§ 6.0 p.m.
§ The Deputy-Chairman
As this Amendment and the next one, that to page 3, line 15, deal with the same matter I think that we can take them together.
This subsection makes it possible for a person to be convicted under any of the previous subsections on the evidence of one witness. This raises a fundamental point of Scottish justice. It is not that I have any sympathy with commercial poachers. I deplore their depredations as much as anyone else and I want action taken against them. It is not that I want to make it more difficult to get a conviction against them, but, against that, we have to balance the question of protecting the public and of the whole idea of justice. I oppose it, therefore, on the more general issue of the traditional sense of Scottish justice, which lays it down that there should be at least two witnesses before a man can be convicted of an offence.
It is a very serious thing that we should be rendering a man liable to a fine of £50 or three months' imprisonment and going so far as a fine of £500 and two years' imprisonment on the evidence of one witness. We should guard very carefully against the possibility of a miscarriage of justice. Under this Clause we are making it possible for a man to be subject to these penalties and to that loss of freedom on the evidence of one witness only, 189 and thereby increasing the possibilities of a miscarriage of justice. That is a fundamental principle and is altogether apart from the fact that in some cases there might be persons who were determined somehow or other to get at an individual. The unsubstantiated evidence of one witness would be sufficient to cause these penalties to be imposed.
It was Lord Mackintosh, one of our learned Scottish judges, who spoke recently against this principle being brought into Scottish law. I hope that Scottish Members will raise their voices tonight and make sure that we will not deprive any Scottish person or anyone living in Scotland of his freedom for the sake of making it easier to get convictions in some particular cases. We have to watch carefully our fundamental freedom, and for that reason I strongly oppose the introduction of this subsection.
§ Mr. Rankin
I understood that this particular Amendment was being taken in conjunction with the one that stands in my name, in line 15, leave out "one witness" and add "two witnesses."
§ Mr. Rankin
I shall be quite in order, therefore, in supporting my hon. Friend the Member for Kilmarnock (Mr.Ross). I realise fully that if the Bill is to be of any use it must work, and because of the circumstances under which the poachers work it will be very difficult to get two witnesses on whose testimony a conviction could be secured. Nevertheless, we have got to weigh, against that fact, the danger that this part of the Bill may be used as a weapon of victimisation. We face the further possibility, to which I do not think any Member of the Committee will subscribe, that certain persons, living in a small community, may find themselves able to apply victimisation, because one particular person will be vested with a certain authority under this Bill and might be able perhaps to say something against another which might not necessarily be justified.
§ Commander Galbraith (Glasgow, Pollok)
Does the hon. Gentleman suggest that somebody placed the fish in the possession of the gentleman who is afterwards brought to court?
§ Mr. Rankin
It does not always necessarily follow that a person needs to have a fish in his possession before he can be charged under the Bill as it stands. That is where the danger of victimisation might possibly arise. I know, of course, that it may be argued that there is precedent in Scottish law for the testimony of one witness. It may be that my right hon. Friend will be able to say, "We have instances already where one witness is all that is demanded." All I would say, in reply, is that everyone on this side of the Committee has condemned that as bad law. We have condemned it in the past, and if that is to proceed tonight I am still condemning it. That is the reason why I suggest that two witnesses should be inserted into the Bill instead of one.
Mr. McKie (Galloway)
The hon. Member for Kilmarnock (Mr. Ross) appealed to Scottish Members to raise their voices on this question. I gladly respond to the invitation which he extended to me, but I am sorry that I cannot raise it in the strains which he would wish me to do, because I very much hope that the Lord Advocate will stand very firm on this point and resist the plea of his hon. Friend the Member for Kilmarnock, and the somewhat weaker plea made by his hon. Friend the Member for Tradeston (Mr. Rankin). When I say it was weaker, I do not mean it offensively, but the hon. Gentleman himself indicated in the closing sentences of his speech that he did not go as far as his hon. Friend the Member for Kilmarnock in the soundness of his arguments. The hon. Member for Kilmarnock took the very high line of the elementary principle of Scottish justice. The hon. Member for Tradeston said no doubt the Lord Advocate could produce very good arguments to show that this was not really contravening the law of Scotland in any way.
No, I cannot give way. The hon. Gentleman has been here long enough to know that when we are in Committee he can make a second speech, and he can follow me with another speech if he is fortunate enough to catch your eye, Sir Charles.
I was about to say, when I resisted the hon. Gentleman's enticement to give way. 191 that the Solway Act, 1804, has certainly given to the salmon fishing in that famous estuary the protection of one witness only in the matter of convicting poachers. I do not know if hon. Gentlemen opposite will like it any better because it has been in existence for 150 years. It is true that it was a piece of legislation promoted by a Tory Government, though it was reinforced by the Whigs, which may make it more acceptable to hon. Gentlemen opposite. It has stood the test of time and under it the one-witness principle has been maintained.
The hon. Gentleman the Member for Tradeston, who seemed to be on weak ground, knew that not merely might the principle of one witness exist in Scottish law, but also that it was necessary in some cases because of the difficulty of securing a conviction in poaching cases as only one person might have been available. I am sure that that was the underlying principle of the Solway Act of 1804. The hon. Gentleman can take it from me that it would have been very difficult for the Solway stake net fishing, which has been a very good thing for Scotland, not merely for those who are engaged in it but as a means of providing food for the people of Scotland generally, to promote their industry to the flourishing condition which it still enjoys unless the one witness principle had been enacted in the Act of 1804 by a Tory Government, supported by the Whigs, in those days of long ago.
