HC Deb 07 June 1995 vol 261 cc282-7

Amendments made: No. 82, in page 134, line 19, leave out 'Schedules A (forms of indictment),' and insert 'Section 3 of and Schedules'. No. 31, in page 134, line 27, leave out from beginning to '3' and insert 'Parts I and III to VI of Schedule 2 (forms of procedure) and Schedule'. No. 32, in page 134, line 28, at end insert— 'The Backing of Warrants (Republic of Ireland) Act 1965 (c.45) . In section 8(1)(b) of the Backing of Warrants (Republic of Ireland) Act 1965 (rules of court), for the words "457(a)" there shall be substituted "457ZA".'. No. 33, in page 135, line 1, leave out paragraph 7.

No. 83, in page 135, line 14, at end insert— '. In section 19(1)(a) (intimation to a solicitor), for the words from "of' to the end there shall be substituted—

  1. "(i) of the place where the person is being detained;
  2. (ii) whether the person is to be liberated; and
  3. (iii) if the person is not to be liberated, the date on which he is to be taken to court and the court to which he is to be taken;".'.
No. 84, in page 135, line 23, at end insert— '. In each of sections 23 and 329 (remand and committal of persons under 21) —
  1. (a) in paragraph (a) of subsection (1), for the words from "commit" to the end there shall be substituted ", instead of committing him to prison, commit him to the local authority in whose area the court is situated to be detained—
    1. (i) where the court so requires, in secure accommodation within the meaning of the Social Work (Scotland) Act 1968; and
    2. (ii) in any other case, in a suitable place of safety chosen by the authority;"; and
  2. (b) in subsection (4), for the words from "and" in the second place where it occurs to the end there shall be substituted "to be detained—
    1. (a) where the court so requires, in secure accommodation within the meaning of the Social Work (Scotland) Act 1968; and
    2. (b) in any other case, in a suitable place of safety chosen by the authority.".'.
 No. 85, in page 135, line 29, at end insert— '. In section 31 (appeal in respect of bail), after subsection (4) there shall be inserted the following subsection— (4A) Where an applicant in an appeal under this section is under 21 years of age, section 23 of this Act shall apply to the High Court or, as the case may be, the Lord Commissioner of Justiciary when disposing of the appeal as it applies to a court when remanding or committing a person of the applicant's age for trial or sentence.".'. No. 34, in page 135, line 35, leave out paragraph 15.

No. 86, in page 136, line 23, at end insert— '. After section 48 there shall be inserted the following section— "Common law and statutory offences in same indictment 48A. It shall be competent to include in one indictment both common law and statutory charges. Description of offence in words of statute or order 48B. In an indictment the description of any offence in the words of the statute or order contravened, or in similar words, shall be sufficient.".'. No. 87, in page 136, line 38, at end insert— '. After section 60 there shall be inserted the following section— "Proceedings under the Merchant Shipping Acts 60A. In any proceedings under the Merchant Shipping Acts it shall not be necessary to produce the official register of the ship referred to in the proceedings in order to prove the nationality of the ship, but the nationality of the ship as stated in the indictment shall, in the absence of evidence to the contrary, be presumed.".'. No. 138, in page 137, line 12, at end insert— '. In section 72 (citation of jurors and witnesses) —

