CRIMINAL JUSTICE (SCOTLAND) BILL AMENDMENTS TO BE LODGED AT STAGE 2

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1 Section 5, Page 2, line 28 Leave out <or> and insert <and > This amendment provides for information to be given to suspects at a police station in terms of a letter of rights to be provided both verbally and in writing. The Society notes that, in certain cases, many people who are brought into custody have literacy problems and this amendment seeks to ensure the letter of rights is provided both verbally and also in writing with a view to ensure that suspects rights are clearly understood. 1

2 Section 7, Page 4, line 13 Leave out <constable> and insert <sergeant> This amendment changes the rank of a police officer authorised to keep a person in custody from a Constable to a Sergeant The Society welcomes the recommendation of Lord Carloway as reflected in Section 11 of the Bill that the maximum time a suspect can be held without being charged or advised that he or she is to be reported to the Procurator Fiscal should now be twelve hours but believes that, with regard to authorisation for keeping in custody, an officer of rank of sergeant, rather than the rank of constable, should authorise the keeping of a person in custody. 2

3 Section 7, Page 4, line 15 leave out <constable> and insert <sergeant> Subsequent amendment 3

4 Section 14, Page 6, line 33 leave out <of> and insert <not exceeding> This amendment allows a period during which a suspect can be released from custody should be any period up to a maximum of 28 days as opposed to a blanket 28 day period as provided for in Section 14 (1) (c) of the Bill The Society notes that Lord Carloway recommended that the period during which a suspect could be subject to investigative liberation should not exceed 28 days and accordingly questions the blanket 28 day period, as provided for in the bill. Furthermore, the Society believe that an advantage in allowing a shorter period upon which a person can be released from custody is that, in terms of Section 14 (2) of the Bill, it is more likely that conditions imposed by a constable will be accepted by an Individual subject to investigative liberation on the basis that a shorter period is provided for. 4

5 Section 14, Page 7, line 1 leave out <of> and insert <not exceeding> Subsequent amendment 5

6 Section 17, Page 8, line 16 after <on condition> insert <or the time period or both> This amendment allows a Sheriff not only to review a condition of interim liberation in terms of Section 14 but also the time period imposed. The Society believes that, in review of conditions of investigative liberation, the Sheriff should also be in a position to review the time period fixed for investigative liberation. This period should not be a blanket period of 28 days, but rather for any period up to a maximum of 28 days which should also be capable of review by the Sheriff. 6

7 Section 17, page 8, line 22 after < or> insert <amend the time period or both> Subsequent amendment 7

8 Section 17, page 8, line 23 after <condition> insert or <alternative time period or both> Subsequent amendment 8

9 Section 17, page 8, line 25 after <condition> insert <or a time period> Subsequent amendment 9

10 Section 23, page 11, line 10 after <committing> insert <and immediately before a constable interviews a person about said offence> This amendment obliges a constable not only to caution a person not more than one hour before an interview but also to repeat this caution immediately before the constable interviews the person about an offence. The Society believes that not only should a person be informed of his and her rights one hour before any interview, but, in the interests of justice, these rights should be repeated immediately before interview. 10

11 Section 24, page 12, line 5 leave out <if the constable is satisfied that it is necessary to interview the person without delay in the interests of (a) the investigation of the prevention of crime, or (b) the apprehension of offenders.> This amendment only allows for the interview of a person without a solicitor being present in exceptional circumstances. The Society believes that the proposed threshold as outlined in Section 24 (4) (a) and (b) of the Bill is inappropriate and that it should only be in exceptional circumstances whereby a person can be interviewed without having a solicitor present. 11

12 Section 25, page 12, line 17 leave out <16> and insert <18 > This amendment raises the age of a person that may not consent to be interviewed by the police without having a solicitor present from 16 years of age to 18 years of age. The Society believes that anyone under the age of 18 years of age should not be permitted to waive their rights to a lawyer. The Society is concerned that many 16 or 17 year olds are vulnerable and require such protection during police interview. The Society does not believe that such protection could be afforded by a parent or relative who in some cases may be ill equipped for this task. Furthermore, the Society notes that in terms of Section 7 (6) of the Victims and Witnesses (Scotland) Act 2014 a child means a person under 18 years of age and accordingly the Society is of the view that, for the purposes of police interview, a person under 18 years of age should also be afforded similar protection. 12

13 Section 25, page 12, line 18 leave out <16> and insert <18> Subsequent amendment 13

14 Section 25, page 12, line 18 leave out <owing to mental disorder > This amendment removes the mental disorder requirement when it appears to a constable that a person over 16 years of age is unable to understand sufficiently what is happening or communicate effectively with the police for the purposes of that person not being entitled to waive his or her rights to be interviewed without having a solicitor present. The Society believes that it would be difficult for a police officer to assess whether a person is suffering from a mental disorder and the support of a solicitor should not be restricted to such situations where there were the persons understanding is as a result of a mental disorder. The Society believes that any person who appears to a police officer to understand sufficiently what is happening or communicate effectively with the police should not be interviewed without having a solicitor present. 14

