| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord McCluskey: I hope that those Members of the Committee who are interested in the administration of justice will take the opportunity to read Chapter 5 of the Sutherland Committee's report. The Lord Advocate has quoted some of the arguments against the proposal but the arguments for the proposal are set out fully in the report. I would simply refer to two of them, although there are others.
One of them is in amplification of the point I have already made; namely, that it is constitutionally inappropriate for the Secretary of State, a member of the executive, to play any part in the process, and in particular to exercise what amounts to a quasi-judicial role in such a process. The argument is summarised as follows:
- "In particular concerns were raised about the ability of a Government Minister to maintain a detached position in the face of what can be high profile and semi-political campaigns in particular cases".
That was one of the arguments. I do not understand why it should be that the judgment in England is that the Secretary of State should withdraw from the process and that an independent body should be set up but that the Secretary of State for Scotland should continue with the role. I have experience of the operation of this and can endorse one of the other points that was made. That was in the following terms:
- "While there was little specific criticism of the current arrangements it was deemed inappropriate that those agencies which had secured the original conviction were also responsible for investigating alleged miscarriages of justice in relation to that conviction".
The most striking case of all is the case of Meehan. I know it extremely well because I was part of the prosecution team. I was very unhappy about aspects of that case. I have not made my unhappiness secret. I gave evidence about it both to the Hunter Committee on the Meehan case and also, I think I am correct in saying, before Sutherland. The case was not one of which the Crown Office can be proud--the prosecution of Meehan and the attempts that were made to block the advancement of his case. In due course, Meehan was released, but long before he was released the Secretary of State was approached and decided to investigate the matter. What did he do? He came to the Crown Office and asked the Crown Agent to investigate the matter. The Crown Agent, who had been heavily involved in the original prosecution, passed the matter to the Deputy Crown Agent, who was also heavily involved in the original prosecution. The investigation went on for quite a long time. In other words, the Secretary of State had no independent investigative powers at all. Of course the Crown Agent had very little in the way of independent investigative powers. So what did he do? He called in the police. The essence of the case of Meehan was that the police had fiddled the evidence, so the police then investigated themselves. Fortunately, owing to circumstances which are well known to those who are familiar with the Meehan case, eventually, someone having died, his solicitor was able to come forward and say, "Before he died, this man put me in possession of information which plainly shows that Meehan was not guilty." Accordingly, two fresh policemen were brought in, quickly discovered that that was so, and Meehan was able to be released.
The whole history of the Meehan case is one that indicates with great clarity the imperfections of the existing system. I agree that the Bill improves the appeal criteria, but it does not solve the underlying problem which is mentioned as one of the arguments; namely, that it is inappropriate that those agencies, whether the
Crown Office or the police, that had secured the original conviction are also responsible for investigating the alleged miscarriage of justice.It is in that same context that the report noted the argument that the current consideration of cases by the department was not rigorous, transparent or thorough enough. Of course there are arguments both ways, and the committee fairly set them forth. But the committee, which was a most distinguished committee, with prosecutors, policemen, a judge--in fact two judges as it turns out now--and others involved, some of the most knowledgeable people in Scotland on the question of criminal justice, unanimously recommended that this should be done. It is accordingly extremely disappointing to discover that the Government are not prepared to accept it. I hope that in future the matter will be considered yet again. In the meantime, I beg leave to withdraw the amendment. I shall not move Amendments Nos. 123 to 127.
Amendment, by leave, withdrawn.
[Amendments Nos. 123 to 127 not moved.]
6.15 p.m.
Lord McCluskey moved Amendment No. 128:
After Clause 23, insert the following new clause--
(" .--(1) Section 65 (prevention of delay in trials) of the 1995 Act shall be amended as follows.
(2) In subsection (1), the words from "forthwith" to the end of the subsection shall cease to have effect.").
The noble and learned Lord said: This amendment can be dealt with very briefly. In 1996 a court of five judges, which is the High Court of justiciary sitting in its full capacity, considered whether or not certain decisions taken earlier by courts of three judges were correct and finally decided to overrule those decisions. The five judge case was called Gardner v. Lees. Putting the matter shortly, the Bench of five judges unanimously declared that accused persons had a right, which I myself described as being of a constitutional character, not to be prosecuted if, having been charged on petition with a certain type of offence, the prosecution was not brought to a conclusion within 12 months.
