Criminal Proceedings etc (Reform) (Scotland) Bill: Stage 3
The next item of business is stage 3 consideration of the Criminal Proceedings etc (Reform) (Scotland) Bill. In dealing with the amendments, members should have with them the bill as amended at stage 2, which is SP bill 55A, the marshalled list, which contains the amendments that I have selected for debate, and the groupings that I have agreed. For the first division on an amendment, the division bell will sound and proceedings will be suspended for five minutes. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. All other divisions will be allowed 30 seconds.
Section 1—Determination of questions of bail
Group 1 is on bail: miscellaneous amendments. Amendment 20, in the name of the minister, is grouped with amendments 21 to 25.
Amendment 20 is made for the sake of clarity and has no substantive effect on the provisions in section 1. It makes it clear that in section 23B(3) of the Criminal Procedure (Scotland) Act 1995, as inserted by section 1 of the bill, the question that is to be determined by the judge is whether bail should be granted to an accused person under section 23B(1) of the 1995 act.
Amendment 21 makes a minor change to section 24 of the 1995 act, which deals with bail conditions. Section 24(4)(b)(ii) of the 1995 act currently provides that the court, when granting bail, may impose further conditions on the accused to ensure that he or she participates in an identification parade. Amendment 21 provides that any further conditions may require the accused to participate in an identification parade or other identification procedure. Given that other forms of identification procedure are increasingly used by the police in place of the traditional ID parade, it will be important to ensure that an accused can be compelled to participate in such procedures as a condition of bail, in the same way that he or she would currently be required to participate in an ID parade.
Amendment 21 will also ensure that pressure can be brought to bear on the accused to participate in the identification procedure, as failure to do so could be regarded as breach of a bail condition. Although the amendment has no effect on general bail policy, it will allow the law to keep up with the developments in practice and ensure that the accused is under a condition to participate in identification procedures in future.
Amendments 22 to 24 clarify the effect of provisions in section 5 of the bill, but the policy behind the section is not changed. Section 5 provides that bail applications must be dealt with before the end of the day after the date on which the person accused or charged is first brought before the court. Often such applications are continued to allow investigations to be made into the bail address given by the accused person, for example. However, the provision as introduced could be construed as requiring the court to sit on a Saturday, Sunday or court holiday in order to process bail applications before the end of the next day. That is not the intended policy. It is not the norm for courts to sit at the weekend.
Section 8(1) of the 1995 act provides in general terms that a court is not required to sit on a Saturday, Sunday or court holiday. Amendments 22 to 24 are provided for the sake of clarity in this context. They put it beyond doubt that when the accused first appears, the court must make a decision on bail by the end of the next day on which it is sitting. Courts will not need to sit on a Saturday, Sunday or court holiday unless they choose to do so.
Amendment 25 makes a minor procedural change to the way in which a particular type of bail appeal is processed. Following amendments at stage 2, in almost all cases an appeal against refusal of bail in the sheriff or district courts is lodged with the court that dealt with the bail application. That is a sensible process, as a clerk of that court can then send a note of appeal to the High Court of Justiciary along with the full papers for the case to ensure that the High Court has all the papers that it needs to consider the case fully.
The one exception to that is in section 200 of the 1995 act, which details the procedures to be followed in cases where a court has adjourned the case against an accused for an inquiry into his or her physical or mental condition and has remanded the accused in custody or committed them to hospital. In such cases, the appeal against refusal of bail is lodged with the High Court, which then has to refer the matter back to the original court for the papers, which causes delay.
Amendment 25 brings the process for appealing against a refusal of bail under section 200(9) of the 1995 act into line with all the others in the 1995 act. It provides that the note of appeal must be lodged with the clerk of the court from which the appeal is to be taken and that the clerk of that court must send the papers, without delay, to the clerk of justiciary, to ensure that the High Court is in possession of all the papers relating to the case.
I move amendment 20.
It will be no great surprise to the minister that we will be supporting the amendments in this group. I thank the minister for the helpful briefing note on the Executive's amendments, which will speed our progress as the day continues. I hope that it sets a benchmark for what the Executive does in future bills. Next time, it would be even more helpful if the amendment numbers were given alongside the explanations. However, that is just a counsel of perfection. I seek always to give the Executive helpful advice where appropriate.
Amendment 20 agreed to.
Section 2—Bail and bail conditions
I invite Johann Lamont to move amendments 21 to 25 en bloc.
Amendments 21 to 25 moved—[Johann Lamont].
Does any member object to a single question being put? Does Margaret Mitchell object?
I pressed my request-to-speak button during the debate on the previous group but was not called before you asked the minister to move amendments 21 to 25.
That is fine. Thank you.
Amendment 21 agreed to.
Section 5—Time for dealing with applications
Amendments 22 to 25 agreed to.
Section 6—Liberation on undertaking
Group 2 is on liberation on undertaking: rank of officer required to attach special conditions. Amendment 26 is the only amendment in the group.
Amendment 26 makes a change to the procedure concerning the addition of special conditions to an undertaking, in recognition of concerns that the Justice 1 Committee raised on the subject at stage 2. When an accused person is released on an undertaking to appear at court, the terms of the undertaking will always contain the condition that the accused must attend a specified court on a given date and at a given time. The bill currently provides that police officers may also attach additional conditions to an undertaking and that the Scottish ministers may make regulations setting out the rank or other description of police officer who will be required to authorise the imposition of additional conditions on an undertaking.
Those conditions fall into two types. First, there are the standard conditions, which mirror the standard conditions that would be imposed by a court on an accused who is given bail—namely, not to offend, not to interfere with witnesses and not to behave in a way that causes, or is likely to cause, alarm or distress to witnesses. Our view, which was backed by the committee at stage 2, is that those conditions are not unduly onerous and any accused person who is required to attend court on an undertaking should be able to abide by them. We are therefore of the view that it is not necessary to stipulate that the conditions can be imposed only by police officers of a certain rank.
The second category of conditions covers specific conditions that are imposed on a particular accused and are designed to secure compliance with the standard conditions. Those are sometimes referred to as special conditions in the bail context and may include, for example, a condition of curfew or a condition that the accused must not approach or contact a particular person or enter a named street or area. Such conditions will generally be more onerous and restrictive and will need to be imposed with discretion and sensitivity by police officers.
Members of the committee will recall that an amendment that was lodged by the convener at stage 2 sought to place in the bill a requirement that an officer of the rank of inspector or above must authorise the imposition of special conditions to an undertaking. At the committee meeting on 22 November 2006, I gave an assurance that ministers would ensure that an officer of the rank of inspector or above must authorise the imposition of special conditions to an undertaking. Having considered the position further, I acknowledge the concerns that the convener and other members of the committee expressed about the imposition of special conditions to an undertaking and agree that that process must be carefully regulated with the involvement of a senior officer.
Amendment 26 therefore provides in the bill that the imposition of special conditions must be authorised by a police officer of the rank of inspector or above. It also removes the regulation-making power in proposed new section 22(1E) of the 1995 act, as that will no longer be necessary. The law will clearly state that any officer may apply the standard conditions to an undertaking, but the imposition of special conditions must be authorised by a police officer of the rank of inspector or above. I am sure that members of the committee in particular will welcome my response to the issues that they raised.
I move amendment 26.
We support amendment 26, which is sensible. I am glad that the Executive has responded to the Justice 1 Committee's concerns.
On the general issue of liberation on undertaking, it is fair to say that the evidence that has been given has not yet been wholly convincing about the practical effects of the proposed measures. However, that is not to say that we do not support the amendment—we do. That said, I hope that the Executive will measure carefully whether the provisions have had the desired effect in speeding things up and reducing the overall resources that are used in the criminal justice system. The evidence from the police in particular was not wholly convincing that that would be the case. However, the proposal is certainly worth trying.
I welcome what the minister has said this morning in response to the committee's concerns. It is worth saying at stage 3 that our debate at stage 1 and stage 2 on what the liberation on undertaking process is about has been cleared up.
It is important to note that the undertakings procedure is a crucial part of the reforms that will speed up the system, which were the centrepiece of the McInnes report. I thank the Crown Office on the record for the discussions that we had with it alongside our discussions with ministers to try to understand how the liberation on undertaking procedure will work.
Amendment 26 specifies the ranks of officer whose authority will be required before conditions are imposed. It is important to note that the special conditions that police officers will be able to apply are new powers that the police do not currently have. Those powers can make a difference. The minister has given the example of being able to apply a curfew, which can be important. It is also important to note that if a special condition has been wrongly applied—if a curfew has been imposed in a street in which someone needs to see a doctor, for example—it can be recalled under the appeal procedures.
I welcome the approach that the Executive has taken in listening to the committee and I support amendment 26.
I, too, welcome the clarification that amendment 26 provides and the fact that the minister has listened to the committee's concerns about the ranks of officers who can decide whether special conditions can be imposed. However, I still have reservations, although they will not stop me voting for the amendment. In its stage 1 report on the bill, the committee asked how realistic it was for a junior officer to determine
"whether someone should be liberated on undertaking and whether or not conditions should be attached to that undertaking."
Many issues that have arisen may be determined and clarified in the Lord Advocate's guidance, but that guidance will not be published until the bill has been passed. Will the minister comment on the matter?
At stages 1 and 2, there was considerable discussion about undertakings and how the process will work. The procedure is new. I welcomed the proposals at stage 1 but, as members have said, the committee was concerned that the proposals might be onerous on police constables who had to try to impose special conditions in the street. In that context, Pauline McNeill lodged an amendment. I am delighted that the Executive has taken that amendment into account and that the authority of an officer no lower than the rank of an inspector will be required.
Special undertakings will not be too frequent. Therefore, they must be carefully considered by an inspector in a police station, who will have to take everything into consideration. Undertakings could be given out in the street in normal circumstances, but it is important that special undertakings should be carefully considered. I, too, welcome what the minister said.
I thank members for their responses and for welcoming the amendment, but we should not overstate what is being done. Imposing standard conditions is not an onerous task—I think that people accept that doing so is fairly straightforward.
