CRIMINAL PROCEDURE (SCOTLAND) BILL (Hansard, 18 June 1965)

§ Mr. N. R. Wylie (Edinburgh, Pentlands)
I beg to move, That the Bill be now read a Second time.
This is a very short Bill. It applies only to Scotland, but it is a matter of considerable interest to the Scottish legal profession and judiciary, because, although it is short in terms, in effect it is an important Measure of law reform. Its purpose is to enable parties to proceedings on indictment in Scotland to agree any fact in those proceedings which is not in dispute. This is already the case in summary proceedings, that is, proceedings before a single judge not sitting with a jury, by Statute and it has worked perfectly satisfactorily in summary proceedings. The purpose of the Bill is to extend that practice to proceedings where the judge is sitting with a jury.
There is written into the Bill the necessary safeguard that an agreement of this nature can be constituted only by a joint minute signed by the party and the prosecutor and can apply only where the accused person is represented by solicitor or counsel. It would clearly be unfair and unreasonable to expect a layman who 1141 was defending himself, as from time to time occurs, to enter into an agreement of this nature. There is thus the safeguard that the Bill applies only when the accused is represented by counsel or solicitor.
May I illustrate the kind of happening it is hoped to avoid by this kind of provision? As hon. Members may know, there is a rule of criminal evidence in Scotland, a general rule in the law of evidence of Scotland, that no material fact in any proceedings, civil or criminal, cane established without corroboration. That means that any material fact must be spoken to and established by two witnesses, either two eye witnesses to the fact, or one eye witness to the fact supported by other evidence of the surrounding facts and circumstances pointing in the same direction as the evidence of the eye witness. I understand that this provision is not to be found in the law of England and that it is possible in England to obtain a conviction on the evidence of one witness. I am not qualified to develop that, and all am saying is that the two-witness rule in Scotland is a feature of our law which invites, or makes even more desirable, the kind of provision which this short Bill is designed to achieve.
Let me explain the kind of situation which I have in mind. Let us imagine that there has been theft from a railway goods van somewhere in a marshalling yard in Glasgow and let us suppose that there are 10 charges of theft, 10 articles or groups of articles having been stolen from that railway van. At the moment, if the charge proceeded with on indictment with a judge and jury, what the public prosecutor would have to prove in each of the 10 charges would be, first, that the goods were sent by the consignor to the railway authority. That might require some witness or witnesses from the south of England to travel to the High Court in Glasgow. Secondly, it would be necessary for an official or officials from the railway authority to go from Landon to say that the goods were received into the custody of the railway authority and put on the railway van. Finally, it would be necessary for the consignee of the property to establish that the goods consigned to him were never delivered.
Sometimes there is no dispute between the Crown and the accused about the loss or disappearance of the property. The defence to the charge may be, "I had nothing to do with it because I was some- 1142 where else", the special defence of alibi. But, as the law stands at present, it is necessary to follow this procedure on each charge. I recollect a case in which I was professionally involved a few years ago in which there were about 30 separate charges of this kind, and it was necessary to trail through the witness box literally dozens of witnesses who had been brought from all parts of the country to speak to matters about which there was really no dispute between the parties. The Bill is designed to avoid that procedure.
The practice of agreement has worked satisfactorily in summary proceedings for a number of years since it was allowed by Statute. In a debate on law reform in the other place on 11th June last year, the noble Lord, Lord Reid, said: I now mention one or two of the technical points which I think require urgent investigation He then listed three matters requiring reform, the second being the problem with which this Bill deals. The noble Lord said: The second topic is that there is no right to make an admission in a criminal trial. Everything has to be proved meticulously. Days and days of valuable time and an immense amount of money are wasted, and yet there is not the slightest reason that I can see why the reform should not go through. I have never understood why you can admit the whole crime by pleading guilty, but cannot admit any particular fact in the course of the trial if you plead not guilty. To my mind it makes no sense at all, but, for a century and a half, nobody has done a thing about it because evidence and procedure have tended to be neglected. I put evidence and procedure first for this reason: nine-tenths of the litigation in this country is not concerned with law at all; it is concerned with the ascertainment of facts, in either civil or criminal proceedings. Therefore, if you want to do good, the first thing to do is to improve the law of evidence and procedure."—[OFFICIAL REPORT, House of Lords, 11th June, 1964, Vol. 258, c. 1070.] This is precisely what this short Measure is designed to do. It would correct a feature of the law of procedure in certain criminal trials, that is, criminal trials on indictment, and thereby avoid expense of time and inconvenience on the part of witnesses and expense of time and inconvenience on the part of jurors who have to sit and listen to a long procession of witnesses speaking to matters about which no one disagrees; and it would also avoid a great deal—I say this advisedly—of expense of public money which the Crown must undertake in order to bring all these people to the court 1143 and pay the necessary compensation for their attendance.
Clause 1(3) does no more than bring the whole law of procedure on agreement into one piece of legislation. At present, under the Administration of Justice (Scotland) Act, 1933, it is provided that documents can be agreed. The Clause would extend the area of agreement to facts upon which there was no dispute, when the accused was represented, and I suggest that it would be desirable to have the whole of the law on this matter embodied in one statute. Therefore, the Bill would repeal the 1933 Act and incorporate its provisions in the one Statute so that anyone could find all the relevant provisions in one place.

