PERIOD OF DETENTION OF UNCONVICTED PRISONERS (Hansard, 20 March 1979)

§ Mr. Fairbairn
I beg to move amendment No. 5, in page 2, line 3, at end add— ' (2) Notwithstanding the provision of subsection (1) above, it shall be competent during the period of the emergency for an accused person detained in custody to whom subsection (1) applies, to intimate to the relevant court that he elects to be tried on indictment by a judge or sheriff sitting alone without a jury and such trial shall be held so soon as is practicable after such intimation. ' (3) In the event of such trial, the presiding judge or sheriff, before pronouncing his verdict shall be required to review the evidence, to make findings in fact and findings in law, and to give reasons for his verdict.'.

The First Deputy Chairman
With this we may take amendment No. 7, in page 2, line 3, at end add— ' (2) An accused person who is subsequently convicted and sentenced to a term of imprisonment shall have deducted from such term of imprisonment any period of his detention which exceeded 110 days which occurred during the emergency period and which was in connection with the charge or charges of which he was subsequently convicted '.

§ Mr. Fairbairn
In trying to preserve one right, one is compromising another. The rights that are in conflict come under clause 3. The untried person, whatever his record is in law and whatever the charge against him, is in law presumed to be innocent. We are suspending the Scottish equivalent of habeas corpus. Though I would not wish to be pessimistic—I am naturally sceptical—I trust that the 1402 emergency period will not last for three months. As my hon. Friend the Member for Edinburgh, Pentlands (Mr. Rifkind) said, that kind of period was mentioned as the time scale to which the Secretary of State should pay attention. I have heard the period of six months mentioned as one that could be funded if a will were not granted.
8.15 p.m.
We know that the Lord Advocate took petitions to the High Court of Justiciary which were granted on 21 February in 39 cases. We should all be greatly concerned about 39 individual freedoms. Indeed, I hope that we are greatly concerned about one individual freedom. Let us look at those gentlemen. The Lord Advocate may be able to say that 30 of them might get out or that nine of them might be released. In that case, there is a public interest. Let us suppose that a strike lasted for three months. I do not know in which prison they would have been imprisoned after committal. Presumably it would be for periods of up to 90 days. We may add to that period the three months and the Secretary of State's nobile officium. He has taken it to himself to say that the emergency shall not end for equitable, political or other reasons for a further two months. If we come to that point, some people may have been in detention for a long period but subsequently acquitted—and were innocent in any event. That matter should concern the conscience of us all.
It is for that reason that we have put down the amendment so that a person should be able in the emergency period to say"I know that I cannot be tried by jury because the mechanics of the clerk citing jurors is not possible ". He could be tried in some courts—I hope in the High Court—as some servants have put duty before the crowd spirit. It might be possible to arrange such trials. I should have thought that it was entirely equitable for a person to say"I am innocent; I do not wish to be detained indefinitely because of my previous record or because of the severity of the charge against me. I wish to conclude the proceedings by opting to be tried by a judge sitting alone without a jury."
I do not wish to be understood as suggesting that we should suspend jury trials. We are not suspending such trials. During 1403 the suspension of jury trials we are giving people the civil right to be tried rather than to be detained without trial, and without limit of time. It would be equitable if such a person were allowed to say to the relevant courts"I elect to be tried, when it can be arranged, by a judge sitting alone."
We have made an addition to our amendment, as a result of reflection. I pay tribute to the assistance received in this matter from my right hon. and learned Friend the Member for Wimbledon (Sir M. Havers). We have added a safeguard. If my proposal were agreed to, and the judge said at the end"I find you guilty ", it would be almost impossible, despite the notes of evidence, to mount an appeal The Lord Advocate will understand this. There are many circumstances in which the ground of appeal might not be capable of formulation unless we knew the basis upon which the judge approached his verdict. In other words, if in his mind he said"I disbelieve all the witnesses but I detest the accused ", and merely found him guilty, it would not be possible to formulate a relevant ground of appeal because there would have been sufficient evidence in the notes on which to convict him. But one would not know whether the judge disregarded the evidence but nevertheless found the man guilty, or disregarded some evidence that was essential for corroboration, or disbelieved some of it.
The amendment therefore goes on to say: In the event of such trial, the presiding judge or sheriff "— because this applies to all the courts— before pronouncing his verdict shall be required to review the evidence "— as he would to a jury— to make findings in fact and in law "— that is the basis upon which our summary appeals work— and to give reasons for his verdict ". That is the nearest to an equitable basis that I was able to get.
I sincerely hope that the Government will be willing to grant that right, which is in the interests of equity, and I hope that it will appeal also to those who, rightly and firmly, worry consistently about the civil rights of the individual. Detention without trial is inevitably necessary, even on a presumption of innocence. It is not pleasant, and I do not wish it 1404 to be undertaken without limit of time and without the opportunity for a person to say"I elect to be tried without a jury, because I am innocent, and I prefer that to detention."

