§ 3.58 p.m.
§ Report received.
§ Clause 1 [Release on conditions.]:
The MINISTER of STATE, SCOTTISH OFFICE (The Earl of Mansfield) moved Amendment No. 1:
Page 1, line 9, leave out ("except in the special circumstances mentioned in") and insert ("subject to").
§ The noble Earl said: My Lords, I beg to move the amendment standing in my name and that of my noble friend Lord Mackay of Clashfern. This is purely a drafting amendment and no change of substance is involved. A very similar amendment was originally auggested by the noble and learned Lord, Lord McCluskey at Committee stage and I am particularly glad to take this opportunity to demonstrate our readiness to consider, and where appropriate accept, improvements in the Bill proposed by noble Lords. 887 This amendment would make the Bill shorter and better.
The DEPUTY SPEAKER
My Lords, I must inform the House that, if this amendment is agreed to, I cannot call Amendment No. 2.
§ Lord McCLUSKEY
My Lords, I am happy to acknowledge that the Government have moved in the right direction here and improved the Bill. I need not rehearse what was said at the Committee stage. I acknowledge what they have done and I acknowledge, therefore, that my Amendment No. 2 becomes unnecessary.
§ On Question, Amendment agreed to.
§ [Amendment No. 2 not moved.]
Lord McCLUSKEY moved Amendment No. 3:
Page 1, line 17, leave out ("necessary") and insert ("reasonable").
§ The noble and learned Lord said: My Lords, I can deal with this amendment briefly because there was a similar amendment at the Committee stage (No. 5 of that Marshalled List) and I pointed out to the Committee that in my view there was no certain way whereby it could be secured that a person released on bail appeared at the appointed time at every subsequent diet of the case, and equally there was no certain way that a person released on bail could be prevented from committing an offence while on bail. I felt—if I may quote from a phrase frequently used by the noble and learned Lord the Lord Chancellor on other occasions—that the Government had rather "over-egged the pudding" here. I invited the Government to look at the matter again. This amendment removes the word "necessary" and substitutes the rather less strict word "reasonable" and will enable the Government to word Clause 1(2) in a rather better way. I should like to hear what the Government have to say. I beg to move.
§ The Earl of MANSFIELD
My Lords, the noble and learned Lord moved his amendment in terms which were commendably brief. As he wants to know 888 what the Government have to say, I shall have to be a little less brief in order to fulfil his wish. The amendment would provide that the conditions imposed in the granting of bail should be those considered "reasonable" rather than "necessary" to secure the aims of bail. I have listened to the noble and learned Lord and, as he invited us to do at the Committee stage, we have looked at the matter again. I am bound to tell him that I remain unconvinced as to the merit of his amendment. I say that for a variety of reasons.
First, the words that appear in the Bill are designed to set a stiff test for the conditions which may be imposed by the court. As the clause stands, the court (and of course I include the Lord Advocate) would be prevented from imposing conditions which they do not consider necessary to secure the aims of bail in the case of the accused. The amendment would allow the court to impose any "reasonable" conditions even where it did not think them necessary in a particular case. In the Government's view this would be wrong. The system of release on conditions should be geared to achieving the aims of bail (as set out in Clause 1(2)) with the minimum of conditions which in the court's view are needed. The noble Lord's amendment could clear the way for a proliferation of conditions, all of them reasonable in themselves, but many of which might be unnecessary. In our view, this would only serve to confuse the accused and obscure those conditions which the court might have thought necessary. We want the new system to work fairly and effectively and, to that end, we think the test of necessity is the right one for the court to consider when imposing conditions. If there are too many conditions, then the risk increases of there being relatively trivial, technical breaches of bail conditions which would have to be looked into even if not prosecuted.
The noble and learned Lord mentioned that the court cannot know what conditions are necessary to secure that the aims of bail can be achieved. I accept that. But the court can surely be asked to form a view as to what conditions are necessary and to act upon that view. The sanctions exist in Clause 3 to deal with those cases where the court's judgment is shown by 889 events to be wrong and the accused breaches one or more of the conditions of bail imposed.
My Lords, in this context all conditions which are necessary must also be reasonable but not all reasonable conditions will be necessary in every case. The amendment proposed could lead a court to encumber an accused with wholly unnecessary conditions of bail and could jeopardise the effectiveness of the new system. I hope that the noble and learned Lord will reflect upon what I have said and possibly see fit not to press his amendment.
§ Lord McCLUSKEY
My Lords, the noble Earl is to be congratulated. His explanation this time was considerably more convincing than it was the last time. It would be even more convincing if the clause were now to read:The conditions which the court imposes shall be only such as the court considers necessary".However, this is a matter which properly lies within the Government's discretion. I do not propose to seek to divide the House and I therefore beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 4.5 p.m.
Lord MACKAY of CLASHFERN moved Amendment No. 4:
Page 1, line 19, leave out ("including every continuation of a diet").
§ The noble and learned Lord said: My Lords, I should like to explain Amendments Nos. 4, 7 and 9 together. The substantive point is contained in the third of these amendments, Amendment No. 9, which would provide for the Bill that the word "diet" is to be interpreted as including any continuation of a diet.
