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Lord McCluskey moved Amendment No. 56:
After Clause 2, insert the following new clause--
(" . After section 205 of the 1995 Act there shall be inserted the following section--
"Lord Advocate to explain certain prosecution decisions.
205C.--(1) When the Lord Advocate decides to indict a person in the High Court on a charge of committing a qualifying offence within the meaning of Part I of Schedule 5A to this Act or of committing a Class A drug trafficking offence as defined in section 205B(5) of this Act at a time when he is a person to whom section 205B(1)(b) applies, the Lord Advocate shall prepare a full written statement of his reasons for indicting the person in the High Court rather than the Sheriff Court, and--
(a) a certified copy of that statement shall be placed before the trial judge after the person has been convicted and before he has been sentenced or otherwise dealt with; and
(b) the trial judge shall have regard to that written statement before imposing any sentence of imprisonment or detention.
(2) When the Lord Advocate decides to indict a person in the Sheriff Court on a charge of committing a qualifying offence within the meaning of Part I of Schedule 5A to this Act or of committing a Class A drug trafficking offence as defined in section 205B(5) of this Act at a time when he is a person to whom section 205B(1)(b) applies, the Lord Advocate shall prepare a full written statement of his reasons for indicting the person in the Sheriff Court rather than the High Court, and--
(a) a certified copy of that statement shall be placed before the sheriff after the person has been convicted and before he has been sentenced or otherwise dealt with; and
(b) the sheriff shall have regard to that written statement before imposing any sentence of imprisonment or detention.".").
The noble and learned Lord said: I beg to move Amendment No. 56 which has not been discussed. The purpose of the amendment is, I think, plain from its terms. It arises from a concern which I have expressed both today and at Second Reading, namely that the Lord Advocate takes his decisions in secret and he is not answerable either to Parliament or to anyone else in respect of them. I give an example. In a recent case four persons were charged with murder and attempted murder and appeared in the High Court. On the morning of the trial the Crown accepted a plea of guilty to murder in respect of one of them and not guilty in respect of the other three and pleas of not guilty from all in respect of the attempted murder charge. These were people who had been held in custody for in excess of a 110 day period. The Advocate Depute was not able to explain the decision in court and the Lord Advocate, to whom I wrote about the matter, replied chiding me for raising the matter and suggesting that this was not a matter to be raised in public.
I only mention the case to illustrate the point that there can be cases in which the Lord Advocate takes very important decisions of this kind and no one understands them. There was a case many years ago which became quite notorious, the Sweeney case, in which something of that kind happened.
When we come to the provisions of this Bill, particuarly in relation to Clause 1 and the mandatory life sentences, the power of the Lord Advocate will be very considerable indeed because he always has a choice as to whether to indict a case in the High Court or to indict the case in the sheriff court. When he exercises that choice and takes the decision, his decision is taken in secret. It is unreviewable, it is not ever explained and if, indeed, one asks for an explanation of such a
Given the general background of plea bargaining, as happens in jurisdictions where there are provisions of a similar kind, particularly in the United States but not confined to the United States, I think we have to be very careful about the use of the power of the Lord Advocate.
Accordingly, the purpose of the new clause is to require the Lord Advocate to prepare a full written statement of his reasons for indicting the person in the High Court rather than the sheriff court or vice versa and to place that before the court so that there is some public scrutiny and some public answerability in respect of these vitally important decisions which can affect a person's life so dramatically. I beg to move.
Lord Mackay of Drumadoon: As the noble and learned Lord acknowledges, the new clause would require the Lord Advocate to give reasons for the choice of court in which to prosecute any qualifying offence or a drug trafficking offence where an accused had two relevant previous convictions. Where the provisions set out in this clause apply, the court would have to have regard to the statement containing the Lord Advocate's reasons for the choice of court.
