HL Deb 07 April 1998 vol 588 cc717-25

9.38 p.m.

The Lord Advocate (Lord Hardie)

My Lords, I beg to move that the Bill be now read a second time.

Although this is a very short Bill, it is exceptional in ways which will be of interest and perhaps concern to some of your Lordships. I must also say that we regret having to ask your Lordships to waive standing orders so that all stages of the Bill may be taken now. I understand that this is a most unusual procedure which is used only very rarely indeed.

The Bill is also unusual because it involves retrospection. Again. I am sure that this is a matter which would normally cause your Lordships some concern, since it involves retrospective legislation affecting criminal justice procedure. I hope, therefore, to be able to persuade your Lordships that both the urgency and the form of the legislation can be justified because of the exceptional circumstances involved.

The purpose of the Bill is to remedy a procedural deficiency, the implications of which have only very recently become clear by virtue of the High Court of Justiciary's judgment in the case of Milligan. As a result of this, a large number of summary prosecutions and previous convictions under summary procedure in the Scottish court have been called into question. The Crown has already been forced to abandon a number of current cases affected by the judgment, amounting to 71 as at 27th March. Many more cases are in the pipeline. The purpose of the Bill is therefore to remedy this before more cases have to be abandoned, with all the implications that this would have for public confidence in the Scottish criminal justice system.

Since 1981 the summary courts in Scotland—that is the district courts and sheriff summary court—have been able to hold an intermediate diet between first calling of a case and the trial diet, in order to assess whether or not the case was likely to be able to go ahead on the day assigned for the trial diet. If it became evident at the intermediate diet that the case was unlikely to proceed, for example because either of the parties was not going to be fully prepared, or because key witnesses or even the accused might be unable to attend, then the court could take action to address this, either by seeking to ensure that the problems that had arisen were dealt with before the day of trial or by adjourning the trial diet to a later date. As your Lordships will appreciate, an intermediate diet is essentially administrative in nature and is intended to avoid the inconvenience and cost to all those who have to come to court for a trial and then have to be sent away again because it cannot proceed on the day.

Over time, a practice developed of fixing a further intermediate diet where the trial diet had to be adjourned to a later date. The purpose of this further intermediate diet was exactly the same as the original intermediate diet: to confirm whether or not the trial was likely to proceed on the new date. From that perspective, it is immaterial whether the intermediate diet is held before the first date to which the trial diet is assigned or before any later date to which it has to be adjourned. That no doubt explains why it appears to have been accepted without question that the statutory power to hold an intermediate diet was wide enough to encompass the fixing of a further such diet, whether before or after the date of the trial diet.

However, in a judgment of the High Court handed down on 19th November of last year in the case of Mackay in which the appellants appealed against the competency of proceedings where no intermediate diet had been fixed when the trial was further adjourned, the High Court concluded, while dismissing the appeal, that there was no statutory basis for intermediate diets to be held before any adjourned trial diet. In the light of this ruling the Crown took the view that further diets should no longer be fixed, and issued instructions accordingly, although some sheriffs nevertheless continued to do so.

The court's opinion in the case of Mackay had the effect of calling into question the competency of proceedings where such intermediate diets, described by the court as an unintended intermediate diet, had been held and pleas to discontinue proceedings were taken in a large number of cases around Scotland. A number of sheriffs raised the same issue themselves. The Crown therefore appealed against the decision of a sheriff in one such case, which resulted in the Crown Bill of Advocation in Milligan coming before the High Court. On 12th March of this year the High Court held that a summary court had no power to make an order at an unintended intermediate diet and that any such order was therefore a nullity. It followed that proceedings themselves became fundamentally null where the adjourned trial diet did not proceed on the date it originally fixed.

Although the Crown had ceased to agree to such diets in November, it is estimated that around 1,000 current cases are affected by the decision in Milligan. In addition, the decision casts doubt on several thousand completed cases, although no completed case has yet come before the court. In cases where convictions and sentences have been imposed, the decisions raise the possibility of these convictions and sentences being quashed; of an entitlement to compensation for those who have been imprisoned or otherwise suffered as a result of the sentences imposed; and of criminal records having to be expunged. In current cases, the Crown may in particular instances be able to consider instituting fresh proceedings, but this could give rise to further challenges and protracted delay and uncertainty as a result.

