Hansard

Amendment 87 introduces a new section into the bill, which inserts proposed new sections 75B and 137ZA into the 1995 act. The proposed new sections provide that, in both solemn and summary proceedings, a court can, of its own motion, alter a diet that has been fixed for a day on which the court is not sitting. Currently the court has the power to alter a diet only on the application of the Crown, the defence or both parties jointly. It cannot exercise that power of its own accord.There are instances when it would be useful for the court to be able to alter a diet without relying on an application by the parties. For example, a court may inadvertently fix a diet for a date when it is not sitting. Fixing a diet for such a date is not incompetent in itself—there is nothing to prevent a court from sitting on a Saturday, Sunday or court holiday—but in practice the court will seldom do so.Currently, on discovering that a diet has been fixed for a non-sitting day, the clerk of court has to contact the Crown and the defence and seek the agreement of both parties to have the diet altered. In practice, agreement is normally forthcoming, but the process can be time consuming. Sometimes such errors are discovered shortly before the date on which the diet is fixed and time may be of the essence in securing an alteration. If agreement cannot be reached and the diet does not call on that day, the case falls. If such errors can be spotted in advance, we believe that it should be possible for the court to correct them so that the case can continue without the need to start again, and without the risk of losing the proceedings through time bar. Amendment 87 will ensure that, in those circumstances, the court can reschedule the diet itself. Where that happens, either party to the case will be entitled to an adjournment of the new diet fixed, if the court is of the view that it would not have been practicable for them to proceed with the case on that date. That small addition to the package of measures in the bill should improve the efficiency of the administration of court business and reduce the impact of administrative errors.Proposed new section 300A of the 1995 act, to be inserted by section 32 of the bill as introduced, gives the court a power to excuse procedural irregularities in certain circumstances. Amendments 89 to 91 make minor changes to the operation of the section, in order to ensure that it operates effectively.Amendment 91 introduces a provision requiring the court to give the party that is not making the application for excusal of the irregularity the opportunity to be heard on the merits of the matter. The bill as introduced did not require the court to hear the other party. In view of the fact that the excusal of an irregularity may have an impact on either party to the case, it is prudent to ensure that both parties have the right to be heard before the court decides whether or not to exercise the power that is available to it. Amendment 89 is consequential on amendment 91.Amendment 90 allows the High Court, when dealing with an appeal, to use the power to excuse a procedural irregularity that took place in the earlier proceedings before another court that are the subject of the appeal. The bill as introduced permits a court to excuse only irregularities that took place in proceedings before that court. If that were to remain the position, the High Court would have to remit cases back to the originating court, if it considered that the power should be exercised, leading to greater delay in resolving those cases and further churn of cases for no substantial benefit.The purpose of amendments 92 to 95 is to put it beyond doubt that the power of the court to excuse procedural irregularities includes the power to alter the date of a future court diet, where that diet has been set in error for a non-sitting day, such as a Saturday, Sunday or court holiday. On occasion courts inadvertently fix diets for non-sitting days. If the diet does not call on that day the case falls, unless action has been taken to alter the diet. Amendment 92 adds the fixing of a court diet for a non-sitting day to the list of examples of irregularities that can be excused under the new power. Amendment 93 adds the power to alter a diet to the list of examples of actions that a court may take to correct a procedural irregularity. Amendment 94 defines "non-sitting day" for the purposes of proposed new section 300A of the 1995 act. Amendment 95 is consequential on amendments 92 to 94 and clarifies that the power to alter the date of a diet under the provisions is without prejudice to any other provision of the 1995 act entitling a court to alter a diet.I turn to amendment 118, lodged by Margaret Mitchell, which seeks to remove section 32 from the bill. As I have set out, section 32, by inserting proposed new section 300A into the 1995 act, gives the court the power to excuse procedural irregularities in certain circumstances, provided that the court is satisfied that it is in the interests of justice to do so. In the course of a case, the court, the prosecutor the accused or the accused's solicitor may inadvertently make a small technical or procedural mistake that can have considerable consequences, perhaps even leading to the case falling. For example, a deferred sentence may be adjourned for a day too long or a problem may be discovered with the granting of warrants at intermediate diets. Members may recall that the Parliament had to pass emergency retrospective legislation to deal with the second situation. If it had not, a large number of people would have escaped justice. In such situations, it is surely right that the court should be able to consider whether it is in the interests of justice that the procedural irregularity be excused. If it is not, relatively minor procedural technicalities of the justice system could be seen to frustrate its ultimate purpose—to convict the guilty and to acquit the innocent.I have heard it suggested that the existence of the power might lead to sloppiness and delay, because the parties to a case would know that they could make a mistake and just get it fixed under the power. I do not believe that to be the case. It is important to stress that no party to a case will have the right to have errors corrected. It will be for the court to decide whether to excuse an irregularity, and it will be able to do so only after having considered the facts of the case and decided that the interests of justice would be served by that. I have faith that the Scottish legal profession will not take the risk of relying on a discretionary power such as this to drop the standard of its work.Section 32 provides a simple mechanism for ensuring that genuine problems caused by genuine procedural mistakes can be addressed, without there being a manifest injustice or the need for emergency legislation to deal with an unforeseen procedural difficulty. I believe that it is an important part of the process of convincing the law-abiding public that the justice system is on their side and is not a system that allows its purpose to be frustrated by inadvertent procedural errors. The provision will ensure that procedural technicalities are not allowed to result in acquittals that are seemingly disproportionate in light of all the circumstances of a criminal case. I hope that Margaret Mitchell will consider not moving amendment 118.I move amendment 87.