§ Order for Second Reading read.6.59 pm
§ The Minister for Home Affairs and Devolution, Scottish Office (Mr. Henry McLeish)
I beg to move, That the Bill be now read a Second time.
I am grateful for the agreement that has been reached through the usual channels to allow time for this very short but very important Bill to be debated. Many right hon. and hon. Members present tonight have been in the Chamber long enough this week, so we shall try to dispatch the business as quickly as possible.
The importance of the matters the Bill addresses cannot easily be overstated. As a result of a procedural irregularity, which has only recently come to light, a large number of summary prosecutions and previous convictions dating back to 1981 have been called into question. As of 27 March, the Crown had already been forced to abandon 71 cases. Many more are in the pipeline. The situation has already attracted widespread public attention and the purpose of the Bill is to put matters right as quickly as possible.
The difficulties the Bill is designed to address emerged as a result of recent judgments of the High Court of Justiciary in the cases of Mackay and Milligan. Taken together, those judgments make it clear that a summary court has no power to hold an intermediate diet if the trial diet has to be postponed for any reason. It follows that any order made at such a diet is a nullity, including the decision to fix a new date for trial, and that any subsequent proceedings, including a conviction and sentence, may themselves become fundamentally null.
Before considering the implications of the High Court decision, it may be helpful to hon. Members if I take a moment to explain, as briefly as possible, the background to it. Intermediate diets were first introduced into summary procedure in 1981 by virtue of section 15 of the Criminal Justice (Scotland) Act 1980, which enabled, but did not require, the court to fix a diet, known as an intermediate diet, in respect of a case that was going to trial.
The purpose of the intermediate diet was to ascertain whether the parties were ready for trial and the accused still intended to plead not guilty—and therefore to ensure, so far as possible, that cases did not have to be adjourned on the day. Such last-minute adjournments are not only expensive and disruptive to court business; they cause a great deal of inconvenience to witnesses who have been summoned to court in the expectation of the trial going ahead. After their introduction in 1981, it appears that intermediate diets had comparatively little success and most courts gradually stopped holding them routinely.
However, in the early 1990s, following consultation and pilots in a number of sheriff courts, it was concluded that, with minor procedural changes, intermediate diets had the potential to be more productive in anticipating and avoiding the need for adjournment on the day of trial. Accordingly, the Criminal Justice (Scotland) Act 1995 contained provisions enabling the court to make inquiries 1469 into the state of preparedness of the parties. It also empowered the Secretary of State by order to make the holding of intermediate diets mandatory in prescribed courts. That power has been exercised from April 1996 onwards, so that almost all summary courts, with the exception of a few of the smaller ones, are now required to hold intermediate diets before trial.
There is no doubt that the introduction of mandatory intermediate diets has resulted in a considerable increase in the number of cases disposed of without the need for a trial diet. In 1993–94, for example, 3,177 summary cases were disposed of by a plea of guilty at an intermediate diet. Three years later, in 1996–97, that figure had increased fourfold, to 13,583.
However, a widespread practice developed of fixing a further intermediate diet in cases where the trial diet had to be adjourned until a later date, in order to ascertain whether the case would go ahead on the new date. The purpose of these further intermediate diets was exactly the same as the initial diet, which was to determine whether the parties were ready for trial and therefore to avoid last-minute adjournments, if at all possible. That is the practice that has now been held to be invalid by the High Court's recent judgments.
In Mackay, the appellants appealed against the competency of proceedings on the ground that no intermediate diet had been fixed when their trial was further adjourned. That appeal was dismissed, but in doing so the High Court concluded that there was no statutory basis for intermediate diets to be held before any adjourned trial diet. In the light of the court's opinion in that case, which was handed down on 19 November 1997, the Crown took the view that further such diets should no longer be fixed, although some sheriffs continued to fix them.
Following Mackay, pleas as to the competency of summary proceedings were taken in a large number of cases around the country. A number of sheriffs raised the same issue themselves and, in order to clarify the situation, the Crown appealed against the decision of a sheriff in one such case, which resulted in the case of Milligan coming before the Appeal Court. On 12 March, the court held that a summary court had no power to make an order at what was described in Mackay as an "unintended" intermediate diet and that any such order was a nullity. It followed that the proceedings themselves became fundamentally null where the adjourned trial diet did not proceed on the date originally fixed.
