Section 19 — Citation of witnesses for precognition

Criminal Procedure (Amendment) (Scotland) Bill: Stage 3 – in the Scottish Parliament at 4:15 pm on 28th April 2004.

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Photo of Murray Tosh Murray Tosh Conservative 4:15 pm, 28th April 2004

Group 11 is on the citation of witnesses for precognition. Amendment 120, in the name of Nicola Sturgeon, is grouped with amendment 121.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

Amendment 120 would provide for the personal citation of witnesses for precognition. The amendment would ensure that a witness would not be found guilty of an offence for failure to attend for precognition unless the citation had been served personally on the witness. Serving the citation in that way would ensure that the witness was aware of the date, time and place of the precognition and it would remove the possibility of a witness being found guilty of an offence for failure to appear when they were, for example, on holiday and had therefore not received the citation.

Amendment 121 deals with legal privilege. It provides that a witness who attends for precognition shall not be obliged to disclose information subject to legal privilege for the reasons that I outlined earlier in relation to article 8 of the European convention on human rights. The amendment also contains a definition of

"information subject to legal privilege".

I move amendment 120.

Photo of Margaret Mitchell Margaret Mitchell Conservative

I support Nicola Sturgeon's amendment 120. If a witness is to be cited, it is essential for the citation to be served in person to ensure that they have received it. Legal privilege is a matter for the judge to manage and we are therefore not in favour of amendment 121.

Photo of Hugh Henry Hugh Henry Labour

We do not consider that it is necessary to require police constables to serve citations in person on people whom the prosecutor wishes to precognosce. We do not believe that that is the best use of resources.

It is recognised that there will be confidential communication between an accused and his legal representative. The provisions must be read against the background of the general law, and we do not believe that anything in them could be taken to require information to be disclosed if the witness has legitimate grounds for refusing to disclose it. That applies whether those grounds are based on confidentiality or on some other protection that is afforded by the law, such as the right not to give information that would incriminate oneself. We do not believe that it is appropriate to introduce specific provision in relation to one ground on which a witness might refuse to disclose information.

I hope that amendment 120 will be opposed and that amendment 121 will not be moved.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

It is my understanding that amendment 120 would not require personal citation in every case. If a witness did not turn up for precognition, a citation would have to be served on them in person before they could be found guilty of an offence. That approach is eminently sensible; it would not lead to the waste of police resources that the minister talked about because it would not demand personal citation in every case. It would be inequitable and unjust to find someone guilty of a criminal offence for not turning up for precognition if they were not aware that they were supposed to turn up because they were away when the details were delivered. Amendment 120 has common sense to commend it. I have no further comment to make on amendment 121.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 120 be agreed to. Are we agreed?

Members:

No.

Division number 16

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, Harper, Robin, Harvie, Patrick, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, Kane, Rosie, Leckie, Carolyn, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Margo, Martin, Campbell, Marwick, Tricia, Mather, Jim, Maxwell, Mr Stewart, McFee, Mr Bruce, McGrigor, Mr Jamie, Mitchell, Margaret, Monteith, Mr Brian, Morgan, Alasdair, Mundell, David, Neil, Alex, Peattie, Cathy, Robison, Shona, Ruskell, Mr Mark, Scanlon, Mary, Scott, Eleanor, Scott, John, Sheridan, Tommy, Stevenson, Stewart, Sturgeon, Nicola, Swinburne, John, 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, Jamieson, Margaret, 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, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, 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

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 52, Against 65, Abstentions 0.

Amendment 120 disagreed to.

[Amendment 121 not moved.]