House of Commons Hansard Debates for 27 Feb 1995

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more frequently, the court case and conviction, far from marking a conclusion to the legal process, merely mark the beginning of a fresh round of procedures, which are placing an intolerable strain on court time and the court system.

For many defendants, the decision to appeal is a knee-jerk reaction to conviction. Often, little or no consideration is given to the merits of an appeal. Too many appeals seem to be motivated by a triumph of hope over expectation--the clutching at straws over reality. I welcome the proposals to allow a judge to decide on the merits of an appeal before court time is wasted. Provided that safeguards remain to ensure that deserving cases are not dismissed prematurely, surely the proposals will meet with the support of hon. Members.

There are few aspects of our legal system that inflame public opinion more than that of the so-called bail bandit--the defendant out on bail who goes on to commit further offences. Recent research suggests that 12 per cent. of those out on bail commit further offences. That is entirely unacceptable; bail is a privilege, not a right. It should be an option only when it is believed that further offending is unlikely. A breach of that trust should carry a heavy penalty. The ability to add six months' imprisonment for bail offences, in addition to any sentence imposed, is most welcome. The clauses extending the rights of Scottish courts to deprive offenders of the proceeds of their crimes follow the already strenuous efforts by the Government to ensure that law breaking is never rewarded. Both those measures send an unequivocal message to criminals that their behaviour will not be tolerated.

The recent introduction of fiscal fines to deal with minor drug offences has been widely welcomed as a constructive development to deal with the escalating drug problem. The Bill will extend the range of offences for which fiscal fines can be imposed. Some have misconstrued fiscal fines for minor drug-possession offences as turning a blind eye to wrongdoing--as almost tacitly condoning the practice. A few have even ventured the suggestion that it marks the effective legalisation of drugs. That is certainly not the case. In the same way, the offences for which fiscal fines will become available will not be regarded as lesser offences simply because the matter does not go to court.

Fiscal fines represent a reasoned and logical response to the clogged court system; they are not a green light for certain crimes and no one should consider them as such. If used sensibly, they will provide an effective tool for streamlining the court system and ensuring that a court spends its time deliberating serious and deserving cases rather than acting as a clearing house for petty offences.

However, we must never fall into the trap of the blanket use of fiscal fines. Each case must be viewed on its merits, as I believe that there will always be cases where the defendant should answer to a court. I welcome my right hon. Friend the Secretary of State's assurance that the system will allow the prosecutor to elect for a trial rather than impose a fiscal fine if he deems it appropriate. The public will warmly welcome the development of sentencing guidelines. I have no wish to highlight specific examples of when a sentence imposed by a sheriff or judge has caused anger and upset to those involved with a case, and a sense of general bewilderment, anger and

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sometimes outrage in the wider community. However, we are all familiar with such cases from the newspapers and from our mail. Understandably, the media tend to highlight isolated examples of when justice has not been seen to be done. But of course, in highlighting the bad, the media obscure the many thousands of cases each year where conviction is followed by an appropriate sentence. Yet it is the few sensational examples of, shall we say, eccentric sentencing that undermine confidence in the entire criminal justice system.

The introduction of sentencing guidelines will serve an extremely useful function in attempting to eliminate the isolated cases where the punishment has clearly not fitted the crime. Of course, we must be mindful of the fact that sentencing guidelines can act only as an aid to sentencing in Scottish courts. I believe that the House never would or should sanction the introduction of sentencing rules. The sheriff or judge must retain a degree of autonomy and some room for manoeuvre in deciding upon an appropriate sentence. Flexibility and discretion are surely one reason why the Scottish legal system is admired throughout the world. Nevertheless, guidelines will be welcomed by those who are responsible for handing down sentences and they will assist in providing uniformity in the nature of sentences between courts.

I wish to remark briefly on the proposal to allow the prosecution to comment upon a defendant's silence during a trial. As the hon. Member for Hamilton said, the right to silence has long been a source of controversy within legal circles. As the House is aware, sweeping changes to the right to silence were contained within the criminal justice Act relating to England and Wales. The fact that the proposals that are before the House today are radically different from those relating to England and Wales provides a further illustration of the distinctive nature of the criminal justice system in Scotland and the way in which the House deals with it. I again pay tribute to my right hon. Friend and to the Scottish Office for carrying out such detailed consultation on options to amend or even to abolish the right to silence. The Conservative party defends stoutly the rights of the individual. We have always emphasised the need to protect and enhance individual freedoms and rights. For that reason, a decision to erode the rights of the individual in the eyes of the law would be taken only after a great deal of careful thought and consideration. I welcome the fact that the Bill proposes to retain the individual's right to silence, but allows the prosecutor, in turn, the right to highlight a defendant's silence. I believe that that strikes a balance between the rights of the individual and the desire to ensure that a correct verdict is reached in the court.

I am sure that the changes outlined in clause 28 will satisfy the majority of people in Scotland who feel that, if people have nothing to hide, they will lose nothing by responding to questions put to them in court. As jurors are currently able to consider the silence of a defendant in arriving at a verdict, the change merely clarifies the position and may help to persuade defendants to put their side of the story on record during a trial.