  1. (a) the existing provision shall become subsection (1);
  2. (b) in that subsection, after the word "shall" in the second place where it occurs there shall be inserted ", subject to subsection (2) below,"; and
  3. (c) after that subsection there shall be inserted the following subsection—
(2) A court shall not issue a warrant to apprehend a witness who fails to appear at a diet to which he has been duly cited unless the court is satisfied that the witness received the citation or that its contents came to his knowledge.".'. No. 88, in page 142, line 7, at end insert— '. After section 182 there shall be inserted the following— "Caution 182A. Where a person is convicted of an offence (other than an offence the sentence for which is fixed by law) the court may, instead of or in addition to imposing a fine or a period of imprisonment, ordain the accused to find caution for good behaviour for a period not exceeding 12 months and to such amount as the court considers appropriate.".'. No. 89, in page 142, line 27, at end insert— '. In each of sections 196(1) and 402 (fines, etc., may be enforced in another district), the proviso shall cease to have effect.'. No. 90, in page 144, line 12, after 'etc.)' insert— '(a) in each of subsections (1) and (2), after the words "section 228(1)(b)" there shall be inserted ", (bb), (be) or (board)"; and (b)'. No. 91, in page 144, line 18, at end insert ',(bb), (be) or (board)'. No. 92, in page 144, line 38, at end insert— '. In section 269 (extract convictions), after the words "section 228(1) (b)" there shall be inserted ", (bb), (bc), or (board)".'. No. 35, in page 145, line 5, at end insert— '. In section 277(2) (non-compliance with certain provisions may be waived), the words "section 236C", "section 237", "section 246", "section 259", "section 272" and "section 273" shall cease to have effect. . Section 282 (power to make Acts of Adjournal: solemn procedure) shall cease to have effect.'. No. 163, in page 145, line 20, at end insert— '. Section 289D (IA)(d) (power to alter sums specified in section 435(e) of that Act) shall cease to have effect.'. No. 164, in page 145, leave out lines 24 and 25 and insert— '. In section 300 (appeal in respect of bail)— (a) after subsection (3) there shall be inserted the following subsection— (3A) Where an applicant in an appeal under this section is under 21 years of age, section 329 of this Act shall apply to the High Court or, as the case may be, the Lord Commissioner of Justiciary when disposing of the appeal as it applies to a court when remanding or committing a person of the applicant's age for trial or sentence."; and (b) in subsection (4)—
  1. (i) the words from ", or where" to "96 hours" shall cease to have effect; and
  2. (ii) for the word "periods" there shall be substituted "period".'.
 No. 94, in page 145, line 25, at end insert— '. For section 305 (intimation to a solicitor) there shall be substituted the following section— "Right of accused to have access to solicitor
  1. 305.—(1) Where any person has been arrested on any criminal charge, such person shall be entitled immediately upon such arrest—
    1. (a) to have intimation sent to a solicitor that his professional assistance is required by such a person and informing him—
      1. (i) of the place where the person is being detained;
      2. (ii) whether the person is to be liberated; and
      3. (iii) if the person is not to be liberated, the date on which he is to be taken to court and the court to which he is to be taken;
    2. (b) to be told what rights there are under paragraph (a) above and subsections (2) and (3) below.
  2. (2) Such solicitor shall be entitled to have a private interview with the person accused before he is examined on declaration, and to be present at such examination.
  3. (3) It shall be in the power of the sheriff or justice to delay such examination for a period not exceeding 48 hours from and after the time of such person's arrest, in order to allow time for the attendance of such solicitor.".'.
No. 95, in page 145, line 29, after 'applications)' insert '(a)'.

No. 96, in page 145, line 30, at end insert; and (b) after the word "open" there shall be inserted "shut and"!. No. 38, in page 145, line 32, leave out from '(1),' to '; and' in line 36 and insert 'the words from "in" where it first occurs to the end shall cease to have effect'.—[Lord James Douglas-Hamilton.]

Mr. McFall

I beg to move amendment No. 172, in page 145, line 37, leave out 'subsections (4) and (5)' and insert 'subsection (4)'.

The amendment would again ensure the provision of useful information that is to be withdrawn. If the information is withdrawn, the defence cannot advise adequately regarding a plea to be made or a prospective penalty to be imposed. Paragraph 97 of schedule 6 provides, among other things, that section 311 (4) and (5) of the Summary Jurisdiction (Scotland) Act 1954 shall cease to have effect.

There is concern about section 311(5) which provides that, where a complaint includes a statutory charge, a notice under the Act has to be served on the accused with a complaint and notice of prior convictions after the charge has been proved and laid before the judge by the prosecutor and entered into the record of the proceedings. That means that the accused will frequently not know of what he has been found guilty. When the accused is telling his lawyer his circumstances, it is extremely useful to have such notice, and withdrawing it would be detrimental. With that in mind, I seek the Government's views.

Lord James Douglas-Hamilton

The proposal to repeal the requirement to provide notices of penalties in summary cases follows a recommendation of the Standing Committee on Criminal Procedure, chaired by Lord MacLean.

The value of the notices does not justify the considerable resources devoted to preparing and serving them. They are not served in solemn procedure or for common law offences and, as they state only the maximum penalty available, they provide limited guidance to the accused as to the penalty which is likely to be imposed on him.

The requirement to serve a notice of penalty can, in certain cases, lead to the court not being able to sentence the offender if the notice, for some reason, contains an error or has not been properly served. In our view, it is not appropriate that the proper functioning of the court should be disrupted because a minor technical procedure has gone awry.

I understand that incidental use has been made of the notices by sheriffs and justices of the peace as guidance on the maximum penalties available to them in sentencing. We recognise that sentencers need to be fully informed of the penalties available to them. The Scottish Courts Service and the Crown Office are therefore in the process of setting up arrangements for providing the bench with the required information. The Crown Office has agreed to prepare and maintain a manual of statutory offences which will be made available in all courts, including the district courts. It should provide the courts with much more comprehensive and, indeed, appropriate information than a notice of penalties.

With that assurance, I hope that the hon. Gentleman will feel able to withdraw the amendment.

Mr. McFall

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 39, in page 145, leave out lines 39 and 40.

