Committee
Justice 1 Committee, 08 Nov 2006
08 Nov 2006 · S2 · Justice 1 Committee
Item of business
Criminal Proceedings etc (Reform) (Scotland) Bill: Stage 2
The existing law requires that, if there are several charges against an accused and one charge discloses that the accused has been convicted previously, as Marlyn Glen said, that charge must be on a separate complaint. If the case proceeds to trial, two trials are necessary. The most common example of that relates to road traffic offences. If an accused is charged with driving while disqualified and drunk driving, the charge of driving while disqualified is heard on one complaint, as it reveals the previous disqualification, while the other charge is on a separate complaint. If the charges relate to one event, the judge and witnesses will most likely be the same in both cases.As members will realise, that process adds to the volume of cases in court. From one incident there can be two separate charges and, potentially, two separate trials. The fact that the charges must be separated in that way leads to increased bureaucracy and additional inconvenience for victims and witnesses, who may be required to give evidence at two separate trials despite the fact that the charges relate to the same incident. Wherever possible, all charges arising out of one incident or course of criminal conduct should be dealt with in a single complaint, so that they can be disposed of in a single trial. That will make the best use of court time and—an important factor—the time of victims and witnesses, and it will reduce the pressure that they are under.Judges are used to conducting trials where the substance of the charge, such as driving while disqualified, discloses the fact that the accused has been previously convicted. That is in the nature of the charge; it throws up the fact that there is another problem. I do not agree that the provision in any way compromises the ability of the judge to make an independent judgment based on the facts of the case, and to be seen to be doing so.
In the same item of business
The Convener (Pauline McNeill):
Lab
Good morning and welcome to the Justice 1 Committee's 40th meeting in 2006. All members are present and I am sure that mobile phones have already been switch...
Section 12—Disclosure of convictions
The Convener:
Lab
Amendment 52, in the name of Marlyn Glen, is in a group on its own.
Marlyn Glen (North East Scotland) (Lab):
Lab
Amendment 52 seeks to remove from the bill proposed new section 166B of the Criminal Procedure (Scotland) Act 1995. This is an important opportunity to clari...
The Deputy Minister for Justice (Hugh Henry):
Lab
The existing law requires that, if there are several charges against an accused and one charge discloses that the accused has been convicted previously, as M...
Stewart Stevenson (Banff and Buchan) (SNP):
SNP
The minister appears to be addressing his remarks to proposed new section 166B(2)(a) of the 1995 act, which is the paragraph on offences that "relate to the ...
Hugh Henry:
Lab
We are talking about summary cases, so the question of a jury would not arise. That is an important factor. Stewart Stevenson has pointed out the distinction...
The Convener:
Lab
On the back of Stewart Stevenson's question, I would like to clarify what proposed new section 166B(2)(b) means when it refers to offences that"are of a simi...
Hugh Henry:
Lab
The prosecutor would try both charges together. I refer again to the example that I gave of a known thief being in possession of tools that are capable of be...
The Convener:
Lab
Proposed new section 116B is about trying charges together. The first example that you gave is well known—the offence of driving while disqualified—and there...
Hugh Henry:
Lab
Yes.
The Convener:
Lab
I take it that we are not going to move to a situation in which prosecutors generally lead evidence of previous convictions of a similar character.
Hugh Henry:
Lab
No.
The Convener:
Lab
I ask the question because that is the road that England and Wales have gone down and I am opposed to that. However, the circumstances that you describe seem...
Hugh Henry:
Lab
Exactly, convener. I can give you that assurance. Proposed new section 166B(2) states that the charges must"relate to the same occasion"—I have given an exam...
The Convener:
Lab
I just want to be clear whether, if a charge of assault is before the court, a three-year-old conviction, for example, could be raised under proposed new sec...
Hugh Henry:
Lab
Yes, that is correct.
Mike Pringle (Edinburgh South) (LD):
LD
I understand that if somebody commits assault at 9 o'clock, 10 o'clock, 11 o'clock and 12 o'clock at night, all four charges can be tried together.
Hugh Henry:
Lab
That is correct.
Mike Pringle:
LD
However, if the accused assaults somebody on Friday night at 10 o'clock and on Sunday night at 10 o'clock, the charges cannot be tried together.
Hugh Henry:
Lab
It depends on whether the assaults form part of a course of conduct. Charges can be brought together at the moment in any case, and the example that Mike Pri...
The Convener:
Lab
I am not certain that that clears it up.
Stewart Stevenson:
SNP
We have established that proposed new section 166B applies only if the charge itself makes the disclosure and that it is not about disclosure anywhere else, ...
Hugh Henry:
Lab
Yes.
Stewart Stevenson:
SNP
I suggest that such examples will not unduly concern the committee. Our concern is whether we are missing some other examples in which the relationship betwe...
Hugh Henry:
Lab
I understand what Stewart Stevenson has said. He has given an example where it is disclosed, by necessity, that someone who is charged has a previous convict...
The Convener:
Lab
That is helpful. In the scenario that Mike Pringle discussed, involving several charges, the charges would be rolled up together. It would not be a question ...
Hugh Henry:
Lab
Yes.
The Convener:
Lab
We were worried that proposed new section 166B(2)(b) might allow the courts to let the prosecutor lead with previous convictions "of a similar character", bu...
Marlyn Glen:
Lab
This has been an important discussion. We always want to maintain the balance of fairness between victims and witnesses on the one hand and the accused on th...