We recognise that special conditions require more consideration. We have discussed matters with the police, who are happy that the appropriate ranks will be involved and that those ranks will have the appropriate training and awareness of all the issues. However, we should not forget that we are trying to make the system more rational and effective. The provisions will speed up the system; at the very least, they will not slow it down. I assure Stewart Stevenson that we, the police and others will keep a close eye on the matter.
Amendment 26 agreed to.
Section 8—Manner of citation
Group 3 is on the role of judicial officers. Amendment 10, in the name of Kenny MacAskill, is grouped with amendments 11 to 19.
Such is the pace of change in our legislative process that, when I first embarked on these amendments, I think that we were talking about sheriff officers and messengers-at-arms. Changes have since taken place and we now have judicial officers. Whatever the officers are called, they go back a long time and they have served our judicial system well.
Changes that the bill will introduce and changes that have been initiated by the minister and by Elish Angiolini, both in her current office as Lord Advocate and in her previous office as Solicitor General for Scotland, will improve how witnesses are notified, cited and brought to court and will make improvements in other areas. Progress has been and continues to be made.
I differ from the minister in that I believe that the current system works well. Sheriff officers—or judicial officers as we now call them—deal with witness citations in civil proceedings; in criminal proceedings, they deal with citations on behalf of the defence. We may create a bureaucracy that works clinically and efficiently, but we already have a system that has served us well in civil matters and in defence citations. We have qualms and worries about e-mail and postal citations, but the ethos of all members—ministers and back benchers—is to stop the waste of police resources. We have a system that serves us well and we should retain it.
There seem to be two arguments against using judicial officers. There is a worry about how vulnerable witnesses are dealt with. However, judicial officers are well versed in dealing with people in difficult circumstances, such as children whom they have to cite in civil matters or people who have been traumatised. They are well trained and well regulated.
The second argument relates to costs, and is clearly legitimate. People have been worried that the costs for various services would be a huge burden, but judicial officers have made it clear—the amendments emphasise this—that there would be a different set of tables and different arrangements. There has been no suggestion that existing rates for the processing of witness citations would be the same if prosecution citations were passed to judicial officers. With the caveat that we meet the needs of vulnerable witnesses and address the costs to the public purse, we believe that we should retain a system that has served us well and continues to serve us well, and that we should seek to enhance the profession rather than seek to create a new profession and all the apparatus that goes with it.
I move amendment 10.
As Kenny MacAskill said, judicial officers, sheriff officers and messengers-at-arms have a special place in Scots law. They are experienced, have an excellent track record and have proved themselves to be professional. Such officers are certainly equipped for the 21st century.
Currently, citations are served by the police or the Crown Office and Procurator Fiscal Service by post. There is no doubt that the police, the Association of Chief Police Officers in Scotland, the Association of Scottish Police Superintendents and the Scottish Police Federation are in favour of messengers-at-arms or sheriff officers—now judicial officers—taking over that role, which would free up time for front-line duties that police currently spend on discharging that duty. There is an advantage to be had here. I have sympathy with Kenny MacAskill in that, as the judicial officer system is established, there would be no start-up costs as there will be for fines enforcement officers. Also, judicial officers' fees are regulated and, as has been stated, open to negotiation.
The crucial point to remember is that the creation of fines enforcement officers will not in itself ensure that the legislation is used. If we wanted any proof of that, we need only look to the fact that existing legislation does what the Executive seeks to do in cases of wilful fine default. Arrestment of earnings is allowed under sections 214(6) and 221 of the Criminal Procedure (Scotland) Act 1995. Direct deduction of income support can be achieved under section 24 of the Criminal Justice Act 1991. My central point is that the creation of fines enforcement officers in itself will not ensure that more wilful fine defaulters will be dealt with in the way the bill envisages or that they will not be imprisoned, which is clearly not in anyone's best interest. Does the minister envisage enhancing the role of judicial officers or is she saying that fines enforcement officers will replace judicial officers? Her answer will determine how we vote.
I will come back to Margaret Mitchell's point at the end of my contribution—whether fines enforcement officers are effective is a separate point. Although there is a crossover, the amendments in group 3 deal with something slightly different.
Kenny MacAskill's amendments 10 to 19 would provide that only judicial officers—formerly known as sheriff officers and messengers-at-arms—would be able to carry out certain functions, such as serving citations personally on witnesses and accused persons in criminal proceedings. At the moment, those citations can be served by officers of law, who include judicial officers but also the police, authorised civilian employees of the police and prison officers.
If, as I think Kenny MacAskill said, the objective of the amendments is to reduce the amount of police time that is required to serve citations, I assure members that we agree with that aim and are working hard to achieve it. I do not believe that the amendments are the best way to achieve further progress. I will outline some of the work that is under way before explaining why the amendments could be extremely damaging to the operation of Scotland's criminal justice system.
Since 2003, the Crown Office and Procurator Fiscal Service, which is responsible for the citation of the accused and prosecution witnesses, has issued postal citations for most witnesses in summary cases, which covers the vast majority of cases before the courts. In April 2006, that use of postal citation was extended to civilian witnesses in sheriff and jury cases with the important exception of witnesses with special requirements, such as children, vulnerable adults and witnesses whose first language is not English. Those special classes of witnesses need some form of police involvement.
Postal citation has proved to be an extremely effective system. It is more convenient for witnesses than traditional citation in person. Since 2003, about 76,000 citations have been issued each year by ordinary post to civilian witnesses, who responded to them positively. By virtue of the fact that the witness signs and returns a receipt for postal citation, the witness is giving a personal commitment. That underlines the importance of witnesses attending court to give evidence.
The bill already provides for additional methods of citation for witnesses and accused in order to reduce the need for citation in person. The accused as well as witnesses will be able to be cited by first-class post. E-mail citation is an option that we will also consider and develop, although there must be confidence in that process. It has already been piloted with success for police witnesses in one city-centre division in Glasgow. Over 18,000 citations were sent by e-mail leading to savings in police time and resources. Less police overtime was needed as notification of the case came earlier, which allowed more time to accommodate the alteration of shift patterns. On average, officers received their citations five days earlier than before and less police time was wasted at court as there was earlier notification of cases that would not go ahead. That made it possible for police officers to be on the front line rather than stuck in court for cases that were not called. The wider roll-out of the pilot is now planned.
A number of police forces are now using civilian staff to serve their witness citations, which ensures that police time is freed up to deal with higher priorities. I welcome that practice and hope that it will develop further.
In a number of cases in which personal citation is required, the police already have information or intelligence as to the whereabouts of the individual in question, which they can use to ensure that the citation is served effectively. There will always be some cases where postal citation of civilian witnesses will not be successful. Some civilian witnesses are reluctant to attend court for a number of reasons. The retention of police delivery of citations to such witnesses allows the witness to ask questions of the police. The police are well placed to offer reassurance and assistance should that be required.
The bill allows citations to be effected by judicial officers. The effect of Kenny MacAskill's amendments would be to put judicial officers in a monopoly position. Service could be effected only by judicial officers. Is it right that it should only be private businesses that can play that important part in the criminal justice system? Police officers could no longer serve any citations and prison officers could no longer serve documentation, including indictments, on accused people who are in prison. Judicial officers would have to be instructed at a cost to come from their office into the prison, walk past the prison officer who used to be able to serve documents and serve the indictment. That would be good work for the judicial officers but not good value for the public purse.
There are other serious problems with the practicality of the amendments. Not every court district has resident judicial officers and some of the island courts and more remote areas do not have judicial officers nearby. The police, by their very nature, have some form of local presence. Would court business have to be programmed to accommodate visits to such courts from judicial officers?
In summary cases where the accused appears from custody, a judicial officer would have to be in the custody area of the court to serve the complaint on the accused. What if there were no resident judicial officer who could serve the complaint? Would the court have to wait until the judicial officer attended from his office, which might be miles away? Would the accused have to be liberated until a judicial officer could attend?
The bill as introduced provides for additional methods of service on the accused; it does not rule out the use of judicial officers. In no way does our position refuse to acknowledge the work and expertise of judicial officers. It is important to keep our options open in this area, while seeking to ensure that police involvement is minimised. That is what we are working on. Amendments 10 to 19 would build in delay and risk and would place private companies in a monopoly position at a time when we are developing the service of citations through a variety of initiatives.
Margaret Mitchell and others will be aware that the role of fines enforcement officers goes far beyond simply delivering a citation. They manage cases, look at the person in the round, consider their other debts and whether fines are due to other courts, and carry out the critical job of separating those who cannot pay from those who will not pay. The role of fines enforcement officers ought not to be misunderstood. Although there is a role for judicial officers, I do not support what Kenny MacAskill proposes in these amendments. I ask him to withdraw amendment 10 and not to move the other amendments in his name.
I have listened with interest to the minister and we sympathise and agree fully with much of what she said—our dispute is simply to do with the method by which we achieve it. However, it is a bit rich to castigate the creation of a monopoly of private outfits given what has happened with prison transfers. If that is such a matter of objection, we might need to reconsider whether Reliance should have a monopoly. I will press amendment 10.
The question is, that amendment 10 be agreed to. Are we agreed?
No.
There will be a division. As this is the first vote, I suspend the meeting for five minutes while the division bell is rung.
Meeting suspended.
On resuming—
We will now proceed with the division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Neil, Alex (Central Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Robison, Shona (Dundee East) (SNP)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Tosh, Murray (West of Scotland) (Con)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Murray, Dr Elaine (Dumfries) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Abstentions
Fox, Colin (Lothians) (SSP)
Kane, Rosie (Glasgow) (SSP)
The result of the division is: For 31, Against 65, Abstentions 2.
Amendment 10 disagreed to.
Amendment 11 moved—[Mr Kenny MacAskill].
The question is, that amendment 11 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Kane, Rosie (Glasgow) (SSP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Robison, Shona (Dundee East) (SNP)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Tosh, Murray (West of Scotland) (Con)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 32, Against 65, Abstentions 0.
Amendment 11 disagreed to.