§ As now drafted, the Bill would require a person on bail to appear at the appointed time at every diet. If "diet" does not include each and every continuation of a diet an accused might argue that his obligations under bail were discharged when he appeared on the first day of his trial. If he absconded when the trial was adjourned from day to day there might be doubt as to whether he was liable to the penalties in Clause 3 for failure to appear. He would, after all, have appeared 890 at the appointed time for the diet and although Clause 1 refers specifically to continuation of diets, Clause 3 does not. The Government are anxious to ensure that there should be no doubt that in such a case the accused would be liable to the penalties provided for failure to appear. Were doubt to remain, courts might order an accused to be held in custody during his trial where they would otherwise have been prepared to allow him to remain on bail and that would be quite undesirable.
§ The third of these amendments would provide a suitable general interpretation for "diet" for the Bill. The first amendment deletes words which would then be redundant. Since Clause 9 inserts new subsections into Section 296 of the Criminal Procedure (Scotland) Act 1975, it is necessary to include a specific parallel definition of diet in that section and the second amendment, to Clause 9, achieves this. I beg to move.
§ Lord McCLUSKEY
My Lords, may I simply acknowledge that the Government have in fact closed what might have been a loophole. I also congratulate the noble and learned Lord on the spirit in which he has done this. As I understand it, the purpose is to make it easier for the court to grant bail because it removes doubts about whether or not the person will be liable to the penalty if he answers to his bail on the first occasion but not on a subsequent occasion. For both these reasons, I commend this amendment to the House.
§ On Question, amendment agreed to.
§ 4.9 p.m.
Lord McCLUSKEY moved Amendment No. 5:
Page 2, line 13, after ("is") insert ("the only course").
§ The noble and learned Lord said: I shall, my Lords, move this amendment as briefly as possible because this was a matter that we discussed at Committee stage. I shall be explaining in relation to the next amendment rather more fully what the background to the Bill is. In essence, under the Bill, money bail is to be largely abolished. The Thomson Committee recommended that when I was in government, and the Government 891 of which I was a Member agreed with that and our Bill sought to do the same.
§ In the present instance, however, the Government have decided to save money bail for a few very special cases. We do not now quarrel with the principle of that, and I simply offer these words as a further way of ensuring that money bail is limited to the one, two or three special cases which the Government have in mind Surely the Government could accept this amendment as one which tightens up these provisions to prevent the proliferation over the years of money bail in types of cases where the Government do not intend money bail to continue. I beg to move.
§ The Earl of MANSFIELD
My Lords, I am at one with the noble and learned Lord in his desire to, as it were, guide the courts into the position where they impose a requirement to deposit money as a condition of release only in the very small number of cases where this is appropriate. Nevertheless, I cannot support his amendment because I do not think it is as felicitously worded as perhaps he thinks.
In our view, the present clause achieves that aim and in fact the noble and learned Lord's amendment is ill-conceived. I say that because the imposition of a condition to deposit money is governed by the provision relating to conditions generally. Therefore Clause 1(3) must be read with Clause 1(2). A court is only permitted to require a deposit of money if it considers it a necessary part of the conditions to secure the aims of bail and appropriate to the special circumstances of the case.
With respect, I think this is a more desirable test than that proposed by the noble and learned Lord. Clause 1(3) makes it quite clear that where the court or the Lord Advocate imposes a requirement that the accused deposits a sum of money, the requirement is imposed as one of the conditions of release on bail. That is why I argue that the amendment is misconceived. You cannot, on the one hand, say that a requirement to deposit money is the only appropriate courseand, on the other hand, that such a condition is only one among a number of conditions. That is the effect of the noble and learned Lord's amendment and, with respect, I must say that it is illogical.
892 In so far as the amendment might be held to have any effect, despite its illogicality, this could be unfortunate. The Bill will replace our present reliance on money bail as the only condition of release by a new system of conditions. A deposit of money will not normally figure as a condition of release at all and, if it does, it will, as I have said, be only one among several conditions. So I fear that the noble and learned Lord's proposal might lead a court to believe that it could impose a requirement to deposit money as the only condition of bail. The Government consider that a deposit of money may be necessary in certain cases but we are anxious to secure that it does not continue to be the single pre-requisite of bail in any case and, where it is required, it should be as one condition among a number. I suggest, therefore, that the amendment of the noble and learned Lord would suggest the opposite.
In conclusion, I would submit that the amendment is fundamentally incompatible with Clause 1 and, if enacted, would at best make a nonsense of Clause 1(3) and, at worst, lead to the return of money bail in virtually its present form, on one interpretation of the clause as it would then read. I hope that, for these reasons, the noble and learned Lord will be satisfied perhaps and withdraw his Amendment.
§ Lord McCLUSKEY
My Lords, I am certainly going to withdraw my Amendment, but I will not accept that I am such a bad draftsman that attempt after attempt of mine must produce all the dire consequences that have been predicted both at Committee stage and now. However, I do hope that somehow the courts, when they come to consider their proper duty in relation to the application of subsection (3) of this clause, will restrict themselves to the types of cases that have been mentioned in these proceedings and in another place. In that hope, I will, with your Lordships' leave, withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 [Breach of conditions]:
§ 4.14 p.m.
Lord McCLUSKEY moved Amendment No. 6:
Page 3, line 32, leave out ("2 years") and insert ("6 months").
