House of Commons Hansard Debates for 7 Jun 1995

Lord James Douglas-Hamilton: I understand that, in the Elliott case, a five-judge bench of the High Court overruled the recent judgment in Church v. Her Majesty's Advocate. As the hon. Member for Dumbarton (Mr. McFall) said, the judgment concerned section 228(2) of the Criminal Procedure (Scotland) Act 1975.

The Elliott judgment confirmed that a person might bring an appeal on the basis of fresh evidence only if that evidence was not available and could not reasonably have been made available at the trial. The effect of the judgment is that the law has been declared to be as it was thought to be before the Church judgment. The question on which the hon. Gentleman concentrated--the question whether there is any need to change section 228(2)--is now being considered by the committee on appeals criteria and miscarriages of justice procedures, chaired by Sir Stewart Sutherland. We shall decide whether proposals for legislative action should be presented once that committee has reported.

Amendments Nos. 170 and 171 appear to be founded on a belief that the new leave to appeal arrangements will increase the likelihood that miscarriages of justice will go

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uncorrected. I cannot accept that proposition. The leave to appeal arrangements contained in clause 42 will filter out--at an early stage--only frivolous and unmeritorious appeals that would otherwise waste the time of the Appeal Court. The new arrangements should therefore allow the court more time in which to consider meritorious appeals when a miscarriage of justice may genuinely have occurred. Amendment No. 170 deals with the question of appeals criteria in general, and appears to seek to modify the criteria currently applied by the Appeal Court in Scotland. The Scottish Office takes the matter very seriously. We consulted on possible changes to the criteria applied by the Appeal Court in the consultation paper "Sentencing and Appeals", but no clear consensus emerged.

Mr. McFall: What does the Minister consider to be a definition of "reasonable"? That one word is causing a fracture between Lord Hope and other Lords in the Scottish court. Could we not assist the process this evening by providing an opinion--and, one hopes, siding with Lord Hope, the most senior judge in Scotland, who believes that a more liberal interpretation of the law is required?

Lord James Douglas-Hamilton: As I said in my opening remarks, Lord Hope's judgment has been clarified by a five-judge bench of the High Court which overruled the judgment in Church v. Her Majesty's Advocate. That decision is the one that will apply.

My right hon. Friend the Secretary of State decided to set up a representative body--

Mr. McFall: I thank the Minister for his indulgence in giving way to me again. He says that the position has been clarified, but if he looks at the judgment of those five judges he will note that, according to them, Parliament's intentions were clear. On 5 June 1980, Parliament devoted only eight minutes to the 17 pages involved. Its intentions were far from clear- -and clarity from Parliament is cried out for. That is the main issue.

Lord James Douglas-Hamilton: First, this is a matter on which the courts must interpret the Act as it now stands and they have done that in the five-judge bench of the High Court. As to whether any amendments are necessary, this particular subject is under consideration by the Sutherland committee and we will consider very carefully indeed any representations that they make to us. Sir Stewart Sutherland is the principal of Edinburgh university, and he is looking at these issues in considerable depth. I am a little surprised that the hon. Member for Dumbarton should seek to pre-empt the committee's work. The amendment has not been drafted in the light of the careful consultation which is necessary and which the committee is bringing to the complex issues involved. We have already given an undertaking to respond to the Sutherland committee's recommendations as quickly as practicable, and I therefore hope that the hon. Gentleman will not press the amendment.

Mr. McFall: I thank the Minister for those comments, but there are two issues. First, there is the dispute between Lord Hope, Lord Ross and others. Clarity is required on that.

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The second issue is the Sutherland committee. The Minister takes refuge in the fact that the Sutherland committee has been established and will report in the summer of 1996. Meanwhile, the Criminal Appeal Bill is going through the House. There will be a miscarriage of justice body for England and Wales but nothing for Scotland. The fact that the Sutherland committee reports in 1996 will probably ensure that nothing will be done for Scotland this side of a general election. I and many others in Scotland do not think that the present situation should prevail beyond the next general election. We are looking to the Government to speed things up. It was quite absurd to use the time scale of summer 1996 in the first place. It could have been done much more speedily.

Given that the committee will report in summer 1996, what guarantees can the Minister give that the Government will be up and running immediately to deal with the situation? The miscarriages, and alleged miscarriages, of justice in Scotland at the moment are a running sore. The Government have to attend to that matter. It is no use having recourse to the Sutherland committee when its report date is as far away as 1996. Something more urgent needs to be done now. It is with that in mind that we have tabled the amendments.

Lord James Douglas-Hamilton: I can confirm that the Sutherland committee will report before or by July 1996. The chairman has said that it will report as soon as possible and that those matters will, of course, be dealt with urgently.

The definition of "reasonable" is very much a matter for interpretation by the courts, as it has been over the past century. It is not for us to speculate on what might have been the parliamentary intention earlier, when the particular provision was passed.

