Good morning and welcome to the Justice 1 Committee's 11th meeting in 2006. I apologise for the late start. We had a briefing which, as usual, took longer than we imagined: the Criminal Proceedings etc (Reform) (Scotland) Bill is a large one, as the Executive officials who are here probably know. We have received one apology, from the deputy convener, Stewart Stevenson, who has other business.
I have questions on bail reform. The bill will codify the circumstances in which bail can be refused, yet you will be aware that the Glasgow Bar Association and the Procurators Fiscal Society see that as a retrograde step and believe that common law has the necessary flexibility to deal with the issue more advantageously. How do you respond to that?
The Sentencing Commission for Scotland considered the issue carefully and took the view that, on balance, the advantages of clarity for all concerned, including those who appear before the courts, outweigh any dangers of inflexibility. Ministers considered the evidence from the Sentencing Commission and took the same view. The substantial advantages are transparency, clarity and fulfilling the Executive's responsibility to set out a clear framework for the law in legislation. Ministers took account of the points that Margaret Mitchell mentioned, which I suspect were made during the Sentencing Commission's consultation on bail as well as in evidence to the committee. I presume that she is talking about evidence that the committee has had in writing, which of course we have not seen, as it is not yet available to us. In fact, that is a repeat of a discussion that the Sentencing Commission has had. Ministers agree with the commission that the advantages of setting out clearly in legislation the criteria for bail outweigh the possible difficulties. There is always a vulnerability to challenge in the courts—that is what the courts are for.
The policy memorandum mentions the non-exhaustive list of factors that may be relevant to the court's assessment of bail. Does that cause a problem in that it does not provide the clarity that you hope the codification will achieve?
Section 1 does two things. First, it lists the prime reasons for refusing bail under the European convention on human rights and then it gives an illustrative list of circumstances that the court may take into account. The list is deliberately not exhaustive, because other circumstances might arise.
I will put the question another way. Would it be possible to keep the flexibility of common law, without codifying, and merely give the reasons for refusal of bail in court?
That could be done. However, ministers made it clear that they wanted to be as helpful as possible to the courts so that they could spell out the reasons for refusal as reflected in ECHR jurisprudence and with the help of a guiding list. There is an underlying recognition that the decision is always one for the court and that we should not constrain the court's discretion to take a particular decision on a particular day. Therefore, the list should be illustrative rather than exhaustive.
So it is your view that by codifying you will not restrict the courts' discretion or the flexibility that they currently enjoy in common law.
Courts would in any case be constrained by ECHR jurisprudence. Making the list illustrative rather than exhaustive is deliberately designed not to impose an artificial constraint on courts. If we tried to be exhaustive—we did consider that—we would end up with a list that would be so long that it would be more or less unprintable because we would have to think of every possible order or circumstance. We would be sure to miss something out and, anyway, cases provide circumstances that no one has thought of. We must give courts the right to decide on the day that, in all the circumstances of a case, something is a relevant consideration. Scott Pattison might want to say more about that.
What Wilma Dickson said is correct and I whole-heartedly agree with it. Common law is accessible to lawyers and is understood by them and by the courts. The law on bail, including the grounds for considering whether to oppose bail and remand an individual, dates back to decisions from the 1970s onwards. For the public's benefit, it is useful to have in a bill a clear statement of the grounds for opposing bail and remanding an individual, simply because that is less impenetrable for the ordinary man in the street than is the common law.
I am aware that a colleague wants to ask a question, but I want to make one more point. Is there not a danger that an illustrative list would result in a hierarchy of things and that what was on the illustrative list would become more important than something that was not on it? Could we not achieve transparency and making the law less of a nightmare for non-solicitors and the listening public by the court just explaining the reasons for refusal of bail, without what has been described as the cumbersome and unnecessary procedure of codifying existing law? Are we not creating problems by doing that?
Again, I emphasise the fact that the list is illustrative in the first instance. I would not expect sheriffs to feel fettered by it at all. There is a two-pronged approach of setting out clearly in the bill what the grounds are for refusal of bail, but leaving discretion to the court. There is also a requirement in the bill for the court to state its reasons for refusal, which creates the transparency I think we would all like in this area.
Frankly, does all this not just create a bit of a dog's breakfast? We are told that the illustrative list is in the bill for the public's understanding: "There's this list of things and you can be refused bail if you meet any of the criteria. But by the way, it isn't exhaustive. There might be something else." Would it not be easier simply to leave the situation as it is just now, given that the courts, as you correctly say, will be required to state the reasons for refusing bail? If your intention is, as you said, not to fetter the court's discretion, why is the list in the bill in the first instance?
It might be worth emphasising that the first principle that is set out in the bill on what the court must consider is that the court
Is that different from the situation now?
No. That states the position now.
Exactly.
However, the bill illustrates the types of circumstances that might be relevant in a case. It must be arguable that that helps to clarify the situation. The bill says that everything must be considered and describes circumstances that might be relevant to a case.
I have no difficulty with how you present the provisions, which makes sense in some ways. There is another way of proceeding, which Margaret Mitchell and Bruce McFee suggest. However, the explanatory notes say that:
In codifying the law, it would be impossible to set out every situation that the court required to consider. At common law and in Strasbourg jurisprudence, it is essential that the court can consider all the circumstances of a case. That is what proposed new section 23C(2) of the Criminal Procedure (Scotland) Act 1995 specifies. However, it goes on to describe circumstances that the Strasbourg court has recognised as being of relevance to whether bail is granted.
If that is the Executive's position, do you agree that it would have been helpful not to use the word "codify"?
Section 1 tries to do two things: to set out clearly the key ECHR grounds for refusal, which could relate to the codification point, and to provide helpful illustration for clarification.
I will cut to the chase. I have heard and understood what you have said. You are saying that you are not attempting to codify the law. Is that correct? Either you are or you are not.
