Current Petitions
Members will remember that at the last meeting we considered PE83, from Concern for Justice, relating to the case involving the wee free church and the Reverend Macleod. It was agreed that further advice should be obtained from the legal team before deciding what action to take on the petition. We have not yet received the advice from the legal team and we must leave the matter until the next meeting of the committee on 14 March. We hope to have the legal advice by that stage. Is that agreed?
Members indicated agreement.
We have received a series of answers to some of the petitions which have been attached to your papers.
PE57 is a petition from Mr Frank Harvey about the right of way in Yorkhill park in Glasgow. Glasgow City Council has responded, indicating the steps that it intends to take to confirm the right of way that is disputed by the developers. It is currently carrying out a consultation exercise, after which it will reach a view on whether the route is a right of way. If the council decides that the route is a right of way, it will consider the best method of confirming that. It is recommended that the council is taking adequate steps to resolve the matter, that a copy of its response should be passed to Mr Harvey and that no further action should be taken. Is that agreed?
Members indicated agreement.
Could I just point out that the letter says that
"The Council is satisfied that a Public Right of Way exists between Gilbert Street and Ferry Road."
The letter also says that
"Following receipt of responses, the Council will then embark on an internal determination to decide if the route constitutes a Right of Way".
That does not seem to make sense.
It is because it is a consultation process. The council must await responses.
Even though the council already says that it is a right of way?
That is the council's view, but that view might change depending on responses to the consultation. I doubt that the council will change its view. It is taking steps to remedy the matter about which Mr Harvey was concerned.
The second half of the letter deals with PE50, also from Mr Harvey, on the closure of toilets in Peel Street in Glasgow. The council has said that the toilets were closed as part of a budget saving option, which all councils must consider these days. The council's view is that the closure of the facility impacts on both disabled and able-bodied people alike and therefore is not in breach of the Disability Discrimination Act 1995. Such decisions are well within the powers of the council. I do not think that it is a matter on which the Parliament can intervene, particularly if the Parliament does not give the council the resources to provide all the services that it would like to deliver.
I suggest that we copy the letter to Mr Harvey and that no further action should be taken in respect of the petition. Are we agreed?
Members indicated agreement.
We could express our sympathies, as did a certain Scottish minister, who, prior to the previous election, complained that local authorities were underfunded by some £300 million a year.
I am not a minister, so it could not have been me.
We have had a detailed response on PE55 from Tricia Donegan, which called on the Scottish Parliament to conduct an investigation to establish why the full powers of the law are not enforced in all cases that involve death by dangerous driving.
Members have a copy of the correspondence from the former Lord Advocate, which rehearses the background to the case against Daniel Tasker and explains how the vehicle involved came to be destroyed without being examined on behalf of the defendants. The sheriff who heard the case directed the jury to return a verdict of not guilty on the charge of causing death by dangerous driving, given that he had upheld a plea that the defence had been given no proper opportunity to examine the car.
The former Lord Advocate says that
"as far as the Crown was concerned the accused was given a clear opportunity to have the vehicle examined"
and had been advised by the procurator fiscal that it might be in his best interests to do so. The Crown did not expect that his failure or refusal to take such action would undermine proceedings to the extent that it did. He makes clear that although it is not possible for the Crown to appeal against the acquittal of an accused who has been prosecuted on indictment, he is keen to avoid a repetition of what happened in the case. He concedes that
"it would have been better if the Procurator Fiscal had delayed release of the car until after he had intimated to the accused that criminal proceedings were being contemplated, that the car was no longer needed by the Crown and that it would be in his best interest to have the vehicle examined".
Officials at the Crown Office have been instructed to clarify and highlight departmental guidance to procurators fiscal in that respect.
The former Lord Advocate has said that he was disappointed that the sheriff took the decision and that he understands the anguish that the legal decision has caused Ms Donegan. Although the former Lord Advocate is unable to bring about a review by the High Court of Daniel Tasker's acquittal, he has indicated that appropriate steps are being taken to minimise the possibility of a repeat of the circumstances that led to that acquittal.
It is suggested that we send a copy of the response to Ms Donegan. Members are invited to say whether they think that any further action is required. We might decide that the former Lord Advocate has taken steps to resolve the particular procedural difficulty to which the petition refers and that no further action is necessary. Alternatively, we might decide that the petition, together with the response from the former Lord Advocate, could be passed to the Justice and Home Affairs Committee, which could be asked to decide whether the steps suggested are adequate or whether anything further needs to be done in this respect.
I will volunteer the justice committee for that. I am not a criminal practitioner, and there may be sound, philosophical, principled reasons for this, but I am astonished that the Crown does not have the right of appeal under the Criminal Procedure (Scotland) Act 1995 against acquittal of an accused who has been prosecuted on indictment. Why is that?
