§ 3.58 p.m.
§ Consideration on Report resumed.
1174
§
The Earl of MANSFIELD moved Amendment No. 5:
Page 2, line 10, leave out from ("person") to ("not") in line 19 and insert (" mentioned in—
§ The noble Earl said: My Lords, I have already spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.
§
Lord ROSS of MARNOCK moved Amendment No. 6:
Page 2, line 23, after ("(4)") insert ("(a)").
§
The noble Lord said: My Lords, this amendment is simply to test the Government's willingness to go a little further. Do not let us think that we are being all that kind to potential witnesses, because under Amendment No. 5 if they either fail, without reasonable excuse, to give their name and address or give a false name and address, they will be guilty of an offence and liable on summary conviction to a fine of up to £50. Now, just to make things right, we say, "You are going to be liable to arrest, without a warrant as well" because it says so in subsection (5):
A constable may arrest without warrant any person who he has reasonable grounds for suspecting has committed an offence under subsection (4) above ".
Subsection (4) includes both the suspect and the potential witness. I do not know why, having given this whole clause a going over, the draftsmen have left the words "grounds for suspecting" in the Bill. There is no question of suspicion—if a man does not give his name and address, he does not give his name and address. There is no suspicion about that. Suspicion can only possibly arise
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on whether one has given a false name and address.
§ If that offence is committed—and these are the only offences—a constable may arrest without warrant. Therefore, when the Government come to reconsider the amendment that was withdrawn by the noble Lord, Lord Foot, I hope they will consider the fact that they must give the information to the potential witness that if he does not give his name and address he is liable to be arrested without warrant as well as being liable, thereafter, to be charged and fined £50. I wonder how much co-operation we shall get from the public when they realise what all this involves. A person may be in a hurry for some reason—he may want to catch the train—and decide not to give his name and address. Although we have taken away the power to detain by the use of force, there is no greater use of force than the power to arrest. No doubt force could be used in arresting. We do not need to say it here. It virtually means "thanks for nothing" for what the Government did in respect of the amendment they have accepted.
§ I hope that they will think again about this business. You could get a position where there is somebody detained suspected of having been concerned in some crime and there is a witness there, and actually the suspect could get away. He gives his name and address, his explanation, and away he goes. But the witness who refuses to give his name and address can be arrested on the spot and later fined. It is a bit nonsensical.
§ While we are anxious to get the co-operation of everyone concerned in respect of playing the good citizen, I do not think this is the way to do it. Ministers have to face up to what is involved. You give a new power to the police, and then you have to back that up with these new offences and penalties. I do not know that it will work. I do not think what we have to do to effect all this is desirable. You get far more by co-operation and trust in the public than by this kind of thing. I beg to move.
§ 4.2 p.m.
§ Lord FOOTMy Lords, if it does not embarrass the Government too much, I should like to say that I am on their side in this issue.
§ Lord ROSS of MARNOCKA good lawyer.
§ Lord FOOTI take the view that once you establish a principle—and the Government have adhered to this up to now—that the moral duty of the citizen to give information to the police should at any rate in this respect be turned into a legal duty, and that a citizen asked to give his name and address by a policeman should be under a legal duty to do that (and, of course, I do not like that assumption, but accepting it, and that is what is in the Bill), it seems to me entirely unreasonable to make that an offence and yet deprive the police officer of the power to arrest somebody who in fact commits that offence.
The ordinary circumstances in which this matter is going to arise are surely these. A policeman sees an offence being committed in some public place, or sees that some offence has just been committed in a public place. He wants to obtain the name of some person standing by who he thinks has seen what went on. If my earlier amendment is carried, he turns to that person and says, "Look, I suspect that an offence of assault has just been committed", or whatever you like, and then he says, "I have a legal right to ask you to give your name and address, and I have to tell you that if you do not give it to me you will be committing an offence". Supposing the person at that stage says, I am not interested". What is the policeman to do? If the person can just walk away and the policeman has no right to detain him by force, what can he do? The law is set at defiance. There is nothing worse in my view—even speaking as a lawyer, though I accept that rebuke—than to have laws that cannot be properly enforced. Therefore, I hope that the Government will stand firm on this. But I equally hope that at some later stage in the Bill they may reconsider the whole business of making the failure of a witness to give his name and address an offence at all.
§ The Earl of MANSFIELDMy Lords, I take considerable comfort from what the noble Lord, Lord Foot, has said. In fact to a degree he shot my fox. Between Committee and this stage we gave considerable thought to the position of witnesses under this clause. I think we 1177 have gone as far as we can to restrict to a minimum the application of the clause to witnesses. After all, the requirement on a potential witness is to give his name and address to a constable when asked to do so, and that is hardly onerous. Nevertheless, the information may be vital to the investigation, and hopefully to the solving of a crime.
Most of us, at any rate, are agreed that if the witness refuses to give his name and address there must be some sanction upon him, so that in fact one ensures that the reluctant witness does not easily escape the duty laid upon him to identify himself. I would ask the noble Lord, Lord Ross, what he expects a police officer to do if the potential witness is either uncooperative, or facetious. Supposing he gives the name Santa Claus or, dare I say it, the name of a former Secretary of State for Scotland, and an address. What is the police officer to do? Is he just to walk away? There will be no possibility of contacting that person again unless he is individually known to the police officer, and there is no possibility of serving a warrant on him for his arrest. I hope that on reflection the noble Lord will realise that this is an essential part of the legal back-up to the duty which is laid on a person to furnish his particulars in these circumstances, and I hope that he will withdraw his amendment.
§ Lord ROSS of MARNOCKMy Lords, what I sought to do by putting this amendment down is to highlight exactly the implications of making this a legal duty instead of leaving it as a moral duty on the citizen. This is not going to be the law of England; this is the law of Scotland we are talking about.
§ Lord ROSS of MARNOCKMy Lords, the noble Lord is a lawyer and he knows that what I am saying is right. We are talking about the law of Scotland. I am not concerned about "in due course". All that is hypothetical. He is laying down the law, or the Government or this House are laying down the law, so far as Scotland is concerned. I am not a lawyer. I am just a plain simple man in 1178 the street. I am the kind of person who is going to be caught in the toils of this kind of thing.
The trouble is that the policeman is not even going to ask my name and address; he has probably already got it written down. But I can conceive of situations where people just do not want to get involved in this way. I think that my noble friend Lord Galpern would be able to tell us of a considerable number of people in Glasgow who will know just exactly what is involved, and they are not going to be there when the policeman approaches to ask them.
This is not the only clause that affects witnesses. My plea is that you will get far more by seeking the co-operation of witnesses rather than by bludgeoning them in this way. It does not end there, because we have another clause where they are going to be interviewed not only by the prosecution but also by the defence. It will in many cases be a difficult thing to get involved in this as a willing witness. So in order to do this you create the offence, and then you have to create the back-up. All the difficulties that the noble Earl put to me he must put to himself, and he should put to himself, before he embarks on this new legal duty placed on witnesses.
I certainly have no desire to go forward with this particular amendment, but I hope that your Lordships realise what you are doing. This will create difficulties in the future. I realise that my own Government had this particular clause in their Bill. I had no responsibility for that; I was only a humble Back-Bencher. But if you ask my advice, I hope that the Government will look at this provision carefully and long. They have done so much redrafting here, and it is a terrible Bill. I do not know who the draftsmen were. I object to drafting and legislation by reference. As soon as this Bill is finished we shall need to have a consolidation, otherwise we shall not understand it. It is a pity that the Lord Advocate was not in another place about thirty or forty years ago. He would have been familiar with a speech of mine. I see that some noble Lords are familiar with it, and they have made the same speech themselves. It is a terrible Bill from this point of view. It is going to be looked at again, and so I hope he will look again at 1179 this clause and some of the other clauses. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 [Detention and questioning at police station]:
§ The DEPUTY SPEAKER (Lord Aberdare)My Lords, in calling Amendment No. 7, I have to point out that if this amendment is agreed to, I cannot call Amendments Nos. 8 and 9.
§ 4.10 p.m.
§
The EARL of MANSFIELD moved Amendment No. 7:
Page 2, line 40, leave out from ("above") to end of line 43 and insert ("he shall not thereafter be detained, under that subsection, on the same grounds or on any grounds arising out of the same circumstances.").
§ The noble Earl said: My Lords, a number of noble Lords tabled amendments in Committee with the purpose of prohibiting redetention in respect of the same offence or a related offence. This amendment has therefore been tabled in order to meet the concern expressed by noble Lords on that occasion.
§ It may help if I explain the intention of the amendment as drafted. The word "grounds" in this amendment takes us back to subsection (1), which provides that the power of detention can be exercised only where the constable has "reasonable grounds" for suspecting a person of an offence. What will amount to reasonable grounds for suspicion will of course depend on the particular circumstances of each case, and a variety of factors, such as those listed by the Thomson Committee at paragraph 3.19 of their report, may be involved. In prohibiting redetention on the same grounds, the amendment goes further than it would than by prohibiting detention in respect of the same suspected offence, since more than one particular offence might be suspected on the same grounds. The amendment however goes beyond this to prohibit redetention "on any grounds arising out of the same circumstances". The effect of this is that where the police have had regard to certain grounds or factors in detaining a suspect —for example, his suspicious demeanour 1180 near a shop which had been broken into—and subsequently release him, they may not redetain him because some other ground or factor (for example, a witness's description) has come to notice in connection with the same incidents and gives cause for further suspicion. Other courses—such as arrest, if there was now sufficient information to charge—would remain open, but the option of detention, having been exercised once, would disappear. I hope that the noble Lords who originally put forward amendments on this matter, and the House as a whole, will welcome this amendment as an important safeguard for individuals who have fallen under suspicion. I beg to move.
§ Lord MISHCONMy Lords, the House will sympathise with somebody who has to follow a plain and simple man in the street, but I do so apologising on his behalf for the fact that my noble and learned friend Lord McCluskey is not able to be in the House today; he wanted very badly to speak to many of the amendments on Report, but urgent business has kept him away. I mention his name particularly in regard to this because he was, among others, extremely concerned about the power that was given under the clause as originally drafted for redetention if cause were shown and if a justice so certified. The amendment obviously meets the objection that was taken to the clause in Committee and on Second Reading, and I know that my noble and learned friend would have wanted in his usual gracious terms to have thanked the noble Earl for the amendment and for the way in which he has dealt with the clause.
§ Lord FOOTMy Lords, not only have the noble Earl and the Lord Advocate introduced a new reading of the clause but, as I read it, it goes even further and reads even 'better than anything that was proposed in Committee from this side of the House. It is only right to acknowledge that this is one more admirable example of the way in which noble Lords on the Government Front Bench have listened to the pleas made to them, and we are all hoping that we shall continue this stage of the Bill in the same happy spirit.
§ The Earl of MANSFIELDMy Lords, I thank both noble Lords for their kindly acceptance of the amendment, particularly in relation to what the noble Lord, Lord 1181 Mishcon, said about his noble and learned friend Lord McCluskey. Of course, he and I have in more senses that one changed positions by virtue of the accident of fate, if I may call it such, on 3rd May, and, whereas on Second Reading—this was reinforced by the noble Lord, Lord Mishcon—he wanted me, in his own graphic terms, to "Chuck it, Mansfield" and not to proceed with a particular part of the Bill, I am now able, pointing to him in his new chairman's role, to say, "Hail, Caledonia!" We continue to do our best in this House. I think I need go no further.
§ On Question, amendment agreed to.
§ [Amendments Nos. 8 and 9 not moved.]
§ 4.16 p.m.
§
The Earl of MANSFIELD moved Amendment No. 10.
Page 3, line 1, leave out ("When making a requirement under subsection (1) above the constable") and insert ("At the time when a constable exercises the power conferred by subsection (1) above, he").
§ The noble Earl said: My Lords, this is a drafting amendment which is necessary to remove the reference in Clause 2(4) to a requirement made under subsection (1). Subsection (1) no longer contains any reference to a requirement, as the noble Lord, Lord Foot, pointed out in Committee. I beg to move.
§ Lord FOOTMy Lords, I thank the noble Earl, Lord Mansfield, for having made this small drafting amendment; he was already aware of the error on the last occasion and it was not necessary for me to draw attention to it. However, I should like to take this opportunity of asking him a question not very dissimilar from one I asked in relation to some earlier admenments—namely, what is the position if a constable fails to comply with the requirements, as it were the preliminaries, before taking a person to a police station?
As the clause will read with the amendment, when a constable exercises the powers conferred by subsection (1), he shall do certain things. If one looks back at subsection (1), one finds that the powers he is there able to exercise are twofold as regards time. The first occasion when he exercises the power is when he takes 1182 a person to a police station or other premises. Later, he exercises the second part of the power when he detains that person there. I think there is a clear distinction in time between the one process and the other, and this is my question: suppose the constable, when he decides to start taking the person to the police station, fails to do the things that he is required to do under this clause—that is, to inform the person concerned of his suspicion and the general nature of the offence which he suspects has been or is being committed?
Suppose he fails to do that but nevertheless takes the person to the police station, and then goes all through these complicated procedures by which that person can be detained there in custody for up to six hours, can be interrogated, can have his fingerprints taken and can be searched. Are all those measures which are then taken, the whole of that process, invalidated in law by reason of the fact that the constable failed to give the warnings and information which he should have given when he started to take the person to the police station?
This is similar to the question I asked the noble Earl earlier, and I daresay his reply will be, "Subject to further consideration, yes, indeed; all these subsequent proceedings would be invalid, and indeed unlawful, unless the policeman had strictly complied with the routine requirements of this clause". If that is right—and the noble Earl may be right about that—is it not likely to present a series of cases of enormous difficulty where people have been taken into detention illegally, fingerprinted illegally, searched illegally and held illegally for six hours? If that is the situation, is not the public anxiety which has been expressed about the whole business of detention very much reinforced? I should like to ask the noble Earl what view he presently takes of the possibility of instances such as I have mentioned occurring if the clause, as amended, goes through.
§ 4.20 p.m.
§ The Earl of MANSFIELDMy Lords, a number of different consequences may follow if a police officer takes someone into custody under Clause 2 of the Bill. I should like to take the detention part of the question first. I do not suppose 1183 that for the purposes of the actual six hours there will be any effect as a result of what the police officer does or does not do at the time that he asks the supect to accompany him to the police station (to quote a neutral phrase), or, under this clause, requires him to. I do not suppose that that will have any effect at all upon what subsequently happens: that is to say, the questions that he may be asked, the finger-printing, and the other matters to which the noble Lord has drawn attention.
If at the end of that time the person is then arrested and charged—and the process under Scottish law will then be complete—what happened at the time he was first taken into custody would not, I think, of itself vitiate his subsequent conviction, if that were proper under the evidence that was adduced at his trial. May I repeat this point, which is a cardinal point of Scottish law; it is a cardinal point of English law, too, but in a rather different way. It is that there is the overriding consideration of fairness. Therefore, if the procurator fiscal thought that something had happened in the street when it should not have happened, or that something had not happened when it should have happened (as the noble Lord has put it), I have no doubt that, first, the procurator fiscal would take account of such, and, secondly, the judge or the sheriff at the trial would do exactly the same. I do not think that I can answer any more fully on that side of the matter. If, when the person is released back into society, a question of unlawful detention arises and he wishes either to take civil proceedings or to raise matters under disciplinary procedures against the police, the question of whether or not the provisions of the clause had been complied with might or might not have a bearing on such proceedings. I hope that that reassures the noble Lord to some extent.
§ Lord HARMAR-NICHOLLSMy Lords, having listened to this very interesting question and the answer, I wonder whether what my noble friend says has been borne out in fact. We have an example of what I mean in cases of people who are breathalysed. At the end of the day there has been no doubt, in terms of the urine and blood tests, that the person was above the limit, but in some instances 1184 the whole matter has fallen to the ground because the proper procedures were not followed before the stage when it was known whether the person was above the limit. So I should have thought that my noble friend's answer did not quite cover the point any more than it was covered in the breathalyser instance that I have just mentioned. The mistake at the beginning could be not condoned simply be cause the result of the tests seemed to prove that the decision to arrest was the right one.
§ The EARL of MANSFIELDMy Lords, with the leave of the House perhaps I can answer that point. My noble friend, with respect, is not comparing like with like. In breathalyser cases something untoward might occur at the beginning of procedures and it might be held, for instance, that police officers not in uniform were not authorised to administer the breathalyser test. The entire course of the trial and subsequent conviction is then vitiated. Many extremely tortuous points have been raised in such instances by defence advocates, particularly in the English courts—I raised a few myself in my time—and they have resulted in triumph and acquittal for the client. However, here we are talking about something entirely different; we are concerned with the power of detention under Clause 2 of the Bill. My noble friend will see that we are concerned not with part of the offence or the trial, but with a stage at which the police are given, in certain circumstances, a right of detention which they do not have at the moment. We debated this at very considerable length both at Second Reading and in Committee, and it is a matter which the Government seek to have regularised in statutory form.
§ Lord MISHCONMy Lords, I wonder whether I dare try to help the noble Earl and possibly other noble Lords who are worried about this clause. If, instead of helping him, I say something with which he disagrees, I am sure he will say so. Is not the answer in regard to this clause as follows? If evidence comes out regarding a wrongful use of procedures as set out in the clause, then the noble Earl's amendment which we shall he taking later—which says that the whole clause is without prejudice to the existing law of evidence—would mean that the matters that came out in evidence would most 1185 likely be inadmissible, but otherwise the whole character of the trial would be unaffected. Is that not really the answer?
§ The EARL of MANSFIELDMy Lords, may I by leave address the House again, and in all humility remind your Lordships that this is the Report stage, not the Committee stage. I am grateful to the noble Lord. As I have already said twice, the overriding principle in all Scottish trials is the matter of fairness. If the procurator fiscal or the judge was convinced that what had or had not happened in the street made the matter unfair, I have no doubt that that would be reflected in the result of the trial, if there was one.
§ On Question, amendment agreed to.
§ 4.27 p.m.
§
The EARL of MANSFIELD moved Amendment No. 11:
Page 3, line 5, leave out ("purpose of") and insert ("reason for").
§ The noble Earl said: My Lords, in moving Amendment No. 11 I propose, with the leave of the House, to speak at the same time to Amendment No. 12. These are both drafting amendments which deal with the same point. As drafted, Clause 2(4) requires the suspect to be informed and a record to be made of "the purpose of detention". However since Clause 2(1) makes clear that detention must be for the purpose of facilitating investigations into the offence and into whether criminal proceedings should be instigated, this requirement will have little effect if it is strictly interpreted. It might be regarded as sufficient to recite the wording of subsection (1). The purpose of these amendments is to clarify the clause by indicating what the "purpose of detention" really means in both places where it appears. The amendment to line 5 therefore requires the police to inform the suspect of "the reason for" his detention; this is what is most important from his point of view. The amendment to line 8 requires the police to record "the general nature of the suspected offence". This is what we believe should be formally recorded for future reference. I beg to move.
