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Title    : Scottish Parliament: Committees: Justice 2: Official Reports:
Meeting 7, 2001
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Text

Session 1 (2001)  
Scottish Parliament
Justice 2 Committee 
Official Report 
Meeting 7, 2001 

--------------------------------------------------------------------------------
 
24 April 2001 
CONTENTS

Tuesday 24 April 2001


JUSTICE 2 COMMITTEE †7TH MEETING 2001, SESSION 1 
  
INTERNATIONAL CRIMINAL COURT (SCOTLAND) BILL 
PETITION 
CROWN OFFICE AND PROCURATOR FISCAL SERVICE 
DRUGS AND DRIVING 
ADOPTION 
COMMITTEE BUSINESS 


JUSTICE 2 COMMITTEE
†7th Meeting 2001, Session 1

CONVENER

*Pauline McNeill (Glasgow Kelvin) (Lab)

DEPUTY CONVENER

*Mrs Lyndsay McIntosh (Central Scotland) (Con)

COMMITTEE MEMBERS

*Scott Barrie (Dunfermline West) (Lab)
*Christine Grahame (South of Scotland) (SNP)
*Ms Margo MacDonald (Lothians) (SNP)
*Mrs Mary Mulligan (Linlithgow) (Lab)
Tavish Scott (Shetland) (LD)

*attended

WITNESSES

Dr Alastair Brown (Crown Office)
Frank Crowe (Crown Office)
Hugh Dignon (Scottish Executive Justice Department)
Len Higson (Procurator Fiscal Service)
Andrew Normand (Crown Office)
Sandy Rosie (Crown Office)

CLERKS TO THE COMMITTEE

Gillian Baxendine
Lynn Tullis

SENIOR ASSISTANT CLERK

Claire Menzies

ASSISTANT CLERK

Fiona Groves

ACTING ASSISTANT CLERK

Graeme Elliott

LOCATION

The Chamber

† 6th Meeting 2001, Session 1—joint meeting with Justice 1 Committee.
 
--------------------------------------------------------------------------------
 
24 April 2001 
Scottish Parliament

Justice 2 Committee

Tuesday 24 April 2001

(Morning)

[THE CONVENER opened the meeting at 10:01]

The Convener (Pauline McNeill): We are now quorate, as three members are
present, so I will open the meeting. This is the seventh meeting in 2001 of
the Justice 2 Committee and I welcome the witnesses and members of the
public who are here today.

I have a brief announcement. We have a new senior assistant clerk—I
extend a welcome to Claire Menzies, who was previously assistant clerk to
the conveners liaison group.

 
International Criminal Court (Scotland) Bill

The Convener: The first item of business is the International Criminal
Court (Scotland) Bill. The bill has not been officially referred to the
committee for stage 1 consideration, but we expect the Parliamentary Bureau
to do that this week. In expectation of that referral, we have invited
Executive officials to give evidence on the general principles of the bill.
Hugh Dignon will introduce the Executive team and has up to 15 minutes to
make a presentation. We will then move on to questions from members.

Hugh Dignon (Scottish Executive Justice Department): I have with me Dr
Alastair Brown, who I believe will also give evidence to the committee on a
different matter later this morning. Dr Brown has played a key role in the
policy and drafting of the bill, although he is not a formal member of the
bill team—he is with the Crown Office. Jan Marshall is a member of the
bill team and is with the Office of the Solicitor to the Scottish
Executive. Danny Jamieson works with the bill team on the administrative
side. My statement will follow the structure that was suggested in a letter
from the clerks. I will start by speaking in general terms about the policy
behind the bill.

The Convener: I will interrupt for a second to ask Hugh Dignon to speak a
little louder so that everyone can hear. There is a problem with the
acoustics in the chamber, which means that sound tends to drift.

Hugh Dignon: The policy behind the International Criminal Court (Scotland)
Bill is to make the changes to Scots law that are required to allow the UK
to fulfil its obligations under the Rome statute. The International
Criminal Court Bill, which is currently before the Westminster Parliament,
will make parallel changes to the law of England and Wales.

The Rome statute is the international treaty that was signed on 17 July
1998 at Rome, where it was agreed to set up a permanent international
criminal court. That agreement was the culmination of preparatory work that
had been going on for about three years. The idea for a permanent ICC goes
back as far as 1948, but it did not make progress because of cold war
tensions. However, atrocities and conflicts throughout the 1980s and 1990s
led to resumed support for the proposal.

The court will come into being 60 days after the 60th state has ratified
the treaty. The treaty currently has 139 signatories, which represent more
that two thirds of the international community, including all members of
the European Union, all NATO members—except Turkey—and four of the five
permanent members of the United Nations Security Council. At present, 29
states have ratified the treaty. The UK Government's aim, which is strongly
supported by the Scottish Executive, is for the UK to be one of the first
60 states to ratify the treaty. The International Criminal Court (Scotland)
Bill and its Westminster counterpart are necessary to allow ratification by
the UK.

Both the UK bill and the Scottish bill include provisions that allow for
the incorporation of ICC statute crimes into domestic law and co-operation
with ICC investigations. They also allow for fines, forfeitures and
reparations to be levied and for ICC prisoners, who are sentenced by the
court in The Hague, to serve their sentences in the United Kingdom.

The key differences between the Scottish and Westminster bills is that the
Westminster bill contains provisions that deal with the granting of
privileges and immunities to the ICC and, perhaps more significantly, that
deal with the arrest and surrender of individuals wanted by the ICC. The
arguments for including those aspects in the Westminster bill were set out
by the Deputy First Minister during the Sewel debate on the bill on 18
January. On the more significant arrest and surrender provisions, the
Executive perceived that, although the provisions would have been in the
competence of the Scottish Parliament, there was a risk that it could be
argued that they were analogous to extradition, which is a reserved matter.
That would have opened the possibility that an ICC fugitive could avoid
being surrendered to the ICC if a court agreed with that view. The better
course, therefore, to avoid any room for doubt, was to include all the
arrest and surrender provisions in the UK bill.

Part 1 of the International Criminal Court (Scotland) Bill incorporates the
offences in the ICC statute into Scots domestic law. The statute does not
require that, but our doing so allows for the important principle of
complementarity, which enables us to try in Scotland those individuals who
commit ICC crimes within the jurisdiction of the bill rather than handing
them over to the ICC to take proceedings. The Rome statute provides that
the ICC will proceed in the case against an individual only if the relevant
state party is genuinely unable or unwilling to proceed.

Many of those crimes, including murder or assault, are already offences
under Scots law if committed in Scotland. However, the principle may not be
applied with total certainty unless the relevant offences are made offences
under Scots law in identical terms to those in the ICC statute. As well as
creating the offences in Scots domestic law, the bill provides for
prosecution of those offences in relevant circumstances where the act is
committed outwith the UK, including where the offence is committed by a UK
national.

Part 1 also covers repeals and amendments including the repeal of the
Genocide Act 1969. That act is included because its jurisdiction is more
limited than is the case under the new provisions. The Criminal Procedure
(Scotland) Act 1995 is amended to ensure that the protection provided to
victims is extended to those giving evidence in relation to offences under
the bill.

Part 2 deals with assistance to the ICC. In order to ratify the treaty,
states are required to be able to provide assistance to the ICC in its
investigation and prosecution of ICC crimes. The general pattern in part 2
is to make such provision, as far as is possible, equivalent to provision
in Scots domestic law. For instance, where a request from the ICC appears
to require the exercise of a power of entry, search and seizure, that would
be done in line with the court's powers to grant a warrant at common law.
Another example is the definition of a sample, which is based on the
Criminal Procedure (Scotland) Act 1995. Also in part 2, sections 19 and 20
provide for the investigation into and the freezing of the proceeds of ICC
crime.

The detail of those measures is set out in schedules 5 and 6, which are
based largely on current practice in the area—for example, under the
Terrorism Act 2000 and the Criminal Justice (International Co-operation)
Act 1990—and dovetail with the relevant provisions in legislation such as
the Bankruptcy (Scotland) Act 1985.

Part 3 deals with the enforcement of sentences and orders. It will provide
for the potential detention in Scotland of ICC prisoners who are sentenced
at The Hague and for the enforcement of orders for fines, forfeitures and
reparations that are issued by the ICC against the convicted person.
Although the enforcement of orders is obligatory under the statute, the
detention of prisoners is optional. However, if the ICC—which will not
have prisons of its own—is to function effectively, it is important that
state parties take on that responsibility.

It will be for the secretary of state to agree with the ICC whether a
prisoner should come to the UK. If it is considered appropriate that the
prisoner should serve a sentence in Scotland, the Scottish ministers will
be consulted. Under the provisions in the UK bill, the Scottish ministers
are entitled to refuse such a request. However, if they agree to it, the
Scottish bill provides for the issuing of a warrant pursuant to such a
detention. ICC prisoners who serve a sentence in Scotland will be treated
in like fashion to domestic prisoners, except that domestic law on the
determination of the length of sentence will not apply, as it is for the
ICC to determine the period that a prisoner should serve.

Part 4, which has the heading "General", sweeps up and provides for
miscellaneous administrative matters, such as the authentication of
documentation that is issued by the ICC, and interprets certain terms that
are used in the bill.

That is a brief overview of the bill. The clerk has suggested that we also
refer to the extent to which there is discretion for signatory states to
choose how they ratify the treaty. Article 120 of the Rome statute states:

"No reservations may be made to this statute."

However, under article 124, a state may upon ratification declare that

"for a period of seven years after the entry into force of this Statute for
the State concerned, it does not accept the jurisdiction of the Court with
respect to the category of crimes referred to in article 8"—

which is war crimes—

"when a crime is alleged to have been committed by its nationals or on its
territory."

A state can declare that reservation for a period of seven years.

Countries may also choose to make declarations at the point of
ratification, but those will not alter the terms of the statute. It is the
view of the UK Government that such declarations would have no legal
effect. As I mentioned, there are areas in which we are doing more than is
strictly required by the statute—for example, in the incorporation of ICC
offences into domestic law. That is the extent to which states have
discretion in the way in which they choose to ratify the treaty.

The Convener: Thank you very much. I invite members to ask questions or to
make comments.

Mrs Lyndsay McIntosh (Central Scotland) (Con): I was curious about your
comments on the jails and where people might serve their sentences, which
the ICC will decide. Is it possible that people will avoid serving
sentences in Scotland until we have cleaned up our jails and had them
properly plumbed?

Hugh Dignon: I am not aware of any problem with prisoners serving sentences
in jails in Scotland as opposed to in any other country. As far as I am
aware, as soon as the bill is passed and the UK ratifies the treaty, the UK
will be as good or bad a place as anywhere for a prisoner to serve their
sentence.

10:15

Christine Grahame (South of Scotland) (SNP): I will ask a couple of general
questions. You state that 139 states have signed and 29 have ratified the
treaty. Could you advise me on the distinction between signing and
ratifying and on the time scale? I understand that, until 60 states have
ratified the treaty, the ICC cannot be established. Why are we dealing with
this now if it might be years ahead until the court is established?

Hugh Dignon: I am not sure that this is a matter of years ahead. The ICC is
working on the assumption that the 60 states will have ratified by about
July 2002.

Christine Grahame: That is very helpful. How many judges will there be in
this criminal court? I beg your pardon—I see that there will be 18
judges. Perhaps we have had this information in a briefing that I missed,
but how will the judges be appointed and what system will operate for the
duration of the appointments?