In conclusion, I would like to convey to the House the views of some of my constituents. Since my election to the House in 1992, I have been surprised by the number of letters that I have received from people who are the unfortunate victims of crime. In almost every case, the

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person asks why the system always seems to be on the side of the criminal and why the victim is constantly neglected or subjected to further suffering, often through the need to testify in court. There is no doubt that the Bill continues the process of redressing the balance away from the criminal and toward the victim. We welcome the fact that, through the Bill's provisions, many victims will be saved the ordeal of testifying. Similarly, victims will be reassured that the proceeds of crime are likely to be forfeited by the guilty party and that further crimes by an accused who is out on bail simply will not be tolerated.

In short, the Bill signals the Government's determination to continue to crack down on crime and on criminals. Crime affects every constituency in Scotland as well as those throughout the United Kingdom. A crime-free society is an unattainable ideal. However, by supporting the Bill, hon. Members can play a part in putting in place measures that will further strengthen the courts' ability to deal with crime and with criminals. The people of Scotland expect and they deserve nothing less.

6.14 pm

Mr. Menzies Campbell (Fife, North-East): I am sorry that the hon. Member for Eastwood (Mr. Stewart) has left his place temporarily because I wish to tell him that, even though few hon. Members are present for the debate, I am sure that I am not the only one who was impressed by the somewhat Churchillian flourish with which he began his comments on the Criminal Justice (Scotland) Bill. It leads one to believe that, on all those self-contained and self-disciplined occasions when the hon. Gentleman stood at the Dispatch Box, he had the capacity, even the desire, to engage in rhetorical flourish. That reference to rhetorical flourish brings me inevitably to a subject about which comment has been made already in the debate--the absence of Sir Nicholas Fairbairn from our midst. According to the conventions of the House, I could not call him "my friend", but outside the House he was my friend for a very long time. Like many hon. Members, I mourn the fact that he is no longer with us to ensure, through his curious amalgamation of ridicule and intellectual rigour, that the attention of the House is focused upon the detail of a measure such as the Bill.

Those of us who sat through the debates on the Law Reform (Miscellaneous Provisions) (Scotland) Bill in the summer of 1990 will remember that as probably Sir Nicholas's finest hour--to use a Churchillian phrase--as he subjected the Minister, and indeed the whole Committee, to a full-frontal intellectual assault and, on occasion, made the Government's proposals look threadbare and second rate. It is a great pity that he will not be able to do that again on this and on other occasions.

With Sir Nicholas's passing, I believe that I am the only remaining practising member of the Faculty of Advocates in the House. Therefore, I declare an interest in the debate as the matters with which we are concerned might, on occasion, form part of the consideration of someone who is practising in the Scottish criminal courts. Any opportunity to discuss the criminal law of Scotland should be welcomed by hon. Members. I do not exempt members of my own party from what I am about to say: I think that the poverty of attendance in the Chamber is a sad reflection on the seriousness with which people regard an important issue of this kind.

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The Secretary of State began his remarks by drawing the attention of the House to some statistical information which he thought reflected well upon the Government's policies. He would do well to bear in mind the repeated warnings of Dr. Ian Oliver, the chief constable of Grampian--who has a robust reputation in such matters--that crime figures are notoriously unreliable as indicators of the true level of crime in society. The House would also do well to recall that, according to the most recently issued figures, crime in the category which includes vandalism and fireraising has risen by 5 per cent. Crimes of violence have risen by 2 per cent. and crimes in the category which includes drug offences have risen by 7 per cent. I do not think that those figures, which reflect specific areas of criminal behaviour, entitle any of us to enjoy a sense of comfort or achievement.

The Secretary of State also referred to the Bill's history. It is true that there have been consultation papers. It is a matter of judgment, but I do not believe that there is any evidence to suggest that the Bill which is now before the House has sprung from a systematic overall review of the Scottish criminal system. I particularly regret the fact that, whereas in the early 1970s, we had the benefit of a committee, the distinguished chairman of which was the late Lord Thomson, and two helpful and far- reaching reports, on this occasion we had no such assistance.

As the hon. Member for Hamilton (Mr. Robertson) said, the Bill is a clear example of legislative proposals that should be scrutinised in a domestic Parliament. When people seek to draw distinctions between Scotland and that which may be available to Northern Ireland, it is often left out of account that Scotland's domestic law system is the only one in western Europe that lacks its own legislature. This debate may emphasise that as much as anything that I can say, but it is a compelling argument for a Scottish Parliament in Edinburgh. These proceedings would also be better informed if we had taken evidence, as has been done with the Children (Scotland) Bill, from practitioners in Scotland, including the Faculty of Advocates; the Glasgow Bar Association, whose political complexion is neither here nor there; the Law Society of Scotland; the Scottish Council for Civil Liberties; the chief constables and the Police Federation. They are concerned daily with problems that we debate in abstract because, with few exceptions, we have no day-to-day experience of them--so our consideration of the Bill is necessarily flawed.

The explanatory and financial memorandum states that the Bill will be cost neutral, meaning that no additional resources will be made available. How many cases reported by the police to the procurator fiscal are marked "No pro"--that is, no proceedings--each year? Once proceedings have begun, and how many cases are dropped each year? Those statistics will give some indication of the extent to which anecdotal evidence that claims that the system is overburdened is justified.

