CLAUSE 40.—(Prosecution of offences.) (Hansard, 5 May 1933)

§ The LORD ADVOCATE
I beg to move, in page 19, line 1, to leave out from the word "resides" to the word "and", in line 4.
This Clause deals with the prosecution of offences under the Act, and the effect of this Amendment would be to take out of the Act the power to prosecute which the Act contemplated should reside in the Discipline Committee, or in a society under the Act, or in any solicitor or notary public. We have taken the view that the power of prosecution should reside solely in the Public Prosecutor. We are taking the words "by the Procurator-Fiscal" also out of the Clause, the reason being that the Procurator- 1179 Fiscal has the inherent power of representing the Crown to prosecute, and it is not necessary to confer any statutory power upon him.

§ Mr. MAXTON
I would iike to ask the exact significance of this Amendment. As I understand the Lord Advocate's explanation, it is simply to cut out the Procurator-Fiscal as a prosecuting agent in cases of solicitors being guilty of offences.

§ The LORD ADVOCATE
We are not merely taking out of the Clause the words "the Procurator-Fiscal," but the words that follow— or by the Discipline Committee, or by any society, or by any solicitor or notary public, in manner provided by the Summary Jurisdiction (Scotland) Act, 1908. What we are really doing is to prevent the Discipline Committee having the right of prosecution or any individual society having that right. The reason why we are taking out the Procurator-Fiscal is that he already has the power to prosecute, and it is not necessary to have him in the Bill.

§ The LORD ADVOCATE
I beg to move, in page 19, line 8, to leave out from the word "month," to the end of the Sub-section.
This Amendment will limit the penalty for offences to a fine not exceeding £50, or to imprisonment with or without hard labour for a term not exceeding one month. The words which I am proposing to omit provide for heavier penalties for second or subsequent convictions, and we are making this concession to a general desire for clemency.

§ The LORD ADVOCATE
I beg to move, in page 19, line 13, to leave out Sub-section (2), and to insert instead thereof the words: (2) Notwithstanding anything contained in the Summary Jurisdiction (Scotland) Act, 1908, any offence under this Act may be prosecuted at any time within the period of two years next after the commission of the offence or the period of six months next after the first discovery thereof by the prosecutor, whichever period is the shorter. The Sub-section which I am moving to leave out provides that the fines imposed 1180 under the Bill should go to the coffers of the Discipline Committee. We are taking this Sub-section out because we think they ought to go to the Treasury. In the new Sub-section we are re-enacting Section 60 of the Finance Act, 1921. That Section is being repealed in the Schedule, and we are enacting it in the Bill.

§ Mr. JAMES REID
I appreciate that there is an objection to the proceeds of fines going to the body which has imposed the fines, but, on the other hand, no alternative is put in the Bill for a source of revenue out of which the Discipline Committee can carry on its functions. I understand that in England there is 'a grant from the Treasury to the corresponding bodies, and I shall have no objection to the deletion of this Sub-section if the Lord Advocate can assure us that the question of a corresponding grant in Scotland will receive favourable consideration. I do not know whether that question has been taken up with the Treasury, but I see some objections to striking out this Sub-section without some assurance that the question of an alternative source of revenue is being considered by the Lord Advocate in conjunction with the Treasury.

§ The LORD ADVOCATE
It is quite impossible to give any undertaking in regard to a grant. The General Council will have no difficulty in finding necessary funds, but it is quite wrong that fines for what are public offences should go to the coffers of any society instead of to the public purse.