2 August 2013

Even if convicted, the law won't force Bill Walker from office...

Counsel made their closing speeches today in the trial of Bill Walker MSP, accused of a string of domestic assaults against his former partners and a step-daughter. According to the Scotsman report, the case is adjourned until the 22nd of August, when Sheriff Katherine Mackie will pronounce her verdict.  It remains to be seen what verdict that will be, and I pass no comment on Walker's guilt or innocence of these charges.

I do want to highlight, however, a bit of a misconception which has been quietly percolating in the Scottish press. It is a commonplace observation, that if Walker was convicted of these offences, we can inevitably expect a by-election in his Dunfermline constituency.  Legally, this ain't necessarily so.  

The conditions for legal disqualification from office for MSPs are the same as those for MPs in Westminster.  One of the better-known grounds for relieving a parliamentarian of their office, in addition to appointing them Crown Steward and Bailiff of the Chiltern Hundreds, is where an MP is convinced of one or more offences, and thrown in the slammer for more than one year. Under the 1981 Representation of the People Act, the unfortunate parliamentarian, if they have not already offered up their seat, is deprived of it.  But how might all this apply to Walker's trial, if he was convicted? 

As the press reports indicate, the MSP is being tried summarily, which is to say by Sheriff Mackie alone, without a jury.  This choice of forum is down to the Procurator Fiscal.  So what? The critical point concerns the court's maximum sentencing powers.  While the penalties which the High Court can dish out are limitless, running from an eternity behind bars to an unlimited fine, sheriff courts have rather more limited sentencing powers. A sheriff sitting with a jury, for example, may impose a prison sentence up to five years in duration, and fines of the statutory maximum.  

But what of a single sheriff, like Sheriff Mackie, trying a controversy alone? Here's the rub. The summary Sheriff's maximum penalty is a twelve month spell in prison, and a £5,000 fine.  While sheriffs trying cases on indictment with juries may remit cases to the High Court for sentencing, to impose a stiffer penalty, sheriffs sitting alone cannot. Importantly, the High Court has held (in the case of Nicholson v Lees in 1996):

"Where two or more charges are contained in a single complaint, the court cannot competently impose a total period of imprisonment which exceeds in aggregate the upper limit permitted for that court in the particular case by common law or statute."

Even if Walker is convicted of all or most of the large number of charges on the complaint against him, and receives the maximum penalty Sheriff Mackie is capable of dispensing, the maximum prison spell which could be imposed is twelve months: still short of the period required for statutory disqualification from parliament. 

I dare say an MSP can serve his constituents but poorly from behind bars. Nevertheless, even if he is convicted, the law can't and won't force Walker from office. 

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