Why are there temporary judges of the High Court of Justiciary? Why do more individuals hold commissions as temporary sheriffs than hold commissions as full-time sheriffs? The strength of the Scottish system is that it has been based on full-time, professional judges--unlike England and Wales, which use lay magistrates to far greater extent. If the Government are so committed to maintaining the Scottish legal system, why is increasing reliance placed on temporary High Court judges or

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temporary sheriffs? If commissions are justified, that can be only because work exists and judges are required to deal with it. If we embark on a system in which intermediate diets play a fuller part and judicial examination may be extended in the way proposed, that will do nothing other than impact on judicial time. It seems self- evident that if the proposals are to work, additional resources will be required.

There was extended debate in the other place about victims. After 27 years of practising law in Scotland, I have reached the view that we have not in the past dealt properly with the victims of crime. I am wholly committed to the network of victim support agencies that has developed, not least in my constituency. Victim support is a separate and distinct function, and best done through the voluntary network now in place. Victims are assisted by clear information on the nature of procedures, scheduling of cases and their outcome. It is important to remember that all prosecutions in Scotland are brought in the public interest by the Lord Advocate, with the assistance of the procurator fiscal system. Private prosecution is extremely rare in Scotland. Our system does not have any principle of self- help or anything that might be thought to impinge on revenge. Other systems do.

I am worried that suggestions of consulting victims or even juries about penalties, which had some currency in the other place, move away from our legal system's objective and public interest nature. Sentencing must be the responsibility of judges. It must not be exercised in a vacuum. There must be proper training of judges on sentencing at all levels. They must not be bound by a tariff, as some suggest, but be aware of prevailing levels. The Bill's proposals in that respect are perfectly acceptable. Sentencing must be subject also to the supervision of the High Court--which, in the determination of appeals, may find itself able to give the guidance that is necessary for judges of inferior courts.

The essential feature is that every case must be determined on its merits. We must remember that reports of court proceedings that we receive from constituents, read in newspapers, see on television or hear on radio do not always reveal the whole circumstances of the case put before the court. Sentences must be judged objectively, not by the reactions of newspapers, Members of Parliament, victims or their families.

The Bill's complexity is almost overwhelming. Some hon. Members will be familiar with the principle, "Ignorantia iuris neminem excusat"--ignorance of the law excuses no man. If you, Mr. Deputy Speaker, think that that principle is important, I suggest that you read clause 37 and then ask yourself whether you are sufficiently seized of the Government's proposals to be certain that you understand the law in Scotland on the particular matters that clause concerns. The argument for simplification or codification is overwhelming. If we are to say to people that ignorance of the law is no defence, we have an overwhelming obligation to ensure that the law is readily understood, and not just by lawyers.

The Bill is welcome for attempting to create a more efficient system of justice. The provisions to obtain agreement on non-contentious evidence are entirely laudable, and the intermediate diet procedure seems a sensible extension of a principle that has been in operation in other parts of the system. The Bill seeks to amend bail

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provisions, and that justifies further discussion in Committee. I may have views about certain details of those proposals. To the extent that the Bill implements proposals of the Scottish Law Commission on confiscation and forfeiture, that, too, is welcome. The hon. Member for Hamilton prayed in aid two authorities to support his views on the not proven verdict. The first was Sir Walter Scott. Anyone who read reviews of the most recent biography of Sir Walter, some of which were to be found in the weekend newspapers, may take the view for the moment that Sir Walter is not an authority on which one could place much reliance. In any event, as so much of that which is written about Sir Walter is apocryphal, it is the opinion of many people that he was driven to write the Waverley novels because he could not earn a living at the Scottish Bar. If that be so, his somewhat dismissive reference to the not proven verdict may not help much.

The hon. Member for Hamilton also referred to the English royal commission, which rejected the verdict of not proven in what one might describe as dismissive terms. We should remember, however, that the English commission was dealing with a system that requires a verdict of 10 to two to convict. That is entirely different from the Scottish system. Any change to the three existing verdicts could not, I believe, be properly effected in isolation, because we should then have to consider whether a system in which a person could be found guilty by eight votes to seven on a jury of 15 provided sufficient protection in the absence of the not proven verdict.

I accept that, on these occasions, anecdote is much more likely to triumph than objectivity, but it is my personal view and experience that the not proven verdict is a necessary protection in a system in which a person may be convicted by the odd vote in 15. It is also a sophisticated verdict; the jury expresses itself unwilling to give a certificate of credibility to the accused.

A woman in my constituency made a complaint about a sexual offence. She went to court and was subjected to the kind of harrowing and--sometimes inevitably--unpleasant cross-examination which accompanies cases of this sort. In the end, the verdict was not proven. Afterwards she told me that that verdict had allowed her to leave the court with a certain sense of dignity. Had the verdict been not guilty, it would have meant that she had not been believed. We can speculate about the reasons why people will or will not come forward, depending on what they think the outcome of a case may be, but when sexual offences are alleged I believe that the not proven verdict is often an extremely important part of the system. It should not be cast aside lightly.

We should not change these verdicts out of a sense of sympathy with the outrage that victims or their families may feel. One understands why people feel aggrieved by the result of criminal trials, but my judgment is that people who are offended by a verdict of not proven are hardly likely to be less offended if the verdict is one of not guilty.