We are putting the law on a statutory footing, whereas at present, the relevant law is common law. I tried to emphasise that, in codifying the law, it would be impossible to be more prescriptive. The court's discretion must remain.
So you are codifying the law.
Yes.
It was said that the list was illustrative, so I presumed that you were trying to move away from the idea of codification.
We are putting in legislation what it is possible to put in legislation without encroaching on the court's discretion. We are trying to strike a balance. As Paul Johnston said, under the ECHR, the court must have free and unfettered discretion in its role as an independent and impartial tribunal.
I have difficulty with codifying something in an illustrative way or illustrating something in a codified way. You are telling me that you are codifying part of the law and illustrating something that might—somewhere or nowhere—arise some time in the future. In effect, you are creating a hierarchy with two tiers: issues that are considered important enough to be codified and everything else that is not in the bill. I suspect that that will leave court decisions open to challenge.
What we are doing in proposed new sections 23B and 23C of the 1995 act is saying—straightforwardly, we hoped—that
If the bill was to be passed as it stands, would it alter in any way whatsoever the way in which the system operates at the moment?
The bill reflects the clear ECHR tests that apply to decisions on whether bail should be granted. The proposed new provisions should reflect the way in which the system operates at present.
That might be true in your experience, but presumably there had to be a reason for drawing up those provisions. Do the courts take cognisance of ECHR regulations at the moment? I suggest that the answer is yes.
Absolutely.
Then, if your interpretation is right and the bill is passed, the new provisions will make not one whit of difference.
We have always said that the minister's commitment was to set out clearly the framework within which bail operates and leave the decisions to be made in each case by the court, which is the only body that is in a position to know the circumstances of any one case. The proposed provisions set out the framework within which the courts operate. The provision requiring reasons to be given in every case also helps to clarify and improve public understanding of the functioning of bail.
I think that we had better move on from that topic.
I want to pursue one other aspect of bail. If the Crown does not oppose the granting of bail to an accused who is awaiting trial, the convention seems to have been that the court does not oppose it. The bill changes that. Why?
The law is not 100 per cent clear on that point at the moment. From cases such as Spiers v Maxwell and another recent case, the general understanding is that the court cannot refuse bail unless there is opposition from the Crown. The ministers' feeling is that as an independent and impartial tribunal, the court's discretion cannot be fettered in that way. It might not mean an enormous change in practice, but to underline the centrality of the court, the bill says that the attitude of the prosecutor towards a question of bail does not fetter the court's discretion. The bill also gives the court power to ask questions. Of course, courts already have the power to ask questions and they do that in many other circumstances, but it rarely happens in questions of bail.
That is right. The change proposed by the bill is consistent with strengthening the court's position as the arbiter of liberty and allowing the court to test the Crown's position on bail. Again, I do not see that occurring routinely, although it would be open to the court to question the prosecutor whenever it so wished. In most cases where the Crown does not oppose bail, the prosecutor's response would be that there was no legal basis for opposing bail in the statutory or common-law criteria of either ECHR or domestic legislation. I would call it a change to the common law that strengthens the court's position as the arbiter of liberty. We are comfortable with that.
I welcome the provision and you have explained further why you are quite happy that the court would be able to challenge the position by questioning the fiscal and seeking more information than it does at present.
The Executive has previously stated, in paragraph 14 of the policy memorandum published along with the Bail, Judicial Appointments etc (Scotland) Bill, that under existing common-law rules serious repeat offenders should be granted bail only in exceptional circumstances. In the light of that, what difference will this bill's provisions on bail for certain serious repeat offenders make in practice?
As we have said, the bill sets out the current practical position. There will be very few circumstances in which there would not be justifiable grounds under ECHR for refusing bail to someone who has a serious previous conviction of the type described and is on a charge for a similar serious offence, on the ground—given that there is a demonstrable track record—of there being a risk of further offending.
So there is no practical difference.
I take the point. However, the feeling is that it is important to be able to get in touch timeously with an accused who is on bail. A vulnerable accused may well use "Care of my solicitor" as their domicile of citation. I imagine that that is quite common. The provision in the bill applies only when the domicile of citation is the accused's normal place of residence, so there is a degree of flexibility. If I were a very vulnerable accused, I imagine that using "Care of my solicitor" might be a better option for me and for my solicitor.
But you are in a position to make that choice. I am concerned about the issue raised by the Disability Rights Commission. I wonder whether the bill meets the duties to avoid discrimination, in particular in relation to young offenders who have difficulty comprehending what is happening. We would not expect them to be able to make such a choice.
I have not seen the submission, but I doubt whether we could be accused of discrimination when the provision in the bill simply sets out a reasonable process for ensuring that an accused keeps in touch and that the court can keep in touch with them. Once we see the submissions, we will be happy to consider the points that are raised. It is difficult to say too much, but I would not have thought that the procedure is an obvious vulnerability.
I do not think that it is, but I will be interested to see the submission in due course. We must remember that in most cases the individual who presents a domicile of citation to the court is legally aided and has the benefit of legal advice from the outset. That is an important safeguard.
Thanks. I would appreciate it if you were to consider the matter. I have a general concern that vulnerable offenders should be clear about what is happening to them.
Is the provision to which Marlyn Glen refers only for summary cases?
No. Bail applies throughout.
The Sentencing Commission's consultation paper draws the conclusion that the average daily remand population in our prisons has increased by a third over the past 30 years. Is it the intention of the bill to reduce the number of remand prisoners and, if so, how will it achieve that objective?
The intention in the bill is to set out clearly the law on bail and to support better targeted initial bail decisions. We have no target for increasing or reducing the number of prisoners on remand; the approach is very much the one that was laid out by ministers in the bail and remand action plan, which acknowledges the partnership whereby the Executive sets out the framework for bail and the courts take the decisions. It would therefore be difficult to set a target for increasing or decreasing remand.
