Group 1 concerns the prevention of delay in trials: time limits, grounds on which limits may be extended, consequences of breach of limits, and bail under section 65(8C). Amendment 91, in the name of Margaret Mitchell, is grouped with amendments 92 to 100, 109 to 114, 30, 59, 60 to 62 and 122.

I point out to members that if amendment 109 is agreed to, I cannot call amendment 110 for reasons of pre-emption. If amendment 113 is agreed to, I cannot call amendments 114 and 30, also for reasons of pre-emption. [Interruption.] Order.

The effect of amendment 91 would be to retain the 110-day rule—[ Interruption. ]

Order. Please excuse me. There is still far too much extraneous noise in the chamber.

The 110-day rule is a fundamental principle of the criminal justice system. It has been in existence for many centuries. The effect of amendment 91 makes provision for a preliminary hearing to be heard not less than 14 days—in other words, by the 94 ^th day—after the service of indictment, which must be no later than the 80 ^th day. The early disclosure measures in the bill should mean that that is easily achievable, as we move from working to deadlines to dealing with business as soon as possible. It is crucially important that the 110-day rule is retained. It ensures that dealings with the accused work on the established principle of innocent until proved guilty and that they are not kept in custody any longer than is absolutely necessary. Amendments 92 to 100 are consequential amendments that make provision for the retention of the 110-day rule.

The effect of amendment 110 is that, if the 110-day rule is breached, the accused is admitted to bail. They would be released on bail, but would be brought to trial within the 12-month time limit. That would be a huge improvement on the current situation in which, if the rule is breached, the accused is liberated forthwith. Amendments 111 and 112 are consequential on amendment 110.

Amendment 114 is a drafting amendment, which is again consequential on amendment 110. Amendment 122 is consequential on changes being made to the bill. If the retention of the 110-day rule is agreed to by the Parliament, the amendment alters the title of the bill to accommodate that change.

I move amendment 91.

My amendments 109 and 113 seek to maintain the 12-month rule, whereby an accused has the right to be brought to trial within 12 months of being indicted. While I appreciate the Executive's argument about the need to extend the 110-day rule by 30 days to accommodate the preliminary hearing, and its assurance that 140 days is the final line and must be held at all costs, I do not agree with its point on the 12-month rule. I do not see the same pressing need to withdraw the 12-month rule and the protection that that right provides.

That right is to be withdrawn for reasons entirely different from those for withdrawing the 110-day rule. The right to be freed after a year will become the right to be considered for bail, which is an illiberal measure. It is an erosion of an age-old protection against the state holding a charge over a person for a long time. It is another illustration of a failure on the state's side to bring a case to trial, a failure of police and procurator fiscal resources, and a failure of court management, judges' availability and evidentiary deadlines. As a result, the defendant's right, to be tried within a year or be freed, will be withdrawn. That protection ought to be retained.

I call the Deputy Minister for Justice to speak to amendment 30 and others in the group.

Thank you, Presiding Officer. [ Interruption. ]

Order. I am sorry, there is still too much noise in the chamber. These are important matters.

The bill contains a package of measures that were proposed by Lord Bonomy, which we believe will be workable in relation to defence preparation and trial planning. Amendments 91 to 100, 110 to 112 and 114, in the name of Margaret Mitchell, are similar to amendments that were lodged at stage 2, and I repeat what I said then. One of the key objectives of the bill is that parties are fully prepared for trial, and that trials proceed on the date set by the court. That will create greater certainty for victims and witnesses, and reduce the unacceptable level of adjournments.

The retention of the 110-day time limit, as proposed by those amendments, would jeopardise the package of measures. The proposals in the bill retain the right of an accused to have a hearing within that timescale, while at the same time allowing adequate time for preparation, and therefore allow for greater certainty that trials will be ready to proceed on the date fixed. The amendments would undermine the objectives of the bill, and would disturb that balance, therefore I ask Margaret Mitchell to withdraw amendment 91 and not move amendments 92 to 100, 110 to 112 and 114. If she does not do that, I ask the Parliament to reject them.

Section 9 seeks to amend the current provisions relating to breaches of the custody time limits. It provides that if the custody time limit is breached, an accused would be entitled to be admitted to bail, but proceedings against him may continue subject to the 12-month time limit. That prevents the situation where an accused can be released from custody and be forever free from prosecution on the charges of the indictment because, for example, of an administrative error in calculating the time limits. By allowing the accused to be entitled to be admitted to bail, we are striking the right balance between the accused's right to a fair trial and the victim's right to expect to see an accused face trial.

Colin Fox's amendments 109 and 113 would retain the current position. As Lord Bonomy pointed out in his review, the effect of the present provisions is that someone who is charged with a particularly serious and odious crime could be released and not tried on that charge due to a human error of miscalculation. Surely that is not right. We accept that the accused should not be detained in custody any longer than is necessary. I believe that the provisions in the bill safeguard that right, as well as protecting the rights of victims and their relatives. I therefore ask Colin Fox not to move amendments 109 and 113. If he does not do that, I ask the Parliament to reject them.

Executive amendments 30 and 59 to 62 are consequential upon section 9, which will introduce for the first time an entitlement to bail for accused persons at the expiry of the custody time limit, where that custody time limit cannot be met. Amendment 30 provides for the continued detention of the accused for a period of up to 72 hours, where the prosecutor appeals against a refusal to extend the time limits. Amendments 59, 60, 61 and 62 seek to modify the general provisions on bail in part III of the Criminal Procedure (Scotland) Act 1995 so as to fit with the particular circumstances of bail granted because the custody time limits have not been met.

The bill contains a package of measures that seeks to bring greater certainty to the court system. One of the most contentious issues has been the extension of the 110-day time limit in custody cases. The reforms will introduce a realistic system that can be delivered. The introduction of a further 30 days to accommodate the new preliminary hearing and to reflect better the complexity of many modern High Court cases is sensible. The prosecution will still have to indict the accused at 80 days, but the extra days should reduce the number of adjournments, many of which are currently requested by the defence. It became clear to the committee that the so-called jewel in the crown—the 110-day rule—was already unattainable and was a moving target. The average additional length of time that is spent in custody at present is 34 days, which takes us up to around the 140-day target. The new target should be achievable and will allow the package of measures to be achieved.

The committee heard mixed evidence on the matter, including the concerns that the Law Society of Scotland raised, but in the end the committee members, with the exception of Margaret Mitchell, were persuaded that 140 days is a more realistic limit and is still a much shorter period than is in operation anywhere else. However, every effort should be made to ensure that 140 days is the exception rather than the rule and that ministers monitor the situation closely.

