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Lord Macaulay of Bragar: My Lords, I understand that there is one representative from the Faculty of Advocates, but in terms of practising criminal lawyers, I do not believe that Derek Emslie would put himself into that category at the moment. If I remember correctly, he is an Advocate Depute. But there is no input from the practising lawyers, particularly practising criminal lawyers in Edinburgh, who deal with the appeal procedures. I ask the Minister to take that into account and perhaps consider expanding the committee without making it too unwieldy in order to bring in the practitioners who have to deal not only with the appeals but with the clients involved in the appeals. It is all very well taking evidence from these groups, but what is needed is people to consider the evidence.
In closing, I welcome what the Minister has said--that we are to have a consolidating Bill for criminal law in Scotland--because since the mid-1970s, with all the necessary developments in the law as time has gone by, the practise of criminal law has become a nightmare in trying to find what the actual statutory law is. I look forward to the later stages of this Bill, which I consider should be free from petty party politics. I hope that everyone who takes part in the Committee and Report stages will bear that in mind. We do not approach it from a political point of view and I hope that no one else in your Lordships' House will do so because what matters are the interests of justice, the interests of the individual and the benefit of society.
The Earl of Mar and Kellie: My Lords, we have before us today a Bill which goes some way towards meeting the needs of the criminal justice system in Scotland. Some of the measures contained in the Bill
Noble Lords will be aware that I worked for many years in the criminal justice system on the social work side, supervising probation orders, community service orders and aftercare licences. I was also a prison social worker and worked most recently on an intensive probation project.
From that point of view, I am happy with the stiffening of penalties for contravention of the Bail Act, with two provisos. First, I am not happy about those who are released on bail at the sheriff court as regards whether they are adequately briefed on the conditions of bail. My observations are that the priority of court staff at that time is to secure a signature on the bail release form. Discussing bail conditions with offenders has shown me that they have little or no knowledge of what is involved despite in some cases being bailed several times in the past. A review of the court procedures in that instance is needed.
Secondly, I wonder whether the new aggravated bail contravention sentence is compatible with the presumption of innocence. Release on bail after a remand can have a destabilising effect on offenders leading to desperate behaviour and naive feelings of "what does it matter?". Of course it does to a victim, but an offender may not see it that way clearly. Bail information and accommodation projects, as run by the Scottish Association for the Care and Resettlement of Offenders, can be helpful in this instance.
The proposed arrangements for jury service should achieve a reduction in hassle and frustration for potential jurors. It also makes it more difficult to avoid jury service by means of the re-citing of excused jurors within one year. We welcome the decision to keep the number of jurors at 15 and to retain the not proven verdict.
There are measures to improve the pre-trial procedures which may prove to be efficient. The mandatory first diet and intermediate diet will reduce the frustration currently felt by jurors and witnesses at the adjournment of trials. I am concerned that Clause 10 will cause difficulties for accused persons not legally represented who may not give a considered answer and subsequently find themselves in greater difficulty than appropriate, for few of these people are well versed in the law.
The measures on uncontroversial evidence seem to be helpful in speeding up trials. However, Clause 18 sounds unfair for it provides information to the jury that I, if a juror, would not wish to know. Meanwhile, Clause 22 seeks to protect the victim from the most pernicious line of questioning in the court system.
The changes proposed for the trial are significant to this debate. Clause 25 allows for the removal from the dock of an accused who is misbehaving. Perhaps this may be a reaction to the evidence which is being led against the accused. Without his or her presence and reactions, how will the jury be able to reach a satisfactory opinion? Clause 26 opens a potential can of worms. It seems to me that a situation may occur when
After conviction, Clause 27 formalises the concept of sentence discounting. This may help to bring a speedier close to a trial in which the defence is faltering; but will that lead to circumstances where the accused, although innocent, will end up pleading guilty? In Clause 28 there seems to be a move towards a sentencing policy. Does that not put in jeopardy the independence of the bench? On the other hand, it would avoid vast differences in sentencing. An extreme and possibly ludicrous case I encountered 25 years ago was at Polmont Borstal. Three boys from relatively crime-free Stornoway were given Borstal training for the theft of paint--a charge that might not have come to court in Glasgow. The novel solution to that case of considerable disparity and of penal contamination, was that they were put in the care of a Gaelic-speaking officer and liberated as soon as permitted.
