Seòmar agus comataidhean

Scottish Government submission of 4 November 2021

PE1855/D - Pardon and memorialise those convicted under the Witchcraft Act 1563

Thank you for your letter dated 7 October 2021 in which the Committee has requested a  written response from the Scottish Government to the petitioner’s submission of 20 September 2021, following further engagement by the Committee with the petitioner in relation to Petition PE1855.

It might be helpful to the Committee if views from the Scottish Government are offered in relation to the petitioner’s further correspondence.

I note the petitioner considers that is it not competent for an application to be made to the Scottish Criminal Cases Review Commission (SCCRC) to seek to overturn the convictions of  individual people convicted under the Witchcraft Act 1563. We accept that while the SCCRC can consider posthumous applications made on behalf of a convicted person made by someone who would have standing to bring an appeal on their behalf, in practice, this will almost certainly not be possible given the age of the convictions for witchcraft mean any future appeal would not be within criminal procedure appeal rules.

Our earlier response sets out in more detail the operation of the royal prerogative of mercy (RPM) including that the First Minister will not generally consider recommending to Her Majesty a free pardon under the RPM process until the person’s appeal against their conviction has been dismissed, or leave to appeal has been refused, and any application to the SCCRC seeking to have the case referred to the Appeal Court has been rejected.

The mechanisms as set out in our letter of 17 March 2021 remains the current processes relevant to the petition for a person who is seeking to overturn a conviction on the basis of a miscarriage of justice or pursue a posthumous Free Pardon under the RPM process.

In September 2021, the Programme for Government was published outlining priorities for this session of Parliament.  This included an indication of future legislation.  While there was no indication in the Programme for Government of specific legislation in this area, the Scottish Government does keep legislative planning under review on an ongoing basis.  The potential for legislation of course can arise from any individual MSP through the Members’ Bill process and the Scottish Government would consider carefully any proposal for a Members’ Bill in this area.

The Scottish Government looks forward to understanding the views of the Committee in this area which can help inform the consideration to be given to the suggestion of legislation being developed including whether a proposal for a Members’ Bill may be seen as beneficial.

I hope this is helpful.