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Lord Renton: My Lords, it is with great reluctance that I raise this point because I have a high regard, as have all your Lordships, for the noble Lord, Lord Thomson of Monifieth. It may be that in this Session nothing can now be done about the situation if the Motion is passed.
The Chairman of Committees: My Lords, I am not sure that the points made by my noble friend have a bearing on the duties to be carried out by those noble Lords who will serve on the committee if the Motion is passed this afternoon. But I can assure my noble friend that the customary consultations took place before the recommendations were placed before your Lordships' House. First, such consultations are matters for the usual channels. Secondly, recommendations are a matter for the Committee of Selection. Finally, it is a matter for your Lordships' House. Your Lordships have heard what the noble Lord has said. If noble Lords feel that, on reflection, those are matters that ought to be taken into account, they can be taken into account in the future.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that some of us were very surprised and sorry that the name of the Member of your Lordships' House with most experience of broadcasting, my noble friend Lord Orr-Ewing, does not appear on the list?
The Chairman of Committees: My Lords, if I may say so with respect, a number of Members of your Lordships' House would be well qualified to serve on this and other committees of the House. I am sure that that suggestion will be borne in mind in the future, as no doubt will all other suggestions, which are most welcome.
Lord Aberdare: My Lords, am I not right that the functions of the committee are purely to oversee the broadcasting of proceedings of the House? They have nothing to do with the broader implications of the world of broadcasting in general and the differences between the BBC and commercial television. For that purpose, I consider that the noble Lord, Lord Thomson of Monifieth, will be a most admirable chairman.
The Chairman of Committees: My Lords, I am grateful for the contribution of the noble Lord, Lord Aberdare. I do not wish to take up your Lordships' time unnecessarily this afternoon, but in support of what he said perhaps I may refer to page 174 of the Companion to the Standing Orders. It gives the terms of reference of the Broadcasting Select Committee and states:
hen there is a further passage. It was with that thought in mind that I made my first response to the noble Lord who raised the matter. The points which he raised do not have a direct bearing on consideration of the working of this committee of your Lordships' House. I commend the Motion to your Lordships.
The Bill has two main objectives. The first is to enhance the effectiveness of our criminal justice system by strengthening the powers of the criminal justice agencies in the fight against crime. The second is to improve its efficiency and its capacity to deal with those who break the law.
This Bill is the result of the most substantial overhaul of the criminal justice system in Scotland in the last 15 years. I emphasise the word "overhaul", as we are not seeking to destroy the fabric of the system, and put something completely new in its place. We are building on strong foundations which have essentially stood the test of time. Over the past two years we have taken an intense look at how the system is operating, identified specific problems and points at which it is not running smoothly, and formulated proposals to make it work better.
We have been careful to take account of the views of all those with an interest in the criminal justice system in Scotland. The proposals in this Bill are the product of wide and detailed consultation: seven consultation papers, five research studies, a White Paper and a report from the Scottish Law Commission. I cannot recollect in past years any proposal for legislation for Scotland which has been subjected to that intense degree of consultation other than the Children (Scotland) Bill published last week.
The responses to the consultations suggest to me that we have found the right approach to reform. The great majority of our proposals were supported. And where our original proposals met with reasoned opposition they were reconsidered, and discarded or adjusted.
My belief that we have found the right approach was reinforced only two weeks ago with publication of the Labour Party paper Protection and Justice, which bore in many respects a remarkable resemblance to the ideas in our consultation papers and the White Paper. That confirmed for me that there is no significant area of our Scottish criminal justice system which we have failed to explore. There are just two particular measures which are not included in the Bill, for different reasons.
Our consultation paper Juries and Verdicts recounted the history and development of our system of three verdicts, and considered as impartially and objectively as it could the case for and against retention of this system. We considered very carefully the responses received and concluded that the arguments for retention of the size of the existing jury, the present majority verdict and the historic three verdicts were more compelling than those against.
Most emphatically we were of the view that the verdict of not proven should not be considered in isolation from those and other distinct features of our system. We do not then propose to interfere with any of them.
A second matter, about which there has been considerable public debate in the last year, is that of the case for change to the criteria applied by the Appeal Court in its consideration of criminal appeals, and for new machinery for considering alleged miscarriages of justice. The care of our analysis, in the paper Sentencing and Appeals, of the difficulties of these issues has been applauded in Scotland but many of those consulted felt that these difficult issues required yet further detailed analysis.
We have now responded to that view: my right honourable friend the Secretary of State for Scotland has appointed an independent expert committee under the chairmanship of Professor Stewart Sutherland, the new Principal of Edinburgh University. The committee has been asked to report no later than the summer of 1996. Professor Sutherland has made it clear that he intends to complete the committee's work as quickly as possible, and I am grateful to him for that undertaking but I do not underestimate the complexity of the task. It is far too important a matter to be decided precipitately.