I should emphasise that, to the best of my knowledge, no case has yet come to court in which a person has sought to have his or her conviction quashed in a case in which proceedings have been completed, but the same issues could well arise. The decision therefore raises a real possibility that persons convicted and sentenced at trial diets that were fixed at an invalid intermediate diet would be able to have their convictions and sentences quashed. In that event, those concerned might seek compensation—for example, where they had been imprisoned or disqualified from driving—the return of any fines they had paid and their criminal record to be expunged. In current cases, the Crown would have to consider instituting fresh proceedings, which might themselves be the subject of challenge.
1470 Although no precise figures can be given of the number of cases involved, the Crown Office estimates that about 1,000 current cases are likely to be affected. Several thousand completed cases may be involved as well. Although the cases involved are those dealt with under summary procedure, which generally involves less serious offences, they are also likely to include persons who have received custodial sentences for violence, indecency, housebreaking and drugs offences and custody and disqualification for offences involving dangerous, disqualified or drunk driving.
If the Government took no action to address what appear to be the likely consequences of the High Court's decision, I have no doubt that the effect on both the criminal justice system and public confidence in Scottish criminal justice would be extremely severe. There would be considerable additional delays, expense, uncertainty and in a very real sense injustice. That is why we have brought forward the Bill today, with the agreement of the Opposition parties.
We have concluded that the best remedy is to amend the provisions relating to intermediate diets in section 148 of the Criminal Procedure (Scotland) Act 1995, to make it explicitly clear that courts may fix an intermediate diet at any time, whether before, on or after any date assigned as a trial diet. That provides the courts with the discretion they always thought they had to fix an intermediate diet when a trial diet is adjourned to a later date. That is the effect of clause 1(1)(a) and (b). Clause 1(2) provides that the amendment shall operate retrospectively, and clause 1(3) applies the same amendments to the Criminal Procedure (Scotland) Act 1975, which preceded the 1995 Act.
Parliament is rightly reluctant to resort to retrospective legislation, unless a compelling case can be made out for doing so, because of the obvious potential for unfairness and oppression. There is no such unfairness or oppression in this instance, so I believe that this is one of the very rare cases in which it is both necessary and appropriate that legislation should have retrospective effect. The holding of an intermediate diet where a trial diet had been adjourned, which is what has been found to be invalid, involved no prejudice of any kind to the accused. Indeed, in many cases the additional intermediate diet which, it now appears, rendered the subsequent proceedings invalid, will have been fixed on the application of the defence.
Intermediate diets were introduced as long ago as 1981 and have operated ever since to the benefit of all parties, with no suggestion being raised until now as to the validity of such diets in certain circumstances. It would surely be absurd if Parliament did not legislate to cure what is no more than a technical procedural irregularity that caused no prejudice of any kind to the accused, with the result that a large number of cases had to be abandoned or reopened.
The Bill is vital to the proper administration of criminal justice in Scotland. Without it there is a risk of severe damage being done to public confidence in the system of justice and the prospects of substantial resources having to be expended in dealing with cases that, apart from a purely technical irregularity which the High Court found to be fatal, are otherwise entirely sound. I commend the Bill to the House.
§ 7.8 pm
§ Mr. Michael Ancram (Devizes)
>: This is an unusual situation because this is a question not only of emergency legislation, but of retrospective legislation. Although we want this business to be concluded swiftly, I think it right that we show that we have tested it against the criteria that emergency legislation and retrospective legislation should be tested against. After all, emergency legislation bypasses the normal tests and democratic restraints that the House and the other place can exercise, and it should be used only in exceptional circumstances; there is a natural democratic presumption against retrospective legislation.
I believe that the tests are severe and precise. It must be seen that the legislation is strictly necessary and, significantly, that it does not cause injustice or unfairness after the event.
As the Minister said, a number of cases—I think he said 70 or 80—have been deserted or abandoned because of this situation. There are also 1,000 cases hanging around, waiting to be tried, and thousands of cases—the number is unquantifiable—could be affected retrospectively if the Bill were not passed.