§ The noble and learned Lord said: My Lords, this is an important Amendment and in moving it it will be necessary for me to take a little longer than I took with the others. However, the background can be explained very briefly. The present law in Scotland is that all crimes in Scotland excepting murder and treason are bailable. In the majority of bailable crimes the accused applies for, and is allowed, bail by the court. He is not, as used to be the position in England, required to find recognizances and sureties for large sums. What happens at present is that when the court grants bail the accused person is liberated from custody when he produces the actual sum of money fixed by the court. The average amount of bail in the mid-1970's, when the matter was the subject of some study, was £14. So it is hardly surprising that the vast majority found the bail money within a very short period of time.
§ Having found the money and been liberated, if the accused turns up for his case he gets his money back. Being Scots, 94 per cent, turned up to get their money back. If the accused did not turn up the court could order forfeiture of the bail money, although it was not automatic. It is obvious, therefore, that the average penalty for not turning up for your trial in Scotland was the loss of £14 or thereabouts: a monetary penalty. That was an even more modest penalty than it looks on the surface because it was usual, even if the accused turned up for his trial, for his lawyer to collect the bail money and apply it as a modest contribution towards the lawyer's fee. Accordingly, the accused knew when he turned up that he was not going to get his own money back. He knew in fact, when he lodged his bail money, that he had kissed it goodbye for ever. So the penalty in reality was no loss of anything at all—he lost it whether he turned up or not.
§ This Bill abolishes that system. Money bail is virtually abolished and is replaced under this Bill by a system of release upon conditions. We are all agreed about that. We are all agreed partly because the Thomson Committee, which I mentioned earlier—a distinguished committee which sat in Scotland and heard evidence from all interested parties over a period of years —recommended the abolition of money bail. In the last Parliament, we introduced a Bill which included provisions rather 894 similar to these. That Bill fell with the dissolution of Parliament and the new system contained in this Bill is that accused persons may be released upon certain conditions and, if they do not comply with those conditions, they may be subject to a penalty. If they commit an offence for non-compliance with the conditions they may be penalised.
It is right that I should remind your Lordships of what was said by the Thomson Committee in relation to this matter. I need not read it all, but from paragraph 11.20 of the Thomson Report I quote:
We are of the view that failure to appear in court at the appointed time without reasonable cause should be an offence. Non-compliance with any of the other conditions should also be an offence. Any such offence should be punishable by imprisonment for a period not exceeding six months or by a fine".
That is the penalty proposed by Thomson: six months or a fine. I would remind your Lordships that in England, under the Bail Act of 1976, the maximum penalty is 12 months. I do not say there is an exact parallel between the two systems but the maximum penalty in England is 12 months in a jury case. In the Bill which we introduced, in Clause 7 the maximum penalty was proposed as 3 months' imprisonment and a maximum fine of £200.
§ This Bill follows the Bill we introduced in all respects save one in this regard; that is to say, in this clause, Clause 3(3) in solemn proceedings—in other words, in jury proceedings—the maximum fine can be any sum at all (it is an unlimited amount) and the penalty for not turning up for a diet in that type of case is proposed as 2 years' imprisonment—that is 2 years which may be in addition to the penalties for the offence itself.
§ In my submission, that is wholly bad: first, because, as I have demonstrated, I hope, it is a very significant jump indeed from the present penalty that may be imposed. It is too much. Secondly, it massively exceeds the recommendation by the committee sitting under the late Lord Thomson, from which I have quoted. Thirdly, it gives the sheriff the power to send a man to prison for a total of four years—two for the offence itself and two for non-compliance with the condition that he should turn up at a diet for his trial. I acknowledge that under the Bill the sheriff has to treat these as two separate 895 matters, but it gives him the power to impose four years' imprisonment on two occasions on the one offender in respect of an offence and a failure to turn up for his trial for that offence.
§ The powers of the sheriff are a very vexed and contentious question. It will fall to be debated by this House in the near future when the Government introduces the Criminal Justice (Scotland) Bill. I believe that it is a matter which must be looked at in a very wide context. It is wrong to give to the sheriff these additional powers by the back door and to allow these powers to be increased almost without debate. For these reasons, I believe that this amendment ought to be accepted.
There is another reason of which I must remind the House. The only real argument which was put forward by the Government on the last occasion was one which astonished me and which roused the noble Lord, Lord Mackie of Benshie, to intervene in the debate. If I may quote from col. 32 of the Committee stage— and I shall quote as little as I have to— on that occasion the noble Earl said this:
The sentence in respect of failure to appear may even be the only sentence which can be imposed if, in certain circumstances, no trial can take place. For instance, I can illustrate it in this way; because an accused may fail to surrender to his bail witnesses may die and, bearing in mind the rules of corroboration, the case may well not be provable against him. He may never be able to be tried or, if he is,"—
and I ask your Lordships to pay particular attention to these words—
he may inevitably achieve an acquittal simply and solely because he has in fact failed to turn up. In these circumstances—and this is a matter upon which we place particular reliance—if the seriousness of the matter is sufficient, it is only right that he should be liable to be sentenced to a substantial period of imprisonment".—[Official Report; 20/11/79.]
