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The Earl of Mar and Kellie: I need to apologise to the Committee for tabling this Motion. I was somewhat concerned about the implications of the early release scheme on someone who had achieved a backdating sentence to include their time spent on remand in a psychiatric hospital. During the course of the evening it has come to my notice that someone who is in a psychiatric hospital during the course of a sentence will be credited with the maximum early release. If I can be assured that I have understood that the maximum early release points will be granted automatically to someone who spends part of their sentence in hospital, then I should be able to withdraw my opposition.
Lord Mackay of Drumadoon: I am happy to confirm that the matter is dealt with in Clause 38(2), and that the noble Earl's understanding is correct.
Clause 12 [Increase in sentences available to sheriff and district courts]:
The Deputy Chairman of Committees (Lord McColl of Dulwich): If Amendment No. 102A is agreed to, I cannot call Amendments Nos. 103 to 105A.
Lord Macaulay of Bragar moved Amendment No. 102A:
The noble Lord said: The amendment deals with increasing the powers of sentencing in the sheriff court in Scotland. It is part of the insidious erosion of the quality of Scottish justice that the sheriff court should be given the powers proposed in Clause 12. At one time the sheriff court could not impose a sentence of more than two years, but the sheriff had the power to remit the case to the High Court if he or she thought that the two years was not sufficient to deal with the case as he or she had heard the evidence. The same has applied since the limit was raised to three years.
To raise the powers of the sheriff court to five years is what I would call a quantum leap in sentencing in the judicial system of Scotland, and it is unjustified. I am trying to recall what the Lord Advocate said on Tuesday. It appears to me--I may have it wrong--that what we are now getting, not just in Scotland but in England, is Treasury-led justice--trying to get justice on the cheap. It goes without saying that cheap justice is bad justice.
Five years is a long time to send anyone away to prison for whatever crime he or she may have committed. We must be extremely careful into whose hands we, as a responsible body--namely, the Parliament of the UK--pass that responsibility. There is no protection for the accused within this proposal.
I do not know how many temporary sheriffs there are, but I shall ask the Lord Advocate--I do not expect him to do it tonight--to publish for the benefit of all of us
What protection will be given to the accused and to the legal system of Scotland if people appear randomly from nowhere in various jurisdictions and are left with the power to sentence someone to five years' imprisonment? There is no consistency in sentencing. You can have as many conferences, training schools and judges as you like telling sheriffs or temporary sheriffs about the way in which they should approach their job, but you will not get consistency.
The situation is not unknown. I remember a colleague of mine at the Bar who was sitting in Dumfries when he received a telephone call from what is now the Scottish Courts Administration. He was asked whether he could be in Aberdeen the next morning. In fact, he refused to go and for a short time had a red star against his name indicating that he was not very co-operative. Perhaps it took him a little while to get back in with the establishment before he was given a full-time post.
I am most concerned about the proposal. The amendment proposes the deletion of subsection (1). As the Deputy Chairman of Committees indicated, if it is agreed to, it will negative all the other clauses. I am sometimes astonished when I pick up the local newspaper in Glasgow, Edinburgh, Dundee or Aberdeen and see the names of some of the people who are sitting as sheriffs. I wonder what qualifications they have and why they in particular have been given the enormous task of guiding a jury through perhaps a complex case and deciding on the sentence.
If the Government's ultimate aim in fact and in honesty is to destroy the High Court of Justiciary in Scotland as a court of first instance and pass all the crime to the sheriff court on the basis that it will become a Crown Court of Scotland, let them be honest about it. If they want to turn the High Court of Justiciary into an appellate court only, let us get on with it. There is no point in messing about in this piecemeal fashion, going from two years to three years to five years. Will we have another Bill next year to make it seven years and another Bill the following year to make it 10 years? Fortunately, the noble and learned Lord the Lord Advocate will be in no position to make that decision because he will not be sitting on that side of the Chamber after 1st May. Be that as it may, the thought of a sheriff being able to impose a sentence of five years in the sheriff court is appalling and fills me with a certain degree of horror.
