Meeting of the Parliament 08 December 2015
The Criminal Justice (Scotland) Bill is a wide-ranging and substantial bill. We need only to read its purposes to determine that. As others have said, it has had a long and tortuous journey. It was introduced to the Parliament in 2013 and, following the stage 1 debate in 2014, the Government narrowly won a majority to proceed, including on abolition of the requirement for corroboration.
I have long opposed that abolition, not because I wish the accused to be let off with a sexual assault or a rape or those who are accused of those crimes in particular to escape conviction, but to ensure that victims, with the requirement for corroboration, have enhanced prospects of a successful prosecution and conviction. It is not about people having their day in court; it is about people having their day in court and the accused being convicted and sentenced.
I note that we may return to the subject—perhaps in the next session of Parliament, depending on who is in government—and I hope that, at that time, we will take in a comprehensive review of other issues, such as the size of the jury, the jury majority and the three verdicts that are currently available, in the High Court in particular.
The second issue on which I was in disagreement with the Government is not the stuff of headlines, but it is of considerable relevance to the Scottish justice system. It is the role of the Scottish Criminal Cases Review Commission, which colleagues throughout the chamber have mentioned today.
Following the decision in the case of Cadder v Her Majesty’s Advocate in 2010, the Scottish Government introduced by way of emergency legislation the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. All three stages took place on one day, which is not a good way to legislate. The act reduced the power of the Scottish Criminal Cases Review Commission and increased the power of the High Court sitting as the court of appeal when the SCCRC referred cases to it.
Let me explain. Before the 2010 act, a referral from the SCCRC had to be accepted by the High Court, and if the appeal was successful, it had to grant the appeal. The 2010 act changed all that and made two radical changes. First, although the SCCRC will always have considered the interests of justice and whether there might have been a miscarriage of justice, the 2010 act endowed the High Court with the power to reject a referral, even before it heard any evidence, if in its view the referral was not in the interest of justice. Secondly, even if a referral passed that second test, the High Court still had the power, notwithstanding a successful appeal, not to grant the referral if it considered that it was not in the interests of justice.
Therefore, the High Court had a gatekeeping role over its own appellate procedures, and the 2010 act created two categories of appeal: those coming straight from the High Court to the appeal court, if successful, were successful, but if they came from the SCCRC, they might be successful but then not permitted or allowed. It is simply wrong to have two categories of appeal.
At stage 2, I moved an amendment successfully, by a majority against the Government, to take us back to pre-2010 rules and I am delighted that the Government has accepted the reasons behind that amendment. I think that order has been restored.
Therefore, I am personally delighted by what has happened regarding corroboration and the role of the SCCRC. It is a pity that Mr Findlay is not present in the chamber to hear that, as he boorishly accused me of somewhat falling to the Government’s whip. I put this quite simply for him: put that in your pipe and smoke it, Mr Findlay.
18:06