Mr. McFall: I thank Minister for that reply. He is really saying that we do not know what Parliament had in mind in 1980, but it is certainly none of our business in 1995 to decide what Parliament had in mind in 1980. Frankly, that is a most inadequate answer, and something needs to be done.

That one word "reasonable" is causing the problem. Something needs to be done about it. If the Sutherland committee reports by July 1996, will the Minister give a commitment that the recommendations will be implemented as soon as possible thereafter, by October 1996, in the new parliamentary Session?

Lord James Douglas-Hamilton: We will act as soon as possible. I can assure the hon. Gentleman that the Secretary of State takes these matters very seriously, as he does all issues involving justice where it is alleged that the person convicted has not committed the crime and fresh evidence has allegedly been made available.

Amendment negatived.

Lord James Douglas-Hamilton: I beg to move amendment No. 1, in page 34, line 24, at end insert--

`(6A) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.

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(6B) Where the arguable grounds of appeal are specified by virtue of subsection (6A) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.

(6C) Any application by the appellant for the leave of the High Court under subsection (6B) above--

(a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and

(b) shall, not less than seven days before that date, be intimated by the appellant to the Crown Agent.'.

Mr. Deputy Speaker: With this, it will be convenient to discuss also Government amendments Nos. 2, 62, 4 and 63.

Lord James Douglas-Hamilton: Clause 42 introduces a new requirement for leave to appeal. When these provisions were debated in another place, it was noted that where leave to appeal was granted, the appellant would be allowed to advance all grounds of appeal contained in the note of appeal even if the single judge had considered certain grounds to be frivolous and unarguable. The amendments also ensure that where the single judge or the High Court identifies the arguable grounds for appeal not contained in the note of appeal it shall be competent for the appellant to found aspects of the appeal on those grounds of appeal without requiring further leave from the High Court. This matter was also debated in another place. I am pleased to be able to clarify the arrangements. Amendment agreed to.

Amendments made: No. 2, in page 34, line 29, at end insert-- `( ) After subsection (3) of section 233 of that Act (restriction on arguing ground not in note of appeal) there shall be inserted the following subsection--

"(3A) Subsection (3) above shall not apply as respects any ground of appeal specified as an arguable ground of appeal by virtue of subsection (6A) of section 230A of this Act.".'.

No. 62, in page 35, line 36, at end insert--

`(6A) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the stated case) on the basis of which leave to appeal is granted.

(6C) Any application by the appellant for the leave of the High Court under subsection (6B) above--

(a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and

(b) shall, not less than seven days before that date, be intimated by the appellant to the Crown Agent.'.

No. 4, in page 35, line 41, at end insert--

`( ) After subsection (3) of section 452 of that Act (restriction on arguing ground not in stated case) there shall be inserted the following subsection--

"(3A) Subsection (3) above shall not apply as respects any ground of appeal specified as an arguable ground of appeal by virtue of subsection (6A) of section 442ZA of this Act.".'.

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No. 63, in page 36, line 35, at end insert--

`(5A) Comments in writing made under subsection (1)(a) or (4)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.

(5B) Where the arguable grounds of appeal are specified by virtue of subsection (5A) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.

(5C) Any application by the appellant for the leave of the High Court under subsection (5B) above--

(a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and

(b) shall, not less than seven days before that date, be intimated by the appellant to the Crown Agent.'.-- [Lord James

Douglas-Hamilton.]

Clause 46

New prosecution for same or similar offence

Amendments made: No. 113, in page 38, line 19, leave out `and'. No. 114, in page 38, line 32, at end insert `; and

"(5) On granting authority under section 254(1)(c) of this Act to bring a new prosecution, the High Court shall, after giving the parties an opportunity of being heard, order the detention of the accused person in custody or admit him to bail.

(6) Subsections (2)(b) and (4) to (6) of section 101 of this Act (prevention of delay in trials) shall apply to an accused person who is detained under subsection (5) above as they apply to an accused person detained by virtue of being committed until liberated in due course of law.".'.

No. 115, in page 38, line 36, leave out `and'.

No. 116, in page 39, line 2, at end insert `; and

"(5) On granting authority under section 452A(1)(d) of this Act to bring a new prosecution, the High Court may, after giving the parties an opportunity of being heard, order the detention of the accused person in custody; but an accused person may not be detained by virtue of this subsection for a period of more than 40 days.".'.-- [Lord James Douglas- Hamilton.]

Clause 49

Examination of facts

Amendments made: No. 6, in page 41, line 34, leave out `made under subsection (8) below'.

No. 7, in page 42,, leave out lines 1 to 3..

No. 8, in page 43, line 22, leave out

`made under subsection (8) below'.

No. 9, in page 43,, leave out lines 38 to 40.-- [Lord James Douglas- Hamilton.]

Clause 51

Appeal by accused in case involving insanity

Amendments made: No. 10, in page 46, line 23, at end insert `and'.