The core of that argument is plain. It is this: that if he does not turn up for his trial and if later he is acquitted of the charge which he would have had to face, the court might blame the acquittal on the fact that evidence which was available on the first occasion was no longer available on the second. That is in substance what the noble Earl said, and again I quote him:
He may never be able to be tried or, if he is, he may inevitably achieve an acquittal simply and solely because he has in fact failed to turn up".
§ How could the court ever proceed to fix a sentence upon that basis? The court can never be shown that he was acquitted simply and solely because some evidence was lost in the interval. It would be a wholly unwarranted, unsubstantiated and unproved speculation as to what the effect of that missing evidence would have been, had it been available. Yet that was the noble Earl's basis for giving to the court power to impose a heavy sentence of two years.
§ May I remind your Lordships that the onus of proof in relation to this offence shifts to the accused. I specifically asked the Lord Advocate about that on the previous occasion and he acknowledged that the burden of proof in relation to "reasonable excuse" rests upon the accused man. I would invite your Lordships to reject this extraordinary argument of which I have reminded your Lordships.
§ May I deal with another aspect of it. Your Lordships may ask: Supposing an accused, facing a serious charge, deliberately fails to turn up. He decides to escape trial on that charge and deliberately decides not to turn up, and he is not caught until a much later date when the evidence against him has been materially weakened so that he cannot be prosecuted or, if he is prosecuted, cannot be convicted in respect of the charge—the kind of case which the noble Earl envisaged. Is six months a sufficient penalty? The answer to that, in my view, is, No, it is not a sufficient penalty. Indeed, two years may not be a sufficient penalty.
§ Let me give your Lordships an example. Supposing a man is accused of a brutal rape and assault upon an elderly woman and that as his trial approaches he becomes aware of the fact that she is dying; she is going to be available at his trial but she will not survive for much longer. So he deliberately jumps his bail and does not turn up for his trial; and the evidence of the woman is lost. One might ask whether in these circumstances six months is a sufficient penalty. The answer is, certainly not. But two years may not be enough, either.
§ The remedy is that in those circumstances the Lord Advocate can charge the man with the common law offence of an attempt to defeat the ends of justice. 897 That entitles the court to take into account the whole circumstances and—what is very important—it puts the burden of proof where it ought to be in a serious criminal case; namely, upon the Crown. So if the Crown can prove these other circumstances and the man can be convicted of an attempt to defeat the ends of justice, the court, having the whole circumstances before them, can then decide upon the appropriate penalty—which may, of course, be considerably more than two years.
§ I brought forward that argument more briefly at the Committee stage and asked the noble Earl to think about it. I sought the advice of the Lord Advocate to confirm that in that type of case a common law charge of this kind could be brought, and I hope that he can confirm that this is so. If I am right about this—if those circumstances can be covered by a common law offence of the kind that I have outlined and the penalty can exceed two years—then it seems proper that in a case of simply failing to turn up for the jury trial, whatever disruption may be caused thereby, the appropriate penalty ought to be that which is recommended by the Thomson Committee; namely, a penalty of six months. In my submission, six months for that kind of case is enough. Surely Lord Thomson and his committee were right and we do not need to go to these extraordinary lengths.
§ May I make a special appeal to those who sit on both the Cross-Benches and the Liberal Benches, and indeed to those of independent mind in any part of the House, that unless this amendment is passed today the matter will be finalised today. If your Lordships were to pass this amendment, the Government might then seek to compromise. They could do so in another place and bring it back here. They could compromise with the English maximum, which is 12 months. This is the only way to give the Government a further opportunity to think about the matter. For these reasons, I beg to move Amendment No. 6.
§ Lord MACKAY of CLASHFERN
My Lords, as the noble and learned Lord, Lord McCIuskey, said in speaking to this amendment, its subject-matter is very important. Speaking for myself—and I can also speak for my colleagues in this 898 matter—we have given very careful consideration to what was said when the matter was previously before your Lordships. I should also like to say that if this Bill passes into law it will be part of my responsibility to seek to administer it. In the past, at least, it has been the practice for the court very largely to follow the Crown decision upon whether or not bail should be granted. That is a reflection of the confidence which the court had in the exercise of the Crown's discretion in this matter, the Crown having a very full knowledge of the background to the case in reaching its decision. We are speaking here, of course, about practice in the past, not about practice under my responsibility—and for quite a period in the past during which the noble and learned Lord, Lord McCluskey, had responsibility for these matters. Therefore, in deciding what to do over the grant or refusal of bail, the court will be very much guided by the way in which the Lord Advocate and those administering the prosecution system in Scotland on his behalf seek to dispose of these matters.
The question now before your Lordships is: What is the appropriate maximum sentence for the offence of failure to appear at a solemn diet? We are not dealing here with a minimum or a prescribed sentence. We are dealing with a maximum; and within that, right down to zero, the court can operate. And in any sentence which the court imposes there will be a right of appeal. It is one of the most important features of any system that there should be a sufficiently large amount of discretion available to the court to enable the court to discriminate between relatively bad cases on the one hand and relatively trivial cases on the other. So that, speaking generally, if one can trust the courts—and I believe that the Scottish courts are worthy of trust—merely to increase the power of the court does nothing of itself. The court will exercise its discretion within those limits and, in my submission, wisely.
