Judicial Examination

HC Deb 23 July 1980 vol 989 cc597-607 8.15 pm

Mr. Dewar

I beg to move amendment No. 21, in page 6, line 33, at end add but no judicial examination shall take place unless the express consent of the accused person is obtained in writing.'. The amendment gives us an opportunity to look at some of the implications of the return to Scotland of a form of judicial examination about which a number of us have fundamental doubts.

There will be no dispute that if the House were to accept the amendment it would make a considerable difference to the operation of the judicial mechanism. I accept—I have said this on previous occasions—that the intention of official examination is in many ways attractive and plausible. Put very briefly, it is that at the very first possible opportunity, on the day following arrest, an accused party shall appear before a sheriff. At that stage he will be asked to reveal any special defence—whether it be self-defence, alibi or impeachment—that he may have in his mind. He will also be asked to deny or put his gloss upon or give his explanation of any extra-judicial confession that has been obtained by the police and may be used at his trial—the idea being that this will make it particularly difficult for a person of evil disposition to invent a special defence as he lies in Barlinnie or sits at home awaiting his trial. It will also give a certain added force to his quarrel with what the police allege that he said if, at the first possible opportunity, he advances his caveats and qualifications or denials.

On the face of it, that all sounds extremely reliable. The difficulty arises when we consider the effect of the mechanism. We then begin to see that there are very great difficulties about it. One of them is that a fundamental right of anyone accused of a criminal charge in Scotland is the right of silence. The onus of proof lies upon the prosecution. If a man wants to hold his peace as an accused and leave the Crown to prove its case, he is fully entitled to do so, but if he exercises his right of silence and says nothing at the judicial examination, he runs the risk of adverse comment— either by the procurator fiscal or by the judge or sheriff—at the subsequent trial.

It will be a matter of dispute between me and the Under-Secretary of State or the Solicitor-General that adverse comment from a judge along the lines of "You may think, ladies and gentlemen of the jury, that it was really remarkable that the accused did not take the opportunity at his judicial examination to put forward his explanation", could have a formidable effect. Therefore, to say that the right of silence is preserved in the clause is to make a dishonest play upon words. If that right exists, it is still true to say that if it is exercised an accused persons puts himself at hazard and may pay a considerable penalty.

That, briefly, is the reason why we have fundamental doubts about the clause. That is why we think that the amendment is worth pursuing and urge that it be given serious consideration. Anyone putting himself at that hazard as an accused person should do it in the full knowledge of what he is doing. He should also have an opportunity of saying No, I do not wish to be part of this process. Apart from these arguments of principle that I have advanced, I regard the whole concept of the clause as unsatisfactory, because I believe that it is an unworkable and thoroughly impractical piece of organisational machinery.

I have practised for some years in Glasgow sheriff court. It is a busy court; at times almost a chaotic court. It is doubly important that what is proposed should be voluntary, without everyone on petition automatically being pushed into this position. The hon. Member for Edinburgh, South (Mr. Ancram) shakes his head, and is entitled to do so, but in the maelstrom of bail appeals, full committals, pleading diets, trials, and so on, in a sheriff court, the problems of getting statements of alleged extrajudicial confessions circulated, of getting the shorthand writers organised, and so on, will be considerable. I think that I speak for many people who practise in the sheriff courts when I say that it will be extremely difficult to make the process workable.

Our objection is in principle; that is the important thing. That is why it is important that the accused should have a right to say whether he wishes to be put through this form of interrogation—an interrogation in which the procurator fiscal will have the whip hand in deciding what line of questioning there is to be, and where the defence is confined—despite the best efforts of the House of Lords—to clearing up ambiguities and matters of that kind.

We believe that people should not be forced into this position, where their right of silence is imperilled and where, in a sense, the onus of proof shifts. In that specialised and important sense we are striking at the presumption of innocence. At the moment one can make any judicial declaration at a full committal hearing. It is not as though this is giving a right to an accused; it is forcing him to make a judicial declaration in a way that may be dangerous to his ultimate defence. That is something of which we should be extremely chary.

I believe that there is a strong argument for accepting the amendment and writing into the clause a provision that if it is to be implemented at all it must be with the agreement and express consent of the accused, which shall be given in writing.