We have heard a great deal about the English system; England has been referred to many times during the debate. We have another problem in Scotland, which is the availability of counsel in the sheriff court. If the sheriff court is to be given the power to impose five
Will the Government give an assurance that if the clause is agreed to there will be availability of choice to people who are accused and brought to trial in the sheriff court in solemn procedure on indictment and they will not be forced either to take a solicitor advocate who will normally practice in the sheriff court or to take what is being broadly referred to as the public defender within the context of this Act? Not only must we protect the victim but a decent system of justice must also protect the accused from wrongful conviction. I do not need to go into recent events in England to show how things can go badly wrong, depending on the representation made on behalf of the accused.
This amendment is not tabled in any light-hearted manner. It relates to one of the most serious clauses in the Bill. For that reason, it is a rather draconian amendment to place before the Committee, but it is there to focus on the situation as it is in Scotland. We wish--and I think that most people in Scotland involved in the administration of justice wish--the High Court to remain a court which is respected and to which people go only for the most serious crimes. They do not want a second-class system of justice in the sheriff court.
In making that remark, I do not wish in any way to demean the hard work that sheriffs and temporary sheriffs do. But in view of the sentence to be imposed, we need to establish a Rolls-Royce system of justice in the criminal courts. The Government's proposal to increase the powers of the sheriff court so that it can impose sentences of five years' imprisonment will certainly bring the Rolls-Royce to a halt. I beg to move.
Lord McCluskey: I rise because this amendment and a number of amendments that I propose have been grouped together. I find it a matter greatly to be regretted and deeply disturbing that we come to what is an extremely important clause in the Bill at a time when there are only nine persons present in the Committee. I hope that it will be recorded that there are nine persons present, including the Minister and the Whip, one other Back-Bencher on the Government Benches, and the rest are Front Benchers, apart from myself and one other Cross-Bencher. That is deeply disturbing because this is a matter of constitutional importance which we are discussing at a late hour of the night on a very important Bill.
The matter needs to be looked at fairly deeply. As the noble Lord, Lord Macaulay, indicated, until 1987 the period of sentence which a sheriff could impose was a maximum of two years. That was amended in 1987 under Section 58 of the Criminal Justice (Scotland) Act 1987.
Of course, the sheriff had, as he still would have under the amended 1995 Act, the power to remit a case to the High Court. But the need to remit will be dramatically diminished because he will be able to impose a sentence of five years.
Perhaps I may remind the Committee what two years meant; what was the effect of a sentence of two years which a sheriff imposed prior to the coming into force of Section 58 of the 1987 Act. In those days a sheriff could impose a sentence of two years, and effectively the prisoner received one-third off for remission and accordingly the effective period was 16 months. That was the effective sentence that the sheriff could impose.
When the 1987 Act was a Bill and was discussed in another place in Standing Committee, the then Solicitor-General for Scotland, now the noble and learned Lord, Lord Fraser of Carmyllie, justified it on the basis, first, of the Grant Report which in 1967 recommended that sentencing powers on indictment cases should be increased. The Committee should note that the Grant Report was a report of a committee presided over by Lord Grant, who was the Lord Justice Clerk for Scotland. Therefore, once again that was an instance of the judges being used quite properly by the Government in relation to important matters of sentencing and criminal procedure. That is in total contrast with the nonsense written by the current Solicitor-General for Scotland suggesting that judges should "keep out of politics".
Apart, therefore, from the Grant Committee in 1967, the next body to consider the matter was the Thomson Committee sitting under Lord Thomson, a judge of the Court of Session and a Lord Commissioner of justiciary. That committee produced three reports and there were others sitting on that committee who were or became judges including, if I recall correctly, Lord Dunpark. Therefore, the Thomson Committee reached the same conclusion that the sentencing powers of the sheriff should be increased. The third body to consider the matter was the Maxwell Committee sitting under Lord Maxwell, who was yet another judge of the court who was brought in by the Government for the purposes of guiding the study.
