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Lord Mackay of Drumadoon: I think it would assist the Committee if I limited my response to deal with two matters which the noble and learned Lord mentioned. One was the suggestion that my predecessor had picked for that committee those who supported the idea which it was to examine. I regret that such an allegation was made. It is an allegation that those who know well my noble and learned friend Lord Rodger of Earlsferry will know has no foundation whatever in fact. I hope that on further reflection the noble and learned Lord will not persist in it.
As regards my searching the sentencing information system for the information which the noble and learned Lord seeks, I regret that on this occasion I am unable to assist because, as he may have forgotten, that system is private to the judges. Neither the Crown nor defence lawyers have any access to it whatever. But as I see no reason why the public should not be aware of the information which he seeks, tomorrow I shall invite the Lord Justice General to search the system on my behalf and I hope that the information will be available for Monday or, if not, for the Report stage of the Bill.
Lord McCluskey: I do not propose to press the matter at this time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar had given notice of his intention to move Amendment No. 103A:
The noble Lord said: We have been over the course probably twice too often in the course of the evening. I do not press this amendment today but I reserve the position for Report stage.
[Amendment No. 103A not moved.]
[Amendments Nos. 104 and 104A not moved.]
Lord McCluskey moved Amendment No. 105:
The noble and learned Lord said: This amendment has been grouped with others but it is a separate matter because it relates to the summary sentencing power of the sheriffs. Again, I do not wish to weary the Committee at this late hour, although there are not many to be wearied. But at present the sheriff has power to send a person to prison for three months which effectively for reasons that I have already explained is a period of six weeks, and in the case of a second or further offence of dishonesty or personal violence he can impose six months, and there are one or two higher powers to which the noble and learned Lord the Lord Advocate referred at an earlier stage.
Under the Bill, the effective power of the sheriff will be increased in the maximum case from, presently, 12 weeks to a period of 40 weeks. That is a massive increase in the power of the sheriff. I make it a 333 per cent. increase in the effective power of the
There is another feature of this to which I wish to draw attention. In England at present there is considerable disquiet, as I understand it, at the possibility that the right to jury trial will be removed from a number of people in certain circumstances. I know nothing about the merits of that. But if we allow the sheriff to have the power to send a person to prison for an effective period of 40 weeks instead of 12 weeks or for 20 weeks instead of six weeks, in effect we are saying, "You can now go to prison for such a lengthy period without the benefit of jury trial in Scotland". All of a sudden a large number of people are to be deprived of the right to jury trial, which they would enjoy at the moment before they faced a sentence of that length.
Again, I must raise the question: who is it who decides whether a case is to go summarily or on indictment? The answer is the Lord Advocate and his staff. Is it done in public? No. Is it reviewable? No. Are they accountable for it? No. I regret to say that I stay with the constitutional principle that you should not give Ministers powers of this kind if they have not established a need for them. I am not convinced that the power that we are conferring upon the Lord Advocate in relation to the allocation of cases in this fashion has been demonstrated to be necessary. I beg to move.
Lord Mackay of Drumadoon: I do not offer any criticism in this respect, but I believe that the noble and learned Lord has just spoken to Amendment No. 106 rather than Amendment No. 105, which is the one that the Deputy Chairman of Committees called. However, to avoid further delay, perhaps I may respond briefly to it.
Lord McCluskey: I am sorry. The Marshalled List is incorrect. There has been an unfortunate mistake which I did not notice. Amendment No. 105 ought to be printed under my name and not that of the noble Lord, Lord Macaulay of Bragar. Therefore, when my name was called, I spoke to the next amendment that I had tabled.
Lord Mackay of Drumadoon: I am happy to respond to the substance of the argument, whatever the precise amendment may be, in the hope that that may save time.