Given that the bill makes provision to increase the maximum sentence in certain cases in which bail conditions have been breached, what work has been done to estimate the effect on average daily remand figures in the short, medium and long term?
The Scottish Prison Service considered the bill's overall impact, which has less to do with the effect on the daily remand population than it has to do with the effect on the daily prison population. Some provisions might impact on remand and some might impact on sentenced prisoners, who might receive higher sentences for breach, for example. I think that the SPS wrote to the committee to express its view. The SPS thought that the potential impact of the whole bail package, including the tightening up of enforcement, which is not included in the bill, might amount to 25 to 35 additional prison places a year. However, the SPS calculated that the increase in the prison population would be partially or wholly offset as a result of the fine enforcement provisions, which will lead to more effective administrative fine enforcement before the imprisonment stage is reached. Currently, some 61 prison places are occupied every night by fine defaulters; obviously many more people go in, but I think that the average sentence is 11 days.
What is the Executive's view on the matter?
We agree with the SPS.
Did the Executive calculate the figures?
Yes.
Did it do so before it received the SPS's view?
We gave less consideration to the prison population, which is a matter for the specialist expertise of the SPS, than we gave to other matters. As part of our work on the bail and remand action plan we undertook modelling on the possible impact of provisions in the bill—I think they are all well in line.
Do you mean that the Executive's projections were roughly in line with those of the SPS?
Yes.
Part 2 of the bill is on proceedings. The report of the McInnes committee favoured the setting of time targets as a means of improving the speed of the summary justice system. What targets currently exist? Are the witnesses involved in further work to develop targets?
Police forces in Scotland are subject to a 28-day target for the initial reporting of cases to procurators fiscal. Thereafter, the Crown Office and Procurator Fiscal Service has internal targets on the timeframe for proceedings in the ordinary course of events. The targets are clear and information about performance against those targets is published on our website. There is also a joint target for the COPFS and the Scottish Court Service on the conclusion of proceedings in the ordinary course of events, which Cliff Binning might say more about.
In support of the all-through target that the Scottish Court Service has jointly with the Crown Office for the disposal of summary criminal business, the SCS has a target to dispose of 85 per cent of summary court cases within 20 weeks of their first calling in court. Current performance is about 81 per cent. That target contributes to the overall target for the throughput of summary court business.
The topic was the subject of debate in the deliberations of the McInnes committee. I back up what Scott Pattison and Cliff Binning said about the work that is under way to ensure that cases progress through the system as quickly as possible. The McInnes committee received a number of submissions and some members of the committee were in favour of a rock-solid time limit beyond which cases simply could not proceed. However, the majority of the committee concluded that, ultimately, the people who would benefit from that would be offenders in cases that, for one reason or another, did not make it through all the phases in the time available.
In parallel work streams—not as part of the bill—we are seeking to improve the management information on, for example, the time that cases take, both overall and from stage to stage. It is hard to set properly calibrated targets until one has good, real-time management information, so a lot of work is being done on that.
I appreciate that the targets do not necessarily need to be in legislation and that things will happen without that, but is the Executive considering including provisions on targets in the bill?
No, I do not think so. We considered setting a statutory target for summary cases but we concluded that that would not be beneficial, for the reasons that have been articulated. We are working through a number of channels. The national criminal justice board brings together all the stakeholders and has a number of high-level goals. It is managing a programme of work including work on the system model, on the improvement of management information and on other areas, such as improving the handling of warrants.
We will concentrate on the bill, then; perhaps we will come back to statutory targets at a later stage.
On the scale of use, there has been some pilot activity, particularly in Grampian, in which we have looked at the greater use of undertakings. Undertakings reschedule the process. They do not change the workload, but they involve work at an earlier stage. We have to be clear that this is not just about getting cases into court quickly, as that would just shift delays, with cases stacking up in court. The process needs to be considered end to end, which is where the system model work comes in. I do not think that we will have a 10 per cent plus or minus target for undertakings, as the system model work will give us a better spec for the kind of cases in which undertakings would be appropriate, in the context of the end-to-end court process. Just shovelling stuff in rapidly at the front end without working out what consequences that will have for the back end will not work.
This is one of the significant work-stream areas that I referred to earlier. The Crown Office and Procurator Fiscal Service is working closely with the police and the Scottish Court Service to work out the optimum use of undertakings from locality to locality. There is a still a lot of work to be done between the partners on this area, but our initial view is that a one-size-fits-all approach might not work from jurisdiction to jurisdiction. The best approach in the first instance is probably to consider the categories of crime that might be best reported by way of undertakings. We are considering the process carefully and trying to work out in which cases undertakings would be appropriate. We see undertakings as a major opportunity to speed up business, provided that we can model the process properly and move incrementally on the changes.
Is there anything that you would consider introducing to ensure that you do not get that bulge at a later stage?
The essential way to progress would be to move incrementally. We could start by considering the categories of crime that should be reported by way of undertakings and revisiting the Lord Advocate's guidelines to the police on liberation and the use of undertakings. We can gradually increase the use of undertakings so that we do not have a big bang in the system and cause the bulge to which Wilma Dickson referred. If we move incrementally and gradually increase the numbers over the first year or two of the new system, we will find out what the optimum percentages are. For what it is worth, those percentages might change from jurisdiction to jurisdiction in line with changes in the spectrum of crime.
On different jurisdictions, you said that you have already started considering undertakings in more detail in Grampian. Do you expect undertakings to roll out in different areas once the bill is passed, or will they come in everywhere at once?
We have not got that far yet in the thinking on the on-going work stream. We will have to clarify our thinking and planning in relation to which cases should be reported in that way and then begin to look further at the jurisdiction approach.
Although the measure has been welcomed, concerns have been expressed that introducing additional conditions might cause further problems. For example, the police might not know an individual's circumstances.