Colin Fox's amendment 109 seeks to retain the status quo on breach of time limits. The bill seeks to change the existing situation in which, on breach of time limits, an accused is "liberated forthwith" to a situation in which the accused is

"entitled to be admitted to bail".

While I agree that every effort should be made to minimise the time for which an accused is kept in custody, it is not in the interests of justice—as the general public would understand that concept—to let a person who may have committed rape, murder or other serious crimes go free.

So that we can have an informed debate, I ask Margaret Smith whether she has information about the number of criminals who have not been brought to justice within 12 months and who have therefore fallen through the loophole to which she refers.

I do not have that information off the top of my head.

We are trying to introduce a package that provides discretion for the judiciary and balances the rights of the accused with those of victims. If a time limit is breached, the bill will give the accused the right to seek bail in the normal way in the knowledge that the trial will commence. If the prosecutor does not make an application to extend the time limits, or if an application is denied, the accused will have the right to apply for bail in the normal way before the judge, at which time conditions may be applied. I discourage support for Colin Fox's amendment 109.

The committee considered carefully the package of measures in the bill and dissected the time limits that will be imposed under the new procedures. If we are to have preliminary hearings in order to reduce the number of adjournments, we must accept the whole package. Margaret Mitchell's amendments would move the process back because the indictment would have to be served within 60 days. The committee took the view that that is a tall order for the Crown to achieve and that the period should be 80 days. If we want to have the package of measures, including the preliminary hearing, which is the centrepiece of the bill, we need the time limits that the bill will introduce. As Margaret Smith said, it became apparent to the committee that, even when there is a motion to extend the time limit of 110 days, the limit is still referred to as 110 days, whether it is 115 or more. We were not aware of that point.

On Colin Fox's point about the breaching of time limits, Parliament should note that the committee considered that issue carefully. No one has taken the new provision lightly. Indeed, for the benefit of the Parliament I seek assurances from ministers that they do not want an increase in the number of breaches under the new time limits. We must ensure that we monitor the situation when the bill becomes law. There should be no dramatic increase in the number of breaches of the time limits once we change them.

Since the European convention on human rights was incorporated into our law, the courts have been quick to address the issue of undue delay. I am sure that that would apply should the time limits under the 12-month rule be breached, and I am also sure that defence lawyers would be quick to point out any undue delay. I note that the Lord Advocate has already put on record his intention to aim for a 9-month target, which I think the Parliament would welcome.

This has been an interesting process for members of the Justice 1 Committee. This is a technical bill, and it took some of us some time to grasp the more intricate points and complexities of this part of the legal system.

I have some sympathy for what Margaret Mitchell said. I started out firmly of the opinion that the 110-day rule should be kept in place. The evidence on the matter was not clear either way. Many people in the legal profession and many people in the civil liberties field said that the 110-day rule should be kept. I have a great deal of sympathy for the argument that, if early disclosure succeeds and we speed up the trial process—if the early part of the process of justice is speeded up—then the 110-day rule could be maintained.

On Colin Fox's amendments in the group, I would say that Lord Bonomy's report was clear about the need to move forward, although there might be a difference of opinion as to exactly what should and should not be done in various parts of the bill. To retain the current position is not acceptable, however, and we will be opposing those amendments.

I had hoped that the minister would mention proposed new section 65(8D)(a) of the Criminal Procedure (Scotland) Act 1995, which amendment 30 inserts. The latter part of that reads:

"or for such longer period as the High Court may allow".

Keeping a person detained under a committal warrant for no more than 72 hours seems reasonable in circumstances where the application for bail has been refused, but the second part of that paragraph suggests that the period could be open ended. I wonder if the minister could express an opinion on what that wording means. To have 72 hours to get things sorted and allow a new application to come forward, or for the period to expire after 72 hours—and therefore for the appeal to be disposed of—seems okay. However, to leave things open ended at that point seems to leave the possibility of a person being detained in custody for an unknown period while the matter is sorted out. I had hoped that the minister would have mentioned that in his opening remarks on this group—I wonder whether or not he wishes to say something now. No? Okay.

I will give the minister a chance to come back on that, if he wishes to do so, before the closing speech for the group.

There is a very important point of principle here, and I wish to say at the start that I recognise the fact that there are arguments on both sides. I fully accept that crime tends to be more complex nowadays, and that evidence, including forensic and DNA evidence, sometimes takes a lot more time to gather. It is not quite as simple as it used to be.

The fact remains that the 110-day rule, as Margaret Mitchell eloquently stated, has been a jewel in the crown of the Scottish legal system for some centuries. It provides a very valuable protection to accused persons. No one is stronger than I am in saying that those who are convicted of crimes should be punished and locked up—but I would rather require that they are found guilty first. We operate on the basis of a presumption of innocence, which is a very important principle of Scots law. Before their trial, and while they are on remand, there is a presumption that people are not guilty of the crime with which they have been charged.

We must think very seriously before interfering with what is a bulwark and a protection for accused persons. It is not good enough simply to say that our legal process in Scotland is tremendously efficient, that the only faster jurisdiction in the world is that of China and, without actually looking at the system, say that we must retain it as it is. If one considers the speed with which the Chinese process is carried out, one finds that it usually finishes with a somewhat painful end for the accused, and I do not think that any of us are suggesting that the same system should apply here. We are taking a chance that the system of Scots justice, which has been much admired throughout the world, will lose the respect that it holds.

When the 110-day rule has looked like being breached, there has always been the opportunity to apply for an extension. The minister, quite properly, pointed out that in most cases such an extension is granted. However, that is at the discretion of the judge, so there is a built-in safeguard in that respect. It is probably a highly unusual situation that the Conservative group is the one that is arguing strongly in favour of a civil liberties issue, but we have no hesitation in doing so on this important issue. Even at this late stage, rather than prevailing on Margaret Mitchell to withdraw her sensible and highly principled amendment, I call on the Minister for Justice to think again on a matter that could have serious consequences.

Someone who is a member of a party led by former Home Secretary Michael Howard has a bit of a nerve standing up in any chamber and uttering the words "civil liberties", let alone expounding further.

I will be brief, because the 110-day rule has been discussed at length. I am not a member of the Justice 1 Committee, but I have read its stage 1 report in full. It is a well-worn cliché to say that the 110-day rule is the jewel in the crown of the Scottish legal system, but it is. I suppose that those who argue that it should not be sacrosanct would say that it is virtually unique and that therefore we place demands on our legal system that no other country in Europe or beyond places on its. However, just because the rule is unique, that does not make it wrong. Rather than diluting the safeguards that we have built into our legal system over many years, perhaps we should be encouraging other jurisdictions to emulate those principles.