Dr Alastair Brown (Crown Office): The judges are all to be full time. The
Rome statute requires them to be chosen by election from among persons who
possess the qualifications necessary for appointment to the highest
judicial office in their home states. They are to be people who have
established competence in criminal law and procedure or in relevant areas
of international law. Fairly complicated rules for the election of the
judges seek to maintain a balance between those two groups and require
states in selecting judges to take into account the need for representation
of the principal legal systems of the world—the different legal
traditions—equitable geographical representation, a fair representation
of female and male judges, and expertise on specific issues, such as
violence against women and children. Those subject areas are specifically
identified in the statute.

In negotiating the statute, the states put a lot of effort into ensuring
that there would be good-quality judges; given the kind of offences with
which the court will be dealing, judges will be required to demonstrate the
expertise that we want. From what has gone on in the former Yugoslavia and
Rwanda, we have, usefully but regrettably, a pretty good idea of what kind
of things happen during the commission of such offences. The appointment is
time-limited; I am told that the limit is nine years.

Christine Grahame: Obviously there will be regulations in due course—I do
not know whether the committee will be involved in that—about issues such
as the removal of judges, for insanity for instance. There must be some way
of getting rid of a judge.

Dr Brown: Article 41 of the Rome statute makes provision for the

"Excusing and disqualification of judges",

which is perhaps not quite as final as what Christine Grahame is
contemplating, although I suppose an insane judge might be disqualified
routinely.

Detailed draft rules of procedure and evidence have been prepared to
supplement the Rome statute. Those have not yet been adopted, but they are
in their final draft. They include material about the disqualification of a
judge, requests for removal from office and removal from office. The short
answer to your question is yes.

Christine Grahame: Scotland has a separate legal system—in particular,
its criminal justice system is very distinct from the English criminal
justice system. When recommendations are made on the appointment of judges,
will the Scottish recommendations be distinct from the English ones or will
a UK recommendation be put forward? A UK recommendation would not reflect
the difference in the judicial systems that you said would be represented
on the tribunal.

Dr Brown: I have to disappoint you on that.

Christine Grahame: I thought that you would.

Dr Brown: The court has only 18 judges. In the international law arena, the
UK is a unitary state. Accordingly, the UK will have, I think—it will be
a matter for the UK Government—only one nomination. That nominee could,
of course, be a Scottish judge. We have experience of the UK judge in the
Court of Justice of the European Communities being a Scottish judge—Judge
Edward is there at the moment and there have been others in the past—and
although the British judge at the European Court of Human Rights is
English-qualified, Lord Reid from the High Court of Justiciary and Court of
Session has sat as a temporary judge on occasion, when the usual British
judge has not been able to take part.

We will have to rely on the general efforts to ensure fair representation
of the different legal cultures in the world to ensure that Scotland is
properly represented.

Christine Grahame: That is the point that I was making. Scotland has a
distinctive tradition in its criminal system, which is divergent from the
English system. My point was not a naked nationalistic point; it was about
the Scottish legal system being represented. That concerns me. I accept
that the judge could be English, Irish or whatever, but that would not
reflect the seriously distinctive systems in Scotland and England.

Dr Brown: Yes, that is undoubtedly right. If one were to analyse Scots law,
particularly Scots criminal law, one could probably make a case for saying
that it is—much as Lord Cooper put it in the 1950s—a blend of the
continental civilian tradition, some aspects of the English legal
tradition, and what Lord Cooper referred to as flashes of native genius.
Whether our native genius will be properly represented I do not know, but
we can at least expect the bits that come from the continental civilian
tradition and from the Anglo-American tradition to be properly represented.
Scots law, and particularly Scots criminal law, faces the same issue
repeatedly in international forums. At least in the Rome statute there is a
requirement for broad representation, so that dealings in the international
criminal court will command widespread global support.

Nobody's system will be fully reflected. There are real tensions between
the inquisitorial and the adversarial approaches, which are reflected in
the Rome statute by the creation of a prosecutor's office, which is under
far more judicial control than there would be in an adversarial system, and
by the pursuit of an adversarial approach to trials. There are issues, but
an effort has been made to deal with them.

The Convener: Before we leave the topic of judges, I would like to exhaust
the issue, because it is important. I have a few questions that lead on
from Christine Grahame's questions. Do you have any idea how the figure of
18 judges with which to represent all the legal systems properly was
arrived at?

Dr Brown: It was a matter for negotiation among the 100 or so states that
took part in the Rome conference. I do not know how they came to the figure
of 18. They needed enough judges to have trial and appeal chambers and to
take care of the possibility of certain judges being disqualified from
particular cases for particular reasons. They had in mind experiences from
the Yugoslav and Rwandan tribunals and came to a figure.

The judges will be independent; they will not represent the member states
from which they come. Otherwise, more than 100 states in the world would
feel disfranchised, because only 18 would have nationals as judges.
However, there will be an effort to ensure that the 18 judges have
knowledge and experience of the main legal traditions of the world. I think
that Hugh Dignon has something useful to add.

Hugh Dignon: It is important that we do not lose sight of the fact that, in
almost all circumstances, we expect people who fall within the jurisdiction
of the bill to be tried in Scotland under Scots law by Scots judges. The
important point about complementarity is that by incorporating the ICC
offences into domestic law, proceedings against a UK national or anyone
else who is resident in Scotland who commits one of the crimes—such as
war crimes or crimes against humanity—will usually be taken within
Scotland and the person will be tried under Scots law by Scots judges. That
is the course that we expect to be pursued.

The Convener: That is useful. Is the situation similar to that regarding
European Union law, in that Scottish courts are expected to be the point of
first instance for European Union citizens? Is that the model?

Hugh Dignon: It is important to point out that the Rome statute says that
the ICC will take action only where a state party is "unwilling or unable
genuinely" to take proceedings against a person. It is envisaged that the
ICC will step in only where a country's legal establishment has broken down
and is unable to take the necessary action against individuals. We expect
that in almost every conceivable circumstance, a UK national or a resident
of the UK will fall within the terms either of the International Criminal
Court Bill at Westminster or, if they are resident in Scotland, of the
International Criminal Court (Scotland) Bill.

The Convener: That is helpful. Are there any other questions on judges?

Ms Margo MacDonald (Lothians) (SNP): My area of interest impacts on judges
and the absolute necessity for their impartiality to be seen in an
international context. Although we are talking about an international legal
system, it will inevitably be crossed by the political requirements and
parameters of the day.

I have two questions. First, has the timetable that you have given been
updated since the advent of the new American presidency, given that both
the majority in the Senate and the President have said that they are not
minded to ratify the treaty? Secondly, there are to be only 18 judges.
However, when the international criminal court will be needed most, as in
Rwanda for example, there will be a heavy political perspective. In such
instances, judges will have to be seen to be absolutely independent, which
means independent of the great powers. Why, when the Rome statute was being
compiled, did people not come down in favour of a greater balance of judges
from smaller, unaligned countries, such as Scotland, with independent
systems of jurisprudence and a history of administering justice fairly?

Hugh Dignon: On the first point, I am not aware that the timetable has been
affected in any way by what the US may or may not do in relation to the
court. The issue is the first 60 states to ratify. Whether the US is one of
those does not enter into the timetable. Of course, we are aware of the US
Government's position. The UK Government's position is that it urges the
Americans to ratify the treaty. However, I do not think that the
establishment of the ICC will be held up if the Americans choose not to
ratify the treaty immediately.

Dr Brown is probably better qualified to talk about the independence of
judges than I am. The judges have not yet been chosen. Where they will come
from remains to be seen and will be a matter for a vote among the state
parties.

10:30

Dr Brown: Articles 40 and 41 of the Rome statute spell out the independence
of the judiciary. Article 40 states:

"The judges shall be independent"

and

"shall not engage in any activity which is likely to interfere with their
judicial functions or to affect confidence in their independence."

Article 41 deals with disqualification and provides that:

"A judge shall not participate in any case in which his or her impartiality
might reasonably be doubted on any ground."

Pervading the Rome statute is an appeal to international human rights
treaties, in particular the International Covenant on Civil and Political
Rights, which is the United Nations' equivalent to the European convention
on human rights.

The independence of the judiciary is set out clearly. As in the Yugoslav
and Rwandan tribunals, we should expect the ICC, in dealing with such
questions, to look to the case law of, for example, the European Court of
Human Rights, which makes it clear not only that judges must be
independent, but that they must be seen to be independent.

What considerations will motivate states in deciding precisely which judges
will be selected, we do not, of course, yet know. It is by no means
inconceivable that judges will be appointed from small or non-aligned
states. Indeed, it was an initiative by Trinidad and Tobago that set off
the procedure for negotiating the Rome statute after a long history of
negotiations being stalled—although I understand that Trinidad and
Tobago, for other reasons, is not a signatory to the statute.

It is quite possible that small states will be represented. Small and
developing states are represented on the judiciary of the Yugoslav tribunal
and there is no reason to suppose that they will not be represented in the
international criminal court. However, it would have been somewhat
difficult to write into the statute the inclusion of a legal system—such
as the Scottish system—that, in international law terms, was part of a
larger unitary state's system. That was not done.

Ms MacDonald: May I press you on that? There are not many states that are
in the anomalous position of having a separate, internationally recognised
legal system, as Scotland has, inside a unitary state, are there?

Dr Brown: That is right. One could get into discussions about when a
federal system that has different legal systems within the federal whole
becomes analogous to our system. The obvious comparison is with Canada and
the Quebec experience. You are right that there are not very many such
states. However, the Rome statute is a treaty. As far as the international
community is concerned, the treaty deals with states. On the international
plain, the UK is a unitary state and the international community has to
deal with the UK as a unit.

Ms MacDonald: I will press you further on the matter. The treaty has not
been ratified. Amendments are being suggested. One of the reasons why
Clinton signed the treaty before he left office was to allow for
amendments, so that it could be signed by the incoming United States
Administration. We are still in the melting pot, are we not? The treaty is
not set in stone.

Dr Brown: With respect, I do not think that one can sensibly contemplate
amendments to the Rome statute. One would have to reconvene the Rome
conference and renegotiate the aspects of the Rome statute that one sought
to amend.

I am fairly sure that there was some discussion of amending the Rome
statute in the House of Lords during the Lords progress of the UK bill. The
UK Government's position was that suggestions about amendments to the
treaty were somewhat unrealistic. The American position has been much
criticised by other states. It has been driven by considerations that the
USA has had to determine for itself.

It is still possible to influence the content of the rules of procedure and
evidence and of the elements of crimes, which are in final draft. However,
to contemplate amending the treaty is not terribly realistic, simply
because of the logistics: one would have to convene something like 120
states and get agreement. It took a long time to reach agreement on the
Rome statute. The UK Government's position, as I understand it, is that the
Rome statute is the treaty and that is all the treaty will be.

Christine Grahame: I have supplementary questions on something
different—the impact of the bill, when it becomes an act, on existing
Scots law, both statute and common. You mentioned some statutes on which
there would be an impact—I managed to scribble down only a couple of
them: the Criminal Procedure (Scotland) Act 1995 and the Bankruptcy
(Scotland) Act 1985—which was interesting. What impact would there be on
common law? I may be muddling my thinking. Are there any other statutes on
which there will be an impact? We can ask the clerks to provide us with a
list of any such statutes. I am interested in the impact of the bill on
common law because most of the crimes in Scotland are common-law offences.

You also told us that most of the proceedings should take place in the
native country—Scottish proceedings would take place under a Scottish
judge, prosecution and so on. How does one address equality of standards in
relation to trials, procedures and evidence if individual states take
proceedings differently from how they might be taken if they went before
the ICC? I do not understand that. I can understand that a case might go to
the ICC for the convenience of witnesses, for example. There might be
instances in which that would be more proper. I am just fishing here,
really. I wonder about that conflict.

