Criminal Procedure (Amendment) (Scotland) Bill
The next item of business is a debate on motion S1M-2779, in the name of Jim Wallace, on treating the Criminal Procedure (Amendment) (Scotland) Bill as an emergency bill. The debate must be concluded by 3.05 pm.
I am most grateful for the agreements that have allowed us to take the Criminal Procedure (Amendment) (Scotland) Bill—a short bill—under the procedures that govern emergency legislation. During the stage 1 debate, we will have time to consider the background to the bill in more detail. In justifying the bill's treatment under the emergency procedures, I will simply outline to the Parliament why I am anxious for the bill to become law as soon as possible.
Members will be aware that in Reynolds v PF Linlithgow, which had the effect of clarifying the law in relation to arrest warrants that are issued at an intermediate diet in summary proceedings, the appeal court ruled that, where such a warrant was issued, it was necessary for the court to discharge explicitly the trial diet that had been set. If that was not done and the fact was not recorded in the court minutes, the case had to be called on the trial diet that had originally been set. Where the case was not called on that day, the instance would fall and further proceedings would be incompetent.
That judgment runs contrary to the understanding on which most summary courts have operated—that issuing a warrant automatically discharges the trial diet. Therefore, it has a major impact on a substantial number of past and present cases. The Crown Office estimates that almost all sheriff courts and a substantial number of district courts have been operating on the basis that a warrant discharges the trial diet. Doubt has been cast on all proceedings that were under way on that basis before the appeal court ruling on 14 February and all cases that were concluded on that basis since the intermediate diets were first formally introduced in 1981.
Most of the current, live cases in summary proceedings in which a warrant has been issued at an intermediate diet—there could be up to 7,000 such cases—will have been progressed on a basis that has been judged to be faulty. In about two thirds of those cases, the warrant has been executed and proceedings continue. However, sheriffs are already beginning to discharge such cases as incompetent when they come back to court. I understand from the Solicitor General that in Dumbarton sheriff court this morning the argument that the accused acquiesced in a subsequent diet did not succeed before the sheriff. At present, 97 cases have been discharged. They include cases that involve driving under the influence of drugs and theft. I am aware of at least one case that involves a statutory sexual offence.
I seek emergency legislation primarily to stop those current cases haemorrhaging out of the system. The problem is particularly acute in relation to statutory offences, many of which are time limited. Such offences tend to come to court fairly close to the time bar because of the demands of the investigative process. In drugs cases, for example, it is vital to have the correct forensic evidence, which takes time. When a case is discharged and reaches its time bar, it cannot under any circumstances be raised again. Obviously, most reasonable people who are interested in proper law and order would be anxious to avoid that.
I accept that the cases in question are not the most serious cases. After all, they are cases that are tried under summary procedure. However, our summary courts try offences such as drink driving, driving while disqualified, careless driving, some statutory offences of a sexual nature and some less serious drugs offences, which matter greatly to the victims and to society as a whole. It is vital for all stakeholders—the accused, victims and the public—not to be denied a trial through a technicality. It is vital that justice should not be impeded by a technical flaw that has nothing to do with the fairness of the proceedings.
Other cases are affected, notably those in which the warrant has been issued but not executed. I need to consider the huge number of cases that are concluded on a basis that is now held to be flawed. We do not think it right that those who have been convicted should be able to apply for their convictions to be quashed purely on such a technicality.
Quite properly, the Parliament will want to examine carefully the justification for retrospective legislation. I will deal with that in more detail in the stage 1 debate. My prime concern with motion S1M-2779 is to seek the emergency legislation procedure to avoid the loss of current cases, many of which could be lost beyond recall. I confirm that only intermediate diets in summary proceedings are affected by the Reynolds v PF Linlithgow ruling. Other summary diets and solemn procedure are unaffected. Nonetheless, we reached the conclusion that we needed to move swiftly.
I move,
That the Parliament agrees that the Criminal Procedure (Amendment) (Scotland) Bill be treated as an Emergency Bill.
The SNP supports the bill. The Minister for Justice has outlined the legal reasons why we find ourselves having to pass the legislation. The bill will return our criminal procedures to the way in which everyone thought they operated in the first place and will put the procedures on a statutory footing. Since the Executive announced its intention to introduce the emergency bill, I have had an opportunity to speak to a number of people who practise in sheriff courts throughout Scotland and to raise the matter with organisations such as the Law Society of Scotland. It is clear that there is strong support for the bill among those who work in our legal system.
This is the second occasion on which the Parliament has had to legislate as a result of a ruling made in Linlithgow sheriff court. Some members may recall the Starrs case, which resulted in the Bail, Judicial Appointments etc (Scotland) Bill having to be brought before the chamber. The matter raises interesting questions about the goings-on of defence solicitors at Linlithgow sheriff court. Members would be forgiven for thinking that there may be an element of competition among them to see who can get the most bills through the Scottish Parliament in a year.
Notwithstanding that, the bill is justified and should be dealt with on an emergency basis. The Minister for Justice has outlined why that is the case. Currently, 2,500 warrants from intermediate diets are outstanding in Scotland and could be at risk if the bill is not passed today. I welcome the provision that will allow the bill to apply retrospectively, because the danger is that, without such a provision, there could be challenges about cases going back as far as 1981, when intermediate diets were introduced. It is in everyone's interest to ensure that the bill is given fair passage this afternoon on an emergency basis.