We are dealing with summary procedure which involves offending which is at the less serious end of the range. However, those dealt with under summary procedure in Scotland involve persons who receive custodial sentences for violence, indecency, housebreaking and drugs offences, and may have received custodial sentences together with disqualification for motoring offences involving dangerous, disqualified or drunk driving.

Any entitlement to the quashing of conviction and sentence would arise purely because of a technical deficiency which has now been identified by the High Court. It should be emphasised that it is not a deficiency which has resulted in any unfairness whatever to the accused. In every case the defence was content to participate in the diet; indeed in many cases a further intermediate diet would have taken place at the behest of the defence. It should also be emphasised that intermediate diets are a purely procedural hearing. Therefore, the holding of a further diet where a trial diet had been adjourned involved no prejudice or unfairness of any kind to the accused. I am sure you can appreciate how damaging it would be to the confidence in our system of justice in Scotland if large numbers of offenders, who had otherwise been fairly convicted, were able to have their convictions quashed on a procedural technicality, in some cases years after the event, and possibly find themselves able to obtain compensation as well.

This is therefore the outcome which the Bill seeks to prevent. Clause 1(1)(a) and (b) of the Bill give the court discretion to hold an intermediate diet when the trial diet is adjourned to a later date, a discretion which the courts believed they had been exercising correctly until the cases of Mackay and Milligan. Clause 1(3) applies the same amendments to the Criminal Procedure (Scotland) Act 1975 so that the amendment takes effect from the date at which intermediate diets were first introduced.

I hope that what I have said is sufficient to persuade you that the retrospective nature of this Bill is justifiable as is the need for it to be brought into effect quickly. If this does not happen current cases will continue to fall and it seems inevitable that appeals will fall to be dealt with on completed cases as well. The Bill has received widespread support, not only from Opposition parties in another place but from legal and human rights groups as well. I very much hope that your Lordships will find it acceptable. I beg to move.

Moved, That the Bill be now read a second time.—(Lord Hardie.)

9.47 p.m.

Lord Mackay of Drumadoon

My Lords, I am sure that all of your Lordships will be grateful to the noble and learned Lord the Lord Advocate for providing a very clear explanation of why the Government have considered it necessary to present this Bill to Parliament and seek its expedited passage through another place and your Lordships' House. I am also personally grateful to the Lord Advocate's colleague, the Secretary of State for Scotland, who made a draft of the Bill available to representatives of all of the opposition parties in another place prior to the Bill's publication. This constructive gesture enabled early and urgent consideration to be given to both the need for this emergency legislation and the detail of the Bill itself. The consideration was extremely useful and productive, and as a result agreement was reached in another place that the Bill should receive a speedy passage. I am sure that your Lordships will be of a similar mind. The expectation is that as a result the Bill will reach the statute book within a week of its being presented to Parliament.

As the comments of the noble and learned Lord the Lord Advocate made clear, two issues arise. The first is whether emergency legislation is warranted, and the second is whether it is appropriate that the legislation should have retrospective effect.

I have considered fully the consequences of the decision the court was invited to make in the case of Mackay v. Ruxton, a decision which was not challenged when the subsequent case to which the Lord Advocate referred, that of Milligan, came to be decided. Having carefully considered what was said by the court in both of those cases, I am quite satisfied that this is a case where emergency legislation is justified.

As the noble and learned Lord the Lord Advocate indicated, intermediate diets first came into effect back in 1981. My understanding, from inquiries which I have carried out, is that since that date sheriffs have frequently fixed more than one intermediate diet in a particular case. As the noble and learned Lord indicated, that has proved to be beneficial to many who are involved in the conduct of criminal trials: the court itself, the Procurator Fiscal Service, the defence solicitors and the many witnesses, both police and lay witnesses, who become involved in such trials. The procedure has enabled the expense and inconvenience to be reduced by ensuring that cases only proceed to trial at the trial diet if it is reasonably expected that that should be the position.

