Criminal Procedure (Amendment) (Scotland) Bill
The next item of business is a debate on motion S2M-1100, in the name of Cathy Jamieson, that the Criminal Procedure (Amendment) (Scotland) Bill be passed. I will have to enforce the indicative time limits quite severely. I call Cathy Jamieson to speak to and move the motion. You have five minutes, minister.
I am very pleased to have the opportunity to speak in the debate. Our partnership agreement gives us a clear commitment to reform the operation of the High Court. The bill takes a further step towards delivering the stronger, safer Scotland that we all desire.
I have set out previously in Parliament the problems that the bill tries to address, and we have heard about them again today. I will not dwell on those any further; I will instead focus on the solutions that are being put in place. We want to introduce greater certainty into proceedings—a particularly important outcome for victims and witnesses. We also want to foster a culture of better communication between prosecutors and the defence and earlier preparation by both parties. Those objectives have not been plucked out of thin air; they follow on from the extensive consultation and discussion by Lord Bonomy and his review team and the further consultation by the Executive. I put on record the Executive's thanks to Lord Bonomy, whose vision and recommendations the bill largely embodies. I wish him well as he heads for pastures new.
I also express our thanks to the many other bodies and individuals who have contributed in one way or another to developing the proposals—the bill team, and the Justice 1 Committee and its staff for considering the bill so carefully. The reform package is now much stronger than it was a year ago precisely because so many people have taken the time and trouble to engage so constructively. Indeed the progress that has been made since the stage 1 debate on 25 February—for example, in relation to trials in absence and electronic monitoring—is further evidence of constructive engagement by all parties in producing that stronger package.
I will say a few words about the principle of early disclosure. The success of the High Court reform package depends on a culture change among all High Court practitioners. Most important, prosecution and defence teams will have to get into the habit of communicating meaningfully at an earlier stage in the process. The requirement in the bill for parties to communicate with each other, to prepare a written record of the state of their preparation and to lodge the report prior to the preliminary hearing is designed to ensure that the judge can reach a view on how good or otherwise that communication has been.
I am grateful to the Crown Office for releasing during stage 2 a draft of its practice note on disclosure. That demonstrates the Executive's absolute commitment to ensuring that the defence receives crucial documents at an earlier stage, while protecting the rights of vulnerable Crown witnesses. I understand that a useful dialogue on the draft is now taking place between the Crown Office, the Law Society of Scotland, the Faculty of Advocates and others.
I am well aware that the consultation and legislative phases have been exhaustive and, for some, exhausting. Those phases represent only the beginning of the reform process. Our overall aim is that all court users should have a better experience of the system. We want justice to be swifter as well as better. The bill will provide the toolkit to enable all practitioners, working together, to achieve those desired outcomes. However, a toolkit is of little use unless it is used appropriately and, at times, imaginatively. That is why we will be investing a great deal of time during the next few months in making sure that everyone connected with the High Court is ready to use that toolkit properly.
Officials from the Justice Department, the Crown Office and the Scottish Court Service are already working closely with all the relevant interests to ensure a smooth transition to the new procedures. A programme board is driving that process, and it will develop plans for training and for the monitoring and evaluation of the reform programme.
I stress that this should not be regarded in any way as a top-down implementation process. I have been impressed by the extent to date of the dialogue between different groups of practitioners and their willingness to discuss possible obstacles and develop new approaches. I want the implementation process to be developed in the same spirit, so that detailed training early next year can reflect the views of as many people as possible.
As I have said before, Scotland deserves to have a world-class justice system. The bill, which will modernise our High Court, is a vital component in our package of reforms. It will enable us to take a vital step forward in delivering a justice system fit for the 21st century. I am delighted to commend the bill to Parliament and, in moving the motion in my name, I ask members to give it their full support.
I move,
That the Parliament agrees that the Criminal Procedure (Amendment) (Scotland) Bill be passed.
The committee took many months to examine the bill. As the minister mentioned, it was a tough process, but I think that it was enjoyable for all members of the committee. We learned a lot, we did a lot of visits and we spent time in the courts. From my point of view, it was certainly an enjoyable experience and we learned a lot about legal processes and some of the problems in the system.
Early disclosure has been one of the most important issues. It is crucial to the success of the bill, and I am slightly disappointed that the bill does not, at this point, contain more formal measures. However, I will not go back over the arguments that we had during stage 2. It is important that the culture change happens and that there is co-operation and goodwill from all sides if we are to achieve the ends of speeding up justice and making it fairer and more reliable for all concerned.
