JUDICIAL EXAMINATION (Hansard, 7 June 1995)

§ Mr. McFall
I beg to move amendment No. 166, in page 6, line 40, leave out 'and'.

§ Mr. Deputy Speaker
With this, it will be convenient to discuss also the following amendments: No. 167, in page 6, line 42, at end insert— '; and (c) in paragraph (b) after the words "allegedly made" there shall be inserted "and in summary of the evidence upon which the Crown intends to proceed.".'. No. 168, in page 7, line 3, at end insert— '(3A) In subsection (4)—

(a) leave out the words "With the permission of the sheriff'; and

(b) after the words "accused may" there shall be inserted "object to any question asked by the prosecutor and".'.

§ Mr. McFall
I draw particular attention to amendments Nos. 167 and 168. Amendment No. 167 would ensure that an accused person who is subject to judicial examination should have access to a summary of information upon which the Crown is basing its case. At a judicial examination, the prosecutor can ask an accused person about an extra judicial admission only if the accused has received a copy of the written record of the confession.
Under the terms of the Bill, the prosecutor will be able to ask questions designed to elicit an admission. Amendment No. 167 would redress the balance between the prosecutor and the accused in judicial examination by ensuring that such questions can be asked only if the accused has also received a copy of the summary of evidence. If the prosecution has the right and the entitlement to ask questions in order to elicit an admission, surely the defence has the right to object to that. The defence should know the facts upon which the prosecution is relying and, with that in mind, we tabled amendment No. 167.
Under the terms of the Bill, the defence can say something only with the permission of the sheriff and the accused can be asked questions for the purpose of clarification only with the permission of the sheriff. Amendment No. 168 would eliminate the need to ask the sheriff's permission and add the accused's right to object. In that spirit, I commend the amendments to the House.

§ Lord James Douglas-Hamilton
I am afraid that I fail to see the need for amendments Nos. 166, 167 and 168, despite the explanations offered by the hon. Member for Dumbarton (Mr. McFall). The main amendments that the Bill will make to the judicial examination process are limited to trying to ensure that the prosecutor can ask the accused a simple question to which the accused can give 256 a straightforward answer. That being the case, I do not see why we need to change any of the fundamental aspects of the process.
It would be entirely premature to provide a summary of evidence at judicial examination stage. The judicial examination takes place at a very early stage of the process, soon after the accused has been arrested and charged. At that stage, the prosecution will often not be in a position to give a full summary of how it intends to proceed—the hon. and learned Member for Fife, North-East (Mr. Campbell) will know that from his experience as an advocate-depute. I do not believe that there would be any advantage in the accused having such a summary at that stage, and there could be no question of the Crown being limited to proceeding only on the basis of such evidence as may be available at the time of the judicial examination.
I also cannot see the advantage of amendment No. 168, which would amend clause 10 by providing an enhanced role for the accused's solicitor in the process of the judicial examination. A clear duty is placed on the sheriff by the statute to ensure that the procedure is undertaken in a manner that is fair to the accused so that he or she understands fully what is being asked. To tinker with that system by introducing a more extensive role for the legal representative of accused persons in objecting to the questions put to the accused by the prosecutor would be to alter the nature of the process unnecessarily.
In the event that it is thought that anything said by the accused in the course of a judicial examination has been extracted by unfair or improper means—despite the fact that the procedure is under the control of the sheriff—it would be open to the defence, at either a first or preliminary diet, or indeed at the trial itself, to challenge the evidential value of the judicial examination. I believe that there are perfectly adequate safeguards for the accused, and, in those circumstances, I urge that the amendments be withdrawn.

§ Mr. Menzies Campbell
I understand the practicalities of asking the prosecution to provide all the details of the evidence upon which it intends to rely. However, the amendment is not exclusive, in the sense that the prosecution would be debarred in some way from relying on other information at another stage. It occurs to me that there may be an imbalance, in that the accused is expected to state his defence but the prosecution is not obliged to state the terms of the prosecution, other than the bald narrative of the charge no doubt contained in the petition warrant.
Therefore, the Minister should consider the fact that at that stage the accused is obliged to come clean—to put it colloquially—but, apart from the terms of the charge, the prosecution is not asked to do likewise. Looking at the matter from the point of view of fairness—which is always the ultimate test in procedures of this kind—we should ask whether it might be possible to provide the accused with something along the lines suggested by the amendment. The Minister knocked the amendment aside rather baldly, but I think that it deserves further and more detailed consideration than he felt able to give it.

§ Lord James Douglas-Hamilton
With the leave of the House, I will answer the hon. and learned Member for Fife, North-East (Mr. Campbell). The questions asked of 257 the accused will be very simple and straightforward. The amendment is difficult because it requests a summary of evidence at a time when the prosecution may not have all the evidence readily available. If it is a serious case, such as a murder case, additional information may become available later in the course of the investigation and we must remember that judicial examination takes place at a very early stage in the proceedings.
For those reasons, it is not appropriate or wise to impose a cumbersome process upon the prosecution. We must balance the interests of justice with fairness to the accused, and I suggest to the hon. and learned Member that the effects of the amendments would not be in the best interests of justice.

§ Mr. Campbell
I shall intrude upon your discretion and respond briefly to the Minister's comments if I may, Mr. Deputy Speaker. The Minister does not understand that there is no exclusivity. The amendment does not say that, having stated its case, the Crown could never go beyond the terms of that case in the future.
I do not think that the Minister has directed his attention to the fact that a person is arrested and charged with an offence only because there is at least prima facie evidence from corroborated sources as to his or her guilt. To that extent, by the time that an individual appears at the judicial review, the prosecution must know the evidence on the basis of which it has been thought fit to charge that individual.

§ Lord James Douglas-Hamilton
I do not think that what the hon. and learned Gentleman says is in the interests of justice for the simple reason that, if the prosecution puts forward its case at a very early stage and it then emerges that there is a great deal more evidence that it was unaware of and the case involves other matters as well, the defence could argue in the trial that the prosecution did not put forward the case fully and properly at the time of the judicial examination. The prosecution may not have been in a position to do that. The hon. and learned Gentleman would be imposing upon the prosecution a cumbersome and onerous process which would not be in the best interests of justice.

§ Mr. McFall
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.