We in Scotland are very proud of the fact that we have certain time limits on prosecutions. The most famous one is the 110-day rule. One cannot be detained in prison awaiting trial for more than 110 days. One must be brought to trial within that period. There are possible exceptions but they are very rarely encountered in practice. We took a great step forward in 1980 when we introduced the 12-month rule. A person charged with a serious offence on petition had to be brought to trial within 12 months of the charge. That person would usually be at liberty. The case of Gardner v. Lees decided, broadly speaking, that if he was not brought to trial within that period of 12 months he could not be brought to trial before a summary court.
That was the position taken by the court in January or February 1996. On 25th April 1996 the Minister responsible wrote to the Lord Justice General saying that
The then Lord Justice General wrote in response,
So there was no support offered by the then Lord Justice General and no other judge was informed or consulted about the matter.
I can inform the Committee that we did not know the legislation was proposed; we did not know that it had been enacted and I discovered it only from an article in a learned journal and brought it to the attention of Scottish judges at the weekly meeting. They thus discovered that effectively behind their backs the legislature had altered the constitutional right, as I called it, that had been recognised in Gardner v. Lees. That is not a proper way to legislate in relation to criminal justice in Scotland. I shall avoid using epithets that might give offence, but it was not a proper way to legislate. I suggest that the proper course is to repeal that legislation in the way that I now propose. If the Government wish to bring it forward on some other occasion, let us do it and then look at the constitutional and other implications. I beg to move.
Lord Mackay of Drumadoon: The noble and learned Lord's amendment seeks to reverse the law from what came into effect after the Criminal Procedure and Investigations Act became the law of the land. As he correctly indicates, the issue concerns the 12 months' period within which a trial must commence in solemn proceedings. As Members of the Committee know and as we have discussed on a number of occasions, in Scotland accused persons can be tried on a summary complaint before a sheriff who decides questions of guilt or innocence or before a district court that does likewise. Alternatively, a person can be tried before a jury either in the sheriff court or in the High Court.
If the accused sets out on a procedure which will take him to jury trial and is placed in petition, the law of the land is that the trial must commence within 12 months unless the period is extended. But on occasions accused persons set out on the petition route and have the cases reduced to summary trial which takes place in the sheriff's summary court. Prior to the case of Gardner v. Lees it had been understood for many years in Scotland that such summary trial need not begin before the expiry of the 12 months' limit in the same way as a man is put before the court on summary complaint and his trial need not begin within a 12 months' period.
But the Gardner v. Lees case decided in January 1996 reversed that understanding and held that if either the trial before a jury or the summary trial before a sheriff
It lies within the power of the Crown to arrange for the trial before a jury to begin within 12 months by indicting the accused for trial at a sitting either of the High Court or the sheriff and jury court within the 12 months' period. However, if the charge is reduced to summary complaint the accused is called to plead guilty or not guilty. If he pleads not guilty a diet of trial is set some days or weeks hence. If for any reason the trial cannot proceed on that day the case is adjourned to another date and so on and so forth. It is quite possible that trials cannot get going within the 12 months' period.
The view is also taken that if it is not possible to reduce cases from solemn to summary trial, as we describe it in the Crown Office, and place the matter before the sheriff's summary court in the knowledge that the trial cannot begin after the 12 months' period, that might in some way act as a disincentive to the Crown to reduce the prosecution to the summary level in appropriate cases. Therefore, the Government took the view that an amendment was appropriate.
There was nothing underhand about the way the matter was put before Parliament. The Minister of State wrote to the then Lord Justice General, as the noble and learned Lord, Lord McCluskey, has indicated, and got the reply in the terms mentioned. He also wrote to the Opposition spokesman in another place on Scottish criminal matters, the honourable Member for Dunbarton, John McFall. He wrote to all other Members serving on the relevant standing committee on the Criminal Procedure and Investigations Bill.
The fact of the matter was that there was no opposition to this amendment. The Bill incorporated the change and as a result the law in Scotland was restored to what it was understood to be for many years prior to the case of Gardner v. Lees. The noble and learned Lord's new clause would seek to reverse the position and take us back to the decision in Gardner v. Lees. I hope the Committee will be satisfied that the Government have dealt with this matter in a responsible manner and that it will also be satisfied that there is good reason why the law should remain as it is. On that understanding and with that explanation, I hope that the noble and learned Lord will not press his amendment.
"I appreciate why you may feel it appropriate to introduce this change in the legislation. On the other hand I think that some people may regard this as a more substantial and more contentious point on which wider consultation would have been appropriate. For this reason I would prefer not to be thought to be offering any support for it, at least for the time being".
Next Section
Back to Table of Contents
Lords Hansard Home Page