I hope that I have said enough to show hon. Gentlemen opposite that they have no support from me for the idea that there should be more than one witness. Many of the people who engaged in the Solway stake net fishing industry are anxious to know whether, if we agree to this Clause going forward, the Act of 1804 will be repealed. It says in the Schedule that two Sections of the Act are to be repealed. They want to know whether they will have the benefit of the one witness which this Clause of the Bill provides. I hope that the Lord Advocate will be able to clear away doubt on this matter. Apart from that point, I certainly support the principle of the one witness.
§ Mr. McGovern
I oppose the whole proposal that it shall be lawful to convict a person charged under this Clause 192 on the evidence of one witness. My mind goes back to the years 1930 and 1931, and to the time when a storm arose here one evening because a Clause was proposed in a Transport Bill to give power to convict on the evidence of one policeman. The Minister had to withdraw the Clause and alter it. Members of the House of Commons were vigilant in seeing that justice should be done, and although they were prepared to give the utmost protection to pedestrians and to the community in general, they wanted to safeguard the rights of any individual who was brought before the court.
I am prepared to hear what the Lord Advocate has to say in defence of this proposal. A man could be caught in an act, and it would only be one witness who would determine whether he had committed a crime or not. The man could be caught with explosives and with all the gear necessary to commit an offence. The evidence of one witness might be deemed to be all that was necessary. Nevertheless, we have known in the past of cases in the court where there have been questions of identification. An individual might have been suspected of committing an offence, and some one person would say: "That is the man who was guilty of the crime." Surely no court, whether of judge or sheriff, even in those circumstances, should be given power to convict.
I have spent a long period or time hearing trials in the High Courts, sheriff courts and justices' courts. I should be very loath to put power into the hands of any person sitting on a bench to convict upon the evidence of only one witness. That would be an extremely dangerous thing to do. Members of this Committee would be failing in their duty, no matter what side they may sit on, if they were prepared to give power in the bold way that it is sought in the Bill.
Sometimes, in defence of a Clause of this kind, a case is put by a Minister, but we have always to remember that when a judge or sheriff is dealing with an offender he does not take notice of the Minister's statement as reported in HANSARD. He takes notice of the law as laid down in the Act of Parliament. We want to make sure that we say exactly what is meant when we give 193 power to convict on the evidence of one witness.
I am told that this principle has been the law of Scotland for 150 years, but to say that it should not be altered now is the most outrageous doctrine I have ever heard. Many of the laws which have been operating in this country are only now beginning to be altered, when democracy is beginning to operate. We see not only the necessity to change such laws but the kind of people who made the laws which have operated in this country. Hon. Members need be in no doubt that if this matter is taken to a Division, and if there has not been a satisfactory answer from the Government Front Bench, then I shall go into the Lobby against this Clause. It is outrageous to propose to place power into the hands of individuals to convict on the evidence of only one person.
I know of men who have been convicted in the past on the evidence of two or three witnesses, yet I have been convinced that they were innocent. We know that people may have a certain amount of spleen in a vindictive way which makes them go and swear false evidence against others. I say that the greatest criminal in the country is entitled to the greatest protection we can give to ensure that justice is done. It is outrageous to propose what is in the Clause, and I heartly oppose it and will go into the Lobby to vote it down.
§ Mr. Hoy (Leith)
I add my voice to the voices of other hon. Members in this Committee, because I am very loath to make what would be a fundamental change in the law of Scotland. I support my hon. Friends the Members for Tradeston (Mr. Rankin) and Kilmarnock (Mr. Ross). I would say, in passing, that my hon. Friend the Member for Tradeston is on very much better ground on this occasion than he was with his last Amendment. A very distinguished member of the Scottish bench, only on 18th December last year, when summing up in a case in the Glasgow High Court, said something which was a complete answer to the hon. Member who said that this principle has been the law of Scotland for 150 years. I think the hon. Member was arguing on a wrong supposition. He ought to have made it clear that what was done in the Act affecting the Solway did not apply generally to the law of Scotland. The 194 learned lawyer to whom 1 have referred said:It is a firmly fixed principle in the law of Scotland that the essential details of a charge cannot be proved by the statements of one witness alone. There must be corroborative evidence.Because of that, he gave a decision in favour of an accused person. [HON. MEMBERS: "Who was it?"] Lord Mackintosh. I think he was stating the law of Scotland.
It would be a great departure to make it possible under a Bill of this kind for the evidence of one witness to convict a person who can be found in or near some fishing grounds. It might even be that because of a grudge by one person against another a conviction might take place. I am sure that the Committee will be loath to depart from what has been the law of Scotland. We shall certainly listen to what the Lord Advocate has to say, but I can assure him that he will have to make a very strong case to convince hon. Members, at least those on this side of the Committee, that this change in the law ought to be made.
§ The Lord Advocate
I was hoping, in view of the progress that we had been making with the Bill, that despite the fact that the Rule has not been suspended we might be able to complete the Committee stage today. Therefore, I intervene at this stage in the hope that I may be able to short-circuit what might otherwise be a very long and interesting discussion on a very interesting point. I do not think I need assure my hon. Friends, nor hon. and right hon. Gentlemen opposite, that this departure from the normal law—
§ Mr. Rankin
On a point of order, Sir Charles. May I ask for clarification of the position? I understood my right hon. Friend the Lord Advocate, to say that the Rule has not been suspended but according to the Order Paper it has been. Which is correct?
