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Terrorism Bill

moved Amendment No. 117:"Page 22, line 7, after ““Scotland,”” insert ““the Lord Advocate or””" The noble and learned Lord said: This amendment is grouped with Amendments Nos. 118 and 125 in my name, and with the leave of the Committee I shall speak to all of them. They seek to remove infelicities in the provisions of the Bill affecting Scotland that demonstrate errors in an understanding of court procedures in Scotland. Amendment No. 117 seeks to provide that in Scotland the Lord Advocate, in addition to a procurator fiscal, can apply for a warrant extending detention or for the extension of the period of such a warrant. At present, new sub-paragraph (1)(b), in Clause 23(2), allows only for,"““in Scotland, a procurator fiscal””." Section 41 of the Terrorism Act 2000 provides that:"““A constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist””," and:"““Where a person is arrested under this section the provisions of Schedule 8 (detention: treatment, review and extension) shall apply””." Clause 23(2) seeks to amend sub-paragraph (1) of each of the paragraphs 29 and 36 of Schedule 8 to the 2000 Act. Those paragraphs enable a police superintendent or above to apply to a judicial authority for the issue of a warrant for further detention. Paragraph 29(4)(b) of the 2000 Act provides that in Scotland the judicial authority is the sheriff. Clause 23(5) amends paragraph 36. As amended, that paragraph would provide in brief that certain applications only—those defined in new sub-paragraph (1B)—would be made to a judicial authority, but that in any other case the application would be made to a ““senior judge””. Subsection (9) amends paragraph 36 to define ““senior judge”” as,"““a judge of the High Court or of the Court of Session””." I seek in Amendment No. 125 to leave out ““Court of Session”” and insert ““High Court of Justiciary””, it being the superior criminal court in Scotland and the one before which the Lord Advocate, and not a procurator fiscal, brings criminal proceedings. I made that point during the debate last Wednesday on Amendment No. 53, reported at cols. 675-76 of the report of our proceedings. The Government may already recognise that Amendment No. 125 is well founded, and therefore will agree to it. I only remind the Minister that the Court of Session is the superior civil court in Scotland, and the distinction between its jurisdiction and the criminal jurisdiction of the High Court of Justiciary is properly recognised in paragraph 7(b) of Schedule 2 to the Bill, which declares that forfeiture proceedings by virtue of the schedule are civil proceedings and may be instituted,"““in Scotland, either in the Court of Session or in the sheriff court””." By contrast, the sheriff, of course, exercises both a civil and a criminal jurisdiction. Proceedings of the nature of applications made under paragraphs 29 and 36 of Schedule 8 to the Act can only be criminal proceedings. The existing provisions of Schedule 8 clearly indicate that proceedings under it are criminal; they arise following an arrest in terms of Section 41 of the 2000 Act. In terms of paragraph 5, the status of the detained person is that he is,"““deemed to be in legal custody throughout the period of his detention””." Where a person is detained in Scotland, his rights are set out in paragraphs 16 to 20. While the rights there specified are declared to have effect,"““in place of any enactment or rule of law under or by virtue of which a person arrested or detained may be entitled to communicate or consult with any other person””," in certain circumstances the provisions of the Criminal Procedure (Scotland) Act 1995 specifically apply to the person detained—for instance, those relating to a child and the procedure for taking certain prints and samples. The person so arrested and detained is thus vested with rights which he can invoke. These are just such rights of a kind which the High Court of Justiciary is under a duty to protect, as was stated by Lord Justice General Emslie in Hall v Associated Newspapers in 1979, a contempt of court case in which the Lord Advocate intervened. Where applications in criminal proceedings in Scotland are to be made to the sheriff, it is entirely appropriate that the application be made by the procurator fiscal. It is done day and daily in matters concerning warrants. That such is the case is recognised in Schedule 5 to the 2000 Act, which concerns terrorist investigations. In part II of the schedule—it applies only in Scotland—paragraphs 22, 28 and 30, which deal respectively with applications for orders for production of material, for a search warrant and upon a person for explanation of material, provide that such orders are made by the procurator fiscal to the sheriff. Similar provision is made in respect of an application in Scotland for an order under paragraph 1 of Schedule 6 in relation to financial information. The sheriff is on these occasions exercising his criminal jurisdiction, not his civil jurisdiction. However, where an application is made to a judge of a superior court—whether it be of the Court of Session, which is the superior civil court in Scotland, or the High Court of Justiciary—it is not appropriate that a procurator fiscal should make it. Such applications should properly proceed in the name of the Lord Advocate. For those