SCOTTISH LAW COMMISSION (Hansard, 24 October 1979)

§ 27. Mr. Canavan
asked the Solicitor-General for Scotland when he expects next to meet representatives of the Scottish Law Commission.

§ The Solicitor-General for Scotland (Mr. Nicholas Fairbairn)
My noble Friend the Lord Advocate visited the Scottish Law Commission on 15 October. Further meetings will be held as and when necessary.

§ Mr. Canavan
Will the Solicitor-General discuss with the Commission the grave public concern about the Crown Office circular to procurators fiscal instructing them to keep secret registers of people who have been warned about alleged offences which they have not admitted? As this seems to contradict the basic principle of Scottish law that a person should be innocent until proven guilty, will the Government withdraw that circular forthwith and also shelve their Criminal Justice Bill until such time as Parliament and, indeed, the general public have had the opportunity of discussing these important matters?

§ The Solicitor-General for Scotland
That is a fairly wide-ranging question. First, the circular has nothing to do with the Scottish Law Commission, which the hon. Gentleman will appreciate was the last act of the dying Labour Government who were to be pronounced dead a few hours later. He will also appreciate that it is a long standing and humane tradition of the law that persons against whom there is prima facie evidence on minor 417 offences may be warned rather than prosecuted. There has been much uninformed criticism of this matter. To use the word "secret" is, I believe, to use an emotive word in an unfortunate situation. I should like to think, if the hon. Gentleman was warned for a criminal offence but the authorities, in their indulgence, had preferred not to prosecute, that that was a matter which he would not like, to be made public.

§ Mr. Henderson
Will the Solicitor-General look again at the extent to which consultation takes place with legal bodies on matters that come before this House? Although it is believed that procurators fiscal were consulted about the Bail Etc. (Scotland) Bill, which we shall be considering in its final stages tomorrow, does my hon. and learned Friend agree that the sheriffs who will implement that law were not consulted about it?

§ The Solicitor-General for Scotland
There were consultations with the sheriffs. There are extremely good relationships with all those who have an interest in reform of the law, and it is certainly the intention of my Department that consultations of that kind should be free and frequent so that the best agreement on reform of the law can be achieved.

§ Mr. Donald Stewart
Does the hon. and learned Gentleman accept that there is wide agreement with regard to the old Scottish tradition of the procurator fiscal giving a warning? However, what is now at issue is the question of a permanent record being kept of persons who may not have admitted to any crime or offence. Will he ensure that this is not introduced into the law of Scotland?

§ The Solicitor-General for Scotland
I want to make this matter absolutely clear, and to dispel a lot of fantasies that appear to have arisen as a result of articles in the press. If a person is reported on evidence by the police or other witnesses, those papers are kept on record in the Crown Office, whatever the disposal. If they are warned, as opposed to prosecuted, it is important that that fact should be known to the authorities in order that it is not an empty threat, because it would be unfair if one person was to benefit from a warning on several occasions as a result of no record being kept. It is not a record of guilt. It is 418 a record of the fact that prima facie evidence existed and that the person had the benefit of not being prosecuted but had the benefit of being warned.

§ Mr. Harry Ewing
The exchanges that have taken place have served only to confuse the issue further. Does the Solicitor-General accept that this is a serious and important matter? Does he further accept that three areas are laid out in the circular? The one that is quite clear is where a person admits that he committed the offence and where the procurator fiscal decides not to prosecute but the warning is recorded. The first area of doubt—and this is where the problem arises—is where the accused person says that he or she did not commit the offence. The circular is quite clear that no warning should be given and that no record should be made of anything that took place. The other area of doubt is where the accused person makes a noncommittal reply. Here again the circular is quite clear. Does the Solicitor-General accept that the warning that should be given is merely an indication that the procurator fiscal considers that he would be able to go ahead with the prosecution but would give no indication as to whether he thought the accused person was guilty or not guilty?
Finally, may I ask the SolicitorGeneral—[H0N. MEMBERS: "No."] This is a very important issue. Does the hon. and learned Gentleman accept the suggestion of his senior colleague the Lord Advocate about making arrangements through the Leader of the House to have a debate on this matter on the Floor of the House?

§ The Solicitor-General for Scotland
That was not the suggestion of my right hon. and learned Friend the Lord Advocate. He said that the matter should be raised in Parliament, as it is now being raised. But let me make the situation absolutely clear. I am rather surprised at Opposition Members. This is a humanitarian act to prevent people from being prosecuted in minor cases, whereas otherwise they might be. Let me be quite clear about the matter. This was an instruction issued under the last Government, giving clearance and guidance to procurators fiscal so that the matter is uniform, as we would all want it to be. In fact, there is a provision that if a person totally denies the offence he may not be 419 warned. In that case, if the offence is available they are more likely to be prosecuted. But the fact should be understood that there is nothing secret about this. It is a humanitarian and sensible measure.
I should like to raise one other point because it is a matter of importance. Here we have a document issued in confidence to people in the public service who are under an oath of confidence. This matter became public and there is no reason why not. It was the manner in which it became public—because the press protected the confidentiality of someone who was in breach of confidentiality—which I regard as very serious indeed.

§ Mr. David Steel
Surely some of the doctrines that the Solicitor-General has propounded are at least open to parliamentary question and debate, to put it mildly. Will he arrange for the Scottish Grand Committee to debate this matter thoroughly because it cannot be pursued satisfactorily by question and answer?

§ The Solicitor-General for Scotland
It is extraordinary that Opposition Members are so concerned about such a longstanding tradition and about the last act of the last Government. However, if the Liberal Party wishes to use one of its Supply days to debate the matter, nothing would give us more pleasure.