Criminal Procedure (Amendment) (Scotland) Bill: Stage 3
This is an interesting trip through the procedures.
The next item of business is a debate on motion S1M-2782, in the name of Mr Jim Wallace, which seeks agreement that the Criminal Procedure (Amendment) Scotland Bill be passed. The debate must be completed by 5 pm. I invite those members who wish to speak in the debate to press their request-to-speak buttons now.
I do not want to over-elaborate on what has been said, although there may be cause to do so.
I acknowledge that it is unusual for a bill to proceed through all its stages in the course of an afternoon. I thank the business managers of all parties for helping to facilitate that, and I thank Michael Matheson and Lord James Douglas-Hamilton in particular—and others who have taken part in the debates that we have already had—for their constructive approach to the bill, their recognition that an emergency had arisen and their co-operation in ensuring that the Parliament could address the matter speedily. I also thank the Solicitor General for Scotland, not only for supporting me today and helping to get the bill through but for some valued advice and discussion in the days since 14 February, when the appeal court delivered its judgment. I thank officials in the justice department and the Crown Office, who responded promptly to the situation that arose.
One of the options we considered was to find another case in the system that could be brought before the appeal court—perhaps a five-judge appeal court. It was thought that that was not appropriate, not least because the answer might have been the same. Every day, sheriffs were hearing more cases and cases were being discharged. It was therefore important that we brought the bill to Parliament as soon as possible.
The appeal court ruling was unexpected. Bill Aitken said that it was a mistake waiting to happen and others have called for a more systemised approach throughout Scotland. I have discussed the matter with the Solicitor General and have asked whether we need to improve early-warning procedures in general. It is fair to say—the Solicitor General will make this comment when she winds up—that even if there had been the best early-warning system, no one thought that this case would bring about this result. It was completely unexpected.
In many respects, the approach was a systemised one, as it was the procedure in most sheriff courts. That meant that when it happened, more cases fell than would otherwise have been the case. Systemised approaches have great strengths and merits, but if a flaw is identified in the process, the consequences are often much greater.
Numerous cases would have been lost if we had not introduced the bill. Justice would not have been served if cases had collapsed for purely technical reasons. As I said, we could have faced an unquantified financial pressure from claims for compensation from those whose convictions might have been quashed on appeal. It is estimated that at least £6 million from fines might have had to be returned.
The Crown Office estimates that 15 per cent of intermediate diets end in the issue of an arrest warrant. Although statistics are not collected centrally, such an estimate closely accords with evidence from a sample of four sheriff courts that were studied in 1997-98. Over the period studied, the issue of an arrest warrant was the outcome in 14 per cent of intermediate diets. In 2001, there were 25,253 intermediate diets at sheriff courts alone. On the assumption that in 75 per cent of such cases in the sheriff courts and in around 50 per cent of cases in the district courts, the trial diet would not have specifically been discharged when the warrant was granted, the potential number of cases affected in any year would have been almost 3,000. It is clear that the bill is necessary.
By definition, the bill needs to be retrospective. The Crown Office took prompt action to ensure that, in all cases that were due to come to intermediate diet since 14 February, the trial diets were expressly discharged when warrants for apprehension were issued. Therefore, the problem lies not with future cases but with the present and with the past. After careful thought, we concluded that introducing a bill with a narrowly targeted effect was a legitimate way to proceed, as it would be in the interests of all stakeholders. As our intention was to legislate, it obviously made sense to do so as quickly as possible.
I commend this brief, simple and useful bill to the Parliament.
I move,
That the Parliament agrees that the Criminal Procedure (Amendment) (Scotland) Bill be passed.
During the course of our debates on the bill, a number of extremely important contributions have been made. Several individuals have raised important points, in particular about resources, which I hope ministers will reflect on. We are all conscious of the good work that is done by our procurators fiscal and court administrators, but we need to ensure that they have the resources to do their job as well as possible.
Members also recognise that responsibility for the situation does not lie with particular organisations or individuals, such as the Crown Office or the sheriffs. All departments that play a part in the administration of justice in Scotland need to work closely together to ensure that such problems do not occur.
I listened to what the minister said about the standardisation of procedures in courts and the potential problems that can be encountered. We need to weigh up whether, as well as removing problems, standardisation would create other potential difficulties. An evaluation needs to be made of the best approach to allow different courts to have the necessary flexibility. However, it is important that the public have confidence in the system. The potential for difficulties exists, but I am of the view that we should seek standardisation so that public confidence in our justice system is maintained. There may be merit in pursuing standardisation where that is necessary.
Several members have highlighted the value of the Scottish Parliament, which has responded to the situation so rapidly. I would be surprised if Westminster could have responded as quickly. It is to the credit of the Executive and the Parliament—and all the parties within it—that we have been prepared to move so quickly.