The Bill opens with provisions designed to crack down on the abuse of bail. Clauses 1 to 5 are designed generally to tighten up on the use of bail, to ensure that the public is protected and to make it clear that abuses will be dealt with firmly. For certain serious offences where the accused already has a conviction for such an offence, bail will not be an option. The Bill also provides the courts with powers to increase the sentence for an offence which is committed while the offender is on bail. Up to six months' imprisonment or a fine of £1,000 may be added to a sentence for such bail abuse. Those are tough measures. But the Government consider them wholly justified. The court must take into account not only the interests of justice but the protection of the public. Breach of the court's trust is a serious matter. The measures show the seriousness with which abuse of that trust could be treated.
New technology has provided the police with many additions to their armoury. Most recently DNA analysis is being developed as an effective test in the investigation of certain crimes. To improve further the effectiveness of DNA techniques in the detection of crime, Clause 48 proposes extension of the range of samples which may be taken without warrant in a criminal investigation. The Bill specifies the circumstances in which samples and prints may be checked against those held in police records. It also includes essential safeguards on the uses of samples.
There has been considerable public debate in Scotland about our proposal to extend the use of fiscal fines, particularly in relation to minor drugs offences. Use of fiscal fines has proved effective in keeping a range of minor offences out of our courts. We propose in Clause 50 to extend the range of offences for which a fiscal fine could be offered to all offences triable summarily. I emphasise the words "could be offered". The discretion will remain with the public prosecutor as to whether or not it is in the public interest to prosecute. No offence would be decriminalised. We are simply proposing that the range of alternatives open to the prosecutor should be widened.
Clause 51 provides for a sliding scale of fiscal fines which would allow the procurator fiscal to offer a fine fitted to a greater range of circumstances than at present. It will come as no surprise to noble Lords to learn that my noble and learned friend the Lord Advocate intends to issue guidelines to procurators fiscal on the use of the extended system of fiscal fines.
As regards confiscation and forfeiture, the Government have been in the forefront of measures to deprive offenders of the profits of crime and property used in crime. The Criminal Justice (Scotland) Act 1987 introduced confiscation of the proceeds of drug trafficking in Scotland and the Criminal Justice (International Co-operation) Act 1990, which was UK in extent, implemented the Vienna Convention. The provisions in Part II of the Bill will give the Scottish courts powers to confiscate the proceeds of serious crime and enable the United Kingdom to withdraw its
The legislation proposed in Part II is lengthy and necessarily complex and I do not wish to detain your Lordships now by going into it in detail. But clearly, with the recent publication of the Scottish Law Commission report, we have had to move quickly and we may wish to propose some amendments to it.
In addition to the proposals I have already outlined as being intended to assist the system in dealing effectively with offenders, the Bill proposes a number of initiatives aimed at fitting the punishment to the crime and the circumstances of the offender.
The supervised attendance order would in certain circumstances replace imprisonment for fine default up to level 2 on the standard scale. The provisions would also enable the courts to use supervised attendance orders in place of fines for 16 to 17 year-olds, and would replace imprisonment for fine default for this age group. However, many responses to our consultation paper emphasised the value of the sanction of imprisonment in encouraging the payment of fines and expressed concerns about the risk of increased non-payment if the sanction was removed entirely. The Bill therefore provides for flexibility in permitting certain of these new arrangements to be introduced gradually at local level.
Major strides have been made in recent years to develop and reinforce community based penalties generally. Clauses 30 to 35 seek further to improve the effectiveness, enforceability, targeting, and credibility of these measures. This includes provision to reinforce public protection where there is abuse of trust while undertaking unpaid work as a condition of probation or on a community service order.
The Bill also--in Clause 55--empowers my right honourable friend the Secretary of State to extend the scope of 100 per cent. funding of social work criminal justice services to bring in diversion from prosecution and certain services to the children's hearings in respect of young offenders falling in the age group of 16 and 17. Pilot work still needs to be done but the provisions confirm the Government's continuing commitment to this vital area of criminal justice.
I turn now to the procedural reforms in the Bill. Many of these provisions are designed to streamline the criminal justice process, to speed it up and to reduce as far as possible both inconvenience and waste.
Recent experience in summary cases has shown that the holding of what we describe as an intermediate diet, ahead of the trial diet, at which the judge can assess the state of preparation of the prosecution and defence
Sheriffs have reacted very positively to the use of intermediate diets in those areas where they currently operate, and I pay tribute to the groups under sheriffs principal Nicholson and Cox in promoting the use of intermediate diets under existing statute.
We have decided as a result of the consultations to build on the existing statutory framework. The provisions contained in Clauses 12 and 13 introduce mandatory first diets in solemn proceedings in the sheriff court and mandatory intermediate diets in summary proceedings.
As part of our proposals, the prosecution and the defence will be required to identify matters which may be capable of agreement and take all reasonable steps to agree those matters before the trial. We believe all this will have a significant and positive impact on the conduct of court business. Not least it will mean that many thousands of police and civilian witnesses (many of the latter group will also have been victims) will be spared unnecessary attendance at court.