The Solicitor-General for Scotland

If my recollection does not deceive me, we have been over this ground before. The point is simple. As the hon. Member for Glasgow, Garscadden (Mr. Dewar) said, it is important that a person should have to declare his position right away. He knows his position right away. If somebody says that I murdered granny on 15 September, I shall know whether I did. There is no difficulty in that situation.

Mr. Maxton

In a complicated fraud case, for instance, in which the police may say to a man "What entry did you make in a book five years ago?", can we possibly expect that man to make an immediate response?

The Solicitor-General for Scotland

I could not expect that person to give one in those circumstances, but I should know whether I had committed fraud five years ago. Whether I am to be caught out by an entry in a book is at my peril. It is a strange man who thinks that he has when he has not. I know some people who think that they have not when they have, but I do not know of anybody who does it the other way round.

This is not in any way a question of disturbing the right to silence. The concept that the Crown has to prove its case means that a person can say "I am innocent and I remain innocent. If you think that you can prove something to the contrary, you cannot. There cannot be any evidence because I did not do it."

The hon. Member for Garscadden knows that nothing is easier for the establishment of a false defence and the likelihood of the guilty man being acquitted than that he should not have to state his position until he knows the fences over which he has to jump. There is no possible prejudice to any innocent person from stating his position at the moment that he is charged when everything is fresh in his recollection. The amendment would undermine the whole purpose of judicial examination—an ancient concept in the law of Scotland, approved by the Thomson committee, and a matter that we discussed upstairs.

Mr. Dewar

I shall certainly not press the amendment to a Division.

I do not know whether the Solicitor-General has committed fraud at any point in his career, but I have strong views about judicial examination. I shall no doubt have an opportunity in the not-too-distant future of having personal experience in the courts of watching it in operation. I shall certainly report to the hon. and learned Gentleman how it works in practice. I have my doubts, and the doubts persist.

I think that the Solicitor-General oversimplified the matter. It is often difficult to know immediately whether there is a special defence. Even a simple matter of self-defence can become complicated until one has the full precognitions and has been able to disentangle the events. Often an alibi is a matter of trying to remember where one was some time ago, even with the aid of a complaint, which may not be specific about the time at which it is alleged the offence took place. There are real problems which the Solicitor-General, in his usual flamboyant way, has glossed over. The proof of the pudding will be seen in the months ahead when this law comes into operation. I believe that the Solicitor-General may have some embarrassing lessons to learn about the reality.

With these forebodings, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Russell Johnston (Inverness)

I beg to move amendment No. 159, in page 7, line 32, after 'made' insert ': and further provided that such matters as mentioned in paragraph (a) above may only be admitted in evidence if questions under this paragraph have been put to the accused.'. First, there appears to be a misprint. The reference to "paragraph (a)" should be to "paragraph (b)". I dare say that that has already been observed by the Government Front Bench.

The ground to which the amendment is directed is similar to that referred to by the hon. Member for Glasgow, Garscadden (Mr. Dewar). In consequence, I can be fairly brief.

The object of the amendment is to spell out specifically the right of the accused at the earliest opportunity to contest or dispute an extra-judicial confession. As the hon. Member for Garscadden pointed out, that, indeed, is the object that the Government have in mind. I am not suggesting that it is not. However, the object is to make it more specific than it already, and in particular to remove from the prosecution any discretion whether it may deem it advantageous not to raise certain matters forthwith.

Like the hon. Member for Garscadden, I oppose any move to weaken the right of silence. Indeed, amendment No. 160, in my name and the name of my right hon. Friend the Member for Roxburgh, Selkirk and Peebles (Mr. Steel), is directed to that aspect. The amendment is moved on the assumption that clause 6 will stand unchanged but that its object is to protect still further the right of the accused.

The Solicitor-General for Scotland

The amendment is superfluous. The whole purpose of the judicial examination is, first, as I have already stated and, secondly, to put to the accused for his admission, denial or comment any statement that he is alleged to have made. There may be further statements after the first judicial examination and it may not always be convenient or necessary to have a second judicial examination. The amendment would exclude such statements, contrary to the law of evidence. Therefore, it is superfluous. I think that the safeguards are sufficient.

Amendment negatived.

Mr. Buchan: I beg to move amendment No. 23, in page 8, line 8, leave out 'With the permission of the sheriff,'.