Noble Lords may be aware that at present proceedings are taken in the High Court where that is required by law; for example, in cases of murder, rape or treason, or where the court considers that the offence is sufficiently serious, having regard to the gravity of the offence and the accused's previous convictions, to merit a sentence which only the High Court can impose. Exceptionally there will be a small number of cases which are prosecuted in the High Court because of their particular complexity or sensitivity, even though the sentence which might be expected would be one which would fall within the jurisdiction of the sheriff.
Neither Clause 1 nor Clause 2 of the Bill seeks to interfere with the Lord Advocate's discretion to choose the forum in which to indict a case. Nor will this new clause do so, because its only effect would be to require the Lord Advocate to give reasons for exercising his discretion. The noble and learned Lord will be well aware that there is a long-standing convention that the Lord Advocate does not give reasons for such decisions. As he knows, that convention also applies to the Lord Advocate's accountability to Parliament. The Lord Advocate is accountable to Parliament for his actions, but it is only in the most exceptional circumstances that Parliament would seek to have the Lord Advocate explain the reasons for a particular decision. What this new clause would do, however, is to make commonplace what only happens at present in the most exceptional of circumstances.
The noble and learned Lord made reference to some correspondence about a particular case. Obviously, I do not have that correspondence before me, but even if I did, I am doubtful whether it would be helpful for me to refer to the detail of what passed between a senator and the Lord Advocate in private correspondence about a particular case.
The Lord Advocate's decision as to which forum to choose will be based on the whole of the circumstances of the case as known to the Lord Advocate or his Crown counsel at the stage at which the decision to serve indictment is taken. The information which influences that decision, as the noble and learned Lord knows well, is confidential, a fact borne out by the passage from Hume to which I referred in the Second Reading debate. It would be unprecedented for the Lord Advocate to breach that confidentiality by disclosing the information on which the decision was based.
To the extent that the new clause would not require the Lord Advocate to refer to the facts of the case when giving his reasons, I do not understand what the clause seeks to achieve. If the facts of the case are not to be discussed, then the only reason that the Lord Advocate would give for the choice of court would be that the particular court was considered to be a suitable forum in which to trial a case, having regard to the sentencing power of the court and the circumstances of the case as known to him at the date the case was indicted. The Committee will appreciate that that will be little more than a statement of the obvious. But that is almost certainly all that could be said in relation to a qualifying offence where the accused did not have a previous conviction for a qualifying offence. The explanation for the decision might be more complicated in those cases where there was a conviction in the High Court which would require the imposition of a mandatory sentence under Clause 1 or where there were previous convictions relevant to Clause 2.
If it were the Lord Advocate's policy always to prosecute such cases in the High Court unless it appeared to him that the court was likely to hold that there were exceptional circumstances which would justify departing from the imposition of a mandatory sentence, then the noble and learned Lord's new clause would result in the following. Where proceedings were taken in the High Court, the Lord Advocate would give as his reason the fact that this was a case in which the court would be required to impose a mandatory sentence. On the other hand, if proceedings were taken in the sheriff court, the Lord Advocate would state that the case was being prosecuted in the sheriff court because it was anticipated that the court would be likely to hold that there were exceptional circumstances such as to justify not imposing a mandatory sentence. That is if the policy of the Lord Advocate was always to prosecute, unless it appeared to the Lord Advocate that the court was likely to hold that there were exceptional circumstances. Whether that would be the policy that any Lord Advocate would follow I would not begin to commit myself to at this stage.
Again, I have great difficulty in seeing what all this would achieve. There is, however, another objection. If, as I believe the noble and learned Lord, Lord McCluskey intends, the intention is to force the Lord Advocate to make his position clear before the case is called to court, that is fundamentally objectionable. The decision as to forum is taken in the light of the facts and circumstances as known to the prosecutor at that stage in the proceedings. As Hume, as I recollect it, has said, it is well known that the Lord
For all these reasons, I hope that the noble and learned Lord will be persuaded that it would not be appropriate to have a clause in the Bill in the terms set out in Amendment No. 56.
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