So we have the Grant Committee, the Thomson Committee and the Maxwell Committee respectively for the 1960s, the 1970s and the 1980s, heavy use of judges on criminal procedure and sentencing, a deep study preceding the Bill--every one of these bodies hearing evidence from outside--and an idea which matured for some 20 years before Parliament agreed in 1987 to raise the sentencing power of the sheriff from two to three years. I contrast that with the present situation where absolutely no study whatever preceded the proposal. If the noble and learned Lord the Lord Advocate can tell me that I am wrong in that respect, I hope that he will do so in the clearest terms. Perhaps he can tell me who conducted the study, who was invited to give evidence, who gave evidence to it, and who approved of it. I know of nothing of that kind except in relation to the White Paper. So far as I can tell, the responses to the White Paper had very little effect upon the contents of the Bill. Therefore, so far as I can see, there was no effective consultation in relation to the matter.
There was no study preceding this proposal. It has come out of the blue; it has not taken 20 years, 20 months or even 20 weeks for us to move suddenly from the period that was recommended after deep consideration by the Government, according to the then
I believe that the late Lord Morton of Shuna adopted a similar line when the matter was discussed in this Chamber.
As a result of the amendment made in 1987, the two-year period was raised to three years. As Members of the Committee will instantly recognise, that was a 50 per cent. increase. So the effective length of the sentence went from 16 months to 24 months. I hope that noble Lords will bear those figures in mind. Then, Section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 increased the remission in respect of persons sentenced to prison for less than four years to one half. Accordingly, the effective sentence that a sheriff could impose was one half of 36 months, so the period was down to 18 months. That was the effective length of the sentence under the 1993 Act.
The present Bill would, first, increase the sheriff's period of sentence to five years; that is 60 months. I put the figure into months for easy comparison with the other figures. Secondly, in a part of the Bill that has not yet been dealt with, it would abolish the remission created by the 1993 Act and replace the one-half remission by a remission of a maximum of one sixth. Therefore, the effective imprisonment that the sheriff may impose goes up in one leap, so to speak, with two strands to it--if I may mix my metaphors in that way--to 50 months.
Perhaps I may remind Members of the Committee of the figures: pre-1987, 16 months; 1987 to 1993, 24 months; 1993 to 1997, 18 months; and the figure for 1997 is 50 months plus. So you almost treble the sentencing power of the sheriff in one go. As I said, that was preceded by no study that I can determine, no consultation that meant anything at all, and no deep reflection. It is just the sudden decision of one or two Ministers behind the scenes to make a dramatic change in the criminal justice system of Scotland. I cannot exaggerate the importance of it and I do not believe that the noble Lord, Lord Macaulay exaggerated the position. What on earth is the hurry?
My amendment might at first sight seem a retrograde step. We reduce the three years to two, but we must think of the effective sentence. As I have said, at the moment three years means 18 months. By reducing it to two--and accepting the early release provisions of the Bill--we arrive at two years less one-sixth; in other words, we reduce it from 24 months to 20 months. The effect of my amendment, reducing the period of three years to two years, is to give the effective power of the sheriff an increase from 18 to 20 months. If one wants to increase the power of the sheriff, one does so in this particular way.
These are important matters. On a separate tack, I have deep reservations about giving sheriffs the power to impose a sentence of this character. As I say, it is almost
I shall not mince my words. Far too many of the sheriffs are temps. On far too many occasions one sheriff hears the trial or takes the plea, a different sheriff hears the adjournment of the consideration of the sentence, and yet a third sheriff imposes the sentence, or bats it back to the first or the second. Therefore people accept, or do not accept, responsibility. Many of the temporary sheriffs are competent, but not all of them. There are some people sitting as temporary sheriffs today who are not fit to sit on the shrieval bench. There are sheriffs about whom we in the High Court have written to the Lord Advocate of the day pointing out that they are not fit to sit. These people are to be given a power now enjoyed by the High Court judge.
But quite apart from the quality of some of the sheriffs, which is poor, the quality of the whole sheriff court is not really worthy of a court which can send people to prison for this period of time. I shall not go into that until I have heard what has been said. When the Government justified--on the basis of the Grant Committee, the Thomson Committee and the Maxwell Committee reports--the move from two years to three years, the then Solicitor-General put before the other place the number of High Court cases and justified it on the basis that there was a substantial increase in the High Court cases and accordingly sheriffs had to be given a greater power. I hope we shall hear the figures equivalent to those figures tonight, and that they will be compared with the 1987 figures. Unless we do, and unless the figures are convincing, one will be forced to agree with the conclusion--which I shall be reluctant to agree with--advanced by the noble Lord, Lord Macaulay, that this is a Treasury-led experiment with justice. I regard that as extremely dangerous.
