Criminal Procedure (Amendment) (Scotland) Bill: Stage 1
The next item of business is a debate on motion S1M-2781, in the name of Jim Wallace, on the general principles of the Criminal Procedure (Amendment) (Scotland) Bill. The debate must be concluded after 30 minutes.
In the previous debate, I outlined why we are treating this bill as an emergency; I would now like to describe in some detail the background to the bill.
The issue relates to procedure at intermediate diets. Intermediate diets are hearings set by a summary court with the goal of increasing the overall efficiency of summary procedure. As the Solicitor General said in response to Tommy Sheridan, Sheriff Principal McInnes is considering the whole issue of summary justice. I am sure that intermediate diets will be one of the things that he considers and I have no doubt that Mr Sheridan's point will be taken into account.
It is worth pointing out that evidence from research and statistics shows that intermediate diets have had the effect of focusing the minds of the prosecution and the defence to help to bring cases to an earlier conclusion, if that is the right way ahead. In 1994-95, 27 per cent of intermediate diets brought the case to a conclusion; by 1999-2000, the figure had risen to 37 per cent. That represents a considerable saving in witness time and prevents unnecessary trials. Research shows that witnesses have been the prime beneficiaries of change. There has been a significant increase in the proportion of witnesses who have been countermanded and so who have not had to come to court to make the kind of fruitless appearance that I suspect some of Johann Lamont's constituents may have made. Going to court only to find that the case is not being heard serves only to frustrate people. I think that the Parliament would agree that anything that saves police time is worth while.
The intermediate diet is a useful model; I think that Lord James Douglas-Hamilton was a minister when it was introduced. He may legitimately take credit for what was a worthwhile development in summary justice procedure.
At an intermediate diet, the court tries to establish whether the case is ready to go to trial and whether the accused intends to adhere to a "not guilty" plea. The goal is to reduce the number of trials that have to be adjourned on the day at huge inconvenience to witnesses.
When an accused does not appear at an intermediate diet, the court may grant a warrant for arrest. However, prior to the intermediate diet, a date for the trial diet will have been set. Realistically, without the accused, it is difficult to know whether the trial will be able to start. Therefore, the court needs to discharge that trial diet when the warrant is issued. When a trial diet is not discharged, and the trial date arrives and passes without a trial getting under way, the instance falls—that is, any further proceedings are incompetent.
Courts have always recognised the need to discharge the trial diet, but most have assumed, on the basis of common sense, that issuing a warrant automatically has that effect. Therefore, they have not routinely recorded formally the discharge of the diet as a separate decision in the court minutes. The appeal court judgment in Reynolds v PF Linlithgow reverses that assumption; it makes it clear that issuing a warrant does not of itself discharge the trial diet and that an explicit order is required to that effect.
In the previous debate, I indicated the substantial impact that the judgment may have on cases that have been concluded or that are under way. In brief, it casts doubt on thousands of cases that have concluded over the past 20 years and on the majority of current cases in which a warrant has been issued at an intermediate diet.
Very simply, the bill restores the position to that which was thought to apply before the appeal court ruling was made. Furthermore, it makes it clear that the issue of an arrest warrant automatically cancels the trial diet, except where the court specifically determines otherwise. We should keep the law flexible. There may be occasions when the court decides that the initial trial diet should stand, for example if no difficulty is expected in apprehending the accused. However, once the bill is passed, the default position will be that an arrest warrant automatically discharges the trial diet in respect of the accused.
The bill is retrospective. As I said before, we should be very careful when we introduce retrospective legislation, and we do so very rarely. However, the reason for retrospection is simple: all the cases at risk were initiated before the appeal court ruling, and many of them were concluded years earlier.
It is possible to ensure without legislation that future cases are not jeopardised; however, without retrospective legislation, it is not possible to ensure that the potentially large number of people who are accused or convicted of crimes do not escape justice on a technicality. After all, the people who are affected failed to appear at intermediate diets. An arrest warrant was required to secure their attendance at trial and it seems extremely unfair that they should benefit from a technicality that does not benefit those who did appear at the intermediate diet to which they were cited. I am therefore content that, in this instance, retrospective legislation is the proper route and that proceeding in this way is reasonable and acceptable under the European convention on human rights.