I have a remaining concern about the extension of the 110-day rule. Stewart Maxwell said rightly that the evidence that the Justice 1 Committee took at stage 1 was not conclusive either way. A considerable body of evidence given at that time expressed concerns about the extension, including evidence from a legal perspective from the Law Society of Scotland and evidence from the Scottish Human Rights Centre, which was concerned about the human rights and civil liberties aspects.

I am glad that it is acknowledged that all members of the Justice 1 Committee considered in great detail what members will know is a highly technical issue. However, only the Scottish Human Rights Centre and Margaret Mitchell have argued that we should move back the whole process to serve the indictment within 60 days. No one else has suggested that.

With respect to Pauline McNeill, I did not say that anyone else had suggested that; I said that several people, including witnesses from the Scottish Human Rights Centre and the Law Society of Scotland, expressed concern about extending the 110-day rule. I know that we should not be driven by the media, but I want to give an example that encapsulates what I think is the concern about the provision, which is that the bill is intended to speed up justice. I heard a radio discussion in which it was said that today the Scottish Parliament will pass a bill that is intended to speed up the Scottish justice system and deal with cases more quickly and as part of that it will dismantle the long-held 110-day rule and extend it to 140 days. That is a simplification, but it sums up what is at the heart of my concern: it is inconsistent and somewhat illogical to say that we will speed up the system, but we will extend the time limits. I accept that there are arguments, including the argument that Pauline McNeill had advanced, that if we insert into the process a preliminary hearing, we have to take account of it in other parts of the process. Nevertheless, there is an inconsistency at the heart of the bill that has perhaps not been addressed properly. Perhaps the minister will return to that, if he wishes to sum up on this group of amendments, before we move to the vote on amendment 91.

Do you have any further comments, Mr Henry?

Specifically on the question that Stewart Maxwell raised about amendment 30, it would be for the court to determine whether the provision introduced by the amendment is consistent with the precedent in section 32(7) of the Criminal Procedure (Scotland) Act 1995 whereby the prosecutor appeals against the grant of bail. Giving the court discretion allows for investigations to be made, and for the court to take account of any other special circumstances that might arise. That discretion provides the desirable flexibility and I will be content to move and press amendment 30.

I am not persuaded by what the minister has said. Given that the 110-day rule is a fundamental part of Scots law that has served us well for many centuries, I will press amendment 91. I urge Nicola Sturgeon and other SNP members to vote in favour of it, given that they have understandable reservations about the bill in that regard. I want to correct Pauline McNeill. I am not arguing for the indictment to be served within 60 days of committal; it would still be possible to serve it within 80 days. The preliminary hearing would take place not less than 14 days later.

Margaret Mitchell does not understand the provision in the bill. We could not have a preliminary hearing on the 94 ^th day, because we have to allow a 30-day window before the start of the trial, which is the centrepiece of the system. If we keep the 110-day rule, we would have to move everything back to accommodate the 30-day window in which to fix the trial, which would mean that the indictment would have to be served within 60 days. John Scott, of the Scottish Human Rights Centre, accepted that those would be the new time limits if Margaret Mitchell's argument were accepted.

The 80 ^th day is the absolute limit for the indictment. The proposal in amendment 91 would set the limit for the preliminary hearing at the 94 ^th day, which would give 16 days to set the trial. That should be enough. The ethos of the bill on which we are working involves the parties working together to deliver early disclosure. They should not be working to deadlines, which happens so often in the criminal justice system, but should be prepared early when they go to trial in relation to cases that are not complex and that can be dealt with more speedily. That would be the effect of amendment 91 and it seems bizarre to me that, although the Executive is concerned about the prison population, it is proposing a measure that keeps people in custody 30 days longer than is necessary. That is totally unacceptable and is a principle that the Conservatives cannot support. That is why I will press the amendment.

The question is, that amendment 91 be agreed to. Are we agreed?

Members:

No.

There will be a division.

Division number 1

For: Adam, Brian, Aitken, Bill, Baird, Shiona, Ballance, Chris, Ballard, Mark, Byrne, Ms Rosemary, Crawford, Bruce, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Fergus, Fabiani, Linda, Fergusson, Alex, Fox, Colin, Fraser, Murdo, Gallie, Phil, Gibson, Rob, Goldie, Miss Annabel, Grahame, Christine, Harvie, Patrick, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, Kane, Rosie, Leckie, Carolyn, Lochhead, Richard, MacAskill, Mr Kenny, Martin, Campbell, Marwick, Tricia, Mather, Jim, Maxwell, Mr Stewart, McFee, Mr Bruce, McGrigor, Mr Jamie, McLetchie, David, Mitchell, Margaret, Monteith, Mr Brian, Morgan, Alasdair, Mundell, David, Neil, Alex, Robison, Shona, Ruskell, Mr Mark, Scanlon, Mary, Scott, Eleanor, Scott, John, Sheridan, Tommy, Stevenson, Stewart, Sturgeon, Nicola, Swinburne, John, Swinney, Mr John, Tosh, Murray, Welsh, Mr Andrew, White, Ms Sandra
Against: Alexander, Ms Wendy, Baillie, Jackie, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Gillon, Karen, Glen, Marlyn, Godman, Trish, Gorrie, Donald, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Kerr, Mr Andy, Lamont, Johann, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McCabe, Mr Tom, McConnell, Mr Jack, McMahon, Michael, McNeil, Mr Duncan, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Raffan, Mr Keith, Robson, Euan, Rumbles, Mike, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen, Wilson, Allan

The result of the division is: For 52, Against 62, Abstentions 0.

Amendment 91 disagreed to.

Group 2 concerns amendments consequential on the Vulnerable Witnesses (Scotland) Act 2004. Amendment 1, in the name of Hugh Henry, is grouped with amendments 2 to 10, 22 to 26, 31 to 35 and 64 to 67.

The amendments in relation to the Vulnerable Witnesses (Scotland) Act 2004 bring the procedure on preliminary notices into line with the procedure that is to be introduced by the bill. They do not in any way change the policy intention behind that act.

The bill will introduce preliminary hearings in the High Court and we hope that all preliminary matters will be dealt with at that hearing. Included in that will be hearings ordered by the court where the court is not satisfied that the special measures in the notices lodged under the 2004 act are the most appropriate for the purposes of taking that witness's evidence. That is the substance of amendments 64 and 65.