The Lord Advocate will issue guidance to the police on the imposition of conditions. However, we acknowledge the problem that you have highlighted, which is why section 6 also contains a reserve power to be used as required to support consistent use of the new power by stipulating that a more senior police officer with more experience must sign off the conditions. That reserve power will be used if problems emerge, but the first line of approach will be the Lord Advocate's guidance to the police.
As well as the project in Grampian, there is the West Lothian criminal justice project, which, as we were told on our visit to Linlithgow sheriff court, has been very successful in getting people into court more quickly. Has any thought been given to rolling that out?
We intend to consider any lessons of general application that can be learned from the Grampian and West Lothian projects. However, as Scott Pattison has pointed out, the solution for a very rural area might not be the same as that for a densely populated urban area. As a result, after drawing out the general principles, we might have then to apply them slightly differently, depending on local resources and circumstances.
Although it is still early days, some significant lessons and themes have emerged from the various pilots, including prompter reporting; increased use of undertakings at the front end; closer joint working between the reporting officers and the procurators fiscal who are marking the cases or taking the initial decisions; and involving the defence solicitor in the process. Moreover, the Grampian and West Lothian projects have used different models of early disclosure that the system model work stream that I mentioned earlier will examine carefully. We will take all those themes into account in working up the best system model for summary justice.
As Scott Pattison has made clear, some very interesting developments have emerged from the pilots. They are being factored into the wider summary justice reform programme, of which this bill forms a crucial part. We should also bear in mind the fact that, to date, the work in Grampian and West Lothian has applied only to selected samples of the system, not to the whole system itself. Before we decide whether to implement particular provisions, we will need to be confident that they will not have any unintended consequences when they are multiplied out into the whole system. However, that is part of the current underpinning work.
Are you able to tell us, off the top of your head, two or three key points of delay in the summary system?
Yes, but I should point out that the Justice Department's work on system model reform is looking at that very issue.
I have to offer an observation at this point. When you ask practising solicitors what they want out of a summary justice bill, you get the answer, "We want a speedier system." Most people would say that a summary justice system is supposed to speedy. Getting speed in the system must be at the heart of the bill, but this morning you have been talking about models that are still in the planning process.
It is important to stress that there are two tracks of work running here. We have talked a lot about the second track—the one that underpins some of the work that we are discussing—and we hope that as a result of that work we can make the most of the bill's provisions, if it is passed. In part 2 of the bill, there is a long list of different procedural changes, which is very much derived from the recommendations of the McInnes report.
For example, stress is put on electronic communications, on more effective use of the intermediate diet and on more effective provisions on agreement of evidence. As Noel Rehfisch says, those are cumulative elements, rather than there being one big thing.
The speed of the process is a matter of some concern to the respondents and to the convener. It had been our understanding that the intermediate diet stage would be akin to the preliminary hearing, when the judge would get a grip of the case, and that the Crown would disclose at that stage that which it was obliged to disclose and would produce the statements of the witnesses, and that the defence would say what its defence was. The idea was that, thereafter, only the matters that had to go to trial would go to trial, rather than the knock-on situation that we have at the moment, with everything being sorted out at the trial diet.
I wonder whether, to some extent, that is already covered under existing obligations on the Crown and the defence to be prepared for the intermediate diet and under the duty of the court to assess the state of preparedness of the parties at the intermediate diet, as well as the existing duties on both the Crown and the defence to identify the uncontroversial evidence. My instinctive response is to say that the parties are already under legal obligations to come to the intermediate diet prepared. They must be frank with the court about their state of preparedness.
It is the obvious question. If you have been considering the timing aspect, why is that not covered in the bill? It does not seem as if we are ready. This area was covered in the Bonomy report, which went into the issues of timescales and the role of the judge. Surely some of that translates to summary justice. You are thinking about altering periods at the moment. Why have such aspects not been considered under the bill?
The Bonomy report and the Bonomy bill—which became the Criminal Procedure (Amendment) (Scotland) Act 2004—gave us a clear end-to-end model for a fairly confined number of cases. What we are dealing with here is 96 per cent of the total number of cases. It is not quite so easy to put a definitive model in the bill without a great deal of background work being undertaken in parallel.
Yes. We saw evidence prior to our scrutiny of the Criminal Proceedings etc (Reform) (Scotland) Bill that intermediate diets do not work—that they are failing to achieve their purpose. We have even asked what the point of them is. A defence mechanism will always kick in when we ask anybody that question. However, we have considered that point many times.
I wonder whether it would be helpful if we gave the committee a background briefing paper on the overall work programme. We can also find out whether there is any way of making sections 18 and onwards, which deal with preparation for summary trial and which provide for the need to notify the defence and to change the time limit in relation to proof of uncontroversial matters. I think that you are saying that you would like to see something more definitive, like the detailed preliminary hearing specification that was given in the Bonomy report. Is that correct?
Yes. Given that Scott Pattison suggested that the timescale might be adjusted, we should know whether that is proposed.
The timescale for the intermediate diet is not prescribed by statute at the moment. A move to hold the intermediate diet four weeks before the trial diet can be achieved by means of a protocol between partners and effective programming of business; it does not require a statutory change to be made. I underline the commitment of not just the COPFS but all partners to providing a speedier system and the significance of the work that is on going to achieve that.
I do not doubt that commitment for a minute. However, the committee is expected to scrutinise a bill when not all the information is before us, because, as you have argued, it is not necessary to put everything in statute. We need to judge whether the objective of speeding up the system will be achieved in full knowledge of what is going in the bill and the models that you are considering putting in place.
Would it be helpful for us to give the committee a paper setting in context the bill and the other work streams?
Yes.
Although some of the provisions on bail are in the bill, some elements of the bail and remand action do not require to be prescribed in legislation.
It would be helpful to have such a paper, because I would not be confident saying in our report that the Executive would achieve its objective of speeding up the system without knowing what was going on in tandem with the bill.
That is fair.