Noble Lords will appreciate that if trials are postponed at the last minute or if a late plea of guilty materialises, it causes great inconvenience to witnesses and leads to the incurring of expense which could otherwise have been avoided.

As has been made clear, the practical consequences of the situation which has emerged are quite stark. Unless the law is changed, the prosecution service, the Crown in Scotland, will not be able to seek conviction in many summary cases in which more than one intermediate diet has already taken place. Any orders that may have been made at such second or subsequent intermediate diets will be deemed to be incompetent. These include not only procedural decisions such as the adjournment of diets at trial, but also warrants for apprehension which may have been granted because accused persons may not have turned up at the second or subsequent intermediate diets that have been fixed.

In such circumstances, with the 1,000 or more cases to which the noble and learned Lord the Lord Advocate referred, it is clear that the Crown will have no alternative but to desert the current proceedings. In certain instances, it may be possible to raise new proceedings. However, in other cases, particularly those involving statutory offences, the cases may be time-barred and the prosecutions will be able to go no further. For that reason it is obvious, I believe, that emergency legislation is appropriate.

The much more sensitive question is whether the legislation should have retrospective effect. As your Lordships will be well aware, it is only in the rarest of instances that such legislation finds favour with your Lordships' House.

Again, I have sought carefully to consider all the issues involved. Having done so, I reached the view that the unusual circumstances that apply in this case justify the Bill which has been presented having the retrospective effect which is set out in its clauses. I believe it is necessary to protect at least some of the current cases which are affected by the problem which the noble and learned Lord described. The retrospective effect may also be necessary to protect an unquantifiable number of completed cases dating back to 1981 in which convictions have been returned in the criminal proceedings which were brought and which may now be open to challenge.

I formed the view that I take for this reason. The problem which has arisen relates to the competency of pre-trial procedure. It does not relate to the statutory definition of the offences for which particular accused persons have been prosecuted; nor does it relate to rules of procedure which regulated the trials which were conducted when such accused persons were convicted. Nor does it relate to any question as to the admissibility or sufficiency of evidence which was led at such trials.

I believe that if the law is changed retrospectively, as the Bill suggests, no question could arise of any accused being able to argue that the change brought about by the Bill would in any way have deprived him of his right to a fair trial. Nor can any question arise of an accused having been convicted of a new offence or an aggravation of an existing offence. The worst that an accused could complain of would be of having been inconvenienced by being required to attend court more often than might otherwise have been the case and, in a few instances, of having been remanded in custody, pending trial, for failing to attend a second or subsequent intermediate diet that in the light of Mackay could not competently have taken place. In those few instances the accused concerned will have deliberately disobeyed an order of the justice or the sheriff to attend a specified diet. In such circumstances, it is difficult to believe that any great injustice will have arisen.

In relation to past convictions, the arguments that retrospective provisions may be necessary are less compelling. There is a fairly strong argument, supported by judicial authority, that in past cases the High Court would not entertain late appeals based on a change in the construction or application of statutory provisions that have not themselves been amended. Be that as it may, I entirely agree with the noble and learned Lord the Lord Advocate that it would be most unfortunate if resources were devoted to considering such late appeals when there can be no doubt that the offences of which the accused were convicted have not changed and where there can be no argument that they did not receive a fair trial.

In a situation such as the present, one requires to balance the public interest on the one hand with the interests of any accused that may be affected on the other. In my view, when that exercise is dispassionately carried out the balance is tilted firmly in favour of allowing the Bill to proceed as speedily as possible with retrospective effect. It would be most unsatisfactory if current prosecutions were to founder or past convictions be quashed as a consequence of a procedural irregularity of a nature that has only recently and quite unexpectedly been identified. In those circumstances, I find it possible to offer the full support of these Benches to the Bill.

9.58 p.m.

The Earl of Mar and Kellie

My Lords, last week at the conclusion of the Crime and Disorder Bill, I was preparing to say that this was probably the last occasion on which a Scottish criminal justice Bill would come before this House. The curtailment of the debate that the Bill do now pass prevented me, fortuitously, from making such an unfounded claim.

