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Lord Fraser of Carmyllie moved Amendment No. 139:

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Page 45, line 35, after ("(1)") insert ("—(a)").

The noble and learned Lord said: In moving the amendment, I shall speak also to Amendments Nos. 140 and 141. Their purpose and effect is to make it clear that appeals in cases involving insanity are excluded from the provisions of Section 25 of the Legal Aid (Scotland) Act 1986. Criminal legal aid in appeals involving insanity will therefore be automatic, as provided by Clause 52 of the Bill. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 140 and 141:


Page 45, line 36, at end insert ("; and
(b) at the end there shall be inserted the words "other than an appeal in relation to which section 22(1) (dc) of this Act applies.").
Page 46, line 1, leave out ("subject to section 22(1) (dc) of this Act,").

On Question, amendments agreed to.

On Question, Whether Clause 53, as amended, shall stand part of the Bill?

Lord Monkswell: The noble and learned Lord, Lord McCluskey, signified his intent to oppose the Question that the clause shall stand part of the Bill. Unfortunately, he is unable to be present at the moment and has asked me to convey his apologies to the Committee for his absence. He has also asked me to advise the Committee that, on the basis that the subject was spoken to in the debate on Clause 35, he no longer wished to oppose the Question.

Clause 53, as amended, agreed to.

Clause 54 [Supervision and care of persons diverted from prosecution or subject to supervision requirement etc.]:

[Amendment No. 142 not moved.]

Clause 54 agreed to.

Clause 55 agreed to.

Lord Fraser of Carmyllie moved Amendment No. 143:


After Clause 55, insert the following new clause—

("Liability of bankrupt to pay fines and compensation orders.1985 c. 66

. In section 55(2) of the Bankruptcy (Scotland) Act 1985 (effect of discharge of bankrupt on certain liabilities), after paragraph (a) there shall be inserted the following paragraphs—
"(aa) any liability to pay a fine imposed in a district court;
(ab) any liability under a compensation order within the meaning of section 58 of the Criminal Justice (Scotland) Act 1980;".").

The noble and learned Lord said: The Bankruptcy (Scotland) Act 1985 provides for the discharge of certain liabilities at the expiry of a period of three years. However, specific exemption is made in respect of fines and other moneys due to the Crown.

We consider that the same principle ought to apply to any fine imposed in the district court and to any compensation order which may be made by any court under Section 58 of the Criminal Justice (Scotland) Act 1987. In particular, I believe that it is important to provide that, where a compensation order is made in respect of a victim, every opportunity should be taken

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to ensure the payment of such an order. It would of course remain a matter for the court to determine whether enforcement or non-payment of any fine or compensation order should be pursued and the court would no doubt wish to take into account the effect and timing of the bankruptcy proceedings. I beg to move.

On Question, amendment agreed to.

Clause 56 agreed to.

Lord Macaulay of Bragar moved Amendment No. 144:


After Clause 56, insert the following new clause:

("Disclosure of office statistics

. It shall be the duty of the Crown Office to make public, on an annual basis, statistics which properly disclose its performance during the past year. In particular, the statistics shall apply to—
(a) the annual spending of each of the offices of the Procurators Fiscal and a classification of amounts into that spent on staffing, on administration and on other expenses which shall be further defined;
(b) the average number of cases prosecuted in each office of the Procurators Fiscal along with the number of prosecutors in each office;
(c) the average preparation time given to prosecutors for crimes and offences on a categorised basis;
(d) the number of times cases fail to proceed because the Procurators Fiscal Service has failed to cite:
—the accused
—the witnesses; and
(e) the number of times the prosecutor has requested a postponement of the case, giving the figures for each jurisdiction and the reasons for the request.").

The noble Lord said: As the Committee will see from the side note, the purpose of the amendment is to oblige the Crown Office to make public certain statistics on an annual basis so that the performance of the Procurators Fiscal Service in particular can be gauged on proper and accurate information.

Various requirements are set out in subsections (a) to (e). Despite its wording, the amendment is not intended to be critical of the Procurators Fiscal Service, which performs a very valuable function within the community in Scotland. Its purpose is to get into the public domain more information so that the service is not seen to be operating in a form of secrecy.

An annual report is published by the Crown Office. That is a very nice brochure with pictures, and so on, which is very interesting but it does not provide the information on which one can gauge the cost-effectiveness of the Procurators Fiscal Service.