Amendment 12 moved—[Mr Kenny MacAskill].
The question is, that amendment 12 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Kane, Rosie (Glasgow) (SSP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Robison, Shona (Dundee East) (SNP)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Tosh, Murray (West of Scotland) (Con)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 32, Against 67, Abstentions 0.
Amendment 12 disagreed to.
Section 14—Proceedings in absence of accused
Group 4 is on proceedings in absence of the accused. Amendment 1, in the name of Margaret Mitchell, is grouped with amendments 2 to 6, 27 and 7 to 9.
Amendment 1 would amend the bill's provisions on trials in absence of the accused in order to establish a consistent approach to such proceedings in both solemn and summary procedures. Before the Criminal Procedure (Amendment) (Scotland) Act 2004 was passed, the Criminal Procedure (Amendment) (Scotland) Act Bill was amended with the effect that a trial in absence can proceed only if an accused fails to appear after evidence has been led that implicates him or her substantially in respect of the offence with which they are charged, and if the trial judge is satisfied that to proceed will be in the best interests of justice. Anecdotal evidence suggests that that provision in the 2004 act has worked well in the High Court. Amendment 1 would provide the same provision for the summary justice system, which—together with the strengthening of the bail conditions that will happen under section 1—would go a considerable way towards addressing non-attendance without compromising Scots law's fundamental principle that the accused has the right to a fair trial.
Under the Criminal Procedure (Scotland) Act 1995, in summary proceedings a trial can take place in the absence of the accused in limited circumstances, such as when the proceedings relate to non-imprisonable statutory offences. Amendment 1 would extend those limited circumstances and would ensure that the altered status of the solicitor-client relationship that flows from a solicitor representing an accused in his or her absence was acknowledged in statute. I hope that the minister and Parliament will accept amendment 1 in the interests of fairness and natural justice, and in the knowledge that, by so doing, we would avoid the impact that the bill's current provisions on trial in absence could have on victims and witnesses, which is that they may face retrials as a result of procedural defects during trials in absence. Amendments 2 to 9 are consequential on amendment 1.
I move amendment 1.
This group of amendments is important. I will deal briefly with Executive amendment 27 and then deal with the issues that Margaret Mitchell has flagged up.
Amendment 27 will make a minor change to section 14(4), which will insert proposed new section 150(A) into the Criminal Procedure (Scotland) Act 1995, on proceedings in the absence of the accused. The policy of section 14 will be unchanged. Subsection (10) of proposed new section 150(A) of the 1995 act provides that an accused cannot be sentenced to imprisonment in his or her absence if he or she is an adult, or to detention in a young offenders institution, remand centre or other establishment if he or she is a young person. After further consideration, it was decided that the words
"young offenders institution, remand centre or other establishment"
are unnecessary, because section 207 of the 1995 act makes it clear that "detention" means detention in a young offenders institution. There is therefore no need to qualify the reference to detention in section 14, so amendment 27 will delete that qualification.
Amendments 1 to 9, in the name of Margaret Mitchell, would provide that no summary trial could commence in the absence of the accused and that a trial could continue in absence only after evidence had been led that substantially implicated the accused. That approach mirrors the provisions on solemn proceedings in the Criminal Procedure (Amendment) (Scotland) Act 2004. My predecessor as Deputy Minister for Justice set out at stage 2 the reasons why such an amendment would be undesirable, but I will do so again.
It might superficially seem to be sensible for the same rules to govern trials in absence in both summary and in solemn procedures. However, in practical terms, trials under those procedures operate quite differently. If amendment 1 were agreed to, we would severely limit the possibility of a trial in absence taking place in a summary case and we would defeat the aim of section 14, which is to reduce the number of accused who wilfully fail to attend for trial, safe in the knowledge that proceedings will be adjourned, to the inconvenience of the courts, the victims and the witnesses who have turned up for the case. The issue is not natural justice, as Margaret Mitchell said; the fundamental right to a fair trial is protected.
However, there is a feeling that on occasions our legal and judicial system rewards the ingenuity of the accused instead of ensuring that a case is heard fairly. The failure of the accused to turn up has significant implications for the victims and witnesses who take their responsibilities seriously and must confront the situation in which they find themselves. We ought not to overstate what is being done in section 14, but we should acknowledge that the approach is about fairness, justice and protection of people's rights.
Unlike solemn trials, the vast majority of summary trials start and finish on the same day. If that happens, the situation does not arise in which the accused fails to turn up for the trial the day after evidence that substantially implicates them is led. Therefore, for trials that are to be dealt with in a single day, amendment 1 would rule out the possibility of any part of the trial proceeding in the absence of the accused.
Amendment 1 would also rule out the possibility of a part-heard trial in absence. Under the current provisions, a judge could decide that the accused should be present for at least part of the case, but that evidence from witnesses who turned up at the right time, such as expert or vulnerable witnesses, could be heard in the absence of the accused, thereby allowing progress to be made and saving the witnesses from the inconvenience and stress of having to turn up again later. That approach seems to be fair and just. The court could hear the relevant evidence, adjourn the case to a later date and issue a warrant for the arrest of the accused in order to ensure that he or she would be present for the remainder of the trial. The amendments in Margaret Mitchell's name would make that impossible.
I ask members to bear it in mind that when a trial diet and intermediate diet is fixed, the accused will be notified of the dates and told that if he or she fails to appear the trial may proceed in his or her absence, so that he or she can be in no doubt that that might happen. There are further safeguards. For example, before a trial in absence can take place, the judge must be satisfied that it is in the interests of justice for the trial to proceed and that the accused is aware of the date and place of the diet. In assessing whether it is in the interests of justice to proceed, the court will still be required to ensure that the accused receives a fair trial, as well as to consider the interests of witnesses and victims.
The McInnes report pointed out that in 2002-03, around 4,000 summary hearings had to be adjourned because of the failure of the accused to appear. Can it be right that victims and witnesses attend court time and again, only to be told that the accused has decided not to turn up, so they cannot give their evidence? As the then Solicitor General for Scotland suggested at stage 1—and as Mike Pringle said at stage 2—there is strong anecdotal evidence to suggest that often, in cases that involve multiple accused persons, one of the accused persons does not turn up for trial on one date and another does not turn up on the next date, safe in the knowledge that the trial will not proceed. That can result in cases being abandoned because witnesses are no longer available or are unable to recall events. Should we allow that to continue?
If the accused has a solicitor who is prepared to continue to act, the court may allow him or her to do so. As the intermediate diet becomes more robust, cases will continue to trial on the basis that the solicitor is properly and fully instructed about the position and line of defence of the accused. The solicitor will therefore be in a good position to act at trial in the interests of the accused, despite his or her absence. If the solicitor declines to act, the court may appoint a solicitor to act in the interests of the accused. We think that solicitors will be prepared to do so. Members should bear it in mind that decisions on whether a trial should take place in the absence of an accused and on whether it would be in the interests of justice for that to happen will always rest with the court. We acknowledge that circumstances arise in which people are genuinely unable to attend court.
As my predecessor made clear at stage 2, section 14 was considered carefully prior to its introduction and is designed to facilitate wider use of trials in absence while ensuring that appropriate safeguards exist to protect the rights of the accused. The provisions are part of a range of measures, which I hope will mean that accused persons turn up when they are supposed to—that is what we all want. Agreement to amendment 1 might allow some accused persons to continue wilfully to frustrate the ends of justice, and to cause upset and inconvenience to victims and witnesses, delays in the court system and wasted effort for the prosecution and the defence. I am surprised that the Tories want to associate themselves with such an approach.
The approach in amendment 1 was considered by the Justice 1 Committee at stage 2 but was heavily defeated. Amendments 2 to 9, also in Margaret Mitchell's name, would make consequential changes to the bill. I urge members to reject amendments 1 to 9.
Amendment 1 offers us a beguiling invitation but, whn we consider whether to support it, the key test is whether failure to attend court is a decision that is in the hands of the accused. I think that members are instinctively uncomfortable with trials in the absence of the accused, but the saving grace of the measure is that an accused who chooses not to attend court understands the consequences of his or her decision. That is a situation that we can address. The approach already exists in England and we have not yet heard an outcry about injustice from across the border, so we can accept it.
However, there are other reasons why we should not support amendment 1. The drafting of the amendment is strange and would defeat the objective that Margaret Mitchell is trying to achieve, in that only one complaint would have to substantially implicate the accused before a trial could proceed in his or her absence. It would be perfectly possible for a situation to arise in which a trial in absence could proceed in which no evidence whatever had been led in all but one of a string of complaints. If Margaret Mitchell is arguing that it is unjust for a complaint to proceed in the absence of evidence having been led that "substantially implicates the accused", I presume that the approach should apply to all complaints. It cannot be just to proceed on the basis that evidence on only one complaint implicated the accused, when no evidence was led that implicated the accused in relation to other complaints. The fact that evidence was led on one complaint should not magically make it fair to proceed. Amendment 1 would not, therefore, deliver the approach that Margaret Mitchell wants, although when she sums up she might tell me that I am incorrect.
On a more general point on amendment 1, proposed new subsection (4) of proposed new section 150(A) of the 1995 act appears to offer solicitors a blank cheque, in that it would require a solicitor to act
"in accordance with his own professional judgement",
without defining what that would mean. Mr MacAskill's professional judgment as a lawyer, for example, might differ from that of other lawyers.
Unless Margaret Mitchell makes compelling arguments when she sums up, we will not support amendments 1 to 9.
Too many people fail to attend for their own court cases—4,000 a year, according to the McInnes committee. The Justice 1 Committee has stated clearly that that is not acceptable behaviour when people have been cited properly. Obviously, the reasons why people do not appear will vary, although I am not altogether clear whether the McInnes committee tried to look behind those reasons.
Some cases involve many accused persons. In one such case in my casework, a different person failed to appear in court on different occasions. The case was eventually abandoned on the third occasion, after all the witnesses had attended.
