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Justice 1 Committee, 22 Nov 2006

22 Nov 2006 · S2 · Justice 1 Committee

Item of business

Criminal Proceedings etc (Reform) (Scotland) Bill: Stage 2

Lamont, Johann Lab Glasgow Pollok Watch on SPTV

Amendment 141 is a minor technical amendment and does not alter the effect of section 42. It makes it clear that the suspension of the time bar for statutory offences while the offer of an alternative to prosecution is pending will apply to all statutory offences, whether the time limit is found in the statute giving rise to the offence or in section 136 of the Criminal Procedure (Scotland) Act 1995.Amendment 141 adds specific mention of section 136 of the 1995 act, whereas the original form of words referred simply to "any provision in an enactment".As section 136 of the 1995 act provides for the time limit for the prosecution of all statutory offences when the offence does not include a time limit, a specific reference to it in new section 136B of the 1995 act as introduced by section 42 will improve clarity.Amendments 142 and 144 are minor grammatical amendments, although they are nonetheless important. For the sake of clarity, the word "where" is substituted by the word "if" at the beginning of new sections 136B(c)(i) and 136B(c) (ii) of the 1995 act as inserted by section 42. The effect of the provisions is unchanged.Amendment 187, lodged by Pauline McNeill, would remove section 42. Section 42 allows the time taken between the offer of an alternative to prosecution being made by a prosecutor and the offer being rejected by the accused or recalled to be excluded from any time bar attached to the offence by statute. The existence of a statutory time bar will often be a consideration for prosecutors when they issue offers of alternatives to prosecution. In some cases, there may not be time to make an offer and subsequently initiate court proceedings if the offer is rejected.Members will know that the committee considered amendments to the system for recalling fiscal fines last week to make the recall system less restrictive. However, in some cases, the recall system could mean that there is a lengthy time between the date of the alleged offence and the date on which a fine is recalled. Rejection of the offer or a successful application for recall is in effect a request to be tried for the alleged offence, as it leads to the procurator fiscal taking court action against the accused in respect of the alleged offence. It would be unfortunate if the effect of a late but well-founded application for recall was that the prosecutor was unable to prosecute the original offence because the case was then time barred. Amendment 187 could have that effect.As the aim of part 3 of the bill is to encourage the appropriate use of alternatives to prosecution, it seems counterproductive to remove section 42. Doing so might lead to prosecutors choosing not to issue offers of alternatives in otherwise appropriate cases because of the risk that any delay before refusal or recall might leave insufficient time for the prosecutor to take proceedings. In the case of a work order for example, it might take some time for the necessary arrangements to be made. The offender might then decline to co-operate with the order, resulting in the case coming back to the prosecutor after the statutory time bar has passed. As a result, the prosecutor might be forced to prosecute in the first instance as that would be the only certain way of dealing with the offence. That change would deny the prosecutor the flexibility to take the best approach to the case, having regard to all the circumstances. It might also be detrimental to the accused and the system if it leads to court cases that could have been avoided.Therefore, I ask Pauline McNeill to consider not moving amendment 187.I move amendment 141.