No. 139, in page 146, line 27, at end insert— '. In section 320 (apprehension of witness), after the word "may" where it first occurs there shall be inserted ", if it is satisfied that he received the citation or that its contents came to his knowledge,".'. No. 97, in page 147, line 12, at end insert— '. Section 345 (administration of oath to same witness in case at same diet) shall cease to have effect.'. No. 140, in page 148, line 42, at end insert— '. In section 408 (discharge from imprisonment to be specified), for the words "for payment of a fine or for finding of there shall be substituted "in default of payment of a fine or on failure to find".'. No. 40, in page 149, leave out lines 18 to 20 and insert— '. Section 435 (expenses) shall cease to have effect.'. No. 41, in page 151, line 14, at end insert— '. Section 457 (power to make Acts of Adjournal: summary procedure) shall cease to have effect. . Before section 457A there shall be inserted the following section— "Acts of Adjournal

  1. 457ZA.—(1) The High Court may by Act of Adjournal—
    1. (a) regulate the practice and procedure in relation to criminal procedure; and
    2. (b) make such rules and regulations as may be necessary or expedient to carry out the purposes and accomplish the objects of any enactment (including an enactment in this Act) in so far as it relates to criminal procedure,
    provided that no rule, regulation or provision which affects the governor or any other officer of a prison shall be made by any such Act of Adjournal except with the consent of the Secretary of State.
  2. (2) The High Court may by Act of Adjournal modify, amend or repeal any enactment (including an enactment in this Act) in so far as that enactment relates to matters with respect to which an Act of Adjournal may be made under subsection (1) above.".'.
No. 42, in page 151, leave out lines 29 and 30.

No. 99, in page 151, line 39, at end insert— '(3) In subsection (6), for the words "Great Britain" there shall be substituted "the United Kingdom".'. No. 100, in page 151, line 46, at end insert— 'The Sexual Offences (Scotland) Act 1976 (c. 67) . In section 4 of the Sexual Offences (Scotland) Act 1976 (unlawful sexual intercourse with girl between 13 and 16)—

  1. (a) in the proviso to subsection (I), the words "on indictment" shall cease to have effect; and
  2. (b) after subsection (2) there shall be inserted the following subsection—
(3) For the purposes of the proviso to subsection (1) above, a prosecution shall be deemed to commence on the date on which a warrant to apprehend or to cite the accused is granted, if such warrant is executed without undue delay.".'. No. 101, in page 152, line 18, leave out from beginning to '(service' in line 20 and insert 'In section 26(4) of the Criminal Justice (Scotland) Act 1980'. No. 141, in page 154, line 32, at end insert— '( ) In section 11(3)(b) (duration of licence), for the words from "the" in the second place where it occurs to the end there shall be substituted— there has elapsed—
  1. (i) a period (reckoned from the date on which he was ordered to be returned to prison under or by virtue of subsection (2) (a) of that section) equal in length to the period between the date on which the new offence was committed and the date on which he would (but for his release) have served the original sentence in full; or
  2. (ii) subject to subsection (4) below, a total period equal in length to the period for which he was so ordered to be returned to prison together with, so far as not concurrent with that period, any term of imprisonment to which he was sentenced in respect of the new offence,
whichever results in the later date. (4) In subsection (3) (b) above, "the original sentence" and "the new offence" have the same meanings as in section 16 of this Act.". ( ) For section 16(7) (application of early release provisions where further offence committed by released prisoner) there shall be substituted the following subsection— (7) Where an order under subsection (2) or (4) above is made in respect of a person released on licence—
  1. (a) the making of the order shall have the effect of revoking the licence; and
  2. (b) if the sentence comprising—
    1. (i) the period for which the person is ordered to be returned to prison; and
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    2. (ii) so far as not concurrent with that period, any term of imprisonment to which he is sentenced in respect of the new offence,
is six months or more but less than four years, section 1(1) of this Act shall apply in respect of that sentence as if for the word "unconditionally" there were substituted the words "on licence".".'. No. 142, in page 155, line 2, at end insert— '(6) In Schedule 3 (documentary evidence in criminal proceedings), in paragraph 6(4), for the words "after the close of that party's evidence and" there shall be substituted "at any time".'. No. 43, in page 155, line 45, leave out from 'by' to 'or' in line 1 on page 156 and insert 'section 2(9) of the Drug Trafficking Act 1994" there shall be substituted the words "by section 2(9) of the Drug Trafficking Act 1994'. No. 44, in page 156, line 4, leave out from 'by' to 'or' in line 5 and insert 'section 2(9) of the said Act of 1994" there shall be substituted the words "by section 2(9) of the Drug Trafficking Act 1994'. No. 143, in page 158, line 11, at end insert— '(8) This section extends to Scotland only.'. No. 102, in page 158, line 40, at end insert— '(4) In paragraph 19 (enforcement in Scotland of orders made elsewhere in the British Isles)—
  1. (a) in sub-paragraph (5), for the words "and 16" there shall be substituted ", 16 and (subject to sub-paragraph (5A) below) 16A"; and
  2. (b)after sub-paragraph (5) there shall be inserted the following sub-paragraph—
 (5A) In its application by virtue of sub-paragraph (5) above paragraph 16A above shall have effect with the following modifications—
  1. (a) for the references to the prosecutor there shall be substituted references to the Lord Advocate; and
  2. (b) for the references to the court there shall be substituted references to the Court of Session.".'. —[Lord James Douglas-Hamilton.]

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