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Lord McCluskey: The noble Lord is quite right in relation to the case of murder because he could look at the indictment. He knows that it is a case of murder and can say that as a matter of practice a temporary judge will not sit. But when it comes to a qualifying offence--10 are listed and about 17 are grouped there--he cannot tell whether or not it is a case in which the judge will have to impose a life sentence unless he knows that the accused has a previous conviction for a qualifying and relevant offence. So unless the Lord Justice General is to be privy to the list of previous convictions applicable to every case that may be indicted in the High Court, he cannot apply the practice. For that reason, I feel that the useful administrative distinction drawn between the law and the practice in that case--the case of murder and the case of rape--cannot be applied in this case. I would hope that the noble and learned Lord would acknowledge that right away.
Lord Macaulay of Bragar: I do not know whether it is proper for me to ask the noble and learned Lord, Lord Hope of Craighead, about murder trials and rape trials presided over by temporary judges. Either now or at some future date, can he advise me of how many murder trials and rape trials have been presided over by temporary judges? I feel that the answer may be nil. I see that the noble and learned Lord nods his head. That underlines the point I made.
I was careful to say that I spoke anecdotally. I can give the noble and learned Lord the names of the counsel and the temporary judge involved in the postponed trial but I think that it would perhaps be improper to mention them in open Committee, so to speak.
Lord Mackay of Drumadoon: With regard to the points raised by the noble Lord, Lord Macaulay, I think that such inquiry ought to be directed at me. I shall ensure that it is passed on to the Lord Justice General so that the inquiry is answered.
As to points which arise out of Amendment No. 11 and which may arise from subsequent amendments, Amendments Nos. 22, 44 and 46, I venture to suggest that the discussion that has just taken place between the noble and learned Lords, Lord Hope and Lord McCluskey, illustrates the importance and sensitivity of the use of temporary judges in Scotland. It may interest the Committee to know that currently eight persons hold such an appointment. Six of them are senior sheriffs and two are senior members of the Bar. All of them sit in a part-time capacity. Obviously, the two senior members of the Bar are in practice; the other six serve as sheriffs when they are not required to sit in the High Court.
This is not the occasion to discuss the full ramifications of the use of temporary judges. But I believe it is accepted on all sides that the heavy
workload of the courts--both the civil court, the Court of Session, and the criminal court, the High Court of Judiciary--means that there is cause to call upon their services. It is recognised that they make a valuable contribution to the work of the Supreme Court in Scotland.The noble and learned Lord, Lord Hope, explained the practice which he put in place when the relevant legislation (the 1990 Act) came into force. The Government are firmly of the view that it should be left to the court, and in particular to the Lord Justice General, after such consultation that he conducts, whether with his fellow judges or with anybody else, as to what is the best way forward. If there have been practical problems of the kind mentioned by the noble Lord, Lord Macaulay, no doubt some regard will be had to them. But the allocation of judges to individual cases and to judicial business in general is not the responsibility of government and, I venture to suggest, is not the responsibility of Parliament in the way that it is focused in this amendment and subsequent amendments.
On the basis of that explanation and of that helpfully provided by the noble and learned Lord, Lord Hope of Craighead, and in the light of the views expressed by the current Lord Justice General in the letter which I have not seen--I do not know whether it was intended to be copied to me but I certainly have not seen it and I was not consulted before it was written--I hope that the noble Lord will not feel it appropriate to proceed with the amendment and subsequent amendments which touch on similar topics.
Lord Kirkhill: As the noble and learned Lord the Lord Advocate is about to resume his seat, perhaps I may ask him one question. When he refers to "senior sheriffs", does he include in that phrase sheriffs principal? If so, how many of those are within the six? I ask that question because I worry about the accused. I dislike the thrust of the Bill, as he may understand, and I dislike the concept of the mandatory sentence. But there is the question of the exceptional circumstance and its individual definition.
We heard earlier from the noble and learned Lord, Lord McCluskey, that he has a computer in his home. At the moment, the judges are apparently able--in balance, as I think he said--to reach the mid-point. If he did not exactly say that, it was the emphasis behind his remark. I put the question to him in the light of that background.
Lord Hope of Craighead: Before the noble and learned Lord answers the question, perhaps I can explain just a little more, since I was closely involved in the selection of the sheriffs who were to sit. The sheriffs principal, although they are of course senior to sheriffs, do not exercise day to day criminal jurisdiction. They have many administrative duties to perform. I did not think it right, and I do not believe that my successor thought it right either, to ask them to conduct criminal trials. On the other hand, the sheriffs whom I selected--I believe the policy remains the same--were all senior
counsel, all of whom had had experience in the Crown Office and they were all very experienced sheriffs. The great advantage which they had was bringing to bear in criminal trials the background of their experience as sheriffs over a long time.One feature of our jurisdiction in Scotland is that the procedure which is followed in solemn trials before juries is precisely the same in the sheriff court as it is in the High Court. It was possible for me to call upon a very specialised field of expertise in making my selection, so it may be that with these remarks the noble and learned Lord will feel able to reassure the Committee that these selections are made with great care, that they are made on the basis of experience and, so far as I am aware, they have not shown themselves to have been mischosen in the work which they have done.