Mr. Deputy Speaker (Mr. Bryant Godman Irvine)

With this it will be convenient to take the following amendments: No. 24, in page 8, line 13, after 'question', insert 'relevant to the charge or'. No. 25, in page 8, line 14, at end insert 'or, with the permission of the sheriff, any other question'.

Mr. Buchan

This amendment seeks to ameliorate a clause which we regard as thoroughly bad. It seeks to restore some balance of equity between the accused and the accuser. The clause brings a new element into our system of justice—the element of inquisition. In the process of doing that, the Government have not only severely dented the right to silence, about which we talked at great length in Committee, but have altered the balance of equity between the accused and the accuser.

Amendment No. 23 seeks to remove the words With the permission of the sheriff in relation to the defence solicitor. The prosecutor may put questions directed to an extra-judicial confession or the circumstances of the accusation. The defence solicitor can put such questions only with the permission of the sheriff. That of itself distorts the equity of balance. Freedom is given to the prosecutor to follow up a line of interrogation. There is no such freedom given to the defence unless the judge gives the defending solicitor permission to do so. That is slightly different from the judge ruling on the admissibility of evidence in a court of law.

Secondly, the amendment expresses the wish that the solicitor for the accused shall be able to ask any question that is relevant to the charge. It is not wished to limit that freedom to the clarification of ambiguity. The amendment is linked with amendment No. 25, which if agreed to would give the accused an opportunity to answer any question that he has previously refused to answer or any other relevant question.

The amendments, if accepted, will restore a certain equity for the defence and the rights of an accused's solicitor.

8.30 pm

There are other countries where there is the full panoply of an inquisitorial system. The Solicitor-General will have read the appendix to the memorandum of the Law Society, which states:

"I understand that in certain countries where there is an inquisitorial system the accused's agent at the examination stage will have had the opportunity of at least consulting the dossier against his client."

The clause runs counter to other countries' inquisitorial systems and counter to the Convention on Human Rights. It runs counter to the convention on the issue of equity. The convention has stated that an inherent element of 'fair trial' was the procedural equality of the accused with the prosecutor and that there had to be 'equality of arms'.

The Law Society is right. The clause is wrong. There is no "equality of arms" between the conditions facing the defence and those facing the prosecution in this procedure. We have tabled moderate amendments to try to ensure that something of balance will be introduced. If the Government wish to keep this thoroughly bad clause there must be some element of fairness that will allow an accused's solicitor freedom of questioning. He should not be restricted by the terms of the clause and on the say-so of the judge apart from the clarification of ambiguities. He, in the same way as the prosecutor, should be able to extend the questioning in the proper way to defend his client.

The Solicitor-General for Scotland

The hon. Member for Renfrewshire, West (Mr. Buchan) spoke of "the line of interrogation". If he considers subsection (2), he will understand that interrogation is specifically included. The question must not be designed to challenge the truth of anything said by the accused. There must be no reiteration of a question that he has refused to answer, and there can be no leading questions.

We could have a long debate on what the hon. Gentleman called the "equality of arms". Although there is theoretically an equality of arms in that the side that calls the witness may examine him but cannot lead, and the other side that cross-examines him may lead and make the questions into evidence with" n'est pas?" on the end, nevertheless, the prosecution, which calls the main witnesses and the bulk of the witnesses, cannot lead any of them, while the defence may cross-examine, lead or suggest in all its questions. In a way there is no equality of arms within our system in the reverse direction.

I assure the hon. Gentleman that in judicial examination there should be open questions with the single purpose, apart from statements, of establishing the position of the accused with regard to the offence at the earliest possible moment, so that we exclude the abominable and, I regret to say, widespread practice that frequently results in a miscarriage of justice due to the acquittal of the guilty and the establishment of false defences, which is so much easier when it is known what one has to explain away before putting forward a point of view.

I assure the hon. Gentleman that subsection (2) will ensure that there is a complete safeguard for the accused and that there will be no harrying or interrogation. I hope that he will ask leave to withdraw his amendment. He should have a word with his: hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar), who thinks that the measure will be logistically difficult to achieve in Glasgow sheriff court. If the hon. Gentleman's amendment were accepted, and if any questions were allowed by the defence, the judicial examination could last longer than the trial.