§ On Question, amendment agreed to.
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§
The Earl of MANSFIELD moved Amendment No. 12:
Page 3, line 8, leave out ("purpose of detention") and insert ("general nature of the suspected offence").
§ On Question, amendment agreed to.
§ The Earl of MANSFIELD moved Amendment No. 13:
§
Page 3, line 10, after (" premises; ") insert—
("( ) the time when the person is informed of his rights in terms of subsection (7) below and the identify of the constable so informing him;").
§ The noble Earl said: My Lords, this amendment requires the police to record both the time when a detained person is informed of his rights under Clause 2(7) and the identity of the officer so informing him. It has been tabled in fulfilment of an undertaking which my noble and learned friend gave in Committee to noble Lords—particularly the noble Lord, Lord Ross of Marnock, and the noble and learned Lord, Lord McCluskey—that we would bring forward such an amendment to give effect to the substance of the similar amendment which they tabled at Committee stage. My noble and learned friend also undertook at that time to give further consideration as to whether the Bill should require the police to invite the detained person to sign the record. Further consideration has been given and we have come to the conclusion that it is unnecessary to legislate on this. It will, I understand, become a matter of police practice in appropriate cases. Of course, in many cases and for a variety of reasons the suspect will refuse to co-operate in this way, and I do not think that any particular significance could be attached to a refusal to sign. Equally, no great significance could be attached to the fact that the record has been signed. The suspect might claim that he had been intimidated. Therefore, I would prefer not to make this a statutory requirement at all. I beg to move.
§ 4.31 p.m.
§ Lord MISHCONMy Lords, I wonder whether I may at once thank the noble Earl for the consideration which he and the noble and learned Lord the Lord Advocate have given to the submissions that were made at the Committee stage, and indeed on Second Reading of the Bill, in regard to this matter. However, could I revert to the remarks that he made 1187 as to certain matters being left to a code of practice and not incorporated in any enactment? With the leave of the House I would speak at this moment, at least partially, to Amendment No. 17, since that may in fact save the time of the House. Your Lordships will see that in Amendment No. 17, in addition to the safeguards of which the noble Earl has spoken, there is the inclusion of a requirement that the terms in which the suspect was informed, and his response, if any, thereto, should also be recorded at the time. Furthermore, the noble Earl talked about the difficulty in the event of a refusal by the suspect to sign the record. Of course, the amendment which I shall be dealing with hereafter, No. 17, merely records the necessity to invite him to sign the record.
I would have thought that this detention procedure is such that there should be all the proper safeguards without making the life of the police impossible, which I do not think any reasonable person in this House wants to do. I think the feeling of the House is quite the reverse, in fact, although there must be limitations, and proper limitations, on police power. But one feels that the necessary requirements here are for there to be a proper record of the fact that the suspect was told of his right to keep silent, which is really the subsection (7) point; the fact that he was told and the terms in which he was told should be recorded, and that he should be invited to sign. If he does in fact sign, then it is a complete record; if he refuses the invitation to do so, then quite obviously the statutory requirement has been satisfied by the invitation.
I hope the noble Earl, who has gone quite far in introducing these safeguards in response to the invitation to do so that was made to him at earlier stages of the Bill, will be able to decide that it is possible to include these other two requirements. Of the two requirements, the one that I would wish to emphasise, quite frankly, if the noble Earl is prepared to concede only one (although I hope he will concede both), is the requirement that the terms in which he was informed and the response of the suspect should indeed be recorded.
§ Lord DRUMALBYNMy Lords, I should like to ask the noble Lord this 1188 question. If the detainee refuses to sign, how can anybody know whether he had been invited to sign? What proof can there be?
§ Lord MISHCONMy Lords, I can speak a second time only with the leave of the House, I believe, but, with the leave of the House, I will try to answer. There are many occasions, of course, when the police record the caution that they gave to a witness, and so on. This is merely an invitation. If the suspect says he does not want to sign, then the officer concerned will obviously record the fact that he was invited to do so and did not do so. But if he does in fact sign, then the whole of the safeguard procedure is completed and there is at least prima facie evidence of the consent of the suspect to the whole procedure, and of it having been properly applied.
§ The Earl of MANSFIELDMy Lords, I am not really going to speak to Amendment No. 17, although I take the noble Lord's point that his reasons are very similar. I do not think I can really go very much further than I have gone. I think one must start from the premise that the police are likely to do what they are required to do in the interests of the detained person in the proper form, and there is really no reason why they should not. They are versed in the procedures already, and one hopes, and indeed one expects, that they will go through these procedures in the right way and in the right order. One has to ask oneself: What is gained by the signature of the detainee at the foot of the form? If he agrees subsequently with what happened—in other words, if he agrees that his rights were pointed out to him and that everything happened fairly and properly—then he will not worry as to the record and what has been put upon it. If he does not agree, if he says he was treated harshly or that the police acted unfairly or failed to go through the proper procedures, then, as I have tried to point out, the fact that his signature appears at the foot of the form will not entitle any court to say, "Ah!, yes, but you have signed the form", although no doubt it would be put to him; because, as I have said, he would merely say that he was intimidated and told that he would not be bailed, for instance, until he did sign it. For all these reasons—and I have reiterated them 1189 at perhaps too great length—we do not think that there is any point in having this particular requirement written into the Bill in statutory form, and for the reasons that we have given we prefer the Bill to remain as it is.
§ On Question, amendment agreed to.
§ Lord MACKAY of CLASHFERN moved Amendment No. 14:
§
Page 3, line 16, at end insert—
("Provided that this paragraph shall be without prejudice to any existing rule of law as regards the admissibility in evidence of any answer given.").
§ The noble and learned Lord said: My Lords, your Lordships will remember that in Committee the noble and learned Lord, Lord Wheatley, suggested that some clarification should be given of the relationship of the power to ask questions to the existing law of evidence, and we have proposed this amendment to make clear that the existing law, including the requirements of fairness, to which my noble friend Lord Mansfield has referred, will apply to any answers which are given as a result of the exercise of this power. I beg to move.
§ Lord MISHCONMy Lords, this amendment in fact fulfills the wishes of the noble and learned Lord, Lord Wheatley, as well as, of course, of my noble and learned friend Lord McCluskey, and for that I am obliged.
§ On Question, amendment agreed to.
§ 4.38 p.m.
§ Lord FOOT moved Amendment No. 15:
§
Page 3, line 29, at end insert—
("( ) All questions put to the person under paragraph (a) of subsection (5) above and all answers made by him to such questions shall be recorded on tape and no evidence of such questions and answers shall be admissible in evidence in any subsequent proceedings except as recorded on the tape and the transcript thereof.").
§ The noble Lord said: My Lords, I put forward this amendment with some little misgiving because I should explain and admit from the outset that this amendment is in precisely the same form as an amendment which I moved in Committee. I understand that it is permissible under the rules of the House to move at Report stage an amendment 1190 similar to one moved at Committee, even though it was carried to a Division on that occasion and defeated. I entirely agree that, whatever may be the rules as to what is permitted, it would normally be very undesirable that anybody should go on pursuing an amendment, in spite of its having been turned down, on a second occasion. I do so in this case with, as I say, some misgiving, but nevertheless with some assurance that this matter ought to be debated further than it has been, particularly because of something that was said by the Secretary of State in the other place in reply to a question some week or two ago, to which I shall. if I may, refer in a moment.
§ In order that the purpose of the amendment may be made quite clear, may I say that it refers to the point of time when, under the powers in Clause 2, a person has been taken to a police station and given all the necessary warnings, the police then having the right to interrogate him. This amendment is concerned to try to make it the law that that process of interrogation, the questions then asked and the answers then given, if there are any, shall be recorded on tape in order that there can be an objective record of what takes place. I referred just now to the Question and Answer from the Secretary of State in the other place on 6th February 1980. I am referring to column 476. I understand that one should not quote verbatim anything said in the other place but I think it permissible for me to say that Mr. Dewar asked the Under-Secretary of State—
§ The EARL of MANSFIELDMy Lords, I hesitate to interrupt the noble Lord. He is entitled to quote verbatim from Members of the Government. Perhaps I may suggest that he does so in order that we get it right. I hope he will not take that as an offensive request.
§ Lord FOOTMy Lords, I am obliged, I am glad to know I can do it. I do not want to misinterpret. I only wanted to quote the final question and answer. Mr. Dewar asked:
Will the Minister give an undertaking that he will not implement the increased police powers of detention, and the interrogation that would follow from them, until tape recording in police stations is available? Will he recall that in connection with that, the present Solicitor-General for Scotland, then acting on the Opposi- 1191 tion Front Bench on the previous Criminal Justice (Scotland) Bill, gave some favourable notice to the suggestion that that part of the new Bill, if and when it becomes law, should not be implemented until tape-recording is available?To that. Mr. Rifkind replied:We are also anxious to see whether these tape-recording experiments will work, but I cannot give that particular assurance to the hon. Gentleman. The question of detention and the question of tape-recording are two separate issues. We shall consider each on its own merits. We hope that both will be implemented if the experiment proves to be a success".I welcome that so far as it goes but, in my humble opinion, the view that these new processes of detention and interrogation are not linked up intimately with the question of achieving a proper record of the interrogation is entirely misconceived. I move this amendment again on this occasion not with the intention of pressing it to a Division, not with the intention of rehearsing the arguments which I addressed to the House on the last occasion, but because I am persuaded (and I remain of the view) that the failure to provide for an objective record of what takes place in the process of interrogation is a vital defect in Clause 2.May I remind your Lordships of what we are doing under Clause 2? We are, first, creating an entirely new police power, something that we have not known before—that is, the legal right to take somebody into detention for a period of up to six hours when he is only in the position of a suspect. That is new not only to Scottish law but to English law, too. The second thing is that, during that time, the police are empowered to search the suspect, to take his fingerprints and so on and, most important of all, to interrogate. During that same time the individual concerned is held incommunicado.
Under Clause 3, he has the right, in certain circumstances, to have the fact of his detention at a police station passed on to a solicitor and to one other person; but he has no right to call for the solicitor to assist him or to speak to him. Up to six hours he is held incommunicado in the hands of the police. During that same time, there is no way as matters stand at the moment in which there can be an objective record made of the questions put to him and the answers he gives; although it is quite clear that, subject to the ordinary rules of evidence, the answers that he gives to the questions on that 1192 occasion can be given in evidence in subsequent proceedings. The final characteristic of this new process is that the only record which is going to be made of what takes place in that process of secret interrogation is the record which happens to be made by the police.
I do not suppose it will be disputed that this new procedure allows the possibility—especially in those circumstances of secret interrogation with no objective record—of grave abuses. That is recognised by the other provisions of the clause, because the other safeguards, as it were, which have been written into this clause—some of which we have been discussing—only serve to emphasise the importance that the Government rightly attach to seeing that this new procedure is set about with satisfactory safeguards. All sorts of safeguards are provided under this clause. The suspect must be informed of the police constable's suspicions; he must be informed of the general nature of the offence which it is suspected has been committed. Then he must be informed of the reasons for his detention and then all these matters must be duly recorded. including the place of his detention, the general nature of the offence and the time of his arrival and of his departure, if he departs at all. Finally, under the amendment we have just been discussing, there has to be recorded the time when he was informed that he was under no obligation except to give his name and address and the name of the constable who gave him that warning.
Why have all these safeguards been inserted in this clause? Is it not because the Government and the Thomson Committee rightly recognise that if you are going to create this new, novel, unheard-of power for the police to engage in secret interrogation of an individual who is utterly deprived of any assistance for a period of up to six hours, then it must be set about with the most careful of safeguards? Why is it that these safeguards have been thought to be necessary? First, because, plainly, under this new, secret process there is a danger of grave abuse. But there is another aspect of the matter which I would like to draw to the Government's attention. Where a person is detained in those circumstances, when he is wholly in the hands of the police, he is at an enormous disadvantage.
1193 With the leave of the House I should like to quote a short passage from the Thomson Committee's report which is, itself, a quotation from part of the judgment of Lord Justice-General Cooper in the case of Chalmers v. Her Majesty's Advocate in 1954. The passage I want to quote is contained on page 30 of the Thomson Report. What the Lord Justice-General was talking about at that time was the circumstances of a person who is suspected of an offence and has been taken to a police station, is in the hands of the police and is being interrogated.
What he said was this:
However convenient the modern practice may be"—.that is the practice of taking a person to the police station and interrogating him in that way—it must normally create a situation very unfavourable to the suspect. In the eyes of every ordinary citizen the venue is a sinister one. When he stands alone in such a place confronted by several police officers, usually some of high rank, the dice are loaded against him, especially as he knows there is no one to corroborate him as to what exactly occurred during the interrogation, how it was conducted or how long it lasted ".The only thing which is included in this Bill which bears upon that is that we have now included a provision that there shall be recorded how long it lasted. None of the other apprehensions which were expressed by the Lord Justice-General on that occasion are met in this Bill in any sort of way.I have already referred to the safeguards that have been written in. It seems to me that the absence of some objective record constitutes a glaring omission. None of the safeguards which I have quoted goes to the queston of getting a correct and objective record of what took place during the period of interrogation. It deals with everything else. It deals with what he must be told when he arrives; it deals with what must be recorded when he arrived, and all the rest. But there is nothing in this clause which affords him any protection whatever as to what goes on during the process of interrogation. That glaring omission is the more glaring, I suggest, because the Thomson Committee itself precisely and emphatically said that this power of detention ought to be subject to the objective recording on a tape.
1194 I quoted on the last occasion one or two passages from the Thomson Committee Report in order to bear that out. I will only trouble your Lordships with one today. They were dealing with the safeguards that ought to be written into this new power of detention and interrogation. They said this:
Interrogation of suspects in police stations must be recorded on tape. We deal with this more fully in paragraph 7.21. Tapes cannot easily be provided for questioning which occurs outside a police station. Our object"—and these are the words to which I would draw your Lordships' particular attention—is to provide a safeguard for persons being interrogated in the privacy of a police station and also to protect the police against unjustified allegations".They went on later in their report so far to emphasise the importance that they attach to the objective record by way of a tape recorder that they came to the really quite astonishing conclusion that if the tape recorder in the police station broke down, or there was some other misadventure so that it could not be produced, then no other evidence about what took place should be admissible in evidence. That was the degree of importance which the Thomson Committee placed upon the objective record.Not only did the Thomson Committee say that they regarded this as an essential safeguard, but they went on to say, as the noble Earl and the noble and learned Lord, the Lord Advocate, will know, that after having considered all the problems, they thought that there were no practical problems in this matter which were not insurmountable.
I referred on the last occasion to some of the evil consequences which flow from the failure of our courts, whether it is in England or Scotland, to have an objective record of what goes on in a police station when somebody is being interrogated. It is not only that time after time courts are occupied with a trial within a trial in order to try and ascertain what took place, and what was said and done. ft is not only that, and not only the enormous waste of time and money that is involved in that unnecessary procedure; but what is perhaps even worse is that it gives the opportunity to the police to "doctor" the record, to put in inaccurate evidence as to 1195 what was said. It provides the opportunity, when there is no need for the opportunity. Furthermore, as the Thomson Committee themselves pointed out, it lays open the honest policeman, who is giving honest evidence as to what took place, to the humiliating business of being cross-examined as if he was a false witness intending to pervert the course of justice.
These are very great evils. There is only one way in which they can be avoided; that is, by adopting the unanimous recommendation of the Thomson Committee—and on that account I am sure it will appeal to the noble Lord, Lord Ross of Marnock—that this system of detention should be underpinned by the demand for an objective record.
I would only add one last word. If we are going to have this system of detention—and noble Lords will know that from these Benches we have expressed concern about whether it is not going too far, and I am not at all sure that it is not justified as long as one can have satisfactory safeguards—its workability and its acceptability to the public as a whole can only be ensured if one builds in the safeguard of the objective record of what takes place.
What is wrong with the process of secret interrogation behind closed walls, with nobody there to monitor, nobody there to arbitrate, nobody there to make a record except the police themselves who are the interrogators, is that it offends against the old legal maxim, that not only should justice be done but it should be manifestly seen to be done. Justice in the secrecy of the police station will, as I submit, never be manifestly seen to be done unless we can produce some method of making an objective record of it.
I cannot hope—and I do not hope—that the noble Earl or the noble and learned Lord the Lord Advocate will be able to give me any satisfactory answer at this stage, but I dearly hope that they may be able to suggest a word to make us believe that, in the further stages of the Bill through this House and in the other place, that matter may be looked at once again. I beg to move.
§ 4.59 p.m.
§ Lord WILSON of LANGSIDEMy 1196 Lords, I should like to support this amendment. I do not think I can—and I shall not try—commend the amendment more effectively than did the noble Lord, Lord Foot, who moved it. The essential importance of this safeguard of the tape recording of what goes on in the police station was emphasised by the Thomson Committee in its report. But its essential importance has nowhere more graphically been shown than in the words of the Lord Justice-General in the case of Chalmers from which the noble Lord, Lord Foot, quoted. There is everything to be said for this amendment and I hope that it will receive widespread support.
§ Lord MISHCONMy Lords, I hope very much that the pessimistic note upon which the noble Lord, Lord Foot, ended his very effective words to the House will not prove to be justified. There is every reason, I would submit, why the amendment which my noble friends and I support should be accepted by this House. It is not just a question of the Thomson Report, though that is effective enough. If I may add to the quotations from that report, perhaps I may give this passage which appears on page 36 of the second report:
The presence of a tape recorder may upset some persons, but on balance we consider that the vast majority of persons will be reassured by knowing that anything which is said will be accurately recorded. The fact that the police know that the interview is being recorded on tape will tend to reduce the chances of interrogation being conducted with any impropriety".It is not only the Thomson Report but the practitioners in Scotland, represented by the Council of the Law Society of Scotland who, in their own memorandum in connection with this Bill, say very firmly, if I may quote very shortly from their recommendation:If questions are to be put and answered and the answers are to be admissible in evidence, all possible safeguards to the detainee should be provided to ensure fairness. There should be a readily available record of all questions and answers. As to the means of recording, the Council's recommendation is for video taping, failing which, tape recording".It cannot be on the general grounds of economy that the Government could resist a recommendation of this kind, because these days tape recorders are by no means expensive machines. I should like to ask 1197 the Government Front Bench, as I believe would the noble Lord, Lord Foot, and the noble Lord who has just spoken: what can possibly be the reason for refusing to accept this statement? It means there will be a limitation of necessity upon the cross-examination of behalf of an accused, which usually takes a great deal of time, differing from the police report of what is recorded in a notebook or from recollection. It will mean that the court will have reliable evidence before it of what was said. It is a safeguard for the police against suggestions that bullying tactics were used or that trickery was employed in questions that were put to the accused. Therefore, in every way it can only add to the merits of a just trial. I hope very much that this amendment can be supported.