The 2004 act prohibits, in certain cases involving child witnesses under the age of 12, an accused person from conducting his defence personally. Amendment 25 extends that prohibition to preliminary hearings. The other amendments are of a more minor and technical nature.

I move amendment 1.

Amendment 1 agreed to.

[Amendments 2 to 10 moved—[Hugh Henry]—and agreed to.]

Group 3 is on floating trial diets. Amendment 11, in the name of Hugh Henry, is grouped with amendments 11A, 27, 107, 28, 29 and 108.

At stage 2, I undertook to see whether it would be possible to provide a further affirmation of the policy intention that fixed diet trials should be the first option when the court fixes trials in the High Court. We believe that that will be the case, but good court management dictates that standby cases should utilise court time that is freed up when cases go off at the last minute due to unforeseen circumstances. Amendment 11 allows that by providing that the court may appoint a trial diet to be a floating diet if it indicates that when it fixes the trial diet and if it considers that to be appropriate.

We believe that in appropriate cases the court should be able to appoint a trial as a standby trial for a limited time. It would be wrong to state the type of cases that we consider should be included, as that depends on the facts and circumstances of the case that are given to the court at the preliminary hearing when the parties indicate that a trial is necessary. Equally, we do not believe that there should be an on-cause-shown test before the court can appoint a standby trial, as Nicola Sturgeon's amendment 11A suggests. We believe that the matter is primarily one of court programming, based on information that is provided by the parties at the time and subject to the court being satisfied that the facts and circumstances of the case mean that it is appropriate to appoint a floating trial diet.

Section 8 introduces new section 83A to the Criminal Procedure (Scotland) Act 1995 and provides for the continuation of trial diets. Amendments 27, 28 and 29 extend those provisions to cover floating trial diets that have been called and adjourned. It provides that cases that have been appointed as floating diets may be continued from day to day, without being commenced, up to the maximum number of days to be prescribed in the act of adjournal. We do not know the number of days that will be prescribed, so it may not be possible to indicate that 48 hours' notice must be given subsequent to the appointed diet. However, as parties will need to be present at the appointed diet, it should be possible to give an informed view at that stage about when the trial will commence. We therefore believe that amendment 107 is unnecessary.

In addition, parties will give notice of the availability of counsel at the preliminary hearing and the trial will be fixed within that window of availability. Therefore, the competing claims for counsel's time that we see at present should not occur. Floating trials are standby cases and they should be able to commence with the minimum of delay. That is another reason why we think Nicola Sturgeon's amendments 107 and 108 are unnecessary and I ask her not to press them. If she does, I ask the Parliament to reject them.

With those assurances about fixed trial diets becoming the norm, I move amendment 11.

As the minister said, the bill's policy intention is to create certainty in High Court procedure and to address the old problem with the churning of cases. The provision of fixed trial diets means that all parties in the system will know with certainty when a trial will commence. The minister is right to say that, in the interests of maximum court efficiency, it will be in everybody's interest to provide for floating diets in some cases. Amendment 11A provides for an on-cause-shown test. On reflection, and having listened to the minister, I am not sure that amendment 11A adds much to the minister's amendment 11, which states that the court will appoint a floating diet only when it is satisfied that it is appropriate to do so. I am happy with that amendment, which represents an important step forward. Accordingly, I will not move amendment 11A.

I will briefly address the other amendments in my name in the group. Amendment 107 provides that the accused and his or her legal representative will be given 48 hours' notice of the intention to start a trial when the trial has a floating diet. The amendment tries to avoid the situation that pertains at present, in which, because of uncertainty about when a case will call, cases often have to be put off because witnesses or, more commonly, counsel are not available. The amendment would retain some of the flexibility afforded by floating diets, but would ensure greater certainty in the system than currently exists. Therefore, I commend amendment 107 to the Parliament.

Amendment 108, although not quite consequential, follows on from amendment 107 in that it provides a definition of the accused's legal representative, which would be necessary if amendment 107 were agreed to.

I, too, am persuaded by the minister's argument that a floating diet would be appointed only if the court was satisfied that it was appropriate. I very much welcome the presumption in favour of a fixed trial diet, which reflects a concern that was raised at stage 2. I also support Nicola Sturgeon's amendment 107, which would ensure that 48 hours' notice was given of the intention to commence a trial diet. That would lead to better management of the court and more certainty for witnesses.

Amendment 11 concerns a provision in the bill to replace the current sittings system with a fixed trial diet when possible and a floating trial diet when that is not possible, to allow for flexibility in the system. That represents an onerous task for the Scottish courts system as well as for the Crown and the defence. They are committed to the new system, but Parliament must recognise that the task is onerous. The Justice 1 Committee's view is that an effective diary system is essential to ensure that there is efficiency and that there is no double-booking. Without that, we are back to where we started and trials will be adjourned on that basis.

The committee is grateful to the Faculty of Advocates, which first drew our attention to the fact that new section 83A does not reflect the Executive's intention that most trials should have a diet fixed at the preliminary hearing, which is how we will get more certainty into the system. When someone goes for their preliminary hearing, they will bring to the court the issues that they are prepared for and will, we hope, get a diet fixed at that point.

One of the big advantages of a fixed trial diets system is that, in cases of sexual offence or rape, it provides more certainty that the trial will proceed. That is the desire of Scottish Women's Aid, which put that point to the committee. However, the committee is clear—as are virtually all those who gave evidence to it—that, in law, the Crown should remain the master of instance, although in reality the courts system will have a lot more to do in ensuring that we have a more efficient system and that trials go ahead on the appointed day. I very much welcome the provision.

As we have heard, one of the main drivers behind the bill is the need to bring greater certainty, as floating diets increase the stress for victims, witnesses, the accused, their families and those in the system generally. We have struggled to find a form of words that delivers what we all want: a fixed trial diet in most cases. There does not seem to be a way of eliminating floating diets totally, although some of the existing reasons why cases are adjourned will be removed through better communication and disclosure, managed meetings and the preliminary hearing.

The Executive's amendment 11 is to be welcomed. In requiring the court to apply a specific action to get a floating trial, the bill shifts the emphasis in the system to show that the fixed trial diet is the norm. A trial diet will be fixed unless there is a good reason why it should not be. We will support amendment 11.

Amendment 11A not moved.

As Nicola Sturgeon has not moved amendment 11A, she loses her right to sum up. I therefore ask the minister to sum up on amendment 11.

I have nothing further to say.

Amendment 11 agreed to.

[Amendments 92 to 100 not moved.]