§ The Deputy-Chairman
There was a good deal of noise going on at the time in the House. The Motion to suspend the Rule is on the Order Paper, but it was not moved. So we stop at 10 o'clock.
§ The Lord Advocate
I trust that the information which I have managed to convey will sink into the minds of those for whose benefit it was mentioned. I am sure that hon. and right hon. Gentle- 195 men opposite, as well as my hon. Friends, will appreciate that we did not lightly depart from what is, I entirely agree, a fundamental principle of the Scottish law of evidence. We gave this matter very great consideration indeed. I will give the Committee the reasons which eventually weighed in favour of adopting this Clause.
Before doing so I will make some general observations. While conceding to my hon. Friend the Member for Shettleston (Mr. McGovern) and to my other hon. Friends that this is very much a fundamental principle of our law in Scotland, I do not think that one could say that it would be outrageous to convict on the evidence of one witness and one witness alone, because it is, for instance, the general rule in the English criminal court that it is sufficient to take the evidence of one witness to justify a conviction. There are exceptions to it, but that is the general rule. I am not praying that in aid to support what we are doing here, but I am merely rebutting the suggestion that it is outrageous to have such a code of law. We have our own code of law in Scotland, and I wish to approach the problem from that point of view.
My second observation is this. The subsection only permits the court to convict on the evidence of one witness; in other words, it would be open for the court to say, "I am not satisfied on the evidence of one witness." On the other hand, it would be competent for the court to say, "I am satisfied on the evidence of one witness"; but I can give the assurance that it is the practice of the court to look perhaps even more carefully at the evidence in cases where the evidence of one witness would suffice as compared with cases in which there is a multiplicity of witnesses to give evidence.
Be that as it may, we come to the question whether or not this is justifiable. Here we come to the very basis of the Bill—the fons et origo of the Bill—the attempt to get the gangs. There is no doubt whatsoever about that. The great difficulty—I ask hon. Members to consider the practical difficulty—was that the gangs in their depredations do not usually select the points where multitudes of witnesses will be present to give testimony against them; normally they select a remote part of the country where a good pool is 196 available and where there is little likelihood of anyone being present to witness their offence. In many cases the only possibility of their being detected is by a water bailiff or some other person being on patrol on a lonely stretch.
From the information put before us, and having regard to various submissions made before the Maconochie Committee, we were satisfied that the likelihood of getting any legal evidence sufficient to warrant a conviction in these circumstances was very remote if we had to depend on the ordinary law whereby we require either two witnesses or one witness corroborated by facts and circumstances. I would say parenthetically that for that reason, if either of these Amendments were to be selected, I should prefer the one in the name of my hon. Friend the Member for Kilmarnock (Mr. 'Ross) to that in the name of my hon. Friend the Member for Tradeston (Mr. Rankin) because I believe that the latter is rather misleading.
Am I to understand that there has not been a single conviction of any of the gangs in Scotland?
§ The Lord Advocate
The difficulty is —I was coming to the point—that under the existing law there was no provision comparable to the provisions of this Clause and one of the great difficulties which we experienced was that unless we caught the person in flagrance delicto our hands were tied, and if we managed to get the person coming from the locus, whether it was 300 yards, three miles, or 30 miles away, stopped the vehicle and found it laden with salmon, nets or explosives, we could do nothing, because under the existing law we could not identify that with the commission of an offence at a certain point. Evidence to that effect was given by the Chief Constables' Association, who pointed out the weakness in the law, and it was in order to stop up that gap in the law that the previous subsections in the Clause were introduced. The Committee will agree that these are very necessary provisions, because if we are to carry out warfare against these gangsters we must have the necessary weapons with which to do it. Let us be realistic about that.
Having taken that power, we were faced with the difficulty that unless we managed to get them in circumstances where we had more than one witness 197 available or in circumstances where a witness could be corroborated by facts and circumstances—the standing general law of Scotland in this matter—it would be impossible to get a conviction. We were dealing with a case where much of the evidence might be obtainable only in remote parts of the country where we could expect only one individual to be. That is the practical difficulty, and I hope that my hon. Friends will appreciate that we had to approach it from that point of view. In the last analysis it came down to this, "Are we prepared to have some effective sanction to stop up this gap or, in order to preserve this general law and not to make any infringement of it in this case, are we prepared to lose the sanction which we might otherwise have?"
When we came to examine that, we found, not in the cases mentioned by the hon. Member for Galloway (Mr. McKie), but in another much more analogous case, that the general law of Scotland had already been departed from in this sense. On the question of poaching for game. which is an analogous case to poaching for salmon, we find that an offence against the Poaching Prevention Act of 1862 is at present an offence which can be proved by the evidence of one witness. So that this is no entirely new innovation into the law of Scotland, although it is true that all these cases are exceptions to the general rule.
I do not want to deal with a number of other illustrations where by statute Parliament has said that the evidence of one person will be sufficient in Scotland, because I do not think they are apposite to this debate. However, the case of the Poaching Prevention Act is apposite because the courts have held that that Act attracts the provisions of the Day Trespass Act of 1832, and accordingly one witness would suffice.