The Bill before us tonight proposes the retrospective amendment of the 1975 and 1995 Criminal Procedure (Scotland) Acts. The usual knee-jerk reaction from an Opposition Bench would be to resist such retrospective legislation. However, examination of the Bill, and its context, proves that not to enact the legislation would be very detrimental to the criminal justice system, and to common sense.

The Bill proposes to close a loophole only recently discovered by what the Daily Record calls a, sharp lawyer at Glasgow Sheriff Court". The so-called Milligan ruling made on 12th March by three Appeal Court judges, headed by Lord Cullen, has become a technical and procedural loophole. There is no substantive point of law involved. Intermediate diets exist to prevent timewasting in trials and unnecessary inconvenience to jurors and, indeed, to inquire into the progress being made by both parties in their preparation for the trial. The Milligan ruling identified an administrative shortcoming of no real substance. There is every good reason to support the Bill.

One of the Clackmannanshire local papers—I knew that I would get this in somehow—the Wee County News, reported last week that three convicted persons at Alloa Sheriff Court escaped sentence because of the loophole. The newspaper report was complaining about that. I am satisfied that this remedy should come into being, and soon.

10 p.m.

Lord McCluskey

My Lords, I regret very much the necessity for this Bill but I acknowledge and agree that it is absolutely essential in order to remedy an innocent administrative anomaly which has only now come to light after some 16 or more years.

As the noble and learned Lord, Lord Mackay of Drumadoon, remarked, the introduction of intermediate diets proved of some benefit in Scotland. Indeed, it is because of the perceived benefits that prosecutors, defence agents and sheriff clerks—under the supervision of sheriffs—began to use them more widely. Unfortunately, nobody noticed until recently that Parliament had framed the relevant legislation in such terms that, ordinarily, only one intermediate diet was allowed before the trial diet. The legislation was fairly complicated and its limitations were not noticed by practitioners, including prosecutors, by sheriffs or indeed by academic commentators until the latter part of 1997.

Then, in the case already mentioned of Mackay v. Ruxton, which came before the High Court in November, the Crown—I want to emphasise this—argued that there could not be a statutory intermediate diet at or after the trial diet. So the problem came to light when the Crown argued that intermediate diets could no longer be used in the way they had been used for the past 16 years. It followed that if an intermediate diet took place after the trial diet, it was an incompetent diet. It therefore followed automatically that any proceedings at an incompetent diet were a mere nullity. That was pointed out by Sheriff Gordon not just in March but when he published his commentary on the case of Mackay earlier in 1998. So the problem was manifest quite a wee while before the middle of March 1998.

The court accepted the Crown's argument in the case of Mackay v. Ruxton, and rightly so. The Crown did not suggest then or later that that case had been wrongly decided—in fact, in a later case, it was expressly accepted that it had been correctly decided—and just two weeks ago, in a case in which I was sitting, the Crown declined an opportunity to have the decision in Mackay and the decision in Milligan reconsidered by a larger court. It is thus abundantly clear that no criticism can be directed at the High Court or at the judges who took the decision which has led to this situation.

Despite this history, which is known to all of us who have been involved in the matter, the press in Scotland, displaying its customary hindsight wisdom, denounced both the judges and the law itself in terms calculated to bring both into disrepute. Typical of this low level of journalism was the headline in the Daily Record: Judge gives thugs jail pass", and the claim that Lord Cullen had, sparked the crisis…when he ruled that an accused should not face more than one court hearing between his first appearance and trial". Then, disgracefully, under a picture of the right honourable Lord Cullen, the Lord Justice Clerk, in bold type, there appeared the words "Cullen Stink". It was a disgraceful example of gutter journalism. It was neither accurate, nor fair, nor responsible. It personalised, trivialised and distorted the issue. In point of fact, the decision, which was correct, was not a decision taken by Lord Cullen but a decision of a High Court bench consisting of three judges. Lord Cullen simply wrote the single judgment of the whole court. He did not express any view about what should happen. He simply made it clear, and rightly so, what Parliament had said could or could not happen.