Amendment 12 is grouped with amendments 13, 14, 115, 40, 40A, 41 to 52, 118, 53, 54 and 63.

The amendments relate to section 11, which amends section 92 of the 1995 act in relation to the circumstances in which a trial may take place in the absence of the accused.

As introduced, the bill provided for trials in absence of the accused from the outset of the trial. However, at stage 2, we indicated that we accepted in principle an amendment from Bill Butler to the effect that trials in absence could take place only after evidence against the accused had been led. We believed that it was right to accept a compromise on that position.

At that stage, I indicated that I wanted to consider the precise terms of the amendment and whether any further amendments would have to be made to clarify the matter. From comments that were made in the committee debate, it was apparent that the intention behind Bill Butler's amendment was that there had to be a body of evidence before the court before it could allow the trial to continue when an accused had absconded. Indeed, there was an amendment at stage 2 that was similar to amendment 115, in the name of Nicola Sturgeon, to the effect that all the evidence would have to be led. I acknowledged what Bill Butler and the committee sought to achieve at stage 2 and I indicated that we would reflect on the necessity for further amendments.

That is why we have lodged amendment 40 today. Amendment 40 requires there to be evidence that implicates the accused before a trial can be allowed to continue when the accused has absconded before the end of that trial. In addition, the court must be satisfied that it is in the interests of justice for a trial to proceed in the absence of the accused and must have regard to the stage that the trial has reached when an accused absconds. I stress that it is only when the court is satisfied on all three elements that it will allow the trial to continue.

We have considered amendment 40A, which seeks to strengthen further amendment 40, to strengthen what was agreed at stage 2. I recognise that it is the will of the Justice 1 Committee that, and there is a body of opinion that holds that, the Executive ought to move from its original position. We have moved and I am prepared to accept that we should move again and accept amendment 40A.

However, we believe that it is right that the court should have the discretion to decide whether it is appropriate that the trial should continue in the absence of the accused. The amendments before Parliament today strike the correct balance between the rights of the accused, of which we are acutely aware, and—I stress this—the rights of victims and witnesses.

Amendment 44 is consequential on amendment 40; the wording removed by the former will be incorporated in the latter. Amendment 45 removes wording that is considered to be unnecessary. Bill Butler's stage 2 amendment spelled out that if the trial proceeded in the absence of the accused, a verdict could be returned. However, if the trial is allowed to continue, the normal procedure of leading evidence and returning the verdict would follow. The words are therefore unnecessary and we seek to delete them.

Amendment 115 in the name of Nicola Sturgeon—the subject matter of which was debated fully at stage 2—would mean that a trial in absence could take place only after all the evidence had been led. However, the accused person is a competent witness at his own trial, so if the accused failed to attend after the conclusion of the Crown evidence, his agent could intimate that the accused was to be called as a witness and the trial would have to be abandoned. All the witnesses would then be required to come back to court to give their evidence—some of which might be distressing—all over again. That cannot be right. In cases involving serious sexual offences, the victim might be forced to give traumatic and distressing evidence for a second time. We argue that that is not right. That is why I ask members to reject amendment 115.

We agree that accused persons, even if they abscond, should continue to be legally represented. Amendments 42, 43, 46, 47 and 48 provide for that.

Amendments 12 to 14, 49 to 54 and 63 are consequential on amendments that were made at stage 2 that provided that trials in absence against accused individuals may take place only if the accused has absconded after evidence has been led. The possibility of a trial in absence from the outset will remain for bodies corporate. Amendments 12 to 14 provide that, where a body corporate has been cited to attend a preliminary hearing and fails to attend, the hearing may continue in the absence of the body corporate, which will be treated as having pled not guilty so that a trial diet can be appointed. Amendments 49 to 54 and 63 make further consequential amendments for the application of the trial in absence provision to bodies corporate.

I move amendment 12.

I point out that if amendment 117 in group 7 is agreed to, amendment 48 in this group will have been pre-empted.

Amendment 115, and the consequential amendment 118, would ensure that a trial could not proceed in the absence of the accused until all the Crown evidence had been led. As we know, a long-established principle in Scots law is that a trial should proceed in the presence of the accused. I am not here to defend the rights of accused persons who deliberately absent themselves from their trial, but those people deserve to have their rights protected for their own sake.

I completely understand the frustrations that victims and witnesses experience when trials cannot proceed because the accused has failed to appear. As we heard during stage 1, that happens in about 3.5 per cent of cases. However, it is questionable that an accused could be said to have had a fair trial if he or she was not present when the evidence was led against them.

Legitimately, some might say, "So what? If an accused deliberately absents himself or herself, it is not for anyone else to worry about the implications for a fair trial." However, if the absence of the accused at the trial and the consequent inability of the accused to question Crown evidence properly and put forward his or her own account were to become a ground for challenge or a reason for ordering a retrial, that would undermine the motive that the minister outlined of protecting victims and witnesses from inconvenience and added anxiety. There is the potential that victims and witnesses would have to endure the ordeal of giving evidence on more than one occasion.

We are perhaps at one with the minister on the policy objective, but we have serious doubts about whether trials in absence would achieve that objective. I doubt whether the provisions have been properly thought through. However, the minister's acceptance of amendment 40A, in the name of Bill Butler, in addition to the amendment that Bill Butler secured at stage 2, is a helpful step forward.

I was interested to hear the minister say that Executive amendment 44 was simply consequential. I had wondered whether the deletion of the sentences that amendment 44 will leave out might have the same effect as my amendment 115 would have, because, on first reading, amendment 44 seems to preclude the leading of further evidence when the accused is no longer present. Perhaps the minister could clarify that. If amendment 44 is simply consequential and does not have such an effect, I intend to move amendment 115.

One proposal that caused the committee deep concern throughout stage 1 was the proposal to have trials in the absence of the accused from the outset. It is clear from the majority of the evidence that we heard that there were grave concerns about that. In paragraph 140 of its stage 1 report, the committee was unanimous in rejecting the proposal that accused persons should be able to be tried in their absence from the outset. We believed and continue to believe that there was little evidence to support the proposal, that there was little justice in it and that it was far too inflexible.

I am glad that the Executive has moved away from its previous position. The amendments that I lodged at stage 2 reflected the evidence that was taken by the committee and paragraphs 140 and 141 of the committee's report. They were an attempt to strike a balance—to reach a compromise—that ensured fair treatment in the High Court both of the accused and of witnesses and victims.