It is always fair to be fair. On 2 April 1998, when another glitch in the system of intermediate diets was identified, the House of Commons managed to pass the Criminal Procedure (Intermediate Diets) (Scotland) Act 1998 after a debate that started at 6.59 pm, when Mr Henry McLeish rose to move the motion on second reading, and concluded at 7.23 pm, I think. The House of Commons therefore did its work a bit quicker than we have.
Well done, Westminster. However, I think that we probably do things better than Westminster, irrespective of the time taken.
Several members mentioned that the reason for passing the bill on an emergency basis is that the victims of crime could suffer most if they saw a person accused of committing a crime walking away as a result of an administrative problem. An accused person should have their day in court to justify themselves and put their case. It is important that victims have confidence in the Scottish criminal justice system and see justice being done.
I thank the minister for making his officials available to Opposition spokespersons for background briefings and I await the latest instalment from Linlithgow sheriff court.
I, too, thank the minister and the Solicitor General. The Law Society of Scotland has confirmed that the bill will put in statutory form procedure that has been followed in practice by sheriff courts since the advent of intermediate diets in 1981. That will ensure that those accused or convicted of crime will not benefit from their failure to appear at an intermediate diet to which they have been lawfully cited. The bill provides a quick and effective solution that an appeal to a five-judge court might not have provided.
Johann Lamont drew attention to a number of issues relating to the subject that are worthy of consideration outwith the context of the bill. I would like to draw one procedural matter to the attention of the Deputy First Minister and Minister for Justice. I received written answer S1W-22672 from the Lord Advocate, which showed an alarming rise over the past four years in the time taken between appearance on petition and the service of the indictment in bail cases. Indeed, the Daily Mail reported that, in 1997-98, 40 per cent of cases took over nine months. That has grown to 51 per cent, which is a record about which we should all feel substantial concern. The figure is a clear indication that an increase of resources for procurator fiscals' offices may be required. I request that action be taken at the first available opportunity. The First Minister gave a positive response at First Minister's question time on the matter a few days ago—he gave a sympathetic reply. I hope that, between the Solicitor General, the Deputy First Minister and the First Minister, there will be a positive outcome on that matter, too.
Given where we meet, we should probably avoid the indulgence of over-self-congratulation. However, this business is part of what the Parliament is here to do. Our job is to make good law, improve law and amend or repeal bad law. The Parliament's speed of response is positive proof again—were it needed—of the need for, and the benefits from, the devolution settlement.
I recognise and share the strength of feeling about the inadequacy at times of our criminal justice system. Our system is based on the rule of law and depends on the counsel for the accused being a relentless advocate on his client's behalf without fear or favour of the judiciary, public opinion and even of legislators, on time scales that are unequalled in any western democracy.
We may look to other countries for comparisons, but China has little to teach us about the dispatch of summary criminal business. Our system of independent advocacy is part of our rights-based judicial system, which includes recourse to an appellate structure and a legislature to correct or amend flaws, at the heart of our democracy and the relationship between state and citizens. Like Pauline McNeill, I doubt that any reasonable citizen—for present purposes I will include most trial advocates in that definition—was not at least surprised by the terms of the opinion of the appeal court.
I commend the Executive for moving to remedy the defect, because I accept the Deputy First Minister's point that we should not sit around waiting for another suitable vehicle to try to get a bench of five to overturn what is at least a questionable decision. One might have seen the sense in the decision if there had been a co-accused with Mr Reynolds at Linlithgow. In those circumstances interests other than those of the non-attending accused might have come into play, but that was not mentioned in the five-page judgment that brings us to this afternoon's business. Where was the prejudice in this case? I do not especially want to deal with the circumstances of a particular case—it seems that it did not trouble their lordships in the appeal court too much either—but is it suggested that Mr Reynolds, a man who did not turn up to answer a charge of theft while already on bail, was in some sense prejudiced? Does anyone suggest that Mr Reynolds really wanted to turn up on 30 June?
Michael Matheson, when speaking to motion S1M-2779, made a very welcome point in showing the SNP's support for the use of emergency procedures and for putting the existing procedure on a statutory footing. I say the same for Lord James Douglas-Hamilton. The support of all parties in the chamber and the work of the officials to get the bill through is to be welcomed. As Johann Lamont pointed out, the loophole is not of our making but it is our responsibility to close it.
A different Mr Matheson spoke in the stage 1 debate—or perhaps he was speaking from a different draft. The present case has nothing to do with pressure on procurators fiscal or on the system, nor did the Crown Office have anything to do with the case until the appeal came forward. An entirely different and better set of circumstances applies in the High Court of Justiciary, where a warrant is taken, the accused is apprehended and the instance does not fall. Fergus Ewing made a similar error. As Jim Wallace said, the bill restores us to the position that was thought to apply.