There will be people who deliberately fail to appear, and there will be people who lead chaotic lives—perhaps due to drug or alcohol addiction—and who do not appear for that reason. The latter is not an excuse for not appearing, but we have to acknowledge that the 4,000 people who fail to appear will not have the same reasons. The Justice 1 Committee has said clearly that we want more research to be done into why people do not appear. Work on that should be done in the reform of the criminal justice system, but work should also be done to ensure that more people attend their own court cases.
If we were to reform the current system to allow trials to proceed in the absence of the accused, the courts should not use that provision widely. I would like the minister to assure us that she would not expect the courts to do so. As she says, a fair trial is essential. We cannot reform the criminal justice system without ensuring fairness.
Amendment 1 was also debated at stage 2. I did not support it then and I cannot support it today. Although I understand what Margaret Mitchell is trying to achieve, I agree with the minister that it is not really appropriate to translate trials under solemn procedure—which, in essence, are much longer—to trials under summary procedure. I attempted at stage 2 to narrow the bill's provisions with an amendment, but I had to accept that my amendment was not workable.
I would, however, still like assurances that the minister will do other things, apart from reforming the law, to look behind the reasons why people do not attend their own court cases. I accept that the bill's provisions set out tests to ensure that a judge has to consider whether it is just to hold the trial in the accused person's absence. The lawyer representing the accused has also to be sure that he or she can fairly represent the accused in his or her absence. As we know, lawyers have been worried about the effect of the Anderson case; they will want to ensure that they are not criticised for not properly representing their clients.
It is important to note that the reforms in the bill will mean that no one will be sentenced to custody—or to any sentence requiring their agreement, such as a community sentence—without their being present. Will the minister clarify how that will work? I presume that a warrant will be issued for the accused's arrest to bring him or her before the court for sentencing, but I do not want just to presume that, so I would be grateful for clarification.
In conclusion, I cannot support the amendments, but I would like assurances from the minister on the issues that I have raised.
People not turning up for trials is undoubtedly a problem. I will tell members why the problem exists: for too many years, far too casual an attitude has been taken in the execution of warrants. When the accused has failed to appear and when the judge has been satisfied that the accused was aware of the trial diet, a warrant has been issued. Those warrants have then lain in the procurator fiscal's office for weeks or months—in fact, many of them have ultimately been binned. That approach is known to people who want to escape justice, which is why we have the problem.
The Executive seeks to remedy the problem by introducing something that, to be frank, verges on oppression. That will not work. It will not have escaped the minister's notice that in many instances, in summary trials in particular, identification is a key factor in evidence. If the accused is not present at the trial, he cannot be identified. That is a real problem.
What happens if the accused does not turn up for a fairly acceptable reason? A case is called; the accused is not present; the lawyer says, "Well, I saw him last Wednesday and he was aware of the trial diet. I tried to contact him this morning, but without success." It transpires that, while the accused was making his way to court, he was injured in an accident or was taken seriously ill and is in hospital. Such events might not happen frequently, but they happen. The Executive is putting through blanket legislation that runs the real risk of causing injustice.
Everything could have been sorted out if the Executive had ensured that a much more robust approach was taken to execution of warrants. If that had been done, there would have been no need for us to come to the chamber today.
Before I ask Margaret Mitchell to wind up, I will call the minister to respond to the debate.
I appreciate that very much, Presiding Officer—although I have to say that I am almost lost for words at what the new Tories now claim is their attitude. Anyone who could accuse me of being oppressive is perhaps offering a challenge too far.
Bill Aitken does not help his case by hugely overstating what the Executive is doing, by hugely overstating its consequences, and by hugely understating the significance of the problem when people wilfully seek not to take responsibility for their own actions and do not appear at court.
The provisions in the bill would be a deterrent. People who thought they could benefit by not bothering to turn up at court now know that their actions will have consequences. However, the bill also contains safeguards. It is in the interests of justice—a reasonable test—that there should be a means of appeal if a person is knocked down by a bus and cannot come to court.
Identification was mentioned. Clearly, it would not be appropriate to hold trials that involve dock identification in the absence of the accused, but no one is suggesting that that would happen. Why, however, when identification has already been made, when some witnesses are vulnerable and when professional witnesses can give professional evidence regardless of whether the accused is there, is it not possible for that trial to continue? I do not think that the alternative case has been made. There will be an appeal mechanism and we have considered the interests of justice.
Bill Aitken's position is ludicrous and is entirely out of step with those who want to ensure that the justice system serves the interests of the accused and the interests of victims and witnesses. He made points about warrants but refuses to challenge people to take responsibility for their own behaviour. The issue is not simply one of warrants not being issued. Even if it were, problems would arise over the time it takes to issue warrants.
I turn now to the points that were made by Pauline McNeill. Although there could be a trial in absence, there cannot be a sentence in absence. Once a trial has taken place, the court will be adjourned, a warrant issued—
Will the minister take an intervention on that point?
Yes.
I fully concede that it is a problem when someone irresponsibly fails to turn up at court. However, does the minister agree that if a warrant were issued, the accused brought immediately to court because the warrant was executed immediately and was then remanded in custody pending the trial, that would be a much greater deterrent?
For a start, some summary cases last only one day—the procedure that Bill Aitken suggests would inevitably extend such cases beyond one day. Professional witnesses and others would have to appear and there would be delays in the process. We are not saying that the only approach is to hold the trial in absence, but there are sufficient safeguards in the bill to address Bill Aitken's points.
I will finish the point that I was making in response to Pauline McNeill. If the accused was not present in court, the court would be adjourned, a warrant for their arrest issued and the accused brought to court for the announcement of the sentence. That situation is not all that far from other situations in which courts defer sentencing in order to obtain more information.
I reassure Parliament that the test that a trial in absence must be in the interests of justice is written into the bill, as is the fact that trial in absence will not go ahead if there are issues specifically to do with identification. Along with the fact that there is an appeal, that should allay members' concerns. It should be acknowledged that people not appearing at their own trials is a significant problem. By failing to confront their responsibility to appear, they put everyone else at huge inconvenience.
The minister's main contention in continuing to press the provision in the bill appears to be that the end justifies the means. It does not. The fact that there is wilful non-attendance in summary courts does not mean that all people who attend court should be penalised, which is what the provision in the bill will mean. By rejecting amendment 1, which would provide the minister with a workable and sensible compromise between what is proposed in the bill and the present arrangements, the minister will miss the opportunity to ensure consistency in solemn and summary procedures.
The system that I propose, which has already been tested in the High Court, would lead to clarity. Although I accept that a much higher volume of cases are subject to summary procedure, the minister does not seem to be aware that such cases can go on for two or three days and that it is not the case that everything happens in one day. Such cases will still be caught by the bill.
To address Stewart Stevenson's contention that my proposal contains an anomaly and a contradiction, that is covered by judges' ability to decide whether it is in the interests of justice to proceed. Judges will make such decisions based on the available facts on the circumstances of cases.
The minister and the Executive have opted for the nuclear option, even though stage 2 amendments would have provided that both the accused and their solicitor had to be notified of the trial diet. Such amendments were lodged because it was fully recognised that many of the people who appear in summary courts are among the most vulnerable individuals in society. They have chaotic lifestyles, are dependent on drugs and alcohol and are not organised.
Will Margaret Mitchell tell Parliament what her proposal would mean for the victims of crime who were waiting for the trial?
I am happy to do so. For victims and witnesses, my proposal would mean that they would not face the uncertainty of a procedural technicality arising because the accused's not being present meant that there had to be a retrial.
I urge Parliament to support amendment 1 and, in doing so, to preserve a fundamental principle of Scots law, which is the right to a fair trial.
The question is, that amendment 1 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Curran, Frances (West of Scotland) (SSP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Johnstone, Alex (North East Scotland) (Con)
Kane, Rosie (Glasgow) (SSP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Petrie, Dave (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Against
Adam, Brian (Aberdeen North) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinney, Mr John (North Tayside) (SNP)
Wallace, Mr Jim (Orkney) (LD)
Welsh, Mr Andrew (Angus) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 15, Against 82, Abstentions 0.
Amendment 1 disagreed to.
Amendments 2 to 6 not moved.
Amendment 27 moved—[Johann Lamont]—and agreed to.
Section 15—Failure of accused to appear
Amendment 13 not moved.
Section 21—Service of documents through solicitor etc
Amendment 7 not moved.
After section 25
Amendments 14 and 15 not moved.
After section 28
Amendment 16 not moved.
Section 28A—Jury citation
Amendment 17 not moved.
Section 30—Evidence on commission
Group 5 is on further miscellaneous amendments to the Criminal Procedure (Scotland) Act 1995. Amendment 28, in the name of the minister, is grouped with amendments 57, 56, 58, 60 and 61.
Amendment 28 is a purely technical drafting amendment to section 30. Section 30 adds new subsections to section 271I of the 1995 act that relate to the taking of evidence on commission. Amendment 28 seeks to shorten the wording of one of those subsections to make its meaning clearer. The effect of the provision remains the same and the policy behind section 30 is unchanged.
Amendments 56 to 58, 60 and 61 are technical in nature and will not change the substance of the bill. Paragraphs 7 to 17 of the schedule to the bill seek to amend and repeal various sections of the 1995 act to ensure that the provisions of the bill will operate effectively. To improve readability, the amendments should appear in ascending order of the section of the 1995 act to which they relate. Under the current drafting, several provisions are out of sequence. Amendments 56 to 58, 60 and 61 seek to correct that.
I move amendment 28.
Amendment 28 agreed to.
Section 31A—Intimation to respondent of certain applications to the High Court
Group 6 is on intimation of certain applications to the High Court. Amendment 29, in the name of the minister, is grouped with amendments 30 and 31.
Amendment 29 seeks to make a minor change to section 31A. Section 31A will insert into the 1995 act new section 298A, which deals with the procedure to be followed when bills of advocation, petitions to the nobile officium or orders of the High Court relating to those bills or petitions—which are all forms of appeal—are intimated.