§ The Earl of MANSFIELDMy Lords, as the noble Lord, Lord Foot, said in his opening remarks, we did discuss this amendment fairly exhaustively in Committee and I certainly do not want to go over all the ground I went over on that occasion, when I dealt with, for instance, such matters as the noble Lord, Lord Mishcon, raised as to the cost of the apparatus in question, which has to be designed in such a way that in fact it becomes an extremely expensive piece of electronic apparatus. I really do not want to go over that ground again, not only for that reason but also because I really do not think that we need to do so.
Clause 2, may I remind your Lordships, is not the beginnings of the police state that some critics of this part of the Bill would like your Lordships, and indeed the population at large outside Westminster, to believe. This clause has been introduced in order to regularise the situation which already exists in Scotland, although not in England, by which the police have to rely on a mixture of, as I once said, "bluff and blarney" to enable them to invite persons to accompany them to a police station and there to investigate possible offences. That is the basis of my arguments. This matter has been coloured by what I might call "the Lubianka complex", but it really is not so. This clause is designed to put in something which does not exist and to correct a situation which is by no means satisfactory as it stands at the moment.
1198 I also told your Lordships in Committee that the Government, of course, subscribe to the objective of providing safeguards not only for persons interrogated at police stations, but also for the police. The noble Lord, Lord Foot, said that police officers need safeguards just as much as suspects.
I also said that we were engaged on an experiment—and I told your Lordships how it was going—and I mentioned that the difficulties in the use of tape recorders have proved to be much more formidable than the Thomson Committee had realised when they considered this matter. I said that the experiment is proceeding at Dundee and Falkirk, and once the results of the experiment are known we can then proceed from there. if I may say so in parenthesis, some of your Lordships may by chance have seen the television programme—last week I think it was—showing the premises where these experiments are being carried out and the sort of equipment which is necessary to ensure accuracy and fairness. If he had seen it, I am sure there would be no more talk on the part of the noble Lord, Lord Mishcon, that one could use some sort of little portable cassette recorder for this purpose. It is not at all like that, I can assure him.
§ Lord MISHCONMy Lords, the noble Earl is kind to give way; but really it was not my own report that I was giving about the type of machine that could be used. The Thomson Committee went into this matter very deeply, and this is what they said on page 36:
The cost of tape recording is not prohibitive, the models of tape recorders which we used being marketed at £25 to £75".I am sure the noble Earl is not saying that the noble Lord, Lord Thomson, and the members of his committee were so careless in their judgment of a suitable type of tape recorder that they chose a totally unsuitable one for this purpose.
§ The EARL of MANSFIELDNo, my Lords, I am not saying anything of the sort. What I am saying to your Lordships is that what the Committee said is not holy writ and what has been discovered is that if this experiment is to provide the safeguards we all require and an exact rendering and reproduction of a conversation in a way which I described in Committee as 1199 one which cannot afterwards be falsified by everybody, the machines are much, much more expensive than the illustration provided by the noble Lord, Lord Mishcon. I am sorry, but that happens to be the fact.
If I may go on, so far as the admissibility of evidence is concerned—and this was one of the main planks of the argument put by the noble Lord, Lord Foot, as I understood it—he regaled us with what I might perhaps call "the Old Bailey argument"; and if I do call it that I do so not in any pejorative sense but because that is a good way of describing it. The law on admissibility has been developed over the years by the courts and that will apply to any questioning under Clause 2(5)(a). It does not mean that anything said by a detained person will be admissible in evidence. As I have said on a number of occasions during the passage of this Bill through your Lordships' House, the admissibility of evidence depends on the test of fairness; and that no doubt will be applied. Again in Committee, your Lordships heard the noble and learned Lord, Lord Wheatley, explain that the police in Scotland have developed procedures which have reduced quite considerably the number of complaints about the manner in which statements are obtained; and it is a fact that we do not have in Scotland—at any rate, at all frequently—the kind of scenes which the noble Lord, Lord Foot, illustrated in his remarks.
So I suggest to your Lordships that we should allow the law and police practices to develop in a flexible way meantime, until there are firm results from these tape recording experiments. I have said that the experiments are proceeding. I have also said that they are being conducted with despatch. I have no doubt that, if they are successful, general use will be made of them in interrogation in police stations; although I did, in Committee, remind your Lordships that a great many interrogations of suspects in Scotland will not be in police stations at all, for reaasons which I went into on that occasion.
The noble Lord, Lord Foot, said that he did not intend to press this matter to a Division and, if I may say so, I am glad to hear it. I welcome this further opportunity to debate the matter. I am 1200 sure that my noble and learned friend, and indeed my honourable and right honourable colleagues in another place, will pay attention to the undoubted anxieties of your Lordships; and that, if anything, will, I hope, make the experiment in tape recording proceed even more resolutely and more quickly, perhaps, than it is at the moment. But I must say to your Lordships that, as things stand at the moment, the Government are convinced that we have got it about right and that Clause 2 should be left as it is.
§ 5.12 p.m.
§ Lord HARRIS of GREENWICHMy Lords, I propose to speak very briefly and I wish to say only this. During the period when I was Minister of State at the Home Office in the last Administration, I had something to do with this problem of tape recording, because of the pressure to which the Home Office was then subjected to have tape recorders introduced into police stations in England and Wales; and this is one of the matters which, I know, is being looked at by the Royal Commission on Criminal Procedure.
I approach this matter with a mood of deep scepticism as to whether the existence of tape recorders will achieve the objectives of the noble Lord, Lord Foot, and those who favour them. In England, it is argued that they will end trials within trials. I am very doubtful whether that is true, because, as we know from the evidence of Watergate, tape recorders can be tampered with. If one assumes that there are all kinds of people involved in some form of conspiracy against an accused person, then it is certainly not beyond an accused person to suggest that there has been some tampering with the tape recorder.
Quite apart from that, we also know, though it is often denied by those who favour these experiments, that a defendant, suspect, or whoever it may be, during the course of the tape recording, may make some statement such as "Take that lighted cigarette away from my face", when, in fact, it is total fiction. I therefore do not believe, so far as England and Wales are concerned, that tape recorders would necessarily end trials within trials.
But the noble Lord's amendment would go far further, and indeed he suggested 1201 that his purpose today was to say that if one did not have tape recorders one should not have these new powers. As I made clear on Second Reading, I think that the case for these powers has been clearly made out in most cases. But, certainly, it would be going far too far to suggest that without tape recordings—and, as I have indicated, it is a matter of some speculation as to whether they will achieve the objectives of those who favour their introduction—one could not have these new powers. This would certainly be to go far further than I should be prepared to do.
If I may say so to my noble friend Lord Mishcon, I am bound to say that every time I hear the question of cost raised in your Lordships' House and elsewhere, it is always, I fear, the fact that those who favour change will tend to minimise the cost of the introduction of any new procedure. That was true when the party opposite was in Opposition and I fear that things have not totally changed. It is always suggested that some bold and revolutionary change shall, in some remarkable way, be achieved with only the most minimal cost. I do not believe for a moment that that is true.
If it is suggested that there are to be tape recorders in every police station, then I must point out that there are a very large number of police stations, some of them extremely small in the case of Scotland, as the noble Earl, Lord Mansfield, pointed out on a previous occasion. But if it is also to be suggested that without a tape recorder that works the evidence will not be admissible, there will then have to be back-up facilities. At some stage, there will also be the question of the cost of transcription which is very considerable indeed.
So, by all means, let us look seriously at the question of tape recorders. The noble Earl has pointed out that two experiments are being conducted in Scotland at the moment, and some work is going on among English police forces as well. But, certainly, I do not think we have enough information before us at the moment to decide to support an amendment which would have such sweeping effects as those of the amendment of the noble Lord, Lord Foot.
§ 5.16 p.m.
§ Lord FOOTMy Lords, I do not propose to prolong this debate, certainly not by going into these technical questions that have been raised about the viability of a cheap system of tape recording. I would only say that it strikes me as absolutely extraordinary that, in the last quarter of the 20th century, in the days of the computer, the micro-chip and so on, it is past the wit of man to invent a simple little machine which can record what has been said in a room, and then to put a seal upon it in order that nobody can interfere with it. If that is not possible to us then surely our technological revolution is not quite so admirable as it is claimed to be.
I noticed that, in the course of his reply, the noble Earl did not enter into this question of tampering, which was raised by the noble Lord, Lord Harris of Greenwich. I can well understand reluctance to enter into that kind of argument, because this was all dealt with in the last debate when, I suspect, that the noble Lord, Lord Harris, was not here, at any rate in the later stages. It was pointed out then by me, and by my noble friend Lord Wigoder, that the only people who would have the opportunity to tamper with the machines were the police. If the noble Lord, Lord Harris, is saying that the police might be inclined to do that, what is to stop—
§ Lord HARRIS of GREENWICHMy Lords, may I intervene? The noble Lord, Lord Harris, said nothing of the kind. If the noble Lord, Lord Foot, will look at my remarks in Hansard tomorrow, he will see that I said nothing approaching that. What I said was that the allegation would be made that the police had done that. It may not have escaped the noble Lord's attention that criminal defendants sometimes make statements which are untrue.
§ Lord FOOTMy Lords, presumably, one could go on with that argument for ever. But the first point about it is this. In the ordinary way, the only people who will have the opportunity of tampering are the police, and, if the police are inclined to tamper with a machine, how much more would they be inclined to tamper with the evidence under the present arrangements, by which all they have to do 1203 is to record it in a notebook. It is much easier to tell lies in a notebook, than it is by tampering with a machine.
The Thomson Committee dealt with all this, as they dealt with everything else. They considered whether there might be tampering. They came to the conclusion that it could be easily avoided. They also came to the conclusion that they had seen a cheap machine which could be used and then sealed and handed over to the procurator fiscal. All these arguments about tampering are, in fact, tampering with the argument.
As I said, I do not propose to prolong this debate. What I am hoping—I do not want in any way to antagonise the noble Earl, because he has been so accommodating up to now—is that this may be considered in the further stages of the Bill, if necessary upon an administrative level. That would not satisfy me. I should like to see it written into the statute. But if it is right, as Mr. Rifkind was indicating the other day in answer to a question, that these experiments are being actively pursued, and if it is thought practicable for these machines to be introduced, then that will be so much gained. I am not concerned that there should be a recording machine in every police station in the land, but I do want to see a recording machine in as many police stations as possible. I should have thought that on the basis of the Thomson Committee recommendations one could supply a recording machine in a police station more cheaply than one could supply a typewriter. I doubt very much whether there are many police stations, even in the outer stretches of Scotland, where they cannot afford to have a typewriter. The noble Earl shakes his head, but I shall not pursue that matter further.
I said that I was not intending carrying this amendment to a Division. Certainly I do not intend to do so. I am afraid that one of the reasons why I came to that conclusion before this little debate opened was because, I am sorry to say, the assistance that my noble friends and I got from the official Opposition on the last occasion was derisory. I think that there were three of them who accompanied us into the Lobby when we took the matter to a Division. I can only rejoice that they have now repented and are thinking better 1204 about that. Therefore, it would not be right for me to carry the amendment to a Division. Indeed, I have allowed my own troops to go. Therefore I do not want to prolong the matter, certainly not by incurring another defeat in the Division Lobby. I hope that the matter will be able to proceed on the lines that the noble Earl has indicated; namely, that further consideration will be given to the matter at a later stage. Therefore, I beg to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§
The EARL of MANSFIELD moved Amendment No. 16:
Page 3, line 30, leave out from ("force") to end of line 32 and insert ("in exercising any power conferred by subsection (1), or by paragraph (b) or (c) of subsection (5), above.").
§ The noble Earl said: My Lords, this is a drafting amendment. Its purpose is to remove the obsolete reference in Clause 2(4) to a requirement under subsection (1) to make clear that the use of reasonable force is authorised to secure compliance with fingerprint as well as search procedures. I beg to move.
§ On Question, Amendment agreed to.
§
Lord MISHCON moved Amendment No. 17:
Page 3, line 35, at end insert ("and there shall be recorded the time when he was so informed, the identity of the constable informing him, the terms in which he is informed and his response, if any, thereto, and he shall be invited to sign the record.").
§ The noble Lord said: My Lords, in regard to Amendment No. 17, my observations, I promise, will be very brief. When dealing with the points that I made before as to the safeguards over recording matters when a suspect is detained, the noble Earl dealt, with his usual effectiveness, with my point about a suspect's signature. I am not going to return to that argument, for it would not produce any good result. What I said then—the noble Earl did not answer on that occasion, although I am sure it was only an oversight—was that this important matter of the right of silence, and the fact that a suspect can be told that all that he can legally be required to do is to answer a question as to his name and address and nothing else, is a legal requirement by 1205 way of a response. The safeguard is that the terms in which he is told this by the police officer and his reply, if any, should be recorded. With regard to this amendment, I have merely risen to point this out in the hope that the noble Earl might find it within him to accept that small addition. I beg to move.
§ The Earl of MANSFIELDMy Lords, I think I have already explained why we do not wish to accede to the suggestion that the police should be required by statute to invite the suspect to sign the record. I am afraid that I do not see any value in requiring them to record the terms in which the suspect is informed—or, indeed, the suspect's reply. I cannot see any reason to suppose that the police would fail to give the information in the proper terms. They are experienced and well versed in these procedures. The suspect's response in such circumstances is unlikely to be either significant or helpful. If it were, I am sure that the police would record it, anyway.
§ On Question, amendment negatived.
§ Clause 3 [Right to have someone informed when arrested or detained]:
§ 5.26 p.m.
§
The Earl of MANSFIELD moved Amendment No. 18:
Page 3, line 37, leave out from ("who") to first ("delay") in line 43 and insert ("—
§ The noble Earl said: My Lords, this is basically a drafting amendment of a technical nature. It was pointed out in Committee by several noble Lords that, as originally drafted, Clause 3 might appear to conflict with Sections 19 and 305 of the Criminal Procedure (Scotland) Act 1975 which give an arrested person the right to have information sent to his solicitor immediately on his arrest. The purpose of this amendment is to make it clear that the only effect of this clause, 1206 so far as an arrested person is concerned, is to provide him with the additional right to have a friend or relative informed of his arrest, as the Thomson Committee recommended. However, the police may delay sending this information for so long as is necessary in the interests of the investigation, or the prevention of crime, or the apprehension of offenders. I beg to move.
§ On Question, amendment agreed to.
§ The DEPUTY SPEAKER (Baroness Wootton of Abinger)My Lords, after Amendment No. 18 we pass to supplementary Amendment No. 18A on the separate sheet.
§
Lord MONSON moved Amendment No. 18A:
Page 4, line 3, at end insert (",and a Constable shall so inform him.").
§ The noble Lord said: My Lords, I beg to move Amendment No. 18A. Your Lordships will have noticed that subsection (7) of Clause 2 stipulates that a constable shall be required to inform a person detained under subsection (1) of the clause that he is under no obligation to answer any question other than to give his name and address. Indeed, Amendment No. 17, to which the noble Lord, Lord Mishcon, spoke, relates to this subsection.
§ If we agree that it is proper, indeed essential, that the police should be required to inform a person detained of his rights under Clause 2—and I think we do all so agree—then in logic and in equity it is surely only proper and desirable that they should be required to inform a detained person of his or her rights under Clause 3 as well. It is possible, of course, to argue that the amendment is superfluous on the grounds that the first instinct of any person taken to a police station is to thump the desk and to demand immediate access to a telephone so that he or she may inform his husband, wife, parent, solicitor and so on. But in real life things do not always work out like this.
§ By the law of averages, a fairly high proportion of those detained under this Bill will be innocent. Others may well be guilty, but first offenders. Even innocent people often find, within the confines of a police station, that they 1207 become apprehensive and confused and do not always behave in a calm and logical way. I believe it imperative, therefore, that the police should be required to inform detainees of their rights under Clause 3 as well as of their rights under Clause 2. Incidentally, there is no significance in the upper case "C" that prefaces the word "Constable" in the amendment as printed as compared with the lower case "c" that appears elsewhere in the Bill. That is not of my doing. I cannot see that acceptance of this amendment would in any way weaken the Bill and it could only help to protect the rights of the individual. I beg to move.
§ The Earl of MANSFIELDMy Lords, I am bound to say that I am rather attracted by the noble Lord's proposals, both in this amendment and in Amendment No. 18B. I am attracted by the idea that a person being detained should be entitled to know whether the police delay in notifying his solicitor or his friend, and if there has to be delay one would expect to see the time of that delay recorded. What I propose to do is to undertake to consider the matter and, if I may, consult with colleagues with a view to considering the possibility of bringing forward an appropriate amendment in another place. I will not go further than that, but on that undertaking perhaps the noble Lord will consider withdrawing this amendment and possibly not moving the next.
§ Lord MONSONMy Lords, I am grateful to the noble Earl for what he has just said, and, in view of that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 18B not moved.]
§ Clause 4 [Search for offensive weapons]:
§ 5.32 p.m.
§
The Earl of MANSFIELD moved Amendment No. 19:
Page 4, line 5, after ("person") insert ("is carrying an offensive weapon and").
§
The noble Earl said: My Lords, for the convenience of your Lordships perhaps I may speak to Amendments Nos. 20 and 21 at the same time because these three
1208
amendments address themselves to the same point, which is essentially a drafting point. The noble and learned Lord, Lord Wheatley, pointed out in Committee that, as originally drafted, this clause might be construed as permitting a police constable to stop and search a person simply because he knew that on some previous occasion the person had been guilty of the statutory offence of carrying an offensive weapon. This was certainly not the Government's intention and these amendments have been tabled in order to prevent any possible misunderstanding. The insertion into line 5 of the words,
is carrying an offensive weapon and
make it clear that the constable must have reasonable grounds for suspecting that the person actually has an offensive weapon with him at the time when he decides to search him. The amendment to line 22 provides that in Clause 4 the definition of "offensive weapon" shall be the same as is contained in the Prevention of Crime Act 1953. The amendment to line 16 deletes a phrase which has become redundant in consequence of the amendment to line 22. I beg to move.
§ Lord ROSS of MARNOCKMy Lords, am I to understand that this is purely drafting, or is there more substance to it than that? This is a strange clause, it says:
Where a constable has reasonable grounds for suspecting that any person has committed or is committing an offence under section 1 of the Prevention of Crime Act 1953"—under that Act, so far as we have read it, the constable should arrest him. That is the power that is given to the police under the present law. Indeed, no doubt he is still going to arrest him—or still could. I am very much concerned about the drafting and the strange conflicts within this provision. The policeman suspects that somebody is committing an offence: the present law, which applies both to Scotland and to England and Wales, is that the constable has power to arrest without a warrant, take that person to the police station and search him; but now this is something else. Has this drafting been looked at from the point of view of a constable with a duty under one law who now has to apply a new duty under this Bill?
