Fifth Standing Committee
on Delegated Legislation
Tuesday 23 March 1999
[Mr. Joe Benton in the Chair]
Draft Scottish Criminal Cases Review Commission (Application to Summary Proceedings) Order 1999
4.30 pm
The Minister for Home Affairs and Devolution, Scottish Office (Mr. Henry McLeish): I beg to move,
That the Committee has considered the draft Scottish Criminal Cases Review Commission (Application to Summary Proceedings) Order 1999.
It might be useful to the Committee if I explained the background to the order. From 1 April, the new Scottish criminal cases review commission, an independent non-departmental public body, will take over the responsibilities of the Secretary of State for Scotland for considering alleged miscarriages of justice in criminal cases, and for referring deserving cases to the Appeal Court for review.
The powers and responsibilities of the commission are set out in the relevant sections of the Criminal Procedure (Scotland) Act 1995, as inserted by section 25 of the Crime and Punishment (Scotland) Act 1997. As the legislation stands, the commission will review miscarriage of justice claims only in relation to solemn cases—those tried before a jury. Section 194E of the 1995 Act, however, provides for the Secretary of State to extend by order the commission's remit to include summary proceedings. That is because the Sutherland committee—the Committee on Criminal Appeals and Miscarriages of Justice Procedures—recommended the setting up of the commission in its report in June 1996. It also recommended that the new body's remit should be restricted to solemn cases, but that legislation should provide for the remit to be extended by order to summary cases.
The Sutherland committee recognised that there was an argument of principle in favour of treating solemn and summary cases in the same way and that, although summary cases involved less serious crimes and offences and lower penalties, the effect of a conviction in a summary case could be just as damaging to the life and reputation of the individual as a conviction on indictment. However, the committee thought that there was a risk of overloading the new body with a large number of less serious cases and that that might inhibit its ability to consider properly more serious cases. The committee concluded that priority should be given to solemn cases and to ensuring that the new body was not overwhelmed initially and could establish a solid foundation for its operations.
We have carefully considered those reservations, and have discussed the position with the chairman of the commission. We have concluded that it would be more appropriate for the commission's remit to be extended to cover summary cases from the outset of its operation. No more than two or three allegations of a miscarriage of justice in summary cases are submitted to the Secretary of State each year. There is no reason to presume that the commission would receive considerably more such cases than have been received in the past. We can see no likely difficulties if the commission's powers were extended now to include summary cases.
The public and applicants would be unlikely to appreciate or to understand the position if the commission were to refuse to consider alleged miscarriages of justice in summary cases and refer them back to the Scottish Office. In those cases, expectations raised by the creation of the commission would be disappointed. It would not be a positive start for the commission to have to explain that it could not deal with all miscarriage of justice claims. That would be confusing and would not be keeping with the purpose of setting up the commission, which is to make the review of alleged miscarriages of justice clearly independent and to ensure public confidence in the process.
The order, if approved, would enable summary cases to be referred to the High Court for determination when there was evidence of a miscarriage of justice. If those cases were to be left with the Secretary of State, or the First Minister in future, that route would not be available. The Secretary of State has no power to refer summary convictions to the Appeal Court for review if he believes that there might have been a miscarriage of justice.
If a miscarriage of justice in a summary case cannot be addressed by means of the existing statutory procedures, the only avenue for remedy is for the Secretary of State to recommend the exercise of the Royal Prerogative of mercy. It is an established policy, however, that recourse to court-based remedies is to be preferred over reliance on the prerogative. The order would make available a new court-based remedy.
In conclusion, the order will provide for the most appropriate consideration and correction of alleged miscarriages of justice in summary cases in Scotland. Before I commend it to the Committee, I shall recall the occasion on which the hon. Member for Epping Forest (Mrs. Laing) chastised me in a Committee on a different statutory instrument for not having said that the order was merely a technical measure about which I had hoped that there would be little controversy. I commend the order to the Committee.
4.34 pm
Mrs. Eleanor Laing (Epping Forest): I thank the Minister for his brief but comprehensive explanation of the effect of the order. I am afraid that I do not agree with him about the order being a technical matter. It will extend the commission's powers. However, I accept his explanation and I support the terms of the Criminal Procedure (Scotland) Act 1995, which was enacted by the previous Government.
I agree with the Minister's view that conviction under summary procedure can be just as important to the life and livelihood of the person convicted as conviction under solemn procedure. Therefore, it makes sense to extend the commission's scope to deal with alleged miscarriages of justice under summary procedure as well as under solemn procedure.
I have no further questions for the Minister, and I hope that he accepts my view that the order is not purely technical. However, it is a sensible way forward in the administration of the criminal law in Scotland.
4.36 pm
Mr. McLeish: I am chastised if I describe an order as technical and I am chastised if I describe it as non-technical. I am in a no-win situation.
I am grateful for the hon. Lady's constructive comments. The commission will start to operate on 1 April and I am sure that the Committee's best wishes will go to it in its early days.
Question put and agreed to.
Resolved,
That the Committee has considered the draft Scottish Criminal Cases Review Commission (Application to Summary Proceedings) Order 1999.
Committee rose at twenty-four minutes to Five o'clock.
The following Members attended the Committee:
Benton, Mr. Joe (Chairman)
Browne, Mr.
Connarty, Mr.
Davidson, Mr.
Galloway, Mr.
Laing, Mrs.
McLeish, Mr.
Moore, Mr.
Roy, Mr.
Stewart, Mr. David
Viggers, Mr.
Savidge, Mr.
The following also attended, pursuant to Standing Order No. 118(2):
Jamieson, Mr. David (Lord Commissioner to the Treasury)
| 