My first question is: how does the bill impact on common law as well as on
statutes in Scotland? I am concerned that we take notice of things that the
bill changes in Scots law. My second question is: how would the procedures
that will be used in Scotland fit with proceedings elsewhere, whether in
Trinidad and Tobago or wherever? How can one say that there is parity or
any kind of level playing field?

Hugh Dignon: I have to say that I am not an expert on common law in
Scotland.

Christine Grahame: Neither am I.

Hugh Dignon: After a quick word with Dr Brown and Jan Marshall, I can say
that the answer is that we can see no real immediate impact on common law.

I mentioned some other statutes that the bill amends. Those are the
Criminal Procedure (Scotland) Act 1995 and the Genocide Act 1969. The
Genocide Act 1969 will be amended because the jurisdiction under the bill
if passed will be wider than that under the 1969 act. The Criminal
Procedure (Scotland) Act 1995 will be amended so that the protection given
to victims when they give evidence is extended to people who will be
victims under the bill if passed. Those are the direct changes. I mentioned
a couple of other statutes in my statement.

Christine Grahame: You mentioned the Bankruptcy (Scotland) Act 1985, which
was interesting. It has to do with seizure.

Hugh Dignon: In setting out how a court in Scotland will give effect to
freezing orders for the proceeds of ICC crime, we need to be aware of
existing statute in the area and to ensure that the provisions in the
legislation dovetail with it. That accounts for the reference to the
Bankruptcy (Scotland) Act 1985. We followed the model provided by the
Terrorism Act 2000, which set out a way of freezing the proceeds of crime
associated with terrorism. That accounts for my reference to that act.

On parity between different systems, I am not aware of any way in which one
could compare what happens in one jurisdiction with what happens in
another. We could start from the assumption that there is no question but
that the Scottish legal system is considered to be among the best in the
world and perfectly acceptable or that justice is correctly addressed in
proceedings in the Scottish judicial system. That is the only basis on
which we can answer that point.

What happens in other countries is a matter for the ICC, which will take a
view on whether a country is "unwilling or unable" to proceed. If a
country's legal system is best, there will be no reason, in the vast
majority of cases, for the ICC to take a different view.

Christine Grahame: You said "unwilling or unable to proceed". I do not know
what the mechanism for showing it will be, but the ICC might be unhappy
about a trial taking place in a particular state for a particular reason at
a particular political time—as Margo MacDonald said, that is an important
point. Would the ICC be able to say, "We determine that this case should be
heard by us, as we are not happy for it to be heard in that national
jurisdiction"?

Hugh Dignon: No.

Christine Grahame: That is a shame.

Hugh Dignon: The Rome statute states that the ICC can take action only when
a state party is "unwilling or unable" to do so. A further safeguard is
that if the ICC prosecutor wished to initiate an investigation or
prosecution, such proceedings would have to be cleared by a pre-trial
chamber of judges within the ICC. The ICC prosecutor is otherwise unable to
initiate prosecutions. In any event, the statute states that it is only
where a state party is "unwilling or unable"—

Christine Grahame: That is a weakness.

Scott Barrie (Dunfermline West) (Lab): I want to address the point about a
state being "unwilling or unable" to continue with a case. I got the wrong
end of the stick from the policy memorandum, as I thought that the United
Nations Security Council had something to do with that procedure.

Paragraph 6 of the policy memorandum talks about the Security Council and
refers to a state being

"unable or unwilling genuinely to investigate and prosecute a crime".

The policy memorandum suggests that the ICC would take over proceedings in
such circumstances. Could you elaborate on where the Security Council fits
in, as I am now a bit confused?

Dr Brown: It would probably help if we avoided referring to the ICC taking
over a prosecution, as it will not be in a position to call up a case—so
to speak—from a national system.

Article 17 of the Rome statute provides that the ICC may determine that a
case with which it is dealing is "inadmissible"—in other words, that it
should stop dealing with that case—where

"The case is being investigated or prosecuted by a State which has
jurisdiction over it, unless the State is unwilling or unable genuinely to
carry out the investigation or prosecution".

The purpose of that provision, as I understand it, is that proceedings are
generally expected to take place in national courts. However, proceedings
may be commenced in the ICC by the ICC prosecutor under the control of the
pre-trial chamber if it appears that a show trial or a piece of window
dressing is taking place in a state to give someone immunity by subjecting
them to a trial that is intended not to achieve much. We can envisage
without difficulty some states in the world about which there might be
concerns about such trials. Therefore, it is possible for a prosecution to
be commenced in the ICC. If a state that thinks that it is doing the job
properly itself objects to the ICC continuing with a prosecution, or if the
accused objects to the ICC continuing on the basis that the case is being
dealt with properly in the national system, it will be for the ICC to
examine what is going on in the national legal system. The ICC must
determine whether proceedings reach the standard of justice required in
cases of the most serious concern to the international community.

I hope that my answer makes the position a little clearer.

Ms MacDonald: I—

The Convener: Hold on, Margo. Members should indicate if they wish to
speak. Do you wish to come back in, Scott?

10:45

Scott Barrie: Yes, although I want to raise a slightly different point.

In an ideal world, we would not have to prosecute any of those offences as
they would not exist, but given that they do—there are recent examples of
them—what is the ICC's expected work load? There seems to be a lot of
emphasis on prosecutions taking place in individual states. A lot of time
and effort is being spent on creating the ICC, but will it have a
function?

Hugh Dignon: It is not possible to say anything about the ICC's work load
with any certainty, given that it will not deal with crimes
retrospectively—it will deal only with crimes that take place after the
court comes into existence. On the basis of experience, one would expect
there to be some business for the ICC, but exactly how much will be
determined by conflicts that arise and the sort of behaviour that takes
place during them.

It is worth making the point that a key function of the ICC is to act as a
deterrent. One would hope that the ICC's existence will lead to less
criminality of the sort that the ICC is to deal with.

Ms MacDonald: I want to follow up the issue of proceedings being batted
backwards and forwards between a national legal system and the ICC. Dr
Brown said that the ICC could initiate proceedings. While the local
system—the national system—could take up the prosecution, the ICC might
believe that that system is falling down on the job, for whatever reason.
Who will decide any disputes?

Dr Brown: I do not know whether I agree with the phrase "batted backwards
and forwards", as we are talking about two sets of criminal proceedings:
one in the ICC and the other in the national court. Ultimately, the
question for the ICC will be whether it has jurisdiction to continue with
the proceedings that have been commenced before it. The test will be
whether a state that is party to the treaty is genuinely conducting its own
proceedings. If the ICC considers that a state is genuinely doing so, it
will require to take the view that it no longer has jurisdiction to
continue with the case. Its decision will be amenable to appeal to the
appeal chamber of the ICC. The ICC will decide about its proceedings and
that decision will be subject to appeal.

It will be for the national authorities to decide whether to continue with
a national court's proceedings. If the ICC carries on with its proceedings,
questions of what we call, in Scots law, res judicata or tholed assize will
arise. The fact that someone has already stood trial elsewhere on exactly
the same charges and has been dealt with for those charges should bar them
from further proceedings. It will be for both the national court and the
ICC separately to decide whether their proceedings can continue.

A lot of effort has gone into ensuring that the ICC will be a court in
which the international community, including the UK, can have a great deal
of confidence. The tribunal will be a serious tribunal that will command
substantial international respect—at least that is the intention. I
understand that the UK is committed to ensuring that it will work in that
way.

The Convener: The committee's aim is to scrutinise the bill and identify
problem areas. We have probably stumbled across a few of those already. The
details that you provide are important.

Given that the sort of things that must be looked out for are disputes over
jurisdiction, is there a point in proceedings at which the ICC must claim
its jurisdiction? If a country thinks that it has jurisdiction, how far can
it go with a trial before the ICC can say that it should deal with the
matter?

Dr Brown: The ICC can commence proceedings at any time. It is conceivable
that ICC proceedings could start after national proceedings had taken
place. However, the policy underlying the Rome statute and the UK's
approach to it is that, where somebody is subject to the jurisdiction of a
UK court—whether Scots, English or Northern Irish—that person will be
prosecuted properly in the UK court in a way that fully meets international
standards of justice.

Given the nature of the offences that we are talking about—crimes of the
greatest gravity such as genocide, crimes against humanity and war
crimes—it is extremely likely that the accused in Scotland will be in
custody and the trial will be commenced within 110 days of full committal
on petition. If there is a Scottish dimension, it is extremely likely that
Scottish proceedings will have been commenced and completed well before
there is any question of ICC proceedings. I would not expect the ICC even
to contemplate the commencement of proceedings where a UK court is dealing
with a case, unless there was some particular reason to think that the UK
proceedings were in some sense not genuine. I cannot imagine that
occurring.

The Convener: The committee has to imagine extraordinary situations. You
used the term "UK court". Scottish courts are Scottish courts. "UK court"
is meaningless in Scots law. The phrase "international standards of
justice" is just a phrase.

Christine Grahame is drawing out the correct issues. We have to be
satisfied that the signatories to the treaty have a common understanding as
to what international justice is. A person may come before a Scottish court
with Scottish laws of evidence and Scottish procedures and another country
with different procedures might argue that two courts working under the
same treaty might come to a different conclusion. In examining the bill we
want to be satisfied that there are no obscurities under the treaty. Have
the similarities between the legal systems of the countries that signed the
treaty been examined? I do not ask you to go through a list of all the
signatories today, but we would like to see that.

Dr Brown: I do not think that any comparative examination has been made of
the legal systems of the states that signed the statute. In the negotiation
of the statute, a process went on whereby generally recognised principles
of criminal justice were identified, and they are set out in part 3 of the
Rome statute. An attempt has been made to reduce to a written form the
common core of principles of justice that are recognised internationally.

You are right to say that international justice is an expression that does
not have much meaning. I use the expression as shorthand for a collection
of different concepts. However, an increasing consensus can be identified
about what rules ought to apply in a proper criminal proceeding. The
detailed rules that are set out in the Rome statute represent the latest
word on what those are. One would expect that national proceedings might be
measured against the general principles that are set out in the Rome
statute. I am confident that Scots law would measure up to those
principles.

Mrs Mary Mulligan (Linlithgow) (Lab): I want to pursue the issue a little
bit further, because I am not totally clear about your response. You said
that we want the international court to be of high standing and to have a
high reputation, and you went on to give an example of how Scottish law
would be affected. But is there a risk that the ICC will be undermined by
not being able to resolve a difference between itself and a national
country that was not seen to have the kind of standard of legal system that
we would expect in Scotland? Margo MacDonald has given an example of that.
If such a dispute could not be resolved, would that undermine people's
confidence in the ICC?

Dr Brown: The test for the international criminal court will be whether
what is going on in the national system is genuine. If the ICC takes the
view that what is going on in the national system is not genuine, I have no
doubt that the national system concerned will not be pleased. To that
extent, confidence in the ICC might be undermined in that country or, at
least, in the Government of that country. Paradoxically, that same decision
might increase other countries' confidence in the ICC, if they took a
similar view of what was going on. The test is whether what is going on in
the national system is genuine. That is what the court will be concerned
with.

The ICC will want to be seen to be acting properly and clearly. The court
will have to give reasons for its decisions. It will give fully reasoned
judgments. One can get an idea of what those will look like by looking at
the judgments of the Yugoslav and Rwandan tribunals—which are available
on the internet through the UN website—in which one finds enormously
detailed and completely transparent consideration. That very transparency
in the giving of detailed reasons is the kind of thing that makes for
confidence. As we said earlier, the court's judgments will be subject to an
appeal procedure, in which detailed consideration and reasons will be given
as well.

How international confidence in the international criminal court will end
up will be very much determined by the way that the court goes about its
business. However, the structure is there to ensure that it has the best
possible chance of commanding respect globally.