§ The EARL of MANSFIELDMy Lords, I take the noble Lord's point and I particularly do not want at this moment to address myself as to whether Clause 4 should be in the Bill at all, because I dare say noble Lords will have something to say about that when we come to Amendment No. 22. All I was saying was that these amendments, which are of a drafting nature, are also explanatory in that they make plain the intention of the section, as it will become. As I have tried to point out to your Lordships, they make plain what the noble and learned Lord, Lord Wheatley, in Committee said was not plain, at any rate to him. The Government have considered what the noble and learned Lord said, respectfully agreed with him, and tabled these amendments in order to clear up the position. They really do not go any further than that, and I do not think I can, either.
§ Lord ROSS of MARNOCKMy Lords, by making it plain I think the nonsense is made equally plain. The Prevention of Crime Act 1953 is a very short statute and if we were to read it here it would be fairly easy to see just exactly what I am getting at:
A constable may arrest without warrant any person whom he has reasonable cause to believe to be committing an offence"—that is carrying an offensive weapon in a public place. We start with that.
§ The EARL of MANSFIELDMy Lords, with the greatest respect to the noble Lord—if he will give way—one is expected to speak only once on Report in your Lordships' House. Far be it from me to point out his duty to the noble Lord, but this is the Report stage and possibly the noble Lord may wish to reflect on his position.
§ Lord ROSS of MARNOCKAll right.
§ On Question, amendment agreed to.
§
The Earl of MANSFIELD moved Amendment No. 20:
Page 4, line 16, leave out ("within the meaning of the said Act of 1953").
§ On Question, amendment agreed to.
§ The Earl of MANSFIELD moved Amendment No. 21:
1210
§
Page 4, line 22, at end insert—
("(4) In this section, "offensive weapon" has the same meaning as in the said section 1.").
§ Lord ROSS of MARNOCKMy Lords, would it not be much easier if here we actually put words as to what an offensive weapon is and then give the actual definition—
Any article made or adapted for use for causing injury to the person or intended by the person having it with him for such use by him".Would it not be far simpler, far more explicit and certainly easier for us all to understand when we are discussing this particular clause as to the definition of an offensive weapon? Surely we could actually do it directly and say what an offensive weapon is. I do not think there would be any great difficulty in that and I hope the Government will think about it between now and any other stage of the Bill.
§ The Earl of MANSFIELDMy Lords, I will certainly think about it, but, if I may say so, I think the clause is perfectly plain in its meaning and to put words in unnecessarily would be surplusage.
§ On Question, amendment agreed to.
§ 5.39 p.m.
§
Lord ROSS of MARNOCK moved Amendment No. 22:
Leave out Clause 4.
§ The noble Lord said: My Lords, I beg to move that we delete Clause 4. The noble Earl said that the clause was perfectly clear as to what it meant in respect of every single word. Where it says "offensive weapon", with all due respect it is not defined and we must remember that we are here giving a new power to the police and within that power anyone resisting can be—on summary conviction—fined £200, and, indeed, of course, the outcome of the search that is conducted on a particular spot may lead to the penalties under the Prevention of Crime Act 1953, which prohibits the carrying of an offensive weapon.
§ There was for quite a time—it has not been so heated lately—a demand from the police in the West of Scotland for this particular power. I was Secretary of State for quite a long time while they tried to persuade me that this was absolutely essential for safeguarding the public and the prevention of crime. But, of 1211 course, all those who have considered it have always appreciated that there is a question of balance here. It would certainly be a small price to pay for reducing the number of crimes of stabbing or shooting, and if that and that alone were at stake I do not think anyone would object to it. But there are many members of the public, and I am one of them, who would very much object to being stopped for searching. The arguments about the eggs of particular birds is not relevant here, nor indeed is the question of being searched at an airport, because everyone is searched; there is no question of discrimination.
§ But suddenly to be lighted on for no particular reason by a constable and searched on the spot is a very different matter. When I spoke last on this subject I quoted the Council of the Law Society's Criminal Procedure Committee, which was entirely opposed to this. It is only fair to say now that the actual council have considered this, and they have come down on the other side by a majority of 15 to 13; the vote itself shows the difficulty they had in making up their minds as to what was the balance in respect of this particular clause.
§ There is a fear that there will be discrimination against a certain section of the public, that there will be judgment by appearance, by locality, certain parts of the town in which you are never sure this will not happen, and random checks, particularly of young people, would be initiated. This point is made time and time again. What always weighed with me was the fact that there is sufficient antagonism in certain parts of our cities against the police without introducing this, which I think is quite unnecessary. If anyone is committing an offence against the Prevention of Crime Act 1953 the power is there; they can arrest them and search them and let the law proceed from there. But if you get this kind of thing, you are going to have harassment of individuals in an area; it may cause further conflict within that area and certainly will not help to achieve what we all want, which is a measure of cooperation between young people and the police, particularly in our cities.
§
I am also very troubled indeed about the offensive weapon. The definition is
1212
as I have stated; I copied it down in the Library today:
Any article made or adapted for use for causing injury to the person or intended by the person having it with him for such use by him".
It could be a normally inoffensive weapon, and most very inoffensive weapons can be used as offensive weapons. A constable with a particular person can construe it as such and proceed to search him. I heard someone speaking quite recently about the ignominy of being taken to a police station and searched. I do not think there is anything more ignominious than being searched in public or to be asked to go round the corner in a rather populous street to be searched. That is the implication of this. The power is already there, within the Act which is quoted, to be taken to the police station and searched. At the present time in England and Wales and in Scotland that is the law; the police can do that. But this is a different kind of thing—just stop and search. I think it is going to lead very considerably to trouble. This is why I have been very much opposed to it in the past. I still remain unsatisfied that there are any protections within this against unfairness to certain sections of the populace, young people in particular, in certain parts of our towns and cities, and I believe that it will cause very considerable difficulties between police and public. And, remember, once you stop a young person and harass them in this particular way it is not just they who are dissatisfied; the parents become dissatisfied with the treatment of their sons or indeed of their daughters. So you get a build-up of antagonism at a time when we want police and public cooperation. This is the wrong way to go about it.
§ I have always been satisfied that what is to be gained here is very little compared to what could be lost. As someone said—someone with the same name as myself; Father Anthony Ross, who has spent a lifetime on the question of crime and punishment—when it comes down to it, what is the most usual weapon that is used? The boot. That is fairly inoffensive, but it then becomes an offensive weapon. But that does not apply here; you are not going to prevent crime by telling people to take their boots off and walk in their bare feet. We are going of achieve so little but we are going 1213 to lose so much. At this particular stage, the Government should think again. Everyone who has considered it has not been overwhelmingly in favour of it. Even the Scottish Council on Crime, which the noble Lord, Lord Campbell, set up when he was Secretary of State for Scotland, said, when they decided to do it, let it be for a period and see how it works. That is something we will come to in the next amendment. I sincerely hope the Government will think about this again. I beg to move.
Lord CAMPBELL of CROYMy Lords, the noble Lord, Lord Ross of Marnock, in moving this amendment at the end made reference to me as having set up the Scottish Council on Crime and having drawn attention to the fact that they did recommend that a power of this kind should be given to the police in Scotland. I agree that in their recommendation they said that it should be tried for a period, I think of five years, if I remember rightly, but they did make this positive recommendation. The noble Lord started by referring again to the question of the weapons in this clause, and on the last amendment my noble friend Lord Mansfield was not attracted to that idea. My mind is certainly open on it, and I would ask the Government to have a look at this again if it is going to improve the clause from the point of view of those who are worried about it.
I differ very much from the noble Lord, Lord Ross, in his general attitude to this clause, because I believe it is necessary to give a power of this kind to the police in Scotland. I know that there are doubts about the power to search discriminately in public, but I believe the balance is on the side of law and order. I differ from the noble Lord, Lord Ross, when he says he would not like to be stopped and searched in public in the street. Well, I am the opposite. I would not mind in the least being stopped and searched by the police in Glasgow, or Dundee or my own nearest town, Inverness, if it is going to help to stop people, particularly those who might be tempted to use the weapon, carrying knives or other dangerous weapons about with them. When this came up earlier in the proceedings on this Bill, noble Lords, including noble and learned Lords with judicial experience, 1214 mentioned some of the crimes which have occurred on the spur of the moment, by people pulling out a knife and acting in a matter of a second or two. Those crimes might not have happened at all if those people had not been carrying weapons. Of course, I agree with the noble Lord, Lord Ross of Marnock, when he speaks about the boot and kicking. It is unfortunate that that kind of thing can happen, but at least let us try to reduce crimes which are committed with other forms of weapon, other bludgeoning or sharp weapons.
I agree with the noble Lord, Lord Ross, about preserving the relations between the police and the public. That is very important. However, Clause 4 says that a search can be carried out only:
where a constable has reasonable grounds for suspecting that any person has committed or is committing an offence".I think that the words "reasonable grounds" mean that it cannot be just discrimination—picking on persons in the street or in a public place. I agree that the police must operate this clause in a sensible manner if, as I hope, it passes into law when the Bill becomes an Act. However, I must make it clear at the beginning that I disagree with the noble Lord, Lord Ross. It is not simply because of the recommendation of the Scottish Council on Crime, although that is a factor. However, anything that can be done which will mean that fewer people carry weapons who might, in a moment of anger, in a gang fight or in drunken episodes emerging from pubs, commit such an offence, will help. Such people may for the rest of their lives regret that they ever used that weapon. If we can do anything in a clause of this kind to reduce that number, then I support it.
§ Viscount MASSEREENE and FERRARDMy Lords, briefly, I should like to support this clause. I know a young policeman—in fact, he is not all that young now—who is the son of an employee of mine in Scotland, who works at Cumbernauld. He has been there for quite a few years and he reckons that one in every three young men carries an offensive weapon. I do not know how the law defines an offensive weapon. Presumably an offensive weapon includes knives over a certain length and obviously firearms. If the law does not accurately define an 1215 offensive weapon, perhaps such a definition of an offensive weapon should be included in the clause. Like my noble friend Lord Campbell of Croy, I cannot understand how anyone who is innocent of carrying an offensive weapon should be embarrassed if a constable demands to search him. I would not be in the least embarrassed. There is an old saying:
A stitch in time saves nine".If a young man is carrying an offensive weapon and has a lot to drink, it is possible that he might use the weapon on the spur of the moment. With the tremendous rise in the crime rate, especially in certain areas of the country, particularly Scotland, I believe that the police should now have this essential power. I support the amendment.
Lord KINROSSMy Lords, we all know that crimes of violence in Scotland are on the upgrade. Mugging, attacks and acts of violence are prevalent to the extent that innocent citizens are afraid to walk abroad in certain areas by day or by night for fear of being assaulted and robbed. These attacks are often made by youths carrying and using offensive weapons, such as knives, which can wound, disfigure or even kill. We look to the police to give us protection against such assaults, but the police cannot give protection unless we give them adequate powers to carry out their duties.
The police already have powers to stop and search for firearms, but they have no power to stop and search suspected citizens for knives or other offensive weapons. Therefore, I welcome Clause 4 of the Bill, which will give them this power. It is true that in terms of the Prevention of Crime Act 1953 the carrying of offensive weapons is illegal, but in my view the increase in violence in this country more than justifies the extension of the powers to stop and search. Such an extension would enable the police quickly to expose those who are in breach of the 1953 Act and so reduce the prevailing violence.
It has been suggested—in particular by the noble and learned Lord, Lord McCluskey, when this clause was considered in Committee—that the clause is not necessary because a constable could avail himself of the provisions of Clause 2 1216 of the Bill by detaining a suspect and then having him searched at a police station. I can envisage circumstances in which this procedure would be too slow, perhaps because the nearest police station was some distance from the suspect, and it would be quicker and more efficacious to achieve success by making an immediate search and so prevent the use of a knife.
I beg to differ from the noble Lord, Lord Ross of Marnock, on this matter, but it is true to say that the Law Society was equally divided on it. Voting in the council resulted in 15 members in favour of the clause and 13 against it. The majority of the council accepted that the police be given power to search persons whom they had reasonable grounds to suspect of carrying offensive weapons in public, which is exactly what this clause does. They considered that this would be necessary and useful in crime prevention. Therefore, I hope that noble Lords will leave this clause as part of the Bill.
§ Viscount MASSEREENE and FERRARDMy Lords, through a slip of the tongue, which was very foolish of me, I said that I supported the amendment. Of course, I spoke against the amendment.
§ Lord PONSONBY of SHULBREDEMy Lords, nobody misunderstood the noble Viscount.
§ Lord ROSS of MARNOCKMy Lords, I certainly did not misunderstand the noble Viscount.
The Earl of SELKIRKMy Lords, if I have one regret it is that it is very difficult to obtain a copy of the report of the Scottish Council on Crime. It is an extremely good analysis, of many of the problems, and it is sad that it has not had a wider circulation. It makes a number of interesting points, in particular the very high level of crime among 18 to 21 year olds. This is a terrifying picture; compared with other ages it may be 20 times as high. The point which my noble friend Lord Campbell of Croy made is that if many of these people can be caught before they get deeply involved in this business, it may make a whole difference to their lives. It makes the point that quite a substantial percentage of those who are charged never come back. Once they have been caught, their way may be clear.
1217 The report says that in 1972 900 crimes were committed in Glasgow, with various weapons including knives. That is a terrifying picture at a time when I knew a little about Glasgow, and it shows that the city has not improved. I believe that we would be taking a chance if we did not take fairly strong measures to try to stop this violence.
§ The Earl of MANSFIELDMy Lords, there was a good deal of discussion on this clause in Committee, and I do not propose to repeat all the arguments in favour of it which I deployed on that occasion. However, I take comfort from what was said then by the noble and learned Lord, Lord Wheatley, who has vast experience in these matters. Equally, I take comfort from the remarks of my noble friends who support the inclusion of this clause in the Bill.
First, I should like to deal with the definitions point. To put the matter in what I might call "baby language", Clause 4 says that a constable can do certain things if he:
has reasonable grounds for suspecting that any person has committedand so on; and it talks about offensive weapons as are defined in the Prevention of Crime Act 1953. In that Act there is a perfectly good definition clause. I will not say that it has not caused the courts to inquire into what it means at various moments, but I think that everybody is now pretty well agreed what an offensive weapon is or may be. They come in two kinds: an offensive weapon per se, such as a flick knife, and something which may become an offensive weapon, particularly if the suspect has the will, or the motive, or the desire to use it as such. There is no need to write into this Bill the definition of an offensive weapon because it is unnecessary and would be surplusage.The next matter raised by the noble Lord, Lord Ross, was that he says there will be "random checks", which, he went on to say, will cause ill feeling and disaffection among the citizenry. There will not be random checks, because it is made plain,
… where a constable has reasonable grounds for suspecting that any person has committed",and so it goes on. One of the most basic 1218 fallacies which at the moment obtains throughout Scotland about the meaning and the purpose of this clause is that in some way it entitles the police to conduct random searches on the citizenry in public places to see whether they are carrying offensive weapons. It does nothing of the sort. If that is something that I can drive home tonight, then indeed my presence at this Dispatch Box will have been worth while.The next point concerns the offence itself. As some of my noble friends have said, the inclusion of this clause or something like it, in a Bill was recommended both by the Scottish Council on Crime and by the Thomson Committee. I do not need to dilate at length on the habit among young people in the conurbations, particularly in our larger towns and cities, of going about carrying offensive weapons; usually knives carried hidden and ready for use, although probably in the first instance they are carried for purposes of self-defence. Be that as it may, the carrying of these weapons is responsible for a large proportion of the serious crimes of assault committed in Scotland.
The power to stop and search for offensive weapons is required because there are many circumstances where it is impracticable or undesirable to arrest the suspect, or to detain him under Clause 2. The noble Lord, Lord Ross, seems to think that it is some loss of liberty or dignity to be stopped and searched if a constable has reasonable cause for so doing in the street. But I put it to him that it is much less of an invasion of one's privacy, or liberty, merely to be stopped and searched, and if one is not carrying a weapon then to be sent on one's way by the police than, in the course of reasonable suspicion, to be dragged off to a police station which may be miles away and there searched. It is surely a better, quicker, and more efficient method in such circumstances that such searches should be quick, clean, and sharp and take place where the person happens to be. Otherwise there is a great deal more work on the part of the police who, for instance, have to transport the suspect down to the police station, and, as I have said, it represents a much greater intrusion into a person's liberty to be taken into a police station and there possibly to be searched and then booted out through the back or the front door.
1219 The point was made that this is going to lead to a breakdown in relations between the police and the public, or at least contribute to it. I am not going into all the absurd examples of birds' eggs which we had in Committee, but the police have already such powers in the case of dangerous drugs. The community as a whole accept that the police should have such powers. So far as I know the police in Scotland do not abuse their powers in relation to dangerous drugs, nor has there been a loss of public sympathy as a result. As society grows more complex we all have to suffer these invasions of privacy and liberty to an extent. One regrets it, but unfortunately it happens to be true. I am certain that these powers are necessary for the reasons that I have given. I am quite sure that they will not be abused by the Scottish police.
Nobody is better placed than the police to know how to secure and maintain their links with the public, and nobody is more sure and certain of how to do it and what the results will be if they abuse their position. The police's standing with the public at large is more likely to be enhanced if they are seen to be more effective at protecting the public from violent armed gangs; protecting the public as they make their lawful way in public places. This is a matter which was pressed to a Division in Committee. I very much hope that that course will not be adopted tonight.
§ 6.7 p.m.
§ Lord ROSS of MARNOCKMy Lords, I was appalled to hear the Minister talk about police trying to stop armed gangs. Surely that is not the purpose of this. Are we to understand that the police at the moment are quite powerless to deal with armed gangs? This is the point. There is a lot of emotive stuff being poured out that if only we pass this then somehow, suddenly everything will be lovely in the cities and the streets. It is not true. The noble Lord, Lord Kinross, would be the first to appreciate that the police are not powerless.
We start with the first words of this clause:
Where a constable has reasonable grounds for suspecting that any person is carrying an offensive weapon and has committed or is committing an offence under Section 1 of the Prevention of Crime Act…".1220 If he suspects that, it is at present his duty to arrest the person. That is what he would do with armed gangs. It would not be one policeman, either: there would be a few on the spot. That is what they do at the present time. They have the power, and they use it. Here it is suggested that despite the fact that they know—they have got all the suspicions and all that is required under the law to arrest a person—instead of arresting him they search him.What it means is that it may well be that he is going to search a lot more people, but he has still got to have reasonable grounds for instituting this search. But nobody has defined these reasonable grounds. The Minister says, "You don't need to worry about it. The police have got to be reasonable". What are the reasonable grounds? He just does not like his face? How he is dressed? Where he is at a particular time? It is a subject of assessment.