I am grateful to the minister for saying today that the Executive is minded to accept amendment 40A in my name, which adds the word "substantially" to amendment 40, so that the bill will read "which substantially implicates the accused in respect of the offence charged in the indictment". Theoretically, a prosecution case could be opened and a police office could appear and say his or her name before collapsing. I accept that under the amendments that I lodged at stage 2, especially the amendment that inserted the words

"after evidence has been led against the accused," in that situation it could be said that evidence had been led. That is highly unlikely, but I am sure that the Executive is attempting to put a belt and braces on the provision. My addition of the word "substantially" is an attempt to ratchet up and strengthen Parliament's direction to the judge when he or she must decide whether a substantial amount of evidence has been led that implicates the accused.

The problem with amendment 115, in the name of Nicola Sturgeon, is that it would leave open to a small minority of people who are accused the possibility of deserting and flying off from the proceedings whenever it suited them. In that situation, the rights of the victim or victims and witnesses would be set to one side and the rights of the accused would be paramount. I am trying to establish a balance—a compromise—that allows both sets of rights to be regarded equally.

The Executive amendment, as amended by the amendment in my name that seeks to insert the word "substantially", allows greater flexibility and strikes the balance that ought to be struck between the rights of the accused and the rights of victims and witnesses. That is the spirit in which I lodged my amendments at stage 2 and amendment 40A.

Other speakers have already indicated that this is the most controversial part of the bill and that the Justice 1 Committee had a number of concerns about it. However, we recognised the problem that the Executive was trying to address. Absconding affects nearly 500 court cases in Scotland, including 90 in the High Court. More important, it affects not only hundreds of accused but hundreds of victims and thousands of witnesses, subjecting them to extra distress.

We seek a way of balancing the rights of those on all sides and of providing safeguards. I have suggested in the past—and suggest again today—that, through the Sentencing Commission, the Executive may want to consider the possibility of setting stiffer sentences for those who abscond, as another way of addressing the issue.

Today we will support amendment 40. I recognise the movement that the minister has made on this matter. The amendment improves the situation that arose at the end of stage 2—Bill Butler has already alluded to some of the difficulties that would arise if the bill stood as amended by his amendment at stage 2. I am pleased that the Executive has accepted amendment 40A, which will strengthen the position and ensure that for a trial to proceed a body of evidence must have been led that substantially implicates the accused.

Margaret Smith addressed earlier the question of what else the Executive should do in relation to the provision. Does she agree that it is worth emphasising that the Justice 1 Committee suggested further consideration of why the accused persons did not turn up in the 90 cases that we were told about? It is worth examining whether anything else can be done to prevent that situation from happening in the first place.

I agree that we should pursue anything that can be done to ensure that there are only a small number of cases in which the accused fails to appear. We have all sought to introduce important safeguards into the process. However, as the minister said, some safeguards are in the bill. In cases in which evidence has been led before an accused absconds, a judge will have to consider three tests. The first is whether the evidence that has been heard has substantially implicated the accused. That is a reasonable test for a court. Secondly, a judge will also have to take into account the stage of the proceedings. We would not be happy about a trial continuing in the absence of an accused at an early stage of the trial. Thirdly, a judge will have to decide whether continuing a trial would be in the interests of justice. All those decisions will be in the hands of the court, which will bear in mind the particular trial details.

Overriding all those tests is article 6 of the ECHR, which is the right to a fair trial. I seek the minister's reassurance today that a judge, as well as taking into account the three tests, will take into account article 6 of the ECHR. There is no easy answer, but if Parliament accepts amendments 40 and 40A, the bill will strike the correct balance between the rights of the accused and the rights of victims and witnesses.

As other members have said, the proposal to try an accused in his absence is probably one of the most contentious aspects of the bill and concern has been expressed about it at every stage. I welcome and support the policy objective behind amendment 40, because an accused should not be allowed to disrupt court proceedings and evade justice by deliberately absenting himself. However, amendment 40 will allow a trial to continue in the absence of an accused after evidence has been led that implicates the accused. I feel that that is a recipe for disaster.

I do not believe that amendment 40A, which proposes that the accused should be "substantially" implicated, will improve amendment 40. I fear that there will be appeals and that, rather than aid the smooth running of the court, that will result in more business for the High Court. We will vote against amendments 40 and 40A.

Amendment 115 could be workable if the minister gave us a bit more information about his concern that if an accused did not have the right to be a witness, that could be ground for an appeal. I would have thought that if an accused deliberately absented himself, he had forgone that right and as good as stated that he did not intend to be a witness. In that case, amendment 115 should be competent.

I understand the motivation behind Lord Bonomy's attempts to undermine defendants who wilfully refuse to turn up in court and who, by doing nothing, effectively undermine the system and escape justice. However, in a fully resourced judicial system, there are better ways of getting round such abuse than by withdrawing a defendant's right to be tried in their presence. As other members have said, that proposal has been widely opposed. The proposal to press ahead with a trial in the absence of the person who is perhaps the most important party in any trial is regarded as a descent into the abyss.

It seems to me that the latest position—as outlined by Bill Butler and others—at the very least reflects the view that the bill's initial plans were unacceptable. The suggested compromise of proceeding with a trial in absence when a defendant was present at its beginning or when evidence against them has been led is still unsatisfactory. What if new evidence emerges during a trial and counsel is unable to contact their client to advise them of the way forward? That seems likely to lead to the very delays that we are trying to avoid in the first place. Equally, the defendant's rights to appeal would appear to be stronger and a safe conviction would be jeopardised. In fact, we might end up further along a road that we do not want to go down, having breached a fundamental right in the process. We should reject the idea that is behind trials in the absence of defendants.

As Margaret Smith and other members have said, the issue was probably one of the most—if not the most—contentious issue in the bill that the Justice 1 Committee considered. The committee was not of a single mind on it—it split. Many of us supported an amendment that said that all the evidence should be led, but others did not—the jury was out in the committee on the issue.

Perhaps the minister can correct me if I am wrong, but I understand that, of the 90 cases that have been mentioned, a very small number involved the accused deliberately absconding and disappearing abroad, which is the stereotypical idea of what happens in such cases. In most cases, the accused does not turn up on day 1, the case is adjourned, there is a minor delay until the following day, the person is picked up and the case goes ahead. If there is indeed only a minor delay in most of those cases, we are talking about a very small number of cases in which somebody escapes abroad and avoids justice, and it seems to be heavy handed to lose a fundamental right, such as a person's right to be tried in their presence, as a result of such a small number of cases.