Mr. George Robertson: This appears to be a rerun of debates that have taken place elsewhere, although I appreciate that some hon. Members may not have heard them before.

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In my defence, I should point out that Lord Wheatley and my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) are two contemporary figures whose views substantiate the point that I was making about not proven--if Sir Walter Scott is not to be taken as a contemporary source.

Will the hon. and learned Gentleman concede that the case that I outlined this afternoon was not based on any particular trial in which the family of a victim was left aggrieved--although such cases do exist? My point is that the not proven verdict is just as unfair to the accused, who leaves with a stain on his or her character, as it is to the aggrieved victims, who may feel that justice has not been done.

Mr. Campbell: I have represented a number of accused people who-- because of or despite the defence that I have mounted on their behalf--have had their cases found not proven. Not one of them has ever complained to me about the nature of the verdict. The hon. Gentleman may attach importance to the question of stains on the characters of accused people, but those in receipt of such verdicts do not apparently attach quite so much importance to it. I was not trying to argue ad hominem, except to say that I think that issues of this kind cannot be considered in isolation or in the abstract. If this proposal is to be discussed in Committee, I suspect that the hon. Gentleman may have to come up with other amendments then, designed to put his proposals for the not proven verdict into the broader context which they undoubtedly deserve.

I have been puzzled by the claim that the abolition of the peremptory objection and the abolition of the need to state a juror's occupation on the jury list will enhance the administration of justice. In place of the peremptory objection, we are offered the institution of something that may be described as a joint application for excusal. That may embrace more problems than it seeks to solve. What if, for instance, there is an intransigent agent or advocate for the defence? What about an intransigent prosecutor? In the real world one hopes that neither will be intransigent, but the fact is that people may take a concluded professional view in respect of an excusal, based on an analysis of what seems to them best for the prosecution or for the defence. In such circumstances agreement will not be possible; nor, therefore, will a joint application for excusal be possible.

I am sorry to note that the hon. Member for Eastwood is no longer here, but I point out that the fact that a person may have a particular occupation may give rise to an apprehension--not necessarily in the minds of the professionals engaged in the defence--on the part of the accused person that the person with that occupation will not be entirely objective. Let us imagine a case in which it is alleged that someone has attacked a postman on his rounds. The accused, who is entitled, as we have often heard, to a presumption of innocence, is likely to think that having a postman on the jury will give rise to an apprehension that objectivity will be difficult to achieve.

Another illustration--I am afraid that this often happens now--concerns a doctor to whose local surgery a false call has been put through and who is then ambushed by someone lying in wait for him to steal his drugs. Here again there might be a reasonable apprehension on the part of the ambusher that objectivity would be difficult to achieve if a doctor served on the jury.

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The retention of the peremptory objection is thus a legitimate power in the hands of the defence, and it does no damage to the administration of justice.

Much has been made of the position of the accused at judicial examination and at trial in circumstances when he or she gives no evidence. There has, I think, been an understandable but flawed tendency to run the two issues together. They are quite separate, and they raise separate considerations. If enacted as drafted, clause 10 will turn judicial examination into something that may not quite justify the conclusion that it is an inquisitorial hearing, but it will have rather more of that character than has perhaps been appreciated hitherto.

An accused person may well be vulnerable at the time, because judicial examination follows hard upon a person being taken into custody. The accused is vulnerable because he or she is confused, apprehensive, upset and even frightened: and because at this stage he or she may have no knowledge of the facts on which the prosecution intends to proceed. That absence of knowledge may be shared by the defence solicitor.

As matters stand, the solicitor who appears on behalf of an accused person at judicial examination has no right to object to any of the questions--so a protection available at trial will not be available at the time of the judicial examination. The position of a solicitor will be difficult, either because the accused may be forced to answer questions that might ultimately prejudice the defence, or because the accused, on the advice of the solicitor, will say nothing, and that failure to comment may be relied on at a later stage. For a solicitor brought in at short notice, with little knowledge at this stage of the nature of the prosecution's case, it will create an intolerable professional burden.

There is no need for those provisions. I have yet to be convinced that there is any utility attached to them.

Clause 28 raises a different issue. At the moment, at least, I am open minded about it. If a prosecutor is given the right to refer to the fact that the accused has not given evidence, the accused should have had by that stage the benefit of legal advice--tactical and sometimes strategic-- on whether it would be right to give evidence. The facts will be known because the evidence will have been led. A conscious decision will have been made not to give evidence. At that stage, both in summary proceedings and solemn proceedings--that is to say, before a judge and jury--the defence will have had the opportunity to make a motion that there is no case to answer. The provisions of clause 28 raise a different issue from those that are contained in clause 10. There is at least scope for putting the Government to the test of establishing that what they propose in clause 28 is justified. I can say as someone who has prosecuted, but not in recent time, that it was never difficult for the prosecutor to find a form of words that conveyed to the jury precisely the point with which the clause is designed to deal. For example, the prosecutor might say, "Ladies and gentlemen, you might have benefited if you had heard other explanations of what took place, but you have heard only the explanation of the victim." He might make the same comments and then say, "You have heard only from the two police officers who saw what was happening." Such comments are legitimate under the present system. On that footing it may be difficult to maintain as stoutly

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as some have that what is proposed in clause 28 is damaging and dangerous. Clause 10 is of a different category.