I should now like to try to look at the matter at a number of stages. The system with which we are dealing is one which in all ordinary cases will have as the only sanction for non-appearance the penalties with which we are now dealing, because the noble and learned Lord, 899 Lord McCluskey, and ourselves are at one in thinking that money bail or a deposit of money should be used only in the most exceptional cases. Therefore, none of us wants in effect to add to the penalty the forfeiture of money, so the fine or imprisonment will be the only sanction available in practically every case.
The second point I wish to mention is that we are dealing here with solemn proceedings; these are proceedings which take place before either a sheriff, if it is in the sheriff court, or a judge in the High Court of Justiciary with a jury, if it is in the High Court, and, if the accused person fails to turn up for his trial the result is that first of all the judge will be there to deal with the matter where the accused has not appeared. Secondly, there will be summoned a number of potential jurors— ordinary members of the public brought along to perform their duty as citizens. The number of jurors that is at present required is 15 and of course, in making arrangements for bringing jurors along to the court, the court must have regard to the contingencies—the peremptory right of challenge, and so on—which exist in our law and therefore a considerably larger number than 15 are required to be cited in order that a jury of 15 may be secured.
In addition to the jurors in a solemn case there will very likely be a substantial number of witnesses, many of them ordinary members of the public brought in to take part in the administration of justice because they happen to have been connected with the case. I need not remind your Lordships that it is becoming extremely difficult these days to secure the co-operation of the citizen because of the difficulties which are often involved in giving evidence. One difficulty that I have heard a great deal about since I have taken office is that people are cited to appear before a court as witnesses in a matter in which they are performing a civic duty and then they find, for reasons which have nothing to do with them, that their attendance is not required that day and they must return at some later date. Therefore, I attach a great deal of importance in this connection to the inconvenience that would be caused to ordinary members of the public if an accused person does not turn up.
900 In addition to ordinary members of the public, there are often police witnesses and police time is involved. In addition, one has to think of the legal representatives for the prosecution and the defence, the staff of the court, the officials of the court and the court accommodation itself. In matters of this sort in Scotland (and I think possibly also here), the system is to provide for relatively fixed diets for solemn matters and the more absolutely fixed diets we can have, the better, and I am sure that the noble and learned Lord himself would agree with that because that was a matter that he worked hard to achieve when he was in office. I strongly support it and I am doing my best to follow his policy in that matter. So one wants to have definite diets and therefore if the accused does not appear the result would be that the public resources would be, certainly for part of the day at best, wasted.
So, in my respectful submission, the failure to appear at a solemn diet is an extremely serious matter from the point of view of the dislocation it can offer to ordinary members of the public brought in to the judicial process in order to help in the discharge of their civic duties and I am sure that we want to do nothing to make that more difficult for ordinary citizens because we depend upon their co-operation to have a successful judicial system in this matter.
The next point I should like to mention is this: In considering whether or not to grant bail an important point must be what are the effects if the accused fails to appear? If one looks at this from the point of view of sentence, it might appear that the Government were seeking to go for something severe. Indeed, that was the burden of some of the comments that were made when this matter was discussed earlier, but there is another way of looking at it and this is the way that I would invite your Lordships to look at it because it represents my personal philosophy. It is highly desirable that bail should be available to the untried prisoner as freely and as fully as possible and accordingly, within reason, the more severe the sanction or abuse—because that is what we are talking about—the more one could grant bail responsibly.
I am trying to look at this from my point of view. If I have agreed, as the Lord Advocate, in a particular case that 901 bail should be granted and the result is that very severe dislocation is caused to members of the public in the circumstances that I have already outlined, the question is whether my decision to agree to bail was a reasonable one. In my respectful submission, the stronger the sentence that is available, not actually in a particular case but as a maximum to the court, the more responsible I am in that situation in allowing bail more freely.
To bring this just one step further on; as we were saying earlier I think it is necessary that bail should be available from day to day once a trial has started. The practice in Scotland hitherto has generally been that in a serious case once the Crown has led all its evidence and the defence case starts, bail is withdrawn. Hitherto that has been the normal attitude of the prosecution and, generally speaking, the court goes along with that and bail is withdrawn because by that time serious consequences are building up in the whole loss—not only of the inconvenience which I mentioned earlier but all the earlier proceedings in the trial.
So far as I am concerned, I would very much like to see the practice of granting bail extended so that instead of withdrawing it when the Crown case was finished, in some cases at least (and indeed in as many cases as it was reasonably possible to do) the person who was being tried was allowed to continue on bail until the very end, when the jury's verdict would be returned. I believe that would be a considerable improvement on the present system. It would allow the person, if he was living at home, for example, to return there at night to be with his family, if that was his domestic situation at the time when his own case was being presented. Surely that is something which we should not lightly deny to an accused person. I believe that, if one is going to be responsible in granting that kind of extension of the present practice, one must be reasonably certain that the sanction against abuse, if that kind of approach is taken, should be reasonably severe. I think it would be much easier to justify as a responsible decision if the sanction were reasonably severe; in other words if the factors that an accused person had to weigh against absconding were reasonably strong in favour of turning up.
Of course, one can see that if a trial had gone on for some considerable time a lot of 902 public money, witnesses' time, jurors' time, judicial time and so on would have gone into the trial, and the whole thing would be lost if the accused person failed to turn up and the trial had to be abandoned in consequence. So far I have spoken only of the case in which there is one accused, but one absentee could well be sufficient to cause the loss of the whole trial. So that also has to be taken into account. We are looking here for the maximum penalty; we are imposing a maximum, and we are, therefore, in my submission, right to look at the very worst possible case.