I also draw attention to the other feature which I mentioned in my speech at Second Reading. I cannot over emphasise this. Because the Lord Advocate enjoys the power to determine which court a person is indicted in, this increase in the sheriff's power from an effective sentence of 18 months to an effective sentence of 50 months is a massive increase in the power of the Lord Advocate. It gives him the right to decide which court a person will be indicted in and what kind of court. As the noble Lord, Lord Macaulay, has pointed out, there is also the danger that at present legal aid is not allowed for the employment of counsel in the sheriff court. If that is carried through into this measure, people will not be represented by counsel and yet could be sent to prison for what is the equivalent today of a six and a quarter year sentence.
These are deep and serious matters. They should not be brought forward in this fashion, so late in the life of a Parliament and in the run-up to a general election. I do not know what the Government are thinking of in treating the Scottish criminal justice system in this deplorable fashion.
Page 19, line 31, leave out subsection (1).
9.30 p.m.
"although we are right to express some of our doubts, I think that we should now let the matter go".
9.45 p.m.
Lord Mackay of Drumadoon: The amendment moved by the noble Lord, Lord McCluskey, is grouped with a large number of amendments, although they do not all deal with this issue. For the convenience of the Committee, it might be helpful if I go through them all at this stage and then deal with the points that both noble Lords have made.
Amendments Nos. 103, 104 and 107 propose to revert to the position before 1988 when the last increase in sheriff solemn sentencing powers occurred. The amendments would reduce the existing powers of the sheriffs to two years. We have had proposals to maintain their power and those of the stipendiary magistrates and sheriffs sitting in the summary court at their present level. That is covered by Amendment No. 106A.
Amendments Nos. 103A, 104A, 105A and 107A propose an increase in the maximum sentencing powers from three to four years instead of five, as in the Bill. Amendment No. 102A would not allow any increase to sheriffs and jury trials. Amendment No. 106 would not permit an increase in sheriff summary powers. Therefore there are a great number of options open to the Committee when one goes through the range of the amendments.
These amendments have not been inspired by the Treasury, as has been suggested, but because the Government believe, as was set out in the White Paper and as was explained in another place, they would assist the operation of the courts and the criminal justice system of which these courts form part. They would increase the level of flexibility and relieve pressures which exist in the system from time to time. I shall have more to say about that in a moment.
They would also provide sheriffs with a range to determine the most appropriate sentences for the cases before them without the need to remit to the High Court for sentence. I accept that that power exists, but experience in recent years indicates that it is a power used infrequently and only in the most serious cases. Undoubtedly the proposals will have implications on the marking policy of the Lord Advocate and his Crown counsel, but, as I have explained to the Committee and indeed at Second Reading, the role of Crown counsel is well established. I see no reason why any proposals in the Bill, let alone these, should cause Crown counsel to depart from the high standards which they have sought to achieve over the years.
As the noble and learned Lord, Lord McCluskey, indicated, the matter was last considered in 1994 when the consultation document, Sentencing Appeals: Improving the Delivery of Justice in Scotland, was published as part of the Government's proposals. Since that time there have been a number of developments, particularly in the High Court.
In the year 1995-96 there was a 36 per cent. increase in the number of cases called in the High Court of Justiciary on the previous year. As I am sure the noble and learned Lord, Lord McCluskey, will be aware from his experience, the court is now sitting much longer than it used to. It faces an increasing number of adjournments as cases are transferred from one circuit to another.
I should explain to those noble Lords who are not entirely familiar with the procedure for the operation of the High Court in Scotland that circuits occur in various towns and cities in Scotland to which a number of cases are allocated. The circuit normally lasts a period of two weeks before, in busy cities such Glasgow or Edinburgh, the next circuit begins and the judge allocated to the circuit returns to Edinburgh to conduct other business. The experience has been that there have been numerous occasions when cases indicted for one circuit cannot be tried because there is insufficient court time. That is a major practical problem, not only for the court but for practitioners as well. The volume of business in the High Court is increasing.