There is a need to home in on the intermediate diet. I appreciate that the legislation around the Bonomy reforms was different, but, nonetheless, I would like to see more emphasis placed on the importance of the intermediate diet. At the moment, it all seems to be a bit of a lucky bag: parties might be ready, or they might not be. It should be made clear that all parties are fully expected to be ready by the time of the intermediate diet. If they are not ready, the judge will question them as to why not and a dim view will be taken of any lack of readiness, unless there is good reason for it. That would have an immediate effect. Anecdotal evidence suggests that in the High Court the preliminary hearing and the ability of parties to work together to ensure that everything is in place for the trial diet are saving time. I do not think that it would be impossible to achieve that in the summary system. We are just talking about a change of emphasis, albeit an important one.
We take the point that you want to see the overall summary justice work programme.
Yes. I move on to the subject of trial in the absence of the accused. As you know, the committee dealt with trial in absence under solemn procedure when it considered the Criminal Procedure (Amendment) (Scotland) Bill, to which we made a number of amendments. Why, in the case of summary justice, have you decided to go back to having a full trial in the absence of the accused? Does it not seem odd to have a number of limitations as to when a trial can proceed under solemn procedure but fewer restrictions on trials under summary procedure?
The ministers' view, which is reflected in the policy memorandum, is that under the ECHR there is no bar to holding a trial in the absence of the accused, as long as the individual has been duly notified of the date of the trial. In summary courts, the volume of non-appearances and the contempt of the court process that that reveals are a serious issue.
We are all familiar with the arguments against trial in absence, which were rehearsed during the passage of the Criminal Procedure (Amendment) Scotland Bill. Obviously, one genuine obstacle concerns the position of the solicitor who will be unable to obtain instructions from a client who is not present during the trial. Surely that will cause some problems.
We understand that some solicitors may not wish to continue to act in the absence of a client who can instruct them, although precedents exist in other areas of the law for a solicitor to act in the best interests of a client who cannot give instructions. The bill provides that, where the court considers it to be in the interests of justice to do so, the court should appoint legal representation on behalf of the absent accused. Where the identification of the accused was a major issue, it is doubtful that a court would proceed with a trial in absence.
If the court appoints a solicitor, the same problems will arise, in that the solicitor will need to establish the wishes of the accused who is not present. Therefore, even if the court is given those powers, real difficulties will still arise. The court might face the position that solicitors are genuinely not prepared to act in those circumstances.
We understand that difficulty, but trial in the absence of the accused is not without precedent and is common in other European jurisdictions. No bar to a trial in absence is inherent in the European convention on human rights, provided that the individual is clearly notified in advance. The bill provides that, once an accused has pled not guilty and it is clear that a trial will be held, the accused should be notified not only of the date of the trial but that the trial may go ahead in their absence.
What figures are available on the volume of non-appearances?
We have figures only for convictions for failure to appear, which probably underestimate the total. There are around 3,000 convictions a year against the various failure to appear provisions, but most of those concern bail.
Given that the accused, like the solicitor, will know that the trial could go ahead in their absence if they fail to turn up, is the bill trying to force more accused persons to conclude that the trial will go ahead anyway even if they do not turn up? On the other hand, although no responsible solicitor would tell an accused person that they should not turn up for their trial, if the accused is made aware that their solicitor will not act for them in the event of their failing to appear at the trial, a contradictory message could be sent out. Will the provisions be used almost as a stick to ensure that people turn up for their trial?
It is fair to say that ministers are concerned about the fact that people do not show up for their trial. By making it clear that the trial may go ahead in their absence, the provisions may provide an incentive to people to show up at their trial.
If, as we have heard, solicitors refuse to act on behalf of absent accused, how will the provisions help the situation?
We have not seen the evidence that the committee may have received from various solicitors' representatives, but it is not without precedent for a solicitor to act when they are not able to take direct instructions.
We all want to get to a situation in which by the time cases reach the stage of the intermediate diet, parties are routinely prepared and solicitors acting on behalf of the accused have full instructions. One caveat is that the prosecution will want to use the trial in absence procedure very sparingly. If a solicitor has been fully instructed, if the accused was present at the intermediate diet but fails to turn up for the trial, and if, for example, a vulnerable victim and vulnerable witnesses are involved, it is possible to imagine a situation in which a sheriff sees everything in the round and proceeds to trial in absence in the interests of justice.
We tend to revert back to the point that we discussed earlier about the importance of the intermediate diet. If that part of the system worked effectively and the preparedness of the parties, including the full instruction of the solicitor, were established, the trial would be more likely to go ahead.
It is crucial to the whole system that intermediate diets work to optimum effect. There is clear agreement about that.
Let us consider sections 33 to 35, which increase the custodial powers of sheriffs in summary courts. Such courts could soon deal with some serious cases. Would that remove the option of the jury trial for many alleged offenders? Could it be seen as weakening the participation of laypersons in the court process?
The proposed increase to a maximum custodial sentence in summary cases of 12 months was a specific recommendation of the McInnes committee. It was based on that committee's premise that the sheriff who sits summarily is an experienced judge. If we look at comparable jurisdictions abroad, for example, we see that the current level of sentencing power of a sheriff sitting on his own is quite low.
The decision as to which forum or court an individual is prosecuted in is for the procurator fiscal, subject to instructions from Crown counsel and the Lord Advocate. To that extent, an accused person in Scotland does not have a right to a jury trial or an option for one. The decision is for the prosecutor based on consideration of the evidence in the case, the seriousness or otherwise of it and the available sentencing powers of the court.
I will follow up that answer and address Mary Mulligan's second point, which has not been addressed. Scott Pattison rightly pointed out that our modelling to date indicates that, based on current case loads, about 550 cases per year that prosecutors would have marked to the solemn courts will in future be heard at the sheriff summary level. You asked whether that will result in a significant dilution of the involvement of laypeople in the system. The McInnes committee did not find any huge crisis of confidence in the sheriff summary level, at which the sheriff determines guilt or innocence and also passes sentence. However, issues arose about the role of lay justice and whether that should continue—we will come to that matter later.