The noble and learned Lord has pointed out, perfectly correctly, as we would expect, that it would be quite possible in certain types of case to go for a common law offence of attempting to pervert the course of justice or something of that sort in circumstances such as he envisaged. It is obvious that, in every case where the accused fails to turn up and the trial has to be abandoned and then brought forward later, delay is possibly a cause of the loss of evidence, and that is really the point that my noble and learned friend was dealing with. The noble Earl mentioned this also on the last occasion when he was stating our position. The situation, so far as I can see, is that it is a very real possibility that when a trial does not go on on the date fixed for it there will be a loss of evidence, and that loss of evidence might be sufficient to make all the difference to the result. That is an important factor to be weighed by the prosecution and the court in deciding whether bail is to be granted. I would strongly urge upon your Lordships that within reason anything which tends to prevent the loss of evidence is something that your Lordships should support.
Your Lordships are not penalising anyone who is innocent in this matter. The person who does not abuse the system will not be affected whether the penalty is six months, two years or 20 years. It is the person who abuses the system who will be subject to this maximum penalty that the court can impose. Surely it is reasonable to give the court a reasonably wide discretion, in order that there may be in front of an accused person, when he is considering whether to turn up, a clear statement of a fairly substantial penalty to which he may be liable. The Lord Advocate could certainly prosecute on 903 common law grounds in the sort of situation that the noble and learned Lord, Lord McCluskey, set out. But it has been the law in Scotland for a long time that that is possible, even where the statutory offence has a maximum penalty attached to it. If you can bring the circumstances under a common law offence, you can, as it were, circumvent— I do not use that in any sense that would suggest that the Lord Advocate would do anything improper—can produce a situation where the common law powers of the court (in the case of the High Court these powers are very substantial) could be invoked instead of the statutory powers, which are always limited.
The policy of my predecessors—and the noble and learned Lord, Lord McCluskey, was a participant in that—has been over the years to reduce that tendency so far as possible. If I may give an example, it used to be common practice to indict a driver who caused death by bad driving not only under the statutory offence of causing death by reckless driving but also under the common law offence of culpable homicide. But the practice has been to refrain from doing that, and, in my submission, that is a proper direction for practice to take. I would submit that where the facts come under a statutory offence it is the statutory offence that one should, generally speaking, use. Therefore, I submit to your Lordships that it would be right that the statutory offence should give as the maximum which the court could impose the power to consider the worst possible case, including such circumstances as the noble and learned Lord envisaged. I would hope that your Lordships would feel able to agree about this matter in the light of the understandings which I have sought to put before you about the way in which it would be desirable that this new system should operate. This is an entirely new departure so far as the law of Scotland is concerned. It is a new system, and I would like to see it operated to the full and as humanely as possible.
Some reference has been made to England, and I speak with diffidence about the position there. As I understand it, in England there is the possibility of a 12 months' sentence of imprisonment, but that is along with the results that can be visited on the surety if the person has 904 not turned up; so 12 months is not the maximum penalty; it is the maximum imprisonment penalty but there are other penalties as well. I would submit, therefore, that that particular point is not a strong one. I think there may also be differences in relation to the amount of dislocation that would be caused; for example, the number of jurors cited in England and Wales as against Scotland may make a difference in that regard. I would hope that in the light of these assurances the noble and learned Lord would feel able to agree with us on this point, because I believe it would be very desirable that your Lordships should be of one mind on this matter.
§ Lord WIGODER
My Lords, I wonder whether the noble and learned Lord would be kind enough to give one small piece of information to an ignorant foreigner in these matters. If an accused person has failed to surrender to his bail and is then arrested and tried in a sheriff court or in the High Court under Clause 3(3) for having failed without reasonable excuse to appear, who determines whether there was a reasonable excuse? Is it the judge or the jury?
§ Lord MACKAY of CLASHFERN
My Lords, if the situation is under subsection (3) the tribunal of fact would be the jury under the direction of the judge. The offence which the prosecution has to prove is that the accused person has failed to turn up without reasonable excuse. The burden of proof is upon the Crown except in relation to the matter of excuse. In other words, the Crown has to prove that the accused did not turn up; once that is established it is for the accused to explain that he had a reasonable excuse for not doing so. But the tribunal of fact is the jury in that sort of situation.
§ Lord McCLUSKEY
My Lords, if I might deal with that last point, the only point in the case is whether or not the man had a reasonable excuse. It would be plain beyond peradventure that he had not turned up on the first occasion. The only point at issue is, did he have a reasonable excuse? Therefore, the onus in the only matter at issue rests upon the accused. That takes me back to the argument that the noble Earl, Lord Mansfield, advanced at Committee stage 905 and which came out in a modified but none the less steely form from the noble and learned Lord the Lord Advocate. It is the argument that he put this way: if the Crown could not produce the evidence at the second trial that it was willing and able to produce at the first trial that might make all the difference to the result.