The bogey of article 7 of the ECHR has been raised in relation to the provisions on retrospectivity at section 1(3). Pauline McNeill made the important point that there will, of course, be arguments on the borders between substantive and procedural and as night follows day there will be ECHR challenges, not least in Linlithgow—perhaps there will be a new body of vexatious litigants. The real question is whether those challenges will succeed. I hope that the Solicitor General will give us comfort on that point.
In conclusion, there are worrying aspects to how this decision came about at the court that sat on 14 February and delivered a singularly inappropriate Valentine's day present to the people of Scotland. Will the justice ministers and the law officers examine closely, in tandem with the Lord Justice-General, the requirements for the manning of the appeal court? Will they consider again the incidence of retired judges, as in the present case, sitting in the appeal court? We sometimes want their experience, but perhaps not all the time. Will they also consider again the incidence of outer house judges sitting in the appeal court? Will they confirm later whether the demands of Lockerbie have any implications for the resources of manning the appeal court?
My bee in the bonnet on the matter is that we should ensure that we re-examine the benefits or otherwise of codification of the criminal law. That has been done partially in relation to the statute base, but a better exercise for the Parliament would be to consider the benefits of codification.
The proposed section 150(3B) of the Criminal Procedure (Scotland) Act 1995 is a welcome provision. We should not forget the circumstances that allowed people to think that the trial diet was not proceeding. There was always the hope that the accused might be apprehended and brought before the court before the trial diet. That proposed section is a welcome retention. We should not throw out the baby with the bath water.
I commend ministers on the speedy introduction of an important bill, although I still scratch my head as to why, post-devolution, we refer to amendment bills as being for Scotland. Where else are we legislating for? Aside from that, I commend the bill and urge members to do likewise.
I want to speak briefly, but perhaps at slightly greater length than I did on the Marriage (Scotland) Bill. I am prompted by two events during the debate on the Criminal Procedure (Amendment) (Scotland) Bill.
The first event was the speech by Johann Lamont and Phil Gallie's intervention. I hope that I do not misinterpret them, but I think that they said that lay people—I include myself in that—cannot understand the acquittal of guilty people on technicalities. There have been all sorts of such technicalities lately, ranging from the one that we are discussing today to technicalities in defective warrants.
The second event was the subsequent statement by the Solicitor General for Scotland on article 7 of the ECHR. She said that that article does not apply to the bill because it applies only to substantive criminal law and not to procedural criminal law. Until today, I was blissfully ignorant of the existence of those two kinds of law, but I understand the point. Is it beyond our ability to devise a system that does not allow flaws in the application of the technical procedural law to overturn the manifest evidence of the substantive criminal law? If those two are separate for purposes of the ECHR, they must be separate for the purposes of our courts when they arrive at a verdict.
When we debate the detail of bills, particularly when we query words such as "reasonable" or, in connection with the Freedom of Information (Scotland) Bill, "substantial", members are often told that those words do not have to be defined in the bill because the courts are used to interpreting their meaning. We hope that in interpreting what Parliament means by those words, the courts will use their common sense. In some cases, that common sense flies out of the window when the courts deal with their procedure. Our constituents need reassurance from the Parliament that we will move to a system in which common sense will apply in our courts and in which procedure will not be the end as well as the means.
It is worth while reflecting on what might have happened if the bill had not been introduced. Johann Lamont articulated well the point that the most serious consequence would have been a further loss of confidence in our legal system. Without the bill, people who should be locked up would be on the streets, drivers who should be disqualified would be driving and the Exchequer would take a hit of £6 million because of fines that would have to be remitted back to those who paid them. It is unlikely that the fines would have been paid back at the rate of £4 a week—the rate at which most of them were paid. There might have been value in that injection of cash into some economies, but paying back the fines would have caused considerable procedural difficulties for the authorities involved. We have done a good afternoon's work.
Leaving aside the fines, the real issue is the confidence that people should have in our judicial process. Alasdair Morgan was correct to point out that, as people see criminals getting off on what are perceived as mere technicalities, our judicial process comes in for a degree of criticism that none of us particularly likes.
That said, perhaps the opportunity should be taken to reconsider the intermediate diet process. With characteristic modesty, Lord James Douglas-Hamilton downplayed his own part in the introduction of that process, but it was well thought out and there were undoubted savings. However, I question whether those savings now apply. It seems that the criminal classes are increasingly intent on postponing the evil day as long as possible. Brian Fitzpatrick was right to say that, in the case of Reynolds v PF Linlithgow, Mr Reynolds seemed to have no great degree of enthusiasm to thole his particular assize.
It was apparent from Brian Fitzpatrick's thoughtful contribution that he is no longer totally reliant on appearances before senators of the College of Justice for a living, as he had some hard words to say about them. He could well receive a response on his next appearance, but I am sure that he will cope with it more than adequately.