6.30 p.m.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord for his comments. The selection procedure is similar to that which is followed for the appointment of full-time judges. They are carefully selected. There is no doubt about them having the competence to do the work of the court. However, it is a matter for the court, as I believe the noble and learned Lord, Lord Hope, indicated, as to whether with particularly sensitive cases it is appropriate to allocate those cases to them. That is a matter which the Government firmly believe should be left to the Lord Justice General to decide. Sheriffs principal have not been appointed for the reasons indicated by the noble and learned Lord, Lord Hope, and their lack of day to day practical experience in the criminal courts is as good an explanation as one could seek as to why, because of the particular paths their judicial careers have followed, it would not be sensible for them to sit part-time in High Court work where, whether it is murder or rape cases on the one hand, or less serious cases on the other hand, it is nevertheless dealing with very important matters in the lives of those who are accused in the courts of Scotland.
Lord McCluskey: I trust that those who read this debate will understand that the practice hitherto followed whereby temporary judges are not used in cases where the obligation to impose a life sentence would follow conviction can no longer be maintained because of the provisions of Section 205A. We have a situation in which a temporary judge, having before him an ad hoc depute appointed for the week and assisted by a clerk recently promoted from the sheriff court, will preside over one of these cases and impose a life sentence. I do not regard that as very satisfactory but, plainly, there is nothing very much that I can do about it except to draw attention to it. Therefore, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Baroness Turner of Camden): If Amendment No. 12 is agreed to I cannot call Amendments Nos. 13 to 15 inclusive.
Lord Thomas of Gresford moved Amendment No. 12:
The noble Lord said: I am not too happy about the drafting of this amendment. Rather than "another sentence" it should read "a sentence other than", but I will not detain the Members of the Committee with semantics for the moment.
The Bill envisages a life sentence which is not fixed by law. The Government have it in mind that there can be circumstances in which the mandatory life sentence--the so-called mandatory life sentence--will not be passed. Those circumstances they define by the words "exceptional circumstances". What this amendment and the amendment that is to be discussed with it propose is that the test should not be one of defining exceptional circumstances, but the simple test of what is just and what is not just. If, in the view of the sentencing judge, a sentence would be unjust, then he ought not to pass it. It is a perfectly simple, straightforward test. If the Government reject that as the test it will emphasise to the public at large the point that we have made over and over again, both in connection with this Bill and with the Bill affecting England and Wales, and that is the point that the Government contemplate the passing of unjust sentences. I seek the approval of the Members of the Committee to this amendment on the basis that the test is one of justice or injustice.
"Exceptional circumstances" is a very different concept. The Government say that a judge should not pass the sentence if there are exceptional circumstances. I have listened long and hard to some clarification of what the Government have in mind by that phrase "exceptional circumstances". We know, as the Lord Chief Justice reminded us on the Second Reading of the English and Welsh Bill, that exceptional circumstances are very narrowly defined. I made that point myself in the Committee stage of the English and Welsh Bill. They do not extend to matters that are within the usual experience, which is a wide experience, of the everyday running of the court.
I ask the noble and learned Lord the Lord Advocate to explain at this point what are the exceptional circumstances the Government have in mind. For example, over and over again we who oppose the concept of mandatory sentences have put forward various illustrations of where injustice will arise: the gap in time, the sentence that is passed upon a boy aged 15 in relation to a qualifying offence and which leads to a mandatory life sentence, perhaps for something entirely different, a completely different type of offence, some 20 or 30 years on. Is that an exceptional circumstance? There is the difference between the offences themselves to which I have referred, the difference between the 15 year-old boy indulging in lewd and libidinous conduct with a small child, to which I believe the noble and learned Lord, Lord McCluskey, referred, and an offence of attempted murder or manslaughter or something of that nature. It is a different offence, a different type of offence. Is that an exceptional circumstance, or is that simply to be
The degree of participation of the individual defendant is another matter. If, for example, he is a young man who is on the fringe of the activity and is drawn into a serious conviction through the doctrine of what is in English law a joint enterprise--I believe Scottish law has a separate expression for it, of which no doubt the noble and learned Lord the Lord Advocate will remind us in due course--and if he is convicted, that in some offences requires a different state of mind, a different mens rea than that required for the person who takes the lead in that particular offence. Is that an exceptional circumstance?
Above all, supposing a court is convinced on all the evidence that is presented to it that the particular individual who falls to be sentenced is not a danger to the public, that there are reports showing there is no possibility of a repeat offence of a similar sort and that therefore the whole principle of an indeterminate sentence to protect the public, which lies behind much of the rhetoric that is put with this mandatory sentence concept, is not relevant. If there is no need to protect the public and the judge is satisfied of that, is that an exceptional circumstance?
Before those words are taken into the Bill and passed by this Chamber, some explanation of the scope of the words "exceptional circumstances" is required. I ask that in his reply the Lord Advocate address those questions I put to him directly. I beg to move.
Page 2, line 16, leave out from ("that") to end of line 17 and insert ("it would be in the interests of justice to impose another sentence").
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