HC Deb 20 January 1997 vol 288 cc620-1

'.—(1) After section 67 of the 1995 Act, there shall be inserted the following section— "Failure of witness to attend for, or give evidence on, precognition

  1. 67A.—(l) This section applies where a prosecutor has obtained a warrant to cite a witness for precognition and has served a citation for precognition on the witness.
  2. (2) Where this section applies, a witness who—
    1. (a) fails without reasonable excuse, after receiving at least 48 hours notice, to attend for precognition by a prosecutor at the time and place mentioned in the citation served on him; or
    2. (b) refuses when so cited to give information within his knowledge regarding any matter relative to the commission of the offence in relation to which such precognition is taken,
    shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale or to a term of imprisonment not exceeding 21 days.".
  3. (2) In section 140 of the 1995 Act (citation)—
    1. (a) in subsection (1), after the words "for" there shall be inserted the words "—
      1. (a) the citation of witnesses for precognition by the prosecutor, whether or not any person has been charged with the offence in relation to which the precognition is taken; and
      2. (b)"; and
    2. (b) subsection (3) shall cease to have effect.'.—[Lord James Douglas—Hamilton.]

Brought up, and read the First time.

Lord James Douglas-Hamilton

I beg to move, That the clause be read a Second time.

The new clause would introduce some useful procedures to assist the operation of the courts in relation to precognitions.

Mr. John McAllion (Dundee, East)

May I be the first to congratulate the Minister on belonging to a family with such sound political judgment. I understand that his big brother the duke attacked the Tory party this morning and I am sure that that was welcome news throughout Scotland. Even better news was that his younger brother is a member of Scotland United and a strong supporter of a Scottish Parliament.

The Minister has stated that he sent a letter to hon. Members explaining that, because of the changes brought about by the legislation, there were likely to be more precognitions under summary proceedings and that, as a result, some witnesses would fail to attend. He wrote that it was therefore important that the prosecutor should be able to impose fines on those who failed to attend. Why has the defence not been given the same facility as the prosecutor?

Lord James Douglas-Hamilton

If a serious crime is being heard and key Crown witnesses fail to attend, the prosecutor has a right to ask the police to collect them and those people have to explain their non-attendance to the court. That practice has operated for years. The new clause deals with the fact that there is no direct statutory punishment for failing to attend a citation for precognition under solemn procedure. Under summary procedure— where there are few precognitions—a provision for punishment exists. That is an anomaly, and we feel that there should be consistency between summary and solemn procedure in such cases. The new clause would make it an offence to fail to attend for precognition in solemn procedure.

Mr. Menzies Campbell (Fife, North-East)

The point made by the hon. Member for Dundee, East (Mr. McAllion) was that this right is not available to the defence. Very often during the preparation of a proper defence, solicitors charged with that responsibility have great difficulty in persuading witnesses to make themselves available for precognition. The very sensible point put by the hon. Member for Dundee, East is that if one can go to court to get a warrant on behalf of the prosecution in relation to a witness who will not present himself for precognition, why should not a similar right be available to the defence?

Lord James Douglas-Hamilton

If the hon. and learned Gentleman had served on the Committee and tabled an amendment, I would have been only too happy to consider it. It is necessary to consult the judges on such issues and to come to a considered view, and there may be time for the matter to be considered during further debates on the Bill. In a serious case—such as a murder case—the prosecutor has the right to make such a request to the court if any key witnesses do not turn up.

Mr. McAllion

Nobody is questioning the right of the prosecution to seek such a warrant. We are asking about the right of the defence. I take it from the Minister's last answer that it will be possible to table an amendment during the Lords' consideration of the Bill to give the same right to the defence, and that the Government will accept it.

Lord James Douglas-Hamilton

Section 291 of the Criminal Procedure (Scotland) Act 1995 already contains the procedure for defence witnesses. I recommend that the hon. Member for Dundee, East and the hon. and learned Member for Fife, North-East study that section. If they are dissatisfied with its terms, we can consider the matter further.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

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