§ Mr. William Hamilton (Fife, West)
I very much welcome the Bill. It is a splendid example of what a Private Member's Bill can do. In the relatively short time that he has been in the House of Commons, the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) has earned considerable respect for what he has done. I think that he is not so much a party politician as a rather decent professional lawyer. His presentation of the Bill confirms my conviction that Scottish lawyers serve the House better from the back benches rather than the Front Benches.
It is a salutary thought that had the Conservative Party been returned to power the hon. and learned Gentleman would have found himself on the Government Front Bench and this Bill would never have seen the light of day. It is an interesting example of how the hon. and learned Gentleman can serve his country best by sitting on the back benches in the Opposition than on the Front Bench in a Conservative Government. I very much welcome the Bill and hope that the House will give it a Second Reading so that we can get it on the Statute Book.

§ The Minister of State, Scottish Office (Mr. George Willis)
Perhaps I might give the Government's view about the Bill. As the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) said, the Bill repeals Section 20 of the Administration of Justice (Scotland) Act, 1933, 1144 and Section 12 of the Criminal Procedure (Scotland) Act, 1938, which amended Section 20 of the 1933 Act. In the place of those Sections, the Bill, in the first three subsections, puts the law as suggested by the hon. and learned Gentleman in relation to agreements in trials on indictment, so that we get the whole body of the law in these three subsections.
The Bill also adds to the existing provisions by providing for the introduction into solemn procedure of a method whereby the necessity for proving facts which are not in dispute between the defence and the prosecution can be avoided by lodging a minute of admissions or of agreement. From his legal experience, the hon. and learned Gentleman has given us examples of the very great waste of time and energy of individuals at present arising from the existing situation, and he has, I think, justified the change that he proposed to make.
Since it is entirely within the discretion of the accused whether or not he lodges any admission of fact, this new provision cannot be operated against the interests of the accused person. It is important to state this and make it clear. There is the additional protection that such an admission can be made on behalf of an accused person only by the lodging of a minute by his legal adviser. The hon. and learned Gentleman mentioned that safeguard. So the accused is still safeguarded. Thus, there is the safeguard that not only must the accused person be willing to make the admission but that he will do so only after his interests have been considered by his legal advisers.
It is difficult to tell exactly how much use is likely to be made of the new provision. The Government certainly have no indication of the extent to which it will be used. The hon. and learned Gentleman may have a better idea from his own experience.
There is no particular incentive to an accused person to lodge a minute of admission under the provisions of the Bill. We think it likely that few such minutes will be lodged in the ordinary criminal case taken on indictment, but there may be complex cases in which it will be in the interests of the parties to have the matters on which there is no dispute cleared out of the way so that they can concentrate on the real issues. This 1145 is a useful thing to do, and we think that this is probably where the Bill will be of the greatest value. For this reason we welcome it.

§ Mr. Wylie
Would the hon. Gentleman agree that the kind of case in which this might be of most value is a complicated fraud or embezzlement case involving dozens of charges, a mass of evidence, and a number of witnesses, which very often leaves a jury completely bamboozled at the end of it? Under the proposed procedure a great deal of the agreed facts will be set down in a document, thus leaving the jury to concentrate its attention on the narrower field of evidence concerning the issues really in dispute.

Mr. Millis
I agree with the hon. and learned Gentleman. That is the point that I was trying to make shortly before he intervened. It is clearly a good thing to be able to clear agreed matters out of the way and leave the jury to decide on the disputed ones. This will make the case itself simpler, and make things easier for the jury. It is always important to try to assist the jury, and we think that the Bill is of great importance in this respect.
I had thought that on this occasion I would be able to tell the hon. and learned Gentleman that we and our legal advisers were 100 per cent in agreement with him. I was rather pleased at the possibility of being able to do that, because usually we have to tell him that we are not in agreement with him, or only partly so. As I say, I had hoped that on this occasion I would be able to say that we were 100 per cent. in agreement with him, bat when I heard him describing this as an important Measure, I realised that I would have to tell him what view my legal advisers and I took of it There is a difference of legal opinion here, and I am not capable of solving it.
We consider that the Bill is a minor, but nevertheless rather useful, amendment of the law governing legal procedure in Scotland. For this reason we welcome the Measure and thank the hon. and learned Gentleman for introducing it. We think that it will effect an improvement which probably would not have been effected had it not been for the hon. and learned Gentleman's initiative in bringing 1146 in this Measure, and it has the support of the Scottish Office.
As my hon. Friend the Member for Fife, West (Mr. William Hamilton) said, this shows the advantage of having a lawyer from Scotland on the back benches. We do not often have such a situation, but we have it now, and we are beginning to see the useful results that can flow from it.