15 Section 29, Page 15, Line 34 After line 34 insert < Visual Recording of Interviews ( ) Scottish Ministers shall have the power ( ) to issue a code of practice for the visual recording of interviews at police stations and (b) make regulations requiring the visual recording of interviews so held, and requiring the visual recording to be in accordance with the code for the time being in force under this section. ( ) a requirement imposed by regulations under this section may be imposed in relation to such cases or police stations in such areas, or both, as may be specified or described in the order. ( ) Regulations under Sub-Section ( ) above are subject to the affirmative procedure ( ) in this section references to any interview are references to an interview of a person about an offence which the constable has reasonable grounds to suspect the person of committing (references to a visual recording include references to a visual recording in which an audio recording is comprised. > This amendment provides Scottish Ministers with the power to issue a code of practice and make regulations for the visual recordings of police station interviews The Society notes from paragraph 5.24 of Lord Bonomy s final report upon the Post Corroboration Safeguards Review that he makes a recommendation that all formal police Interviews with suspects at Police Offices should be recorded by audio visual means. We note that visual recording of interviews must take place in England and Wales In terms of section 60A of the Police and Criminal Evidence Act We are of the view that police station interviews should also be visually recorded in Scotland. 15

16 Section 33, page 18, line 2 <owing to mental disorder> Subsequent amendment 16

17 Section 34, Page 18, Line 25 < leave out Section 34 and insert the following 34 Provision of Appropriate Adults. It shall be the duty of each local authority to ensure the provision of persons who may for the purposes of Sub-Section 2 of Section 33 be considered suitable to provide support of the sort mentioned in Sub-Section 3 of that Section (including as to training, qualifications and experience). > This amendment proposes that local authorities provide for appropriate adults for vulnerable persons in custody. The Society notes both the Justice Committee s Stage 1 Report at Paragraph 223 whereby the Committee asked the Scottish Government to respond to concerns raised by witnesses that in Its decision not to place the provision of appropriate adult services in the bill could lead to a lack of funding by local authorities already facing significant financial challenges. Local authorities are best placed to ensure adequate provision of persons with appropriate skills or qualifications to provide support for vulnerable persons in custody and that the attendance of an appropriate adult at a police interview is a vital safeguard for a vulnerable suspect. The Society makes reference to paragraph of Lord Bonomy s Post Corroboration Safeguards Review Report in this regard. 17

18 Section 66, page 28, line 17 leave out <jointly> and insert <each party must> This amendment provides for individual written records on the state of preparedness of cases as opposed to a joint written record of their state of preparation. The Society notes that in High Court cases, the practice which has developed is for each Party to individually prepare and to the court an electronic record of that parties preparation and an electronic copy of the record is also ed to other parties in the case. The Society therefore believes that in the interests of expediency there should not be a requirement for a joint written record but that this requirement should be for individual parties. 18

19 Section 70, page 31, line 36 leave out section 70 This amendment removes the provision in the Bill at section 70 for the increase in the majority on a jury required to return a verdict of guilty from eight to ten members. The Society believes that the question of the size of majority of a jury required to return a verdict of guilty is a matter which should also be considered as part of a wider review of the law relating to evidence and procedure in criminal cases in Scotland. The Society notes that this provision appears at section 70 of the Bill, there having been no research carried out on jury majority verdicts. The Society therefore considers that the question of jury majority verdicts should be considered as part of wider review into the law relating to evidence and procedures in criminal cases in Scotland. 19

20 Section 70, Page 32, Line 16 After Section 70 insert < No case to answer in summary cases (1) The Criminal Procedure (Scotland) Act 1995 is amended as follows. (2) In section 160 (no case to answer), after subsection (3) there is inserted (4) For the purpose of this section, the judge is entitled to be satisfied that evidence is insufficient in law to justify the accused being convicted of an offence if the judge concludes that the evidence provides no proper basis on which the accused could reasonably be convicted of the offence..> This amendment extends the basis on which a motion that there is no case to answer in summary proceedings may be sustained to include circumstances where it would not be proper to convict on the evidence presented. The Society notes that this amendment has been proposed by Lord Bonomy in terms of his final Report. With particular reference to Chapter 11 of the Report and in particular Paragraph where the Report recommended that a basis on which a motion that there is no case to answer may be sustained should be extended to include circumstances where it would not be proper to convict on the evidence presented and that the appropriate text should be as follows. If, after hearing both parties, the judge is satisfied that the evidence led by the prosecution, taken at its highest, is insufficient in law to justify the accused being convicted of the offence charged, or is such that no judge or jury acting reasonably could probably convict upon it, the judge shall acquit the accused. We support this proposed amendment to the Bill. 20