You have probably answered my supplementary question, but I will ask it anyway. Safeguarding Communities-Reducing Offending has suggested to us that the increase in the custodial sentencing power raises the possibility of an increase in the number of people in our prisons, which would go against the Executive's direction of travel of reducing the prison population. Given the numbers that you have just quoted, what would you say to SACRO on that?
Our response would be twofold. First, it is clear that the intention of the changes is not to be more punitive in respect of any particular offence. For example, for any statutory offence that can be tried only summarily at present, the sentencing limit will not change. The increase to 12 months is about providing headroom in the summary system to deal with slightly more serious cases that, in the view of the McInnes committee—which ministers accepted—could relevantly, competently and capably be dealt with in the sheriff summary court.
The prescribed sum will also be increased. Has the Executive considered whether raising the level of fines could be counterproductive? For example, the measure could result in increased difficulties for those who already have difficulties paying fines. It could also mean that, if people cannot pay fines, the custodial route could be used instead.
Again, there are two prongs to my answer. First, to echo what was said about custodial sentences, there is no intention to increase the maximum fine that can be imposed as a disposal for a particular offence. The intention is that cases that would previously have to go to the sheriff solemn court to receive a sentence that was felt to be fit will now come down to the sheriff summary level. Secondly, the introduction of the new system for fines enforcement, which I am sure we will come on to soon, involves the creation of fines enforcement officers, who have a range of ways of enforcing fines and, critically, an advisory and assistance function. We hope that that will lead to the system being much better informed about the ability of people to pay and that it will be able to manage outstanding fines much more effectively.
I have a brief point to add. Currently, circumstances in which the level of fine that is imposed reaches the existing limit are the exception rather than the rule. The general population of fines and the levels of penalty imposed in respect of those fines will not change because of the increase in the upper limit of the fine. The intention is to capture the few cases that, under other circumstances, would fall to be prosecuted under the solemn procedure.
You say "few", but you gave figures earlier for the custodial cases. What do you mean by "few"?
I cannot give a precise estimate, but a typical fine in the sheriff court under summary procedure would be about £200. Only rarely would the fine get into four figures. The number of cases that fall into that category would certainly be in the tens or the low hundreds.
Just to follow up on that, one could imagine a situation in which there was a breach of a statutory obligation, which is quite a simple case, but the penalty available—possibly to be imposed on a company—is quite high. As Cliff Binning said, we do not consider at all that simply having a £10,000 ceiling on the summary sentencing limits will lead to the judiciary thinking, "Well, we have this new power. Let's use it in cases where we wouldn't previously have used it." That is not the intention at all.
On the points on imprisonment, you seemed to suggest that the powers would not be used for cases that would normally be heard in the sheriff summary court. However, none of the provisions in the bill would prevent that from happening. Is that correct?
Yes. It will remain for the prosecutor to mark the case at the appropriate level and it will remain for the judge to determine the most appropriate sentence, having regard to the facts and circumstances of a case. We certainly do not think that we should intervene through legislation in the sentencing decision.
I am not suggesting that you think that. However, the implication of what you said earlier was that cases that normally come to the sheriff summary court would not attract higher disposal tariffs, but that clearly is not the case. They will be available and the question is whether the court will use them.
Yes.
So the possibility of sentence drift exists.
It is fair to say that it does. One of the concerns in the Bonomy report about increasing sheriff solemn sentencing powers from three to five years was that sentence drift would occur—that is, the concern was that an offence that would have previously got a lower sentence would get a higher sentence simply because that was available. We have been monitoring that carefully and we have commissioned a large, independent evaluation of the Bonomy reforms, which will come back to the committee. However, so far, we have seen no evidence of sentence drift happening. There is no evidence that the availability of a penalty alters a judge's assessment of the seriousness of an individual case. I accept the point that, in theory, the penalty is available, but no evidence from the previous two increases has suggested that judges' judgments have been skewed.
Time will tell.
Noel Rehfisch spoke about the higher fines—of up to £5,000 now and up to £10,000 in future. Those fines will apply not to individuals but to companies, businesses and corporate bodies. Is that right?
Absolutely. Provisions in the Criminal Procedure (Scotland) Act 1995 dictate certain things that a judge must do before deciding on the level of fine to be imposed. Assessment of means, for example, would be covered by that.
We move now to a different topic.
Yes—I want to ask about fiscal fines and enforcement. Clearly, there is a whole new range of areas in which fiscal fines can be the disposal. How does the Executive respond to concerns that, in introducing such a system, it is encouraging fiscals to act in a quasi-judicial way and to impose fines without any knowledge of the background of the case, the circumstances, or the ability of the individual to pay the fine?
Fiscals have been using fiscal fines for almost 20 years, since their introduction in the 1980s. The limit was increased in 1997 to £100. Since then, prosecutors have become experienced and much more knowledgeable in the use of alternatives to prosecution generally and fiscal fines in particular.
I had wanted to ask whether a fiscal fine was viewed as a conviction. The bill says that it is not. However, if information about a fiscal fine were introduced in court when an individual appeared in a similar situation 12 months later, it would act in the same way as a conviction would. Does a fiscal fine not have the effect of a conviction?
Such information is presented to give the court a full picture of an individual's background. We do not want to see alternatives as a soft option; it is important to have a proportionate, prompt and effective response to the huge range of offending for which alternatives can be used. However, we must ensure that the court is aware of all that it should be aware of. The balance is struck by the provision in the bill that says that the accepted fiscal fine can be referred to or disclosed only for two years. The bill ensures that a court knows an individual's background, but a fiscal fine falls short of a conviction.
If a fiscal fine is not a conviction, is it an admission of guilt?