I do not dispute the arithmetic of the noble and learned Lord as to the increase in the period spent in custody as a result of later proposals in the Bill. However, as I indicated earlier, I believe that if Parliament has previously entrusted sheriffs with the power to send people to prison for 12 months in the knowledge that the provisions for early release tend to vary from time to time--possibly more frequently than some noble Lords would wish--there is nothing
The issue of a jury trial is a separate matter. As the noble and learned Lord knows, there has never been the right to jury trial which there is in England. I understand that there is some misunderstanding in England as to how far back that right has existed, certainly as regards the type of cases which would be tried in the sheriff court in Scotland and which under current proposals would attract up to a period of five years' imprisonment. However, that is a debate for another country and another day.
I regret to say that I have a greater faith in the competence and experience of sheriffs to do justice in the sheriff summary court than could be inferred, whether or not this is the intention of the noble and learned Lord, from some of the comments that he and the noble Lord, Lord Macaulay, have made in the course of the past hour or so. It would be wrong, in my submission, to give any credence whatever to the suggestion that the people of Scotland should understand that they receive inferior justice if they are tried by a sheriff than if they are tried by a sheriff and jury. It would be unfortunate if that conclusion were to be drawn from the comments that have been made. However, having regard to the hour and the discussion that we have had on previous amendments, it may not be necessary for me to say any more on the matter, especially as it is not of relevance to Amendment No. 105.
Lord McCluskey: I accept that I addressed Amendment No. 106. That was the next one standing in my name on the Marshalled List, which is plainly wrong. I apologise for that fact. However, we would not, of course, be dealing with Amendments Nos. 105 or 105A, for reasons that are plain.
In relation to the substance of the matter, the right to jury trial is effectively going to be lost by people who face imprisonment for between 13 and 40 weeks. At the present time if they face such imprisonment they have the right to a jury trial; in future it will be lost. This is an important matter and I regret to say I am not satisfied by the answers I have been given. However, at this hour of the night, I do not propose to press this matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 105A to 108A not moved.]
The Deputy Chairman of Committees: I understand that Amendment No. 109 should be in the name of the noble and learned Lord, Lord McCluskey.
Lord McCluskey moved Amendment No. 109:
The noble and learned Lord said: There is a mistake in the Marshalled List. This amendment should be in my name. This is specifically directed at a point which is already clear from the earlier discussion. At the moment the temporary sheriff can impose the same sentence as the permanent sheriff. Under the provisions of the Bill--if it comes into force, of course--all the sheriffs will have the increased power to which I have made reference, and the arithmetic of which is not in dispute.
I think it would be highly unsatisfactory that people who are temporary sheriffs--some of whom turn out to be plainly unsuitable and some of whom do not find their commissions removed--are given a power which now is enjoyed only by a High Court judge. For the reasons that I have already explained, I am opposed to this.
I see a vast number of appeals from sheriffs because I see about a fifth or a quarter of all the appeals in Scotland as a sifting judge, a sifting appeal judge, or as a judge sitting in the Criminal Appeal Court. I am not satisfied. I do not have the same confidence in the sheriffs and temporary sheriffs that the noble and learned Lord the Lord Advocate expresses. One sometimes finds that people who occupy temporary judicial office seek to impress someone by being rather macho in their sentencing. One gets this impression from time to time. It is an impression which I have discussed with my colleagues in the Criminal Appeal Court, some of whom rank even higher than I in the judiciary, and it is not a matter upon which there is much disagreement. In those circumstances I hope the Government will undertake to think carefully about the suggestion that temporary sheriffs should not have the power to impose the full sentence. I beg to move.
Page 19, line 34, leave out (""five") and insert (""four").
Page 19, line 37, leave out from beginning to ("and") in line 6 on page 20.
10.45 p.m.
Page 20, line 21, at end insert--
("( ) Notwithstanding anything contained in section 3 of the 1995 Act, no person appointed under section 11 (temporary sheriffs principal and sheriffs) of the Sheriff Courts Act 1971 shall impose a sentence of imprisonment or detention exceeding two years.".").
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