I am grateful to the Minister and to the Secretary of State for consulting us, not only generally on the issue, but on the terms of the Bill and for being prepared to accept certain suggestions made by us to, I believe, make the Bill more effective. I also place on the record my gratitude to Lord Mackay of Drumadoon, a former Lord Advocate, who I readily accept has helped me to find my way through this procedural minefield in a way that might otherwise not have been possible, and who has enabled me to apply the tests that I have set out and to say tonight that I believe that they are met.
There are two areas: current cases and cases that have gone before. For current cases, the practical consequences of not changing the law are as follows. The Crown would be unable to seek convictions in cases in which more than one intermediate diet had taken place. Any orders made at such further intermediate diets would be incompetent. Such orders would include not only procedural decisions, such as the adjournment of trials; warrants for apprehension granted at such diets would also be affected. In such cases, the Crown would have no alternative but to abandon the proceedings. In certain instances, it might be possible to raise fresh proceedings, but in others the case would be time-barred. There may be other current cases in which a conviction has taken place, but the accused has not yet been sentenced or the days for making an appeal have not yet expired. In such cases, also, unless the law is changed, the conviction will fall.
On those grounds, to protect current cases, there is an obvious need to move with urgency. That is why I am satisfied that the tests for emergency legislation are met in this instance.
Obviously, the more sensitive question is whether the Bill should have retrospective effect. In my view, such legislation is justified only in the rarest of instances. Having very carefully considered all the issues involved, I believe that the circumstances justify the Bill having retrospective effect. That is necessary to protect some current cases, which will be affected by the problem that has arisen. It may also be necessary to protect an unquantifiable number of completed cases, dating back to 1472 1981, in which convictions have been returned in proceedings in which more than one intermediate diet has taken place.
Since intermediate diets were introduced, sheriffs, procurators fiscal and defence lawyers have proceeded on the basis that it has been competent to hold more than one intermediate diet. That was the position before the holding of intermediate diets became mandatory, and that remained the position until the decision in Mackay, which the Minister mentioned.
Much more important, it should be remembered that the problem that has arisen relates to the competency of pre-trial procedure rather than the rules of procedure regulating the conduct of trials or questions relating to the admissibility or sufficiency of evidence at such trials. If the law is changed retrospectively, therefore, no question can arise of any accused being able to argue that the change has prevented him from arguing that he has suffered any substantive interference in his right to a fair trial. That is an important test.
The worst that an accused could complain of is that he has been inconvenienced by requiring to attend court more often than might have been the case and, I think in a few instances, that he has been remanded in custody, pending trial, for failing to attend a second or subsequent intermediate diet that, in the light of Mackay, ought not to have taken place. However, in the few instances in which the accused has ended up in custody, he would have done so only because he disobeyed an order of the sheriff to attend a specified diet, and in such circumstances it would be difficult to argue that any great injustice had arisen.
In those circumstances, I believe that it is necessary to balance the public interest and the interests of any accused that may be affected. I believe that, when that is done in the light of the circumstances, the balance tilts firmly in favour of allowing the Bill to proceed with retrospective effect. It would be most unsatisfactory if current prosecutions were to founder, or past convictions were to be quashed, as a consequence of a procedural irregularity of a nature that has only recently, and totally unexpectedly, been identified, in the circumstances that the Minister set out.
On the basis of those exceptional circumstances, on behalf of the Opposition, I am prepared to support the Second Reading of the Bill and to see it pass through all its stages as speedily as possible.
§ Mr. Menzies Campbell (North-East Fife)
I suppose that, technically, I should declare an interest as an occasionally practising member of the Faculty of Advocates, although, until now, my interest in the intermediate diet has been somewhat peripheral and I do not believe that I have ever attended one, even in a professional capacity.
Like every lawyer, I find retrospective legislation repugnant. That is why I consistently voted against legislation the purpose of which was to allow the prosecution of alleged war criminals many years after some of them had first come to the United Kingdom. Leaving aside questions of principle, looking at the matter pragmatically, it seems to me that my opposition to that legislation has proved more sound than even I thought at the time.
1473 However, in this case, cogent arguments exist to justify both emergency and retrospective legislation, so I can adopt much of what has been said by the right hon. Member for Devizes (Mr. Ancram). I am prepared to give the Bill a fair wind, for two reasons. First, it creates no crime that did not previously exist; secondly, it constitutes no extension of the jurisdiction of the court. Had either of those principles been offended against, my position might have been different. However, in the light of what has been said by the Minister on behalf of the Government, it seems to me that the Bill should pass speedily through the House, because it is in the interests of justice that it should do so.
