Draft Bail, Judicial Appointments etc (Scotland) Bill
We now take off our regulation of investigatory powers hat and put on our bail and judicial appointments hat.
We thank Professor Gane for agreeing to speak to us about the draft bill. The bill came before the committee only fairly recently and, at a wild guess, I would say that we are not up to speed on the detail, although members will be clear about what the bill seeks to fix—apart from any other reason, there has been so much publicity about that.
We invited you to speak to us because you have done a lot of work on the implications of the European convention on human rights for the justice system. As, in effect, the bill fixes two problems that have already arisen and seeks to fix one that it is perceived is likely to arise, we thought that it would be useful to hear directly from you about this and related matters. Would you start by saying a few words about the problems that have arisen and the problems that are likely to arise, for example, in relation to bail, if we do not proceed with the bill?
Professor Christopher Gane (University of Aberdeen):
Your summary of why the bill is at present before the committee is entirely accurate. In a sense, the bill is designed to fix some problems that have emerged consequent upon the activation of the European convention on human rights in Scots law.
With regard to bail, the first difficulty that the bill addresses is the category of offences that are not bailable under the present law. That is incompatible with article 5 of the European convention on human rights, as confirmed by a sequence of recent decisions and, most important, by a decision of the European Court of Human Rights in a case called Caballero v the United Kingdom. That case arose out of the provisions in English law that excluded murder and certain other offences from bail, in the same way as the Criminal Procedure (Scotland) Act 1995 excludes certain offences from bail.
The second issue connected with bail that the bill addresses is the right of an accused person to automatic consideration of bail. The present law requires individuals to apply for bail but, in two recent decisions involving Malta, the European Court of Human Rights held that the right to liberty and the right to release pending trial are not dependent on application by the accused person, but must be automatically addressed by the court when the person is brought before the court. According to the convention, that must be done promptly.
A couple of subsidiary matters are not quite so clear under the convention, but it is none the less right for the bill to address them. There is the question of bail when a person is already deprived of their liberty. The bill makes it clear that the fact that one has already been deprived of one's liberty and is alleged to have committed a further offence should not preclude one from consideration of bail. There is also the removal of what might be described as discrimination between persons who appear before a sheriff and jury and those who appear before a high court and jury, and the right of appeal for individuals in those circumstances. At the moment, the law tends to make it more difficult for individuals who are charged with more serious offences and held in custody to get access to bail.
The concerns, as I understand from the public press, relate particularly to the removal of the bar on bail for certain serious offences. That seems to be an inevitable conclusion of the activation of the European convention on human rights in domestic law. If I have a substantial criticism of the bill, it is not for what it says but for what it fails to say. It makes no attempt to address the question of which criteria the court should use in determining whether a person should be deprived of their liberty without bail.
The bill also fails to address a number of other questions that might be lingering in the background, such as where the burden lies in establishing whether a person should be deprived of their liberty and which standard the court is meant to apply in making that decision. Those issues have not been well addressed in the bill so far.
Phil Gallie, the member who is likely to have pressed you hardest on this issue, is unfortunately not present today, so Gordon Jackson and I are playing advocate.
We shall be good Tories for a minute.
I have two questions. First, what would happen if we did not enact these changes? Secondly, you have expressed a couple of criticisms. Can you expand on what might be the fall-out from not addressing those issues in this bill? Would we be laying ourselves open to challenges further down the line?
If we did not remove the distinction between bailable and non-bailable offences, come 2 October—if not at the moment—any instance in which bail was denied to a person who was, for example, charged with murder, would be incompatible with that person's convention rights. Simply on that ground, his detention would be an unlawful act.
The same applies to the automatic consideration of bail. The European Court of Human Rights has clearly said that an individual arrested on suspicion of having committed an offence has the right to have his or her deprivation of liberty considered automatically without application. If we do not do that, we are in violation of the convention and certainly on 2 October such a failure would be an unlawful omission under section 6 of the Human Rights Act 1998.
A significant weakness in the bill is its failure to offer any guidance on how the courts should exercise their discretion on bail decisions. That matter is addressed in paragraph 17 of the Executive's policy memorandum, which says:
"The Executive considered whether to list on the face of the legislation the common law criteria that the sheriff must consider in exercising his power, but decided that this would add nothing and might simply confuse the position at common law."