As always when a bill is presented to Parliament, another issue of interest is finance. As the financial memorandum underlines, the bill does not give rise to costs for the Scottish Administration or for local authorities that have responsibility for the district courts. However, it is worth highlighting that failure to legislate would expose Scottish ministers to financial risk. Without the legislation, it would be open to those convicted under a procedure that is now held to be flawed to seek to have their convictions quashed in the High Court. Fines would have to be repaid and the issue of compensation might also arise. It has recently been estimated that the level of fines that are potentially repayable could be more than £6 million. Financial consequences could arise if we do not legislate; that will not happen if we pass legislation that simply restores the status quo. I commend the bill to the Parliament.
I move,
That the Parliament agrees to the general principles of the Criminal Procedure (Amendment) (Scotland) Bill.
As I said earlier, the SNP supports the bill, which results from the appeal court ruling made on 14 February in the Reynolds case at Linlithgow sheriff court. The minister has also pointed out that the bill will put on a statutory footing a procedure that was presumed to be part of the system. The appeal court ruling in the case might have had a considerable impact on our criminal justice system if the emergency legislation had not been introduced. Indeed, the minister has already outlined the ruling's potential impact. However, the circumstances that gave rise to the problem in the first place raise a number of serious questions about our criminal justice system.
The problem with the Reynolds case appears to be that the style used by the sheriff clerk for granting the warrant for Reynolds's arrest did not include the discharge of the trial diet. The case highlights the variation in the practice of handling such warrants across district courts and other sheriff courts. Some clerks do not automatically issue a discharge of the trial diet when a warrant is issued. I am concerned that such variation has been able to creep into our criminal justice procedures across Scotland, and it raises the question why the glitch in the system was not picked up earlier.
As I mentioned earlier, about 2,500 warrants are outstanding throughout Scotland from intermediate diets. All the cases are potentially under threat. It is clear that if the legislation were not applied retrospectively, as the minister has said, literally thousands of cases, probably dating back to 1981, could be challenged. As the minister said, we should always be careful in applying any legislation retrospectively. I am sure that someone is currently considering challenging the legislation under the European convention on human rights on the basis of its retrospective application. I do not want to be alarmist, but I would welcome an assurance from the minister or the Solicitor General that they are confident that the bill will stand up to any strong ECHR challenge.
It is important for members to reflect on the pressures that our criminal justice system is under. This challenge in itself has probably added greater pressure to our prosecution and court administration services. The ruling in the Reynolds case might have been unexpected, but sadly it fits a pattern of procedural errors and other mistakes by one party or another that have often resulted in the accused walking free. The responsibility for that problem does not lie with any particular party, but it is an issue that we must address.
The Chhokar case highlighted the pressures under which the Crown Office operates. In August last year, there was the case of Andrew Sands. He was accused of two stabbings and attempted murder but, because the Crown Office had miscalculated his trial date, he walked free. At the end of January this year, Austin and Paula Arthur, who were accused of drug dealing, walked free because the search warrant that the Crown produced in court was found to be a photocopy.
Those cases are all symptomatic of a system that is under pressure. It is not only our Crown Office that is under pressure; our courts, too, are struggling to keep pace with the ever-increasing demands being placed upon them. Over the past two years, sheriff courts have consistently failed to meet their targets for waiting times. The courts face the increasing problem of the adjournment of trials: 42 per cent of trials were adjourned last year—a 6 per cent increase on the previous year. One of the most common reasons for adjournment to another date is pressure of time.
Notwithstanding the technical glitch that has resulted in this piece of legislation coming before us, it is important to ensure that those who are responsible for running our criminal justice system—whether they are court administrators or the prosecutors—have the necessary resources to discharge their duties adequately. Sadly, the variation between one court and another and the fact that our prosecution services were unable to pick up on the procedural anomaly earlier highlight yet again the inadequacies in our system.
The bill should be passed today on the basis that those who are accused should have their day in court and those who are victims should have an opportunity to see justice being done.
I rise to support the bill. I should start by saying that I supported the policy of introducing intermediate diets in 1980. The purpose of bringing them in was to reduce inconvenience to police and witnesses who might have been called to give evidence, only to find that the accused had pleaded guilty. The existence of intermediate diets was intended to enable courts to establish whether the accused was to plead guilty or not guilty. A study in 1997 indicated that 53 per cent of citations of witnesses were countermanded. That indicates that intermediate diets have worked and have reduced the amount of time that witnesses have to wait unnecessarily for trials. The study, which was called "From Citation to Witness Stand: A Study of Police Witness Duty at Court", confirmed that intermediate diets have reduced the number of trials that settle on the day, which causes inconvenience to witnesses, police and jurors.
