INCREASED RIGHTS OF APPEAL OF PROSECUTOR (Hansard, 20 January 1997)

HC Deb 20 January 1997 vol 288 cc624-6 624

§ '.—(1) For section 108 of the 1995 Act there shall be substituted the following section— "Lord Advocate's right of appeal against disposal

108.—(1) Where a person has been convicted on indictment, the Lord Advocate may, in accordance with subsection (2) below, appeal against any of the following disposals, namely—

(a) a sentence passed on conviction;
(b) a decision under section 209(1)(b) of this Act not to make a supervised release order;
(c) a decision under section 234A(2) of this Act not to make a non—harassment order:
(d) a probation order;
(e) a community service order;
(f) a decision to remit to the Principal Reporter made under section 49(1)(a) of this Act;
(g) an order deferring sentence;
(h) an admonition; or
(i) an absolute discharge.

(2) An appeal under subsection (1) above may be made—

(a) on a point of law;
(b) where it appears to the Lord Advocate, in relation to an appeal under—

(i) paragraph (a), (h) or (i) of that subsection, that the disposal was unduly lenient;
(ii) paragraph (b) or (c) of that subsection, that the decision not to make the order in question was inappropriate;
(iii) paragraph (d) or (e) of that subsection, that the making of the order concerned was unduly lenient or was on unduly lenient terms;
(iv) under paragraph (f) of that subsection, that the decision to remit was inappropriate;
(v) under paragraph (g) of that subsection, that the deferment of sentence was inappropriate or was on unduly lenient conditions.".

(2) For subsection (4) of section 175 of the 1995 Act there shall be substituted the following subsections—

"(4) The prosecutor in summary proceedings, in any class of case specified by order made by the Secretary of State, may, in accordance with subsection (4A) below, appeal to the High Court against any of the following disposals, namely—

(a) a sentence passed on conviction;
(b) a decision under section 209(1)(b) of this Act not to make a supervised release order;
(c) a decision under section 234A(2) of this Act not to make a non—harassment order;
(d) a probation order;
(e) a community service order;
(f) a decision to remit to the Principal Reporter made under section 49(1)(a) or (7)(b) of this Act;
(g) an order deferring sentence;
(h) an admonition; or
(i) an absolute discharge.

(4A) An appeal under subsection (4) above may be made—

(a) on a point of law;
(b) where it appears to the Lord Advocate, in relation to an appeal under—

(i) paragraph (a), (h) or (i) of that subsection, that the disposal was unduly lenient;
(ii) paragraph (b) or (c) of that subsection, that the decision not to make the order in question was inappropriate;
(iii) paragraph (d) or (e) of that subsection, that the making of the order concerned was unduly lenient or was on unduly lenient terms;
(iv) under paragraph (0 of that subsection, that the decision to remit was inappropriate;
(v) under paragraph (g) of that subsection, that the deferment of sentence was inappropriate or was on unduly lenient conditions.".'—[Lord James Douglas—Hamilton.]

§ Brought up, and read the First time.

§ Lord James Douglas-Hamilton
I beg to move, That the clause be read a Second time.

§ Madam Speaker
With this, it will be convenient to discuss Government amendments Nos. 33 to 36, 86 and 90.

§ Lord James Douglas-Hamilton
New clause 6 is intended to clarify the provisions concerning the Crown's right of appeal against sentences and other disposals. Since the power was first introduced in the Prisoners and Criminal Proceedings (Scotland) Act 1993, there have been various additions to the Lord Advocate's powers. The Bill will make further changes. The original structure of the provisions could helpfully be updated to accommodate the various proposals. New clause 6 and the consequential amendments achieve that by clarifying the legislative structure.
Some minor amendments are also made to the provisions dealing with appeals against a court's decision not to make a non-harassment or a supervised release order. We consider it preferable for the Crown to have to argue that the fact that the court did not make such an order in the specific circumstances of a case was inappropriate.

§ Mr. James Wallace (Orkney and Shetland)
It would be helpful for the House to know on how many occasions 626 the Lord Advocate has used the powers that are available to him to appeal against sentences. Had the new clause appeared in the original Bill, the Government might have been obliged to give some indication of the financial implications, so can the Minister tell us what assessment has been made of the effect of these wider powers on the work load of the criminal appeal court?

§ Lord James Douglas-Hamilton
The appeals unit considers that the new clause will provide a better basis for arguing an appeal before the court. We do not think that it will have a considerable effect on expenses.
There has been a relatively small number of appeals by the Lord Advocate and law officers. A few have been successful, but not all. The power has been used, however, and on the last occasion that I was asked, the number was less than 25, which is relatively few, but it may since have increased.
Question put and agreed to.
Clause read a Second time, and added to the Bill.