References have been made to miscarriages of justice. Although he is not in his place, I pay tribute to the hon. Member for Paisley, South (Mr. McMaster), who conducted a most responsible and informed campaign on behalf of one of his constituents, Mr. Raymond Gilmour. I had the benefit of reading all the public papers that are attached to that case. This is not an occasion for going into its merits, but it is worth reminding ourselves- -even those of us who are so impressed by the quality of the Scottish legal system--that cases of that type do arise from time to time, which raises apprehension both inside and outside the legal profession as to whether a just verdict has been achieved.

As I have already said in an intervention, the Lord Justice-General and the Lord Justice Clerk in Scotland have taken different views about the existing statutory provisions that relate to the availability of evidence on appeal and which might have been thought to be available at the time of a trial such as that of Raymond Gilmour. I refer to the matter in passing because it shows that there is no such thing as judicial infallibility. It may even demonstrate in a quite compelling way that if the two senior judges in Scotland are at odds on such an issue, the need for early legislation relating to alleged miscarriages of justice and the availability of evidence is paramount.

The hon. Member for Linlithgow (Mr. Dalyell) referred to some solicitors who, he said, persuaded clients to plead not guilty until the last moment. No doubt there are some--I would not suggest that there is none. It is often difficult, however, to persuade an accused person to plead guilty, even if the evidence is overwhelming. In some cases there are difficult questions of law that have to be the subject of careful consideration. In other cases difficult issues arise about the availability of witnesses and whether witnesses will stick with the version of events that they may have given either to the prosecution or to the defence. Late pleas of guilty, damaging though they are to the administration of justice and dissipating of funds and valuable court time, are not necessarily always to be explained by the notion of greedy lawyers seeking to protract proceedings to line their own pockets.

The hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes) referred to the powers of licensing boards. I declare an interest because I have a particular professional interest. There is scope for some amendment to the law that allows the boards the opportunity, when they decide to suspend a liquor licence, to act at least on an interim basis. Once an appeal has been marked against such a suspension, it should be possible for the board to go to the sheriff to argue that until the appeal is determined the licence should not be allowed to operate. At present, once an appeal is marked, all the previous proceedings are suspended and someone whose licence may have been suspended under section 31 of the Licensing (Scotland) Act 1976 may continue gaily operating his licence until such time as the local sheriff has dealt with the appeal. That is a matter to which further consideration should be given. The hon. Member for Carrick, Cumnock and Doon Valley raised the matter because of recent events in Ayr.

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There are some things about the Bill that are to be welcomed but there are others that are not entitled to the same reception. The weakness of the Bill is that there does not appear to be any discernible scheme behind it. It carries more than a hint of doing something or anything to meet a tide of public opinion that is increasingly anxious about the nature of criminal activity in Scotland. The Bill is undoubtedly capable of improvement in Committee. If it reaches that stage, I hope that it will receive such improvement.

6.46 pm

Mr. Bill Walker (Tayside, North): I shall be brief because I know that others wish to speak. I listened with great care to the hon. and learned Member for Fife, North-East (Mr. Campbell). His contributions to Bills of this sort are important and welcome. As has been said, I am sure that we all miss the wit and wisdom of my late Friend, Sir Nicholas Fairbairn. Both he and the hon. and learned Gentleman brought valuable hands-on experience to Scottish legal Bills. I do not have that experience but I welcome the Bill for two reasons. First, I welcome the Bill because on the basis of public confidence there are areas of the law that must be considered fairly regularly so that we can keep pace with public concern. There will be opportunities during our consideration of the Bill--I hope to be able to make use of them--to table amendments on sentencing policy. I am a great believer in deterrent sentencing. That is not the only vehicle to be considered but it is an important one when it comes to recognising and meeting concerns.

It is important to recognise, as the hon. and learned Member for Fife, North-East has said, that the judiciary is not infallible. Mistakes will occur. We must expect that and so we must have a system that addresses it. We must recognise also that there can be technical malfunctions in the way in which a court is administered and run. I can think of a recent instance where a jury was confused. That confusion led to sentencing problems. That is another issue that may call for amendments.

Secondly, I welcome the Bill because it is designed to tighten bail provisions. There is great concern that those who are given bail offend again. I welcome the fact that we are retaining the not proven verdict. It is a valuable provision in Scotland. If a jury is not satisfied that a case has been proven beyond reasonable doubt but it is not satisfied that the accused is not guilty, the parties can leave court at least knowing that the case has not been proven one way or the other. That is important. I also welcome the fact that we shall consider in Committee the important question of how people can or cannot be drawn into answering questions.

As I said, my speech is very brief because I hope to use the opportunity in Committee--like most Scottish Conservative Members, I expect that I shall have no option but to be in Committee--to table and speak to amendments on important points in the Bill.