In the last analysis we had to make up our minds whether we were to carry out effective warfare against these people or not; whether we were to have the means at our disposal not only to catch them, because that is not sufficient, but to put them into court and get a conviction against them, which is the important part of the proceedings. After grave consideration, we came to the conclusion that without this provision it might well be 198 that the other provisions of the Clause which are acceptable and desirable and necessary might become absolutely nugatory. I make this personal assertion, that I did not like departing from this normal rule of law. In the light of that explanation, and in these circumstances, I trust that hon. Members opposite and my hon. Friends will accept this provision in the spirit in which it was moved into the Clause.
§ Mr. Henderson Stewart (Fife, East)
The right hon. and learned Gentleman has been dealing with an important point of Scottish law, but he left me in a little doubt. As we are all anxious to take the proper view in this matter, and bearing in mind the importance of maintaining our Scottish traditions, I ask the right hon. and learned Gentleman to examine the following points.
He said that if he were pressed upon this matter—I suppose he meant that if it had to be a choice of one thing or another—he would prefer the Amendment of the hon. Member for Kilmarnock (Mr. Ross) to the other Amendment, since the former proposes to leave out subsection (3) altogether. Suppose that were done, would it then be impossible for any offender under this subsection to be prosecuted and convicted on the evidence of only one witness? If that is so, the re-marks of the right hon. and learned Gentleman run more powerfully. I was left in some doubt because it seems to me possible that the law of Scotland as it now is. and the procedure of the courts as it now is, might make it possible for a judge to have only one witness and, because the evidence was so strong, to decide that the evidence of that one witness was adequate to prosecute.
If the right hon. and learned Gentleman says that is not possible, I shall have to vote against either Amendment; if he says it would be possible, then I, and perhaps other hon. Members, would like to think this matter over. It is one of great importance and the right hon. and learned Gentleman might feel disposed to clear our minds on it.
§ Mr. Malcolm MacMillan (Western Isles)
I am not quite satisfied with the explanation which the Lord Advocate has given us. It still remains the fact that any personfound in possession of any salmon or trout, or any instrument …199 can be convicted on the evidence of a single witness. The Committee ought to weigh this with great care, because when it comes to an issue of balancing technical convenience in the operation of an Act of Parliament against the fundamental rights of the individual concerned in the prosecution, the benefit of any doubt we may have in our minds ought to be cast in favour of the rights of the individual rather than in favour of the convenience of operating the Act. We should not lightly go into the Lobby, if this comes to a Division, in support of the argument put forward by my right hon. and learned Friend. So many things are already weighted against the individual in an isolated area confronted with all the pomp and ceremony of a court prosecution, that further to make him subject to conviction on the evidence of one witness is altogether too much to his disadvantage.
I am fairly sure that what the Committee, the Lord Advocate, and those who framed this provision had in mind was the person in a remote area where there are not many bailiffs or policemen or witnesses. These may be the places where most of the. offences take place, but the fact remains that to many of us on this side of the Committee it seems possible under this provision to have the victimisation of individuals who will fall under the suspicion of a bailiff and who at present cannot be convicted without more than one witness.
It is all very well for the. Lord Advocate to say that this is an attack upon the gangs. It is not confined to an attack upon the commercial gangs. This can be used against any isolated individual, and it can be used a lot more effectively against him than it can against organised gangs comprising several persons. In fact, I doubt whether one witness coming forward against the testimony of six, or eight or 10 persons in a gang of alleged poachers would find it possible to get a conviction, whereas his testimony would be much stronger coming forward against an iso-lated individual. Therefore, this will weigh more heavily and unfairly against the isolated individual, who is easily victimised and possibly deliberately selected for framing up, than against the gangs against whom it is intended to operate.
200 I wish the Lord Advocate could produce some stronger arguments why we should depart from the existing practice of the prevailing law before we go into the Lobby. If we do divide, which I hope we shall do on this issue, I shall go into the Lobby against it, because it is a nefarious doctrine that we should subjugate the fundamental rights of the individual to the convenience of the operation of any Act of Parliament.
§ Sir William Darling (Edinburgh, South)
The Committee will have thrilled to the concluding remarks of the hon. Member for the Western Isles (Mr. M. MacMillan). I have been struck by the fact that the advice tendered to the Committee has come mostly from representatives of well-known sporting areas—the hon. Member for Shettleston (Mr. McGovern), the hon. Member for Tradeston (Mr. Rankin) and the hon. Member for Leith (Mr. Hoy)—
§ Sir W. Darling
The Committee would be well advised to take the advice of the Lord Advocate on this matter. The right hon. and learned Gentleman at any rate has moved about the country outside his constituency to an extent sufficient to know that when persons go poaching they do not go in large numbers. [An HON. MEMBER: "How does the hon. Member know?] Poaching is an individual affair.
Supporters of the Government, in the discussion here tonight, have been deliberately saying that they want to defeat the law, that the protection of fish is an interest which they do not have in mind, and that they are going to make it quite impossible for anyone who commits a misdemeanour to be arrested. Do these gentlemen from urban areas of Glasgow and Lanark possess any elements of imagination? What happens on the banks of the Tweed on a dark, rainy night in the fishing season? Persons engaged in these expeditions go alone and unac-ompanied. To suggest that they should have a crowd of witnesses before they can be convicted is a preposterous idea that arises only the minds of Western Isles mystics or Clydeside proletarians.