I can tell the Minister that, if he thought it was easy so to do, then the Law Society of Scotland did not. He spoke rather scoffingly about my suggestion of random checks. They were not my words. It is the Law Society of Scotland which uses this in their document in respect of the minority—and it was a minority of 13 against 15. They said this:
The minority of the Council felt a citizen has the right to be protected against unreasonable search, but were concerned as to what could constitute reasonable grounds".It was pointed out that when the constable used these powers he would have to make an immediate, pragmatic but subjective assessment. Elsewhere, it has been suggested that it will be in particular places, particular circumstances, particular people.Somebody mentioned 18 to 20 year-olds. I hardly need to tell your Lordships just what the reaction will be in the section of people from whom you will want cooperation with the police. You will not get it if there is harassment, and yet there cannot but be harassment when this subjective assessment is made. Once again the minority of the Law Society felt that, if the clause were enacted,
there would be an increasing tendency for the police to discriminate against a section of the population by appearance and by locality".1221 It is not me saying this; this is being said by lawyers, practitioners in Scotland. They added:Random checks, particularly on young persons, would be initiated".Of course they would be, and it is because of this that I have been convinced for a long time that we shall run into more trouble and create more difficulties by enacting this provision. The police have the powers, they can use them and they have been using them.For anybody to suggest that by the exercise of this power we will suddenly get rid of all muggings is ridiculous. Muggings do not necessarily require offensive weapons; fists are enough to attack older people, and when they are in the
| CONTENTS | ||
| Ardwick, L. | Gardiner, L. | Pitt of Hampstead, L. |
| Bacon, B. | George-Brown, L. | Ponsonby of Shulbrede, L. [Teller.] |
| Balogh, L. | Greenwood of Rossendale, L. | |
| Blease, L. | Hale, L. | Rhodes, L. |
| Blyton, L. | Houghton of Sowerby, L. | Ritchie-Calder, L. |
| Bowden, L. | Jacques, L. | Ross of Marnock, L. |
| Brockway, L. | Janner, L. | Sefton of Garston, L. |
| Brooks of Tremorfa, L. | Kilmarnock, L. | Segal, L. |
| Bruce of Donington, L. | Lee of Newton, L, | Shinwell, L. |
| Cledwyn of Penrhos, L. | Listowel, E. | Stewart of Alvechurch, B. |
| Cooper of Stockton Heath, L. | Llewelyn-Davies of Hastoe, B. | Stone, L. |
| David, B. | Lloyd of Hampstead, L. | Strabolgi, L. |
| Davies of Leek, L. | Lovell-Davis, L. | Taylor of Blackburn, L. |
| Denington, B. | Mishcon, L. | Taylor of Gryfe, L. |
| Donaldson of Kingsbridge, L. | Monson, L. | Wells-Pestell, L. [Teller.] |
| Elwyn-Jones, L. | Northfield, L. | White, B. |
| Gaitskell, B. | Peart, L. | Wilson of Langside, L. |
| Galpern, L. | Phillips, B. | Wynne-Jones, L. |
| NOT-CONTENTS | ||
| Allen of Abbeydale, L. | Denham, L. | Hanworth, V. |
| Allerton, L. | Dormer, L. | Henley, L. |
| Alport, L. | Drumalbyn, L. | Hives, L. |
| Amory, V. | Dulverton, L. | Holderness, L. |
| Ampthill, L. | Ebbisham, L. | Hooson, L. |
| Atholl, D. | Ellenborough, L. | Hornsby-Smith, B. |
| Auckland, L. | Elliot of Harwood, B. | Hylton, L. |
| Avon, E. | Exeter, M. | Killearn, L. |
| Baker, L. | Faithfull, B. | Kilmany, L. |
| Balerno, L. | Falkland, V. | Kimberley, E. |
| Balfour of Inchrye, L. | Ferrers, E. | Kinloss, Ly. |
| Barrington, V. | Ferrier, L. | Kinnaird, L. |
| Bellwin, L. | Foot, L. | Kinnoull, E. |
| Belstead, L. | Fraser of Kilmorack, L. | Kinross, L. |
| Boyd of Merton, V. | Fraser of Tullybelton, L. | Lauderdale, E. |
| Byers, L. | Galloway, E. | Long, V. |
| Campbell of Croy, L. | Gladwyn, L. | Loudoun, C. |
| Chelmer, L. | Glasgow, E. | Lucas of Chilworth, L. |
| Clifford of Chudleigh, L. | Godber of Willington, L. | Lyell, L. [Teller.] |
| Cottesloe, L. | Greenway, L. | Mackay of Clashfern, L. |
| Craigmyle, L. | Gridley, L. | Macleod of Borve, B. |
| Crathorne, L. | Grimston of Westbury, L. | Mansfield, E. |
| Cullen of Ashbourne, L. | Hailsham of Saint Marylebone, L. (L. Chancellor.) | Margadale, L. |
| de Clifford, L. | Massereene and Ferrard, V. | |
| De Freyne, L. | Hampton, L. | Milverton, L. |
§ dark these cowards can resort to that and to the boot as well. So let us not have the impression that we shall suddenly get a dramatic reduction here. That is why I feel that this is deceiving the public by letting them think we are giving them some kind of new protection to prevent crime when I am convinced we are not. It will cause trouble between the public and the police.
§ 6.12 p.m.
§ On Question, Whether the said amendment (No. 22) shall be agreed to?
§ Their Lordships divided: Contents, 53; Non-Contents, 115.
1223| Monckton of Brenchley, V. | Reigate, L. | Strathclyde, L. |
| Montgomery of Alamein, V. | Rochdale, V. | Strathspey, L. |
| Morris, L. | Rochester, L. | Swansea, L. |
| Mottistone, L. | Romney, E. | Teynham, L. |
| Mowbray and Stourton, L. | St. Aldwyn, E. | Tranmire, L. |
| Murton of Lindisfarne, L. | St. Davids, V. | Trefgarne, L. |
| Newall, L. | St. Just, L. | Trenchard, V. |
| Northchurch, B. | Saint Oswald, L. | Vaux of Harrowden, L. |
| Nugent of Guildford, L. | Sanford, L. | Vernon, L. |
| Ogmore, L. | Sandys, L. [Teller.] | Vickers, B. |
| O'Hagan, L. | Savile, L. | Vivian, L. |
| Orkney, E. | Selkirk, E. | Wakefield of Kendal, L. |
| Pender, L. | Sempill, Ly. | Young, B. |
| Piercy, L. | Simon, V. |
§ 6.21 p.m.
§
Lord ROSS of MARNOCK moved Amendment No. 23:
After Clause 4, insert the following new clause:
§ Expiry of sections 1–4
§ ".Sections 1, 2, 3 and 4 of this Act shall continue in force for the period of five years beginning with the date of the passing of this Act and shall then expire unless Parliament by affirmative resolution of both Houses otherwise determines."
§
The noble Lord said: My Lords, this is a new clause that I seek to have inserted into the Bill. It is a simple one, and it covers the point that I made in my speech relating to the last amendment, suggesting that:
Sections 1, 2, 3 and 4 of this Act shall continue in force for the period of five years beginning with the date of the passing of this Act and shall then expire unless Parliament by affirmative resolution of both Houses otherwise determines.".
The point was made in relation to Clause 4 that the Council on Crime when recommending this proposal suggested that it should be introduced for a trial period of five years. Here is our chance to do exactly what the Council on Crime suggested—have a trial period of five years. By use of the Affirmative Resolution the Government could continue to keep in force Clauses 1 and 2 in force and leave out Clause 4, or keep the lot in force. The amendment would give them full power.
§ The reason why I extend this proposal to Clauses 1 and 2 in particular is that we are concerned here with a completely new power. We do not know how it will work out, or whether it will be of any benefit, and it would be reasonably wise to look at it after three of four years and decide whether to drop it or continue it. We can 1224 see how both the public and the police react to it, and we can see whether it has the desired effect on crime that many people think it will have. This is a very simple and reasonable amendment, and is in keeping with the views of those who suggest that we must follow the Council on Crime. Let us follow them, and let us have a trial period for only five years. I beg to move.
§ Lord FOOTMy Lords, I hesitate to intervene in a debate which is not on my own amendment, but I cannot see the logic of the argument that is being advanced in support of this amendment. I remember only too well that about 10 years ago we had a major debate in the House on whether we should confirm the abolition of the death penalty. If I remember rightly, the noble and learned Lord, Lord Wilson of Langside, took part in that debate. The same thing was done on that occasion. On the recommendation of the noble Lord, Lord Brooke of Cumnor (who was then Mr. Henry Brooke), if I remember rightly, when the death penalty was abolished, it was provided that the abolition should cease to have effect unless within five years by Affirmative Resolution it was decided to continue it.
I can remember very well all the difficulties to which that gave rise. When we were coming up to the end of the five-year period the question was, had the statistics of the previous five years demonstrated whether the decision was right of wrong? On that matter we at least had some statistics to go by. We were able to look and see what had been the effect on the murder rate in England and Wales during the period of the suspension of the death penalty as compared with the period beforehand. We had some sort of basis on which to judge the matter. But in this case what statistics will be available 1225 at the end of the five-year period to enable us to judge whether these four clauses have been successful and effective? I cannot conceive of the sort of statistics which could be available.
I suppose that the argument in five years' time will be that we should try to decide whether the system of temporary detention in the street and, subsequently, detention for six hours, as well as the provisions about search, have or have not proved effective. I do not know how this House or any other House will be able to arrive at a judgment on that matter because I cannot see how any statistics or factual evidence will be available.
My other point is that if what we are trying to do now is right, surely we ought to have the courage of our convictions. We have had long, elaborate reports, and most of these clauses with the exception of Clause 4, are based upon the recommendations of the Thomson Committee. The Thomson Committee were quite clear in their recommendations. The Government have substantially adopted the recommendations of that committee. They are now putting them into force, and putting them on the statute book. If every time we pass legislation amending the criminal law we insert a clause of this kind, it will merely indicate that we have lost faith in our own convictions and in the recommendations of these very high-powered committees which have been called into being from time to time. I trust that the amendment will not be accepted, and I hope that the noble Lord who moved it will not press it to a Division.
§ Lord MONSONMy Lords, I rise to support the amendment. This is not of course a party political matter. Indeed, the noble Earl, Lord Perth, rose from these Benches to support a similar amendment in Committee; I am only sorry that he is not here today. At this stage we cannot possibly know whether the optimists or the pessimists are right in regard to Clauses 1 to 4. I tend to number myself among the pessimists. I very much share the misgivings voiced by the noble Lord, Lord Ross of Marnock, concerning Clause 4, for reasons which I advanced fairly fully in Committee and in regard to which I do not wish to take up the time of the House by repeating 1226 today. I was worried and am still worried that the counter-productive effects of Clause 4 may outweigh the undeniably beneficial ones, and that is why I voted against it in Committee and again today. However, my assessment can be only a subjective one, and we cannot for several years know for certain who is right.
I am also uneasy about Clause 3, despite the kind indication of the noble Earl, Lord Mansfield, that he would look favourably upon my two modest amendments. Notwithstanding the words,
Without prejudice to section 19 or 305 of the 1975 Act…with which Clause 3 opens, it still appears to weaken very considerably the right of unfettered and unconditional access to a solicitor which had been conferred by the 1975 Act. Again, perhaps things may work out in practice rather better than expected, but the point is that we cannot possibly know at this stage.The arguments for a five-year trial period seem to me to be overwhelming. As the noble Lord, Lord Foot, has pointed out, there is a respectable precedent in the Act which abolished capital punishment, in which at a Conservative instigation, a five-year trial period was inserted. For that reason I am very happy to support the amendment.
§ 6.30 p.m.
§ Lord MISHCONMy Lords, if I may say so, I was rather surprised when the noble Lord, Lord Foot, took as an example of the use of a five-year period and an Affirmative Resolution the question of the abolition of capital punishment. This was a step which was taken by our Legislature in order to do away with something which we had known for a very long time and to see whether in fact we were doing something which was morally right and might have the same sort of deterrent effect as capital punishment might or might not have had. By Clauses 1 to 4 of this Bill we are doing no such thing. We are not abolishing that which we have known: we are initiating that which we have not yet known, and we are doing it on the basis of recommendations, soundly reached in so many respects after a lot of consideration, by a committee whose words the noble Earl opposite (if I may say so 1227 without in the slightest degree being offensive) said, when it suited him, did not constitute holy writ. I am indeed quoting his very words. If holy writ is immutable, that which is not holy writ at the hands of human beings is mutable if they find they have made a mistake.
The powers which are sought under Clauses 1 to 4 deal with the question of detention in circumstances we have not yet experienced; with forcing a witness to give name and address, and with the setting up of an offence if that witness is not co-operative in proper circumstances. It is not a question of the test of statistics as to whether or not these are good clauses. Over a period of a few years we shall have judges who will tell us whether or not these clauses have worked out successfully, and we shall have the views of the police as to whether in fact Clause 4 has harmed them instead of benefiting them in the pursuit of crime, and has in fact antagonised young people or has not antagonised young people. I feel that when innovating something people have confidence in a view if they say, "In case we are wrong (and we are humble enough to say that we may be) let us try an experiment. It looks as though we are right, but we can correct things if we find we are wrong".
All that this amendment does is to say that, in regard to the clauses where there has been an honest cleavage of opinion, with views cast on both sides of the House irrespective of party—and, indeed, on the Benches that I am at this moment looking at I know there is a diversity of opinion on some of the things we have been discussing on Clauses 1 to 4—there should be an opportunity to think again after five years without having to legislate further or to bring in amending legislation. All of us know how, in crowded Government programmes, it is so difficult to do that even though there is merit in the amending legislation. By this amendment we are giving ourselves the power to think again after five years and to consult again with those who know and who have had experience of the working of these clauses. Then, if we find that in respect of any of them we have gone wrong, by a mere resolution of a House of Parliament we shall be able to say, humbly, "We were wrong", or, "The times have changed", and we can put things right.
§ Lord WILSON of LANGSIDEMy Lords, I, too, would support this amendment. I must confess that I did not find the arguments in favour of the amendment quite so overwhelming as did the noble Lord, Lord Monson, and I thought that perhaps there was something in the statistical point which was made by the noble Lord, Lord Foot. But it can surely do no harm to have this five-year trial period. It will give us the opportunity to reassess the situation in the kind of context to which the noble Lord, Lord Mishcon, has referred. For myself, I must say that I think it is a great pity that during the period since, in particular, 1945—no doubt this applied before, too, but in our efforts in the reform of the criminal law of Scotland since, in particular, 1945—we have never properly stopped to reassess the situation and see whether all these things that we have been doing have made any impact on the problem at all, or whether perhaps we have been on the wrong lines altogether.
This proposal I think would have the great advantage that it would compel us in Parliament to look again at the situation; because, of course, sweeping claims have been made. Sometimes at the hustings they were made for unworthy motives, to allay the anxieties of people fearful of the rise of crime and violence, and so on; but sweeping claims have been made about what will happen if these additional powers are given to the police. Some of us are very sceptical about what the effect of these additional powers will be, but sweeping claims have been made. What harm can there be? What reason have the Government to resist the suggestion, "Let us look at it again in five years"? What on earth is wrong with that? Capital punishment was a different situation, as the noble Lord, Lord Mishcon, has said. But what possible reason can the Government advise for our not looking at this question again? It may be that it suggests, as the noble Lord, Lord Foot, implied, that we have not the confidence that we should have in our capacity to deal with this problem of the rising tide of crime and violence in society.
I have been involved in various aspects of this business throughout my professional life, and I must say that what I have seen does not fill me with confidence that we have been on the right lines and that we are being effective. So I say to your 1229 Lordships: Why should we not take advantage of this amendment moved by the Opposition? There is everything to gain and nothing to lose.
§ Lord GALPERNMy Lords, last Thursday I had the good fortune to watch a television programme called Current Account in Scotland. It consisted of two lawyers, both Members of another place, Mr. Michael Ancram and Mr. Donald Dewar, who has already been mentioned this afternoon, cross-examining witnesses for and against this Bill. The jury were composed of final-year law students. I see the noble Earl, Lord Mansfield, smiling; perhaps he saw it, too. I hope he did. However, the jury which had to give their verdict were composed of final-year law students—the young people who, probably more than anyone else, are concerned about the state of crime in Scotland at the present time. What struck me about it was that even those who were supporting the Bill—for example, Mr. Michael Dewar—said, "All right; on balance it is a good Bill."Surely we in this country do not legislate on the basis of laws that are good on balance; that is to say, with an admission that there are bad parts in them but those bad parts are compensated by the other side wherein there are some good parts. If there are bad parts in a Bill and it is admitted by even its protagonists that they are bad, surely we ought to drop them. This amendment gives us the opportunity to do that.
I have heard the noble Earl, Lord Selkirk, constantly referring to Glasgow. May I say that Glasgow is as well behaved a city as anywhere else, and that we have no greater incidence of crime than anywhere else, but if we had an adequate police force it could make a substantial difference to the incidence of crime, not only in Glasgow but everywhere else. That is probably the way we ought to be going about trying to solve the rise—the steep rise—in crime throughout the country. I therefore think that this amendment, which says, in effect, "Let us limit it to five years" is a very sensible and reasonable one in view of what even the supporters of the Bill have said. But the remarkable thing to me was that at the end of this programme, when the jury of these final-year law students were asked to give their verdict, it was a unanimous vote 1230 against the Bill, good and bad as it may be. If that is the thought of people who are studying law and who I dare say have given some reasonable thought to the problems which confront us, then we are not asking anything beyond reason by saying, "Let us limit it to five years."
I am afraid that I have not had the opportunity or the good fortune to get a copy of the Law Society's Report but it is true, in my opinion, having been Lord Provost of the city about 20 years ago, that the scrutiny of the police will be directed to certain areas where these fights are likely to take place more so than in the centre of the city. Noble Lords, may disagree, but I do not see them going about in the centre of the city thinking of somebody for whom they have "reasonable belief". This "reasonable belief" is something that worries me and, I am sure, every Member of this House. Have we to see a six-foot spear sticking out of his jacket in order to say, "Right, we are going to do it"—because he is going to be arrested, not having committed a crime for which there is already a law in existence but simply because of the "reasonable belief" that he is carrying an offensive weapon. It has been repeated over and over again that probably the boot is a more offensive weapon than some of the offensive weapons that they could be using. Talking about the general layout of the city of Glasgow, I am afraid and worried that this could lead to very bad relations between the general body of citizens of Glasgow, particularly in the housing schemes, and the police force. To ask that this amendment should be supported is to give us the opportunity to assess the value or otherwise of the Bill we are considering at the present time.
§ 6.42 p.m.