6.49 pm

Mr. Mike Watson (Glasgow, Central): As an hon. Member who represents an inner-city constituency, I know only too well and come into regular contact with many of the activities to which hon. Members of all parties have referred, not least the tragic toll of deaths relating to drug taking. There were 95 such deaths in 1994

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in the Strathclyde region, many, I am sorry to say, in my constituency. My constituency, like many other inner-city constituencies, also witnessed various other violent activities such as attacks on the person, often unprovoked and, apparently, for no reason. There is also a considerable amount of car crime, burglary, sexual attacks- -sadly--and of course the increasingly visible effects of domestic violence, which is prevalent throughout society. All those crimes in my constituency go hand in hand with many of the effects of an appalling standard of living, to which many of my constituents are condemned. In many cases that standard of living means that my constituents have to put up with appalling housing, which is very badly maintained, frequently damp and badly repaired. Of course increasing numbers of young people are unable even to obtain such housing. There is high unemployment and another sad death toll every winter of old-age pensioners who are unable adequately to heat their accommodation.

All that adds up to a picture of which no Government can be proud. It would be unfair to blame it entirely on the Government, although it would be equally fatuous to suggest that they had no part to play and that they were not, in some respect, responsible. I concede that many of the conditions will continue to exist under a Labour Government, but the question is: how will we respond? One of the ways in which to respond is to ensure that the police are adequately resourced.

An astonishing statistic was revealed in Strathclyde last month, when Leslie Sharp, the much respected chief constable, announced that the full complement of staff for his force had reached some 4,200. That was astonishing because that level was set in 1974, during the previous round of local government reorganisation, when Strathclyde region came into being. In the 20 or more years since the region was established, that level had never been met and there had never been a full complement of police officers, despite the fact that I and other hon. Members who represented the Strathclyde region were often lobbied by Leslie Sharp and his predecessor and, that we, in turn, lobbied Scottish Office Ministers for adequate resources to enable the police to do the job demanded of them. It was, however, a false dawn because this month, after that announcement, the figure has again fallen blow complement. Due to national wastage, retirement and non-filling of vacancies, Leslie Sharp's police force is again below its full complement and he does not have sufficient officers for the many difficult and trying jobs which face them.

It is not simply that Strathclyde regional council has been profligate with its resources. Goodness knows, it is short of resources in so many ways, as the Secretary of State knows well since he has heard myself, other colleagues and my hon. Friend the Member for Hamilton (Mr. Robertson) specifically speak on local authority funding in recent weeks.

Nor is it sufficient for the Secretary of State to say that the local authority has the resources that it needs to carry out its functions and to give police adequate staff to carry out their job. Patently, they do not have sufficient resources. Of course I welcome and commend falling crime figures, which to a large extent result from increased police activity, but every time that I meet police officers--representing a city-centre constituency, I cover

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a number of divisions in the city of Glasgow and meet regularly with the police--they consistently return to the question of resources.

One of the questions that we should be asking in this debate is: why does crime continue to flourish? I am aware of the figures which have been quoted, but, none the less, a considerable number of people do very well out of criminal activities, often at the hands of those people who can least afford it. Parents regularly come to my surgeries or write to me in despair asking what can be done; why cannot the police put a stop to crime and why are the local peddlers of drugs on the street corner well known to everyone in the community, yet--apparently--the police are unable to act and arrest them? I know that the sellers on the street corner are not the major problem; they are the visible aspect only of the problem. None the less, it is difficult to explain to my constituents that the resources to deal with crime in the community are available when, in many cases, petty criminals are well known and appear to flourish and act impudently in their own area.

A major factor to consider in fighting crime is its root causes. I am aware that that argument does not carry much weight with Conservative Members, but the causes of crime are frequently economic or socio-economic. The speech by my hon. Friend the Member for Glasgow, Govan (Mr. Davidson) highlighted the difficulty that he has encountered in his constituency, which is replicated in--I suspect--hundreds of constituencies, including those of Conservative Members. It is not simply enough to say that people get themselves into such difficulty. Not many trainee chartered accountants or law students or young self-employed people are involved in crime. Nor, indeed, are many apprentice bricklayers or hairdressers indulging in crime, drugs and such activities. Nor is it simply a working-class or middle-class phenomenon. By and large, people indulge in crime because they have little else to do. I am aware that that is a generalisation, but I am sure that hon. Members will agree. Any democratic and caring society ought to be able to provide the chance to get a decent education, training which will lead to a job, a decent house and the ability to establish a permanent relationship and--one hopes--raise a family in the belief that our children will have a reasonable opportunity to build a life for themselves. Today's society is unable to provide those chances and those opportunities are plainly absent from the lives of too many young people. It is a mere pipe dream for them. As a result, many seek escape through the crime to which I have referred, especially--sadly--relating to drugs. The attendant crime necessary to finance such activity has all sorts of spin-off effects.

I am not offering that dearth of opportunity as an excuse for the lawlessness which is increasingly evident among young people; I am simply suggesting that it is part of the explanation and must be taken into account. We cannot tackle crime without tackling the causes of it. A strong and sustainable economy, which provides training, jobs and hope is much more likely to turn young people away from crime than any amount of police resources or any amount of community activities even though they have, of course, a part to play.