We are dealing with a thing which is always done in the dark, and the presence of witnesses in order to obtain a conviction is quite impossible. This is a case 201 where two are company but one is a much more desirable agent for the public welfare than would be a crowd. I beg the Socialist supporters of the Government on this occasion, therefore, to be content with the unitarian doctrine and not the theory that there must be two in order that justice shall be done.
I should like to add my own question to one which has been asked by my hon. Friend the Member for Fife, East (Mr. Stewart). Subsection (3) states that:It shall he lawful to convict a person charged under this section on the evidence of one witness.My hon. Friend asked about the effect of the subsection. The Lord Advocate has expressed, surprisingly enough, a mild approval for the Amendment of his hon. Friend the Member for Kilmarnock (Mr. Ross) in preference to that of his hon. Friend the Member for Tradeston. I take it that the effect of the removal of the subsection would be, surely, that the courts would require what common law demands: that is, two witnesses. That, in effect, allows the hon. Member for Kilmarnock to achieve his purpose by means of a simple guise. That may suit the convenience of the Lord Advocate, but I must point out that if he accepts the deletion of the subsection he is surrendering to his own supporters. Perhaps the right hon. and learned Gentleman will make his position clear before the Debate finishes.
I stand by one witness—"Dare to be a Daniel, dare to stand alone." If there are other hon. Members who are pleading for the individual, I also am pleading for the individual, and the one for whom I am pleading is the one witness who is justified in Clause 7.
§ 6.45 p.m.
§ Mr. Pryde
More and more as the Debate develops, I come to the conclusion that the River Tweed is related to the main object of the Bill. I hope that my right hon. and learned Friend will accept the Amendment of my hon. Friend the Member for Tradeston (Mr. Rankin) because, with all due respect to the hon. Member for Edinburgh, South (Sir W. Darling), who lives on the bank of the Tweed, the whole question of conviction in the area of the River Tweed is electrical in its effect. My constituents in Peebles assure me that it is far cheaper 202 and more economical to go and admit that they have been in default than to plead not guilty and go back a second day, because they are bound to be convicted on the evidence of one witness and will lose two days' work, which they can ill afford.
§ Mr. Pryde
The hon. Member for Edinburgh, South, on Second Reading, said that a great number of my constituents were poachers, especially on his preserves. I resent and refute that suggestion because in my two counties we have the most expert anglers in Scotland. If any Member disputes that, I am quite willing to nominate six men—
§ Mr. Pryde
We will put up one judge, who will not be the hon. Member for Edinburgh, South, who is quite prepared to condemn even a gang of men on the evidence of one witness. There is no reference to gangs in subsection (3), which does, however, mention "a person." There can be no excuse, therefore, for refusing to accept the Amendment.
§ Brigadier Thorp
Does the subsection apply to England or is it not necessary because we have only one witness now? If it is correct, as I think, that we need only one witness now, surely the Bill is only bringing the Scottish law into line with that of England. I see no reason for giving any heed to the Amendment.
§ Mr. Hector Hughes (Aberdeen, North)
I hope that my right hon. and learned Friend will not persist with the subsection, which has had only one apologist for it here tonight, namely, the hon. Member for Edinburgh, South (Sir W. Darling), who put forward one of his usual diverting but perverting arguments in favour of the subsection.
§ Sir W. Darling
The hon. and learned Member said that there was only one apologist. May I remind him also of the Lord Advocate?
§ Mr. Hughes
I should have said, one apologist for the Lord Advocate. I hope that my right hon. and learned Friend will not be misled by that one apologist of his 203 into persisting with the subsection, which is thoroughly unethical, thoroughly wrong, and, indeed, juridically unacceptable.
There is no doubt that on general principles two witnesses are desirable in every criminal case. The object of having a second witness is to corroborate the first or to contradict him, to prevent mistakes and prejudice, or to prevent the accused being the victim of a plot. It may be said—indeed, it has been said—that the very nature of the case here provides corroboration for the prosecution. The corroboration suggested is that a person may be found inpossession of salmon or trout or of any instrument, explosive, poison or other noxious substance…What is to prevent these things being "planted" on the simple fisherman? It has been said that the prosecution's witnesses in cases such as are envisaged here travel alone. What is to prevent their witness—the gamekeeper, the warden, or whoever he may be—travelling on his inspections in company? He would be safer, happier, and a more credible witness if he had corroboration. I hope that the subsection will be rejected as thoroughly bad and unethical.
§ Mr. Gage (Belfast, South)
This is one of the rare occasions when the Committee should support the Lord Advocate. Apart from the fact, as my hon. Friend the Member for Edinburgh, South (Sir W. Darling) said, that this provision achieves the very desirable object of bringing the law of Scotland into line with the law of England and Northern Ireland, it is astonishing that no one has so far mentioned what is important about a witness—that he tells the truth. If one can get 20 people to tell a lie 20 times, the court will always accept it, but there is nothing magical in the number. Courts are there for the purpose of weighing evidence and of deciding whether they will accept the evidence of one person who is an honest person telling the truth or of 10 people who seem to be dishonest.
§ Mr. Gage
It is just as easy to decide that if it is only one person as if it were more than one person. The effect of the 204 present law of Scotland is that the hands of authority are tied where it so happens that a bad case of poaching has been witnessed by only one person. All this Clause does is to enable a case to be brought in those circumstances. It does not by any means follow that there will be a conviction. There will be a conviction if the one witness is believed. It is doing violence to those who sit in sheriff courts in Scotland to say that they are incapable of judging the veracity of the witness when there is only one witness.
