ABOLITION OF MANDATORY FIRST DIET (Hansard, 23 July 1980)

§ Mr. Rifkind
I beg to move amendment No. 117, in page 80, line 27, after '104', insert '—(1)'.

Mr. Deputy Speaker
With this it will be convenient to take Government amendment No. 118.

§ Mr. Rifkind
The amendments amend section 104 of the 1975 Act to provide that when a sheriff remits a case for 657 sentence to the High Court a note of his reasons for the remit shall be sent to the defence and the Crown Agent. The hon. Member for Glasgow, Garscadden (Mr. Dewar) will be interested to know that it was his partner, Mr. Ross Harper, who put the proposal to the Government. I am not quite certain why he did not put it to the hon. Gentleman. Nevertheless, the Government were happy to consider it entirely on its merits. I am happy to commend it to the House.

§ Mr. Dewar
I beg to move amendment No. 167, in page 80, line 42, at end insert 'but nothing in this section shall restrict the right of a Sheriff to dispose of one or more accused in the sheriff court if he feels this to be appropriate while remitting a co-accused on the same indictment for sentence in the High Court in terms of this section.'. After that display of breadth of mind by the Under-Secretary of State I cannot resist the temptation to move the amendment. This is positively the last speech that I shall make on the Bill. That will appeal to my colleagues who were members of the Committee. It is a minor matter, but of some importance.
The present law of Scotland is that where a sheriff considers that a man deserves a sentence that is beyond his powers—in other words, a sentence longer than two years—he must remit him to the High Court for the longer length of imprisonment to be considered. Unfortunately, if there is more than one accused the wish to remit one means that they all have to be remitted.
I accept that there is a system whereby a note is sent by the initial trial judge to the High Court, which is some measure of safeguard. It would be infinitely better if the sheriff could dispose of those of the accused whom he thought he could suitably dispose of and remit to the High Court only those whom he thought deserved sentences beyond his powers. That would ensure that in as many cases as possible the trial judge would hear the evidence and make a disposal. It seems a proper reform, and one that I hope will be achieved in this modest amendment. I trust that even at the eleventh hour and fifty-ninth minute the Under-Secretary of State will consider the matter kindly.

§ Mr. Rifkind
This is a matter that we discussed in Committee. I appreciate the reasons of the hon. Member for Glasgow, Garscadden (Mr. Dewar) for introducing the amendment. He will recollect that when we previously debated the matter I quoted the words of the Lord Justice Clerk, Lord Wheatley, who indicated with some force that there was something undesirable when two co-accused were dealt with by the lower court if it were felt appropriate to remit one of them to the High Court for sentence. He considered it right that whoever was imposing the sentences should have before him all those who had been found guilty.
The hon. Gentleman has drawn attention to a general problem. If a person who might otherwise have received a very light sentence—within the maximum permitted by the sheriff court—is sent to the High Court, there is a danger that he will receive a heavier sentence. There is a protection against that. The sheriff must send a report to the High Court, stating the reasons for the remit. If the sheriff were prepared to give a low and modest sentence to one of the co-accused he would indicate that in the report. That is a proper safeguard.

§ Mr. Dewar
I accept that. However, if the accused is committed to the High Court as a fellow passenger, he may still suffer. At a subsequent stage he may get into trouble, and a High Court disposal will appear on his list of convictions. I have listened to many orators, and I know that a sheriff is likely to say "I sentence you to such-and-such. I do this because of your very bad record. I see, indeed, that you have been sentenced in the High Court". That is an unfortunate by-product of the system.

§ Mr. Rifkind
I accept the hon. Gentleman's point. One must bear in mind that a list of previous convictions will refer not only to the previous convictions and the courts where the accused appeared but to the sentence that he received. In many cases a person who has appeared in the High Court is fined, or receives a two or three-month prison sentence. Indeed, he may receive an absolute discharge. When, subsequently, the defence draws the court's attention to the sentence that was imposed, the court will appreciate that it was a minor matter even though it was dealt with by the High Court.
659 Often, a person charged with a serious offence is convicted only of a minor offence in the High Court. Although the conviction will show that he appeared in the High Court, a subsequent court will recognise that the offence was trivial. Even in those circumstances the interests of the accused are properly safeguarded. For the good reasons that the Lord Justice Clerk referred to, it is appropriate that whoever sentences should be able to sentence all the convicted at the same time.