21 Section 70, Page 32, Line 16 After Section 70 insert No case to answer in solemn cases (1) The Criminal Procedure (Scotland) Act 1995 is amended as follows. (2) After section 97C there is inserted 97CA Insufficiency under sections 97, 97A and 97B (1) This section applies for the purposes of sections 97, 97A and 97B. (2) The judge is entitled to be satisfied that evidence is insufficient in law to justify the accused being convicted of an offence if the judge concludes that the evidence provides no proper basis on which the accused could reasonably be convicted of the offence.. (3) Section 97D is repealed. This amendment extends the basis on which a motion that there is no case to answer in solemn proceedings may be sustained to include circumstances where it would not be proper to convict on the evidence presented. The Society notes that this amendment has been proposed by Lord Bonomy in terms of his final Report. With particular reference to Chapter 11 of the Report and in particular Paragraph where the Report recommended that a basis on which a motion that there is no case to answer may be sustained should be extended to include circumstances where it would not be proper to convict on the evidence presented and that the appropriate text should be as follows. If, after hearing both parties, the judge is satisfied that the evidence led by the prosecution, taken at its highest, is insufficient in law to justify the accused being convicted of the offence charged, or is such that no judge or jury acting reasonably could probably convict upon it, the judge shall acquit the accused. We support this proposed amendment to the Bill. 21

22 After section 70 insert Persons ineligible for jury service (1) The Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 is amended in accordance with this section (2) In Part 1 of Schedule 1 (persons ineligible for jury service) (a) In Group A for paragraph (e) substitute (e) summary sheriffs (b) In Group B for paragraph (c) substitute (c) legal trainees employed by solicitors (c) In Group B after (wa) members and employees of the Scottish Criminal Cases Review Commission add ( ) persons who have the right to conduct litigation and rights of audience in terms of Section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act This amendment amends Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 by updating persons ineligible for jury service in removing stipendiary magistrates, and replacing with summary sheriffs removing the reference to apprentices and including members of any professional or other body who have the right to conduct litigation and rights of audience in terms of Section 25 of the Law Reform (miscellaneous provisions) (Scotland) Act The Society notes the Schedule should now be amended to remove reference to stipendiary magistrates and apprentices and also to include those who should be ineligible for jury service, those natural persons of professional or other bodies who have made application for the right to conduct litigation and rights of audience. 22

23 Section 76, page 35, line 6 leave out < by exceptional circumstances> and insert <in the interests of justice> This amendment reduces the test whereby the High Court may make a direction in relation to the extension of time limits in summary appeals from exceptional circumstances to in the interests of justice. The Society is concerned that this exceptional circumstances test will narrow access to the appeal court and accordingly restrict access to justice with the unintended consequence of those rejected appeals being taken to the Scottish Criminal Cases Review Commission. The Society does not believe that an appellant should be denied the opportunity to appeal simply because of an excessively rigid and inflexible timetable and accordingly the interests of justice is a much fairer test. 23

24 Section 76, Page 35, line 7 leave out <there are exceptional circumstances> and insert <it is in the interests of justice> Subsequent amendment 24

25 Section 77, page 35, line 30 leave out <is justified by exceptional circumstances> and insert <is in the interests of justice> Subsequent amendment 25

26 Section 77, Page 35, line 31 leave out <there are exceptional circumstances> and insert <it is in the interests of justice> Subsequent amendment 26

27 Section 78, page 36, line 12 leave out section 78 This amendment removes the instances where a court cannot excuse a failure to be late in executing its power to excuse procedural irregularities. The Society is seriously concerned that section 78 will fetter the discretion of a court to excuse procedural irregularities and therefore narrow access to the appeal court if it cannot excuse failure to be late in doing any of the things mentioned in section 300 (7A) of the 1995 Act as amended by section 78 of the bill timeously. There may be good reason why any of the things mentioned in section 78 have not been done timeously and accordingly, the court s discretion to excuse this should not be interfered with in this manner. 27

28 Section 82, page 37, line 17 leave out subsection (2) and subsection (3) This amendment removed the interests of justice test to be applied by the High Court upon receiving a reference from the SCCRC. The Society welcome the provisions at section 82 (4) of the Bill which repeals the gatekeeping role of the High Court when dealing with referrals from the SCCRC but remains concerned that the High Court should apply an interests of justice test before quashing a conviction or sentence. The Society does not believe that it can ever be in the interests of justice for the high courts to allow a conviction based on a miscarriage of justice to stand and such an approach would undermine the credibility of the High Court and the confidence in the Scottish Criminal justice system in which the SCCRC plays a respected and important role. 28

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