The diets were introduced in 1980 and made mandatory by Henry McLeish at the Scottish Office—in the late 1990s, I think. Practitioners believe that intermediate diets have brought about a fair degree of benefit by reducing disturbance to witnesses' lives.
As the minister stated, the problem arose when a warrant was issued for the arrest of an accused person who did not turn up for trial. It had been assumed that such an eventuality would automatically discharge the trial diet. However, on appeal from the sheriff court, the appeal court found that the diet was not automatically discharged. That meant that, when the appointed day for the trial arrived, the case fell owing to the absence of both the accused and the prosecutor.
The appeal court judgment has opened up a loophole that had not previously arisen, because the point had not been argued since 1980. Accused persons have not been treated unfairly, but a technical loophole now provides an opportunity for accused persons to prevent a trial from taking place. The only people who can benefit from the appeal court's ruling are persons accused or convicted and those who have simply not turned up for their trial. If the situation is not attended to, it will give succour to the criminal community and those accused who prefer not to turn up.
Some accused who have several charges against them before different courts prefer not to appear until all the charges are taken together. I call on the minister to consider initiating appropriate research into that matter. It appears that accused who must appear before several courts to answer a list of allegations and charges think that they will get off more lightly if all the charges are taken together.
In any case, giving the bill retrospective force is a key ingredient. Since 1981, there have been perhaps 5,000 cases that fall within the terms of the appeal court's decision. Those convictions would have been based on a flawed procedure. We wish to prevent thousands of those appeals from succeeding on a technicality. The purpose of the original changes was to prevent unnecessary attendances in court, not to enable accused persons to get off on a procedural technicality—a point that worried my colleague, Mr Phil Gallie. We believe that the bill should ensure that there are no such appeals when accused fail to turn up for trial. We want a system that will work effectively.
I understand that it has been common practice among sheriff courts in summary cases to assume that the issue of a warrant for arrest at an intermediate diet has the effect of discharging the diet. Apparently, virtually all sheriff courts believed that to be the case. The sheriff in question also took the accepted line. If the procedures had not been short-circuited, the case might never have reached the appeal court. In other words, if the judge had discharged the trial diet, the appeal could not have taken place.
The problem was wholly and utterly unexpected. As soon as it emerged, I lodged a parliamentary question to ask the Scottish Executive what action it intended to take if sheriffs did not properly discharge the diet. The response I received was that legislation would be introduced. We are exceedingly grateful to the Deputy First Minister and the Solicitor General, who have seen fit to introduce the bill.
We are a constructive and responsible Opposition, which seeks to improve the lot of our countrymen and countrywomen. We believe that the country benefits when the Deputy First Minister and the Solicitor General have the good sense to respond effectively to our legitimate requests.
It is hard to understand the appeal court decision in the case of Reynolds v PF Linlithgow. Many commentators think that the decision is wrong and I support that position. Until that decision, there had been an assumption among sheriffs, procurators fiscal, sheriff clerks and Crown Office and defence lawyers that issuing a warrant to apprehend because of an accused's failure to appear at trial would automatically discharge the trial diet. That is what everyone believed to be the case.
Some sheriffs have already begun to amend their minute to show that their intention was to discharge the trial diet. Michael Matheson rightly highlighted the fact that the style of sheriff clerks varies around the country. It is clear that only the words may have been missing; the clear intention was to discharge the trial diet. It is obvious that the intention of everyone involved was to discharge the court proceedings and set new proceedings, so that once the accused had been apprehended, he or she could be tried in a new trial diet.
As we heard, the appeal court's decision is serious and far-reaching. All common law offences triable by summary procedure—crimes of assault, drink driving, driving without a licence and breach of the peace, for example—are caught by the decision. We are dealing with serious charges.
It has been mentioned—this is crucial—that any person who has been convicted since 1981, against whom a warrant was issued for their arrest following their non-appearance, could use the court decision to challenge the competency of the conviction. In cases in which the accused has already pleaded guilty but awaits sentence, some defence lawyers are already seeking to challenge the competency of the proceedings where a warrant had been issued. To the public and politicians, it is alarming that any person who has admitted guilt to a charge would seek to be admonished on the basis that there is a procedural defect. No one anticipated such a decision.