§ Mr. Robin F. Cook
The hon. and learned Gentleman is making a very tempting case, and we are all very much aware of the problems which have arisen. But let us consider the case of the innocent person who, knowing that he is innocent, elects to be tried in accordance with the provision made in the amendment and who is subsequently, for whatever reason, found guilty. Does the hon. and learned Gentleman consider that in those circumstances that person, to whom the amendment has given this right to elect to be tried without a jury, is likely to have any gratitude to us for making the suggested provision? Surely that person is likely to spend his sentence in prison repining the fact that we gave him this right and that he ill-advisedly chose to exercise it.

§ Mr. Fairbairn
The hon. Member for Edinburgh, Central (Mr. Cook) made a similar point in the Supply day debate, and I think that he misses many of the relevant factors. I am quite sure that a very large number of people who were guilty of the crimes they committed have deeply regretted, when they were subsequently convicted, that they entrusted their fortunes to my hands. No doubt they have reflected upon little else during the time in which they have been incarcerated in one of Her Majesty's prisons.
In life, whenever we have a choice, we do not know what the effect of it will be, or what would have happened if we had made our choice in another way. If we turn right we may drive into a bus. We do not know what would have happened if we had taken an alternative route. In every step of the law there are, for an accused person, some very difficult choices to be made. Here we are seeking to enlarge his choice. We are trying to prevent his detention. The question that he will have to ask himself, under this provision, is"Shall I risk wrong conviction by one judge, or even right conviction by one judge, or shall I risk indeterminate detention in anticipation of eventual right or wrong conviction by a jury?" That is the choice, and I do not think that that choice should be denied 1405 to him. I do not think that a great many people would elect to make that choice, but if only one elects to make it we shall have safeguarded one person from wrongful and indeterminate detention in anticipation, if he is convicted, of his sentence. He will be sitting in Barlinnie, Peterhead or Porterfield, or wherever it might be, for that period anyway, even if he is eventually convicted by a jury after the emergency is over. We are enabling him to start his sentence sooner. Let us be clear, therefore, that it is a bargain for the guilty, just as it is for the innocent.
Amendment No. 7 proposes that An accused person who is subsequently convicted and sentenced to a term of imprisonment should have deducted from such term of imprisonment any period of his detention which exceeded 110 days which occurred during the emergency period and which was in connection with the charge or charges of which he was subsequently convicted ". A period in detention served by a person subsequently acquitted cannot be undone, but under amendment No. 5 that person has the right to prevent it. I accept and appreciate what the Lord Advocate said. In Scotland we have short periods of detention before trial compared with—dare I say it?—England. It is not a different nation, as was said by the hon. Member for Galloway (Mr. Thompson), whose terminological in-exactitude is schizoid, but there is within our nation a separate system of law. Within the nation of the United Kingdom of Great Britain and Northern Ireland, although those of us in the legal profession should profess judicial ignorance, I understand that there are longer periods of detention before trial on serious matters in other parts of the United Kingdom that are not Scotland.
I accept that we have that system and we are proud of it. I do not wish to be dragged by these matters into a lower place in the league. I wish Scotland to remain at the top of that league. It would therefore be equitable to say that this period should automatically be deducted from any sentence.
I hope that the Government will accept the amendments.

§ Mr. Grimond
Amendment No. 7 is unexceptionable and I think that the Government could accept that right away.
1406 I also support amendment No. 5. As has been emphasised, it does not compel a prisoner to be tried by a judge alone; it gives him the option to do so if he wishes.
This is a most important clause. Under it someone may be kept indefinitely in custody, depending on the length of the emergency.
Subject to the Lord Advocate's arguments, I am impressed by these amendments. If the emergency lasts a long time and someone is kept in custody for more than 110 days, will he have a right of appeal? There might be compassionate or other circumstances which might be grounds for a review of a person's case. It would be reasonable for that person to have some opportunity for appeal, but perhaps that is covered by an existing statute of which I am unaware.