During the evidence sessions and when we spoke to a number of people in the legal profession, defence lawyers were uneasy about the matter. Many said to us that they would not take on cases in which the accused was not present. In fact, I did not speak to any defence lawyer who said that they would take on a case in which the accused was not present. If the legal profession is so concerned about the matter and thinks that it could not properly represent accused persons who are not present, it does not seem that the matter will be resolved by passing the part of the bill that we are discussing.

Amendments 115 and 118, in the name of Nicola Sturgeon, would resolve the matter and would keep the fundamental principle intact. I am glad that the minister and the Executive have moved and I agree that amendment 40A strengthens amendment 40 a bit. However, we are talking about a person's fundamental right to be tried in their presence and the right to a fair trial. There could be situations in which people are caught after the event and lodge an appeal; if such an appeal were successful, the very people whom we are trying to protect—witnesses and victims—would have to go through a second trial. I expect that some of those appeals—if not all of them—would be successful, as it does not seem to me to be reasonable or fair for a person to be tried in their absence. Therefore, I will certainly support amendments 115 and 118 and I ask the minister the reconsider the matter.

A number of points have been raised in the debate, which I will try to address.

Nicola Sturgeon asked about amendment 44 in relation to amendment 40. Our view has not changed and is still that amendment 44 is a consequential amendment.

I would like to address some wider points. Nicola Sturgeon spoke about some difficulties with having a trial in the absence of the accused. In passing, I gave some examples and it is worth re- emphasising the types of traumatic case that we are discussing. One example is of a sensitive sexual case involving two young girls. The case had finished. The judge's charge was all that remained and the case adjourned over the weekend. The accused absconded. The witnesses—the two young girls—then faced having to give evidence again about a serious sexual assault. Moreover, they had the uncertainty and distress of knowing that the perpetrator was free and unable to be dealt with by the courts until he was—

With the greatest respect to the minister, I fear that he is trying to use emotion to cloud the logic and the facts of the argument. I put it to him that I would have no objection to accused persons who have deliberately absented themselves being tried in absence if I did not think that there was a danger that that would compromise the safety of the convictions. My objection is that if that were to happen, the type of witness whom the minister is talking about might be put through the ordeal again in the event of a retrial being ordered. The provision is a sledgehammer to crack a nut. I think that it will lead to unsafe convictions and the minister's policy intention will be undermined.

Not at all. It is not about using emotion. The situation that I mentioned is a graphic example of the consequences of accepting the amendments in the name of Nicola Sturgeon. It is not about emotion, apart from the emotions that would be felt by victims and witnesses in such situations.

I will come back to whether concluding the trial would in fact prejudice any conviction and lead to further appeals. The point that Bill Butler made and which Margaret Smith re-emphasised is that the issue is about striking balances and providing safeguards. I will come back to the point that Margaret Smith made about the ECHR.

Margaret Mitchell raised the issue of appeals, as did Nicola Sturgeon. Margaret Mitchell said that she believed that the accused absenting himself would mean that he should forgo his right as a witness. Unfortunately, that is not the case and if we accept amendment 115, the case could still be abandoned if the accused absconded.

Colin Fox said that there must be better ways of doing this and that a safe conviction could be jeopardised because a fundamental right has been breached. Stewart Maxwell also referred to a fundamental right. Let us put the matter into perspective. We already have some trials in absence in Scotland in summary cases, so it is not as if such trials are completely alien to Scots law. There are already trials in absence in other parts of the United Kingdom—they happen in England—and trials in absence are widespread throughout Europe, so let us not talk as if we are doing something that is unknown in western democracy and western judiciary.

I come back to the important issue about the ECHR that was raised by Margaret Smith. I refer her and Parliament to paragraphs 81 to 84 of the policy memorandum, which are on the impact on human rights. Paragraph 83 states:

"there is nothing in the Strasbourg jurisprudence to suggest that a trial of a criminal defendant held in his absence is inconsistent with the ECHR (see Lord Bingham in R v Jones [2002] All ER 113)."

Furthermore, paragraph 82 states:

"In relation to trials in absence, the provisions in the Bill in section 11 raise issues in connection with the rights of the accused under Article 6 of the ECHR. Article 6 confers a right to a fair trial, and in terms of the ECHR jurisprudence that includes a right of the accused to be present at and to take part in a hearing into his case that is adversarial in nature. The European Court of Human Rights has not found a breach of the ECHR where a defendant, fully informed of a forthcoming trial, has voluntarily chosen not to attend and the trial has continued."

Therefore, the policy memorandum makes the situation clear. I also make it clear that no legislation that is in breach of the ECHR can be passed by the Parliament. We are committed to fulfilling our obligations on that. I further argue not only that there is no breach of the ECHR but that we provide more protection to the accused than is required under the ECHR. We have met all our obligations.

The Executive is committed to striking a balance between the rights of the accused and the rights of victims and witnesses. We listened to the arguments of a wide range of people and to the arguments that were put forward at the committee. We agreed to the amendment at stage 2 and, because we thought that a bit more needed to be done to give it meaning, we reflected further and lodged amendments at stage 3. We have agreed to move even further in relation to amendment 40A, in the name of Bill Butler, so we have shifted considerably. We have listened to the arguments and we believe that we have struck a proper balance between the rights of all the parties. I urge members to accept that we are not abandoning anything fundamental and that we are not in breach of our obligations. For the first time, we are beginning to strike that proper balance, when in the past many people were let down by the justice system.

Amendment 12 agreed to.

[Amendments 13 and 14 moved—[Hugh Henry]—and agreed to.]

We move on to group 5, on the sharing of information before the preliminary hearing. Amendment 101, in the name of Nicola Sturgeon, is grouped with amendments 102, 103, 15 to 21 and 104 to 106. If amendment 103 is agreed to, amendment 15 will be pre-empted.

Amendment 101 would require the court to ask at the preliminary hearing whether the prosecutor has disclosed all the material evidence that is relevant to the defence's case. During the progress of the bill, the comment has often been made that the bill's effectiveness in speeding up the justice system will very much depend on the principle of early disclosure of relevant information. However, the bill places no clear duty on the prosecution to disclose early information that is likely to support the accused's defence. As Lord Bonomy pointed out, late disclosure of information by the prosecution often leads to delays in trials. The preliminary diets per se will not speed up the process unless steps are taken to ensure that all relevant information is disclosed. That is the purpose of amendment 101.

Amendments 102 and 104 relate to legal privilege. Article 8 of the ECHR enshrines the right to privacy. Scots law has traditionally protected the relationship between a solicitor and his or her client and has made provision for the doctrine of legal professional privilege. Amendment 102 would provide that nothing could be asked at the preliminary hearing that is designed to elicit information that is subject to legal privilege. Amendment 104 would provide that the written record should not contain information that is subject to legal privilege.

