if members so wish.

To make clear to the committee the importance of getting the provision right, I cite a case affecting a Scottish prisoner who was held at Chartley Hall in Staffordshire. That prisoner used a method of encryption to write to someone outside the prison. A third party broke the encryption and modified the letter and, as a result, created a false impression of the activities in which the prisoner was involved, which subsequently led to the execution of that prisoner. The prisoner in question was Mary Queen of Scots, who wrote the letter on 17 July 1586, but—

Forgive me, but I am not the only person who is struggling to make the connection between your example and electronic search warrants.

The example is exactly analogous. There is a need to be able to protect in a secure way information that, because it is held electronically, is potentially available for modification by a wide range of people. The explanation that the Executive has provided is not quite sufficient to assure me that such protection is in place. However, my expectation is that, when further explanation is provided, it will prove to me that such protection is in place.

Well, I am glad that you have cleared that up. You are right to say that electronic warrants need proper scrutiny if we are to pass the proposal into law. We know that the issuing of warrants has generally been problematic in the past. The Executive briefing outlines one reason why a procedural change was made to require the involvement of the procurator fiscal—that was due to some of the difficulties that were experienced in obtaining accurate warrants.

However, I still have a few concerns. I am not happy that the bill uses the term "justice" to mean both justices of the peace and sheriffs. We previously raised the straightforward question whether the bill as drafted meant that sheriffs could sign a warrant regardless of whether they were in their own jurisdiction. We were told that that was not the purpose of section 49, but now we are told that "justices" mean justices and sheriffs. I am not a member of the Plain English Campaign but I subscribe to its theory. If the bill means justices and sheriffs, it should say so.

Another issue, about which I know Bill Aitken is also concerned, is whether electronic warrants should be followed up in writing. We perhaps need further discussion with the justice department about that. I am sure that sheriffs will be quite pleased if the bill is passed into law, because they will no longer have to drive to the border of their jurisdiction to sign off warrants for police officers in cars. However, I would like some understanding of the rota system that is used to ensure that the signing of such warrants is shared. There might be a tendency to go to the nearest sheriff all the time.

I have a few concerns that I would want to be settled before we pass the proposal into law. Stewart Stevenson may be right to suggest that we simply keep a watching brief on the issue—perhaps he could be our reporter on that. However, I am reasonably satisfied with the Executive's explanation, provided that the language about justices and sheriffs is cleared up.

In Glasgow, the rota system is operated so that sheriffs are not required first thing in the morning if they have lost half a night's sleep because they had to sign a warrant. That is simply common sense.

On the other aspect, I understand that sheriffs were required, until comparatively recently, to live within their commissioned area. If we were to try to enforce such a requirement nowadays, there would be a considerable—and perhaps understandable—outcry from the sheriffs. However, the existing mechanisms are in place to deal with the issue of who signs the warrants.

Another question is what would happen if a sheriff lived considerably outside his jurisdiction. Would the procurator fiscal have to travel to the sheriff's home?

No. I understand that, because of what has been happening, Harthill service station can be an interesting place in the early hours of the morning.

But sheriffs would no longer need to do that. They will be able either to sign the warrant electronically or to sign it when they are outwith the jurisdiction that they cover. How would the process work? Presumably, sheriffs would be required to have computers in their homes or would need to go to some kind of office to provide an electronic signature.

They would have computers in their homes.

It is fair to say that the process is not clear from the explanation that has been provided. However, I think that we need not be unduly concerned that the process would be influenced either way by the technology. Whether it is influenced in a particular way by the legal process is a different issue.

Is the committee reasonably satisfied with the briefing that has been provided?

Members indicated agreement.

Sufficient unto the day.

We now move into private session.

Meeting continued in private until 13:03.