Given that there is no formal process for early disclosure and that we are relying heavily on goodwill and co-operation, I ask the Executive to pay close attention to what happens after the bill is passed so that we get that co-operation and culture change and that there is movement towards a speedier process. I hope that the Executive and the minister will return to the committee with evidence about how the process is moving on.
Early disclosure of evidence by the prosecution is required for the time limits. When we debated whether the time limit should be 110 days or 140 days, the case was made that early disclosure of evidence in the first part of the system would have allowed the retention of the 110-day rule, but I will not go back over those arguments. Now that we have taken the decision to extend the time limit from 110 days to 140 days, I hope that the result will still be speedier justice. I also hope that 140 days will indeed be the outer limit of the time constraint.
The requirement for preliminary hearings is one of the most widely welcomed measures in the bill. All parties agree that the introduction of preliminary hearings will make a difference. It should mean that we get earlier pleas, which should free up space within the High Court. I certainly welcome the measure, which I hope can be introduced smoothly into the system.
The presumption that trial diets will be fixed is an excellent idea, although I still have concerns—as I have had from the beginning—that the intended policy aim will not be achieved. I hope that there will be fixed trial diets, but we will still have the flexibility of floating trial diets. Although I understand why floating trial diets will still be available, I am concerned that in a couple of years' time we will be told that people use that loophole to get round problems within the system, such that we end up with most trial diets still being floating ones. I hope that that does not happen but, given those concerns, I hope that the Executive will spend time monitoring that issue to ensure that we do not end up in that situation.
On trials in the absence of the accused, I still hold to the position that I expressed earlier. It would have been better if we had required that all the Crown evidence had been led before the trial of an accused who had absconded could go ahead. Such cases could still have proceeded to judgment if our amendment 115 had been accepted. It is a shame that, once the bill is passed, we will lose the principle that the trial should take place in the presence of the accused, which should be a fundamental right.
Finally, one of the most pleasing aspects of the bill's passage has been the way in which we have moved from using the language of "reluctant witnesses" to that of "obstructive witnesses". As members are aware, the committee debated that issue at length and it has now been made clear that the bill deals with obstructive, rather than reluctant, witnesses. That clarification has been a great help to committee members and to all members of the Parliament.
We will support the bill.
I begin by thanking the clerks. I want to acknowledge their support and the work that they and the committee convener have carried out on what has undoubtedly been a very technical and complicated bill.
The bill will go some considerable way towards realising our objective of achieving greater certainty in High Court proceedings through the introduction of a more managed system. In particular, I welcome the provisions on sentence discounting for early pleas which, together with early disclosure, are at the heart of the bill.
I welcome the introduction of the preliminary hearing, but I deeply regret the fact that the minister did not include the requirement for a managed meeting, which I believe is key to ensuring that both defence and prosecution are fully prepared and that all the issues that could be resolved are discussed at as early a stage as possible. However, I welcome the Executive's amendment 15, which requires that there be communication between the parties before the written record is lodged. I hope that that amendment will go some way towards filling what I perceive to be a gap.
Crucial to the success of the bill will be the extent to which it is resourced. Concerns were raised about the amount of resources that have been provided for forensic services and for the Procurator Fiscal Service. It remains to be seen whether those resources will be adequate.
I hope that the preliminary hearing will be a meeting at which everything can be clarified rather than a meeting that is simply adjourned. Again, we will need to see how that pans out. The preliminary hearing has the potential to move things on considerably, which is certainly to be welcomed.
Given that witness citation has been a problem area in the past, I deeply regret the fact that there was no opportunity to consider the proposals in the McInnes report, which include some worthwhile suggestions. Regrettably, the timing of stage 3 did not allow us to consider those proposals, which could have helped with witness citation and with ensuring that witnesses attend court.
Finally, it would be unusual if I failed to say something about the 110-day rule. It is a matter of considerable sadness that the 110-day rule has today been scrapped. The rule served us well because it protected the presumption of innocence and ensured that nobody would be in custody any longer than was absolutely necessary. I still believe that to scrap the rule before other measures come into effect is to put the cart before the horse. However, we shall see how things progress.
The bill contains a huge number of worthwhile proposals that I hope will result in increased efficiency in High Court proceedings for all those involved—victims, witnesses and other court users—so that the net effect at the end of the day is increased public confidence in the criminal justice system.
The bill is about delivering good justice by cutting delays and uncertainty in our courts. It balances the rights of victims of crime with those of the accused. The bill has rightly been welcomed by many sides of the justice community.
As we have heard, the case for reform is powerful. Last year more than half of the trials in Glasgow High Court were adjourned. Today we are taking decisive action to address the growing adjournment culture. The bill will improve the justice system and is part of the on-going Executive package to do that.