Amendment 29 will allow the intimation of those documents to be carried out by serving documents on the respondent or on the respondent's solicitor, which should help to improve the process of communicating the documents and to ensure that the appeal process goes smoothly. The documents in question are often technical in nature, so it makes sense to allow them to be sent to the respondent's solicitor, when that is appropriate. Increasing the number of ways in which the documents can be served will improve the progress of appeal proceedings. Practically speaking, it is the solicitor, in consultation with the respondent, who will need to consider the approach to be taken to the appeal as a matter of urgency, so getting the appeal documentation to him or her as quickly as possible makes sense.
Amendments 30 and 31 are consequential to amendment 29. Amendment 30 will make it clear that when those documents are served on the respondent's solicitor, that service is to be effected by post. Amendment 31 seeks to update a reference in section 298A(10), which deals with modifications to section 141 for the purposes of section 298A, to ensure that it applies only to service on the respondent. The substantive law relating to such appeals is not affected by amendment 31.
I move amendment 29.
Amendment 29 agreed to.
Amendments 30 and 31 moved—[Johann Lamont]—and agreed to.
After section 32
Amendment 18 not moved.
Section 34—Sheriff summary: particular statutory offences
Group 7 is on the maximum sentence for wildlife offences. Amendment 32, in the name of the minister, is the only amendment in the group.
Amendment 32 is technical in nature. Section 26A of the Wildlife and Countryside Act 1981 allows powers under section 2(2) of the European Communities Act 1972 to be used to impose a higher maximum sentence, on summary conviction, than would usually be available under that act for crimes associated with the implementation of the habitats directive.
However, as presently framed, those powers cannot be used for offences that relate to the protection of the species of animal that were added to annex IV of the habitats directive after the accession to the European Union of Austria, Finland and Sweden in 1997. That is because section 26A of the 1981 act refers to the form and content of the habitats directive only up to the time of those countries' accession. The directive has subsequently been amended to take account of other new states that have joined the European Union. It is therefore necessary to ensure that enforcement of those amendments can be supported by the higher penalty.
Amendment 32 is necessary because of the amendment of the habitats directive by the act concerning the accession of the Czech Republic—and those of other new member states—which extends the protection of the directive to species that are native to those new member states. The amendment increases the maximum custodial sentence on summary conviction that can be imposed for crimes against those species from three months to six months. That will bring sentencing for crimes against those species into line with that for all other species that are listed in annex IV of the directive. This is not a change in sentencing policy; rather, we are correcting a technical deficiency under which the appropriate level of penalty cannot be applied to certain offences simply because they relate to species of the newer EU member states.
Amendment 32 will have the effect of making section 26A of the 1981 act ambulatory, which will allow any future amendments to the habitats directive to be taken account of. That will ensure that the correct maximum level of penalty can be applied to all offences that are created in pursuance of the directive in the future.
I move amendment 32.
I have no difficulties with amendment 32. However, given that the amendment involves a change to our law when directives are changed in Europe without our direct involvement—I suspect that that is the case in other parts of our law—how will we be made aware of any consequential effects on Scots law when that happens?
I emphasise that amendment 32 is a technical amendment. The issue of the communication and awareness of changes in the law is a challenge that we all face. I am sure that the Executive and those who are involved in the legal process and our committee structure will ensure that important opportunities are made by which we can keep ourselves well informed and ensure that the issues are properly communicated.
Amendment 32 agreed to.
Section 35—Sheriff summary: other statutory offences
Group 8 is on penalties: applications of statutes. Amendment 33, in the name of the minister, is grouped with amendment 34.
Amendments 33 and 34 are technical amendments. They clarify the definition of "relevant enactment" in sections 35(6) and 36A(7). The policy behind those sections remains unchanged.
Section 35 makes provision for increasing the maximum period of imprisonment that may be imposed in respect of all statutory offences that are triable under either solemn or summary procedure to 12 months on summary conviction. Section 36A and section 37 increase the maximum fine that may be imposed in respect of all statutory offences that are triable either way to £10,000 on summary conviction. Those maxima are being increased to allow the sheriff summary courts to deal with a wider range of appropriate business.
The purpose of amendments 33 and 34 is to make absolutely clear the enactments to which sections 35 and 36A will apply. Those sections will apply to a relevant enactment, which is defined as an act that is passed before the bill is passed. Amendments 33 and 34 make it clear that, for the limited purposes of sections 35 and 36A respectively, an act of the Scottish Parliament will be treated as having been passed when the bill for that act is passed by the Parliament at stage 3.
The amendments in the group will in no way affect the time at which the provisions of any act of the Scottish Parliament may come into force. Provisions in acts come into force only after royal assent has been given. The amendments simply make it clear that the provisions in sections 35 and 36A apply to offences, or powers to create offences, that are contained in any act of the Scottish Parliament that has completed its parliamentary procedure before the passing of the bill. That will ensure that, should any act that contains a lower summary maximum be passed before the bill, it can be uprated. That is in line with the policy of allowing the sheriff summary court to deal with an appropriate level of more serious business in the future.
I move amendment 33.
Amendment 33 agreed to.
Section 36A—Fine level
Amendment 34 moved—[Johann Lamont]—and agreed to.
After section 36A
Amendment 19 not moved.
After section 37
Group 9 is on justice of the peace courts: drug treatment and testing orders and community service orders. Amendment 35, in the name of Mary Mulligan, is grouped with amendment 36.
When proposals for the bill were being considered at committee, the future of the district courts was also discussed. I am pleased that the bill that is before us provides for the continuation of the district courts, albeit that they will be known in future as justice of the peace courts. The process has given members the opportunity to consider the role and powers of the new JP courts. Amendment 35 seeks to remove from the Criminal Procedure (Scotland) Act 1995 the need for ministers to notify the new JP courts before the courts can begin to use drug treatment and testing orders.
When members of the Justice 1 Committee met members and officials of the West Lothian district court and subsequently met a number of JPs prior to Christmas, we heard—indeed, it was stressed to us—how useful DTTOs would be as a disposal in the new JP courts. As everyone said, a large percentage of the accused who come before the present district courts are there as a result of drug-related offences. In light of the success of DTTOs as a community disposal in the sheriff courts, I believe—in common with many others—that it would be beneficial to give the new JP courts the power to make DTTOs. In a similar vein, amendment 36 would allow the new JP courts to have as a disposal community service orders. Amendment 36 would remove the need for ministers to notify the new JP courts that they can use community service orders as required under the 1995 act.
During the progress of the bill, we have extended the role of the procurators fiscal and the disposals that are available to them. It seems logical for the disposals that are available to PFs to be made available to the new JP courts. That would be in line with the move to increase community-based disposals. I hope that the minister understands why I lodged amendments 35 and 36. They are supported by many people who give their time to make our district courts an effective part of our judicial system.
I move amendment 35.
The district courts, which will become the JP courts, are an important part of our criminal justice system. Of course, in tapping into the voluntary effort of people in our communities, they provide an effective link between the criminal justice system and wider society. As parliamentarians, we should always encourage the idea of getting something for nothing; it means that money is left available for the things that we have to pay for. To be serious, the McInnes report put the district courts under some attack. There is a wide sense of relief across the chamber that we are now in a position of building on the success of the district courts in the JP courts. I welcome Mary Mulligan's amendments 35 and 36.
Of course, given the antipathy on the Conservative benches to DTTOs, I am particularly interested to hear what Margaret Mitchell will say about giving DTTOs to the JP courts. That antipathy is entirely consistent with the line of swinging this way and that that the Tories have taken on drugs policy. I am glad that the Tories are visiting the excellent clinic in Oldmeldrum today to learn—as every other party has done—about the excellent work that is done there. I hope that the visit leads to greater consistency on those benches in that policy area. I also hope that Tory members will join the rest of the chamber in supporting Mary Mulligan's amendments 35 and 36, which are worthy of consideration.
I am grateful to Stewart Stevenson for highlighting the inconsistency in SNP policy. He appears not to know, although he should know, that the Conservatives have argued consistently for the district courts—the new JP courts—to have DTTOs as an available disposal.
I welcome the amendments in the group, which Mary Mulligan lodged in response to an appeal that was made by the District Courts Association. I hope that the minister will accept them. That said, it must be pointed out that the amendments were not necessary. At any time, the Minister for Justice could have introduced DTTOs under the existing legislation. That would have made sense, given the need for early intervention in trying to solve the serious problem of drug abuse.
I also very much welcome the proposal to enable community service orders to form part of the disposals that are available to justices of the peace. However, that still leaves a gap in the range of disposals: we should ensure that supervised attendance orders are a disposal of first instance instead of being used only when someone has defaulted on a fine. I would welcome the minister's comments on that.
The Executive takes the view that it would not currently be appropriate to extend the use of DTTOs and CSOs in the way in which amendments 35 and 36 envisage. That is not to say that we do not recognise the role and value of the district courts or the potential for such extension in the future. Our first priority for DTTOs was to roll them out in sheriff courts first, and it is heartening that they have been as successful as they have been. Moreover, although we might want to consider broadening the options for disposals in district courts, it is not necessary to support amendments 35 and 36. We are alive to the possibility of broadening the options and are willing to consider it further.
Less than 1 per cent of district court cases outside the stipendiary magistrate courts result in custodial sentences. Currently, CSOs and DTTOs are explicitly regarded as alternatives to custodial sentences. Therefore, there are very few cases at present in which it would be appropriate for district courts to impose such orders. However, that might not be the case in the future, as district courts might take on work that is more appropriate for custodial sentences and, therefore, the use of CSOs and DTTOs could perhaps be extended.
It is worth noting that district courts currently have access to a number of community sentences. For example, they can and do impose probation orders. In addition, supervised attendance orders for fine defaulters have been available to district courts for many years. We are exploring how the range of community disposals that is available to district courts might be extended. For example, the use of SAOs as a disposal of first instance is being piloted in Renfrewshire and West Dunbartonshire. Mary Mulligan and other members will know that we are, as ever, alive to imaginative and creative ways of developing and using community disposals. We are also piloting the use of community reparation orders as disposals for dealing with acts of antisocial behaviour in three areas. Both sets of pilots are being independently evaluated and the findings will inform decisions on wider roll-out. If wider roll-out is thought to be appropriate, it could be achieved by an administrative circular rather than by amending primary legislation.