I make no comment on the circumstances or facts, as I have not read the evidence, but it appears that if the sheriff erred here and the decision was made, the Crown was left with no options. In other circumstances, the Crown can appeal against a sheriff passing a sentence that is too lenient or making the wrong legal judgments. This is an issue that the justice committee could consider, so that this kind of thing does not happen again. The defence was given the opportunity to do something but did not do it; it was then in the position where the sheriff took this view. In other words, the issue has not been tested at a higher court.
I am well aware that sheriffs can appeal against sentences that are perceived to be lenient. My understanding is that once a decision has been taken in a court against an individual, that decision stands, although I might be wrong. I welcome the opportunity for this to be considered by the Justice and Home Affairs Committee. The whole thing leaves a terrible stain, let us say, on justice. Considering the anxieties felt by Ms Donegan, it would be good to think that, somewhere along the line, some good will come of it.
As far as the destruction of the evidence goes, I am in danger of going into too much detail. It is sufficient to say that I back Christine's comments.
Is everyone agreed that not only should the correspondence be copied to Ms Donegan, but the entire petition and the reply from the former Lord Advocate should be referred to the Justice and Home Affairs Committee, for it to consider whether the law needs to be changed in response to this?
I am sure that the convener, Roseanna Cunningham, will spot it a mile off, but shall we draw the justice committee's attention to that paragraph?
That is the paragraph about the Crown not having the right to appeal.
The Crown is prohibited by the Criminal Procedure (Scotland) Act 1995 from appealing.
We should seek a judicial review—that would be the remedy. There is something that the prosecution could do but it has to be done by judicial review. I am still in favour of us considering the reply, particularly in relation to the law of evidence. You may want to consider that, as opposed to whether the prosecution has the right of appeal. There are issues here that we should consider before we leave the matter entirely.
Pauline, you are saying—
I am saying that you should do what you have recommended, which is to highlight it.
Any particular part of the correspondence?
I do not think that it is necessary to highlight it. It is up to the justice committee to pick out the bits and pieces that interest them.
I am not unhappy about the law of evidence. That can all be dealt with. However, I am unhappy about the statutory prohibition here. It is not possible to appeal against the acquittal of an accused who has been prosecuted on indictment. It might be worth the justice committee considering why that is and whether the Criminal Procedure (Scotland) Act 1995 could be amended to allow that, so that the sheriff's view of the evidence could be tested. The prosecution thought that the sheriff's view was completely out of kilter with any prior decisions on evidence. That may or may not be the case, but the fact that the sheriff's view cannot be tested surprised me. Gordon Jackson would probably have more to say about that.
The point that Pauline McNeill is, quite rightly, querying concerns the preservation of evidence. Perhaps the justice committee could consider time scales. The accused could be given a set period, after having had defects intimated to them, in which to have the evidence checked. The individuals involved seem to have had every opportunity to check out the vehicle but they closed their minds to it.
Perhaps we should send a covering note saying that the committee was extremely concerned about the nature of the Lord Advocate's reply to the petition. It would be well worth the while of the justice committee to consider the matter and decide whether it recommends any changes in the law that would protect people in such circumstances. Is that agreed?
Members indicated agreement.
That is a diplomatic answer.
The next response, to petition PE73 from Mr Frank Harvey, is from Glasgow City Council. The petition concerns the recent case of a child whose parents allowed her to spend several months in a plaster cast. The letter gives details of the widespread action that the council has been taking in relation to the case. The suggestion is that we simply copy that correspondence to Mr Harvey for his information. Is that agreed?
Members indicated agreement.
The next letter is from Almondell Terrace Residents Association. It is a nice letter, thanking the Public Petitions Committee for all the help that we have given them.
Does it enclose a cake with candles?
No. After the 100th birthday of the Labour party, I have had quite enough cakes for the moment.
The Almondell Terrace residents want to put on record their thanks to Mr Farrell, our clerk, and to the rest of the committee for helping them. Their letter says that we can be assured of future support from all the residents in Almondell Terrace. It is nice to get recognition sometimes, and that is the first such letter that we have received.
I think that they should also write to Andrew Neil of The Scotsman commending the work of a committee of the Scottish Parliament.
I do not think that Andrew Neil will commend anything that we do.
That is why such a letter is needed.
The final letter relates to the petition from Mr and Mrs Dekker. It has been circulated for information rather than for discussion.
We have also received a number of other responses. The first is from the Lord Advocate and concerns the petitions on the legality of nuclear weapons in Scotland. He has passed to us the reference that the Crown has made to the High Court of Justiciary against the decision of the sheriff at Greenock court in favour of the three women. It sets out the Crown's view. The Lord Advocate will respond to the High Court's decision and we can seek his views at that stage. We also await correspondence from Jim Wallace, which will be circulated when it arrives.
There is also a letter from Greater Glasgow Health Board to Paul Martin MSP, which clarifies that point that he raised at our last committee meeting about how the health board responded to my request to postpone a decision on the medium-secure unit at Stobhill hospital in Glasgow. That letter is for information, but any questions arising from it can be put on the agenda for our next meeting.
I shall give members time to read those letters. At such short notice, we cannot decide today how to deal with them.