In some cases—and I imagine the law of Scotland is the same as that of England—it is desirable to have two witnesses or more, as in cases of violence or cases affecting young children, but one would have thought that if the person gives evidence on oath and appears to be telling the truth it would be perfectly proper for a case to be brought in such circumstances. For those reasons, I think the Clause should be supported.
§ The Lord Advocate
We have had a very full debate and I imagine that all the various representative views have been aired. I trust that after I have tried to answer the various points that have been raised, the Committee will feel in a position to come to a conclusion. I have the impression that anything more that may be added, in view of the very full argument, would be only dotting the i's and crossing the t's of the arguments already put forward.
I am sure the hon. Member for Edinburgh, South (Sir W. Darling) never thought he would live to see the day—nor did I—when he would be described, however mistakenly, as the sole apologist for the Lord Advocate. In reply to the hon. Member for Belfast, South (Mr. Gage), we are not—and I say this advisedly—trying to bring the law of Scotland into line with the law of England. It so happens that the net result of this is that for this particular purpose the law of Scotland will be the same as the law of England. But that is an entirely different matter, because one is merely the result of a certain necessary act and the other would be a most retrograde step. The House knows full well that in recent years the tendency has been for the law of England to adopt the law of Scotland, to the great benefit of the law of England.
205 The hon. Member for Fife, East (Mr. Stewart) wondered why I said that I preferred the Amendment of my hon. Friend the Member for Kilmarnock (Mr. Ross) to that of my hon. Friend the Member for Tradeston (Mr. Rankin). The reason is that if the subsection were deleted, we would be left with the existing law of evidence to cover cases of this nature. If we adopted the Amendment of my hon. Friend the Member for Tradeston and put in "on the evidence of two witnesses," from one point of view it would be quite unnecessary, and from the other point of view quite misleading, because in law we require the evidence either of two witnesses or one witness corroborated by facts and circumstances. Therefore, we need not have two direct witnesses speaking to the commission of the offence. If we had to choose between the two Amendments, it would be better to delete the subsection, leaving the existing law to apply rather than to put in something which from one point of view is unnecessary, and from the other may be misleading.
I must again ask the Committee to have regard to the factors which motivated us in making this exception to the general rule. It is not, as my hon. Friend the Member for the Western Isles (Mr. M. MacMillan) said, a technical convenience to over-ride individual rights. The practical problem is whether or not we are to enforce the provisions of this particular Clause. If we want to carry out the provisions of this Clause, having regard to the factors to which I have referred, I am afraid we require this. If we do not want to do it, we may have what may be a gesture in the Bill, but something which will not be an effective remedy. That is the choice hon. Members must make, and I can assure them that, whether they divide on this or not, the position was not reached lightly, but only after careful and mature consideration.
§ Mr. M. MacMillan
My right hon. and learned Friend would agree that this would not only apply to organised gangs but also to individual persons?
§ The Lord Advocate
That is perfectly true, and there is nothing unusual about that, because whenever we are making a law we have to provide for a whole range of cases which come within a particular category. We do not have a tariff 206 according to each particular case. That is not the way we work our law—
§ The Lord Advocate
Perhaps my hon. and learned Friend will let me finish what I am saying. Accordingly, while it is true that this law would apply to the individual as to the gang, the fact remains that it is equally difficult to bring a case against an individual as against a gang, and there we are in pari causa
The hon. Member for Belfast, South, probably did me less than credit when he said that no one had mentioned the fact that the essential thing in relation to this particular provision was that it should be the evidence of one credible witness. In an earlier speech I laid great emphasis on the point that the court must be prepared to accept the evidence of that witness. In a normal case that is not sufficient because there still has to be corroboration of that, as far as Scotland is concerned. But at the end of the day, if this Clause were passed, the court would have to be satisfied and—may I reiterate a principle which those of the profession South of the Border, who have more experience of the one witness case than I have, may substantiate?—when there is only one witness the court tends to look more particularly at the evidence of that one witness than it would at that of a multitude of witnesses all corroborating each other.
My hon. Friend the Member for the Western Isles suggested that there was always a danger of a frame-up and that we had to be careful and suspicious of those dangers, but he finished by asking me to frame up a new Clause. I think he has to realise that if we are to proceed on the basis that evidence might be perjured, it does not matter whether we provide for one witness or for 20 witnesses under the Bill. If we are to proceed on the basis that the evidence is to be perjured evidence, there is no chance at all of getting justice in the country.
I hope that in these circumstances we can come to a decision on this very difficult matter, but in the circumstances I ask my hon. Friends who have spoken against this provision to think very carefully again and to realise that we need it to make this an effective Measure.
§ 7.0 p.m.
§ Mr. Manuel
I intend to speak briefly and to appeal to the Lord Advocate to consider one or two points which I do not think have been dealt with up to now. Incidentally, I was extremely sorry to see the hon. Member for Belfast, South (Mr. Gage), rather slipping from the attitude he took up on Second Reading, when he supported fairly generously some remarks which I made about trout fishing as against the taking of salmon. This provision applies equally to the small trout, the insignificant trout, as to the salmon which is so often caught for commercial and other purposes.
I have a fairly intimate knowledge of the Highlands, and I agree with my hon. Friend the Member for the Western Isles (Mr. M. MacMillan) in the major part of the case he made out. But anyone who has an intimate knowledge of the Highlands will agree with me that it is completely wrong to think that we shall be in a better position, with one witness, in combating gangs who are raiding rivers and other waters to catch salmon for commercial purposes.