Mrs Mulligan: I was concerned about a country not acting genuinely. In such
cases, does the ICC have the power to announce that it will take over? If
the nation in question continued to hold the trial itself, could the ICC be
challenged because the nation already had to answer an accusation?

Dr Brown: The ICC would not take over national proceedings; it would hold
separate and distinct proceedings. If the national proceedings had been
completed, the proceedings in the ICC would undoubtedly be subject to
challenge. However, the fact that an accused person—or a lawyer acting on
that person's behalf—makes a challenge to those proceedings does not
necessarily mean that that challenge will be successful. That brings us
back to the ICC considering whether the national proceedings on which the
challenge is based were genuine proceedings at all. The word "genuinely",
which appears in article 17.1(a) of the Rome statute, is of critical
importance, and was included very deliberately, so that the ICC would take
the decision on whether what was going on in a given nation was a real
criminal proceeding or was simply a device to try to avoid ICC
jurisdiction. It is a difficult question, which will have to be faced.

11:00

The Convener: I have two or three questions to finish off. I wish to follow
up the question raised by Mary Mulligan and others. I asked you how far
into the proceedings it might be before there might be a challenge.

Let us think about the accused for one minute. Presumably, one of the
general principles of international law would still be that that person was
innocent until proven guilty.

Dr Brown: Yes.

The Convener: If a nation is allowed to complete a trial and to make a
decision, can an international court intervene and say that that nation had
not conducted the trial in a genuine way and that it was therefore going to
challenge it and make another decision?

Dr Brown: Yes.

The Convener: It can do that, can it?

Dr Brown: Yes.

The Convener: Where does that leave the accused person? They have already
stood trial; justice may have been dispensed at that point, and they may
have had no case to answer.

Dr Brown: That accused person will still be innocent until proved guilty
before the ICC.

The Convener: But under Scots law, it is not possible to retry someone who
has already stood trial. It would certainly be a contradiction of Scots
law; it might be a contradiction of other national legal systems.

Dr Brown: That is why the word "genuinely" was included in the Rome
statute. In order to establish the plea in bar of trial of tholed assize,
it would be required to establish that the individual had been tried by a
court of competent jurisdiction, and that the matter had been resolved by
that court. That principle exists internationally, and is written into the
ICC statute. However, it is subject to the qualification that the
proceedings with which one is concerned have to have been real proceedings.
That does not mean that they have to be proceedings with which everyone
would agree in every respect, but they would have to have some real
substance.

The question of the presumption of innocence arises in relation to the
trial. With regard to what the European Court of Human Rights has said on
the matter, the court that is dealing with the trial must not start with
the assumption that the accused is guilty. It is up to the prosecution to
prove that guilt to the required standard and by laying evidence before the
court sufficient to justify such a conclusion. The fact that the accused
may have been convicted or acquitted in a national court will not be of any
relevance to the result in the ICC. The accused will still be entitled to
the presumption of innocence during an ICC trial. I would not expect that
the result in the national court would be regarded by the ICC as indicating
anything about the accused's guilt or innocence when it comes to the ICC
trial. In other words, the accused will start with a clean sheet.

About a year and a half ago, the High Court of Justiciary heard a case in
which the court considered the effect on the trial of the accused of a
conviction or an acquittal of the accused's associates in previous
proceedings. The High Court made it clear that the conviction or acquittal
of an associate in a separate case had nothing to do with whether the
accused was to be convicted or acquitted in that particular case and that
one had to start from scratch. I am conscious that members might want the
name of that case, and I am sorry that I cannot remember it offhand. Should
anyone want it, the clerk can contact me and I will look it up.

My point is that the accused will get a completely clean sheet in the ICC
if he is being tried there. He also gets the presumption of
innocence—that procedure is certainly demanded by the rules in the
statute—and is to be given all the protections that are provided for by
international human rights law.

The Convener: We will probably return to that point on many occasions.

Christine Grahame and Margo MacDonald have two quick questions.

Christine Grahame: I return to my point about parity of judgments, which
would give the ICC clout at the same time as making the signatories to the
statute feel secure that there is a level playing field for justice when
individual national courts are trying cases.

I have examined the definitions in schedule 1 of the bill. New crimes have
been created, and there is a list of crimes against humanity for which
there are expansive further definitions. Will the decisions of national
courts be reported and collated in a way that will allow monitoring of how,
on the evidence, definitions have been interpreted by the courts? When the
ICC hears trials and reports them, will those trials be reported fully and
collated so that monitoring can take place of how justice, in humanitarian
terms, operates? Will the ICC's decisions be merely persuasive in relation
to the interpretation of the definitions or will they be ranked higher than
that? They may not be binding, but—

The Convener: Christine, you were supposed to ask a short question.

Christine Grahame: That was it: I asked only one question, but I elaborated
on it.

Dr Brown: My answer will be short, which is unusual for me. I do not know
of any formal requirements for either national or ICC decisions to be
reported. However, the Lauterpacht research centre for international law in
Cambridge produces a series of publications called the International Law
Reports. I think that the decisions will be reported and the ICC decisions
will almost certainly go on the web in the same way as those from the
Rwandan and Yugoslav tribunals were put on the web.

The ICC's decisions will be very persuasive. The expansion of the
definitions that Christine Grahame referred to comes from existing
international law instruments and from the International Law Commission's
1996 draft code of crimes against the peace and security of mankind, which
the Rwandan tribunal said was highly persuasive and authoritative, but not
binding. That is the sort of territory that we are in.

Ms MacDonald: Had the treaty been ratified three or four years ago, the ICC
would be in existence now. What difference would that have made to the
prosecution of the Lockerbie case? Would the trial have been seen as a
genuine attempt to deal with the situation?

Hugh Dignon: The short answer is that terrorism, such as was tried in the
Lockerbie case, is not within the jurisdiction of the ICC.

Ms MacDonald: Would it not have been seen as a crime against humanity?

Hugh Dignon: I do not believe that that case would have fallen into that
category.

Ms MacDonald: I ask because the Lockerbie trial was about law and about
having to marry different legal systems. However, it was also about
politics, and we should not close our eyes to that.

The ICC will be able to use crime against humanity as grounds for
prosecution. Is that a catch-all provision, or is it specific? I would have
thought that the Lockerbie incident might well have been a crime against
humanity.

Hugh Dignon: A crime against humanity is defined in the Rome statute and
that definition is replicated in the bill. Specific elements of a crime
against humanity are defined, and terrorism does not generally fall within
that definition.

The Convener: I thank the witnesses, whose evidence has been useful.

I suggest that we have a short break for coffee before we deal with the
next agenda item. During the break, members will have a chance to examine
some diagrams on our inquiry into the Crown Office and Procurator Fiscal
Service. We will resume at 11:20.

11:11

Meeting adjourned.

11:26

On resuming—

Petition

The Convener: Item 2 is petition PE306. We are approximately 30 minutes
behind schedule, so it would be useful if we could speed things up a wee
bit.

Members have in front of them a note on the petition from the clerk. The
petition concerns a request that all members of the judiciary declare
whether they are freemasons. Members have quite a bit of material from the
Public Petitions Committee: the petition, which is from Thomas Minogue; a
letter from Jim Wallace's office; and correspondence from the Grand Lodge
of Scotland. I hope members have had a chance to read the papers. You will
notice at the back the suggestions from the clerks. It is open to members
to suggest an option that is not in the paper. Are there any comments or
questions on the petition?

Scott Barrie: The petition raises an interesting point but I am not sure
where we want to go with it. We should take further action but we should
not launch into a huge inquiry. One of the recommendations from the clerk
is that we seek further information from court users groups and the
Sheriffs Association. We could write to the Minister for Justice, who has
already written to the clerk of the Public Petitions Committee. The final
paragraph of the minister's letter says:

"It is of course essential that all who appear before the Courts feel
confident that the Sheriff or Judge will act with complete impartiality as
required of them by the Judicial oath."

It might be useful to ask Jim Wallace why we are not following the route
that the Lord Chancellor is taking in England and Wales of compiling a
register. It is not a public register, and it is not much better than what
we have, but it might be useful to ask why we are doing something slightly
different.

Ms MacDonald: I thought that the Minister for Justice had said why he
thinks we do not need such a register. I hope that nobody will be offended,
but the Lord Chancellor's response was a result of questions about the
quality of justice and the sentences that have been handed down in English
courts. I do not think that that has happened in Scotland. If the Lord
Chancellor's department had decided seriously to do something about the
issue, the register would have been available for public, scrutiny or there
would have been an open declaration and so on. The register is irrelevant
if the Lord Chancellor is the only person who knows that someone is a
mason—he might be one himself.

The Convener: To clarify, the letter from Jim Wallace's office simply
states that it is felt that there is no need for steps to be taken at
present, although no reasons are given.

11:30

Christine Grahame: I will try to make my questions short, although as you
know I am very long-winded. First, as the independent judicial appointments
system is about to be put in place, the issue might be raised when sheriffs
are being interviewed.

Secondly, it might be useful—although it might be an absolute waste of
time, a red herring and impractical—to find out how often sheriffs
declare an interest and how often they withdraw from proceedings because
they feel that they have an interest. It could be made plain that if a
sheriff feels that it would be improper for him to continue with a case, he
should make the appropriate declaration in court. It may be that he then
withdraws and another sheriff takes over. It would be interesting to know
how often that happens. That might come about because the sheriff knows a
person who is involved in a case but was not initially aware of the fact. I
am not sure whether that is ever recorded. That point could be raised with
the minister.

To summarise, I would like to know, first—with regard to the appointments
system—whether the issue could be raised at interview, and, secondly, if
this is monitored, how often sheriffs have to make a declaration or
withdraw from cases because of conflicts of interest, even if they are
conflicts of interest only in their own view.

Ms MacDonald: If we want to cut to the chase, we could just ask sheriffs
whether they feel that the existing convention and requirement of having to
withdraw from a case if there is a conflict of interest encompasses
membership of a masonic order or of any other society or club.

The Convener: We should ask another body whether there is a problem before
we go on a fishing trip to everybody else. I think we agree about that.
That relates to the options that are set out in the paper. We could write
to the court users organisations—the Scottish Consumer Council—or, as
Margo MacDonald suggests, to the Sheriffs Association. Shall we write to
both those organisations?

Christine Grahame: Yes.

The Convener: That means seeking more information, but the point is that we
want to get a handle on whether anyone thinks that the matter raised is a
particular problem. Do members still wish to write to the minister at this
stage?

Christine Grahame: It would be quite useful to write to the minister. Then
again, perhaps—

Ms MacDonald: I would wait until we have heard from the court users
organisations and from the sheriffs. We could then decide whether we need
to go back to the minister, or whether we should go back to Mr Minogue. It
may well be that the answers to the questions that we ask will satisfy Mr
Minogue.

The Convener: Is it agreed that, in the first instance, we will seek more
information from the Scottish Consumer Council and the Sheriffs
Association? To add to a point made by Christine Grahame, I think that, if
we embarked on any further inquiry, it would be right for our questions to
relate to general issues about what sheriffs are asked to declare and not
specifically to this issue. If we felt that further questions needed to be
asked, we would ask them.

Is that course of action agreed?

Members indicated agreement.

Crown Office and Procurator Fiscal Service

The Convener: While the witnesses are being found, I will recap the stage
that we have reached on this issue. At our meeting of 28 March, the
committee agreed to take evidence from the Crown Agent on the structure and
organisation of the Crown Office and Procurator Fiscal Service. I am aware
that not all members were present for that, but I think that there was
general agreement that, given that this will be a big inquiry, we would
like to understand at an early stage how the various offices operate. We
can have a discussion after questions about anything else that members
would like to do to assist in the gathering of information in the inquiry.