I warmly welcome the speed of response of the Deputy First Minister and the Solicitor General on this matter, which was a problem not of their making. The only people in Scotland who will oppose the bill will be the criminals. None of them will be able to vote here this afternoon. I hope that the bill will receive whole-hearted support.
I am happy to contribute, no matter how briefly, to the debate. I regret that it has been necessary to introduce the bill. I accept that the justice system needs to be meticulous, as it deals with issues of innocence and guilt and of crime and punishment, but what has happened is the worst kind of publicity for a system that seems not just to grind exceeding slow but, in the eyes of some, exceeding stupid and in defiance of common sense. I welcome the fact that the Executive has moved swiftly to close the loophole, which was not of its making. I urge the chamber to accept the bill as an emergency.
I confess that my initial reaction on hearing about the consequences of the ruling at Linlithgow sheriff court was fury—fury that, after a diligent search for a loophole, evidence could not be tested in court and crimes could potentially go unpunished. When I was ranting on, the person listening to me said, "Well, that's their job." No doubt the job of a lawyer is to represent the interests of their client, but we have to ask about the broader attitudes and culture that the issue that has arisen reflects and what it actually means to represent the best interests of a client.
The issue is not about the individuals who were involved in the case. Obviously, the lawyers have the important job of protecting clients from corruption and misrepresentation and of ensuring that a defence can be made. It is essential that the rules are maintained, but it is reasonable to say that the rules should be rational. I cannot see the rationality in the ruling. I am not on my own in holding that view, as it seems to have taken the lawyers 22 years to spot the loophole.
I have time to make only a couple of broad points. The legal system is not a game, where someone applies their ingenuity to a puzzle to see what they can achieve for a client. However, there is a danger of its being presented in that way. The challenge to those who are involved in the legal system is to develop a system in which the innocent are protected and miscarriages of justice are prevented, but which is effective, organised and rigorous enough to ensure that the guilty are punished and further crimes in our communities are deterred.
I cannot overstate how important it is to shift the justice system out of complacency and into the 21st century. I have been profoundly struck by the hostility to and despair about the legal system that ordinary citizens in my constituency express. My constituents consistently express a lack of faith in the system. We ignore at our peril those views and the consequence for our society of not addressing what those views reflect of the operation of the law in our communities. I urge members to support taking the bill under the emergency procedure, but we should commit ourselves to addressing the underlying issues that created the situation. My constituents and the people of Scotland deserve no less.
Will the Minister for Justice elaborate on whether the emergency bill has any other effects? I fully support the passage of the bill, but I wonder whether the opportunity will be taken to examine the use of intermediate diets as a whole. I have been subjected to intermediate diets and one difficulty that I have perceived for several years is the inability to confirm a plea in writing through a legal representative or by writing to the court timeously. That has implications for the use of court time and solicitor resources. Will the use of intermediate diets, and the ability of those who wish to maintain their pleas in writing rather than to appear in person, be affected?
The Solicitor General for Scotland (Mrs Elish Angiolini):
I am grateful for the constructive debate, for the support from Mr Matheson, Lord James Douglas-Hamilton and other members and for the consensus that the bill is essential and swift legislation to deal with a pure technicality. Failure to act swiftly would, as Ms Lamont said, be likely to lead to serious concern about and lack of confidence in the criminal justice system in Scotland.
I will follow up Johann Lamont's point. On several occasions in recent times, cases been abandoned or convicted people have been released on technicalities. Could those technical difficulties, which arise in the courts and lead the public to hold the justice system in contempt, be examined?
The Solicitor General for Scotland:
The system is adversarial. Its nature is such that the defence tries where possible and appropriate to exploit weaknesses in the law on behalf of their clients. It is important that the Executive and the Parliament respond to that by ensuring that the law is waterproof. Technicalities must not erode the possibility of conviction when that is not in the interests of justice. I accept the point that it is important that we constantly review the law to ensure that such technicalities cannot corrode the system.
I reassure the Parliament that we did not embark on this course of legislation lightly. We carefully assessed the impact of the judgment before deciding that emergency legislation was the answer. We concluded that it would be unacceptable not to take action to restore the position to that which was thought to apply before the judgment. It is not in the interest of Scottish justice for convictions to be quashed or proceedings to be rendered null and void on such a technicality. We would reward accused persons who failed to appear at intermediate diets and who thumbed their noses at the system if we allowed them to walk free from charges.
If we are to act, the number and nature of the cases that are live make acting as quickly as possible vital. Every day that we delay, more cases are lost. That is not in the interests of victims of crime, society as a whole or the accused, who has a right to be heard on the evidence.
I am grateful for the Parliament's support. As we move into more detailed consideration of the bill, I will answer Mr Sheridan's point. The bill does not deal with summary justice and intermediate diets, but they must be examined. A major review of summary procedure continues.
The question is, that motion S1M-2779, in the name of Jim Wallace, on treating the Criminal Procedure (Amendment) (Scotland) Bill as an emergency bill, be agreed to.
Motion agreed to.
That the Parliament agrees that the Criminal Procedure (Amendment) (Scotland) Bill be treated as an Emergency Bill.