This item was published during the term of a previous administration that ended in April 2007
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Emergency legislation introduced
27/02/2002
Emergency legislation was introduced today to the
Scottish Parliament to ensure that "potentially large
numbers of those accused or convicted of crimes do not
escape justice on a technicality."
Introducing the
Criminal Procedure (Amendment)(Scotland) Bill, Justice
Minister Jim Wallace said it was important to act swiftly
to close the loophole created by a recent Appeal Court
ruling in order to stop current cases "haemorrhaging out of
the system". He also stressed the need to legislate
retrospectively because the problem affects past and
present cases - not ones in the future.
Mr Wallace told MSPs:
"It is vital that trials are not cancelled through a
technicality. It is also vital that justice should not be
impeded by a technical flaw which has nothing to do with
the fairness of proceedings.
"It is not in the interests of Scottish justice for
convictions to be quashed and proceedings rendered null and
void on this sort of technicality. And if we were going to
act, the number and nature of cases currently live made
acting as quickly as possible vital. Every day we delay
brings the loss of more cases. This is not in the interests
of the victims of crime, and of society as a whole.
"Most of the current 'live' cases in summary proceedings
where a warrant has been issued at an intermediate diet -
around 7000 - will have been progressed on the basis now
judged faulty. In around two - thirds of these the warrant
has been executed and proceedings continue. Sheriffs are,
however, already beginning to discharge these cases as
incompetent when they come back to court.
"I am seeking emergency legislation primarily to stop
these current cases haemorrhaging out of the system. The
problem is particularly acute in relation to statutory
offences, many of which are timelimited. These offences
tend to come to court fairly close to the timebar, because
of the demands of the investigative process. In drugs
cases, for instance, it is vital to have the correct
forensic evidence, and that takes time. Where a case is
discharged and then reaches its timebar, it cannot under
any circumstances be raised again. I am anxious to avoid
this.
"I accept that these are not the most serious cases -
they are, after all, cases tried under summary procedure.
But summary courts try such offences as drink driving,
driving while disqualified, careless driving, some
statutory offences of a sexual nature and some less serious
drugs offences. These matter greatly to their victims, and
have a considerable effect on society as a whole.
"I should confirm that only intermediate diets in
summary procedure are affected by this ruling - other
summary diets, and solemn procedure are unaffected.
Nonetheless, we have concluded that we need to move, and
move swiftly.
"The Bill simply restores the position to that which was
thought to apply before the Appeal Court ruling by making
clear that the issue of an arrest warrant does
automatically cancel the trial diet - except where the
court specifically determines otherwise.
"The Bill is retrospective, and I am very conscious that
we introduce retrospective legislation very rarely. But the
reason for retrospection is simple - all those cases at
risk were initiated before the Appeal Court ruling, and
many of them were concluded years earlier.
"It is possible to ensure without legislation that
future cases are not jeopardised. But without retrospective
legislation it is not possible to ensure that potentially
large numbers of those accused or convicted of crimes do
not escape justice on a technicality."
The Appeal Court ruled on February 14 in the case of
Reynolds v Procurator Fiscal Linlithgow that where an
arrest warrant is granted at an intermediate diet because
an accused has failed to turn up, the court must
explicitly cancel the original date set for the trial diet.
The long held practice adopted by courts since intermediate
diets were introduced in 1980 is that the trial diet was
automatically cancelled without the need for any reference
to that cancellation to appear in the court minute.
Intermediate diets are a hearing set by the courts in
criminal summary cases to help ascertain whether the case
is likely to proceed to trial on the date assigned as a
trial diet.
In light of the ruling if a case is not called on the
date set for the original trial diet, even though an
accused failed to show up for the intermediate diet, it
would not be competent for the court to hear further
proceedings in that complaint. This ruling only affects
summary cases in Sheriff and District Courts.