If the noble and learned Lord, Lord McCluskey, wishes to have more precise figures I am happy to provide them. I have already referred to the figures for 1995-96. For the initial period in the year 1996-97 again there were increases. As we are rapidly coming to the end of that period, it should be possible for me to write to the noble and learned Lord giving a fairly clear indication of what level of increase we are dealing with compared to the previous year.
The number of cases indicted is increasing, as is the number of days on which the court sits. So there is a major practical problem to be faced by the Crown, which has to prosecute in the court, by defence counsel and solicitor advocates, who defend there, and by High Court judges who sit there.
For that reason it appears to the Government that there is scope for re-examining the issue of transferring cases to the sheriff and jury court, which would be one of the practical consequences of the Government's proposals, and, for instance, transferring cases at the lesser end of gravity that are currently tried in the sheriff and jury court into the sheriff summary court. For those reasons we are unable to accept the amendment proposed by the noble Lord, Lord Macaulay, which would seek to negate our proposals.
At this stage it might be helpful to mention that in the sheriff summary court sheriffs already try a number of cases where the maximum period of imprisonment is 12 months. They lie in the field of contraventions of the Misuse of Drugs Act. As the Committee will appreciate, such offences are quite regularly committed in Scotland. It is not uncommon for sheriffs sitting on their own deciding issues of guilt and the question of sentence to send offenders to prison for a period of 12 months. So far as the sheriff summary court is concerned the proposal is to give that power in relation to all offences unless the maximum sentence is a lower figure specified by Parliament. In certain cases of police assault under the Police (Scotland) Act they have power to impose sentences of nine months. Therefore we believe that
there is no significant problem in increasing their share of summary powers up to 12 months, and certainly no major constitutional issue arises on that matter.Another important development since the matter was last looked at by the Government and by Parliament is the power of the Appeal Court to issue sentencing guidelines. As I have already indicated to the Committee, the Crown would welcome the use of that power.
Another topic is the issue of judicial training. I think it was the noble Lord, Lord Macaulay, who suggested that no amount of lectures would achieve consistency. I have slightly more faith in the value of judicial training. Certainly those members of the English judiciary, both permanent and part-time, to whom I have spoken place great faith in, reliance upon, and commend the efforts of, the Judicial Studies Board in England. The noble Lord, Lord Macaulay, will be aware that, upon the installation of the noble and learned Lord, Lord Rodger of Earlsferry, as Lord President, he made it clear in the remarks he addressed to the court that day that he too would welcome developments in the field of judicial training, so presumably he shares my view that there is benefit in it.
It is for that reason that the Government have put resources into the matter and are very grateful that the recently retired Lord Justice Clerk, Lord Ross, has agreed to play an important role in setting up the committee and putting judicial training in Scotland on a more formal and extensive basis than has been the position until now.
A number of points were raised by the noble Lord, Lord Macaulay. Perhaps I may deal with some of them, without seeking to comment on every one of the criticisms he made of the Government's proposals.
He mentioned the issue of temporary sheriffs and invited me to publish a list of everyone who is a temporary sheriff. I am happy to consider that matter. It cannot be anything other than a matter of public record who the temporary sheriffs are and what their ages and professional qualifications are. I think the noble Lord wanted to go beyond that and explore their motive for doing the work--whether it was limited to earning a little money on the side, or something of that kind. Whether it would be appropriate to form a view on that matter and publish it, I rather doubt; but certainly, if there is a concern that the names, ages, and professional qualifications and current positions of temporary sheriffs are not known, I see no reason why that should not be addressed.
Clearly, temporary sheriffs have to sit in different parts of Scotland, but that is because there are variations in the volume of business from time to time in different parts of the country. There are over a hundred permanent sheriffs. They are entitled to so many weeks' leave each year; on occasion they fall sick and require to be replaced by temporary sheriffs, attend courses or are seconded to do other work which takes them away from their regular shrieval duties.