§ Mr. Alex Salmond (Banff and Buchan)
I have a fellow feeling with the Minister of State to be among such luminaries—adornments—of the Scottish legal system. I do not know whether we are Daniel in the lion's den or have fallen among thieves, but perhaps we should be careful about how much expertise we both claim with so much talented advice available to us.
I shall not detain the House except to say that I support the remarks made on behalf of the Opposition parties. Obviously, retrospective legislation is extremely undesirable, but in this case the case has been made. In fact, in this case the Government had no alternative but to introduce the Bill. For that reason, the Scottish National party will join other Opposition parties in supporting the Bill.
I want to pursue with the Minister a point that I have been pursuing with the Secretary of State for Scotland. I understand that the legal advice available to the Government is that there is little chance of an appeal to the European Court of Human Rights, basically because, for the reasons that have been given by the right hon. Member for Devizes (Mr. Ancram), it is difficult to substantiate an argument that a person has been prejudiced as a result of the Bill, but the right hon. Gentleman did mention that people may have been detained in custody, albeit as a result of their own actions, as a result of the procedures that, currently, are regarded as irregular.
The Government have received from their lawyers advice to the effect that, because of the circumstances of the case, the European Court is unlikely to rule in favour of any person who goes before it pursuing such a claim. However, there have been circumstances—in relation to the fishing industry, for example—where Government lawyers have been extremely confident about their advice to the then Government before the European Court but were then sorely disappointed when judgments came in on the other basis.
Although I accept that the Bill is necessary, that there is no alternative, and that the retrospection is necessary—however undesirable it may be—I want to ask whether there is any possibility of a Treasury indemnity for the Scottish Administration of a new Parliament, established next year. I would not like there to be the possibility— 1474 however remote—that the Scottish Parliament may be presented with an unquantifiable legal bill as a result of cases that may be pursued. I accept that that may be a remote possibility. If it is, there should be no difficulty presenting such an indemnity as it is unlikely to cost the Treasury any money. I know that the Secretary of State has considered the point and that the Minister has had an opportunity to do likewise. I should like to pursue that point while giving general support to the Bill and the arguments about why it is necessary.
§ Mr. McLeish
With the leave of the House, Mr. Deputy Speaker, I should like to reply to the debate.
I thank the Opposition for adopting a very constructive and thoughtful approach. The right hon. Member for Devizes (Mr. Ancram) identified the important principles behind the Bill and outlined the criteria that have been satisfied—at least in his eyes. I also thank the hon. and learned Member for North-East Fife (Mr. Campbell) for his support.
I shall deal briefly with the point raised by the hon. Member for Banff and Buchan (Mr. Salmond), who had the courtesy to write to my right hon. Friend the Secretary of State. The hon. Gentleman raised the question of an indemnity for the Scottish Parliament in the event of its having to meet financial liabilities as a result of the problems that have arisen in relation to intermediate diets. As I understand it, the hon. Gentleman is concerned that either the domestic courts or the European Court of Human Rights might find the retrospective nature of this legislation unlawful, leaving the way open for convictions to be quashed and resulting in entitlement to
I assure the hon. Gentleman and the House that we have taken careful legal advice and, on the basis of that advice, we are totally satisfied that the retrospective provisions of the Bill are entirely consistent with both domestic and European law. I would not otherwise commend it to the House. From the perspective of the Scottish Parliament, the position would be far worse if the legislation were not enacted. While I recognise that the hon. Gentleman has made a reasonable point, it is a hypothetical one. I assure the hon. Gentleman that we do not envisage any unquantifiable liability ending up with the Scottish Executive or the Scottish Parliament. The most important consideration this evening is to move forward with the Bill in order to ensure that the liabilities to which the hon. Gentleman referred do not end up with the Scottish Executive or the Scottish Parliament.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Motion made, and Question put forthwith, pursuant to Standing Order No. 63 (Committal of Bills),
§ That the Bill be committed to a Committee of the whole House.—[Mr. McFall.]
§ Question agreed to.
§ Bill immediately considered in Committee; reported, without amendment; read the Third time, and passed.