What I want to know is this—and I have had no satisfactory answer to this question. If the Crown comes forward with a charge of this kind and all it has to prove is that the accused did not turn up on the first occasion, and the accused has to try to show that he had reasonable excuse and he does not prove that he had a reasonable excuse, then the accused falls to be found guilty of the offence. What investigation can there possibly be to determine whether or not this is one of what the Lord Advocate described as the relatively bad cases? There is no evidence on the matter to enable the court to decide whether it is a relatively bad case or not. There is no way in which the court will be invited to read the evidence of the deceased witness or the witness who has emigrated to Brazil or to Southern Ireland and who cannot now be brought back.
So the very matter which makes the difference between the bad case, the relatively bad case and the not so bad case, is not a matter at issue in the trial, and the court, when it comes to consider the question of sentence, has no way of knowing. Does the Lord Advocate envisage that the judge will, at the end of a trial, ask the prosecutor, "Is this a bad case?" and the prosecutor will say, "It
§ is a terrible case", and the judge will then say, "Very well, two years"? That is no way to conduct a criminal trial,
§ I shall not go through the other matters. I accept, of course, that it is disgraceful that jurors and witnesses should be inconvenienced and that public expense should be caused. In England that is met with 12 months' imprisonment. The Lord Advocate said that the maximum here was two years, and suggested that in England it was 12 months plus the fact that the sureties might be penalised. The maximum here is two years plus an unlimited fine. So, there is no difference in that respect between the position in England and Scotland.
§ May I remind your Lordships of a point that I believe is of great importance? Your Lordships may feel that the Government have not properly reflected on this matter. It was not discussed at any length at all, I think, in the other place. The arguments have varied in reply to my point and they have not produced any justification at all for departing from the unanimous recommendation of the distinguished committee under the noble Lord, Lord Thomson. This is the only way that we can get them to think again and I invite your Lordships to accept the amendment. I beg to move.
§ 4.51 p.m.
§ On Question, Whether the said amendment (No. 6) shall be agreed to?
§ Their Lordships divided: Contents, 56; Not-Contents, 81.907
|Airedale, L.||Gregson, L.||Ritchie-Calder, L.|
|Ardwick, L.||Hale, L.||Sainsbury, L.|
|Aylestone, L.||Hatch of Lusby, L,||Scanlon, L.|
|Banks, L.||Henderson, L.||Seear, B.|
|Blease, L.||Hooson, L.||Shepherd, L.|
|Boston of Faversham, L.||Houghton of Sowerby, L.||Shinwell, L.|
|Bruce of Donington, L.||Jacques, L.||Stewart of Alvechurch, B.|
|Byers, L.||Janner, L.||Stewart of Fulham, L.|
|Castle, L.||Jeger, B.||Stone, L.|
|Collison, L.||Kaldor, L.||Strabolgi, L.|
|Cooper of Stockton Heath, L.||Llewelyn-Davies of Hastoe, B.||Underhill, L.|
|Crowther-Hunt, L.||[Teller.]||Wade, L.|
|Cudlipp, L.||Lloyd of Hampstead, L.||Wallace of Coslany, L.|
|David, B.||McCluskey, L.||Wells-Pestell, L. [Teller.]|
|Davies of Leek, L.||Mackie of Benshie, L.||White, B.|
|Donaldson of Kingsbridge, L.||Meston, L.||Wigoder, L.|
|Galpern, L,||Mishcon, L.||Winterbottom, L.|
|Gardiner, L.||Murray of Gravesend, L.||Wootton of Abinger, B.|
|Gordon-Walker, L.||Peart, L.||Wynne-Jones, L.|
|Abinger, L.||Ferrers, E.||Nugent of Guildford, L.|
|Airey of Abingdon, B.||Fortescue, E.||O'Brien of Lothbury, L.|
|Alanbrooke, V.||Gainford, L.||Orr-Ewing, L.|
|Alexander of Tunis, E.||Galloway, E.||Rankeillour, L.|
|Alport, L.||Garner, L.||Redmayne, L.|
|Amherst of Hackney, L.||Gibson-Watt, L.||Reigate, L.|
|Ampthill, L.||Glasgow, E.||Ridley, V.|
|Balerno, L.||Glenkinglas, L.||St. Aldwyn, E.|
|Belstead, L.||Gray, L.||St. John of Bletso, L.|
|Berkeley, B.||Gridley, L.||Sandys, L. [Teller.]|
|Bessborough, E.||Hailsham of Saint Marylebone,||Selkirk, E.|
|Burton, L.||L. (L. Chancellor.)||Sempill, Ly.|
|Caccia, L.||Hanworth, V.||Skelmersdale, L.|
|Cathcart, E.||Hatherton, L.||Spens, L.|
|Clitheroe, L.||Hawke, L.||Strathclyde, L.|
|Cockfield, L.||Home of the Hirsel, L.||Strathspey, L.|
|Cork and Orrery, E.||Ilchester, E.||Sudeley, L.|
|Craigavon, V.||Inchyra, L.||Thorneycroft, L.|
|Cullen of Ashbourne, L.||Kilbrandon, L.||Trefgarne, L.|
|Davidson, V.||Kinnoull, E.||Trenchard, L.|
|de Clifford, L.||Long, V.||Tweedsmuir, L.|
|Denham, L. [Teller.]||Lucas of Chilworth, L.||Vaux of Harrowden, L.|
|Drumalbyn, L.||Lyell, L.||Vickers, B.|
|Dundee, E.||Mackay of Clashfern, L.||Vivian, L.|
|Ellenborough, L.||Mansfield, E.||Westbury, L.|
|Elliot of Harwood, B.||Massereene and Ferrard, V.||Young, B.|
|Emmet of Amberley, B.||Mowbray and Stourton, L.|
|Exeter, M.||Northchurch, B.|
On Question, Motion agreed to.