The current sentencing practice of district courts suggests that there is little need for additional disposals that provide direct alternatives to custody. However, if a significant change to the current situation were to occur as a result of the bill's other provisions, we could and would think again about whether there was a need to reconsider the availability of DTTOs and CSOs in the district courts. If such a move was thought to be appropriate, it could be achieved administratively without a need for legislative change. For that reason, the current position seems to us to be preferable to amendments 35 and 36.
We are not saying that we should never widen the use of DTTOs and CSOs, nor are we disregarding the opportunities that the district courts provide. The use of DTTOs and CSOs could be widened in the future and we do not consider amendments 35 and 36 to be necessary or appropriate at this stage. Therefore, I invite Mary Mulligan to withdraw amendment 35.
I was aware that the minister already had powers to extend the use of DTTOs and CSOs. However, given that those powers had not been used, it was important that we have the debate, because it provided us with an opportunity to consider what powers district courts—or JP courts, as they will become—will have in the future.
I note that the minister says that, at present, DTTOs and community service orders are used as alternatives to custody. However, the point has been made that they could also be used as a means of early intervention and, therefore, I welcome the minister's comment that the Executive will consider such use. I also welcome the fact that she referred to the pilot projects that are under way, which could inform us further about how to ensure that the appropriate disposals were available to all sections of our judicial system.
On that basis and knowing that, should the evidence that would provide for the extension of the orders be found, the minister has the powers under the 1995 act to implement such an extension, I seek leave to withdraw amendment 35.
Do members object to the withdrawal of amendment 35?
Yes.
In that case, the question is, that amendment 35 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Byrne, Ms Rosemary (South of Scotland) (Sol)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Robison, Shona (Dundee East) (SNP)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Abstentions
Curran, Frances (West of Scotland) (SSP)
Fox, Colin (Lothians) (SSP)
Kane, Rosie (Glasgow) (SSP)
The result of the division is: For 28, Against 67, Abstentions 3.
Amendment 35 disagreed to.
Amendment 36 not moved.
Section 39—Fixed penalty and compensation offers
Group 10 concerns miscellaneous amendments on penalties as an alternative to prosecution. Amendment 37, in the name of the minister, is grouped with amendments 38 and 41 to 46.
Amendments 37, 41, 43 and 44 make minor wording changes: where the phrase "liability for conviction" occurs in sections 39 and 40, they change it to "liability to conviction". The change ensures consistency with existing provisions in the 1995 act and the effect of sections 39 and 40 is unchanged.
Amendments 38 and 42 make minor changes to section 39. They substitute the current form of wording in proposed new sections 302(4) and 302A(4) of the 1995 act, which section 39 would insert, with more detailed provision.
Proposed new sections 302(4) and 302A(4) set out when notification should be given to the procurator fiscal by the clerk of court of whether the offer of a fiscal fine or compensation offer has been accepted, deemed to have been accepted or rejected. Those sections currently place a requirement on the clerk of court to notify the procurator fiscal about the outcome of an offer of a fiscal fine or compensation offer upon the expiry of the 28-day period or such longer period as may be specified in the offer.
Having considered the issue further, we think that the use of the word "upon" in that context may create some administrative difficulties. It suggests an immediate obligation on the clerk of court to notify the outcome of an offer to the procurator fiscal as soon as the time period has expired. If notification by the clerk had to take place immediately, it could create difficulties for the information technology systems that are operated by the clerk, the procurator fiscal and the Scottish Criminal Record Office.
Amendments 38 and 42 substitute more detailed provision that makes it clear that the clerk is required to notify the procurator fiscal of acceptance or deemed acceptance of an offer after the expiry of the relevant period, rather than immediately upon its expiry. They also make it clear that the clerk of court does not have to wait for the expiry of the relevant period before notifying the procurator fiscal that an offer has been actively refused by an alleged offender. That would build in an unnecessary delay to subsequent action by the prosecutor.
Amendments 38 and 42 allow the clerk to intimate the outcome of an offer when it is practicable to do so. I stress that the change will have no direct impact on the accused. The obligation in question requires the clerk of court to advise the fiscal of the outcome of an offer of an alternative to prosecution so that the fiscal can update the case records and take appropriate action.
Amendments 45 and 46 make very minor changes to proposed new section 303ZA(9) of the 1995 act, which section 40 would insert and which relates to work orders. The expressions "the alleged offender" and "an alleged offender" in subsection (9) are exchanged, as a general reference to "an alleged offender" is more appropriate at the first occurrence of the words "alleged offender", and a specific reference to "the alleged offender" is more appropriate at the second occurrence of the words "alleged offender". I hope that that is clear. The proposed changes have no effect on the bill's policy.
I move amendment 37.
Amendment 37 agreed to.
Amendment 38 moved—[Johann Lamont]—and agreed to.
Group 11 is on penalties as an alternative to prosecution: general. Amendment 39, in the name of Pauline McNeill, is grouped with amendments 40, 67, 47, 65 and 66.
During the committee's stage 2 consideration on 15 November, I lodged an amendment that was intended to limit the maximum fiscal fine to £300, rather than setting it at £500, as the McInnes report proposed. That amendment provided the flexibility to increase that level in future should it be considered appropriate. It was lodged as a result of my and the committee's concerns about the prospect of an increase in the fiscal fine level from £100 to £500.
On a number of occasions, we heard from the Crown Office about the types of cases that might be covered by such an increase in the fiscal fine level. Although the committee agreed with the principle of the approach, it was not convinced that the significant increase from £100 to £500 was justified. The committee was told that the vast majority of fiscal fines would be no greater than £250. Although we were prepared to accept that an increase in the maximum fiscal fine would be appropriate, the committee's general view was that the case for a substantial increase had not been made. I was pleased that Hugh Henry, who was then Deputy Minister for Justice, indicated that he was prepared to support the aims behind my stage 2 amendment, subject to some drafting changes.
I have now been able to reconsider the issue, and I will be pleased to move amendments 39 and 67, which provide that the maximum level of fiscal fine that may be prescribed is £300, subject to any future increase, which will require to be made by statutory instrument. The then Deputy Minister for Justice informed the committee that
"a level of £300 would allow prosecutors to deal with the vast majority of cases"—[Official Report, Justice 1 Committee, 15 November 2006; c 4009.]
that are suitable for fiscal fines.
Amendment 67 provides that flexibility, as it allows that the maximum level of fiscal fine may be increased by order in the future. Such an order will be subject to the affirmative procedure, which will ensure that the Parliament can properly scrutinise and approve any increase in the maximum level of fiscal fine. That will occur only if the case for such an increase is made and if the evidence suggests that the increased use of fiscal fines, for which the bill provides, has proved effective.
Some members might have noticed that amendment 67 was lodged as a manuscript amendment—I am sure that Stewart Stevenson did, as he usually notices such things. It is intended to replace amendment 40, which makes identical provision to amendment 67, with the exception of the choice of procedure to which the proposed order-making power will be subject. After I lodged amendment 40, it became apparent that the order-making power to which it relates would be subject to the negative procedure, but it was always my intention for the power to be subject to the affirmative procedure, which I am sure the Parliament will support. I therefore lodged amendment 67 to rectify the position, and I intend to move amendment 67 when it is called and not to move amendment 40.
I move amendment 39.
Amendment 47 inserts a new section into the bill to insert new section 303ZB into the Criminal Procedure (Scotland) Act 1995, and provides that the procurator fiscal may set aside the offer of a fiscal fine, compensation offer, work offer or work order in certain circumstances. The procurator fiscal will be able to set aside an offer or order when he or she considers that the original offer or order should not have been made because, subsequent to making it, information has come to light that renders the basis of the decision to do so untenable. That power applies whether or not an offer has been accepted or is deemed to have been accepted.
When an offer or order is set aside, the procurator fiscal will give notice of that fact to the alleged offender, as well as notice that he or she cannot be prosecuted for the alleged offence to which the offer or order relates. That provision will be useful where offers are occasionally made and accepted and, for various reasons, the accepted offer turns out to be unreliable. An example of that could be where a person provides false details to the police and, as a result, the offer is sent to the wrong person. If the fact that false details were given comes to the attention of the procurator fiscal, he or she, by use of the power, will be able quickly to remedy the situation with the minimum inconvenience to the innocent third party.
Amendment 47 provides a further safeguard in the new system of alternatives to prosecution, in addition to the recall procedures that are already provided for in the bill. Those procedures were strengthened at stage 2 following a number of helpful observations by the Justice 1 Committee in its stage 1 report. The additional provision bolsters the safeguards that are in place to ensure that, where appropriate, an accepted offer of an alternative to prosecution can be set aside, which will help to ensure that the system is both just and efficient. I hope that members will be further reassured by amendment 47. The opt-out scheme that the bill introduces will provide a credible, effective and efficient system of alternatives to prosecution while ensuring that the system is fair and protects the interests of the alleged offender.
I am grateful to Pauline McNeill for lodging amendments 39 and 67, and I am happy to support them. My predecessor made it clear to the Justice 1 Committee when the equivalent amendment was introduced at stage 2 that we supported it in principle, subject to some minor drafting alterations. We are firmly of the view that it is important to give prosecutors increased scope for the use of alternatives to prosecution. That, in turn, will enable better use to be made of court time.
We also accept the Justice 1 Committee's concern that, at this stage, the argument for an increase in the maximum fiscal fine to £500 has not been made. I am grateful to the committee for its constructive approach to the issue. My understanding is that a maximum fiscal fine of £300 should, in the majority of cases, allow procurators fiscal to deal quickly and proportionately with alleged offenders where a fiscal fine is thought to be the best way of dealing with the matter. I therefore support amendments 39 and 67.
On amendments 65 and 66, in the name of Margaret Mitchell, section 39 makes changes to the process of accepting fixed penalties, otherwise known as fiscal fines, and makes provision in relation to compensation offers, which are a new alternative to prosecution. Section 40 creates the work order, which is a further alternative to prosecution. Amendment 65 would compel a future Executive, as a matter of law, to produce a report on the operation of the changes that are being introduced to the system of alternatives to prosecution under sections 39 and 40.