It has been a good afternoon's work. The Parliament has shown that it can cope effectively and speedily with problems of this type when they arise. The situation was nobody's fault. From the start, we recognised that the Executive was not responsible for the difficulties. Some blame might be allocated to the Crown authorities, sheriffs and magistrates, but we have plugged the loophole and we can be content with the way in which we have dealt with the matter.
The Solicitor General for Scotland (Mrs Elish Angiolini):
I am grateful to members and I have listened with interest to the mature and consensual debate on an issue that is vital to confidence in the criminal justice system in Scotland. This short and simple bill is necessary to correct a procedural flaw based on the explicit nature of interlocutor made by a judge in the context of a summary court, albeit that the intention of the judge and other practitioners in those courts over 21 years was that the trial diet should be discharged and that that was a common understanding. It is therefore important that, when an appeal court has decided that such an interpretation is not accurate, we act swiftly. That is what we are doing today and I am grateful for members' assistance in our doing so.
I turn to some of the points that have been made in the debate and address Mr Matheson with a degree of trepidation. When the word Linlithgow is heard, it conjures up pictures of a Bermuda triangle as far as legal points are concerned. However, the fastidiousness of the solicitors in Linlithgow should not be underestimated. It is important that these points are explored. As Mr Gallie rightly said, it is important also that the legislature moves to close technical loopholes where they can be anticipated. The Executive is reviewing summary procedure and has appointed Sheriff Principal McInnes to do just that. I hope that, in future, we will have a system that will not allow technicalities—which the public cannot understand—to result in an acquittal.
I also commend Mr Matheson for his point regarding the good work of procurators fiscal and sheriff clerks. That work is often not recognised; instead, the headlines focus on the mistakes that are made by the prosecution and the courts. However, day in, day out, prosecutors and the courts are working efficiently to get through a large volume of business as effectively as, if not more effectively than, any other criminal justice system in the world. They are to be commended for that work.
Although there has been a degree of delay in some of the cases on petition, we must consider what is being done to address that. A major review is being undertaken into the preparation of High Court and serious cases to ensure that we address the matter, and we undertake to do that as swiftly as possible. A significant review is also being carried out by Lord Bonomy into the operation of the High Court. Together with an internal review of the management structure and resourcing of the Procurator Fiscal Service, those reviews should produce recommendations that will enable us to look forward to increasing the efficiency of the system.
Intermediate diets play an major part in that improvement in efficiency and it is important that they are allowed to work effectively. There has been a significant reduction in the number of witnesses who are required to come to court at trial diet and in the number of police officers who are so required. Research showed that 40 per cent fewer police officers are required to come to court trials in a summary context since the introduction of the new style of intermediate diet. It is a huge benefit to the public of Scotland not to have those police officers in court. However, there should be no complacency about the matter. More can be done. The Minister for Justice and the Lord Advocate are taking steps to ensure greater efficiency throughout the criminal justice system, so that it works much more like a well-oiled machine.
On the issue of the bill, Brian Fitzpatrick's points are commendable. It is the case that the bill is not due to pressure, but to an issue that could not have been anticipated and that has taken the system by surprise. That is why we are acting swiftly to address that issue.
On article 7 and the division between procedural and substantive law, Mr Morgan made a point that I want to ponder. A sharp division between procedural and substantive law is not prevalent in all systems of criminal justice. The essence of my earlier point about article 7 is that it was created to ensure the protection that a person who commits an offence must be punished only when there is certainty that the offence was a crime at the time when it was committed. The ECHR attacks retrospection that makes crime retrospective so that something can be enforced and punished. That is not the case with this bill. We are simply curing a procedural law, not creating a crime.
The bill is a reaction to ensure that there is confidence in the criminal justice system. There should be confidence in it, as we are responding swiftly to the problem and ensuring that the public do not think that people accused of a crime will get off on a technicality.
I was not questioning in my speech the retrospection's validity. I agree with that. I was asking whether the same principles that underline the fact that the retrospection is within ECHR provisions might not find an application within the Scottish criminal justice system.
The Solicitor General for Scotland:
The great benefit of the Human Rights Act 1998 and the Scotland Act 1998, which incorporates the ECHR in our domestic law, is that that they provide the opportunity for the Criminal Procedure (Amendment) (Scotland) Bill, which is a dynamic piece of law, to be interpreted by the courts according to the ECHR. I hope that we see that progress take place gradually in the courts and in the chamber.
The bill is needed and must be passed swiftly. The Minister for Justice mentioned the financial implications of failing to pass the bill, but there are other implications. The procurators fiscal and the courts are dealing with a heavy work load. The implications of failing to pass the bill are profound for procurators fiscal throughout the country who have had to assess the implications of the Reynolds case and take action in respect of them. The bill will swiftly call that process to a halt and allow prosecutors to get on with their business of prosecuting and investigating crime. I therefore commend the bill to Parliament and ask it to pass the bill as introduced.