§ Mr. Thompson
In answer to the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn), I consider that there is a British State under which live the Scottish, English, Welsh and part of an Irish nation. The Germans have a perfect distinction between a nationality and staatsangehörigkeit. I shall continue to inscribe myself as"Scots"in hotel registers that demand to know my nationality.
I hope that we shall be faced with only a short emergency. I do not agree with those who are beginning to speculate that months and months may be the likely duration. I take the point of the hon. and learned Member for Kinross and West Perthshire about the right of an accused to trial and his special point about the innocent. An argument cannot be based simply on the fact that other legal systems take an unconscionably longer time to deal with cases. From my time in Italy, I remember that there were people who waited years and years before the courts dealt with them. We must endeavour to maintain the Scottish system.
The first amendment is a radical departure from our present procedure, and we should therefore hesitate greatly before committing ourselves.

§ Mr. Fairbairn
Before the hon. Member gets too worked up about radicality—if that is the proper word; and I know that it will be difficult for him to comprehend that anything done in England is 1407 anything but venomous—may I say that—on many matters people can elect whether they wish to be tried by a judge or jury in England?

§ Mr. Thompson
I am afraid that my knowledge of the English legal system is considerably less than my knowledge of the Scottish legal system, and as a mere schoolteacher I do not claim to have a vast grasp of the Scottish system. I have learnt quite a lot in my period as a Member of the House, much of it from the hon. and learned Member for Kinross and West Perthshire. I put on record my gratitude to him.
Have we ever had such courts in Scotland at any time, and, if we have, what was the record of the sort of justice administered in those courts? I also ask the Lord Advocate what would be the effect on possible appeals as between cases dealt with by this radically new procedure and cases dealt with under our present well-tried system. Would there be a prejudice created in favour of an appeal by someone who was convicted under the procedure suggested in amendment No. 5? We must not create a category of convicted persons who would then have to their advantage on appeal the possibility that they could say that they were less properly dealt with under the amendment No. 5 procedure than under the present system.
After I heard the speech of the hon. and learned Member for Kinross and West Perthshire, I could understand why there was this need for the judge to give reasons for his verdict under amendment No. 5. Juries are never required to give reasons for their verdicts, but if we consider what the judge said at the trial and the directions that he gave to the jury in his summing up we may detect what led to the verdict. But the system proposed under amendment No. 5 would create a prejudice in favour of the convicted person who subsequently appealed. It would be said that in the one case the appeal court knew the reason for the verdict and in the other case they did not and could not know because juries do not have to set down their reasons.
For these reasons, I hesitate to support amendment No. 5 and I await the Lord Advocate's comments upon it. The second amendment appears to be common sense and worthy of support.

§ The Lord Advocate
As the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) said, the purpose of the amendment is to give an accused person the opportunity of electing to be tried without a jury where the delay might seem to make that an attractive option. The hon. and learned Member went perhaps a little too far in suggesting that there is a wide option in England to choose between having—

§ Mr. Fairbairn
indicated dissent.

§ The Lord Advocate
I see that the hon. and learned Member denies that it is a wide option. If that is so, we are at one. There is a very limited right in England to opt for a jury trial in certain situations. The option the other way does not arise. Nevertheless, the hon. and learned Gentleman did not place his argument on the situation in England. He related it to the emergency, and we should consider the merits of the argument in that context.
I agree with the hon. Member for Galloway (Mr. Thompson) that it is serious to depart from our normal canons of practice. In fact, it would be a radical dilution of justice to depart from jury trials altogether. My hon. Friend the Member for Edinburgh, Central (Mr. Cook) made that point in his intervention. It is a very serious step. The practical issue at the end of the day is whether it is better to provide a new form of election which would contemplate a long and protracted strike or to proceed on the basis—which seems attractive to me—of the assumption that the strike will not be so protracted and that proper jury trials will be delayed but not for an excessive time. I accept that that places some burden on the Government to watch the situation carefully. Nevertheless, I believe that it would be premature to take the radical step that the amendment proposes. Not even in wartime were juries in Scottish criminal trials dispensed with.

§ Mr. Rifkind
Nor were courts.

§ The Lord Advocate
The hon. Member for Galloway asked whether there had been an occasion when juries had been dispensed with in Scotland. I suspect that there were such courts during Cromwell's brief rule in Scotland. I see that the hon. and learned Member for 1409 Kinross and West Perthshire is contradicting me. It would be unwise for me to get involved in the history of the matter.

§ Mr. Grimond
I should like to reassure the hon. Member for Galloway (Mr. Thompson). Am I not right in thinking that the extension of juries into civil cases was a pure import from England and contrary to the Scottish tradition?