§ The EARL of MANSFIELDMy Lords, we discussed at Committee stage a very similar new clause to this one. The only difference is that noble Lords have now lengthened the proposed trial period from three years to five years. Neither the noble Lord, Lord Ross of Marnock, nor the noble Lord, Lord Mishcon, sought to explain why the period should be lengthened from three years to five years. I do not take any point on that, mostly because I do not agree (and the Government do not agree) with the concept of a review in these circumstances. May 1231 I say, first, that we do not regard the provisions contained in Clauses 1 to 4 as dramatic innovations so much as measures to regulate existing practices in many cases. I know that others do not take that view. Until I am blue in the face, I can explain that Clause 4 does not give the police the right to stop and make random searches for offensive weapons. Whatever I say, people will still believe, perhaps in this House and certainly in Scotland, that that is precisely what Clause 4 does. May I say to the noble Lord, Lord Galpern, because I, too, watched that programme, that that is what they said on the "telly". If he and I have both suffered perverse verdicts in the hands of juries, which certainly I have in my past, we know how to endure them with fortitude.
What we want is for these provisions (which, as I have tried to say, we do not regard as being dramatic innovations) to cease being in the realms of controversy. We want the controversy, hopefully, to fall away once these measures become law. I believe that if there was a trial period such as is now proposed the controversy would never fall away and it would be because people would continue to try to find debating points with which, during the period of five years, they would either attack or defend these measures. They would be likely to attack or defend them on the same premises, which may be true or false, as they seek to do at this moment.
In any event, as the noble Lord, Lord Foot, has told us the assessment of the effect of these clauses is still likely to be largely a matter of subjective judgment. I do not believe, and we do not believe in Government, that the police will misuse the powers set out in Clauses 1 to 4. As I said in Committee, if they were to do so, there are a number of checks that we have in a social democracy. There is the sanction of public opinion, and the police in a democratic society cannot be immune to public opinion. There are the courts through which aggrieved individuals will have a remedy and, finally, Parliament, in spite of having overcrowded Sessions, is always in a position to amend or repeal measures at any time if it should consider that it is proper to do so.
Finally, there is no precedent for a provision such as this—reform with a 1232 trial period except for the Murder (Abolition of Death Penalty) Act 1965. The noble Lord, Lord Mishcon, quite fairly, did not attach much weight to that as a precedent for this, and I agree with him. It is our considered opinion that for such a course as is proposed in this amendment there would have to be very exceptional circumstances indeed; and we do not believe that the circumstances in this particular case are exceptional—certainly not such as would justify the inclusion of a clause such as this. It is somewhat a debating point, but when the last Bill was proposed by the last Government, no such provision was included; and I think it fair to say that they probably preferred to follow the Thomson Committee in this case rather than the Scottish Council on Crime who, I know, made their recommendation—although it is fair to say that they gave no reason as to why they proposed what they did. In the circumstances, this is not an amendment which I can commend to the House.
§ Lord ROSS of MARNOCKMy Lords, the noble Earl suggested there was no precedent for this kind of thing. I wonder what we did in all those years when we had what was called the Expiring Laws Continuance Act. I do not know whether the noble Earl appreciates it, but I think that the 30 mph speed limit was introduced in 1935 or 1936 and was not made permanent legislation until long after the war. Long after the 50s, it was continued year after year. There used to be the aliens' law which was continued year after year. Perhaps, as a Scottish laird, he will more appreciate the one called, I think, the Public Holidays for Children for Potato Lifting, which was supposed to last for five years and then was continued year after year. The schedule to the Expiring Laws Continuance Act was a list of Acts of Parliament which, unless Parliament continued them, would die. So that there is plenty of precedent.
I did not like the one precedent which Lord Foot suggested. I think it was a very different matter, indeed, and one of such dramatic controversy, and consequence, that I do not think it should be rated along with what we are doing here. When he says that we have no crime statistics, we do publish crime statistics in Scotland. I used to get them every year. 1233 Certainly by the time I got them, they were usually a bit out-of-date; but that is one of the arguments by which I persuaded my noble friend that we should extend it from three years to five years. Then we would have more reasonable statistics on which to base our judgment. So I do not think that he is right on the precedent argument. When he says that it was not in the Labour Bill, may I point out that neither was Clause 4.
So far as Clause 4 is concerned, he appreciates—because he said so—that the Scottish Council on Crime (which is no longer in existence) suggested in its recommendation for Clause 4 powers that provide for a trial period of five years. There again is a second reason to why it should be five years. We are coming down to what they suggested. In all the arguments it seemed that so much reliance was placed upon the virtues and authority of the Council on Crime that, having accepted what it suggested, I thought the Government might be more amenable to the idea that we should accept its second point, that the power should last for five years.
I think the statistics will be there, and we will get the ideas from the police and the public. Of course public opinion will finally determine what may well be done. I get strange ideas from your Lordships' House about the attitudes of public opinion. I sense the attitude that everyone is delighted to be stopped and
§ subjected to a search. This was the implication given by noble Lords. It is just not true. I was interested in what the noble Lord, Lord Galpern, said about the radio programme. I think it was the programme on which Father Anthony Ross appeared—a man for whose judgment I have the highest regard. In his lifetime he has probably had far more than anyone else to do with the people who may well be involved in this. I would trust his judgment before any Council on Crime; he is a council of one, and a wonderful councillor at that. He is no relation by the way. He is not even of the same kirk.
§ The public opinion and the specialist opinion: it was interesting that these were young lawyers who made this particular decision. It has certainly been divided. It is because it has been divided, it is because it is a question of balance, that we should not tie ourselves to this for ever. That is why I insist, and ask the House to support me in that insistence that we limit the period to five years, and that it shall then expire unless Parliament by Affirmative Resolution of both Houses determines otherwise.
§ 6.53 p.m.
§ On Question, Whether the said amendment (No. 23) shall be agreed to?
§ Their Lordships divided: Contents, 53; Not-Contents, 106.
| NOT-CONTENTS | ||
| Allerton, L. | Fraser of Kilmorack, L. | Mowbray and Stourton, L. |
| Alport, L. | Fraser of Tullybelton, L. | Murton of Lindisfarne, L. |
| Amory, V. | Glasgow, E. | Newall, L. |
| Ampthill, L. | Godber of Wellington, L. | Northchurch, B. |
| Atholl, D. | Greenway, L. | Nugent of Guildford, L. |
| Avon, E. | Gridley, L. | Ogmore, L. |
| Baker, L. | Grimston of Westbury, L. | Pender, L. |
| Balerno, L. | Hampton, L. | Reigate, L. |
| Balfour of Inchrye, L. | Henley, L. | Rochdale, V. |
| Barrington, V. | Hives, L. | Rochester, L. |
| Bellwin, L. | Holderness, L. | Romney, E. |
| Belstead, L. | Hooson, L. | St. Davids, V. |
| Boyd of Merton, V. | Hornsby-Smith, B. | St. Just, L. |
| Brougham and Vaux, L. | Keith of Kinkel, L. | Saint Oswald, L. |
| Campbell of Croy, L. | Killearn, L. | Sandford, L. |
| Chelmer, L. | Kilmany, L. | Sandys, L. [Teller.] |
| Clifford of Chudleigh, L. | Kimberley, E. | Savile, L. |
| Cockfield, L. | Kinnaird, L. | Selkirk, E. |
| Cottesloe, L. | Kinnoull, E. | Sempill, Ly. |
| Craigavon, V. | Kinross, L. | Simon, V. |
| Craigmyle, L. | Lauderdale, E. | Southwell, Bp. |
| Crathorne, L. | Lloyd of Kilgerran, L. | Strathclyde, L. |
| Cullen of Ashbourne, L. | Long, V. | Strathspey, L. |
| de Clifford, L. | Lucas of Chilworth, L. | Swansea, L. |
| De Freyne, L. | Lyell, L. [Teller.] | Tranmire, L. |
| Denham, L. | Mackay of Clashfern, L. | Trefgarne, L. |
| Drumalbyn, L. | Macleod of Borve, B. | Trenchard, V. |
| Dulverton, L. | McNair, L. | Tweedsmuir, L. |
| Ebbisham, L. | Mancroft, L. | Vaux of Harrowden, L. |
| Ellenborough, L. | Mansfield, E. | Vernon, L. |
| Elliot of Harwood, B. | Margadale, L. | Vickers, B. |
| Faithfull, B. | Merrivale, L. | Vivian, L. |
| Falkland, V. | Monckton of Brenchley, V. | Wade, L. |
| Ferrers, E. | Montgomery of Alamein, V. | Wakefield of Kendal, L. |
| Ferrier, L. | Morris, L. | |
| Foot, L. | Mottistone, L. |
§ Resolved in the negative and amendment disagreed to accordingly.
§ Clause 6 [Judicial examination]:
§ 7.2 p.m.
§
The LORD ADVOCATE (Lord Mackay of Clashfern) moved Amendment No. 24:
Page 5, line 7, after ("him") insert (", to or in the hearing of an officer of police,").
§ The noble and learned Lord said: My Lords, we now come to a series of amendments to Clause 6 and perhaps before speaking to this particular amendment I might expand on the reasons we have for tabling a considerable number of Government amendments to this clause. As I have explained at earlier stages, the Government are concerned to adopt the Thomson recommendations in this clause and to devise the best machinery to do so. We have thought that to ensure flexibility and improve on procedures as experience was gained, it would be best to provide for power to amend the procedures of the judicial examination by act of adjournal, 1236 which is the method by which the judges can make rules of procedure.
§ In view of the representations made by noble Lords, we have reconsidered the matter and have brought forward a number of amendments designed to improve the clause and to bring into the Bill the major restrictions on judicial examination which the Thomson Committee recommended. We hope this will reassure your Lordships about the nature and scope of judicial examination and, more especially, ensure that Parliament's intention in this regard is clearly expressed on the face of the Bill. I should perhaps reiterate that the Government are in no doubt, in the light of the Thomson Committee's examination of the matter, as to the value of judicial examination. This was a matter on which the Committee were unanimous.
§ We shall now discuss individual amendments, but I thought it might be useful if I stated the general intention to your Lordships at the beginning of our consideration. With your Lordships' permission, I should like to speak to the 1237 present amendment and to Amendment No. 34 together. These amendments seek to provide that only confessions allegedly made by the accused to, or in the hearing of, a police officer may be the subject of judicial examination. We do not consider it would be desirable or practicable to examine an accused on all the statements he may be alleged to have made to any witness. This may well amount to a sort of cross-examination in which the accused's account of events is compared with that of witnesses who may not even, in the event, be called at the trial. Alleged confessions made to a police officer and of which a written copy is given to the accused before the examination are in quite a different category. Indeed, one of the great values of judicial examination is that it will give the accused person a chance to deal with alleged confessions made to the police at a very early stage of the proceedings. I beg to move.
§ Lord MISHCONMy Lords, this may give me a speedy opportunity of thanking the noble and learned Lord for what he has said in regard to Clause 6 and the revised thinking of the Government in regard to it. This obviously meets a great number of the points of principle we tried to raise from these Benches at the Committee stage and indeed on Second Reading. We are obliged to him, and now it will merely be a question, from our point of view, of dealing with the fundamental matters of Clause 6, as we hope to do in our various amendments.
The Earl of SELKIRKMy Lords, I should like to raise one point. I am not quite clear why all confessions are not being brought to judicial examination, and particularly confessions made to a prison officer. I should have thought it was absolutely essential that such a confession should be brought before the judicial examination rather than used without it. I remember a case of my own in which a confession was made to a prison officer. He never took the trouble to make a declaration before a magistrate and the accused got off without a scratch on his character. I should have thought the phrase should be "officer of law", of which Section 25 gives a rather wider definition. I suggest that this would be better than the narrower one of "police 1238 officer", which the noble and learned Lord is now suggesting.
§ Lord MACKAY of CLASHFERNMy Lords, I am grateful to the noble Lord, Lord Mishcon, for what he said about this matter and I am glad that we may be able to concentrate on the essentials.
On the question of widening this matter to cover other than police officers, which was raised by my noble friend Lord Selkirk, the thinking that has brought us to suggest a restriction to a police officer is that if one were going to make it wider there would be a grave risk of every matter that had been discovered in the course of an investigation having to be brought back for judicial examination, and the people who normally hear these matters and in respect of whom there is a question of the kind which was mentioned by the noble Lord, Lord Foot, earlier, are police officers. Therefore, the examination is of particular value in relation to these. Those are the reasons which prompted us to restrict the matter in this way.
§ On Question, amendment agreed to.
§
Lord MACKAY of CLASHFERN moved Amendment No. 25:
Page 5, line 8, after ("charge") insert ("and as regards which he has not previously been examined").
§ On Question, amendment agreed to.
§
The Earl of SELKIRK moved Amendment No. 26:
Page 5, line 8, after ("sheriff") insert ("in chambers").
§ The noble Earl said: My Lords, when coming to examine this Clause 6, referring to judicial examination, I think it is important to get a fairly clear idea of how it is going to be conducted. The Thomson Report makes it clear that they think it should be in private. I should have thought that there are only two ways: one in public and the other in private. Also I should have thought it was wrong to hold it in open court and I believe we should make it clear we expect that it will be held in private.
§ If I may give three short reasons, the first is that if you hold it in an open court it would amount very nearly to a trial or at least a pre-trial, and certain discussions which might take place on confessions of 1239 this sort would be made public and reported in the Press. This would undermine, as I understand it, the purpose of the judicial examination. Also, it is rather interesting that the Thomson Report brings out the fact that it would give an opportunity for the accused to complain about the police. He could explain how he has been treated, and that would be very much better done in private than in public. The third point which Thomson made is that there may be some circumstances when it could be a matter of personal embarrassment—nothing to do with crime, but for personal reasons—to have to admit that you were somewhere or other, where someone else did not think you were. For those reasons, we ought to make it clear that these examinations are taking place in chambers or in circumstances which are not public. My Lords, I beg to move.
§ Lord MACKAY of CLASHFERNMy Lords, the present position is that judicial examination is in private. The intention is that this further judicial examination should he in private rather than in open court. I should like to have an opportunity to consider whether the best way to make that plain, if it is not plain already, is by giving effect to my noble friend's amendment, because this might tend to cast doubt on other provisions where it is intended that the sheriff should operate in chambers. If we express it in one place, it might raise difficulties about another. But so far as the principle of the matter is concerned, we entirely accept what my noble friend has said and go along with it.
The Earl of SELKIRKMy Lords, I thank my noble and learned friend very much. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§
Lord MACKAY of CLASHFERN moved Amendment No. 2:
Page 5, line 17, leave out ("subsection (2) below") and insert ("the following provisions of this section").
§ The noble and learned Lord said: My Lords, this is a drafting amendment to introduce the details of the amended provision. I beg to move.
§ On Question, amendment agreed to.
1240§ 7.11 p.m.
§
Lord MISHCON moved Amendment No. 28:
Page 5, line 21, leave out ("prosecutor") and insert ("sheriff but only").
§ The noble Lord said: My Lords, there is no doubt that the whole of the examination that is considered in Clause 6 is a matter of great importance in regard to the accused person, or the person who may be accused. Under the wording of the clause as we now have it, it is the prosecutor who asks all these questions. I ask your Lordships not to think—as lawyers too often think—in terms of being acquainted with courts and thinking it perfectly reasonable that questions should be asked and answered. I ask your Lordships to think of the accused person, and, by inference of our law—Scots law, too—that person will not be considered guilty until found guilty, when at this examination it is not his own lawyer who is asking him questions; it is not even the sheriff who is asking him questions; it is the prosecutor who is asking him questions.
§ Your Lordships will be dealing in a moment (and I shall not go off at a tangent at this point) with the type of questions that will be asked. But they will be questions that deal with alibi, where the accused was, what he has to say by way of explanation and so on. If your Lordships try to put yourselves into the position of the accused, you will wonder in what fashion it is that justice appears to be done when it is not his own friend and lawyer and professional guide, and not the judge, but the person who is prosecuting who is asking the questions. Therefore, the amendment seeks to put the questioner as the sheriff and not the prosecutor. I very much hope that, on further reflection, the noble and learned Lord the Lord Advocate will feel that justice will be seen to be done if the questioner is made the judge. My Lords, I beg to move.
§ Lord FOOTMy Lords, I remember on Second Reading, when we raised this matter of who should conduct an examination and ask the questions, that it was said then that this procedure of reviving the judicial examination was being done primarily for the benefit of the accused, so that he would have an early opportunity, if possible, to clear himself altogether of the 1241 charge by being able to explain matters at that early stage. I asked the question at that time, the same question as is, in effect, asked by this amendment: If that was the case, and the whole thing was designed primarily for the benefit of the accused, why could the questions not be put by the accused's solicitor?
Since that time—and I do not like disagreeing with the noble Lord, Lord Mishcon, about this—I have had occasion to look at the Thomson Committee's report, and I should like to quote to the House what it says about this, because the Committee considered whether it was better for the sheriff or the procurator fiscal to ask the questions. What they said in paragraph 8.12 on page 42 was:
We considered whether the sheriff or the procurator fiscal should ask the questions at the judicial examination. We think that the advantage lies in the procurator fiscal doing so since, unlike the sheriff, he will have knowledge of the case and the relevant facts. The sheriff, however, will be in control of, and responsible for, the conduct of the proceedings. This step in procedure is so important that we consider that judicial examination must always be conducted before a sheriff and not before a magistrate. We so recommend".I think there is virtue in that.I am entirely unfamiliar with the Scottish system of judicial examination. I gather that it has almost fallen into desuetude over recent years and is now being revived under the Thomson recommendations. But, as I understand it, under these new recommendations the sheriff will not know what questions to ask, unless he is previously given the papers in that case by the procurator fiscal, and, presumably, invited by the procurator fiscal to ask certain relevant questions. To some extent, instead of being in an impartial position in presiding over this inquiry, the sheriff will be putting the questions at the instance of the procurator fiscal and may therefore appear to be acting on behalf of the prosecution, rather than maintaining an independent poise.
I am reinforced in my belief that the Thomson Committee got it right by reason of the fact that in all the amendments which we shall be considering in a minute, and the amendments which the Government have put forward to their previous clauses, if I understand them correctly, they are importing into the Bill the safeguards that were recommended by the Thomson Committee. They have gone a 1242 very long way towards doing that, and therefore they have, in particular, done precisely what the Thomson Committee recommended, which is that the sheriff will be in control of and responsible for the conduct of the proceedings. For all these reasons, I have come to the conclusion that, on balance, it would be best to follow the recommendations of the Thomson Committee in this and in other matters which we shall be discussing under the other amendments.
§ 7.19 p.m.