Not in strict terms. When an individual accepts the opportunity to pay a fine in response to an offer by the public prosecutor, that involves no admission of guilt.
So a fiscal fine is not a conviction or an admission of guilt, but it can be disclosed within two years in sentencing an individual who reappears in court.
The weight to give to the fiscal fine would be a matter for the court.
The information could be used.
Yes.
Although a fiscal fine is not a conviction or an admission of guilt.
Yes.
That is interesting.
The provisions are clear. When an offer is made to an individual, they must be informed of the consequences of that offer. The individual will face a choice. If he or she rejects the offer, they are likely to proceed to trial. If the offer is accepted, the individual will be aware that acceptance of the offer might be disclosed in subsequent proceedings within two years.
I understand that an individual could be aware of that. I could be aware that I was to be knocked down by a number 10 bus, but that would not mitigate the situation when that happened.
I disagree that there is a presumption of guilt. On receipt of an offer of a fiscal fine or any other alternative to prosecution, it will always be open to an individual under the new regime to elect to have their day in court. The individual who enters the court process would be presumed innocent throughout that process until he or she was convicted.
Section 43 in part 3 will add to the 1995 act new section 226D, which provides those who collect fines with the option of seizing a vehicle to cover unpaid fines. We talked about that the last time we spoke—you said that you would examine it. My concern is about proposed new section 226D(3), which will allow immobilisation or impounding of a vehicle that is registered under the Vehicle Excise and Registration Act 1994.
The answer to that is that we do not envisage circumstances in which it would be appropriate to seize third-party goods. A key point in this general area is that the application of a seizure order—the impounding of a vehicle and, when appropriate, its subsequent disposal—will have to operate within a well-defined regulatory regime. Checks and balances will have to be built into the regulatory process to ensure that appropriate steps are taken and the relevant investigations are made so that that the clamping or disposal of a vehicle is not done contrary to the interests of a third party. We will have to examine such matters in some detail.
Would not the best regulatory regime be the law? It is clear that proposed new section 226D(3) of the 1995 act would permit the seizing of a third-party asset.
We would like to examine the provision in more detail because we have concerns about a number of aspects of it, but we do not have time. Following what Cliff Binning has said, it would be helpful if the Executive would consider the matter further, not just for the reasons that Bruce McFee gave, but because we would prefer some of the rules that would apply to be in the bill rather than in guidance. For example, the bill could say when the provision could be used, what exemptions there would be and what the court was allowed to take into consideration. We might be talking about a drafting problem. As Bruce McFee said, it appears that the provision will capture the registered keeper, who is not necessarily the owner.
We take the point. Rather than simply provide guidance, the intention was to spell out the arrangements in regulations that would come before Parliament. We can take the issue away and think about it. When we wrote back to the committee on a number of points, we undertook to consider some of the policy issues that had been raised. All I will say is that we had intended to give Parliament the chance to examine the detail in regulations, but I think the committee is saying that it is not happy with that approach. Is that correct?
I will reverse the scenario. I could own the vehicle but not be the registered keeper, which would mean that it would not be possible to collect the fine from the person who should pay it because the bill gives a specific definition of the owner.
We do not doubt that there is a need to clarify the details. Our intention was to do so in regulations that would be subject to the negative procedure, but we will consider whether that is sufficient or whether more detail should be provided in the bill. Would that be fair?
We can give a series of situations in which problems might arise. For example, the owner might have defaulted on their fine, but the car might used by the rest of the family. All sorts of scenarios might cause us to be concerned about the fact that the bill provides for such a power without qualifying it by setting out the circumstances in which it might be used. We will almost certainly come back to the matter at stage 2, but it would be helpful if you could give it consideration.
Very briefly, on alternatives—
Please be very brief—
What are work orders and how will they operate?
I would like to add to that question. Is it envisaged that work orders will be imposed on rich people who would be well able to pay fines of as much as £10,000 but who would be seriously hampered in going about their business if they were subject to a work order? Alternatively, is it envisaged that work orders will be used for people on low incomes, to ensure that their income would not disappear?
I will try to respond to all those questions. Our department is working on the detail of our new marking or decision-making policy in the light of the bill. A stream of work is going on and we will have to submit the detail of the policy to the law officers, so the thoughts on work orders are early thoughts. Section 40 provides for work orders, which are another alternative to prosecution that will operate on a deferred prosecution model. Procurators fiscal will be allowed to offer offenders a period of community-based reparatory work as an alternative to prosecution. The deferred prosecution model that the bill proposes is similar to the current arrangements for social work diversion, in that an individual will have to complete the work before he or she can escape prosecution. If the work is not completed, the fiscal will be advised and the option of taking proceedings against the individual will remain. I venture to suggest that there will be a strong presumption in favour of criminal prosecution in such circumstances.
When are we likely to see some detail on the matter? The committee's difficulty is that much of the work is still in progress. We do not know what a work order is, because as far as we are aware work orders do not currently exist anywhere. We need information about the framework in which the new concept would be used.
Do you mean specifically on work orders or on the Crown's marking policy in general? There are a number of issues.
In the first instance, we need more information on the work orders.
We are happy to take that question away and to provide further information in writing. As members will see from the provisions, it is envisaged that the work order regime will be piloted. I hope that there will be a pilot in an urban area and one in a more rural area so that a comparison can be made. There will not be a big bang in relation to work orders upon commencement of the legislation. We are happy to get back to the committee in writing.
We need to know the definition of a work order, when it can be used and how it will differ from a community service order and we need that detail before we can be satisfied that we want the provision to proceed and the scheme to be piloted. Will it be possible to let us—
I do not see why we cannot get back to you with written information on that. There is a fair amount of detail in the bill, but I accept your point that a further submission would be helpful.
The work order is a new concept, which is why we want to be clear about it.
Indeed.