Allied to these provisions are provisions in Clauses 14 to 23 designed to simplify the agreement of evidence where it is undisputed or uncontroversial. In addition to putting emphasis on agreeing evidence in advance, we propose that procedures should be simplified by enabling certain types of evidence to be given by means of certificate. These proposals take account of the changing nature of the evidence which is now coming before the courts as a result of new forensic techniques and the nature of modern crime. Again they should also reduce the burden on the number of witnesses actually required to attend court to give evidence.
We also considered whether anything could be done to improve the experience of the criminal justice system by those who were asked to act as jurors, building on the principles already set out in the Justice Charter.
Jury service is an extremely important duty. We believe that we must do all we can to obtain juries which are representative of society as a whole. In Clauses 6 to 8 we propose the abolition of peremptory challenge of jurors; that jurors' occupations should no longer be listed in jury lists; that jurors excused service for any reason should be recalled within a year; and that persons on bail should be disqualified from jury service.
I now turn to the matter that has caused some concern; namely, the right to silence. In the White Paper published in June this year, the Government undertook to consult on whether any changes should be made to the judicial examination procedure and related matters, including the right to silence. After consideration of the comments we received, we have reached the conclusion that only very limited changes to the law are necessary. Our proposals are contained in Clauses 10 and 26 of the Bill.
We do not propose any change in the law on the right of the accused to remain silent under police questioning early in an investigation. Clause 10 proposes, however, strengthening the procedures for judicial examination by ensuring that the prosecutor can put to the accused
At trial, the approach of the court is determined by the common law of Scotland and the court may comment on an accused's failure to give evidence. We have concluded that a statutory provision to restate the law on silence at trial in Scotland is not necessary but we propose, as recommended by the Thomson Committee and a majority of those who responded to our consultation paper, to remove the statutory prohibition on the prosecutor from commenting on an accused's silence at the trial.
We consider it wholly appropriate that the prosecution, when addressing the jury should be able to comment on a matter on which the court may comment and which the jury may take into account in reaching its verdict.
I now pass to two important provisions on sentencing. The provisions contained in Clause 27 would empower a court, in determining the sentence, to pass on an offender who has pled guilty, to take into account when and in what circumstances the offender made that plea. This provision would make it quite clear that it is appropriate for the courts in Scotland to do that.
Apparent inconsistency in sentencing is also a frequent public criticism. Clause 28 provides expressly for the Appeal Court to issue opinions on sentencing matters which go beyond the particular case before it and would require the lower courts to have regard to those opinions in their own sentencing decisions. Our proposals also include significant changes to the procedures for dealing with criminal appeals. The number of appeals coming before the Appeal Court has nearly trebled in the past 10 years. That clearly is putting our system under considerable strain.
Clauses 35 and 36 propose two significant new measures designed to assist the High Court in their consideration of criminal appeals. First, there would be a new requirement for leave to appeal. A single judge would decide on the basis of papers whether there were arguable grounds to allow the appeal to proceed and would seek to filter out clearly unmeritorious or frivolous appeals. The appellant would, however, have the right to continue his application for leave to appeal to the High Court, if it were rejected by the single judge.
Secondly, in appeals against sentence or other disposals alone the quorum of the High Court would be reduced from three to two judges. The quorum of three judges would be retained, however, for appeals against conviction.
I believe that these reforms will help the Appeal Court to cope with the substantial and increasing workload and allow it to concentrate its resources on those appeals which raise issues of greatest importance.
Passing to Clauses 39 to 47, they respond to criticisms that have been made of the procedures for dealing with accused persons who are insane and cannot therefore stand trial, and persons acquitted on grounds of insanity. Under the existing procedures in Scotland, a person found unfit to stand trial must be detained in a mental
That is not justice. Under the provisions of the Bill the court would be required to undertake an examination of the facts in order to determine whether or not he did the act constituting the offence. There would be a wider range of disposals available to the courts in dealing with persons acquitted on grounds of insanity. Bet let me stress that, whenever a court considers it appropriate to impose a hospital order with restrictions to protect the public from serious harm, it may still do so.
The House may be aware that there are now a number of statutory exceptions to the general requirement in the 1975 Act in relation to the time limits within which summary prosecutions must be brought. We are considering whether it is now time to make amendment to achieve a greater consistency and we may wish to introduce amendments at a later stage.
Finally, as a further step to streamline the operation of the criminal justice system in Scotland, we hope to bring forward a consolidation of criminal procedure legislation immediately following the Bill's passage. In order to achieve that, some pre-consolidation amendments will be needed and we intend to bring those forward at a later stage.
We are fortunate in Scotland to have a criminal justice system which commands widespread public respect and confidence. We cannot be complacent, however. Times change and society's expectations change with them. The public are understandably becoming ever less tolerant of crime and criminals. They rightly expect quick and effective treatment at all stages of the criminal justice system, just as they do from other public services.