| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord McCluskey: I do not propose to pursue this matter any further. I do not dispute the right of the Government to come forward with legislation of this kind, but it is the method of doing it that I deplore. The Government knew by April of this year that they intended to introduce in the autumn the Bill now before the House; namely, the Crime and Punishment (Scotland) Bill. There was no reason whatever why that provision should not have been put into the present Bill. It was put into the English Bill, which escaped the notice of almost everyone. No consultation whatever preceded the Crown's decision to change that right. If notice was given to certain people it was not given, for
example, in this House where the matter was just moved without any explanation. I regret very much that the Government chose to legislate in that way, whatever the merits of the particular cause. However, in the circumstances and at this hour I do not propose to say more about it. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
6.30 p.m.
Lord Sewel moved Amendment No. 128A:
After Clause 23, insert the following new clause--
(" . After section 108A of the 1995 Act, there shall be inserted the following section--
"Appeals by the Lord Advocate: sifting.
.--(1) The decision whether to grant leave to appeal for the purposes of section 108 and 108A of this Act shall be made by a Judge of the High Court who shall--
(a) if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and
(b) in any other case, refuse leave to appeal and give reasons in writing for the refusal.
(2) The documents referred to in subsection (1) above are--
(a) the note of appeal lodged under section 110(1)(b) of this Act which shall--
(i) identify the proceedings;
(ii) contain a full statement of all grounds of appeals; and
(iii) be in the form prescribed in an Act of Adjournal;
(b) where the judge who presided at the trial furnishes a report under section 113 of this Act, that report; and
(c) where, by virtue of section 94(1) of this Act, a transcript of the charge to the jury of the judge who presided at the trial is delivered to the Clerk of Justiciary, that transcript.
(3) Where leave to appeal is refused under subsection (1) above the Lord Advocate may, within 14 days of intimation under subsection (6) below, apply to the High Court for leave to appeal.
(4) In deciding an application under subsection (3) above the High Court shall--
(a) if, after considering the documents mentioned in subsection (2) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and
(b) in any other case, refuse leave to appeal and give reasons in writing for the refusal.
(5) Consideration whether to grant leave to appeal under subsection (1) or (4) above shall take place in chambers without the parties being present.
(6) Comments in writing made under subsection (1)(a) or (4)(a) above may, without prejudice to the generality of those provisions, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.
(7) Where the arguable grounds of appeal are specified by virtue of subsection (6) above it shall not, except by leave of the High Court on cause shown, be competent for the Lord Advocate to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.
(8) Any application by the Lord Advocate for the leave of the High Court under subsection (7) above--
(a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and
(b) shall not less than seven days before that date, be intimated by the Lord Advocate to the accused and his solicitor.
(9) The Clerk of Justiciary shall forthwith intimate--
(a) a decision under subsection (1) or (4) above; and
(b) in the case of a refusal of leave to appeal, the reasons for the decision,
to the Lord Advocate, the Crown Agent, the accused or his solicitor.".").
The noble Lord said: This may appear to be a rather long and wordy amendment, but I hope that I can be brief in speaking to it. Its effect is simple and straightforward. It seeks to introduce a sifting process into appeals by the Lord Advocate. As the Committee will be aware, under the provisions of Section 107 of the Criminal Procedure (Scotland) Act 1995, an appeal by a convicted person is subject to a sifting process by a High Court judge. Simply on the argument of balance, this amendment seeks to introduce an analogous procedure for appeals by the Crown. Essentially, the decision on whether to grant leave to appeal for the purposes of this Act would be made by a judge of the High Court. The process is detailed in the amendment. Where the judge decides to refuse leave to appeal, the Lord Advocate would have a further right of appeal within 14 days to the High Court.