The leader in the same issue of the newspaper concluded: No wonder they say the law's an ass". The Record is the most widely read newspaper in Scotland. It owes a duty to those who buy it to tell the truth about serious issues. In this case it abandoned that responsibility in order to sensationalise its news coverage and sell more copies. I regret to say that many other newspapers followed suit. I do beg the press in Scotland to show some responsibility in reporting the decisions of the courts. In too many instances it fails lamentably.

I want to mention one other lesson that ought to be learned. There are far too many postponements in summary criminal trials. There are numerous different reasons why cases are not proceeded with on the date set down for trial. Many of the excuses, which are acceptable now, would not have been acceptable, or accepted, before the reforms which began to be introduced in and after 1980. The result is that many accused persons appear six, 10 or even 20 or more times before a sheriff before their cases are finally disposed of. The cost to the Legal Aid Fund is absolutely enormous. Much of that cost would be quite unnecessary if we simplified the system by ruthlessly cutting down on the number of diets that are held. We could save a great deal of money and bring cases to a much speedier conclusion.

This is a matter which I hope the noble and learned Lord the Lord Advocate will take note of. It is a matter which could benefit from an expert study by a committee of senior and able sheriffs, of whom there are many; sheriff clerks and defence lawyers, assisted by the police, who have a great interest in this matter as well, and by representatives of the Procurator-Fiscal Service. Such a committee must not be dominated, or even led, by the Crown Office. I say that because many of the problems arise within the Procurator-Fiscal Service and within the Crown Office. Much recent experience has shown that these institutions are not very good at seeing their own faults and thus finding effective remedies for the problems that lie within their spheres of responsibility.

I hope that this Bill works. Unfortunately, unlike the noble and learned Lord, Lord Mackay of Drumadoon, I did not see it until very recently. I expect that it will work. I hope that the Lord Advocate's Department and the Scottish Office will learn the right lessons from this unfortunate episode.

10.6 p.m.

Lord Hardie

My Lords, this has been a short but important debate. Before briefly responding to the points that have been made, I should like to thank the noble and learned Lord, Lord Mackay of Drumadoon, and the noble Earl for the constructive approach which they, representing their respective parties, have adopted and for their agreement to facilitate the speedy passage of the Bill. I am also grateful to the noble and learned Lord, Lord McCluskey, for his invaluable contribution. I wish to reassure the noble and learned Lord that I had anticipated the question about the number of diets in summary procedures even before this difficulty arose.

It is a specific topic which the Criminal Justice Forum is looking at as regards the question of efficiency of procedure. It is hoped that a sub-committee of the forum, which has been addressing the issue for some time, will be in a position to report to the forum at its next meeting in June. As the noble and learned Lord will be aware, the forum has representatives from the defence, the police, the sheriffs, the Procurator-Fiscal Service, social workers and others involved in the system.

I would also like to associate myself with the comments and disapproval in the strongest terms of the reporting by the popular press of this matter. I assure the noble and learned Lord, Lord McCluskey, and other senators of the College of Justice that it is certainly not the position of the Crown that the court, or anyone else for that matter, is to blame. As the noble and learned Lord observed, the issue first arose in November when the Crown argued in response to an appeal by a convicted person. It flowed from that. As I hope I made clear in my initial statement, the Crown, through me, took immediate action as soon as the case of Mackay was reported. It was realised that serious implications arose from that decision. As the noble and learned Lord indicated, the decision in Mackay and Milligan was accepted by the Crown as correct. I believe that everyone accepts that it was a correct decision. It is perhaps unfortunate that it took so long for that correct interpretation of the legislation to become apparent.

I do not believe that I need address the issue of retrospection. It has been dealt with by noble Lords opposite. It is common ground that there is clear need for this legislation to correct a procedural irregularity that would otherwise cause considerable public disquiet, continuing disruption to the criminal justice system in Scotland and injustice in a very real sense. I commend the Bill to the House.

On Question, Bill read a second time; Committee negatived.

Then, Standing Order No. 44 having been dispensed with (pursuant to Resolution of 6th April), Bill read a third time and passed.