Section 4 — Powers and duties of police

Protection from Abuse (Scotland) Bill: Stage 3 – in the Scottish Parliament at 9:30 am on 4th October 2001.

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Photo of George Reid George Reid Scottish National Party 9:30 am, 4th October 2001

The next amendment for debate is amendment 10, in the name of Christine Grahame, which is grouped with amendments 11 and 13.

Photo of Christine Grahame Christine Grahame Scottish National Party

I can be brief in relation to these amendments. Section 4(4) of the bill sets out on the face of the bill the rights available to an arrested person. Those rights are specified in full and are essentially the same as the normal rights of a person arrested on a criminal matter.

At stage 2 I gave a commitment to consider further the rights conferred on an abuser when the police arrest them. As I indicated at stage 2, there was concern that the alleged abuser should be informed of the reason for their arrest at the time of arrest. These amendments follow on from that consideration.

Amendment 10 addresses the specific concern that I have mentioned and requires the police immediately to tell the person why they are being arrested.

Amendments 11 and 13 are consequential to amendment 10 and I propose to say no more about them.

I move amendment 10.

Photo of Bill Aitken Bill Aitken Conservative

These amendments are infinitely reasonable. Amendment 10 seeks to ensure that the person who is arrested under the provisions of the bill is informed immediately of the reasons for their arrest. Natural justice demands that. The amendment is welcome and I am extremely pleased that the issue that it addresses is to be clarified. I need say no more on the matter. We will support amendment 10 and the consequential amendments 11 and 13.

Photo of Jim Wallace Jim Wallace Liberal Democrat

There is a blossoming of consensus. I am grateful to Christine Grahame and the Justice 1 Committee for agreeing to reconsider the rights that ought to afforded to the alleged abuser under the terms of the bill. Amendments 10, 11 and 13 would make a proper adjustment to the bill; accordingly, the Executive is happy to support them.

Photo of George Reid George Reid Scottish National Party

Does the member in charge wish to respond?

Photo of George Reid George Reid Scottish National Party

Amendment 1, in the name of Bill Aitken, is grouped with amendment 3.

Photo of Bill Aitken Bill Aitken Conservative

This is the first in a series of amendments lodged in my name on behalf of the Conservative group. At the appropriate juncture, we will support the motion that the bill be passed, as we regard it as a worthwhile piece of legislation. The purpose of our amendments is to make this good piece of legislation better. They should be seen as a positive effort to improve a bill that will provide much-needed protection for many people in Scotland who over the years have found themselves the subject of abuse.

Amendment 1 seeks to clarify a situation that may not occur very frequently, but is likely to occur sometimes. If someone is arrested in a city, in a large town or even in a reasonably well-populated urban area, there is a high possibility that it will be possible to detain him or her in a police office. However, in rural or Highland communities the situation is somewhat different and incidents may occur many miles from the nearest police office. It may, therefore, be appropriate to allow the place of detention to be other than the police office.

I am reminded of the considerable impact made by Maureen Macmillan's speech when that matter was first debated in the Parliament, well over two years ago. On that occasion she spoke about incidents that had taken place in her neck of the woods, where it might not be easy to take someone to a police office after they had been arrested. Amendments 1 and 3 seek to address that issue.

I move amendment 1.

Photo of Christine Grahame Christine Grahame Scottish National Party 9:45 am, 4th October 2001

Amendments 1 and 3 seek to replicate in the bill a discretion that is given to the police under criminal law. The amendments would allow the police to take an arrested person to premises other than a police station. For a number of reasons, such discretion at the point of arrest is inappropriate.

At stage 2, there was much debate about importing criminal provisions into the bill. The Justice 1 Committee accepted that this bill, which is a civil measure, should stand alone, and expressed its approval for the fact that the bill is self-contained. The bill is not a criminal measure, and it is necessary to examine closely the purpose and effect of importing provisions that resemble criminal provisions into a bill where the purpose of detention is quite different from that of detention under the criminal law.

At section 4(2) the bill requires the arrested person to

"be taken to a police station as quickly as is reasonably practicable".

It does not require the person to be detained thereafter at the police station; it requires only that they be detained. That is in line with the equivalent provisions in the 1981 act.