One of the concerns behind the amendment is that--and I have to say this--appeals by the Lord Advocate on the ground of undue leniency have recently been criticised by the courts. In the case of Her Majesty's Advocate v. Ross 1996, Lord Justice Clerk Ross stated:
Lord Hope of Craighead: I do not want to go over old ground with which the noble and learned Lord will be familiar, but I was careful in the case of McKay to say that I was not suggesting that the Lord Advocate should be subjected to the sifting process. I think I recall saying that one of the reasons for taking that view was the confidence which the court reposed in the decisions by the Lord Advocate over whether or not to appeal.
As always, it is a question of balance. One point which the Committee may wish to take into account is that the sifting process occupies a certain amount of time. One has only to read through the proposed clause to see that various steps have to be carried out. It slows the process down. In particular, in cases where the Lord Advocate is seeking to have reviewed as unduly lenient a sentence which has been passed on an accused person, there is considerable urgency in bringing the matter before the court without undue delay, as I mentioned earlier, before the sentence has been served.
Therefore, I caution the Committee against accepting this amendment on the ground that it might slow things down to an unsatisfactory extent. I have no doubt that the Crown Office will have taken on board the criticisms which in the early days of the procedure were levelled at the Crown. For my part, I would rather leave the matter on the basis explained in McKay--that these decisions are not lightly taken by the Lord Advocate, that confidence can be left where it resides and that the matter should be brought before the court as quickly as possible in those cases where the Lord Advocate thinks that a view of the court is required.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord, Lord Hope, for that contribution. I do not think that it would be productive for me to go into the two cases to which reference has been made, particularly the case of McKay, which was an appeal abandoned by the Lord Advocate some four months after it had been marked when the report of the trial judge came to hand. The Crown did not insist on the appeal and did not make any submissions on that occasion. It would be unfortunate to go into the detail of what was said then.
As the noble and learned Lord, Lord Hope, made clear, these matters are considered by Law Officers and, in particular, by the Lord Advocate. The procedure that is followed is that a report is obtained from the Advocate Depute who conducted the trial or presented the facts on behalf of the Crown if it is a plea of guilty, or from the procurator fiscal in a sheriff court case. They are considered within the Crown Office by, among others, the appropriate Advocate Depute and the Law Officers. They are not marked lightly. I gave the Committee the figures the other night of how many such cases there had been since the power came into effect. The total was 31, which has now increased to 32 in the light of the appeal which has now been marked.
One is not seeking to compare like with like. In the appeals marked by the Lord Advocate, it requires to appear to the Lord Advocate that the sentence is unduly lenient, as is set out in Section 108, or that some point of law arises. That will be the position of the Lord Advocate in the light of the report that he has been given by the trial depute. It is something
There may have been some difficulties in the early stages and it may be that some of the criticisms about the paperwork were merited. However, as I said earlier--I know that the noble and learned Lord, Lord Hope, will bear this out--these matters are discussed regularly between the Lord Advocate of the day and the Lord Justice General of the day. I do not think that it would be productive to discuss the detail on the Floor of this Committee. With that assurance that these matters are treated seriously and that we are not seeking to compare like with like, I hope that the noble Lord will withdraw his amendment.
"It is to be hoped that the court is never again asked by the Lord Advocate to consider a note of appeal ... which is so inaccurate and misleading".
In the case of Her Majesty's Advocate v. McKay 1996, the Lord Justice General, now the noble and learned Lord, Lord Hope, stated:
"The court is entitled to demand from the Lord Advocate and his advisers a high standard of care and accuracy ... in the handling of these appeals ... in the present case we are bound to say that that high standard ... has not been achieved".
In all those circumstances, I think that there is a strong prima facie case that the judgment of the Lord Advocate in seeking to appeal should be subject to the same sort of sifting process as applies to the prosecution. There are legitimate grounds for concern in the recent history of appeals made by the Lord Advocate, but I think that the case can also be made on the grounds quite simply that what is good for the defence ought to be good for the Lord Advocate also. I beg to move.
Next Section
Back to Table of Contents
Lords Hansard Home Page