Amendment 106 would provide a definition of

"information subject to legal privilege".

Amendment 105 would apply that definition and the definition of the accused's legal representative to new section 72D and new section 72E of the 1995 act.

I move amendment 101.

Amendment 103 was a probing amendment and I do not intend to move it, as I will agree to Executive amendment 15.

I am not persuaded by Nicola Sturgeon's amendments. The ethos of the bill is that both parties should co-operate with each other and engage in full disclosure, which should enable them to say at an early stage in the process whether a trial will go ahead. To hide behind legal privilege at that stage would not be helpful. Whether there is a matter of legal privilege should be for the judge to decide at the preliminary hearing, and proceedings should continue unless there is something that the judge deems is not covered by legal privilege; he should make a judgment at that point. We will be voting against Nicola Sturgeon's amendments in this group.

One of the bill's objectives is to achieve earlier communication between parties with a view to the court being provided with a written record of their state of preparedness at the preliminary hearing. The record will follow the discussions that parties are required to have under new section 72E of the 1995 act, which the bill seeks to insert.

Those discussions will be informed by the information that is supplied by the Crown to the defence. The Crown Office has drafted a practice note that is the subject of consultation between it and those who practice in the High Court. When the practice note has been finalised, it will be published and will become a public document. It will set out in detail how and when the Crown will inform the defence of the progress of its case.

At the preliminary hearing, the court will be able to ask the Crown whether it has complied with the practice note and, if not, why not. It is perhaps more important that, if the practice note has not been complied with, the defence will be able to say what effect that has had on its preparation for trial. We would expect that to be reflected in the written record that is lodged with the court. We believe that those safeguards are sufficient and that Nicola Sturgeon's amendments are unnecessary. Therefore, I ask her to consider seeking to withdraw amendment 101.

New section 72E of the 1995 act, which section 2 will introduce, provides that the prosecution and defence must prepare and jointly lodge a written record of their state of preparedness for trial not less than two days before the preliminary hearing. Amendments 15 and 17 seek to strengthen that provision by providing that the prosecutor and the accused's representative shall

"communicate with each other with a view to jointly preparing" the written record to be lodged with the court. Amendments 16, 18, 19, 20 and 21 are consequential.

The intention of the bill is that parties have a discussion about their case and prepare a written record of the state of their preparedness. It is implicit that, in their report to the court, parties are expected to be as full and frank as is consistent with their duty as officers of the court. However, it is recognised that there will be communications between an accused and his legal representative that are confidential, and I emphasise that the bill does not seek to require an agent to breach that confidentiality. We believe that if, in accordance with his responsibility as an officer of the court, a legal representative indicates to the court that to disclose something in answer to a question from the court would involve the divulging of privileged information, the court will accept that that is the case. We believe that that is the present situation in criminal proceedings. We are doing nothing to change that and we see no need to legislate on the matter.

I hope that Nicola Sturgeon will accept that assurance and not move amendments 102, 104 and 106. One of the effects of amendment 15 would be to make amendment 103 redundant, so I hope that Margaret Mitchell will consider not moving it.

Everyone agrees that, for the bill to succeed, we need culture change and that sharing of information and better communication between prosecution and defence are critical to that. I welcome amendment 15, as it is an attempt to include reference to the need for better communication in the bill. It also makes it clear that it is for both sides jointly to prepare the written report that will form the basis of discussion at the managed meeting.

On reflection, I agree with the minister's view that to include details of the managed meeting in the bill would have been too prescriptive and that primary legislation would have been necessary to amend those details. However, it is important that we are clear about what issues will be addressed at the meeting, whether or not it is face to face. It is right that those issues should be decided by the court through an act of adjournal. That is mentioned in the bill.

I have some sympathy for amendments 101 and 102, but I am reassured by the minister's assertion that the relevant issues will be covered in practice notes from the Crown.

I simply ask the minister to reconsider, particularly on amendments 101 and 102. I believe that the need for early and full disclosure of all the information that is relevant to a case is at the heart of the bill. If that part of the process breaks down for any reason, I fear that many of the other provisions in the bill will not be as effective.

I hear what the minister said about the amendments not being necessary because that is what is supposed to happen anyway. However, I take the view that, to be true to Lord Bonomy's recommendations, it would be better—indeed, it would result in a much stronger and more robust bill—if the obligation on the prosecution were to be shown clearly on the face of the bill.

Does the member accept that that there is also an obligation on the defence to give full disclosure as far as that is possible?

Absolutely; there should be full and early disclosure by both sides. However, very often in a trial, it is the prosecution that has information that is relevant to the defence. Very often, it is the preparation of the defence that is held up because of the delays in handing over information. It is often the Crown and the prosecution that determine the speed at which things can move. Although I agree with Margaret Mitchell's point, I believe that it is absolutely key to the bill for the obligation to be placed on the prosecution. For that reason I will press amendment 101.

The question is, that amendment 101 be agreed to. Are we agreed?

Members:

No.

There will be a division.

Division number 2

For: Adam, Brian, Baird, Shiona, Ballance, Chris, Ballard, Mark, Byrne, Ms Rosemary, Crawford, Bruce, Cunningham, Roseanna, Ewing, Fergus, Fabiani, Linda, Fox, Colin, Gibson, Rob, Grahame, Christine, Harvie, Patrick, Hyslop, Fiona, Kane, Rosie, Leckie, Carolyn, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Margo, Martin, Campbell, Marwick, Tricia, Mather, Jim, Maxwell, Mr Stewart, McFee, Mr Bruce, Morgan, Alasdair, Neil, Alex, Robison, Shona, Ruskell, Mr Mark, Scott, Eleanor, Sheridan, Tommy, Stevenson, Stewart, Sturgeon, Nicola, Swinburne, John, Welsh, Mr Andrew, White, Ms Sandra
Against: Aitken, Bill, Alexander, Ms Wendy, Baillie, Jackie, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Ferguson, Patricia, Fergusson, Alex, Finnie, Ross, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Glen, Marlyn, Goldie, Miss Annabel, Gorrie, Donald, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGrigor, Mr Jamie, McMahon, Michael, McNeil, Mr Duncan, McNulty, Des, Mitchell, Margaret, Monteith, Mr Brian, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Mundell, David, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mike, Scanlon, Mary, Scott, John, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Tosh, Murray, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan

The result of the division is: For 35, Against 76, Abstentions 0.

Amendment 101 disagreed to.

[Amendment 102 not moved.]