Under the criminal law, an arrested person could be taken elsewhere for other purposes, such as attendance at an identity parade or the search of premises. Both those situations would be in connection with the on-going investigation of a crime. Neither can apply under the bill, as there is no further investigation to be undertaken. The arrested person may also need to be taken to another police area where the crime is being investigated. Again, that situation does not apply under the bill. The person requires to be brought before the sheriff for the district where they were arrested.

Although under the bill there are no release provisions by the police, we see no operational reason why an arrested person should not initially be taken to a police station, be advised there of their rights, have those rights recorded and have any requests acted on. Should the police for operational reasons wish to detain the arrested person elsewhere thereafter, the bill allows for that.

We also consider that it is desirable that a child be taken initially to a police station in order to ensure that the active step of intimation to the parent is properly carried out and supervised. We note the additional safeguards provided to children under section 43 of the Criminal Procedure (Scotland) Act 1995. That section requires the involvement of senior officers or the officer in charge of a police station when a child is not released immediately. It suggests that the provision in section 15(4) of the 1995 act refers only to a police station and that children under criminal law must be taken directly to a police station. We consider that the serious circumstances of the arrest of a child merit their being taken directly to a police station.

For the sake of completeness, I should point out that there is a problem with amendment 3. At present, the officer in charge of the police station must intimate the detention to the child's parents. The amendment would require the officer in charge of the other premises to intimate the detention to the child's parents. However, there may be no officer in charge of the other premises.

It remains our view that there are sound reasons for requiring the alleged abuser to be brought to a police station immediately after arrest and that the provisions of the bill should be consistent with the equivalent provisions of the Matrimonial Homes (Family Protection) (Scotland) Act 1981.

I invite Bill Aitken to withdraw amendment 1 and not to move amendment 3.

Photo of Jim Wallace Jim Wallace Liberal Democrat

Christine Grahame has given a number of reasons for resisting amendments 1 and 3. In particular, she indicated that they were inappropriate in two respects for dealing with young people under the age of 16. The bill also seeks to be consistent with the provisions of the parallel Matrimonial Homes (Family Protection) (Scotland) Act 1981. To import into the bill the additional words proposed by Bill Aitken would lead to significant divergence between those two pieces of legislation. For those reasons, I invite Bill Aitken to withdraw amendment 1 and not to move amendment 3.

Photo of Bill Aitken Bill Aitken Conservative

I have heard what the member in charge and the minister have said, but I remain unconvinced by their arguments. I believe that amendments 1 and 3 are necessary to tidy up the anomalies to which I referred, as they recognise the practical difficulties that may apply in rural areas.

I accept that there is some inconsistency between what I propose and existing legislation. However, I suggest that existing legislation, rather than my amendments, is inept in this regard. I wish, therefore, to press my amendments.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 1 be agreed to. Are we agreed?

Members:

No.

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 14, Against 69, Abstentions 0.

Amendment 1 disagreed to.

[Amendment 11 moved—[Christine Grahame]—and agreed to.]

Photo of Christine Grahame Christine Grahame Scottish National Party

At stage 2, Bill Aitken raised the question of detention under criminal proceedings following upon an arrest under the provisions of the bill. As I indicated then, that was helpful and the matter has been given careful consideration since that debate. I am grateful to Bill Aitken for pointing out that area and for allowing us time to look into the position.

The bill sets out the procedure that is to be followed on and after arrest when no criminal proceedings are to be taken in respect of the incident that gave rise to the arrest. That will be the normal position, as the purpose of the bill is to provide powers to the police to arrest and remove alleged abusers in situations in which the criminal law does not apply. When the conduct is sufficient to be a breach of the criminal law, it is to be expected that the arrest will be under criminal law provisions.

Having considered the position further, I accept that there is a need for an amendment to make it clear that the detention that the bill permits will cease at the point where criminal proceedings are initiated. In other words, when is the alleged abuser subject to the normal provisions of criminal law? Amendment 12 amends section 4(2) to make it clear that the detention under the power of arrest in the bill stops when the alleged abuser is accused of a criminal offence on petition or is charged on a summary complaint. From that time onwards, any detention of the person will be under the provisions of the criminal law and they will be in a similar position to other persons charged on complaint or accused on petition.

