Hansard

I understand what you are saying, but this is not an either/or situation. We are increasing the penalties for failure to appear. The logic of what you are saying is that if we fail with what we are doing, we should go even further and raise the penalty from 12 months to 24 months, seven years or double in solemn proceedings. Although that approach has a contribution to make, it is not the only thing that needs to be done. At sheriff court level, in particular, there are steps that can and should be taken. Margaret Mitchell's amendments would make hearing parts of trials in the absence of the accused, which happens currently, impossible.We should bear it in mind that when a trial diet is fixed, the accused will be notified of the date and will be told that, should they fail to appear, the trial may proceed in their absence. The accused will be in no doubt that that will happen. The convener raised and Mike Pringle developed the point that the solicitor might not have been able to be instructed and might have a problem, but by that point there will have been previous contact. The intermediate diet, which should become more significant as the new procedure develops, allows the client to give instructions to the solicitor, so that they can be in no doubt about what the interests of their client are. It should be incumbent on the solicitor to remind their client not only that they have a duty to turn up but of their responsibility to enable the solicitor to carry out their duties. We are not talking about a situation in which a solicitor goes in blind, not knowing what a client thinks and what their instructions are. As Mike Pringle said, that should already have been made clear at the intermediate diet.We are building in further safeguards. The judge must be satisfied that it is in the interests of justice for the trial to proceed and that the accused is aware of the date and place of the diet. A trial in absence will take place only when the judge considers that that is just and is satisfied that the accused has been made aware of the fact that they should be in court. The judge must be sure that the accused has been notified.A substantial number of cases have to be adjourned due to the failure of the accused to appear. In 2002-03, about 4,000 summary hearings had to be adjourned for that reason. Can it be right that victims and witnesses attend the court time and time again only to be told that the accused has decided not to turn up and so they cannot give evidence? During stage 1, Elish Angiolini and Mike Pringle said that there is strong anecdotal evidence from multiple-accused cases that often one accused person will not turn up for trial on one date and other accused persons will decide not to turn up on the next date, safe in the knowledge that the trial will not proceed. Cases can sometimes be abandoned as a result, as witnesses are no longer available or are unable to recall the required evidence. Should we allow such things to continue?The existing provision is that if a court is satisfied that a solicitor no longer has the authority to act, it may relieve them and appoint another solicitor. That already happens. Margaret Mitchell's amendment 106 proposes that the court "shall" relieve the solicitor of that responsibility, but "may" appoint another solicitor. Therefore, if her amendment were agreed to, it would not be necessary for the court to appoint another solicitor. There is inconsistency in what has been suggested whereas our provisions are consistent.If the accused has a solicitor who is prepared to continue to act, the court may allow him or her to do so. I think that, as the intermediate diet becomes more robust, cases will continue to trial on the basis that the solicitor has been properly and fully instructed as to the accused person's position and line of defence. Therefore, the solicitor will be in a good position to act in the accused's interests at trial, despite his or her absence. If the solicitor declines to act, the court may appoint a solicitor to act in the interests of the accused. It is right that the court should have discretion to do that and should not, as Margaret Mitchell has suggested, be required to do so. The court can be expected to exercise that discretion reasonably. We must bear it in mind that courts will always have to decide whether a trial should take place in the absence of an accused and whether it is in the interests of justice to continue with it.Section 14 was considered carefully prior to its introduction. It is designed to facilitate a wider use of trials in absence while ensuring that appropriate safeguards are in place to protect the rights of the accused. It is part of a range of measures that will lead—I hope—to accused persons turning up when they are supposed to turn up. They will be told the date of the trial at the intermediate diet. If they are not there, they will be sent a letter. They will have given instructions to their solicitor, with whom there will be a relationship, and the solicitor should remind their client of their responsibility to turn up. A range of measures will make it clear to the individual when a trial will take place and what the consequences will be if they fail to turn up for it. We want people to turn up when they are supposed to do so. Agreeing to amendments 106 and 108 to 114 would permit the accused wilfully to continue to frustrate the ends of justice. In a sense, there would be a criminals charter. Rather than the justice system acting in the interests of justice, accused persons would be able to use the system for their benefit. We must reflect on that. The process would frequently be deliberately thwarted, as it currently is.Pauline McNeill has already identified potential problems with her amendment 107, but I want to say something about the principles involved. The amendment would place an unfair burden on the procurator fiscal. We have demonstrated that a number of things will be done to ensure that people will turn up for trials, but agreeing to amendment 107, which aims to ensure that"all other reasonable steps to secure the appearance of the accused at the diet have been taken by the prosecutor or an officer of law",would leave things wide open.We have introduced crucial safeguards in proposed new section 150A. As I have said, first, the court must be satisfied that the citation has been lawfully effected or that the accused has received other intimation of the diet. That means that the court cannot proceed in the absence of the accused unless it is satisfied that the accused has received due notice of the diet and has been told that he must attend.Under the 1995 act, if the accused is at liberty, what I have just described is the reasonable step that the prosecutor must take to ensure that the accused attends. The accused is told of the trial date and is told about the consequences of failing to appear. Surely it is then the accused's responsibility to turn up. Why should it be the prosecutor's responsibility to ensure that the accused turns up? If the accused is legally represented, their solicitor must play a role in ensuring the accused's attendance at the diet.Secondly, the court must also be satisfied that it is in the interests of justice to proceed in the absence of the accused. The court cannot proceed with a trial willy-nilly. The test allows the court to consider all the circumstances of the case—those relating to the accused and more general considerations, such as the nature of the offence and the impact of non-attendance on victims or witnesses. The court must take those considerations into account before deciding whether to proceed in absence.Will the measure be used as a last resort? Yes. Because a minority, albeit a substantial minority, of cases is involved, the measure is a last resort. How many people might it affect? I do not know, because every case is different and the court must have discretion to decide whether the measure is appropriate. It will not just be for the Crown to suggest that it wants to proceed because the accused has not turned up. The judge will have an important role in determining whether it is safe and in the interests of justice to proceed. It is right that that power should exist.The prosecutor cannot know in advance who is unlikely to turn up. If we placed the burden on the prosecutor, the only safe way for the prosecutor to ensure that something proper had been done would be for them to take the additional set of measures to ensure that the accused was aware in every case that was due to come to court. For all the tens of thousands of cases that go through the summary procedure, the prosecutor would need to take additional steps to ensure that the accused was familiar with what was happening and aware of the date. That would be an unfair burden. We are trialling different measures in different courts. For example, when the accused leaves the intermediate diet in some courts, they are given written notification of the date of their trial. We will see how that goes. In any case, when the accused is in court, the judge tells them of the date.