As I understand it, and I have seen it in operation, the Procurators Fiscal Office is under-staffed and under-funded. I have spoken to advocates depute who perform in the High Court in Scotland. Sometimes they even deal with murder trials. The tradition and, indeed, the requirement of some judges was that an advocate depute should not appear in the High Court unless he was instructed by a member of the Procurators Fiscal Service. Now in the High Court the advocate depute is lucky if he sees a procurator fiscal in the course of a trial. The advocate depute is left to sink or swim in the court. Sometimes he is assisted by an unqualified precognition clerk to whom he must turn for advice. That is a very unsatisfactory situation.

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It is extremely alarming if that reflects what is happening in the fiscal service under the system of administration of justice in Scotland because it is important that skilled people should be operating in the court context. It is not good for the system to have an overworked staff working under continuous pressure. If any Member of the Committee happens to walk into a busy sheriff court in Glasgow, he may well see a young fiscal walking along with a pile of papers. I do not know how long the fiscals now have to read their papers, but at one time it was not unknown to be handed the papers at quarter-past nine and to be expected to be in command of all the papers and deal with solicitors at a moment's notice by 10 o'clock; otherwise one ran the risk of incurring the wrath of an irascible sheriff, who no doubt had had a comfortable night and had read no papers, apart from the Herald or the Scotsman on the way to court.

It is unfair that young people in the fiscal service should be subjected to such pressure. Indeed, the indications are that good quality lawyers are not prepared to stay in the fiscal service and are moving back into private practice because they are not prepared to tolerate the unfair burden which society imposes upon them in relation to the administration of justice and the protection of us all.

This amendment, as I say, is tabled on a broad basis to put a duty on the Crown Office to give the public more information about what is happening in the system so that the public can look at their service. After all, the public are paying for the service. It is not as if the noble and learned Lords the Lord Advocate and the Minister of State were paying for it out of their own pockets. The taxpayer pays for the service and the taxpayer is entitled to full information and full disclosure of the cost-effectiveness or non-cost-effectiveness of the service. It is for that purpose—and it is no criticism whatever of anyone—that the amendment is tabled. If the criminal justice system in the prosecuting sense is being overwhelmed and overtaken by events to the extent that justice is being adversely affected, that is serious, but no one can judge that unless he has material with which to examine what is happening. I beg to move.

Lord Rodger of Earlsferry: As the noble Lord, Lord Macaulay, has acknowledged, the Crown Office publishes an annual report and that is part of the Government's initiative under the justice charter. Although it is an attractively produced brochure it also contains a great deal of statistical information. I am keen that it should do so, partly in order that MPs and others who are interested in this matter should be provided with information. My experience is that despite the fact that we provide the information in an attractive form, quite a few of them do not seem to read and digest it because I am often asked questions the answers to which are there.

Much was said by the noble Lord about expenditure on the procurator fiscal service. In real terms in the past 10 years or so there has been an increase of about £24 million on expenditure on the procurator fiscal service. Of course I accept that the position is not exactly as it always has been in that service. It is the case that

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nowadays advocates depute often have the assistance of precognition officers. I would not accept, as seemed to be suggested by the noble Lord, that these are not skilled people. They are not lawyers but they are certainly people who are skilled in what they have to do and they are often in a good position, because of their knowledge of the case, to assist the advocates depute with the prosecution.

In my position I have occasion quite often to attend people's retirement celebrations. I can tell the noble Lord that those who retire now and who must have been in office as procurators fiscal in the time when the party which he supports was in power, often recount tales of going into court with only a short time to prepare their cases. I think that has often been the hallmark of the service over many years. In part that is the nature of these matters because, as the noble Lord knows, cases come up quickly, especially custody matters and other such cases.

That having been said, we are, of course, always concerned to provide information. We do that when we are called upon to do so. We are constantly striving to improve the quality of our statistics. We are greatly assisted in doing so now by increased computerisation. We use them not only so that the public, when they request that information, may see it, but also—this is also important—so that those who are running the procurator fiscal service may spot, for example, where there are particular pressures or where some office is performing differently from another office and whether one should therefore inquire why that may be so. If I may use the jargon, they are useful management tools. We shall continue to gather statistics where appropriate and provide such information as we are gathering when requested to do so.


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