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Is the appeal intended to involve a rehearing of the case, thereby inviting the Court of Session to consider the matter anew? Or is the scope of the appeal to the Court of Session to be limited to a review of the sheriff's exercise of the judicial discretion vested in him at first instance? If the scope of the appeal is limited, it would not be open to the Court of Session to interfere with the sheriff's decision merely on the ground that it would have exercised its discretion in a different manner. This could give rise to a situation in which the Court of Session is satisfied that there is evidence to justify a finding that a patient should be kept in custody in the interests of public safety, and would have made such a finding itself, but is not prepared to interfere with the sheriff's finding to the contrary because there are no legal grounds for doing so.
I wish it to be made explicit in the bill that the court may review the evidence anew and may come, if necessary, to a different decision based on the facts and not simply on the sheriff's application of the law to the facts or on points of law alone. If the minister is not prepared to accept the amendment, I seek an assurance from him that the scope of re-appeal is sufficiently wide, in the bill as drafted, to cover the points that I have raised in the amendment and that there is no need for the matter to be clarified in the legislation.
Mr Gallie will move the other amendment in my name in this group.
I move amendment 26.
I will be fairly brief. This
I wish to make one or two brief comments. As Mr Gallie said, this amendment emanates from the Law Society in recognition of the serious steps that we are taking, which will affect the liberties of a certain category of individuals. We are doing so rightly but we should nevertheless recognise that what we are doing is extremely important and that we must ensure safeguards where possible.
This amendment is one possible safeguard. In effect, by building in a prearranged time scale for hearing the appeals, we will guard against people continuing to be detained over what may become an almost indefinite period pending an appeal hearing. Such a hearing may take a very long time to arrange, or-heaven forfend-proceedings may be deliberately stalled at the convenience of ministers, who would rather that matters did not come to a conclusion too quickly. This amendment seeks to build in a time scale for the appeals to be heard within an expedited period.
Amendment 26, which was moved by Mr McLetchie, seeks to clarify that an appeal under section 66A of the bill may be on the grounds of fact or law. I can assure Mr McLetchie that that is the case-the appeal is not limited and can be taken on either ground. That means that the Court of Session would be able to consider the whole case. It is not envisaged that there would be a complete rehearing, but transcripts of the evidence, for example, would be made available to the court. In the circumstances surrounding that kind of appeal, the Court of Session cannot take a view on the credibility of witnesses, but it can examine the evidence and have regard to its sufficiency, as well as to points of law. Indeed, the court could come to a view that is different from that of the sheriff. The intention is that an appeal can be lodged on the grounds of both fact and law.
On the question of the timetable under the bill, within which appeals to the Court of Session should be completed, I recognise the desire that such appeals be conducted with due speed. Mr Gallie referred to issues surrounding the fact that such cases will inevitably be of public importance and Ms Cunningham referred to issues surrounding questions of individual liberty. However, I do not believe that setting a rigid time scale is the answer.
It is accepted that the issues raised by Mr Gallie and Ms Cunningham are important. Parties to an appeal involving a restricted patient will undoubtedly be anxious to have the appeal heard quickly. The Court of Session has to balance competing claims for the allocation of time to consider appeals, which, by their nature, require to be dealt with as quickly as possible; disputes involving children are often given some priority.
New procedures have been introduced which provide that either party may enrol for an early disposal of the appeal. Those procedures would apply to appeals under the new act and I am assured that, in practice, they have been found to work satisfactorily. It seems preferable to apply the existing procedures, which allow for flexibility in disposing of such appeals, rather than trying to provide a fixed timetable. A fixed timetable may well be found to be unworkable for reasons outwith the control of the court or the parties involved. In some cases, such a timetable could inhibit early resolution of appeals.
I am satisfied that the present arrangements are flexible enough to ensure that appeals can be dealt with without undue delay. I recognise the importance of doing so, and a specific power of the kind proposed in the amendment would not be required. I therefore invite the Parliament to reject amendment 26.