§ Clause 9 [Police liberation or detention of children arrested]:
§ 5 p.m.
The Earl of MANSFIELD moved Amendment No. 7:
Page 9, line 8, after ("diet") insert ("(including any continuation of the diet)").
§ Clause 10 [Sittings of sheriff and district courts]:
§ Lord McCLUSKEY moved Amendment No. 8:
Page 9, line 38, at end insert—
("(5) Whenever a court holiday is prescribed to occur on a Friday or a Monday with the result that the court would not sit on any of three consecutive days, the sheriff principal shall make arrangements for a court within the sheriffdom to sit at least once during such three days to entertain applications for release on bail.").
§ The noble and learned Lord said: My Lords, I beg to move Amendment No. 8. Again, this was a matter which was fully explained in Committee and for that reason I can deal with it very briefly indeed. As your Lordships will appreciate 908 this is a different matter from the matter we have dealt with hitherto, the question of bail. The position simply is that because the courts are no longer to be required to sit on a Saturday persons may find themselves in prison awaiting their first appearance before the court for a period extending from a Friday night until a Monday morning, instead of, as hitherto, from Friday night until Saturday morning. Therefore, because of the abolition of the Saturday morning sitting, the period in prison awaiting first appearance before the court is extended.
§ We accept that as a regrettable necessity, but if one also adds to that two-day period at the weekend a holiday which occurs on a Monday, one finds that the person arrested on a Friday night has to wait until Tuesday before he gets his first chance of appearing before the court and applying for liberation. Equally, if the holiday occurs on a Friday and he is arrested on a Thursday, he has to wait until Monday, three whole days.
§ I am not suggesting that my drafting is necessarily perfect here. What I do suggest is that there is a problem here which the Bill does not properly solve. I invite the Government to accept this particular amendment as being one way of solving it.
§ Your Lordships may recall that, regrettably, earlier this year we had a strike 909 in Scotland which affected the courts, and during the period of the strike emergency arrangements were made, which worked very well, to deal with emergency cases. Surely some such arrangements could be devised by the sheriff principal in order to deal with those persons who have to face a three-day wait before they can make their first appearance before the court. That is all I ask, and I beg to move this amendment in order to achieve it.
§ Lord MACKAY of CLASHFERN
My Lords, the Bill as it stands contains ample power for the court to make the necessary arrangements because the court is entitled to sit on any day for the disposal of criminal business. Therefore, any special circumstances can be the subject of special arrangements. I would respectfully suggest to your Lordships that the matter is better left that way, with the sheriff principal in special circumstances having the responsibility of making special arrangements rather than attempting to lay down such rules as are before us. The rules that the noble and learned Lord has suggested could give rise to many practical difficulties; for example, the sheriff having a court in Aberdeen to deal with people who may be in much remoter parts of his sheriffdom, such as Benbecula or Stornoway. I respectfully submit that discretion is the better arrangement here.
§ Lord McCLUSKEY
My Lords, I do not propose to press this amendment to a Division. I regret that something has not been done in the Bill, but I hope and trust that the sheriff principals in Scotland will read what the noble and learned Lord has said here and what was said in Committee, and that when they find this situation arising—as it may rarely do, but it will arise from time to time— they will make special emergency arrangements under their general power in order to prevent the detention in custody for unduly long periods of people who have not yet faced any charge. With your Lordships' leave, I beg to withdraw this amendment.
§ Amendment, by leave, withdrawn.
§ Clause 11 [Interpretation]:
§ Clause 13 [Short title, commencement and extent]:
The Earl of MANSFIELD moved Amendment No. 10:
Page 10, line 19, leave out from ("instrument") to end of line 20.
The noble Earl said: My Lords, in effect, this amendment is in response to one proposed by the noble and learned Lord, Lord McCluskey, in Committee. He took exception to the opening words of the first clause of the Bill:
After the commencement of this Act
on the grounds that different parts of the Act might be commenced on different days. This amendment would provide that the whole Act would be brought into effect at once on a day fixed by the Secretary of State by statutory instrument. The Bill includes a reform of bail arrangements, and the abolition of mandatory court sittings on Saturdays, and because they are closely linked and we do not contemplate bringing one part of the package into effect without the other, the words which the amendment would delete are unnecessary and, as the noble and learned Lord has pointed out, conflict with the beginning of Clause 1. I beg to move.
§ Lord McCLUSKEY
My Lords, this is the last time that I shall be on my feet. I should like to acknowledge that the Government have met the criticism that I made, and I respectfully say so, in the most sensible way. With your Lordships' leave —because I shall probably not be available when this Bill comes up for its Third Reading—may I take advantage of this last occasion when I am speaking on Report to thank the Ministers for their courtesy and help and for meeting some at least of my points. I regret that they did not meet the main point, but I trust that the new system will work as well as we all hope it will, and I trust that in due course the House will give the Bill a Third Reading.