Although we have not yet put together a report outlining the focus of our
inquiry, I hope that the evidence that we take this morning and the visits
that we make will give us some idea about that.

I welcome the witnesses to the meeting and ask Mr Normand to introduce his
team.

Andrew Normand (Crown Office): Thank you, convener. I am accompanied by Len
Higson, who is the regional procurator fiscal for Glasgow and was formerly
the regional procurator fiscal for Grampian and Highlands and Islands at
Aberdeen. Sitting beside him is Frank Crowe, who was the regional
procurator fiscal for south Strathclyde and Dumfries and Galloway at
Hamilton and is now the deputy Crown Agent. They have substantial
experience of the Procurator Fiscal Service and the Crown Office. Our
director of resources, Sandy Rosie, completes the team.

I understand that the committee has asked for an initial presentation
containing factual information, which I am happy to provide. However, I
shall look to my colleagues to assist in dealing with the committee's
questions. We welcome the committee's interest in the work of the Crown
Office and Procurator Fiscal Service and are interested to learn that it is
considering undertaking an inquiry into the department. Indeed, it would be
helpful if we could find out more about what the committee has in mind, as
that would allow us to assist its work.

I hope that, in the time available this morning, we will succeed in
providing enough useful information about the areas outlined in the clerk's
letter of 11 April to give the committee a better understanding of our
structure. We will be happy to try to provide any additional information
that the committee needs after the meeting.

Information about the structure and functions of the department was
supplied to MSPs shortly after devolution in the form of a booklet called
"What does the Crown Office and Procurator Fiscal Service do?" Although
members might have reminded themselves of its contents in preparation for
this meeting, an updated version of the booklet will be published shortly
and sent to members.

Our strategic plan for 2000-01 and our annual report for 1999-2000—both
of which have been given to all MSPs—provide other sources of information
about the department. However, as we are currently collecting, collating
and analysing information for our annual report for 2000-01, some of the
figures to which we refer today might be provisional.

The COPFS is a national prosecution and death investigation service that
covers the whole of Scotland. The Crown Office is the head office, and the
service is organised into six regions that correspond to the six
sheriffdoms. Apart from Glasgow, each region has a network of procurator
fiscal offices of varying sizes. Scotland has a total of 49 procurator
fiscal offices, including regional offices.

The department operates a system of regional management, with each regional
procurator fiscal having management responsibility for the resources and
offices in the region. The Crown Office is organised on a divisional basis.
Its main divisions are the operations division, which is headed by the
deputy Crown Agent; the policy division, under the head of policy; and the
management services group, which is headed by the director of resources.
The regional procurators fiscal and the Crown Office divisional heads are
the budget holders in the department for delegated budgets and make up the
departmental management board, which I chair.

Table 1, which I have circulated, shows the structure of the service and
the lines of management responsibility. In general, there are three
types—or sizes—of procurator fiscal office. First, there are six
regional offices—at Aberdeen, Dundee, Edinburgh, Glasgow, Paisley and
Hamilton—which are headed by a regional procurator fiscal who combines
regional management responsibilities with operational responsibilities as
procurator fiscal of the regional office. Regional procurators fiscal are
supported in their administrative role by regional administrative managers,
and will generally have an assistant procurator fiscal or senior principal
depute procurator fiscal as a second-in-command of their regional offices.
In addition to that, as the table shows, there will be a number of
principal procurator fiscal deputes, fiscal deputes and precognition
officers. Table 2 shows the set-up of a typical regional office.

Table 3 shows the set-up of larger district offices, of which there are 13.
They are located mainly in the central belt, but they exist as far north as
Inverness and as far south as Dumfries. They are headed by a fiscal who is
a member of the senior civil service. Those offices will have a principal
depute fiscal as second-in-command and will have a smaller number of
deputes and precognition officers than regional offices do. In most of
those offices, there will be four or five lawyers and one or two
precognition officers.

Smaller district offices are located in the smaller towns, from Lerwick in
the north to Stranraer in the south. There are 30 such offices, all of
which are headed by non-senior civil service procurators fiscal. In the
smaller rural offices, which have a lower case load, the fiscal is usually
the only lawyer on the staff. In such offices, there will generally be only
one or two administrative staff in support. In some of the larger rural
offices with heavier case loads there is a fiscal depute as well as the
procurator fiscal.

Each procurator fiscal is responsible for the management of his or her
office, subject to the oversight of the regional procurator fiscal. Each
fiscal holds a commission from the Lord Advocate and is accountable to the
Lord Advocate for prosecution decisions in his or her jurisdiction. From
their current or recent experience, my colleagues, Mr Higson and Mr Crowe,
are well qualified to answer any questions on this area.

On staffing levels, experience and types of work, table 4 shows Crown
Office and Procurator Fiscal Service staffing levels by region and table 5
gives information about levels of experience of legal staff in the Crown
Office and Procurator Fiscal Service. Replacing staff who have retired and
strengthening our legal staff numbers in recent years has resulted in a
relatively high proportion of legal staff who are fairly inexperienced.
However, they include a number of former trainee solicitors in the
department who have spent a further two years of intensive training in the
work of the department. Table 5 shows that we also retain a large number of
experienced staff.

The main group of legal staff in the department is the procurator fiscal
depute group. Procurator fiscal deputes cover a wide range of legal work in
court and in the office. They deal, for example, with case marking, court
work in the sheriff court and the district court and precognition work in
the preparation of serious cases for trial on indictment in the High Court
and in the sheriff and jury court. Generally, deputes are managed, often in
teams, by principal procurator fiscal deputes. I have referred to the
position of principal deputes in describing the types of office. Their role
is also shown in the typical office structure diagrams that have been
circulated. For completeness, I should mention that principal deputes fill
some of the specialist posts in regional offices and in the Crown Office.
Again, my colleagues are well placed to answer more detailed questions
about those matters.

On work load, table 6 shows a three-year comparison of reports received by
the service, principally from the police but also from a large number of
non-police reporting agencies. The level of reports received has fallen
slightly but there has been an increase in the amount of serious criminal
case work, as the committee will be aware.

The committee will also know that serious or solemn cases begin their life
on petition and that those are the cases that will be precognosed by
fiscals, reported to the Crown Office and prosecuted on indictment before a
sheriff and jury or in the High Court. They are, therefore, typically the
most complex and time-consuming cases.

Tables 7, 8 and 9, which have been circulated, show three-year comparisons
of precognition work, disposals of solemn cases and net petition cases that
have been dealt with in the various regions. The figures illustrate a
national increase in that type of work over the three-year period. That
increase has been more dramatic in some areas, such as Glasgow. Tables 10
and 11 illustrate that in graph form.

11:45

The committee will be aware that our strategic plan states our commitment
to prioritising the investigation and prosecution of serious crime. We have
sought to strengthen our staff resources to deal with that type of work by
appointing additional precognition officers as well as taking on extra
lawyers, including Crown counsel.

Some indication of the work load of individual offices and of variations
between offices was given in written answers by the Lord Advocate to
questions from Richard Lochhead MSP on 22 November last year. Copies of
those answers have been provided to the committee. Work load and variations
depend on various factors such as the nature and size of the office, the
mix of work or the system of organisation of work in the office as well as
external factors, some of which may be unpredictable. It is difficult to
generalise, but Len Higson and Frank Crowe can provide further explanation,
including, perhaps, an indication of the typical work and work loads of
individual staff and information about the management of resources within
regions to deal with the peaks and troughs of work that occur.

I have mentioned external factors. It might be useful to refer to some
examples. The first is the incorporation of the European convention on
human rights. Although we have generally been successful in meeting the
challenge that incorporation presents, some changes to working practices
have been necessary and a new dimension has been added to the
consideration, preparation and processing of cases. We could say more about
that, if the committee wishes.

Secondly, there are enforcement initiatives by the police and other
enforcement agencies. Such initiatives may be local, area-wide or national,
but they can lead to a sudden increase in certain types of report in a
particular area or more widely.

Thirdly, there are unusual or major cases, which quite often seem to occur
in the jurisdiction of some of the smaller offices, which require regional
or national support.

Fourthly, there are criminal justice policy initiatives. An example is the
proposal for drugs courts in Glasgow. Len Higson may be able to speak about
that, if the committee wishes.

The clerk offered us the opportunity to address concerns that have been put
to the committee about staff morale and lack of resources in the service. I
am not aware just what concerns have been put to the committee or by whom.
However, other senior managers in the department and I have concerns about
morale. Those concerns result principally from the staff survey that we
carried out last year and to which the Lord Advocate referred when he gave
evidence to the Justice and Home Affairs Committee last September. We have
taken the findings of that survey seriously and have set in hand action to
address them.

We have previously provided members with a copy of our staff survey
questionnaire, a summary of findings and our action plan. The action plan
is due for review at the end of this month, and we have told staff that we
will let them have a full progress report shortly. I expect that to be
issued in May. We could let the committee have a copy of that, if it is
interested.

On resources, I have mentioned that we have sought to strengthen legal
resources and that we are engaged in recruiting more lawyers. I should also
say that we have been making progress with investment in the important new
initiatives announced by the Lord Advocate, for example in new technology,
future office systems and services to victims, which I know are of interest
to some members of the committee.

This is a time of major and challenging change in our department, as we aim
to provide a modern, high-quality public prosecution service. It is
unsurprising that there is some anxiety about that, but we are trying to
address the uncertainty and anxiety about the change programme. We will say
more about that if you wish.

I understand that the committee wishes to discuss funding and resources at
a meeting in May with the Justice 1 Committee. It occurs to me that it may
be sensible to defer discussion of funding and resources until then and to
concentrate today on trying to give the committee a fuller understanding of
the department's structure, but we are in the committee's hands.

I thank members for their attention. We are happy to answer any questions.

The Convener: Thank you for that statement, for the paperwork that you
provided and for the useful diagrams, which will help those of us who are
new to understanding the issue to get our heads round the structure.

Andrew Normand's last point concerned deferring our discussions about
resources. The purpose of today's meeting is to try to understand from the
outset how the Crown Office operates and the variety of grades of staff. We
have just under an hour in which to do that, but I want to try to get that
done today. Whatever the focus of the inquiry—that is still a matter for
members to decide precisely—the inquiry will be lengthy. I am sure that I
speak for all members when I ask the Crown Office representatives to attend
future meetings. That will help us along the way in the inquiry.

It might be useful to start with the sections that Andrew Normand
used—the structure of the offices, staffing and work load. That will
allow members to ask questions as issues occur to them.

Ms MacDonald: First, I want to find out whether you share the initial
impression that the committee formed, after its visit to Glasgow sheriff
court, that the Procurator Fiscal Service was under some strain. I think
you said that you were concerned about the level of morale throughout the
service. Do you share our concern that resourcing—or perhaps another
reason—is putting strain on the people who work in the service?

I am not necessarily cynical about the quality and practice review unit,
but in other disciplines, we have heard people say that they must spend so
much time on monitoring, self-evaluation and comparisons of outcome that
their concentration on the job that they are employed to do is diluted.

Andrew Normand: I will ask Len Higson to deal with the question that arose
from the visits to Glasgow. I felt that it would help the committee to have
an opportunity to see the issues from the fiscal side as well as the
Glasgow Bar Association side and the court side. I think that Mr Higson
would welcome a visit, but I will leave him to deal with that.

Generally, it is evident to the organisation's senior management that
people have felt under pressure. I referred to some of the reasons for
that, which included incorporation of the ECHR and the increase in serious
crime. I also said that we tried to increase and strengthen our resources
to meet those pressures. We also mentioned the staff survey, which provided
evidence of a feeling of pressure. As I said, we are seeking to address
that. The committee has a copy of our action plan.

