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.