I do not find it convincing to say that setting something out in clear statutory language would confuse matters; it might just help to clear up some current difficulties with common law. More important, the Executive goes on to say:
"It would also make it more difficult for the courts to reflect future developments in domestic or Strasbourg case law. The Executive considered that it was more appropriate to leave the matter as one of common law so that judges could take a reflective and reactive approach as Convention jurisprudence and social conditions and attitudes develop."
Two comments can be made about that statement. First, it leaves the courts in the difficult position of having to work out as they go along the extent to which the present criteria for granting bail are compatible with the criteria established in the convention case law. That is an unfair exercise, which in some contexts might prevent injustice to an accused person, but might also lead to a situation where a person is inappropriately released from custody.
We must also understand the complex relationship between the common law and the case law of the European Court of Human Rights. Once the Human Rights Act 1998 comes into force in the autumn, our courts will in any case be required by section 2 of the act to have regard to the case law of the European Court of Human Rights. It is not a question of legislating now in a way that would subsequently make things difficult under Strasbourg case law; we must have regard to Strasbourg case law anyway, although we are not bound by it. I might be making a hostage to fortune, but I would not have thought it beyond the ingenuity of legislative draftspersons to construct a set of statutory guidelines that indicated which of the present criteria should continue to be used and the relative weight that should be given to them. After all, this is not an issue on which the European Court of Human Rights has been reticent; and it is not an issue on which it is terribly far away from most of the decisions made in our courts anyway.
Two significant differences arise as a result of the convention. First, there has been the rejection by the European Court of Human Rights of the statement that the gravity of the offence is, of itself, sufficient reason to deprive a person of their liberty pending trial. The court has been fairly clear that that is not a sufficient reason to deprive a person of their liberty before they have been convicted. The second difference relates to the strength of the case against the accused; again, that in itself is not regarded as sufficient reason to deprive a person of their liberty.
In case law in Scotland, when there is an especially serious crime, and the Crown is opposed to bail, there must be very good reasons for going against the indications of the Crown. That is incompatible with the convention. On the other hand, there are plenty of indications in convention case law that the criteria that the Scottish courts are comfortable with, and are used to using, are compatible with the convention. It is not at all unreasonable to suggest that we should place those criteria in the bill.
I have one question on bail and another on justices of the peace. You mentioned some difficulties in the common law with regard to bail. I might be reading the wrong things into your presentation, but do those difficulties arise because there is no standardisation in Scotland across sheriffdoms? Is that what you were saying?
Yes. That is what is reported to me by practitioners in different parts of Scotland—especially by practitioners with experience of working in different parts of Scotland. Certain criteria are more relevant for some sheriffs than for others. That is not uncommon.
As I understand it, there are two categories of justices of the peace—signing justices and full justices—to get over the problem that arises when there is not a separation of powers. The local authority cannot be seen to be sitting on the bench as well as running the courts and collecting the fines.
Is there not another way round the problem? I have received a submission from South Lanarkshire Council, suggesting that—rather than using a hammer to crack a walnut—any fines levied should not go back to the local authority, and that paying the administration costs of the district courts should not be the obligation of the local authority. That would deal with the problem of not having a separation of powers, and it would then be possible to keep justices in place who have local knowledge, who have seen people coming through the system, and who can say, "I know who you are, I have seen you before, Jimmy."
That would be an alternative solution. Removing justices who happen also to be councillors might not be a good thing for the court: you would be removing people who were already making a significant contribution to public life in Scotland. I know many people who are involved with district courts and who think that removing such people could, in some cases, weaken the courts.
If we cannot have councillors, where would other full justices come from? In its memorandum, the Executive says that there are no financial implications. It seems to me that there must be financial implications for somebody, unless the number of justices is being cut. I am not sure about that.
I am not sure, either, what the financial implications of this would be. I am not privy to the calculations. I assume that financial considerations are highly pertinent to the decision that has been made not to make greater use of paid justices—of stipendiaries.
What about personnel? Would there be sufficient experience out there if this were to go ahead and exclude the current justices?
I have only anecdotal evidence, but I understand that the situation is variable throughout the country. There are district courts where there is no difficulty in finding staff, and there are areas in Scotland where it is not easy to find enough district court justices.
