Hansard

First, may I thank the minister for her kind remarks and wish her well in her ministerial position. I do not know what the watching public will make of three harridans occupying briefs on justice and home affairs. I should also declare my interests for the purposes of this debate, as I am a member of the Law Society of Scotland, an enrolled solicitor and a partner in a law firm in Glasgow.

Like Nicola Sturgeon, I welcome the opportunity to debate measures announced by the Executive to improve the delivery of justice in Scotland. I particularly welcome the opportunity to debate the white paper, "Modernising Justice in Scotland: The reform of the High Court of Justiciary" and, in the time available, I will concentrate on it.

To some people, lawyers and modernisation might sound like improbable bedfellows, but Lord Bonomy's report raises important issues and modernisation, in its broadest sense, is overdue. I shall come back to that aspect later.

It is important that any proposals for change proceed on a proper analysis of the spectrum of justice and do not simply emerge from the powerful platform of lawyers talking to their own in a procedural microcosm.

The white paper commences with a commendable objective, stating that the aim is

"to reduce crime and reoffending".

My party certainly supports that objective. However, the objective also implies that the High Court element of the process is a part of a whole and not a free-standing component.

The process of criminal justice starts with someone with a sense of civic responsibility reporting criminal activity to the police and assuming that the police will be able quickly and competently to gather evidence and that the police will charge the perpetrator and set in train the necessary court procedure. The good citizen then assumes, likewise, that the court procedure will be discharged swiftly and that, if conviction of the perpetrator is the outcome, the conclusion will be the imposition of a sentence that fits the crime.

That process should produce fairness to the accused and reassurance to the victim and the civic-minded reporter of the incident that the criminal justice system works. However, I have to say that the public verdict on our criminal justice system is currently a little less charitable.

My party finds merit in the idea of increasing the sentencing power of the sheriff courts in jury cases from three to five years. Equally, we acknowledge that that will place a more onerous responsibility on our sheriffs and will add a significant work load to our sheriff courts, which already rank among the busiest courts in Europe. It is worth noting that such is the volume of criminal work in a sheriff court that a 20 per cent reduction in indictments in the High Court will represent only a 7 per cent increase in sheriff and jury cases. Against that, we have to consider a further increase in work load that will arise from the Vulnerable Witnesses (Scotland) Bill that is currently before the Parliament.

It does not take a mathematical genius to work out that the sheriff courts will grind to a halt unless much more resource is allocated to them. I noticed the minister's hooked comment that some people might choose to make this a debate on resources but, frankly, if seismic changes of the sort that are proposed in the white paper are made, the consequences will be an increase in work for the sheriff courts and the resource implications of that will have to be considered. Quite simply, the courts could not function without some augmentation of personnel and infrastructure. I would like the minister to comment on that aspect and to inform the Parliament what the current estimate is for additional personnel—including, perhaps, new sheriffs—in the sheriff courts, once the new provisions are implemented.

My party welcomes an increase in the sentencing powers that are available to sheriffs for summary cases. I hope that that will not be lost sight of. I share Nicola Sturgeon's interest in Sheriff McInnes's forthcoming report on summary justice in the sheriff courts.

We welcome the principle of a mandatory preliminary hearing, provided that it does not become the route to adjournment and delay, not only because that would be undesirable but also because failure to bring a case for trial within 140 days for full committal before a sheriff would mean the release of the accused on bail regardless of the charges that the accused might face. Naturally, the public might have an interest in that. Equally, we support, in principle, sentence discount for early plea, although the need for consistency is of paramount importance.

I noticed the minister's comment with reference to a judicial commission on sentencing. It will be interesting to learn the specific proposals for that commission, because a fundamental principle of the law of Scotland is that judicial discretion in sentencing is vital.

On the issue of the time that is spent by the accused on bail, Lord Bonomy proposed a new nine-month deadline for the case to go to a preliminary hearing, effectively requiring the Crown to issue the indictment within eight months. We support that and regret that the Executive has not had the courage to grasp that opportunity. If the Executive were to concede the principle of a reduction being possible, the reduction of the existing period from 11 to only 10 months would be much more attractive. The opportunity should have been seized and Lord Bonomy's proposal implemented.

I now come to two issues of profound concern, which—the minister will be disappointed to hear this—concern resourcing. They are the overall resourcing of the police and the Crown Office and Procurator Fiscal Service.

The availability and swift provision of evidence to the prosecution depends upon the police being able to do their job timeously. The appalling recent disclosure that, due to time bar and delay by police or reporting agency, more than 17,000 cases were marked no proceedings in 2002-03 is the measure of the problem. Unless we resource the police properly, we can reform the High Court until the cows come home, but there will be no improvement. My party, as the minister is aware, supports a significant increase in resources for the police—an extra £45 million per annum.

The Lord Advocate described the Crown Office and Procurator Fiscal Service as a cinderella department due to a great lack of resources. If lack of resources is masquerading as a catalyst for changes in procedure, that is not acceptable.

That brings me to the nub of my concerns—the proposal to extend the 110-day rule, whereby an accused may spend an extra 30 days in custody before coming to trial. A fundamental precept of Scots criminal law is that an accused person must not be allowed to languish in jail for an unreasonable time and that the prosecution should be given a reasonable time to prepare the case. That principle has reigned supreme for three centuries. The period was 100 days, and the Criminal Procedure (Scotland) Act 1887 increased it to 110 days. I find it remarkable that, in the days of Sir Walter Scott and the quill pen—before telephone, fax, e-mail and the internet had ever been heard of—prosecution and defence agents could bring cases to trial within 100 days, but in 2003, with communications technology undreamt of 300 years ago, we need 140 days to get a case ready for trial.

The reality is that an under-resourced police force and an under-resourced Crown Office and Procurator Fiscal Service are not being given the tools to do the job quickly. That is no excuse for sweeping away the 100-day rule. It is no justification for denying an accused, who may be innocent, his or her liberty for a further 30 days. That is not modernisation. It is repression and it is illiberal. I urge the minister to give that aspect of the proposals the most careful thought.

The Law Society of Scotland, in its response to Lord Bonomy's report, did not support extending the 110-day limit. I will quote from that response, which was prepared by the Law Society's criminal law committee:

"The Committee would suggest that the solution to the problem is not extending the time limit but rather in directing greater resources to solving the problem."

As a member of the Law Society, I am entitled to see that submission. I am somewhat filled with regret that the debate is taking place without full sight of a summary of the responses that were submitted to Lord Bonomy, although I appreciate that they are due to come out imminently.

The real modernisation that we need in the Crown Office and Procurator Fiscal Service is the deployment of modern technology in all its forms to facilitate better and swifter engagement with defence representatives, professional witnesses and the panoply of personnel who are involved in a trial and thereby to expedite dispatch of cases comfortably within the 110-day period. That requires increased resources at every stage in the process. That is why I have lodged the amendment in my name.

I move amendment S2M-191.2, to leave out from "supporting" to end and insert:

"and, while welcoming proposals to make more efficient the processing and disposal of criminal cases, expresses concern at the proposed extension to the 110 day rule, the resources implication for sheriff courts of handling an increased workload and the continuing inadequacy of resources available to the police and the Crown Office and Procurator Fiscal Service."