Amendment 66 would cause sections 39 and 40 to cease to have effect within five years of the provisions coming into force and would, in practice, compel a future Executive and Parliament to reconsider the provisions for alternatives to prosecution. Depending on the result of that consideration, the Parliament would have to make further provision through primary legislation if it wished to retain the changes that are being made now by sections 39 and 40. Additionally, amendment 66 would leave us with an untidy system on the statute book.
In opposing the amendments in the name of Margaret Mitchell, I make it clear that we are committed to developing an effective system for monitoring and evaluating the changes that the bill and the wider summary justice reform programme will make. That was alluded to previously by Stewart Stevenson. However, we must do that in a way that helps further improvements to be made to the system, not in a way that forces us to look in a blinkered manner at one particular aspect of the package, which may or may not be worthy of such detailed attention at a point in the future. There is limited benefit in considering one part of the summary justice system in isolation. Many people made that point during the considerations that led to the introduction of the bill—and have done so throughout its passage—which is why we asked Sheriff Principal McInnes to prepare a report on the entire summary justice system, end to end, and why the bill deals with all aspects of the system. To commit a future Parliament to review one part of the package would rather miss the point.
Of course, the Executive as a whole is accountable to Parliament. Members of any future Parliament will be free to ask questions about the operation of the new legislation and its practical impact, just as they are free to do in other areas. Future committees of the Parliament may wish to take up that issue. New legislation is not required to hold the Executive to account on legislation or matters of policy.
Amendments 65 and 66 would mean that a future Parliament would be compelled to use some of its time to reconsider this area of the law and to make further legislative provision, even if the existing provisions were working well. Amendment 66 would negate the effects of sections 39 and 40 five years after they had come into force. That might be a waste of time for the future Parliament, which no doubt will want to address its own priorities rather than issues that its predecessor thought might be a priority.
Amendment 66 would also create a degree of uncertainty for those who implement the reforms. New systems and changes to existing systems will be required to ensure that the operation of fiscal fines, fiscal compensation offers and work orders is effective in future. Amendments 65 and 66 would leave a shadow hanging over the bill.
As I am sure Justice 1 Committee members will recall, sections 39 and 40 were the subject of much debate at stages 1 and 2—debate that led to a number of changes. At the conclusion of stage 2, I think that the majority of the Justice 1 Committee were of the view that the provisions in those sections struck the right balance between fairness and efficiency. However, the issues are complex, and any future parliamentary scrutiny would need to be similarly detailed.
I firmly believe that we should let members of a future Parliament exercise their own judgment as to what issues are important to them, which may mean members enacting new legislation or amending provisions in this bill when enacted to deal with any concerns that arise. However, that is a judgment for the future, not for today. If members believe that sections 39 and 40 should be passed, they should pass them in the usual way. If my checks are correct, with the exception of the convener of the Justice 1 Committee, I am the only member who has lodged amendments to these sections at stage 3. I assure members, however, that that was to further improve them and not because I am in any doubt.
I reassure members that the information that we will need to monitor the operation of alternatives to prosecution will be forthcoming from the Crown Office, the police and the Scottish Court Service. Also, I remind members that other provisions in the bill place the Crown Office inspectorate on a statutory footing. That body will have the power to inspect the operation of the Crown Office and Procurator Fiscal Service, including its detailed procedures and practices. Structures and systems will be in place to ensure that those new measures are effectively and appropriately used.
Alternatives to prosecution have been part of our justice system for almost 20 years, in the form of fiscal fines. They are well understood and they work. In appropriate cases, those accused of minor offences can avoid picking up a criminal record, and the courts are left free to deal with more serious cases. The introduction of the fiscal compensation offer and work order will further improve that system. We want to build on that system using the recommendations that have been made by an expert committee and which have been scrutinised and supported by this Parliament.
Amendments 65 and 66 have the potential to create exactly what the entire bill seeks to eliminate—wasted effort. They would force detailed work on one aspect of a much wider programme and force a future Parliament to spend its time on issues that it might not consider to be a priority. For those reasons, I encourage the chamber not to support the amendments in Margaret Mitchell's name.
Amendment 65 introduces a sunset clause into the legislation and amendment 66 is consequential.
Amendment 65 relates to the provisions that deal with alternatives to prosecution, whereby an offer of an alternative to prosecution will be deemed to have been accepted unless the accused gives notice to the clerk of court within 28 days that he or she is refusing the offer. The opt-out provision is, therefore, a radical departure from current practice. I acknowledge that the minister has gone a considerable way towards ensuring that the necessary checks and balances are in place to avoid a situation in which an individual who, for various legitimate reasons, is unaware of the notice is deemed to have accepted the alternative. Nevertheless, in the interests of justice, it would be sensible, after a reasonable period of time has elapsed, to review the provision.
Amendment 65 therefore provides for the creation of a research project to analyse the operation of the provision and for that research to be laid before Parliament within three years of the provision coming into force. It further provides that the relevant sections of the bill will cease to have effect five years after the date of commencement. That means that the full impact of the provision could be properly assessed and debated in the context of the detailed analysis of its operation over an appropriate period of time. I hope that the minister will have second thoughts on this issue.
With regard to amendment 39, I do not consider that the case has been made for the substantial increase in the level of fiscal fines to £500. I believe that £300 is an adequate limit in relation to the offers that are envisaged, therefore I will be supporting amendment 39.
I commend Pauline McNeill on her prescience and attention to detail and the entirely justified assumption that I am, of course, infallible.
I support amendments 39 and 67 which, it is clear from the debate, have widespread support. They strike a better balance between the previous arrangements and the original figure of £500.
With regard to amendment 65, in the name of Margaret Mitchell, there is a precedent for such a provision. When Margaret Curran was the Minister for Communities, she accepted two amendments from me to the Antisocial Behaviour etc (Scotland) Bill that inserted a requirement to report on aspects of the operation of that bill once enacted, so there is no principled reason not to accept amendment 65. I am minded to support amendment 65 because the change from a presumption that someone has not accepted something to a presumption that someone has accepted something is an important change. I and other committee members have wrestled with that and, at the end of the day, we will simply have to support it—perhaps we will debate the issue further when we debate the bill as a whole.
However, amendment 66, which would automatically delete the provision after five years, is a very unusual construction and proposal from the Tories. The blunt position has to be that, if Parliament votes to support a provision in a bill, that is what it does, and if it is minded to overturn it, it should take the necessary action by lodging an amending bill to delete it from the act.
The proposal is uncomfortable, although there are, of course, precedents. The prevention of terrorism legislation is now 100 years old, and the Westminster Parliament has had to reinforce and restate it. However, we in the Scottish Parliament should not go down the road of saying, "We are supporting what is in the bill, but not really, because we are going to delete it automatically after five years."
I hope that Margaret Mitchell will not move amendment 66. We are content with the minister's amendments.
I reassure everyone that the Executive is committed to monitoring and effectively reviewing its work and recognises that its approach has to be holistic. However, even if that were not the case, we have a parliamentary process that is committed to scrutiny and can conduct inquiries into matters at any time. In fact, this Parliament has a good record in relation to legislation coming from communities, going into the committee system and on to the statute book. Our process is such that the situation is not necessarily comparable with the situation that pertains at Westminster. Equally, the precedent that Stewart Stevenson talked about is not proportionate, given that we are talking about summary cases. We do not want to overstate what has been done in relation to these matters.
Members should be alert to the fact that, on occasion, a requirement in legislation for a report to be written has meant that time has been spent producing a report at an entirely inappropriate time. For example, in relation to the right-to-buy policy, a report had to be written before the changes in the right-to-buy process could be properly evaluated. It would have been more informative to consider the matter at a slightly later stage.
We have a Parliament and an Executive that are committed to monitoring, reviewing and taking effective action if necessary. I concur entirely with what was said about the inadvisability of a sunset clause that would force Parliament to revisit the matter even if it were working well. We know that, even if there is more legislative time in this Parliament than elsewhere, it remains precious and should be used to deal with the priorities of the Parliament of the day.
I call Pauline McNeill to respond to the debate.
There is nothing further to add. I have said everything that I need to say.
Amendment 39 agreed to.
Amendment 40 not moved.
Amendment 67 moved—[Pauline McNeill]—and agreed to.
Amendments 41 to 43 moved—[Johann Lamont]—and agreed to.
Section 40—Work orders
Amendments 44 to 46 moved—[Johann Lamont]—and agreed to.
After section 40
Amendment 47 moved—[Johann Lamont]—and agreed to.
Amendment 65 moved—[Margaret Mitchell].
The question is, that amendment 65 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Curran, Frances (West of Scotland) (SSP)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Kane, Rosie (Glasgow) (SSP)
Leckie, Carolyn (Central Scotland) (SSP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Robison, Shona (Dundee East) (SNP)
Scott, Eleanor (Highlands and Islands) (Green)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Tosh, Murray (West of Scotland) (Con)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Abstentions
Byrne, Ms Rosemary (South of Scotland) (Sol)
The result of the division is: For 40, Against 54, Abstentions 1.
Amendment 65 disagreed to.
Section 43—Fines enforcement officers and their functions
Group 12 is on fines enforcement: miscellaneous amendments. Amendment 48, in the name of the minister, is grouped with amendments 49 and 50.
Amendment 48 makes a minor addition to new section 226D(11)(g) of the Criminal Procedure (Scotland) Act 1995, as inserted by section 43. New section 226D(10) of the 1995 act provides that ministers may make regulations in connection with the seizure of vehicles by a fines enforcement officer. Section 226D(11) lists—[Interruption.]
Order.
Thank you, Presiding Officer.