As Stewart Maxwell said, working on the bill has been an illuminating, if exhausting, experience. I thank the committee clerks, our advisers, the ministers, the bill team, Lord Bonomy and his team and those who gave us evidence, both formally and informally. It was useful to hear the informal evidence that we received and to have the discussions that we had with practitioners and others.
The bill makes a number of key improvements. It introduces mechanisms that I hope will help to improve communication between the prosecution and the defence—through the managed meeting, the joint written report and, crucially, the introduction of a preliminary hearing, which will improve the current situation substantially.
Early disclosure is critical. From the comments that we have heard from the Crown Office and others, it is noticeable that culture change is happening and that some of the issues are being addressed. The introduction of a presumption in favour of a fixed trial diet, where possible, rather than a floating one, is an improvement. The Executive amendment on that issue that was agreed to today has improved the position.
I welcome the tightening up of the late evidence provisions, to which Pauline McNeill referred, and the end of automatic release as a result of breached time limits. That measure will be good for justice in this country.
Some remaining issues will need to be monitored, including the transfer of 20 per cent of High Court business to the sheriff courts. That measure must be properly resourced and carried out in the light of the McInnes report. It is also right that we will subject the pilot schemes for remote monitoring of bail conditions to further parliamentary scrutiny.
I acknowledge some of the comments that the minister has made about support for witnesses. It is right that we have shifted from the original provision, which referred to reluctant witnesses, to one that refers to witnesses who are downright obstructive. There are many reasons why people do not want to give evidence. We should support them to give evidence, rather than see them as obstructive.
I welcome the minister's reassurances about trials in the absence of the accused. I hope that that power will be used only in a small number of situations. I also hope that by agreeing to the provision today we will send a message to those who are tempted to abscond that that is not the way forward, either for them or for the justice system.
I welcome the bill and hope that the chamber passes it today.
There is only a short time for open debate.
I thank the committee sincerely for the hard work that it has done on the bill. It must be remembered that this is an amendment bill. That makes scrutiny slightly more difficult than usual, because it means amending an existing act—we had to have both the bill and the Criminal Procedure (Scotland) Act 1995 in front of us when discussing amendments. I assure the chamber that all members of the committee worked really hard—harder than they work normally, which is not easy.
A cross-party approach has influenced the outcome of the bill process. We had our differences at the end, but I feel that we assisted the Executive in ensuring that the bill is in good shape. Margaret Mitchell made her points eloquently, but we disagreed about the 110-day rule.
We cannot underestimate the radical nature of what we have done with the bill. We are all concerned about making changes to a system that has served Scotland well, but the bill is a radical one that will make the most immense changes to the system. The crucial point is that everyone has signed up to the bill.
I must put on record a vote of thanks from the committee to Chris Gane and Paul Burns, without whose support we could not have understood some of the bill's provisions.
I hope that members get the impression that the bill is not just about a new procedure involving a preliminary hearing or a new culture of early disclosure. The whole bill will make a massive difference—if everyone does what they told us they would do. Margaret Smith is correct, in that there is unfinished business to which the committee, I believe, should come back.
The bill places a great responsibility on the Crown and I am full of admiration for how it addressed the bill—for example, through its promises about early disclosure. I also admire the commitment that the defence side made, in the spirit of a culture change, to its responsibilities regarding early disclosure.
The role of judges will fundamentally change. They will have to roll up their sleeves, bang heads together in the courts and ask whether counsel are prepared. The judges are ready for that role, but we must ensure that we give them the necessary support and resources.
The committee was concerned about one issue in particular. We share Lord Bonomy's view that the issues that the Scottish Legal Aid Board will consider in relation to legal aid payments are crucial. Whatever we think about legal aid payments, if we do not get them right, the system will not work. The nature of the work will change in particular for the defence, because there will be more preparation meetings and it will have to be paid for that work. Currently, the system is designed only to pay people for the work that they do on their feet. I believe that we need to return to that issue.
I support the shift of business from the High Court to sheriff courts, as do prosecutors, who welcome that shift as an aspiration. However, we should not underestimate the burden that the shift will place on the Crown and we must ensure that we continue to support its work. There is an issue about representation in relation to the automatic right of an accused to be represented by counsel, on which I believe that further work must be done. There is a greater role in the system for solicitor advocates and that issue should be fully addressed.
The committee did not get a chance to touch on many issues—for example, sentence discounting. That important feature of the system will help it to work and will bring about change. However, we decided to leave some decisions to the Sentencing Commission, so we did not address that feature in detail.
I welcome the bill and I hope that Parliament will pass it this afternoon.