Clause 29 broadens the scope of supervised attendance orders, especially for 16 and 17 year-old fine defaulters. Given that this group is wrongly disqualified from benefit fines do seem inappropriate for unemployed teenagers. As long as the supervised attendance centres have a programme which will begin to meet the needs of the offender, that would be a good move. To do so, the centre's programme must include discussion groups about offending behaviour, the effect of crime on victims, the use of leisure, entry to the workplace and the resolution of personal and housing problems. The extension of supervised attendance orders to 100 hours is appropriate when set against this list of appropriate tasks for supervised attendance order clients.
Clauses 30 and 31 enhance the role of social work in the criminal justice system, but will the funding be there? Clause 33 brings treatment by a psychologist into the world of probation conditions. Clause 34 aims to stiffen the penalties for offences committed at community service locations. I recall two incidents at the Inverness community service depot. On the first occasion, a supply of paint was stolen and, on another occasion, a set of joinery tools was stolen--albeit that the latter was recovered.
There is good news about the treatment of those accused who suffer mental disorder. They could now be dealt with by either hospital order, restriction order, guardianship, or supervision and treatment orders after an examination of the facts. I hope that the resources will be made available to allow those orders to be implemented.
Clause 49 tidies up the anomalous situation regarding detention before charges are preferred, so that the total period of detention will be restricted to six hours. That is quite long enough for young and inexperienced offenders.
The proposal in Clause 50 which permits all statutory offences to be tried in the district court raises the question of whether we would see cases being remitted to the sheriff court for higher penalties.
The unspecified extension of the range of fiscal fines has some merit although there is a question about whether the exemption of a fiscal fine from a person's schedule of previous convictions will be suitable in every case as the range of offences dealt with in that way widens.
An increased range of social work activities are being brought forward on to the statute book at Clause 54 and therefore into the framework of 100 per cent. funding by the Scottish Office. They include the provision of social background reports to children's hearings for 16 and 17 year-olds to the procurator fiscal and the Lord Advocate, as well as supervision of the mentally disordered on supervision and treatment orders, the supervision of 16 and 17 year-olds on a supervision requirement under Clause 44 (1) (a) and (b) from a children's hearing with appropriate funding, and diversion from prosecution schemes. In Motherwell and Aberdeen reparation and mediation schemes are currently being run by the Scottish Association for the Care and Resettlement of Offenders after pilot projects in Edinburgh and Glasgow, the funding of which unfortunately ran out.
Part II deals with the proposals to extend confiscation, forfeiture and the accompanying restraint orders. All deal with money laundering and other proceeds of crime. I do not propose to speak at length about that, except to make two points. My first point is that while there is a good moral case for the confiscation of the means of crime and the forfeiture of its proceeds, it will all depend on the diligence of the procurator fiscal, the co-operation of the accused and convicted, and the persistence of the administrator. I wonder whether the expanded profession of administrator may prove more expensive to the court system than the amount recovered.
My second point is that confiscation and forfeiture are by no means a new idea in Scotland. There is a fine, if costly, history to that. The commissioners for the forfeited estates played a significant part in Scottish history visiting, among others, the Earldom of Mar in 1716. After pushing the Union through the Scottish Parliament, former Principal Secretary Mar rebelled against it, a view not lacking in support today. Ah well, the prison social worker in me cannot resist trying to rehabilitate the sixth Earl!
I wish to mention on a personal basis two aspects of the criminal justice system which ought to be in the Bill but which are not, yet. First, I had hoped that there would be a mandatory requirement on all Scottish prison service establishments to make available to prisoners, on a voluntary basis, a course to enable them to discuss their offending behaviour and other post-release issues. I have always been surprised that until recently such a fundamental subject has been a virtual taboo in prisons.
Secondly, I wish to complain that there is very little in the Bill which addresses the needs of the victims of crime. Urgent attention is required to be given to victim issues. Ought it not to be the norm, for example, that
To conclude, the Bill tinkers with the criminal justice system to improve it, but I regret that crime will remain at an unacceptable level. Does the engine of the criminal justice system require fine tuning or replacement?
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