The position that I have described seems fair. It is fair to the alleged abuser, who will be returned to the criminal law sphere with the rights that apply to others who have been accused or charged. It is clear for the police, who will have a definite point in time when the civil warrant ceases to be applicable, and it is fair on the victim, who will have had the additional benefit conveyed by the power of arrest until the criminal law takes over.

In practice, in most cases the service of a petition or complaint will occur after the alleged abuser has been taken to court to await their appearance before the sheriff. Service will occur in the cells at court and the then accused will be required to appear before the criminal court later that day. We expect that, in most cases, detention will continue until their appearance in court, but that is a criminal law matter and not a matter for the bill.

Amendment 2 is in the name of Bill Aitken. The wording is the same as that of an amendment that he moved and subsequently withdrew at stage 2. As he indicated at stage 2, the amendment is directed at providing the police with the power to continue detention after an arrest under the bill but in the circumstances in which the fiscal has initiated criminal proceedings. We do not consider that it is appropriate to put such a power in a civil law measure. Any detention prior to the alleged abuser's appearance before the criminal courts is a matter for the criminal law. The procedure in the bill is no longer relevant to such a situation.

We also consider that amendment 2 remains defective, as its reference to section 135(3) of the Criminal Procedure (Scotland) Act 1995 is incorrect. That section deals with taking an accused person to court on the first court day after arrest on a summary criminal charge. However, the accused will be appearing at court under section 144 of the 1995 act, following the service of the complaint by the fiscal. Furthermore, amendment 2 does not deal with appearance at court following the initiation of solemn proceedings.

I hope that Bill Aitken will not press amendment 2 and will feel able to support amendment 12.

I move amendment 12.

Photo of Bill Aitken Bill Aitken Conservative

As Christine Grahame highlighted, history is attached to amendment 2. When the bill came before the Justice 2 Committee at stage 2, I lodged a similar amendment. We had considerable discussions on the matter at stage 2 and I reserved the right to pursue it further at stage 3, should it not be satisfactorily resolved.

Since then, Christine Grahame and I have exchanged correspondence on the subject. While there was some excitement yesterday afternoon, when it appeared to me that the wording of amendment 12 was not as clear as it might have been, I am satisfied that amendment 12 seeks to remedy a flaw in the bill as introduced.

In all the circumstances, and on the basis of the reassurances that Christine Grahame has given, I am prepared to accept amendment 12 and not to move amendment 2.

Photo of Jim Wallace Jim Wallace Liberal Democrat

Bill Aitken's concession is welcome. The Parliament is grateful to him for focusing on the situation of those who are originally detained under the bill's provisions but against whom criminal charges are subsequently made.

It is important that there should be clarification for the police on the interaction between the bill's provisions and the criminal law. Amendment 12 achieves that aim, as it clarifies the position for the police and provides an important measure of protection for the accused person.

In the circumstances, the Executive will support amendment 12.

Amendment 12 agreed to.

[Amendment 2 not moved.]

Amendment 13 moved—[Christine Grahame]—and agreed to.

[Amendment 3 moved—[Bill Aitken].]

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 3 be agreed to. Are we agreed?

Members:

No.

Division number 2

For: Aitken, Bill, Davidson, Mr David, Douglas-Hamilton, Lord James, Fraser, Murdo, Goldie, Miss Annabel, Harding, Mr Keith, Johnstone, Alex, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, Monteith, Mr Brian, Mundell, David, Scanlon, Mary, Scott, John, Tosh, Mr Murray
Against: Adam, Brian, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Campbell, Colin, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Deacon, Susan, Eadie, Helen, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Mrs Margaret, Fabiani, Linda, Finnie, Ross, Fitzpatrick, Brian, Gibson, Mr Kenneth, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grahame, Christine, Grant, Rhoda, Henry, Hugh, Hughes, Janis, Hyslop, Fiona, Jackson, Dr Sylvia, Jackson, Gordon, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, MacLean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Matheson, Michael, McAveety, Mr Frank, McConnell, Mr Jack, McGugan, Irene, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, Morgan, Alasdair, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Paterson, Mr Gil, Peacock, Peter, Peattie, Cathy, Quinan, Mr Lloyd, Radcliffe, Nora, Raffan, Mr Keith, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Stone, Mr Jamie, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Welsh, Mr Andrew, Whitefield, Karen

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 14, Against 70, Abstentions 0.