The Bill is about changing the law and not simply about dealing with crime and how to respond to it, important though that is. I hope that the Bill is also about improving the law; moving it forward and making it more relevant

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to the 1990s and beyond the millennium. Like all hon. Members, I recognise the expertise and vast experience of the hon. and learned Member for Fife, North-East (Mr. Campbell). He outlined a number of ways in which the Bill could have improved the law of Scotland, but has missed the opportunity to do so.

I shall highlight a specific area in which the law could be improved, which relates to a debate on the Criminal Justice and Public Order Bill a year and a week ago this evening.

The debate that stirred up the greatest amount of public interest in respect of that legislation concerned new clause 3 which dealt with the age of consent in relation to homosexual acts in private. That debate produced a change in the law. The age of consent was reduced from 21 to 18 although moves to reduce it to 16 were defeated by a majority of 27 votes. An overwhelming majority of 265 were in favour of decreasing the age to 18 and that is now the law. The Criminal Justice (Scotland) Bill offers an opportunity to carry that law forward and, in a sense, to take the next step towards the logical conclusion of the progress in last year's debate. I am sure that you, Mr. Deputy Speaker, would not allow me to rehearse the arguments for an equal age of consent for all, but I believe that it is totally illogical to have an age of consent of 16 for heterosexuals and 18 for male homosexuals.

I want to concentrate on the Scottish aspect of that debate because Scottish Members made their views very clear in the debate last year. Fifty -three of the 72 Scottish Members, the hon. Members who have a particular interest in the Bill that we are discussing today, voted in favour of the age of 16, and 17 voted against that age. There have been changes since last year's debate and new Members for constituencies elsewhere in the United Kingdom would affect attitudes towards an age of consent of 16 if the matter were voted upon again. I hope that this Bill will allow us an opportunity to do that. In 1991, the Crown Office in Scotland instituted a review of the prosecution policy on consenting homosexual acts. At that time, the Crown Office issued a circular to procurators fiscal--circular No. 2025/1--instructing them that in a reported case of sex between men "where both of the participants are over 16 but one or both are under 18 and the act appears to have been consensual and in private" procurators fiscal should report the case to the Crown Office for consideration by Crown counsel. Only two cases have been reported in the four years since then. The instruction was reconfirmed in June 1994, but the Crown Office has stated that the review of policy is continuing.

After the passage of the Criminal Justice and Public Order Act 1994, Outright Scotland--the lesbian, gay and bisexual rights organisation-- approached Lothian and Borders police specifically about their policy on pursuing private consenting sexual acts between men over 16. Lothian and Borders police have confirmed publicly that "such investigations appear nowhere on our list of priorities." However, they said that if a complaint were received from a member of the public, they would be bound to investigate.

Although the law is not being upheld actively by the police or the Crown Office, young gay men remain at risk of police investigation brought on by a complaint to the

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police by anyone, be that a neighbour or an unfriendly acquaintance. The current law brands young gay men as second- class citizens from the age of 16 and it acts to discourage many young gay people from seeking the advice and help that they need from their parents, doctors, teachers or the police.

The question of whether there should be an equal age of consent is not simply a matter of equality: it is a matter of human rights and of civil rights. It is wrong, and ultimately unsustainable, that young gay men should be criminalised and stigmatised for doing what their heterosexual friends do perfectly legally--that is, making love with a partner of their choice.

Many of our European Union partners are considerably ahead of us in terms of legislation with regard to the age of consent. Many of us have a great deal of good will towards Ireland, but with the best will in the world we would not categorise Ireland as a liberal country. However, Ireland has an equal age of consent at 17 which is ahead of the United Kingdom.

It is somewhat ironic that the playwright Oscar Wilde was sentenced to two years in Reading gaol almost exactly 100 years ago in May 1895, but discrimination against gay men is still effectively legalised. Stonewall carried out a survey of 2,000 lesbians, gay men and bisexuals which found that 8 per cent. had been sacked from their employment, 48 per cent. had been harassed and 68 per cent. were not fully confident enough to talk about their sexuality at work for fear of the consequences. It is appalling that, in 1995, people should be afraid to be open about their sexuality because they fear for their jobs.

As I have said, an age of consent of 18 still criminalises young men when the law claims that it is actually there to protect them. The stark fact is that the law as it stands does not act as a deterrent. As has been demonstrated, there exists among the police neither the will nor the ability to enforce that law effectively. It should be self-evident that the criminal law should have no role in matters of private morality where consenting adults are concerned. Scots law has often been ahead of its English and Welsh counterparts, as other hon. Members have said. I suggest that it should take the lead again. When this Bill enters Committee, I hope that an amendment will be tabled which will allow the House to vote on the age of consent.

I do not see it as a matter of Scotland having a different age of consent from the rest of the United Kingdom. I see Scotland as simply moving one step ahead because it is clear, on the basis of the vote a year ago, that when the matter comes before the House as it affects England and Wales, as well as Scotland, the vote in favour of 16 will be carried. This Bill offers an opportunity for Scots law to move ahead and to give a lead. I very much hope that such a lead will be taken in Committee.

7.5 pm

Mr. Andrew Welsh (Angus, East): I would like to give a last salute to Sir Nicholas Fairbairn. This debate would have been a perfect medium for his expertise, experience and wit which could skewer as well as edify at times. We are all the poorer for the loss of his very individual contributions to this particular subject and to other debates in the House.