I see. Thank you.
Before I bring Gordon Jackson in, let us return to the issue of the councillors who are justices of the peace as well. Some of us have started to receive letters about this, and that is what Christine Grahame was referring to. They suggest resolving the issue by way of an amendment. I think that Christine was a little kind in the way that she described that solution.
What those letters suggest may not be within our competency in this Parliament, which is a problem. They suggest an amendment to the bill that would seek to remit all fine income to the Exchequer and, in return, allocate it to local authorities through increased revenue support grant. From the Exchequer, it would have to come back to us via the Scottish block grant, before it then came back via the revenue support grant. I suspect that that is a clumsy mechanism for achieving that end result.
It may be unfair to ask you this without having given you prior warning, but can you think of other ways by which the defect could be cured without resorting to barring councillors from being justices of the peace? If you cannot answer that now, that is okay. If any ideas occur to you over the next week or two, you might be kind enough to let us all know.
I would like some time to answer that question, but I am happy to respond to the committee.
We would be interested to hear your response. That is clearly going to be one of the big issues throughout Scotland, concerning what this bill proposes. Sooner or later, we will all receive letters on the subject.
I wanted to address paragraph 17 of the Executive's policy memorandum, but that has been dealt with. I find what you say a little difficult to accept, but I suspect that there is nothing more that you can say. We just disagree, and that is the end of it. Perhaps you can help me further. Why do you recognise such an advantage in putting statutory guidance—to use the phrase of the week—in place? Experience may show that the more there is in statute, the more problems there are, because of the battleground over definitions.
As the common law develops, appeals will be made in Strasbourg, with people eventually approaching the Privy Council of the House of Lords if they feel that, although they should get bail according to Strasbourg, they have not got it. Why do you not find such flexibility attractive?
Because it increases the risk of inconsistency of decision making and, at least in the short term, of the application of the common-law principles vis-à-vis what is or is not permitted according to the Strasbourg jurisprudence. Over the medium to long term, that risk of inconsistency might diminish. However, at the moment there is no reason why we should take that risk.
Would a solution be—as happened many years ago—for the Lord Justice Clerk simply to issue guidelines to sheriffs? That would not be in statutory form but would produce a measure of consistency, although the common-law guidelines would still be flexible, as the sheriffs all know that the Lord Justice Clerk is the common ground of appeal from them. Would that be useful?
I am not sure how to phrase my answer to that without sounding offensive to just about every senior member of the judiciary. I do not think that it is necessarily appropriate, in a democracy, to concede to the judiciary what might be more appropriately regarded as legislative matters.
What I had in mind was not the Lord Justice Clerk taking the place of the legislature and inventing new guidelines, but him spelling out the common-law guidelines, bearing in mind that he spells them out anyway when the decisions of individual sheriffs are appealed to him. It is his job to spell out what the common law is. I am saying merely that he should spell it out in advance, for the sake of consistency.
It is very unusual in Scots law for the courts to issue that kind of interpretive guidance. They will not do it on sentencing.
The Lord Justice Clerk did it before, many years ago.
There was a statement around 1921.
That is before my time.
Before mine, too.
There is nothing inconsistent in the proposition that the basic framework should be contained in legislation and supplemented later on. However, my first preference is for important matters—we are dealing here with the deprivation of individuals' liberty—to be set out in a statute.
I want to pursue the question of whether this should be prescribed in law. You said that we must have regard to ECHR case law, which does not allow for rejection of bail on the grounds of the gravity of the offence or the strength of the case. I could not see what other grounds there would be for not allowing bail.
My second point is related to that. I understand that, at the moment, the police would hold a murder suspect in custody for seven days while they gathered evidence. That would include conducting an identity parade and so on. However, if a suspect automatically had the right to appear before a sheriff and request bail, that might hamper police investigations. For that reason, I have concerns about prescribing this in law. Leaving the provision rather general might allow us to get the balance right between letting the police do their job and gather the right evidence and applying the ECHR.
You are right. We have to strike a balance between the public interest in having crime efficiently and fairly investigated, and the public interest in protecting people from unnecessary deprivation of their liberty.