Amendment 3 disagreed to.

Photo of Bill Aitken Bill Aitken Conservative

To some extent, I will argue for amendment 4 from a converse position to my arguments of a few moments ago. We are dealing with practicalities once again. The effect of the amendment would be to place a positive onus on the police to take active steps to contact the parent or guardian of a child held in custody. The police would need to intimate that the child had been arrested and where he or she was being held.

The purpose of the amendment is to ensure that, in all cases where a child has been arrested under section 4(1), the officer in charge of the police station will contact the person with parental responsibility for that child. That is essential. As the bill stands, the duty to intimate applies only in circumstances where it is "practicable" to do so. That does not offer sufficient protection for children who could be held in custody under the bill.

The term "practicable" is open to many varying interpretations. Although there should be no difficulty in the vast majority of cases and I fully accept the premise that hard cases do not make good law, we must have the safeguard that the amendment would provide. There is an analogous provision in the Criminal Procedure (Scotland) Act 1995, which creates a positive onus on the officer to contact the parent or guardian in all cases. If there is such a provision in that piece of legislation, we should have one in this bill too.

I move amendment 4.

Photo of Christine Grahame Christine Grahame Scottish National Party

Amendment 4 has the laudable aim of protecting children in police custody by requiring the police to intimate to the person with parental responsibilities that the child is being detained. I agree with the thinking behind the amendment, but the bill already states that the police "must" intimate.

In an attempt to save police time, the bill gives the police an element of discretion by providing that the police "must where practicable" intimate. The police must intimate unless it is not practicable to do so. It seems sensible that, without in any way diluting the protection given to a child, we prevent the police from undertaking fruitless attempts to intimate when it is known that the attempt is bound to fail.

Let me give an example. A child of 15 is arrested for being in breach of an interdict. At the police station, he tells the duty officer that his parent or parents are on holiday abroad. Under the amendment, despite the fact that the child has given the police that information, the police would still be required to send intimation to the parent or parents. That seems pointless and would be a waste of precious resources.

As I have said, we are keen to ensure that children are protected. We have made specific provision in the bill to give children extra protection. Very few children will be affected by the bill. It is extremely unusual and possibly almost unique for a child to be interdicted. Even so, protection has been provided.

Photo of Christine Grahame Christine Grahame Scottish National Party

Let me conclude. Bill Aitken still has a right to reply.

However, that protection has been tempered with a touch of realism about the duties of the police. The bill states that the police must intimate; only if it is not practicable to do so is the obligation removed.

I ask Bill Aitken to withdraw his amendment.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I support what Christine Grahame has said. No one questions the motives that underlie Bill Aitken's amendment, but Christine Grahame has given the practical reasons why the bill already meets the need to ensure that children are properly protected. The bill does so in a way that does not place on the police an undue burden that could be fruitless. For example, if it were known that the parents were abroad but it was not known where, an effort to contact them would still have to be made, even though it was known from the outset that the effort could not succeed.

I will make one further point. Christine Grahame emphasised that the bill states that the officer "must where practicable" intimate. The bill actually states:

"must where practicable, without delay".

That is another safeguard for the protection of children. I invite Bill Aitken to withdraw amendment 4.

Photo of Bill Aitken Bill Aitken Conservative

Amendment 4 should be considered. The example that was given by Christine Grahame and the minister is not particularly apposite. Clearly, if a child is arrested whose parents are on holiday in Mallorca or at some unknown destination, notifying the parents will be a practical problem. However, if the parents are abroad, someone will be acting in their place. By definition, someone must be in charge of a child under the age of 16. It would be illegal for the parents to desert the child to go on holiday abroad without leaving someone in charge of him or her. Therefore, the example given does not apply. If a child were arrested whose parents were overseas or could not be traced, the person who was looking after the child in the parents' absence would be notified. Amendment 4 would be a wise piece of protection of the rights of the child. I am firmly of the view that the amendment should be accepted.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 4 be agreed to. Are we all agreed?

Members:

No.