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The Bill is basically a general review of the mechanism through which crime is dealt at judicial level and measures for robbing criminals of the proceeds of their crimes. While I have specific reservations about the Bill, I welcome attempts to improve the efficiency and effectiveness of the Scottish criminal justice system.

It is essential that justice is enhanced through the elimination of waste and inefficiency where that is practicable. Hence the aspects of non- contentious evidence and pre-trial procedure can be improvements, but they are predicated on adequate resources being available. As ever, with this Government, that would leave a question mark over the proposals.

With regard to resources, I noticed that the Law Society of Scotland points out that

"a quantitative estimate of the general resource implications of many of these proposals is to be found in Chapter 14 of the Consultation Paper `The Review of Criminal Evidence and Criminal Procedure'".

Will the Government make available the information on which that estimate is based? Without the requisite resources, the hopes of the reforms will not be delivered. Will the Minister make clear the financial calculations on which the proposals are predicated? My reservations are based on my wish to ensure justice and to protect the rights of any accused person to a fair trial. I am concerned about clause 10 and I ask the Government to think again about it. It would allow the fiscal to question an accused at the examination before the sheriff in such a way as to extract a confession of guilt. That transforms the judicial examination into a form of investigative hearing more akin to an inquisitional procedure. That strikes at the very heart of the existing Scottish system and would swing the balance very much against the accused. That is a fundamental sea change in the approach of Scots law. Admissions at judicial examination would give more power to the prosecution to try to achieve an early conviction. That is part of the cost-cutting exercise implicit in the Bill. The measure would put unjust and undue pressure on the accused at a time when that person has had little or no time to consult the defence agent. That challenges the Scottish legal position of emphasis on the need for the prosecution to prove its case as opposed to the accused having to establish his or her innocence.

Although the pre-trial right to silence is not challenged in the Bill as yet, clause 10 opens the door for future movement in that direction. I am concerned that although the need for comprehensive legislation to tackle the criminal justice system has long been recognised, we have been presented with a piecemeal Bill. The consultation period ended a fortnight before publication of the Bill, leaving little time for the consideration and incorporation of changes influenced by the consultation process--and it shows. Although some proposals, particularly those put forward by the Scottish Law Commission, make good practical sense, other measures such as clause 10 appear to be a trade-off of civilised justice provisions for cheap political ends, with the danger that no practical benefits will accrue either to the Treasury or to the public.

The Government's proposals will create some practical problems for the system. The already enormous pressures on procurators fiscal can only be exacerbated by the introduction of compulsory intermediate diets in all summary cases and the reintroduction of the failed

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expedient of first diet in all solemn cases in the sheriff court. When those are added to the other proposed duties, which will also affect the defence, it will be obvious that less and less time will be available for the preparation of cases, which will lead to greater inefficiency and to potential injustice. I should like to hear the Minister address those practical problems.

The Scottish National party certainly welcomes the tightening up of the law regarding the granting of bail in serious cases, but it fears that the bail provisions generally are merely examples of tinkering with the system. If the Government go ahead with clause 10, I shall seek Law Society of Scotland safeguards, for example on the line of questioning which allows the right of the defence solicitor to object and the opportunity for the judge to interrupt, and for further detailed disclosure of the statement of facts and the line of inquiry being used by the prosecution at the judicial examination. I hope to hear the Minister talk about what safeguards will be available to the accused in such cases.

The Government must address the serious problem of the lack of time available for the defence at the time of a judicial inquiry. That matter cannot be glossed over, because it is a practical matter and it is essential to protect the right of the accused.

Clause 28, which relates to the right to silence, is an attack on civil liberties and again challenges the accusatorial nature of the Scottish criminal justice system. Various arms of the legal profession have stated that there is no need to change the right to silence provision, but the Government have ignored them in order to comply with the English law and order agenda.

Sentence discounting is plain injustice. I should like to hear the Minister try to justify it. The sentence should reflect the nature of the crime and the situation of the criminal, and it should not be conditioned by the time that the plea is made. There is an obvious attempt to save money by encouraging early pleading, but it challenges and undermines the basis of sentencing procedure. Why should the admission of guilt entitle a criminal to a lesser sentence than that for someone who exercises the right to go to trial? That suggests the Government's willingness to apply softer sentences to save money with early pleading.

The Government state that the legislation will be costneutral, but I question that. If the provisions, particularly those in respect of intermediate diets, are to work, there will need to be measures to alleviate overworked and understaffed procurator fiscal offices. In addition, the legal aid fund will be required to meet the increase in defence expenses which will result. How does the Minister plan to bolster the procurator fiscal staff and the legal aid fund? I am concerned also that there is no mention of the rights of victims, although the consultation papers specifically refer to the need to provide for victims' needs. I ask the Minister to address that problem urgently.

There is no provision to address miscarriages of justice, even though, again, the need to address the appeal system in Scotland has long been recognised.

There is merit in many of the proposals to speed up the criminal justice system and make it more efficient. I welcome the proposals to reduce needless attendance at court by police and other witnesses--a much needed reform. I also welcome the fact that criminals will be

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deprived of the proceeds of their crimes. Nevertheless, I register my extreme concern about major specific provisions, and I hope that the Minister will address them.

7.13 pm

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