I said that, apart from the instances to which I have referred, there was no significant inconsistency between what the Scottish courts do and what the European Court of Human Rights stipulates. There are several factors that the ECHR would consider to be relevant when deciding whether people have been improperly deprived of their liberty under article 5 of the convention. They include: the risk of the alleged offender absconding, to which a court can properly have regard when deciding whether bail should be granted; whether the individual will interfere with witnesses; whether there is a risk of the suspect offending while they are released from custody on bail; and the interest of the prosecutor in pursuing the investigation against the offender.
There are other criteria with which we are rather less familiar. They include protection of public order, which tends not to feature in Scottish discussions of bail. Interestingly, the European Court of Human Rights reckons that, in certain instances, it is relevant to have regard to the need to protect the offender. Many of the criteria that the ECHR recognises would be familiar to the Scottish courts as well as to Scottish offenders.
Does that answer your question?
The first part of it.
And the second part was?
The automatic right to go in front of a sheriff to determine bail or not could hamper police investigations, could it not? The way that I read it is that a person would come before a sheriff virtually within 24 hours.
Probably, yes.
But at the moment, in Scotland, suspects are kept in custody for seven days.
Pauline McNeill is wrong. The police do not keep suspects in custody for seven days. People come before the sheriff within 24 hours, by which time they are out of police control. They are not suspects, but people who have been cautioned and charged and can no longer be questioned by the police. It is the sheriff who puts them in custody for seven days.
The difference is that the sheriff will need to consider bail at that stage. It has been fairly automatic that people did not get bail for seven days, to allow inquiries to be completed. Now the sheriff will need to consider whether granting bail may hamper other inquiries. The good thing is that it will be for the authorities to make a statement to justify that, rather than it being automatic. It is not true that police hold people as suspects for seven days. They go to the sheriff within 24 hours and the sheriff puts them in jail, out of the hands of the police.
I wish to ask more generally about the way that cases would be argued under the European convention on human rights in respect of bail. As we are aware, Scotland has strict rules about the length of time people can be held in custody. We have far stricter rules about that, as far as I am aware, than any other jurisdiction in the European Union, including England and Wales.
Absolutely.
Cases involving bail are argued before the European court. Would the counterbalance be taken into account? For example, would the judges bear in mind the fact that, under Scottish jurisdiction, bail—as opposed to custody—is very different to what it might be in Spain, where people could be held for years before reaching trial? It has puzzled me whether that is taken into consideration.
You have touched on a rather complicated part of the theory of the convention. However, it is entirely appropriate within the context of the human rights dimension of the Scotland Act 1998 and the Human Rights Act 1998 for a Scottish judge to construe the European convention on human rights in the light of the Scottish experience. We are not bound to constrain ourselves to the standards and criteria that are applied by the European Court of Human Rights. You are right on that point, convener.
The other interesting point is that bail is one of the things that relaxes the timetable in criminal proceedings.
That is right—it is a year and a day.
Your general question was how free we are to construe the convention, particularly in the context of bail, according to local standards. We are really quite free, I think. We cannot disregard what is said in Strasbourg, but we do not have to be bound by it. The only trouble is that further down the line, if we develop an interpretation of the convention that is subsequently challenged in Strasbourg, we have to be able to show that that interpretation is different to but not incompatible with the convention rights.
This is an issue in states that routinely hold people in custody for considerable periods without granting bail. In other jurisdictions there are extremely strict rules, and one would expect bail to be applied less freely because of the time limit protection. Are you suggesting that we could say that our strict rules on time limits in relation to custody mean that we are not required to follow the strictures on bail?
That argument must be considered in the context of the European Court of Human Rights approach, which is to say that when it comes to deprivation of liberty at the pre-trial stage, the rule is liberty and custody is the exception. We must consider our argument against that kind of presumption in favour of bail. As far as I am aware, the European Court of Human Rights has never read its own case law in the terms that you suggest. However, it would not be impossible for us to interpret the case law in that way.
Thank you. That concludes our questions, Professor Gane. Would you be so kind as to consider the issue of councillor justices of the peace and whether there might be alternative mechanisms to those suggested in the bill? If, having thought about it, you decide that there is no alternative mechanism, it would be very helpful for us to know that.
I will certainly do that.