A two-in-one measure

Wide-ranging legislation reforming the criminal justice system and licensing laws last month received royal assent and now moves towards implementation. The Society was closely involved during the passage of the Criminal Justice and Licensing (Scotland) Bill through the Scottish Parliament and will continue to monitor the impact of the Act on behalf of the profession.

Radical changes to sentencing policy attracted most controversy during the parliamentary process. The Scottish Government succeeded in introducing a presumption against short custodial sentences (three months or less) in favour of “community payback” arrangements, with the intention of ending the “revolving door of reoffending”. The original intention was that the measure should apply to sentences under six months, but that failed to win sufficient backing from opposition parties.

Other major provisions in the Act include:

• creation of a Scottish Sentencing Council to ensure greater transparency and consistency in the sentencing process;
• a new statutory offence in relation to stalking;
• raising the age at which a child can be prosecuted from eight to 12;
• reform of the law of evidence in criminal proceedings in relation to the use of witness statements during trials, Crown appeals and the compellability of a spouse or civil partner of an accused to give evidence;
• reform of the law on the retention of DNA and fingerprint evidence for use in investigating and prosecuting crime;
• raising the age limit of people who are able to sit on a criminal jury from 65 to 70;
• a new statutory basis for the disclosure of evidence to the defence in criminal cases;
• reform of the law on mental disorders in criminal proceedings;
• reform of local authority licensing under the Civic Government (Scotland) Act 1982; and reform of alcohol licensing under the Licensing (Scotland) Act 2005.

Double input

Both the Society’s Criminal Law Committee and the Licensing Law Subcommittee responded to the general principles of the bill in writing after it was introduced to the Parliament in March last year. Then Bill McVicar and John Loudon, the respective conveners, gave oral evidence to the Parliament’s Justice Committee. At stage 2 of the bill, the Justice Committee took further evidence on issues such as stalking, sentences for carrying a knife, and the control of lapdancing and other adult entertainment venues, to which the Society responded.

The Society’s committees lodged a large number of amendments at stage 2. For instance, the Criminal Law Committee tried to remove the provision to allow the retention of DNA and fingerprints from children who are dealt with by children’s hearings rather than the criminal courts. The committee also promoted raising the age of criminal responsibility from eight to 12, and put forward amendments about the use of prior statements of civilian witnesses in court. There is potential for prior statements, which are taken by police officers, to be inaccurate and the committee remains of the view that they will now be afforded greater evidential weight than at present.

Given the practical issues of implementing the Licensing (Scotland) Act 2005, the Licensing Law Subcommittee proposed a number of amendments to improve that legislation, for instance over the transfer of premises licences. The subcommittee also proposed that applications for premises licences should be granted when planning consent has been obtained for a development.

Questions remain

Although key measures promoted by the Society were successful, a considerable number of reservations remain. The Criminal Law Committee continues to question whether a Scottish Sentencing Council is necessary, given that the purposes and principles of sentencing are already well understood by the courts. However, in a welcome change from the bill’s original proposals, the Council’s sentencing guidelines must be approved by the High Court of Justiciary. The committee also welcomes the Government’s initiative to put in place a statutory basis for disclosure in criminal cases, but continues to question a requirement for the defence to lodge a defence statement in solemn proceedings.

The Licensing Law Subcommittee takes issue with the reintroduction of vicarious liability for licensing offences, given that the Licensing (Scotland) Act 2005 divided licences into both personal and premises licences. This liability extends to either the holder of a premises licence or any other interested party. However, several of the subcommittee’s recommendations are now in the Act, including fast track procedure for occasional licences and the reintroduction of summary application procedure for appeals against the decisions of licensing boards.

The exact timetable for the Act coming into force is not yet known, although it is likely to be introduced incrementally. The Society will continue to monitor implementation of the legislation and keep the profession informed of developments.