§ The Lord Advocate
We are not discussing civil juries but the right hon. Gentleman is absolutely right. It would be a bold person who would say that the emergency justified such an extreme departure from the normal canons of justice.
In view of what I have said about the Government's duty to keep a careful watch on matters, I hope that the Opposition will not press the amendment. There are two important defects in it. It does not deal wth a case where there is more than one accused and in which one accused elects to be tried without a jury. It would be intolerable and impracticable for that election without dealing with the problem of co-accused trials. It is not for the Government to suggest how the amendment could be remedied, but the solution may be to have the election confined to cases where all the co-accused agree to dispense with a jury.
The other drafting defect is that the amendment makes no provision to require the non-jury trial to be held during the emergency period and the month to follow it. I am sure that it is the Opposition's intention in tabling the amendment that the expedited form of non-jury indictment trial should be dealt with quickly—the element of urgency is written into it. None the less, the amendment does not provide that such trials should take place only during the period of emergency. Again, I think that it would be intolerable for such trials to take place after the emergency when the extra month had elapsed. I understand the motives behind the amendment, but I think that it would be unwise for the House to give effect to it today.
I sympathise with amendment No. 7, but I think that it is unnecessary. Section 218 of the Criminal Procedure (Scotland) Act 1975 specifically provides that A court in passing a sentence of imprisonment shall, in determining the period of 1410 imprisonment or detention have regard to any period of time spent in custody by that person on remand awaiting trial or sentence. The court will therefore also be required, in determining the period of imprisonment for which a person is sentenced, to have regard to the period in which he has been kept in custody awaiting trial during the emergency.
As a matter of practice, the prosecutor always draws the attention of the court to the period of time that an accused has spent in custody. I shall ensure that prosecutors will specifically draw the attention of courts to any period of time spent in custody because of the emergency.
I hope that the Opposition will not press the amendment.

§ Mr. Fairbairn
I listened to the Lord Advocate with care. I shall deal with the second matter first. The section of the Criminal Procedure (Scotland) Act 1975 that he quoted is the section which guarantees trial under the 110-day rule. It is therefore a little unfair for the right hon. and learned Gentleman to say that we are proposing to suspend part of the Act but that the rest will continue to apply.
I hope that the Lord Advocate will make sure that prosecutors bring to the attention of the court in all cases not just that an accused person has, in terms of that section, been in custody for however long but that he will instruct procurators fiscal or advocates depute to invite the court to have regard to the fact that the period of detention was longer than it would have been but for the emergency period.

§ The Lord Advocate
I am happy to give the hon. and learned Gentleman that undertaking.

§ Mr. Fairbairn
That is an equitable answer to the problem and I am happy to rest upon it.
However, I am more worried about the first matter. I am not impressed by the Lord Advocate clinging on to the feeble straw of the hon. Member for Galloway (Mr. Thompson). It is odd to see members of the Government Front Bench clinging on to that straw, as they have done twice in the debate, but I suppose that any straw is welcome in a tumultuous ocean in which drowning is the only likely course.
1411 It is a little difficult to take the Lord Advocate saying that our proposal is a desperate and radical departure from principle but that the Government will probably bring it in themselves if the strike lasts. I was interested that the right hon. and learned Gentleman pointed out that even in the war we did not suspend jury trials. As my hon. Friend the Member for Edinburgh, Pentlands (Mr. Rifkind) said, we did not suspend the courts of justice either. Perhaps it is relevant to point out that we suspended trade unions during the war, and perhaps there is a lesson to be learnt from that.
I find it irritating to be caught on the question of the co-accused twice in one week. English lawyers were trying to defeat my Private Member's Bill on the basis that it was taking away rights from the co-accused by protecting the rights of other co-accused. Scottish lawyers are now trying to do the same. I accept that the principle may be difficult in co-accused cases. I have given the election to individuals, and I believe that they should have it. The complications of co-accused cases are extremely difficult, and I would not like to see multiple cases if—dare I say it?—mobbing and rioting cases came before the courts. I would wish the trial to occur only when it was impossible to have a jury trial.
I do not, as a matter of principle, like Ministers trying to run away from principles by hiding behind defects, particularly in emergency legislation. The Lord Advocate knows far better than any other hon. Member that I am an imperfect person who would be incapable of doing anything without defects, but, in the circumstances, I wish to leave amendment No. 5 before the House.

§ Mr. Grimond
May I ask the Lord Advocate a question that I have already asked him? As a layman, I should like to be assured that if by any chance this emergency continues and people are imprisoned without trial for a very long time, and their circumstances change, or they have compassionate grounds, or whatever, there will be some procedure by which their cases can be reviewed. It may exist already, but I want some reassurance on that if I may have it.

§ The Lord Advocate
I apologise to the right hon. Gentleman. I had meant to deal with that when dealing with the amendment. There is a common law remedy in Scotland whereby a person who is detained and who feels that his detention is not warranted or justified in law can petition the High Court, and I think that remedy could be used in this situation.