On the quality and practice review unit, it seemed to the Lord Advocate,
the senior management team of the department and me that the organisation
needed to set up a separate unit, in the nature of an inspectorate, to
check the quality of practice around the service to ensure, for example,
that the Lord Advocate's policies were being implemented and whether they
made sense or there was a need to revise them. That reassures me, as head
of the department, and the Lord Advocate, as a member of the Executive,
that the policies are appropriate for the purpose and are being implemented
properly.

That is at one level. At another level, we took the view that there was a
need not only to consider areas of policy and practice thematically, but to
consider the way in which individual offices operate. Members will be aware
that the unit has conducted thematic reviews of complaints against the
police. It has also conducted a thematic review of the handling of cases
resulting from fatal road accidents, such as prosecutions, fatal accident
inquiries and more general cases. It is our intention to publish a summary
of findings and recommendations from that inquiry within the next week or
so.

I think that Ms MacDonald was suggesting that the operation of a unit such
as the quality and practice review unit inappropriately diverts staff from
mainstream work.

Ms MacDonald: I was not suggesting that, but trying to find out whether
that has been suggested to you.

Andrew Normand: No, it has not, although the unit has been created using
our increased resources over the past few years. I hope that in future we
will be able to strengthen the unit further. For example, I would like the
unit to have a faster cycle of office visits than is proposed at present,
although we would need to consider carefully our ability to provide the
resources for that. I mentioned a possible comment from Len Higson on the
questions about Glasgow.

Len Higson (Procurator Fiscal Service): The criminal courts in Glasgow are
the busiest in Scotland. It is a demanding place for a lawyer to work,
whether they are a prosecutor or work for the defence. Apart from the
statutory framework, there are tensions between the volume of work and the
desire that is shared by the criminal justice agencies to bring cases to
conclusion in a reasonable time. I see it as my job to ensure that, despite
those tensions, the staff are not overly stressed. Some people thrive on
stress and others suffer from it, but that is very much one of my
responsibilities. The committee would be welcome to visit my office.

The Convener: Before I ask members whether they wish to ask questions, I
ask them to bear in mind that we are dealing with the structures of the
Crown Office and Procurator Fiscal Service at the moment. We will defer the
discussion on resources to a later date.

Christine Grahame: I am mindful of that, but the perceptions that we are
getting from the consumer—to use that awful expression—are that the
Crown Office and Procurator Fiscal Service is overstretched and that, as a
result, cases are sometimes not prosecuted properly, with major cases, such
as Chhokar and Collie, failing. This might sound melodramatic, but in the
lower courts the system would collapse if plea bargaining was not
operating. I have concerns about that.

Mr Normand pointed out the experience of the procurators fiscal who
currently work in the service. Table 5 shows that there are a substantial
number whose experience is either less than one year or one to two years.
There is then a falling-off in the middle of the table. The figures are for
March 2001 only. If the falling-off trend continues, I presume that the
number with over 10 years' experience will decrease. My constituents have
brought to my attention the fact that fairly inexperienced procurators
fiscal with heavy case loads will then be dealing with very sharp defence
lawyers. That is not in the interests of justice. I do not wish to
criticise individuals or attack the service, but such concerns are arriving
on our desks. I would like to answer those concerns and want the committee
to investigate them.

I also have a question on the general structure and the general handling of
resources. I may have got this wrong, but I understand that each regional
management has its own resources. I would like to know about the bids for
those resources and how the resources are allocated. How does the
allocation procedure work before managers are asked whether they have
money, which I suspect that they do not? Should the committee investigate
that?

12:00

Andrew Normand: I am not aware of the source of those consumer perceptions,
but if members were receiving many representations from the public of the
kind that Christine Grahame suggested, I would obviously be concerned.
However, I am not sure that the perception about experience is correct. We
freely admit that there is a fairly high proportion of inexperienced
prosecutors. That is inevitable when we are taking on more people. In
September 2000, the Lord Advocate told the Justice and Home Affairs
Committee that:

"fiscals do not grow on trees".—[Official Report, Justice and Home
Affairs Committee, 27 September 2000; c 1773.]

They do not. They have to be trained. We select good people. There are a
large number of candidates for advertised vacancies in the fiscal service
and we get good-quality new recruits. We train people on the job and in
training sessions that I attend. I speak to members of the new group.

I do not think that it is correct that the proportion or number of staff
with greater experience will fall. If anything, experience has shown that
people join us and stay with us, which suggests that the level of
experience will increase. More junior deputes are with us now with one to
two, or two to three, years' experience. They will remain with the
organisation and there will be a larger and more experienced group of staff
than we have currently. I am not sure whether my colleagues want to comment
on that. Len Higson has such staff in his office. I think that there is
potential unfairness. I know that the committee has sought only to comment
on the issue, but there is an implicit criticism of the ability of those
staff.

The Convener: Our view has been that we should investigate the issue, which
has been put to the committee and to other MSPs and might be only a
perception. We are trying to get behind that perception—that is why we
invited you to the committee and why we would probably like you to come
back. We want to get to the root of the matter. That is why the committee
has asked such questions.

Len Higson: I will give an example from Glasgow. We deliberately place new
deputes who have no previous procurator fiscal experience in either the
justice of the peace courts in Glasgow or the stipendiary magistrate courts
in Glasgow, because such environments are less threatening. The cases are
perhaps less complex than may be encountered in the sheriff court. We have
put in place a supportive structure to assist the new deputes to learn and
to become experienced. They usually remain in those courts for four to six
months before they move—graduate, if you like—to the sheriff court.

Frank Crowe (Crown Office): I conducted a fairly successful exercise to
recruit new deputes last year. The committee must not get the perception
that everyone we recruit is aged 23 or 24. We recruited a number of more
experienced lawyers, some of whom had been partners or salaried partners in
criminal defence firms. Those deputes were a useful addition to our
numbers. They helped to boost the experience of staff. Table 5 does not
give the whole picture.

As the Crown Agent said, many of us joined when the service doubled in size
after we took over the district courts in the mid-1970s, and the majority
have stayed. Perhaps there was a time of flux in the 1980s and 1990s when
legal aid was more attractive and some staff went off to those apparently
greener pastures. However, we are interested in recruiting new lawyers; we
give them excellent training and good back-up, and those who choose to stay
in the service can have an interesting, varied and valuable career.

The Convener: You referred to deputes. Do fiscals enter regional or
district offices at the same grade? Are there a variety of grades after
they enter?

Andrew Normand: In my introduction, I mentioned that the main legal staff
grade is depute procurator fiscal. New staff enter at that grade, which
covers a general, multi-purpose group of legal staff involved in court and
office work. The higher staff grade is principal procurator fiscal depute.
Staff at that grade, as some of the diagrams show, typically fill the role
of second-in-command in an upper limit office such as those in Perth,
Inverness or Dumfries, or manage a team of deputes or precognition officers
in some of the bigger offices. We can tell the committee a bit more about
that if members are interested. Principal deputes also fill the more
specialised posts in the Crown Office.

The Convener: What are your criteria when you embark on a recruitment
exercise for new deputes?

Frank Crowe: We are obviously—but not exclusively—looking for
candidates who have experience in criminal law or criminal law
qualifications; for example, we have found good candidates with other court
experience. Although someone who comes from a chambers legal environment
might not have thought of themselves as a confident court practitioner, we
offer an initial training course and advocacy skills training which can
boost their experience and confidence. There are opportunities to do more
chambers-type work such as investigation, but all the staff are attracted
by the court-based nature of the work and the fact that it is a job worth
doing.

Christine Grahame: It might be useful to leave this line of questioning for
another day. After all, your table on the experience levels of your staff
would be more helpful if it were more sophisticated. I would also be
interested in trends, but the table covers only a year.

It might not be worthwhile to do so, but I want to ask about resources. I
had not understood that, for example, Barlinnie prison's different halls
operated independently in financial terms with an overall umbrella. Does
the Procurator Fiscal Service operate in a similar way? Is the overall
budget allocated on the strength of the bids that are submitted by
different regions?

Sandy Rosie (Crown Office): As a Government department, the head—the
Crown Agent—is the accountable officer for all the spend within the
department. In that sense, the budget is not delegated. However,
internally, the head of each of the six regions and the four units of the
Crown Office marked on table 1 has a delegated budget within the
department.

In an annual planning process, the head of each of those groups submits a
draft management plan, which is considered by the senior management team.
Based on that bidding approach, decisions are taken for the next twelve
months to finalise budgets for each of those delegated areas. That is a
sound and fairly typical business and resource planning process.

Christine Grahame: Is the quality and practice review unit independent? You
said that it was an inspectorate but it seems to be somewhat in-house. Does
the unit have lay members, such as victims and witnesses?

Sandy Rosie: At present, there are no lay members. We are looking at
introducing that element, which I agree is important. The quality and
practice review unit is independent in the sense that it is directly
accountable to myself and to the Lord Advocate and operates under our
authority. It can therefore demand any information and make any findings
that it wishes. It is not independent in the sense of sitting entirely
outside the organisation.

Christine Grahame: Okay.

Ms MacDonald: It is under the budget heading.

Sandy Rosie: That is right.

The Convener: I want to return to the question of the staffing
establishment. You spoke about the factors that had affected the work load
in the service. Is there a formula for deciding what staffing is required?

Sandy Rosie: No.

The Convener: How then do you determine how many deputes you need or how
many advocate deputes are required in the prosecution service?

Andrew Normand: There is no formula as such. The reference that I made to
the uncertainties and unpredictabilities of pressures, both departmental
and local, is relevant to that. Perhaps the director of resources would
like to comment on that point.

Sandy Rosie: We are now asking each regional fiscal—following
consultation with individual fiscals in their region—to present a
management plan. That plan takes account of the history of the requirements
that are needed by the department to respond to casework. The plan also
enables us to look ahead objectively to indicators about changes in work
load that we can anticipate, to some degree, with our knowledge of police
initiatives and changes in policy. In determining staffing levels, we also
take account of work load statistics. Our system is output-based in that we
are trying to anticipate collectively what staffing levels are required. We
try to anticipate all the resources that are needed, including IT and other
support resources.

The Convener: What response has the service had to its work load over the
last year? I know that there have been increases in staffing levels but,
for the record, can you say what those are and how you have responded to
the increase in work load?

Len Higson: As somebody who has to submit a management plan, I can give a
concrete example of the increase in work load. Our strategic priority, as
set out in our strategic plan, is to deal with serious crime. Almost 12
months ago, I took up my appointment in Glasgow. In June of last year, I
realised that there were extremely heavy pressures on the Glasgow office
arising from an increase in serious crime. That increase is shown quite
clearly in table 7, which members have before them.

Members will note that, in the three-year period covered by table 7, the
volume of precognition work—that is our name for the serious crime work
that is in progress—rose from 1,900 to 2,400, which is an increase of
around 22 per cent. In that three-year period, there was no real change in
the resources available in the Glasgow office to deal with serious crime.

Having identified the pressure and the problem, I made an in-year resource
bid for additional staff to deal with that pressure. The need was justified
and accepted and, as a result, I received resources for two additional
precognition teams in Glasgow. Does that give you an example of the
dynamics—

The Convener: Are those additional teams up and running?

Len Higson: There were five precognition teams initially, so the increase
has been from five to seven teams. A precognition team is headed by a
principal depute and has two members of legal staff and five precognition
paralegals. The first additional team was recruited in December 2000 and
January 2001, and the second is almost in post now.