Having an intimate knowledge of the position, I am quite certain that if we are to combat and stop these gangs it will not be done by the one-witness procedure. If we are to combat them the persons employed by the estate owners or the owners of the fishing rights would all be able to offer evidence of the depredation when it occurred. Nor do I believe that it would be easier for one witness to deal with the question of identification, for example, in the case of five or six men in a gang, than it would be for two or more employees or gamekeepers or water bailiffs.
Above all, as one who has taken an active part in a small way in burgh police court work, I am certain that the majority of such courts in Scotland are completely against imposing fines in respect of prosecutions when only one witness is available. We have set our minds against that even when that one witness has been our local policeman. We knew that so much could come into the evidence that could be wrongly construed. I am aware of certain Highland villages where certain persons who are not too badly thought of members of the community have been fairly successful in getting a trout or a salmon for the pot despite the attempts 208 of a particular gamekeeper to apprehend them or secure a conviction against them. That was the position not because the gamekeeper was there alone, but because those he sought were more natural to the soil and to the taking of game or fish than the man who was acting for the landowner. I ask the Lord Advocate to have another look at this matter. I do not think that we shall be on strong ground if the principle of one witness is adopted.
§ Mr. Carmichael
I agree with the Lord Advocate that he did not introduce this Clause lightly. I am quite satisfied that no one with the great knowledge which he has of the law would deliberately try to frame a Bill which would make it easy to convict people without a fair and just trial. He has, however, to recognise that this is undoubtedly a very serious departure. There is nothing in the provision that indicates the need for corroborative evidence. It simply states:It shall be lawful to convict a person charged under this section on the evidence of one witness.I was associated with an Amendment which suggested the deletion of the subsection. That would not have hampered the Lord Advocate in proceeding with the Bill. One can see that if this principle is established in dealing with salmon it will be justifiable to argue the case for one witness without corroborative evidence in respect of every Bill brought forward dealing with Scotland. I could put up a stronger case in justification of the principle of one witness being applied against a person who might ill-treat a child or commit any number of criminal acts than could be made in the case of salmon poaching.
Let us revert to the first point made by, the Lord Advocate—that it is the gangs at which we are trying to aim. My right hon. and learned Friend admits that. I agree that if the law is applied it must be applied universally, that it must cover everybody, but because we are trying to get at the gangs we are, by this provision, curtailing the law. I remember that before the General Election the hon. Member for Caithness and Sutherland (Sir D. Robertson), who then represented an English constituency, drew attention to the gang poaching in the North of Scotland. I mention this point because it has been suggested today that all this poaching is done silently in the dead of night, and that it 209 is difficult to catch the people concerned. He told us on one occasion how people were actually loading the salmon into wagons are taking them in truckloads to London—
§ Mr. Carmichael
Yes, faked labels are all the rest of it. They did not do that in the silence of the night when no one was likely to catch them. That is organised gang poaching; it cannot be done by one person. If they are organised in this way how is it possible for people to go to the North of Scotlare are silently use nets? The Committee reporting on this matter said that the offenders used the nets in groups to gather in the salmon. If we are to believe that they are organised to that extent are the counties so denuded of population or people in authority that they can only furnish, on an odd occasion, one person who is likely to catch the offenders?
I am not prepared to accept that view. My greatest objection to this proposal is the departure in the law that it represents. It is a retrograde step that is being taken. It may be argued that the courts pay more attention to one witness than to two or three witnesses, although it is a slight reflection on the judge if it is suggested that he becomes more alert are more careful in such circumstances. That has been said in effect by some learned Members on the other side of the Committee, are that was a view—
§ The Lord Advocate
I do not wish to be misunderstood. What I intended to convey, whether I did so or not, so far as the evidence of the person is concerned, was that the court was likely to scrutinise perhaps much more carefully the evidence of one person than the evidence of a series of people, all of whom were more or less giving substantially the same evidence.
§ Mr. Carmichael
I will not pursue that point beyond a brief answer. The Lord Advocate has on many occasions acted for the defence in the courts of Scotlare. One of the strong endeavours, are rightly so, of defending counsel in a court is to try to refute the evidence of one witness for the prosecution with the evidence of another witness for the prosecution. That is a strong point. The person in the 210 dock must always try to prove that the evidence for the prosecution is not as sound as the prosecution is endeavouring to make it. But we are going to deny him that right. As has already been said in the debate today, it is the easiest thing in the world for a bailiff to take offence at somebody living in the area and because of it that person can be constantly prosecuted.
Some of us know from our own experience in the small courts of our cities that it is not uncommon even for two witnesses to get their knife into a person so that that person is then constantly before the courts. I do not think we should go much further than that, and I beg the Lord Advocate and the Secretary of State for Scotland to put their heads together on this matter. I do not think we could have two better heads for the purpose. Knowing the feeling of the Committee, knowing that this is a departure which can go right through the whole of the Scottish law, I beg of them to think it over and at least try to avoid any division; and recognise the position of at least one witness and corroborative evidence.
I rise merely to ask the Lord Advocate if he will have another look at this matter. I have listened to the debate, and despite the rather tautological verbal acrobatics of so smooth and skilled an individualist as the hon. Member for Edinburgh, South (Sir W. Darling), and the more serious address on the subject by the Lord Advocate, I think that no Member of the Committee can be convinced of the absolute necessity for this departure from Scottish justice.