To many, the decision in Reynolds v PF Linlithgow is unfair, particularly on the many victims who may not get satisfaction as a result. It is of some comfort to victims that, because there is a Scottish Parliament, we can deal speedily with legislation to address the loophole in the law.
I support the bill and the fact that it is retrospective. In response to Michael Matheson's point about whether that makes the legislation challengeable, the Parliament should note that the amendment is procedural and does not relate to substantive law. It is not challengeable under the ECHR.
A few cases will still be time-barred, which is disappointing for many victims of crime. However, as a result of the devolution settlement, we have been able to act quickly. We can take the bill through three stages today and I hope that the Parliament passes it in the interests of victims.
This is a 30-minute debate. The Solicitor General must be called by 15:19, so the three remaining speakers must take less than three minutes each.
The bill is necessary and the fact that it had to be introduced in this manner in no way reflects on the Executive. However, I want to break from the consensus for a moment and criticise the Minister for Justice. He criticised the High Court in saying that its appeal decision was surprising. It was not surprising; an accident was waiting to happen.
Straightforward procedures should have been followed. It is up to the Crown to make a motion for a warrant if there is a failure to appear at the intermediate diet. If that warrant is granted, the Crown should also move for the discharge of the intermediate diet. If the depute fiscal fails to pick that up at that stage, it should not be beyond the wit of sheriffs—who, in most cases, earn almost £100,000 a year—to pick up the problem, discharge the diet and have that minuted appropriately. That is where the problem began. It did not begin with the setting up of the principle of the intermediate diet or with the Executive's doing anything wrong—it has not and should be congratulated on taking speedy action to remedy matters. Slipshod court procedure throughout Scotland has led to the difficulty. I am sure that the Solicitor General will take on board the fact that there is a requirement to ensure that systems in respect of minuting court disposals and procedures in sheriff courts throughout Scotland are standardised to ensure that such a situation does not arise again.
I was intrigued by the statistics that the Minister for Justice gave on the effectiveness of intermediate diets. Once they were introduced, there is no doubt that there were considerable savings in time and money and a reduction in stress for witnesses. Initially, at any rate, a considerable number of pleas were made at the intermediate diet, which saved a lot of court time. The most recent figures that I have indicate that intermediate diets are perhaps less effective than they used to be. I wonder whether the figures that Mr Wallace gave include cases disposed of by means of the issue of warrants rather than by means of the final conclusion of trials. Perhaps that point can be returned to in the debate.
In conclusion, there is nothing to take issue with in the way in which the Executive has handled the matter and we support its proposals enthusiastically.
Like other members, I congratulate the Executive on coming forward so quickly with this bill, which reinserts into the bath the bath plug that everyone thought existed but which some judges thought did not.
There seem to be two reasons why the bill is necessary. The immediate cause is the unexpected and rather difficult-to-understand decision by some judges. The underlying cause is the delays and unsatisfactory procedures that exist in our court system—despite the good efforts of Lord James Douglas-Hamilton and others in the past. As Johann Lamont said, the system is not friendly to witnesses, victims or to police time, although it is perhaps more friendly towards lawyers and criminals. We must put reasonable pressure on the accused and the lawyers, without removing democratic and civil rights. As Johann Lamont said, we should not play games—politics should not be a game, although some people think that it is, and the law should not be a game.
I ask the Minister for Justice and the Solicitor General for Scotland, who I understand is particularly skilled in these matters, to give us an assurance that, when this stooshie is over, they will have a serious look at improving our court system.
I will make two points in rising to support the bill. First, intermediate diets are only as effective as the preparation that goes into their conduct. Most important of all, that preparation must be done by the procurators fiscal who are entrusted with the case load that has to go before the intermediate diets. It is axiomatic that if the fiscal carrying out a particular intermediate diet has not, for example, had sufficient opportunity to consider the papers, the intermediate diet will not only not help, but may well be a complete waste of time and expense.