I join the minister in thanking Lord Bonomy for his work in the field of High Court reform, and I wish him well in his new post. I am sure that the Executive would agree that, notwithstanding other events this week, he will be sorely missed.
The bill has been interesting. Although I am not a member of the Justice 1 Committee, I have nevertheless felt at times as if I was back in criminal law lectures at university, such has been the bill's technicality. The bill is a positive one. The vast majority of its provisions are sensible; in fact, they are common sense. The bill's provisions have the potential—in time, if not immediately—to speed up justice considerably and to deliver a much better system for the victims of crime and for those who are accused of crime.
It is important to reflect on the fact that the bill creates a framework for change. As other members have said, the bill's success will depend—this is where true radicalism is required—on a radical culture change on the part of all those who are engaged in the system. The minister and others have already recognised that. The bill will require a much more active judiciary and although I accept that judges are up for that, I suspect that it will come easier to some than to others. We should be prepared for that approach to take time to bed in. Nevertheless, its importance in making the bill work cannot be overstated.
Making the bill work will also take a willingness by Crown and defence agents to take down the walls that sometimes exist between them; they must also be prepared to communicate and co-operate much more freely and openly. Again, that will come easier to some people than to others, and it may take some time for the culture to change and for that properly to take effect.
From the amendments that SNP members have moved this afternoon, it has been evident that we still have concerns at the margins over some of the bill's provisions. Like others, I would have liked to have seen some important principles, particularly relating to early disclosure, cemented in the bill. Even after all three stages, I still have concerns about the extension of the 110-day rule and trials in absence, although important concessions have been made at stage 2 and today to ensure that any compromising of safe convictions is minimised by trying people—or partially trying them—in their absence.
Those are my lingering concerns. Overall, however, the bill will be a positive piece of legislation that will provide the impetus for change. The real, hard work must still be done by people who work in the system rather than by us. I wish those people well with that work and I will be happy to support the bill.
I can give Colin Fox one minute.
Such generosity.
The alternative is zero.
That is even less generous.
Obviously, nobody in the chamber or in the country wants the guilty to walk free—that would not be justice and would not be fair. I understand that the Justice 1 Committee, the minister and others have not taken decisions lightly, but if the 110-day rule is the jewel in the crown, it has been sold far too cheaply.
As the Presiding Officer said, I have only a minute, so I must skip to the chase. The bill arises from a shortage of resources in the criminal justice system. We are asking the defendant to pay far too great a price in abridging his rights. The fundamental right to a fair trial is under assault. If I had more time, I would put that in the context of Belmarsh prison and people being in jail for more than a year without charge, never mind without a trial.
I have grave concerns about the 110-day rule and trial in the absence of defendants and—if I can say so, Presiding Officer—I will not support the bill; I will abstain. There is much that I like about the bill, but I do not have enough time to elaborate.
Okay. You have made your point.
Taking the bill as a whole, abstaining is the way forward.
Thank you for your time, Presiding Officer.
I apologise to the two members to whom I cannot give any time at all and invite Hugh Henry to wind up the debate. He has four minutes.
We heard Colin Fox articulate a new political philosophy when he said that abstaining is the way forward.
Today marks an important step in reforming our legal system and our criminal justice system in particular. It is right that thanks should be recorded in the Official Report to a number of external agencies that made significant contributions during the progress of the bill. The final product is a good reflection of people being able to contribute through the committee system and of the Executive working closely with committees in order to bring proposals to the Parliament.
I thank the committee for its rigorous examination of the bill and for a full debate. We recognise that we have shifted position and that we have made changes, and the final product is better for having had such a debate.
Like Cathy Jamieson, I want to record in the Official Report my thanks to the bill team, who worked hard in difficult circumstances and within difficult timescales to produce information and to progress the bill. I want not only to thank those who are here today, but to record in the Official Report Cathy Jamieson's thanks and my thanks to Moira Ramage, who is one of the bill team. She cannot be here today because she was injured yesterday in a car crash. I send her our and the Parliament's good wishes and hope that she has a speedy recovery. [Applause.]
There have been welcome improvements to the bill and a number of members have discussed significant changes. Members have rightly talked not only about the legal changes that we are making, but about the cultural changes—the shifts in attitude—that will be required to put the measures in place. That is a big challenge for many people who have been set in their ways for many years. I would like to hear from Nicola Sturgeon who is up for the change and who is not; perhaps at some point she will put on record the names of the guilty and the names of those who are willing to move forward.
Today marks a very important change. I hope not only that the right of the accused to a fair trial will be properly reflected in the future but that the bill will be seen as a continuing part of a process that fundamentally recognises the rights and needs of witnesses and victims. What we have achieved today is a very good package of proposals and I commend them to Parliament.