12:15

Mrs McIntosh: I want to revisit a point that Christine Grahame made about
plea bargaining. My comments are not based on my perceptions but on my
experience, before I became an MSP, of sitting on the bench in the district
court. In my experience, if we did not have plea bargaining, the system
would grind to a halt. If there were no break after cases call initially,
nothing would be done on those cases that are listed. I am curious about
one aspect of the listing of cases and the staffing levels that you
identified. Might the increasing use of fiscal fines have an impact on
staffing levels?

I have a further question about budgeting. What happens when you meet your
budget? You might want to take this opportunity to be very clear in your
response.

Len Higson: I will answer your question as a budget holder: no reward or
incentive scheme is involved.

Mrs McIntosh: I am so glad that you took that opportunity to be clear.

Ms MacDonald: I am glad that you are not paid more for catching more—

Mrs McIntosh: Can we go back to my question about fiscal fines?

Andrew Normand: Members will be aware that most criminal justice systems in
the world survive on some sort of plea negotiation or plea bargaining. That
reflects the fact that, generally speaking, most systems correctly identify
the accused persons who are alleged to have committed offences. However, it
is clear that if plea negotiation were banned, or if problems were to
develop with that system, our resources and those of the district and
sheriff courts and of the High Court would need to be increased
substantially.

Our figures suggest that the level of fiscal fines has not increased. I am
not sure what influence those fines have had on the figures in the past
year or two: there was an increase, but the level then flattened out.
Policy on fiscal fines has not changed.

A lot of fiscal fines are imposed in Glasgow—perhaps Len Higson can say
something about that.

Len Higson: A fiscal fine is a useful part of a prosecutor's armoury. My
simple explanation is that if more options are available to a prosecutor,
he or she will be better able to make decisions that are appropriate to the
circumstances of individual cases.

Our colleagues are sometimes concerned about the take-up rate of fiscal
fines, which varies across the country. However, those fines are a useful
option for prosecutors.

Mrs McIntosh: Still on fiscal fines and their increasing popularity and
increasing use, it was envisaged, as I understand it, that, because of the
decreasing work load that the district courts would have, some of the
lesser-end-of-the-scale work from the higher courts might come down. My
information from colleagues still sitting on the bench is that that does
not appear to be the case.

Andrew Normand: The position on that varies throughout the country. My
understanding is that the district court in Glasgow could not accept any
more business. That is by far the busiest district court.

Mrs McIntosh: Indeed it is. I am thinking further down the line to the one
that was under Mr Crowe's jurisdiction when I worked out of Motherwell.

Andrew Normand: He is the ideal person to answer.

Mrs McIntosh: I thought that.

Frank Crowe: I certainly took steps to increase the use of the district
court in, for example, East Kilbride. As a manager, I was conscious of the
delay factor and the busyness of Hamilton sheriff court and the relative
capacity that there was in East Kilbride district court. Motherwell
district court was well organised and well run. To some extent, the change
occurred after I left at the end of 1998. It is a matter of balancing and
using resources.

With the increased use of fiscal fines when the legislation was last
changed, it is not possible for us to put into the district court all the
extra cases that we would like. There are some legislative difficulties.
No-insurance cases are ideal cases for the district court. They are serious
matters but they are relatively simple in that there are two facts that
must be proved: whether the person was driving or using their car and
whether they had insurance. I would be most happy for justices to deal with
those matters and would have every confidence in them doing so, but it
would require a legislative change that would probably need to come from
the Westminster Government, as it is a road traffic matter. There are other
cases of that type that lend themselves to being heard in a district
court.

We also must consider with some recidivists, for example, whether prison
should be an option. Prison is not always in the forefront of some
justices' minds. In fairness to justices, the 60-day limit that a justice
has does not give very much leeway for imposing a custodial sentence if
that is appropriate disposal. They will probably impose the maximum
sentence, 30 days or a non-custodial disposal. The appeal court has made
inroads into that.

I would always advocate the most balanced use of one's resources in a
fiscal's area. That was always my approach.

Ms MacDonald: Before I ask my question, might I put that into straight
layman's terms? Did you just suggest that some of the work load might be
devolved from very busy sheriff courts to district courts if there were a
legislative change to allow that, but that the barrier to that would be
that the change would require to be made by Westminster because, in the
case of a road traffic offence, it would be a reserved matter?

Frank Crowe: That is one example. In Glasgow—Len Higson can perhaps
comment on this—I would say that the shrieval jurisdiction at summary
level is about right in that they also have stipendiary magistrates.
Stipendiary magistrates are only utilised in Glasgow. The local authority
has the power to appoint them. From our perspective, other major
conurbations could have taken that step. In that way, a number of the
serious but less complicated sheriff summary cases could be dealt with
through the district courts with the same level of punishment available as
at the sheriff court.

In Glasgow, the sheriff's summary jurisdiction is about right. Other areas
might consider that approach.

Ms MacDonald: The committee might want to bear that in mind.

It seems that the management plan will be central to the operation of the
service. I am interested in the principles behind the production of the
management plan. I am not getting at anyone; I am trying to discover
exactly what the principles are.

Is it true to say that the introduction of a management plan to manage
financial and human resources is quite a departure for the Crown Office and
Procurator Fiscal Service and that it has not previously thought of
organising its work load and personnel in that way? The only parallel that
I can think of is the sort of management plan that might exist in a local
area social work department where people work with case loads. If that is a
parallel, how would the Crown Office and Procurator Fiscal Service
determine what a reasonable case load would be? You have already said that,
due to the change in the pattern of crime in Glasgow, you have had to take
on another two precognition teams. What measurements are applied when you
are putting together the management tool for the delivery of the service?

I have a final question: do you have the precognition teams to keep, or do
you have them on approval?

Andrew Normand: I can say that he has them to keep. I can also say that the
approach to management is not new; we have been using a management
plan-based approach for some years. The approach is not perfect by any
means but, as I mentioned earlier, the number of uncertainties and
unpredictable factors make the situation difficult. I was the regional
procurator fiscal in Glasgow for several years and I am aware that using a
management plan is not an exact science and is not easy. However, through a
combination of historical information and information about current trends
and anticipated developments, it is possible to produce worthwhile and
useful results. Len Higson can probably say more about that.

Len Higson: My plan is not only my plan, it is the office plan, which I
hope that all staff accept and understand. It reflects what is expected of
them, not just me, and it is not only about money but about people and the
pressures affecting them. The staff survey from last year, which was
mentioned in the introduction, is a key issue in relation to the management
plan for the current 12 months.

The ingredients of the plan are based on our performance. We have
departmental targets that show how quickly we have to do things and how
quickly we would like to do things. A key part of the process is work load,
which must be viewed together with the targets to enable us to determine
what we need to do to support performance against that work load. That is
not a perfect science, but we are able to make a good job of it because of
our experience and our management information.

Ms MacDonald: That is my point. How does the fact that you are able to make
a good job of it sit with your finding that morale is not particularly high
in the service?

Len Higson: Sometimes our aspirations—namely, our conclusions in relation
to resources—are limited by the resources that are available. I am sure
that most senior civil servants who come to this committee will tell you
that their first step is to ensure that they are best using the resources
that they have before they seek additional resources. There is a
transition.

The Convener: You talk about seeking additional resources. Would it be
within the remit of the Crown Office to ask the Executive for more
resources if it was felt that the work load had got to such a level that
more resources were needed? How would that be done?

Sandy Rosie: Yes, we have done that. Our resources have increased
considerably over the past three years. For illustration purposes, in 1997
the department's funding was about £47 million. 

We are just starting a year in which it is £55 million. That figure will
increase as a result of taking our case to the Treasury before devolution,
and to the Executive since devolution, with regard to the Scottish block.
We did that in last year's spending review, and we gained additional
funding. One result of that is an increase in staff. Two years ago, our
total staff numbered 1,087. As members can see from the figures that they
have been given, the number is now 1,200. We have been successful and
active in bringing our case, in getting more resources and in bringing in
more staff. We accept the committee's interest in the question of how that
increase is used internally. The business of predicting and tracking the
use of resources within the department is not easy.

I will add a point about the planning system. We do not rest—having set
out our stall for the year ahead—on the management plan bidding process.
We monitor the situation actively every month, through the senior
management team and we have a mid-year review. Len Higson has already given
an example of how that review process has, in year, led to us altering our
resources in Glasgow. It is an active, on-going process to monitor the
resource situation and the workload, and to make the appropriate
adjustments. It is not a static, annual exercise.

12:30

Christine Grahame: I have two questions, starting with one on resources. I
am wondering about how the regions apply for resources through their
management plans. Do they submit their plans to you? Are those assessed
overall, and does the bid then go to the Executive?

Secondly, and in relation to what Mr Higson said about making a mid-term
emergency bid—if I can loosely call it that—how often are such bids
made? Is that very unusual, or is it fairly frequent among different
regions that find that things are changing? What is the trend with
resources?

Thirdly—although this was meant to be my second question—I want to ask
more about the tables. You said that the information shown in table 7,
which is headed "Precognition Workload: Case Reported plus Work in Hand",
refers to serious crime—although I may have got that wrong. Could you
make it plain to us what the table represents and what serious crime is?
The lives of many members of the public are more affected by, and can be
made miserable by, petty crime. I am referring to the wee burglaries, to
car damage and to other such crimes. I would like to know something about
those crimes. Could there be a table for them?

Sandy Rosie: Christine Grahame raises a number of points, but I will
comment on timing. 
 
From last year's spending review exercise, we gained a three-year baseline.
That is our position with regard to the Executive.

We have management plans that deal primarily with the first year budget
head in great detail. They also set a horizon for the three-year planning
situation. We review that through an annual exercise, which formally
re-establishes the budgets for the following 12 months. Beyond that, we
review the planning situation in the senior management team regularly.

Changes occur from time to time, notably at the half-year review that I
mentioned. It is largely a question of tracking the actual experience of
workload against the assumptions and estimates that were made at the
beginning of the year. The management board discusses that and makes
whatever adjustments are appropriate. Part of the process of adjustment can
involve moving staff around the country, as members may already appreciate.
It is not a static situation. We are actively engaged in dealing with the
case situation and the staffing situation through the year.

Christine Grahame: My presumption—probably wrong—is that Mr Higson was
asking for financial resources, rather than for human resources. That would
allow him to take on more personnel. Am I wrong?

Len Higson: No, that is right. The money must be credited to my budget to
pay for the increase in staff.

Christine Grahame: Perhaps you cannot answer my question today, but it
would be useful to know about trends. Is that practice increasing and how
often is it being undertaken? Your answer would allow us to consider
whether the budgetary process is sufficiently stable. I appreciate that
this is not a science and I did not know whether your bid was unusual.

Len Higson: I do not think that I could quantify the occasions on which
that happens. Our planning process has sufficient flexibility to respond to
changing demands. I am confident that it is soundly based. I will give
another example of how such a situation was dealt with when I was in my
previous post in Grampian, Highland and Islands region. That job was
different, because the region has 15 procurator fiscal offices. The
regional procurator fiscal's aim there is to smooth demand throughout the
region. That involves distributing the people resource—as far as possible
within the regional resource—among 15 offices, to alleviate pressures.
That is a continuing, week-to-week process.

The Convener: There will be only a few final questions. It is 12.35 and
time is getting on.

Ms MacDonald: I have a quick question.

The Convener: No other members have pressing questions that they would like
to hear answers to, so Margo MacDonald will have the last word.

Ms MacDonald: I will ask about the smoothing of resources throughout the
Highlands and Islands and Grampian. That smoothing means that, if you have
just bought your nice wee house on the west coast, you would want to smooth
it over to the east coast. My question returns to morale and the rate of
drop-out of people from the service. I presume that they graduate, qualify,
enter the service for a year or two and then start putting roots down. Is a
practical human difficulty involved?

