Subordinate Legislation Committee

Meeting date: Tuesday, November 22, 2011

Official Report 269KB pdf

---

Instruments not subject to Parliamentary Procedure

---

Act of Adjournal (Criminal Procedure Rules Amendment No 7) (Double Jeopardy (Scotland) Act 2011) 2011 (SSI 2011/387)

New rule 59.2(2) of the criminal procedure rules makes superfluous provision, duplicating the effect of section 5(1) of the Double Jeopardy (Scotland) Act 2011, contrary to normal drafting practice. Does the committee agree to draw the instrument to the Parliament’s attention on the general reporting ground?

Members indicated agreement.

---

Act of Sederunt (Contempt of Court in Civil Proceedings) 2011 (SSI 2011/388)

In so far as the act of sederunt makes rules for the procedure to be followed in contempt proceedings in the sheriff court, it has been made by what appears to be an unusual use of the powers conferred by section 32(1) of the Sheriff Courts (Scotland) Act 1971. Does the committee agree to draw the act of sederunt to the attention of the Parliament on reporting ground (g)?

Members indicated agreement.

There may be a case for going beyond that. Having read the various papers, I cannot help but feel that the situation is very unsatisfactory as it stands. I wonder whether there is any appropriate action that we can take other than what has been suggested.

There are a number of issues with this particular Scottish statutory instrument. The first one, which we are considering at the moment, is the provenance of the powers under section 32(1). The advice of our legal advisers is that that seems to be pretty marginal, which I think is already an indication that we might be concerned. There are other points to come and I suspect that we might have things to say when we have them all together so, unless there are other comments, we will move on.

In addition to the first point, the committee may wish to draw the act of sederunt to the attention of the Parliament on reporting ground (h) in relation to the following three matters.

First, the meaning of rule 4(1) could be clearer. The rule provides, without further explanation, that a “differently constituted court” is to deal with the contempt proceedings. It is not clear from the rule what will constitute a differently constituted court, although presiding judges and sheriffs will have to interpret it in a way that is compatible with the rights of the person accused under articles 5 and 6 of the European convention on human rights.

Secondly, the meaning of rule 9(1) could be clearer. The rule provides for appeals only from lower courts and is silent on appeals from the inner house. However, it appears that rights of appeal exist, although they are to be found outwith the instrument, and that the instrument is not intended to exclude them, although it may appear to do so by implication.

Thirdly, the meaning of rule 9(2) could be clearer. Although the rule provides for appeals to be treated, so far as possible, as if they were bail appeals in criminal proceedings, the degree of modification required to section 32 of the Criminal Procedure (Scotland) Act 1995, which governs bail appeals, is substantial. The procedure that would apply in consequence would not necessarily be clear or accessible to appellants.

Taking all those points together, do committee members have anything to say?

I find the situation very disappointing. I do not think that the instrument has the clarity that ought to be required. I hope that we can draw that to the attention of the appropriate body, which is perhaps the lead committee, in strong terms.

I am happy that we do that. Do other members have a view?

The instrument is just not clear.

I am coming at it from the point of view that someone in court, or possibly someone who has been sent to the cells for contempt of court, should be able to know what the rules are. I recognise that the average individual might not know, but their lawyer certainly should be entirely clear what the rules are. If we are struggling to be clear about what precisely the rules might be, that is a matter of concern.

I recognise that the courts are masters of their own procedure and I am sure that they will do something sensible, so I do not think that we have to tell them that they are incapable of resolving this problem. However, the fact that the meaning is not clear on the face of an instrument that ought to make it clear, because that is what the instrument is for, leaves us concerned.

On that basis, would the committee be happy if, as well as generally reporting to the Parliament on the instrument, we drew all those points specifically to the attention of the lead committee on the ground that the instrument is not as clear as it might be and that the lead committee might wish to consider it further? Are we comfortable with that?

Members indicated agreement.

Thank you very much.

---

Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No 3) 2011 (SSI 2011/386)

---

Spring Traps Approval (Scotland) Order 2011 (SSI 2011/393)

The committee agreed that no points arose on the instruments.