§ Lord MACKAY of CLASH FERNMy Lords, I am grateful to noble Lords for raising this matter and to the noble Lord, Lord Foot, for reminding us of the Thomson recommendations. The reason why we have thought it wise to put this matter first on to the procurator fiscal is exactly the reason which has been quoted from the Thomson Committee's report. We think it vitally important that the accused should feel that there is someone independent, who is there as the arbiter of whether the questions are fair. Human nature being what it is, even in the exalted position of a sheriff, if he is responsible for constructing the questions and putting them, he cannot be quite such a good judge of whether they are fair. It is much easier that he should be, as it were, the arbiter of that matter. Accordingly, in the light of the Thomson recommendations and for these reasons I would invite your Lordships to agree that the sheriff should have the role of being in charge of the proceedings and seeing that they are fairly conducted, but it should be left to the procurator fiscal to put the questions, as the Bill at present proposes.
§ Lord FRASER of TULLYBELTONMy Lords, may I say briefly that in my view the clause is right as it stands. I agree very much with what the noble Lord, Lord Foot, said about this. Whoever is going to ask the questions will have to prepare himself, read up the case and know what questions to ask. That is not the business of the sheriff in the ordinary case. If he had to do that we should be going a long way down the road towards an inquisitorial system. It is much better that these questions should be asked by the procurator fiscal, who will know what the appropriate questions are, 1243 and then there will be an impartial sheriff presiding over the whole procedure. I think there is no doubt that that is the proper procedure. Therefore I think it would be a great mistake if this amendment were to be adopted.
§ Lord MISHCONMy Lords, it is with some diffidence that again I rise to try to persuade your Lordships and to move the noble and learned Lord the Lord Advocate from what he has just said, especially in view of the fact that a very learned law Lord has just spoken against this amendment. I still feel, with the greatest possible respect to the Thomson Committee and to what has been said by the noble Lord, Lord Foot, that the attitude of the accused has been ignored.
I do not follow, if I may say so most respectfully, the argument that it is impossible for the sheriff properly to conduct this questioning since it would mean that he would have to learn about the facts of the case. I repeat with great respect that I feel that is a bad argument for two reasons. First, your Lordships will subsequently be dealing with what will, I imagine, except possibly for the wording, be an unopposed amendment. I am looking at Amendment No. 33, which is to be moved on behalf of the Government, and which limits the line of questioning to two matters—whether any account which the accused can give ostensibly discloses a category of defence, and the nature and particulars of that defence. It does not need a very detailed knowledge of a case for an experienced sheriff to be able to conduct a line of questioning on those grounds. Indeed, the lawyer for the defence is very probably there, and certainly the prosecutor is there in order to submit questions to the sheriff to ask, if that should be necessary.
The second reason why, quite frankly, I do not follow the argument of the noble and learned Lord the Lord Advocate—I believe that this was also the argument of the noble Lord, Lord Foot—is that he said the sheriff would be there in order to see that justice is done in regard to the questions asked. How can the sheriff tell whether justice is being done in regard to the questions asked unless he knows something about the facts of the case?
So I am intent only upon this: that it is 1244 for every accused person in our courts, whether north or south of the Border, to feel that the atmosphere is one of objectivity until the final verdict is passed. I do not think that that atmosphere is created where the line of questioning at a preliminary hearing of this kind is by the prosecutor. So again I ask for further thought by the Government about the matter. I hope that the noble and learned Lord will at least say that further consideration will possibly be given to this matter in the light of what has been said today, so that there could be second thoughts before the Bill finally becomes an Act.
§ On Question, Amendment negatived.
§ 7.24 p.m.
§
Lord MACKAY of CLASHFERN moved Amendment No. 29:
Page 5, line 22, after ("any") insert ("denial,").
§ The noble and learned Lord said: My Lords, if I may, I will speak to Amendments Nos. 29 and 30 together. We are not doing anything of substance here. However, it is felt that "denial" is the important matter in this situation and that therefore "denial" should come first in the presentation of the various matters that are to be the subject of questioning. I beg to move.
§ On Question, amendment agreed to.
§
Lord MACKAY of CLASHFERN moved Amendment No. 30:
Page 5, line 23, leave out ("denial").
§ On Question, amendment agreed to.
§
Lord MISHCON moved Amendment No. 31:
Page 5, line 23, leave out ("denial, justification or comment").
§ The noble Lord said: My Lords, the noble and learned Lord was correct when he said that very little was done by the previous two amendments except to put emphasis upon the word "denial", bring it to the fore and make it the first of those matters about which some explanation or other is elicited at the preliminary judicial hearing.
§ The purpose of Amendment No. 31 is to limit this questioning to matters which I hope your Lordships will agree represent the one thing that a preliminary hearing of this kind ought to try to achieve—namely, an explanation. If it were 1245 limited to that, then all of us would know that this will not become the inquisitorial procedure that the noble and learned Lord referred to when he was dealing with another amendment. It is only, surely, a question of explanation. It is not, surely, a question of the prosecutor being allowed to question on matters which relate to denial, or on matters which relate to justification, or on matters which relate to comment, which are the three words which follow the word "explanation" in the Bill but which will now follow the word "denial" because of the transposition of "denial". Is it necessary to go beyond "explanation"? Is not that sufficient at a preliminary hearing? I hope that your Lordships will agree to this amendment. I beg to move.
§ Lord FOOTMy Lords, I should have thought that the appropriate amendment in view of what the noble Lord has just said, would be not to leave in the word "explanation" but rather to leave in the word "comment" and eliminate the others. I say that for this reason. If a person is brought up at this judicial examination and then asked to give an explanation of the matters referred to in the charge, or anything of that kind, that is automatically—is it not?—an infringement of the principle that everybody is to be regarded as innocent until he has been proved to be guilty, because the very words—that the accused should be given an opportunity to put forward any explanation that he has to give—presume that he has something to explain. Surely that is a presumption which is contrary to the general presumption of law that not only is he entitled to remain silent but also that it is no business of his to offer explanations about his conduct, at any rate, until he comes to be tried?
I should have thought, therefore, that the noble Lord's purpose in moving this amendment would be better met by leaving out all the words except "comment", because that word is neutral, if I may say so. It does not imply that the accused has something to explain; it merely affords him the neutral opportunity of making any comment that he wants to make about the various matters which are referred to later in the clause. I simply think that as a matter of legal language the noble Lord may have got it wrong.
§ Lord MACKAY of CLASHFERNMy Lords, the general structure of judicial examination is fairly closely confined by the amendments which we shall be considering later, but I would respectfully suggest to your Lordships that judicial examination, to be a proper one, would have to allow questions which invited the accused, or gave the accused an opportunity, to deny matters alleged in the charge. Indeed, that seems to be the first thing that he might want to do. Or, in some circumstances, to justify the actions alleged because he accepts that it happened, but he has some justification for it, such as, for example, that he struck a blow in self-defence. Or he may want to offer comment, such as, for example, that he knows what happened and he knows who did it. He is able to incriminate somebody else, as we usually say.
So in my submission to your Lordships it is perfectly reasonable to have a fairly broad set of headings under which questions could be put on the lines proposed. I suggest that to restrict the questioning to explanation only gives a flavour, on lines which the noble Lord, Lord Foot, described, but also is too restrictive, it does not give a full opportunity to the accused to say what he might have to say that would be relevant in dealing with the charge from his point of view. I therefore invite your Lordships not to accept this amendment.
§ Lord FRASER of TULLYBELTONMy Lords, I should like to add one comment to what the noble and learned Lord the Lord Advocate has just said. One of the matters on which denial or explanation is relevant is in paragraph (b)
The alleged making by the accused of an extrajudicial confession".One of the objects of this whole procedure, I should have thought, was to give the person the opportunity of denying that he did make it. Surely if we delete "denial", it will deprive this procedure of a large part of its purpose.
§ On Question, amendment negatived.
§ Lord MISHCON moved Amendment No. 32:
§
Page 5, line 25, leave out paragraph (a) and insert—
("(a) his whereabouts on any occasion to which the charge relates; ").
§ The noble Lord said: My Lords, having now to realise, in view of the failure of the last amendment, that there is to be a series of headings under which questions may be put at these proceedings, it becomes necessary to be sure that the area in which questions under all those four headings may be put, is very clearly limited. The Bill, as it stands, in paragraph (a) allows questioning in regard to such a general area as "matters averred in the charge". What we seek to do by this amendment is to limit that area very definitely, because I believe I am right in saying that the arguments which have been advanced in respect of paragraph (a) are that this will give the opportunity for any question of alibi defence to be inferred, if not openly stated, by the accused, with the result that the prosecution will be able, quite properly, to investigate the genuineness of that alibi. Indeed, in defence of the accused if the alibi is found to be a genuine one, presumably it would lead to the dropping of a charge.
§ Therefore, what we seek to do in this amendment is to limit paragraph (a) to the whereabouts of any occasion to which the charge relates without allowing the questioning to go deeper and, indeed, in a very wide way over a field which is a large and substantial field if the words are "matters averred in the charge". I beg to move.
§ Lord MACKAY of CLASHFERNMy Lords, I accept that this is an improvement on the Bill as it stands at the moment and that it is necessary to limit paragraph (a). However, I also consider that it limits paragraph (a) in a slightly unbalanced way. It limits it to alibi. Alibi is certainly an important area for this paragraph to apply to, but it is not the only area and, if your Lordships will bear with me, in due course I shall move an amendment which has a limiting effect, although it will not limit the matter to alibi only. I think it would be a mistake to limit the clause to alibi only, because there are other situations in which it could be useful and we shall endeavour to persuade your Lordships later that we have succeeded. This is a difficult thing to define, and that is one of the reasons why, on the whole, I felt originally that it was wise to have some flexibility, but we have attempted it now and our efforts will be put before your Lordships in a moment.
§ Lord MISHCONMy Lords, having at least scored a single if not a boundary, I find myself so full of rejoicing that immediately, upon the terms mentioned by the noble and learned Lord, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 7.37 p.m.
§ Lord MACKAY of CLASHFERN moved Amendment No. 33:
§
Page 5, line 25, at end insert—
("Provided that the particular aims of a line of questions under this paragraph shall be to determine—
§ The noble and learned Lord said: My Lords, this is the amendment which has the effect, from our point of view, of limiting heading (a) and the idea is to get at matters within the knowledge of the accused which would disclose a category of defence—an alibi, the one referred to by the noble Lord, Lord Mishcon, a moment ago is the first example. We have put in "incrimination", which is the allegation that someone else committed the offence. The consent of an alleged victim is taken as one of the most important examples of the sort of defence which would arise to make what otherwise would be an offence, not an offence at all (for example, in the case of rape), and of course it is a matter particularly in the knowledge of the accused. So paragraph (i) is intended to elicit whether there is any category of defence available to the accused in the light of his knowledge of the facts.
§ Paragraph (ii) is intended to give opportunity for that defence to be made more particular in some circumstances. I have had some discussion with noble Lords about this matter and it is not easy to get it exactly right, but, having regard to the provisions which we hope to incorporate about the questions being fair and so on, it may be that your Lordships will feel that this is correct. The words, "the nature and particulars of that defence", are intended, for example in the case of alibi, to enable the prosecutor to ask where the person was, and possibly 1249 also whom he was with, and something to indicate whether the alibi can be checked. That would obviously be of great assistance. On the other hand, where it is a matter of the consent of an alleged victim, there may not be room for much further particularisation. So the way in which this clause would apply would be subject to the rulings of the sheriff as to what is fair in the circumstances, and I invite your Lordships to approve this amendment. I beg to move.
§ Lord FOOTMy Lords, I wonder whether I might comment upon two aspects of this amendment. The noble and learned Lord the Lord Advocate said, quite rightly, that it is, of course, difficult to find satisfactory words particularly when you come to paragraph (ii) "the nature and particulars of that defence". In the case of the alibi he said that as he saw it the way in which those words would apply was this. If the accused person says, "Yes, I was elsewhere at the time", then the procurator fiscal should be allowed to go on and say Where were you?", and possibly "Who were you with?", and so on. I do not see very much objection to that. I do not know exactly what the procedure is in England at the present moment, but, as the noble and learned Lord will probably know, there is a provision in this country whereby if a person is intending when he gets up to the Crown Court to plead an alibi he is required to give notice of that alibi some seven days before the hearing in order that the police may have the opportunity of checking on it. So far as I know, under that procedure he has not got to give particulars of who he was with. So far as I know, he only has to say where he was and when, in order that the police can make their inquiries. I would have thought that would have been sufficient in this case.
I am a little more disturbed about the affect of the words "the nature and particulars of that defence". When one turns to the question of consent, if one is faced with a case of rape why should it not be sufficient for the accused to say" My defence is that the woman consented", and leave it at that? Under these words it seems to me that the procurator fiscal might very well be able to go on and say, "I am entitled to ask you 1250 questions about the nature and particulars of that defence of consent. So I want you to tell me in detail exactly where you went with this woman on this occasion, what led up to the act of intercourse to which you say she consented?", and without asking leading questions to ask for full particulars of all the circumstances which go to make up the defence of consent. I would have thought that that was very objectionable, and I cannot see in what way the prosecution would be at any unreasonable disadvantage if the accused could confine himself to saying, "My defence to this charge of rape is consent and leave it at that. Why should he go further? Why should he be pressed further at this stage?
If you allow him to be pressed further, either on the defence of alibi or the defence of consent, or even on the defence of incrimination, surely the trial has begun and you have got past the stage of allowing the accused to give a reasonable explanation of something or comment upon something or deny something; you have got past that stage and entered into the field of investigation and the accusatorial system under which the case will later he conducted. Naturally, I have not put down an amendment to the amendment, but I would invite the noble and learned Lord to consider between now and the next stage whether the words included in paragraph (ii) are indeed necessary at all.
§ Lord MISHCONMy Lords, let me at once say that we welcome the proviso in Amendment No. 33, which is directed to this purpose, and it is a very proper purpose; it is directed to limiting the sphere of the questions that can be put. I hope I will not be thought ungracious if, having said that, I suggest that the wording now in this proviso is somewhat woolly. If we managed to be a little more precise in the wording—and I ask the noble and learned Lord the Lord Advocate to think about this—I think we should make the job of the sheriff, who is sitting there now as the umpire, as it were, a little easier, and the job of the prosecutor, who is putting the questions, a little more sure and certain.
Your Lordships will see that the wording is,
Provided that the particular aims of a line of questions… ".1251 I appreciate that the learned sheriff can at any stage stop the prosecutor and say, "Will you kindly tell me why you are asking that question and what your aim is in regard to it?" But if we are trying to use precise language in limiting the area of the questions, would it not be very much better English, and much clearer direction, if the words were,Provided that the line of questions under this paragraph shall be restricted toor "confined to" or words to that effect. I do ask the noble and learned Lord the Lord Advocate—and I hope he will not think my appreciation of this proviso is any the less because of this suggestion—to look at this clause again with possibly that sort of wording in mind, only to make it abundantly clear as to where the line of questions is supposed to be directed to and make the job of the sheriff rather easier.
§ Lord MACKAY of CLASHFERNMy Lords, certainly we are obliged for all assistance in this rather difficult matter. So far as Lord Foot's concern with consent goes, I would point out that I am proposing a little later to move that the questions should not be designed to challenge the truth of anything said by the accused, so that that will considerably limit the sort of difficulty I think he has in mind. Naturally, the process of trying to improve this Bill will continue both here and in another place, and if we can come up with something better than we have got, by all means we shall do so. I hope your Lordships will feel able to approve this amendment now.
§ On Question, amendment agreed to.
§
Lord MACKAY of CLASH FERN moved Amendment No. 34:
Page 5, line 26, after ("accused") insert (", to or in the hearing of an officer of police,").
§ On Question, amendment agreed to.
§ Lord MACKAY of CLASHFERN moved Amendment No. 35:
§
Page 5, line 28, at end insert—
("Provided that questions under this paragraph may only be put if the accused has, before the examination, received from the prosecutor or from an officer of police a written record of the confession allegedly made; or").
§ The noble and learned Lord said: My 1252 Lords, this is a purely drafting amendment. Instead of following the clause as a whole, as the proviso stands at present, we thought it better to follow immediately paragraph (b) to which it really relates. I think this is an improvement. I hope your Lordships will approve this amendment. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 36 not moved.]
§ The DEPUTY SPEAKER (Lord Alport)My Lords, I have to inform your Lordships that if Amendment No. 37 is approved I cannot call Amendments Nos. 38, 39, 40 and 41.
§ 7.48 p.m.
§ Lord MACKAY of CLASHFERN moved Amendment No. 37:
§
Page 5, line 31, leave out from ("examination") to end of line 7 on page 6 and insert—
("( ) The prosecutor shall, in framing questions in exercise of his power under subsection (1) above, have regard to the following principles—
( ) The accused, where he is represented by a solicitor at the judicial examination, shall be told by the sheriff that he may consult that solicitor before answering any question.
( ) With the permission of the sheriff, the solicitor for the accused may ask the accused any question the purpose of which is to clarify any ambiguity in an answer given by the accused to the prosecutor at the examination or to give the accused an opportunity to answer any question which he has previously refused to answer.
( ) An accused may decline to answer a question under subsection (1) above; and, where he is subsequently tried on the charge mentioned in that sub-section or on any other charge arising out of the circumstances which gave rise to the charge so mentioned, any such declination may be commented upon by the prosecutor, the judge presiding at the trial, or any co-accused, only where 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.") ".
§
The noble and learned Lord said: My Lords, this is the major amendment which
1253
seeks to incorporate into the Bill the various matters designed to safeguard the accused's position in the procedure. I do not know that I need to refer to these in detail; I hope they are reasonably plain. I have referred to paragraph (a) already; paragraph (b), no reiteration of a question, is also, I think, a useful safeguard; and (c) is that there should be no leading questions; then there is reference to the sheriff having a duty in charge of the whole procedure to ensure that all questions are fairly put to and understood by the accused. The provision states:
The accused, where he is represented by a solicitor at the judicial examination"—
and there are arrangements for him to be able to get that assistance, generally speaking—
shall be told by the sheriff that he may consult that solicitor before answering any question";
so that he has a full opportunity of considering what he is going to say in answer to any question. Then with the permission of the sheriff the solicitor for the accused may ask any question to clarify any ambiguity in an answer given, or to give him another opportunity of answering questions which he has declined to answer previously. Some of these proposals owe their origin to suggestions made to me by the noble and learned Lord, Lord McCluskey, when we discussed these amendments in draft, as I sought to do both with him and with others.