Len Higson: The Crown Agent and Mr Rosie will be able to give you their
perspective. My view is that legal staff and support staff are less willing
to move throughout the country to develop their careers than they were
hitherto. That is because of domestic commitments, partners and jobs. That
constrains managers and can lead to staleness. Some members of staff might
have been in one place for too long and might have become too comfortable
in their environment. That can lead to negativity.

Andrew Normand: We must deal with and manage that phenomenon. However,
several of our most remote offices have vacancies and we have good
candidates for those posts.

Ms MacDonald: I could give you some names of folk for remote postings,
too.

The Convener: We will conclude there. I thank Mr Normand and the rest of
his team for giving evidence. I hope that they will not mind if we must
call them back.

Drugs and Driving

The Convener: I refer members to paper J2/01/7/3, which suggests how we
could progress our initial inquiry. A decision must be made. I asked the
clerks to write a note to remind us where our remit lies, given that the
subject matter of the Road Traffic Act 1988 is reserved. We must ensure
that our remit allows us to proceed in the direction in which we choose to
go.

The background note suggests that the committee might like to hear from
some other witnesses. Members will recall from our last meeting that one
witness in particular felt very strongly that he should be called to give
evidence. We should hear from him and from a few more witnesses before we
decide which direction to take. Do we agree to take evidence from John
Oliver from the University of Strathclyde? He has provided a written
submission, but it would be useful to hear oral evidence, too. Is that
agreed?

Members indicated agreement.

The Convener: It would be useful to hear from the Scottish Drugs Forum. The
paper lists several organisations, all of which it would be useful to hear
from. Do members agree that we should try to find a slot in which to hear
evidence from those witnesses?

Ms MacDonald: We could hear from three witnesses in one meeting: Mr Oliver;
the Scottish Drugs Forum; and the Scottish advisory committee on drug
misuse.

The Convener: That would be sensible. If we hear evidence from the
witnesses, that might give us a better idea of where we want to
go—whether we want to draw up a report or make recommendations.

Members indicated agreement.

Ms MacDonald: I understand the difficulties that are involved but, at some
point, we will have to address the business of the Road Traffic Act 1988.
Why is the subject matter of the Road Traffic Act 1988 reserved?

The Convener: It just is—that is a fact.

Mrs McIntosh: There is an opportunity to state a different crime on
different sides of the border.

The Convener: We are not going to have a discussion on that today. I am
simply asking members whether we want to proceed. There is still scope for
us to act on the issue of drug driving. Not much work has been done on the
subject, so it would be useful for us to continue the inquiry. We have
probably heard enough research evidence, but perhaps we could hear more on
the road safety side.

Ms MacDonald: My point is that if we follow that through and come up with
some ideas or suggestions for prototypes or experiments, we might not be
able to carry them out because the subject matter of the Road Traffic Act
1988 would still be reserved. That might be an unnecessary barrier to
progress. I would not have thought that the Road Traffic Act 1998 is an act
on which this great and glorious union rests. I am giving notice that at
some point in the future I might say "Just give us road traffic as well,
and we won't do anything stupid".

The Convener: That is up to you. I suggest that we take the evidence as we
have agreed. I am sure that there is something useful that we can do after
that.

Adoption

The Convener: The final agenda item is on adoption. When we first discussed
the subjects that we wanted to examine, we decided that we wanted to
consider adoption from a justice point of view. Members will know that Jack
McConnell, the Minister for Education, Europe and External Affairs, has
made a statement in Parliament and is proposing to conduct a review. The
Justice 2 Committee has been asked to comment on the review and its remit.

Christine Grahame: I have a question to which I do not know the answer,
although that is probably my fault. I still do not know whether it is
mandatory to intimate to the natural father—it usually is the father,
although it could be the natural mother—that there is an application for
adoption. If that is still not mandatory, I would like a change in primary
legislation. Notification should not necessarily be mandatory in all cases.
If the natural father is off the scene when the woman is eight months
pregnant, it might not be appropriate to intimate any adoption application
to him.

However, I would like the weight to fall the other way. I was astonished
when dealing with a case to find out that it was not mandatory to intimate
that information to the natural father. My client had lived for 10 years
with a man. She then married someone else—together they set about
adopting the three children of the first man, the natural father. I asked
the sheriff whether I was required to intimate that fact to the natural
father, with whom the woman had, after all, cohabited for 10 years. The
answer was no and the fact was not intimated to him. I do not know whether
it is still the case that intimation is not mandatory but, if it is, there
is a huge gap. I would like that to be looked at.

Scott Barrie: My understanding is that the issue has to do with whether the
father holds parental rights. That will be covered by the reform of family
law, which will clarify the position. That is the difficulty with the case
to which you refer.

Christine Grahame: I still think that, even if a father does not apply for
parental rights, it would be just in many circumstances to intimate to him
the major change in his child's status. The sheriff might decide that there
is no point in that and that the father should not have a say.
Nevertheless, we are talking about a major thing and I have always felt
that it is unjust not to intimate the information. If other legislation
will deal with the issue, let us investigate it.

Secondly, on the list of groups—given under point 9—that the remit of
the review would be sent to, who and what are

"Legal interests"

and

"Professionals close to, but not currently directly responsible for,
adoption services"?

We cannot say, "You should also consult X, Y and Z" if we do not know who
those groups are. Point 9 is not specific enough.

12:45

The Convener: I agree. It would be useful for the committee to put together
a short report for the Education, Culture and Sport Committee covering all
the points that have been made and crystallising our input. The report
would primarily be on rights and responsibilities, particularly those of
parents, as those of children are probably covered by the remit of the
Education, Culture and Sport Committee and would not be a matter for us.
However, it is clearly part of our remit to look at rights and
responsibilities in adoption in terms of family law. We may wish to make
that point.

On your previous point, Christine, we can ask the Executive for a legal
note on whether there is an issue. I see no harm in flagging up to the
minister that that is one of our areas of interest. I also concur with your
view that we need to clarify what is meant in point 9 by "Legal interests",
and whether that means the Law Society of Scotland or the Scottish Law
Commission, for example. We can address all those points by saying that
that is where our interest lies and that we would like the remit to reflect
our interests in rights and responsibilities.

We can decide at a later date who, be it experts or organisations, should
be called to give evidence on our areas of interest. Presumably, when the
review is under way, the committee will agree formally to discuss those
bits and pieces.

Christine Grahame: There is not a problem if the lead committee is the
Education, Culture and Sport Committee. Our remit would be, for example,
court procedures, intimation, the impact on other areas of family law—as
Scott Barrie rightly said—and whether there are gaps that create
injustice. Once we find out about the issue that I raised, we may find that
I am barking up the wrong tree.

The Convener: Paragraph 13 says:

"The Committee is invited to note the objectives and process for the
Review. Ministers will welcome any comments".

Do members object if we say that we have a role to play that is stronger
than just commenting and that we feel that there is a particular focus for
us that we would like to be recognised?

Members indicated agreement.

Committee Business

The Convener: I realise that I moved on quickly from our evidence session
on the Crown Office and Procurator Fiscal Service, so I will return to the
subject. We must consider our next steps soon, as we have yet to establish
the terms of our inquiry. When I listened to the evidence today, I formed
views about where we might want to go with the inquiry, but we do not have
time to discuss that today. We must spend some time setting out the terms
of our inquiry at our next meeting.

On the question of arranging visits, we decided at our previous meeting
that we would like to visit a rural court and a busy court in Glasgow,
because we cannot ignore Glasgow. I will circulate a letter that we
received from the Lord Advocate, which contains his suggestions. We do not
have time to go into the letter in detail, but members can have a look at
it. Do those members who would like to go on court visits wish to comment
on the time scale? Is it agreed in principle that members would find such
visits useful?

Christine Grahame: I am losing track of our visits. Do not we have a visit
to HM Prison and Young Offenders Institution Cornton Vale?

The Convener: That visit is on either 25 or 28 May.

Ms MacDonald: I volunteer to go to Dundee, provided that it does not rain.

Christine Grahame: What is wrong with Dundee in the rain?

The Convener: Would it be acceptable to members if we were to try to
arrange those visits within the next month? We cannot arrange visits before
we obtain the Parliamentary Bureau's permission.

Christine Grahame: The offer of a visit to a procurator fiscal's office was
interesting. It would also be interesting to visit the Crown Office,
although we are not dealing with that today. That would be fair to the
Crown Office and the Procurator Fiscal Service.

Ms MacDonald: We would be welcome to go through to Glasgow, and it would be
only fair to do that. There also seemed to be some sensitivity about the
fact that we had spoken only to the Glasgow Bar Association.

The Convener: That was not true, as we were invited by the sheriff
principal.

Mrs McIntosh: I have already set up a meeting in Hamilton.

The Convener: We agreed that members could do their own thing as well, so
that is fine. We will investigate the possibilities and the time scale and
we will put suggestions to members by e-mail, as usual. Members can then
reply and we will try to co-ordinate the situation in that way. It would be
useful to hear members' suggestions about whom they would like to take
evidence from next.

Christine Grahame: I want to return to the inquiry remit. Before we start
to consider from whom we should take evidence, it would be useful to have a
45-minute slot, which the committee could hold in private, to discuss the
remit's headlines. I do not think that that has been put on to the agenda.

The Convener: I suggested that we set aside time at the next meeting to
discuss the terms of our inquiry. It is our normal practice to have that
discussion in private and we will ensure that we have enough time to do
that.

I want to ensure that all members of the committee who want to go to
Cornton Vale have responded to the information about that visit. The two
dates that have been circulated, which are different from the dates
circulated previously, are the days on which the inspection team will be at
Cornton Vale. Those of us who went on a previous visit to Barlinnie found
it useful to go round with the inspectors. I highly recommend the visit to
Cornton Vale to those members who have not thought about going on it.

I remind members that the next meeting of the Justice 2 Committee will be
tomorrow at midday, when we will have a joint meeting on the budget with
the Justice 1 Committee. Thereafter, our next meeting will be on 1 May; it
will be a short meeting to consider evidence on the International Criminal
Court (Scotland) Bill.

Christine Grahame: I want to make two further points. How is the timetable
for the visit to HM Prison Kilmarnock proceeding? I am keen to visit
Scotland's only private prison.

We should also consider the crisis in the Scottish Prison Service. Given
the e-mails and letters that we have received from serving officers, most
of us have been well aware that the crisis has been on the cards for some
time. I would like the Justice 2 Committee to consider that issue. I do not
think that it is sufficient simply to say that we will leave it to the
chief executive of the SPS. This is a serious matter—already there has
been disorder at HMPYOI Glenochil—and this committee must examine the way
in which the SPS operates.

The Convener: We are trying to get a date for the visit to Kilmarnock—I
think that we were considering a date in June, although that date may slip,
given everything else that we are trying to fit in. The problem is one of
scheduling.

We do not have a discussion on industrial relations in the SPS on our
schedule. We would have to decide in private whether members wanted to
pursue that issue.

Christine Grahame: I ask that we put on the agenda for discussion in
private at our meeting next week the issue of whether members want to
pursue the matter. I believe that a justice committee of the Scottish
Parliament should concern itself with the fact that every prison in
Scotland, except Kilmarnock, had a walk-out.

Ms MacDonald: Will we discuss that issue among ourselves, convener, or will
we get some information from the horse's mouth, including from the union?

The Convener: It would be courteous of me to discuss the matter first with
Alasdair Morgan from the Justice 1 Committee, as that committee is
considering the review of the prison estate. There is no reason why, in
private session, members cannot discuss whether they want to do something.

We will leave matters there. I thank members for attending.

Meeting closed at 12:55.


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