The Lord Advocate himself stated that if the Amendment in the name of myself and the Amendment in the name of the hon. Member for Tradeston (Mr. Rankin) were accepted it would mean that the evidence of one witness would have to be supported by corroborative evidence—[HON. MEMBERS: "Or another witness"]—or another witness. But leave aside the other witness for the moment. I think everyone realises that the case is not quite as serious as he originally made out. But this is very serious if we look at it from the point of view of the person in the dock. No other corroborative evidence needs to be brought forward, other than the plain statement of a witness that the person 211 in the dock is connected with this and has done that. That, and that alone, can bring down the penalty. The subsection says:It shall be lawful to convict a person charged under this section on the evidence of one witness.It does not say anything else, and we cannot talk ourselves out of it.
We are introducing this principle into Scottish law, and just as the hon. Member for Galloway (Mr. McKie) cited an 1804 law as a precedent for this, probably in a few years this will be cited as a precedent for a further extension of the principle. I would seriously ask the Lord Advocate—I know he has looked at it before—if he would have yet another look at the matter. I do not want to bring the Scottish law down to the level of the English law, no matter how high that level may be. I would ask the Secretary of State for Scotland to remember the date. This is 24th January. Probably tomorrow he will be going to a Burns supper. What would Burns have said about this kind of justice? I suggest in all seriousness that this matter requires more consideration. I hope the Lord Advocate will give us that assurance and obviate the necessity of forcing a Division.
§ 7.15 p.m.
§ The Lord Advocate
Without giving any guarantees I would like to say—as I should not like to be misunderstood about this, or, at a later stage, be deemed to be going back on any promise I have given —that we shall look at this again, as we look at any serious matter in view of strong representations from either side of the Committee. We will look at this again between now and Report stage, but the difficulties to which I have already referred seem at the present date to favour having the Clause as it stands at present. We will see if there are any other circumstances or factors which might possibly enable us to take a more liberal view of the situation. I trust that that will satisfy my hon. Friend.
In view of that undertaking from the Lord Advocate I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Motion made, and Question proposed, "That the Clause stand part of the Bill."212
§ Lord Dunglass
I notice that some Amendments have been put in the Second Schedule of the Act which deal with the Tweed, and that these Amendments have the effect of seriously reducing the possibility of prosecution for possession of nets. I think it must have been the intention of the Lord Advocate that the wording of Clause 7 should make up for the repeal of those particular sections of the 1859 and the 1857 Acts. I have hardly had time to look at this, but I think that the wording in Clause 7, dealing with the possession of illegal instruments, is not as strong as the wording in the 1857 and 1859 Tweed Fisheries Acts. Although I shall not ask him even to comment on this now unless he wishes to, I shall raise this matter again on Report stage. I would, therefore, be grateful if the Lord Advocate would look into this point with a view to seeing that these powers are not weakened, as I am sure that cannot be his intention.
§ Mr. Pryde
I regard this Clause as being dangerous in the extreme. It is most ambiguous. It says:If any person is found in possession of any salmon or trout…Well, any number of persons can be found in possession of salmon or trout.or any instrument.The term "instrument" is not defined in Clause 22, nor in the Act of 1868 and we must therefore ask the Lord Advocate to define what is an instrument. The Clause also says:If any person is found in possession of any…explosive.Peebles is a quarrying county and workmen there can be found to be carrying explosives. If they are so found in possession of explosives they will be liable under this Clause.
Subsection (2) says:Where the court is satisfied that a person charged under the last foregoing subsection obtained possession of salmon or trout—that is, if the court is satisfied on the evidence of one witness, then he shall be dealt within a like manner as if he had been convicted of the same offence.I would ask the Lord Advocate to clear up those points before we allow this Clause to stand part of the Bill.
§ The Lord Advocate
May I say to the hon. Member for Lanark (Lord Dunglass) 213 that we will have a look at the point he raised between now and the other stages of the Bill. The general purpose of the Bill is to bring within the framework of one code the procedure and penalties in respect of offences dealt with under the Bill instead of having them separated through different Acts of Parliament. Accordingly, we would much prefer to have one code throughout the Bill dealing with the various rivers in Scotland. But we will look at the point he has raised.
The reason why we did not attempt to define the term "instrument" in the interpretation Clause is because once we start defining certain instruments that may automatically exclude other forms of instruments. As soon as we debar one form of instrument, the wit and ingenuity of the people concerned in this industry—if I may call it that—would soon devise some other form of instrument not mentioned in the definition and would carry out their work by that means. Therefore, we concluded that it would be much better to define the legal method of fishing and designate everything else as an instrument which does not fall within the legal definition of the manner in which fishing can properly be done.
On the question of people such as the roadmen in the county of Peebles being found with explosives in their possession the court must be satisfied that they were in possession of the explosives or any other articles for the purpose of committing an offence. If the men said that they had the explosives because they were going to work further along the road, that would be a complete answer. In fact, I doubt whether there would be a prosecution. But if men have explosives which they are using for the purpose of taking salmon out of a river, that is a different matter. We must leave this question on the broad general basis, as we have done, rather than put into the Bill restrictive definitions which may completely defeat its purpose.
§ Lord Dunglass
We are only too happy to come within the scope of the new Bill. The point was that 80 per cent. of our convictions came under the appropriate subsection of the old Act.
§ Clause ordered to stand part of the Bill.