My colleague Michael Matheson has mentioned that on a visit to Glasgow sheriff court—the busiest court in Scotland—the impression given by the Glasgow Bar Association was that intermediate diets frequently had to be adjourned because the fiscal had not had enough time to prepare properly. Preparing to prosecute a case of any complexity is by no means a simple matter and is a great responsibility. Lord James Douglas-Hamilton was right to argue that the point of intermediate diets was to save time and money and prevent police officers' time from being wasted. Before the introduction of intermediate diets, police officers regularly had to spend days hanging around the courts, instead of being on the beat where everybody wants to see them. However, the system grinds to a halt unless the Procurator Fiscal Service is properly resourced.
I had limited experience of intermediate diets as a criminal practitioner, but in my experience, they were a curate's egg: some went extremely well, as they enabled the solicitor to have discussions with the procurator fiscal that allowed for a decision that dispensed with the need to waste court time; however, others resulted in the case being adjourned. I put it to the Executive that it is a false economy to under-resource the Procurator Fiscal Service. The cost of unnecessary adjournments is massive.
Will Fergus Ewing give way?
He is in his last minute.
My second point is that we see today the benefit of having a legislature in our own country. Until the Parliament was created, Scotland had the only legal system in the world without a legislature. Thank goodness we now have one, because it means that we will be able to close this loophole later this afternoon.
The Solicitor General for Scotland (Mrs Elish Angiolini):
I am grateful to the Parliament for the constructive and positive debate on this important bill. I will deal with some of the points that have been raised.
I am grateful to Mr Matheson and to Lord James Douglas-Hamilton for their points. It is clear that the decision of the appeal court will have a considerable impact on the criminal justice system unless legislation is passed swiftly to address the loophole. Mr Matheson raised who is to blame for the loophole and the different styles of procedure. In this case, the issue is not one of blame. The Criminal Justice (Scotland) Act 1980 is now 22 years old and there are a number of skilled practitioners—defence lawyers, procurators fiscal and judges at the shrieval level. Modestly, I include myself in that group—I am not necessarily skilled, but I am a practising prosecutor who has conducted intermediate diets.
As Mr Ewing pointed out, the courts are sizeable. The issue is not pressure or resources. A different interpretation has been placed on the legislation. The appeal court is perfectly entitled to make that interpretation, but it has caught the whole system by surprise. It is not constructive to attribute blame to any part of the system.
Section 150(3) of the Criminal Procedure (Scotland) Act 1995 is silent on the issue of discharge, although the statute explicitly provides for apprehension warrants to be granted. The appeal court has placed an interpretation on that section. We must address that interpretation.
Michael Matheson asked whether the bill is compatible with the ECHR. The bill would not be before Parliament if it were not compatible with the ECHR. The Executive can act only in a matter that is intra vires, which must be compatible with the ECHR. The concern might relate to retrospection and the possibility that article 7 of the ECHR provides some basis for a challenge. However, article 7 relates to substantive criminal law not to procedural criminal law, so it does not apply to the bill.
Mr Aitken, Mr Gorrie and Pauline McNeill raised important points about the system of intermediate diets. There are issues of resources, management and pressure in the system, but I suggest that we are unfair on ourselves—perhaps that is a Scottish characteristic—when we consider only our system. The Scottish criminal justice system is one of the finest in the world. It deals more swiftly with solemn crime than any other criminal justice system in the world, other than those in China and Macedonia. In other European jurisdictions, it is common for a person to be on remand for two to three years. In Scotland, people are in custody for 110 days. Sometimes we do not pat ourselves on the back for our achievements and for the fact that we deliver justice on a daily basis.
There are pressures on the summary system. It is clear that we must take action and we are doing so. The Lord Advocate is considering a major review of the internal structure of the system of prosecution and Sheriff McInnes is conducting a review of the summary system. We are acting on that front.
I thank members. Intermediate diets are useful; they reduce the number of witnesses and police officers who must go to court. We want to build on that model. The bill seeks to ensure a flexible system of intermediate diets. I stress that the prime focus of the bill is not the future; the bill is designed to deal with the difficulties that the appeal court ruling creates here and now.
I commend the bill to the Parliament.
The question is, that motion S1M-2781, in the name of Jim Wallace, on the general principles of the Criminal Procedure (Amendment) (Scotland) Bill, be agreed to.
Motion agreed to.
That the Parliament agrees to the general principles of the Criminal Procedure (Amendment) (Scotland) Bill.