May I follow that up? You talked about compensation and about not taking into account a person's means. Will the Crown Office and Procurator Fiscal Service know how much damage has been done when it decides how much the fine will be or how much compensation should be paid? Someone could smash up a car and do £600 of damage. When I sat in the district court, I needed to know how much damage had been done before I imposed a compensation order. If I did not know, I deferred the case. Do you envisage that you will have all the relevant information about income and that you will know how much damage has been done? If you do not have that information, how will you decide on the compensation?
That is a difficult question. At the moment, the police try to provide information on individuals' backgrounds and employment status, but we have to recognise that when the police are dealing with a person during an arrest they are not dealing with a willing customer, so the information on employment status and earnings is often incomplete. Under the summary justice reforms, we are exploring the reporting regime with the police to see whether we can capture more information on people's circumstances.
Can I ask one brief question on that?
Please make it very brief.
Will you also know how much damage has been done to the plate-glass shop window, the car or whatever, so that you can alter the compensation that is paid to the victim? Will you have that information?
Yes. In the vast majority of cases, we already have that information at the reporting stage. Sometimes the exact value is not known and a subsequent report is provided by the police, but if a police report lacked that information the procurator fiscal would invite the reporting officer to clarify the value of the property. Many cases are prosecuted to obtain compensation for the victim. The advent of the compensation offer is a significant step because the prosecutor can obtain early compensation for the victim without forcing them to go through the whole court process.
I return to the disclosure of acceptance of a previous fixed penalty within a two-year period. I understand that that is discretionary and that it will not happen automatically. Can you confirm that that is the case?
At the request of the court, the prosecutor can advise the court within the two-year period that an individual has had specific fiscal fines.
I will be more specific. When a person is convicted and the schedule of previous convictions is automatically handed to the judge, what will be the situation with regard to acceptance of fiscal fines?
I do not believe that the fiscal fines would be on that schedule, although I stand to be corrected by colleagues if I am wrong. My understanding is that the procurator fiscal would, on receipt of a request, advise the court of the acceptance of a fiscal fine.
In other words, the judge would have to say, "I have information about the previous convictions but I would like to know about previous fixed penalties."
Yes. In that situation, the fiscal would be entitled to disclose the existence of a fixed penalty. The legislation is clear that the existence of fixed penalties that have been accepted may be disclosed but that they will not appear in any schedule of previous convictions.
You say "may be disclosed". That is what worries me. Will disclosure be instigated by the fiscal or the court? I think the legislation is silent on that. How would someone know whether the penalty related to, for instance, a speeding offence or a drug offence? We require a lot of further information.
Are you asking us to clarify who would exercise that discretion?
Yes. I would also like to know in what circumstances the discretion would be exercised and whether there is any proviso for the offence being an analogous one or whether the disclosure would apply to any fiscal fine—
Or, indeed, whether there is more than one person who could reveal the acceptance of a fiscal fine.
Given that there has been a change in the policy and the fiscal fines are to be disclosed, we would want to know everything that there is to know about that, including whether the fines of people who were working with at-risk children and adults would be eligible for disclosure in relation to the standard and enhanced certificates.
We will get back to you in that regard.
I am being advised that I should also ask whether the fines would be eligible for disclosure in relation to the fit and proper person tests that local authority licensing committees use. We would like to know what the implications of the policy change will be in terms of the courts and any other relevant area, such as those which I have mentioned.
Essentially, you are asking about the extension to analogous bodies of the point that you raised in relation to the Criminal Injuries Compensation Authority
Yes. It would be helpful if you could clarify those points.
Some people have said that the increase in the level of the fine to £500 will mean that a huge amount of work is not going to end up in the district court and that this proposal is a back-door way of getting rid of district courts. What are your views on that?
There is scope for a range of summary business that is dealt with in the sheriff and district courts to be taken out of the summary system by virtue of the increased range of alternatives that are available. You will see that the financial memorandum suggests that, based on the parallel marking exercises that have been carried out, between 10 per cent and 20 per cent of the current work could be taken out of the system, at least initially.
Does the Executive intend to establish a JP court in each sheriff court district? Some people have implied that we are going to end up with only one JP court in every sheriffdom, but that is not right, is it?
The intention is to provide a configuration of courts—sheriff court and JP courts—that will preserve local access to justice. The intention is to work up the model of that configuration sheriffdom by sheriffdom, taking full account of several factors such as business profile and local community interests. The idea that there would be only one JP court per sheriffdom is far removed from any configuration of courts that we envisage.
I now turn to something that is a concern to me, and might also be to others, which is the question of who the new justices are going to be and how they are going to be trained. There is an implication that each current justice of the peace is going to be offered a five-year contract. We have visited several places where a number of justices—too many in one area—are not as competent as they might be and so have not been given court duty for one reason or another. Sometimes that has been because they were not willing to undergo training. If, under the provisions of the bill, all those people are to be offered a five-year contract, I am concerned that we will end up using people who have not been in the justice system, who are not competent and who have not done the appropriate training.
It might be helpful to deal first with the second of those points.
We recognise the problem, but there is some difficulty in setting out a European convention on human rights compliant model that falls somewhere between ending all contracts and giving all full justices a chance to move across. We could end all contracts and start from scratch, but that would be disruptive and it would send a negative message to many good JPs. We must be mindful of the ECHR implications for judicial independence. Similar points have been made to us and we are actively considering the matter, but it is not straightforward.
Will you now get sight of all the evidence that the committee has been given?
Yes.
I urge you to look at two submissions that we received—I will not say which at the moment. I am sure that you will take cognisance of them because they raise serious issues about reappointment.
We understand the point. We have received similar submissions, but I flag up that balancing the ECHR requirements and the requirements to take across the folk who are competent is quite tricky. We are currently actively considering the matter.
Thank you. The panel members will be pleased to know that that ends our questioning. You have clearly been doing a lot of work. We have learned that the bill is very large.
Meeting suspended.
On resuming—