Section 226D(11) lists what those regulations may cover, and paragraph (g) states that they may make provision as to the payment of fees, charges or other costs in relation to the seizure of vehicles. Amendment 48 adds a qualification to section 226D(11)(g) to the effect that any provision made in regulations will relate to the payment of reasonable fees, charges and other costs. The addition of the word "reasonable" follows comments made by the Subordinate Legislation Committee. Although I do not think that the addition of the word changes the policy effect of the provision, as any regulations made under it would have sought to recover only reasonable costs, I am happy, given the committee's suggestion, to include the word "reasonable" in the bill. I thank the committee for its comments.
Amendments 49 and 50 make small technical additions to section 43 to ensure that enforcement action in respect of unpaid financial penalties can be taken forward as effectively as possible. The bill as introduced provided that, if court-imposed financial penalties were transferred from one court to another and it became necessary for the outstanding fines to be referred back to court for some form of action, the court to which the outstanding fines were referred would be either the court in which the fine was imposed or, if the fine had been transferred to another court, the court to which it had been transferred.
That provision will ensure that any follow-up court action needed in respect of unpaid fines can take place in a single court hearing in the area where the offender lives. The fines enforcement officer and the clerk of court would ensure that all fines were transferred to the sheriffdom in which the accused lived before any court action took place, avoiding the need for multiple hearings in different parts of Scotland in respect of a single offender's unpaid fines. Multiple hearings would be a waste of court time and would not benefit the offender, whose outstanding fines should be considered all together by his or her local court, not in a piecemeal way.
On further examination of those technical provisions, it became clear that the bill as introduced would not provide the same flexibility in respect of non-court-imposed fines, such as fiscal fines and fixed penalties for road traffic offences. In those cases, any subsequent court action would always have to take place before the court whose clerk issued the penalty—even if it was a speeding fine issued in Inverness against someone who lived in Dumfries but happened to be driving that way.
That is not a sensible position. It would frustrate attempts to ensure that all outstanding penalties against an individual could be dealt with at a single court hearing in the area where the defaulter resides, should subsequent court action prove necessary.
Amendments 49 and 50 rectify the position by extending the provision that applies to court-imposed fines so that it will also apply to non-court-imposed fines. Any subsequent court action in respect of the penalty will fall to the court to which the penalty had been transferred if a transfer has taken place, not the court of issue. Amendment 50 also ensures that that flexibility can be applied to any relevant penalty specified by ministers in future, which will ensure that the provisions can adapt to deal with new or amended penalties introduced after the bill comes into force.
I move amendment 48.
Amendment 48 agreed to.
Amendments 49 and 50 moved—[Johann Lamont]—and agreed to.
Section 49—Area and territorial jurisdiction of JP courts
Group 13 is on justice of the peace courts. Amendment 51, in the name of the minister, is grouped with amendments 52 to 54 and 62.
Amendments 51 and 52 are technical and clarify the provisions relating to a JP's jurisdiction and powers. The current wording of section 49(5A) could be interpreted as meaning that a JP could not exercise signing functions in their own sheriffdom. Such an interpretation would be contrary to our policy intention. Amendment 52 puts it beyond doubt that JPs can exercise their signing functions anywhere within Scotland, including the sheriffdom in which they sit as a JP.
A JP's power to sign documents that relate to criminal proceedings within their sheriffdom is set out in section 49(5). That allows JPs to sign documents such as warrants and judgments relating to proceedings in their sheriffdom. Although the power conferred on JPs by the section is to sign certain documents, it must be stressed that the signature of such documents is part of the JP's judicial functions and not a part of their more general signing functions. It would be helpful to state clearly in the bill that the functions are of a judicial nature, so that there can be no doubt that it is only JPs, not other people who have more limited signing powers, who may sign the documents listed in section 49(5).
Amendment 51 makes that position clear by stressing the judicial nature of the functions. It does not change the substance of section 49 in any way and is proposed for the sake of clarity.
Amendment 53 changes the specified purposes for which an order can be made under section 51(4) to repeal any or all provisions of the District Courts (Scotland) Act 1975. The bill currently states that ministers may make such an order
"to such extent as they consider to be appropriate in connection with the disestablishment of district courts."
The Executive anticipates that the provisions of the 1975 act will be repealed not only for the purpose of disestablishing the district courts as they are replaced by JP courts, but to enable reforms to be made to the system of lay justice in Scotland.
For example, the new system requires some amendments to the process by which tribunals for JPs are established. The current wording of section 51(4) refers only to the disestablishment of the district courts. It could therefore be argued that the section does not currently allow the 1975 act to be repealed for the purpose of reforming lay justice. That would be contrary to our policy intention and could frustrate the process of reform. Amendment 53 therefore changes the wording of section 51(4) to put it beyond doubt that the power to repeal the 1975 act can be used for the purpose of reforms to the lay justice system as well as for disestablishing the district courts.
Amendment 54 removes provisions in the bill amending section 2 of the Public Records (Scotland) Act 1937 and inserts a new section 2A into that act in order to make appropriate provision for the preservation of JP court records in future. The provisions are similar to those that are in place for sheriff court records, although our view is that extending in their entirety the existing requirements for sheriff court records in section 2 of the 1937 act to JP court records would be unduly onerous.
JP court records will be the relevant sheriff principal's responsibility, unlike the records of their predecessors—district courts—which were the relevant local authority's responsibility. Accordingly, it is necessary to arrange for their preservation by the keeper of the records of Scotland.
The main differences in treatment between sheriff court and JP court records will be that JP court records will be transferred once they are 10 years old; the order to transfer them will be made by the relevant sheriff principal rather than the Lord President; and records will be transferred within six months of the date of the order.
Amendment 62 makes a minor change to the Public Appointments and Public Bodies etc (Scotland) Act 2003 and is a consequence of the proposed changes to the lay justice system. A recommendation to be appointed as a JP is currently made by a justices of the peace advisory committee—a JPAC. Ministers make appointments to JPACs, so the office of the commissioner for public appointments in Scotland regulates those appointments. JPACs are listed in schedule 2 to the 2003 act as specified authorities that are subject to the code of practice for ministerial appointments to public bodies in Scotland.
Appointments to the offices and bodies that are listed in schedule 2 to the 2003 act are made by the Scottish ministers or on their recommendation. We propose that sheriffs principal, rather than ministers, will appoint people to JPACs, so it will no longer be appropriate for JPAC appointments to come under the scope of that schedule, which, as I mentioned, deals with appointments that are made by or on the recommendation of the Scottish ministers. Amendment 62 therefore removes the reference to JPACs from the schedule.
I move amendment 51.
Amendment 51 agreed to.
Amendment 52 moved—[Johann Lamont]—and agreed to.
Section 51—Abolition of district courts
Amendment 53 moved—[Johann Lamont]—and agreed to.
Section 71—Commencement and short title
Amendment 66 moved—[Margaret Mitchell].
The question is, that amendment 66 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Curran, Frances (West of Scotland) (SSP)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Gallie, Phil (South of Scotland) (Con)
Kane, Rosie (Glasgow) (SSP)
Leckie, Carolyn (Central Scotland) (SSP)
Petrie, Dave (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Against
Adam, Brian (Aberdeen North) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (Sol)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinney, Mr John (North Tayside) (SNP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Wallace, Mr Jim (Orkney) (LD)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 11, Against 91, Abstentions 0.
Amendment 66 disagreed to.
Schedule
Modification of enactments
Amendment 54 moved—[Johann Lamont]—and agreed to.
Amendments 8 and 9 not moved.
Group 14 is on compensation for miscarriages of justice. Amendment 55, in the name of the minister, is the only amendment in the group. I ask the minister to move and speak to amendment 55. It would help to have some silence.
Indeed. Amendment 55 is a minor and technical amendment that updates a cross-reference in the Criminal Justice Act 1988. Section 133 of that act requires the Scottish ministers to pay compensation in certain circumstances when the High Court determines that a miscarriage of justice has occurred.
The Scottish Criminal Cases Review Commission refers cases to the High Court, which used to be a function of the secretary of state before the SCCRC was established. The amendment simply corrects an out-of-date cross-reference to reflect the fact that all references to the High Court following a suspected miscarriage of justice are made by the SCCRC and not the secretary of state. At present, one out-of-date cross-reference suggests that the secretary of state and not the SCCRC refers cases to the High Court. The amendment has no substantive effect on the policy that relates to miscarriages of justice, the payment of compensation or the SCCRC's functions.
I move amendment 55.
Amendment 55 agreed to.
Amendments 57, 56 and 58 moved—[Johann Lamont]—and agreed to.
Group 15 is on extended sentences for sex and violent offenders. Amendment 59, in the name of the minister, is the only amendment in the group.
Amendment 59 ensures that extended sentences can be imposed for the offences that the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 recently created. As Parliament will recall, that act created new offences of grooming children for the purpose of engaging in unlawful sexual activity; of paying for the sexual services of a person who is under 18; and of causing, inciting, controlling, arranging or facilitating child pornography or the provision of sexual services by children.
Section 210A of the Criminal Procedure (Scotland) Act 1995 allows the courts to impose extended sentences on some sex offenders and violent offenders when they consider that necessary to protect the public from serious harm. That extends the period during which the offender is on licence and under supervision once released from prison. Extended sentences are available for a range of sexual offences that are specified in section 210A.
The courts should be able to impose extended sentences in appropriate cases for the new offences that were created in 2005. The 2005 act did not make the necessary amendment to section 210A of the 1995 act to allow that to happen. We are now taking the opportunity to ensure that extended sentences can be imposed following conviction for one of the new offences, when the court thinks that appropriate. The amendment will not change the provisions of the 2005 act; it will simply ensure that the courts have the option of imposing an extended sentence in appropriate cases.
I move amendment 59.
I welcome and support amendment 59. In concluding this part of proceedings, I commend to Ms Curran, the Minister for Parliamentary Business, the provision of information to all the parties, which facilitated speedy dealing with the amendments at stage 3. I hope that that will be repeated in the interests of good governance and good parliamentary procedure.
Does the minister wish to add anything?
I will just glow.
Amendment 59 agreed to.
Amendments 60 to 62 moved—[Johann Lamont]—and agreed to.
That ends consideration of amendments.
Meeting suspended.
On resuming—