The temporary sheriffs have an important role to play in the day-to-day management and staffing of the courts and, if they are interested in a permanent appointment,
they are also provided with a useful opportunity to explore whether this is a post that they really wish to have and for which they feel they are qualified. Equally the system assists those involved in the appointment of permanent sheriffs to receive reports.The commissions of the temporary sheriffs are reviewed annually at the present time. They are formally reported upon each year by the sheriffs principal. As the noble and learned Lord, Lord McCluskey, indicated, from time to time the Appeal Court has written to the Lord Advocate of the day complaining about the performance of individuals who have sat as temporary sheriffs. Without breaching any confidentiality, I am in a position to assure the Committee that when such reports are received they are acted upon: the papers in the case are called for, reports are obtained from those involved and the renewal of the commission is by no means automatic.
The allocation of work in the sheriff court is a matter for the sheriffs principal. They decide which permanent sheriffs do which cases and what use they make of temporary sheriffs within their jurisdiction. We believe that that is the correct approach, in the same way that I explained to the Committee earlier in our deliberations. So far as the High Court is concerned, how the business falls to be allocated is a matter for the Lord Justice General. Because we believe that temporary sheriffs have a role to play, we are content to leave it to the sheriffs principal to decide which work they do. In the same way, the Lord Justice General no doubt has regard to the complexities of individual cases in deciding which judges to allocate to which cases. So there is every reason to believe that sheriffs principal, who are all experienced lawyers, would do likewise.
The noble Lord, Lord Macaulay, raised the question of the availability of defence lawyers in the sheriff court. In the sheriff court, there is the opportunity to be defended by solicitors, whether or not they are qualified as solicitor advocates. There is also the opportunity to seek authority from the legal aid fund for the employment of counsel. The Government have no plans in the context of this Bill to reform the legal aid scheme. They are content to leave it to the Legal Aid Board to decide in relation to particular cases whether the employment of counsel is justified. Obviously, if there is an increase in the sentencing powers of the sheriff, it is possible that the Legal Aid Board will take the view that there is more scope for sanctioning the employment of counsel in a particular case than there may be at the present time. But that is a matter for that body.
I resist quite firmly the suggestion that this proposal is put forward, as the noble Lord, Lord Macaulay said, in some way to erode the quality of justice in Scotland and to reduce it from a Rolls-Royce system to something much less. I believe that that view will be shared by many others who currently practise in Scotland, although I recognise that it is not a view shared by everyone who has spoken tonight and certainly not everyone who responded to the consultation document, about which I shall have more to say in a moment.
I turn to the points made by the noble and learned Lord, Lord McCluskey, who accurately, as one would expect, went over the history of the Grant, Thomson and Maxwell Reports. He will recall that in 1994, when consultation took place, the issue of increasing the sentencing power of the sheriff and jury court to four years was seriously considered.
I do not suggest that there has been an examination in the same way as occurred with the reports under the chairmanship of the High Court judges in bringing forward these proposals, but they were set out quite firmly in the White Paper and were responded to by many parties. My information is that a total of 31 responses to the White Paper were received. On this particular issue, 15, including those members of the senior judiciary who responded, were against the proposal; and 14, from most of the bodies representing those interested in the work of the lower courts (including the professional associations, which are composed of solicitors and solicitor advocates) and the sheriff association, supported the matter.
The proposals had a measure of support, but equally they had a measure of opposition. It is a matter of regret that the noble and learned Lord, Lord McCluskey, considers that these proposals will cause deep resentment. I do not believe, and my understanding of the views of those who practice in the sheriff court is, that that resentment would be universally shared. Clearly there is scope for differing views. But in view of the factors that I have mentioned, in particular the increase in the number of cases being indicted in the High Court, in the lengths of trials and in the number of adjournments, there is scope for looking at the matter again. That is what has been done.
Fortified by the additional safeguards provided by the power which the High Court has to lay down sentencing guidelines--a power which to some extent is reinforced by the Lord Advocate's power to appeal against unduly lenient sentences and by the right of an accused to appeal against sentence--we believe the guidelines provide a safeguard and judicial training will fortify that safeguard. These are important measures and ones which ought to command the approval of the Committee. I hope therefore that the Committee will not support Amendment No. 102A in the name of the noble Lord, Lord Macaulay, or any other amendments focused in the group we are presently debating.
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