reasons, Amendment No. 117 seeks specific recognition that it is the Lord Advocate who alone is the proper party to make such applications to a senior judge. At the same time, Amendment No. 125 seeks to substitute reference to the High Court of Justiciary for the Court of Session, to make it clear that such applications are being made in criminal proceedings. Amendment No. 118 is designed to remove from police officers in Scotland the right to make applications for a warrant extending detention or for the extension of the period of such a warrant. When introducing my Amendment No. 103 at the end of the second day of Committee last Wednesday, at col. 734 of the Official Report, I set out in some detail the constitutional position of the Lord Advocate as head of the system of prosecution and investigation of crime in Scotland. I do not wish to repeat what I said then, other than to emphasise his statutory powers to instruct the police in the investigation and reporting of crime under Section 17 of the Police (Scotland) Act 1967 and Section 12 of the Criminal Procedure (Scotland) Act 1995. These applications arise only after the first 48 hours of detention and during that time, of course, reviews will have been carried out by the review officer in accordance with paragraph 21 and subsequent paragraphs of Schedule 8 of the 2000 Act. There is thus no urgency of the kind that gives rise to the provisions under paragraph 31 of Schedule 5 of the 2000 Act which allow a police officer of at least the rank of superintendent to give by written order to a constable the same authority as that given by a search warrant granted by a sheriff to the procurator fiscal under paragraph 28, on the ground that the case is one of great urgency and that immediate action is necessary. By paragraph 27(4) of Schedule 8 the requirement on the prosecutor under Section 135(3) of the Criminal Procedure (Scotland) Act 1995 to bring an accused person before the court after his arrest, not later than in the course of the first day after he is taken into custody, wherever practicable, is specifically disapplied. In matters so potentially serious, involving, as they do, the investigation of suspected terrorism, it is be expected that the police would advise the procurator fiscal of the fact of the arrest and detention of a person under Section 41 of the 2000 Act as soon as possible after the event. Consequently, there should be no difficulty in securing that any application for continued detention was made, and timeously made, by the procurator fiscal, with the additional advantage that the reasons for the continuation could be independently assessed by the   procurator fiscal prior to its presentation to the judicial authority. Likewise, in advance of an application to a senior judge it would be expected that the fact of the arrest, detention and continued detention would have been reported to the Lord Advocate and Crown counsel at a very early stage. Again, there should be no difficulty in securing that an application for an extension was timeously made to a senior judge. At the same time this would enable the grounds for such an extension to be scrutinised at the highest level prior to the application being presented. I have already pointed out that for the purposes of terrorist investigation under Part II of Schedule 7 of the 2000 Act, it is the procurator fiscal, not a police officer, who applies to a sheriff for orders for production of material, for searches and for explanations, except in the case of an urgent search. That last exception is not affected by this amendment. I should also draw noble Lords’ attention to the terms of paragraph 2 of Schedule 6 which deals with the matter of procedure in relation to financial orders under paragraph 1 of that schedule. It states:"““An order under paragraph 1 may be made only on the application of—(a) in England and Wales or Northern Ireland, a police officer of at least the rank of superintendent or (b) in Scotland, the procurator fiscal””." That is to say, the police officer does not have the capacity to seek such orders in Scotland. Indeed, I understand that in Scotland an application at present made under paragraph 29 of the Schedule 8 to the 2000 Act is normally made by the procurator fiscal with the assistance of senior police officers. Perhaps the Minister could confirm that such is the case. If so, this amendment would cause no difficulty in practice and would have the advantage that an application would be independently assessed at all important stages of the revised detention procedure. I hope that the Minister will recognise that this amendment makes the Scottish provisions in the 2000 Act, as amended, consistent throughout. I recognise that at a later stage there would require to be a consequential amendment to Section 41(5) of the 2000 Act to insert reference to a procurator fiscal in place of a police officer as the appropriate person in Scotland to make an application for a warrant under paragraph 29 of Schedule 8. I should add that I am very grateful to the Minister for a letter which I received from her about the matter raised earlier. She at least intimated that she was also looking at these amendments. I hope that, in that frame of mind, she will understand that there is in the Bill a misunderstanding of the procedures in Scotland and that these amendments are well founded. I beg to move.