No. 11, in page 46, line 46, leave out from `allow' to end of line 48.

No. 12, in page 47, line 33, at end insert `and'.

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No. 13, in page 48, line 7, leave out from `allow' to end of line 9.-- [Lord James Douglas-Hamilton.]

Clause 52

Appeal by prosecutor in case involving insanity

Amendments made: No. 14, in page 49, line 1, at end insert `and'.

No. 15, in page 49, line 13, leave out from `allow' to end of line 15.

No. 16, in page 50, line 1, at end insert `and'.

No. 17, in page 50, line 13, leave out from `allow' to end of line 15.-- [Lord James Douglas-Hamilton.]

Clause 55

Committal to hospital for inquiry into mental condition

Amendment made: No. 64, in page 51, line 31, leave out `health' and insert `condition'.-- [Lord James Douglas-Hamilton.]

Clause 60

Jurisdiction of district court in relation to statutory offences

Lord James Douglas-Hamilton: I beg to move amendment No. 65, in page 56, line 43, leave out from `offence' to `a' in line 46 and insert--

`(a) to impose a sentence of imprisonment for a period exceeding 60 days;

(b) to impose'.

Mr. Deputy Speaker: With this, it will be convenient to discuss also Government amendments Nos. 66 and 88.

Lord James Douglas-Hamilton: The first two of these amendments make it clear that the amount of caution that the district courts may fix in respect of a statutory offence is the same as that applicable to common law offences by virtue of section 284 of the Criminal Procedure (Scotland) Act 1975.

The second amendment puts beyond doubt that a court in solemn proceedings may order an offender, on conviction, to find caution for good behaviour.

Amendment agreed to.

Amendment made: No. 66, in page 56, line 47, at end insert `; or

(c) to ordain an accused person to find caution for any period exceeding six months or to an amount exceeding level 4 on the standard scale.".'.-- [Lord James Douglas-Hamilton.]

Clause 65

Legal aid in criminal appeals

Amendments made: No. 67, in page 58, line 18, leave out `as follows' and insert

`in accordance with subsections (2) to (5) below'.

No. 68, in page 59, line 19, at end insert--

`(6) In section 30(3) of that Act (application of section 25 of that Act to legal aid in contempt proceedings)--

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(a) before the words "Section 25" there shall be inserted "Subsections (2)(a) and (c), (2A) to (4) and (6) of";

(b) for the words "it applies" there shall be substituted "they apply";

(d) after the word "application" there shall be inserted the following paragraph--

"(za) in subsection (2A) of that section, the reference to the High Court shall include a reference to the Court of Session;"; and (e) in paragraph (b), for the word "(5)" there shall be substituted "(6)".'.-- [Lord James Douglas-Hamilton.]

Clause 70

General provision

Amendment made: No. 146, in page 61, line 22, leave out `in respect of which it is made'

and insert--

`(i) from the commission of the offence; or

(ii) where section 71(3A) of this Act applies, from the commission of the offence and any other offence to which this Chapter applies'.-- [Lord James Douglas-Hamilton.]

Clause 71

Benefit from commission of offence

Amendments made: No. 147, in page 61, line 36, at beginning insert

`Subject to subsection (3A) below,'.

No. 148, in page 61, line 37, leave out `of the benefit' and insert

`referred to in section 70(5)(a)(i) of this Act'.

No. 149, in page 62, line 3, leave out from `period' to end of line 6 and insert--

`(3A) Where--

(a) the application for the confiscation order has been made in respect of two or more offences; or

(b) during the relevant period the accused has been convicted of at least one other offence to which this Chapter applies, being an offence committed after the coming into force of this Chapter, the court may, in determining the amount referred to in section 70(5)(a)(ii) of this Act, make the assumptions set out in subsection (3B) below, except in so far as the accused proves either of those assumptions, on the balance of probabilities, to be incorrect. (3B) Those assumptions are--

(a) that any property or economic advantage which has been obtained by the accused during the relevant period has been obtained in connection with the commission of an offence to which this Chapter applies; and

(b) that any expenditure by him during the relevant period was met out of property or other economic advantage obtained in connection with the commission of such an offence.

(3C) In subsections (3A) and (3B) above, "the relevant period" means the period of six years ending with the date on which proceedings were instituted against the accused for the offence in respect of which the application for the confiscation order has been made.'.-- [Lord James Douglas-Hamilton.]

Clause 73

Gifts

Amendments made: No. 150, in page 63, line 6, after `if' insert `--(a)'.

No. 151, in page 63, line 10, at end insert `; or

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(b) where subsection (3A) of section 71 of this Act applies, it was made by the accused within the relevant period within the meaning of subsection (3C) of that section.'.-- [Lord James

Douglas-Hamilton.]

Clause 74

Making of confiscation orders

Lord James Douglas-Hamilton: I beg to move amendment No. 152, in page 64, leave out lines 32 and 33.

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