Division number 3

For: Aitken, Bill, Davidson, Mr David, Douglas-Hamilton, Lord James, Fraser, Murdo, Goldie, Miss Annabel, Harding, Mr Keith, Johnstone, Alex, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, Monteith, Mr Brian, Mundell, David, Scanlon, Mary, Scott, John, Tosh, Mr Murray, Wallace, Ben
Against: Adam, Brian, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Campbell, Colin, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Deacon, Susan, Eadie, Helen, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Mrs Margaret, Fabiani, Linda, Finnie, Ross, Fitzpatrick, Brian, Gibson, Mr Kenneth, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grahame, Christine, Grant, Rhoda, Henry, Hugh, Hughes, Janis, Hyslop, Fiona, Jackson, Dr Sylvia, Jackson, Gordon, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, MacLean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Matheson, Michael, McAveety, Mr Frank, McConnell, Mr Jack, McGugan, Irene, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, Morgan, Alasdair, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Paterson, Mr Gil, Peacock, Peter, Peattie, Cathy, Quinan, Mr Lloyd, Radcliffe, Nora, Raffan, Mr Keith, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Stevenson, Stewart, Stone, Mr Jamie, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Welsh, Mr Andrew, Whitefield, Karen

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 15, Against 71, Abstentions 0.

Amendment 4 disagreed to.

Photo of Christine Grahame Christine Grahame Scottish National Party

Amendment 14 follows on from considering the rights given to the accused, which we have just discussed in the debate on amendments 10, 11 and 13. While examining the rights available to an arrested person under section 4(3), we felt that there were some additional matters that should be recorded by the police.

As drafted, the bill requires the police to record the time and nature of any request made by the detained person under section 4(3) and the time and nature of any action taken by the police under that subsection. In addition, the police are required to record the time and nature of any action that they have taken under subsection (4) in relation to a person who appears to be under the age of 16.

Amendment 14 repeats the existing recording requirements, but requires the police to record five additional matters. First, the time of arrest, the police station to which the arrested person is taken and the time of arrival at the police station must be recorded. Those facts could be significant in ascertaining whether the arrested person was taken to a police station as soon as was reasonably practicable, which is a requirement imposed on the police by subsection (2), and whether the procurator fiscal was informed of the arrest as soon as was practicable, as required under subsection (6).

The recording of any other place to which the arrested person is taken is included and reflects equivalent requirements under the criminal law. For completeness, the police are required to record the time the arrested person was informed of their rights under subsection (3). That could be significant in ascertaining whether the police informed them of their rights as soon as they arrived at the police station.

The requirements to record the time and nature of a request to the police and the time and nature of any action taken are in the bill as drafted and are repeated in amendment 14.

Amendment 14 brings the information that the bill requires the police to record into line with what is required under criminal procedure.

I move amendment 14.

Photo of Bill Aitken Bill Aitken Conservative

As has been said, the bill is a hybrid, which contains an amalgam of civil and criminal law. Shortly, I shall seek to probe the meaning of the phrase

"as soon as is practicable."

Amendment 14 has merit and we shall support it.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I am grateful to Christine Grahame for lodging amendment 14, which clearly gives improved protection for the rights of the alleged abuser. We are happy to support the amendment.

Amendment 14 agreed to.

Photo of Bill Aitken Bill Aitken Conservative

In amendment 5 I seek to probe the meaning of the phrase

"as soon as is practicable."

Article 5 of the European convention on human rights, which deals with the right to liberty and security of person, states that those who have been deprived of their liberty through arrest should have the right to challenge in court the lawfulness of that deprivation. In the interests of justice, such a challenge should be heard as soon as possible. Therefore, it is essential that the circumstances of any arrest are reported immediately to the procurator fiscal and not simply

"as soon as is practicable."

The case can then be brought before the competent court as in any normal criminal proceedings where there is a statutory obligation on the authorities to do that. I lodged the amendment at stage 2 and withdrew it, because at that stage there was some discussion as to what might come thereafter. At that stage, I was in favour of the use of the term "immediately", but the majority of members of the Justice 2 Committee felt that that would be impractical.

However, on balance, I am of the view that the term "immediately" should be substituted in the interests of justice and the speedy resolution of matters that come to the attention of the authorities. That would ensure compliance with article 5 of the ECHR.

I move amendment 5.