Mr. Buchan

The difficulty is that we are never sure when the Solicitor-General for Scotland is serious. He made an extraordinary defence. He said that there was no equality of arms between the prosecution and the defence, because an accusatorial trial was loaded in the interests of the defence. That is what should happen. The accused should find that the procedure is loaded in his favour. The function of justice should be to clear the innocent. rather than to prove the guilty. That balance should be preserved.

Everything possible should be done in defence of the innocent. If the Solicitor-General for Scotland calls in aid such a time-honoured pattern of British justice, this must be a bad clause. The hon. and learned Gentleman has almost tempted me to divide the House. He is tempting me, and I am easily tempted by him. The hon. and learned Gentleman questioned the term "interrogation". However, by definition there will be limitations on the line of "questioning". We know that such procedures are not on all fours with cross-examination in an open court. We know that restrictions will continue to exist even if the amendments are accepted.

Our amendments are minor and moderate. They seek to restore a balance of arms within the limitations already laid down by subsection (2). That subsection is no defence against equity. We seek no more than that. The Solicitor-General for Scotland has rejected the amendment. I hope that his logistics are right, and that the number of possible cases will ensure that the measure cannot be applied in Scotland. This is a serious issue.

I rest on the case made by the Law Society and by the European Convention on Human Rights. Even at this late stage I hope that the Government will withdraw an unbalanced partisan and prejudiced clause. For the first time, it tilts the balance of equity away from the defence—where it belongs—and in favour of the prosecution. It is unprecedented and should be withdrawn. These amendments alone cannot defeat it. We have other amendments that may win victories.

Very reluctantly, and in the interests of progress, I beg to ask leave to withdraw the amendment to this objectionable clause.

Amendment, by leave withdrawn.

Mr. Russell Johnston

I beg to move amendment No. 160, in page 8, leave out lines 15 to 25.

The amendment seeks to remove subsection (5). Since clause 6 was presented in the other place, it has been considerably changed. That also applies to subsection (5), which the amendment seeks to excise. The subsection restricts the prosecutor's and judge's entitlement to comment at a subsequent trial on the accused's failure to answer questions that were put to him at his judicial examination. The amended clause allows such comment only when the accused or a defence witness seeks to give evidence which properly could have been articulated in the judicial examination in answer to questions which the accused did not answer.

Nevertheless, the clause, even as it is amended or diluted, represents an erosion of the right of silence of an accused person. That is the essential criticism of clause 6. The majority in the Faculty of Advocates criticised the clause on that ground. One could not say that the faculty represents a group of civil rights protestors. It has a proper regard for the rights of the accused person. If the subsection were deleted, the Bill would be improved.

The Solicitor-General for Scotland

The clause contains a safeguard in the subsection which the hon. Gentleman seeks to delete. It says that only when and in so far as the accused (or any witness called on his behalf) in evidence avers something which could have been stated appropriately in answer to that question. An accused might be asked "Were you attacked by the deceased or the complainer?" If the accused declines to answer and says later, in self-defence, that the chap attacked him with a knife, he cannot argue that there was a reason for not answering the question originally, because what happened was within his knowledge. The event was more recent when he was first asked than it was when he was asked later.

One can think of a myriad examples. If an accused is asked "Were you insured?" and he says "No", the prosecutor will ask "Why not?" The accused may say "Because I thought that my mother was insured to cover me to drive the car". The accused would then be asked "Why did you not say that at the time?" Under the amendment the accused would be able to say "Because I did not have an opportunity to check whether the insurance covered me". If the accused gives a rational answer it will not fall within the proviso, and therefore it cannot be commented upon.

The purpose of the provision is to prevent the falsification of defences. It is essential to understand that nobody wants an innocent man to be convicted. Nobody can say that with more virility or voracity than I. However, a large number of people are acquitted wrongly. That is no more in the interests of justice than that a person should be wrongly convicted.

Anything that we can do to ensure that a genuine defence is stated when the recollection of the accused person is fresh, and which gives him the opportunity to record it, must be right. Any attempt to wait and see whether one can wriggle out from a false explanation is bad. One must remember that attempting to make a false defence might prejudice the case of other accused persons who might be sitting to one's right in the dock and for whom it might be too late to answer the case. Anything that we can do to prevent that is in the interests of justice. I can see no situation in which it could possibly be to the prejudice of an innocent man.

Amendment negatived.