New Petitions

PE1712, by Laura Hunter, is on soul and conscience letters. The petition calls on the Scottish Parliament to urge the Scottish Government to review the use of soul and conscience letters in criminal proceedings and to produce guidance for the courts and general practitioner practices on the use of those letters, including guidance on alternatives to court appearance if an accused person is deemed unfit to attend in person.

We have some background information in our briefing paper, which explains that a soul and conscience letter is a letter from a doctor that excuses someone from attending court due to ill health or injury. Soul and conscience letters can be used for accused persons and witnesses, but the petitioner seems more concerned about the use of such letters for accused persons. In particular, she is concerned that a trial can be discontinued if the health of an accused person is a factor. The decision to discontinue a trial is made by the prosecutor.

The petitioner states that the court

“should have the discretion to disregard any soul and conscience letter which it finds unsatisfactory”,

which suggests that she has doubts that the courts are able and willing to do that. She also suggests that doctors do not have a good enough understanding of what they are being asked to do and its implications, and she is looking for the Scottish Government to review any current guidance for the courts and GP practices on the use of the letters. A copy of the Scottish Courts and Tribunals Service guidance note is at annex A in our briefing. The Crown Prosecution Service guidance is at annex B.

Alongside the suggestion of a review of the use of and guidance on soul and conscience letters, the petitioner suggests that courts could consider alternative methods of bringing accused persons to court, such as providing evidence via videolink. The paper from the clerks points out that the Criminal Procedure (Scotland) Act 1995 provides that, generally,

“no part of a trial shall take place outwith the presence of the accused.”

Do members have any comments or suggestions for action on the petition?

10:45

We might want to write to ask GP representatives if this is an issue. It is a general issue for GPs that they have to write letters and do assessments and so on. Could a GP feel pressured into providing this kind of letter? If they thought that they might end up in court having to justify it, they might not. Maybe that is looking at it from the other side.

I also think that there is a distinction to be made between something being delayed and something being discontinued because somebody is not well. I was quite surprised that that would be the case, but I think that abuse of the system is one of the things that we want to identify.

I am also interested to know from people who know the legal situation better than I do about the fact that a trial cannot take place outwith the presence of the accused. Does that mean that a videolink could be defined in that way? We have already accepted it for vulnerable witnesses or whoever and, indeed, for convenience—we hear that people can plead via videolink from prison and so on. I would be interested in those legal issues if they could be raised.

The petition raises a series of questions. It seems entirely reasonable that, if someone is not fit to come to court, they cannot be compelled to come, but if not being well means that a case is abandoned, that is a concern from the victim’s point of view.

I simply make the anecdotal observation that GPs have described in the past feeling pressured into giving people notes to say that they are unfit for work, for example. Is this the kind of thing that they feel that they are under pressure on? If, for example, a person is looking for a house because their housing is not fit, some GPs will write a very sympathetic note whereas others will not. Are there people who cannot get a GP to confirm that they are not well enough to go to court? It would be interesting to establish the role of the GP and their perception of it.

I am also interested in the significance of these letters in the understanding of the legal system. If a trial cannot go ahead without the accused being present, does the Law Society of Scotland or whoever think that there is an issue with such letters being abused? That is not to suggest that there is a major problem, but it would be worth establishing how robust the procedures are.

We will write to the Scottish Government, the Crown Office and Procurator Fiscal Service, and the British Medical Association. I do not know whether there is a specific group for GPs, but it might be interesting to write to it directly.

We could write to the Law Society for its observations.

I am sure that, historically, there was resistance to videolinks as well. There was also resistance to the idea that some people should not be able to represent themselves in rape cases, for example. However, it would be good to get the understanding of the profession on who would make the decision and what the options are.

Members indicated agreement.

We thank the petitioner, Laura Hunter, for raising the issues that she has raised in the petition. We want to explore a number of areas with the relevant bodies.