Photo of Christine Grahame Christine Grahame Scottish National Party 10:15 am, 4th October 2001

As Bill Aitken said, amendment 5 was debated at stage 2 and subsequently withdrawn. Bill Aitken's amendment would require the police to inform the procurator fiscal of an arrest "immediately" following the moment of arrest, which might not be practical. As with amendment 14, there are good reasons for allowing the police some flexibility. At present, section 4(6) states that when the alleged abuser is arrested, the police should inform the procurator fiscal of the facts and circumstances of the arrest

"as soon as is practicable."

In practice, intimation to the procurator fiscal will be given as soon as the fiscal's office is open. There is nothing to be gained by requiring an immediate intimation when the office is known to be closed; we are not dealing with situations in which the immediate attention of the fiscal would have any effect on the alleged abuser.

The concern that was expressed during the Justice 2 Committee debate on the ECHR is misplaced. The bill is fully compliant. Section 4(6) requires the police to take action as soon as they can. The purpose of that is to ensure that the alleged abuser is brought before the court on the first possible date after the arrest. Therefore, the alleged abuser is able to challenge the deprivation of their liberty at the earliest possible opportunity.

Section 5 makes it clear that appearance on the next court day is required. An additional protection can be found in the actions of the procurator fiscal, who must present a petition to the court on that day. The procurator fiscal can therefore be expected to be anxious to be informed promptly of the facts and circumstances so that the petition can be prepared. Because the liberty of the individual is at stake, the courts will be very strict in their assessment of how much leeway is permitted to the police on this matter.

I have no doubt that the courts will interpret the phrase in section 4(6) as requiring the police to intimate to the fiscal almost immediately after the arrest and just as soon as it is feasible to get in touch with the fiscal. The sensible discretion that is given to the police does not in any way affect the protection that is available to the alleged abuser, nor does it delay their appearance at court. I therefore invite Bill Aitken to withdraw amendment 5.

Photo of Jim Wallace Jim Wallace Liberal Democrat

It is right that, whenever the liberty of the individual is at stake, proper consideration be given to the way in which powers are exercised. I agree with Christine Grahame that there is nothing essential about informing the procurator fiscal immediately. The situation would be different for a murder case, when the fiscal would have to attend the scene of the crime immediately.

Bill Aitken properly indicated the importance of the individual having the opportunity to challenge the withdrawal of his or her liberty. The key protection is in section 5, in which there are strict requirements regarding court appearances. As Christine Grahame said, it will be incumbent on the procurator fiscal to present a petition to the court at the time of the court appearance. Therefore, an early—nearly immediate—intimation will have to be made to the procurator fiscal. However, to stipulate that such an intimation should be made "immediately", as amendment 5 requires, would not be practical. I therefore again invite Bill Aitken to reconsider his position.

Photo of Bill Aitken Bill Aitken Conservative

I have listened carefully to what has been said, but I am not entirely convinced. We are talking about people being detained in custody. It is clearly essential that such situations should be resolved as soon as possible. I see no difficulty in including the word "immediately" in section 4(6)—doing so would comply fully with what we are trying to do. I am also concerned that there may be problems with ECHR compliance that have not been anticipated. I will press my amendment.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 5 be agreed to. Are we agreed?

Members:

No.

Division number 4

For: Aitken, Bill, Davidson, Mr David, Douglas-Hamilton, Lord James, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Harding, Mr Keith, Johnstone, Alex, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, Monteith, Mr Brian, Mundell, David, Quinan, Mr Lloyd, Scanlon, Mary, Scott, John, Tosh, Mr Murray, Wallace, Ben
Against: Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Campbell, Colin, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Deacon, Susan, Eadie, Helen, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Mrs Margaret, Fabiani, Linda, Finnie, Ross, Fitzpatrick, Brian, Gibson, Mr Kenneth, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grahame, Christine, Grant, Rhoda, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Hyslop, Fiona, Jackson, Dr Sylvia, Jackson, Gordon, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, MacLean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Matheson, Michael, McAveety, Mr Frank, McConnell, Mr Jack, McGugan, Irene, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, Morgan, Alasdair, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Paterson, Mr Gil, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Stevenson, Stewart, Stone, Mr Jamie, Wallace, Mr Jim, Watson, Mike, Welsh, Mr Andrew, Whitefield, Karen

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 17, Against 70, Abstentions 0.

Amendment 5 disagreed to.