§ The following subsection, which is on page 7 of the Marshalled List, is one to which I desire to draw your Lordships' attention in particular. The question has been raised with regard to this judicial examination of the right of silence, and it has been suggested that judicial examination erodes that right, affects it adversely. This provision makes it clear that comment by the judge, the prosecutor or any co-accused is to be allowed only where and in so far as the defence in evidence avers something which could appropriately have been stated in answer to a question at judicial examination. In other words, if an accused person refuses to answer any question at judicial examination, and also does not go into the witness box, as he is entitled to, the fact that he has not spoken at judicial examination shall not be commented on. Therefore, as I have understood it, the right of silence is in no way affected. But if, being silent at judicial examination, the accused or 1254 witnesses on his behalf come forward with an explanation at the trial, then it will be open to those mentioned to say, "Well, you were asked a question to which this would have been a very satisfactory answer at the judicial examination long ago. Why did you not do so?" He might have a good explanation or he might not. That is the restriction put upon the comment. I suggest to your Lordships that it is suitable.
§ While I am on this point, perhaps I could mention that there is no need to make any provision for the defence commenting, because the defence have no restriction in commenting on anything they wish on this line. It is the people who are likely to be restricted who are mentioned in this provision, and that is the reason for it. I beg to move.
§ Lord MISHCONMy Lords, there is not the slightest doubt that this represents a great improvement on the Bill as drafted and as we considered it last time in Committee. We are all very grateful to the noble and learned Lord, Lord Mackay of Clashfern, for having listened so carefully to the arguments that we and others in your Lordships' House have presented on the last occasion, with the result that we have this amendment.
There is one tragedy that results from it. If, of course, one substitutes an entirely new provision for what was formerly in the Bill, an amendment—as has been so properly said—falls if the new substitution, which is an omnibus one, succeeds. Therefore, I hope I shall be in order if—without, of course, being at liberty to move the amendment or to talk to the amendment which will now fall if Amendment No. 37 is approved by your Lordships—I mention the question of the right of the accused at proceedings, which are of considerable importance to him, to say to the sheriff that although the duty solicitor, who he may have had accorded to him, was most likely a very charming and helpful gentleman, he would prefer to have his own solicitor present at the proceedings, in which event the sheriff would give him the opportunity of so doing. As I said, I merely ask for that to be considered because I shall be silenced now with regard to that amendment which deals with that point.
§ Lord FOOTMy Lords, I should like to raise two matters. One is purely a matter of information. Under this new subsection at the top of page 7 of the Marshalled List, I understood the noble and learned Lord to say that if the accused at the judicial examination says, "I do not want to answer a question", no one will have the opportunity later of commenting upon his refusal unless something is averred at the trial which conflicts or about which he might have been expected to give an explanation if the question had been put to him and he had replied to it. What is the situation if this happens: At the beginning of a judicial examination when the procurator fiscal gets up and begins to ask his first question, what happens if the accused then says,"I do not want to answer any questions", and the matter therefore comes to a conclusion? Does the prosecutor then go on and say, "I shall put my questions to you in order that you can say to each one that you will or will not answer it." If that happens, I can understand that the system will work.
However, let us suppose that the accused can enter an omnibus plea at the beginning and say, "I do not want to answer any questions at all". In that case, I do not see how this clause can come into effect, because no specific question has been put to the accused which he failed to answer and upon which comment could therefore be made at the trial. I do not know whether the noble and learned Lord can help me on that.
My other point is a minor point. Throughout my life I have never come across the word "declination". It appears in the fifth line of the amendment on page 7 of the Marshalled List. I understand what the word is intended to mean, but I was so surprised at seeing it that I looked it up in the dictionary. The only dictionary I had available was an English dictionary. It may he that the word has a meaning in Scotland which it does not have in England. However, I can inform the noble and learned Lord, the Lord Advocate that according to the Oxford English Dictionary, used in this sense and meaning the substantive of the verb "decline", in England the word is obsolete and the last time it was used was in 1612. I do not know whether that situation obtains in Scotland, but if 1256 we start to use the verb "decline", there is then a difficulty if we want to go on and invent a suitable substantive. I suggest that the only way of doing it would be to use the verb "refuse", and then the noun "refusal", but that might he carrying the matter a little far because the definition of the obsolete word "declination" in the dictionary is a "polite refusal".
§ 7.57 p.m.
§ Lord FRASER of TULLYBELTONMy Lords, like the noble Lord, Lord Mishcon, I should like to welcome this clause which meets one of the points which I raised at the last stage. I want to ask one question about the use of the Ards. "should", or, "should not". The new subsection says that:
The prosecutor shall, in framing questions…have regard to the following principles—and so on. I do not know exactly what the word "should" in an Act of Parliament means. It is not a word which we commonly find there. I cannot say that it is never found in any Act, but it is certainly not very common. Let us suppose that the prosecutor wants to ask a question about which the sheriff is doubtful. The prosecutor may have a good answer saying, "I have referred to the following principles, that they should not be designed to challenge; but having had regard to them, I still want to ask the question. There is a good reason for it." I doubt that that is what is intended, but it is what may happen. There may be some explanation for this, but I feel rather unhappy about the way in which the subsection is worded.
- (a) the questions should not be designed to challenge the truth…
- (b) there should be no reiteration…"
The EARL of SELKIRKMy Lords, I should like to draw attention to one point. In the Thomson Report on the objects of judicial examination, paragraph c on page 43 is designed particularly to protect the accused. I am not very sure whether this is quite the place to raise this, but I should like to draw attention to it. It reads:
…to protect the interest of the accused who has been interrogated by police officers and who has given answers or made statements to the police, so as to ensure as far as possible that any such answers or statements which are to be used as evidence at the accused's trial have been fairly obtained and are not distorted or out of context".1257 I am not sure where this comes in, or whether it does come in. But it seems to me an integral and important part of the judicial examination. If the police have behaved badly, this is the obvious place where it should be brought up. It is a check of very great value for this purpose.I am not sure whether in the redrafting—and I wholly agree with the noble Lord, Lord Mishcon, and the noble and learned Lord, Lord Fraser, that it is a great improvement—this particular point does come in. I throw doubt to the noble and learned Lord. I have not put an amendment down because I do not see where it should fit in, but consideration should be given to this point of protection for the accused which has been recommended by the Thomson Committee.
§ Lord MACKAY of CLASHFERNMy Lords, may I try to answer these questions in the order in which they came. First, I think it would be necessary, if the prosecutor was going to have available a comment in respect of any particular question, that that question would have to have been put. Therefore, it would not be sufficient for the prosecutor to stop if the accused shows a general—I was almost going to say declination—to answer any more questions. This is part of the reason why we have given the solicitor a right to suggest that a question he put again, because the accused might refuse to answer some of the earlier questions and then adopt a slightly different frame of mind and answer later ones, then decide, having answered the later ones, that he would have been wiser to answer the earlier ones. This gives this opportunity.
So far as declination is concerned, we took the view that we should be as polite about this as possible, and that is why we used "decline" rather than "refusal". Perhaps I may be allowed an opportunity to take advice on how common the word "declination" is in Scottish literature.
§ Lord FOOTMy Lords, may I interrupt the noble and learned Lord? Since I spoke I have been advised that the proper word is "declinature".
§ Lord MACKAY of CLASHFERNMy Lords, there certainly is a word "declinature". Perhaps I may get an opportunity to consider further whether "declina- 1258 tion" is appropriate or whether something else should be substituted.
So far as Lord Fraser's questions are concerned, we thought that these were the principles of fairness to which the sheriff should have particular regard. Fairness generally, but in particular these principles of fairness. I think that is the reason why the clause has been framed in this way.
I shall be glad to reconsider whether the word "should" might be appropriately changed for something else. I shall certainly consider that. This was thought to be the best phraseology when we put these amendments together. This is a matter we shall be happy to consider at some later stage, either here or in another place.
§ Lord MISHCONMy Lords, with the leave of the House, would the noble and learned Lord care to deal with the question of the duty solicitor?
§ Lord MACKAY of CLASHFERNMy Lords, I am happy to do that now. The situation is that we agree in principle that provisions should be made for the sheriff to allow an accused person to get a solicitor of his choice. I explained that to the noble Lord's noble friend when I spoke to him earlier. We are not able however to agree that that could be done independently for reasons which will be apparent. We hope to bring forward the necessary amendment to incorporate what I have already said, probably in another place because there are amendments required to the legal aid legislation as well as the criminal justice legislation. On that footing, perhaps the noble Lord will be able not to press the matter further at this stage.
§ Lord MISHCONMy Lords, I am much obliged.
§ On Question, amendment agreed to.
§
Lord MACKAY of CLASHFERN moved Amendment No. 42:
Page 6, line 16, leave out ("subsection (2)") and insert ("subsections (2) and (3)").
§ The noble and learned Lord said: My Lords, if I may, I will speak to Amendments Nos. 42, 43, and 117 together. They seek to provide that either the 1259 defence or the prosecutor may apply to the court for a preliminary diet in order that any matters connected with the record of the judicial examination should be disposed of before the trial. There may be questions, for example, about whether a particular answer should be admitted in evidence at the trial, or whether a particular question would be admissible, to be founded on, in the way I explained earlier, at the trial. It seems suitable that that should take place at the preliminary diet. These amendments are intended to make it clear that that is possible, and I commend them to your Lordships.
§ On Question, amendment agreed to.
§
Lord MACKAY of CLASHFERN moved Amendment No. 43:
Page 6, line 29, leave out ("; and") and insert (".(3) Subject to section 76(1)(b) of this Act,").
§ On Question, amendment agreed to.
§
Lord MACKAY of CLASHFERN moved Amendment No. 44:
Page 6, line 35, leave out ("subsection (2)") and insert ("sub-sections (2) and (3)").
§ The noble and learned Lord said: My Lords, if I may I would speak to Amendments Nos. 44, 45, and 46 together. These provide that either the defence or the prosecutor may apply to the court to refuse to admit the record of judicial examination (or part of the record) as evidence in a summary trial, but only if at least 10 clear days' notice of the application has been given to the accused and the other parties except on cause shown.
§ This, like the previous group of amendments to which I have just spoken, is intended to ensure that the record of judicial examination is entered at the trial with the agreement of all parties, and that time at the trial is not wasted with disputes over the record which could properly have been settled before. This aim would not be achieved if it were possible to delay notification of objection to the record until shortly before the trial itself. The amendments therefore provide for a period of 10 clear days before the trial, within which it is not possible to notify the court and the other parties of an application for the record, or part of it, not to be admitted in evidence. There is of course 1260 an exception made for cases where the court accepts a late application on cause shown. I beg to move.
§ On Question, Amendment agreed to.
§
Lord MACKAY of CLASHFERN moved Amendment No. 45:
Page 6, line 45, leave out (";and") and insert (".(3) Subject to subsection (4) below").
§ On Question, amendment agreed to.
§ Lord MACKAY of CLASHFERN moved Amendment No. 46:
§
Page 7, line 3, at end insert—
("(4) Except on cause shown, an application under subsection (3) above shall not be heard unless notice of at least 10 clear days has been given to the court and to the other parties.").
§ On Question, amendment agreed to.
§ [Amendment No. 47 not moved.]
§ 8.7 p.m.
§ Clause 9 [Citation of defence witness for precognition]:
§
The Earl of SELKIRK moved Amendment No. 48:
Page 7, line 43, after ("sheriff") insert ("in chambers").
§ The noble Earl said: My Lords, we are now dealing with a process of which I must confess I am entirely ignorant. I did not know it existed. I presume, as I have said on the other occasions I mentioned this, that these matters will be taken by the sheriff in chambers; that is to say, they will not be public. That is what I presume. Perhaps I might just move accordingly.
§ Lord MACKAY of CLASHFERNMy Lords, the situation here is similar to that which I dealt with earlier. The intention is that it should be in chambers. We think that is implicit. To make it explicit in this case might cause difficulty, but we would be glad to look at that matter and make sure that it is in proper form from that point of view.
The Earl of SELKIRKMy Lords, I am grateful to the noble and learned Lord. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
1261
§
Lord MACKAY of CLASHFERN moved Amendment No. 49:
Page 7, line 45, after ("precognition") insert ("on oath").
§ The noble and learned Lord said: My Lords, this amendment is intended to deal with a matter which was raised by the noble and learned Lord, Lord Wheatley, and others at the Committee stage. The procedure which is proposed here is to make available to the defence facilities which are in line with those available to the prosecution. The prosecution have the right, in circumstances which are fairly general, to precognosce witnesses on oath. That would not be done except in somewhat special circumstances, and it is thought right to give the same facilities to the defence. The result of that will be that the matter will be a fairly solemn one, and the various provisions in the Bill are appropriate to that.
§ Your Lordships may remember that questions were raised about whether or not it was appropriate to have an offence in relation to prevarication in his evidence if the person was not on oath. It seems right that there should be available the right to put him on oath. Of course, the existence of this power does not mean that it would have to be often used. It would be a last resort of the defence to put a particular witness on oath, but it might be very necessary in some circumstances to do that. The sheriff has a discretion whether or not to grant the application. In moving this amendment, I am speaking at the same time to Amendments Nos. 50 and 52.
§ On Question, amendment agreed to.
§
Lord MACKAY of CLASHFERN moved Amendment No. 50:
Page 8, line 2, after ("precognition") insert ("on oath").
§ On Question, amendment agreed to.
§
The Earl of SELKIRK moved Amendment No. 51:
Page 8, line 7, leave out from ("£50") to (";and") in line 8.
§ The noble Earl said: My Lords, I must admit that I am not very enamoured of Clause 9. I think it is an improvement that it should be taken on oath and the noble and learned Lord said it would not be often used, but there is no reason why 1262 it should not be. It is clearly intended, as I think is plain from the Thomson Report, that this is to be used only in cases of very reluctant witnesses. However, it does not say that in the Bill and it looks as if it could be used at any time.
§ On the face of the clause as drafted, somebody could receive a letter saying that within 48 hours he will appear before the sheriff, and of course I do not know what the letter will contain. He will then come before the sheriff and be asked what he knows about the big bank robbery or whatever the case may be. Many people might be very worried at being asked that sort of question—they might indeed lose their head—and if they annoy the sheriff too much they will find themselves in Barlinnie Jail by lunchtime for prevarication.
§ I do not want to cast any reflection either on the procurator fiscal or the sheriff in relation to what they will do, but I should like there to be in the Bill something to show that this is not to be handed to somebody who has not already been precognosced or approached for evidence, who is perfectly aware that he is needed to give evidence, who has flatly refused to so do and has perhaps been offensive in the course of doing so, and, as a last resort, is being brought before the sheriff to be examined and under very severe circumstances; the sheriff can fine him, send him that afternoon to prison and tell him to stay there for 14 days or whatever the period may be. Let us be frank about it: afterwards, when he applies for an appointment, what is the question? "Has he a prison record?" and the answer is, "Yes, 14 days in Barlinnie for prevarication".
§ This is a strong and Draconian clause. I think the noble and learned Lord said at an earlier stage that the prosecution could do this as well. I do not know where that comes in and it does not come into the 1975 Act; perhaps it is contained in some other Act. I really would like something either to modify the clause or show that it is in fact a clause of last resort. The noble and learned Lord said it will not be often used but I must ask, with respect, how he knows that. The accused could apply to the sheriff and tell a story and I imagine the sheriff would be very reluctant to turn 1263 down an application well supported with facts, even if they did not happen to be true.
§ I should like to feel that this is something which will be used only rarely. How often has it been used by the prosecution? Is there much evidence of it having been used, or is it simply held in terrorem as something that could be used in an emergency? I should have liked a rather fuller explanation of a clause drafted in such extremely strong terms by which a witness—after all, no crime has been committed—could be sent to prison straight away by the fiat of the sheriff without any indictment or charge against him. Can the noble and learned Lord tell us a little more about this? It is a rather strong clause. I beg to move.
§ Lord ROSS of MARNOCKI think the noble Earl, Lord Selkirk, has a point here, my Lords. I have always set myself up as the protector of witnesses. I entirely agree with the noble Earl on this point and I should have had my name beside his to this amendment. This is a difficult matter. I do not know whether we are entirely helped by the fact that the words "on oath" have been inserted, and certainly that has been done as a result of pressure from both sides of the House. Like the noble Earl, I am a bit confused as to what happens in prosecution cases. I had not realised that precognition was taken by the procurator on oath. I thought it was a much more informal matter, but clearly the whole thing has been formalised, and to that extent I do not know whether it will achieve the desired result. Certainly the desired result will not be achieved with this business of penalties of £50.
§ Lord MACKAY of CLASHFERNMy Lords, the prosecutor has this power in relation to the situation we are considering and it is true, as the noble Lord, Lord Ross of Marnock, points out, that precognitions are usually taken by the procurator fiscal informally. That is really the basis on which I said that this is a power of the last resort. It is used by the prosecutor only where there is some vital witness whose position must be clarified in a way which is necessary to be able to establish what was his evidence 1264 at the time. The existence of the power normally makes it possible for much more informal arrangements to be made.
As I said earlier, the clause gives power to the sheriff, on the application of an accused person, to grant a warrant to cite the witness. That is a matter of discretion and sheriffs are as conscious of the situation of witnesses generally as it is possible to be; they are in the business of conducting courts from day to day and they are very well aware of the need not to bother witnesses unnecessarily. Therefore I think I can safely claim that this is a power which the sheriff would exercise in the light of the circumstances as known to him, and he would not put this obligation on a witness unless he was satisfied that in the circumstances it was necessary to do so.
The important thrust of the clause is to give to the prosecution and the defence the same sort of apparatus, the same kind of power, for dealing with witnesses, and that is a strong recommendation of the Thomson Committee. It is for the benefit of accused persons, and that is the underlying matter to which one must have regard—that it is thought that the accused should have the same kind of basic opportunities as the prosecution in this matter. I hope that in the light of this explanation noble Lords will not feel it necessary to press the amendment.
The Earl of SELKIRKMy Lords, it is perfectly fair that the accused should have the same opportunities as the prosecutor, and the noble and learned Lord emphasised that this is a last resort when all else has failed, but there is absolutely nothing in the clause to suggest that. We leave this entirely to the discretion of the sheriff. I should like to think that they are guided in some way to the effect that this is to be used only when necessary. I do not know whether the noble and learned Lord can think of slightly redrafting the provision to make it clear that the sheriff must have a really strong case before allowing a petition of this sort to be given. There is nothing to that effect in the clause and, as I said, anybody could make out a good story without necessarily having to prove it to the sheriff. I do not say the sheriff would not have discretion, but I hope the noble and learned Lord will examine the matter with a view to making it clear that in the terms he used, there will be 1265 clear guidance to the sheriff in respect of the execution of these powers. If the noble and learned Lord will do that, I will beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 8.20 p.m.
§
Lord MACKAY of CLASHFERN moved Amendment No. 52:
Page 8, line 10, at end insert ("on oath").
§ On Question, amendment agreed to.
§
Lord ROSS of MARNOCK moved Amendment No. 53:
Page 8, line 14, leave out from ("possession") to end of line 15.
§ The noble Lord said: My Lords, this amendment deals with the point about prevarication. I am still very unhappy about this. Until the Lord Advocate mentioned that this was the very word used in respect of precognition in relation to the prosecution I did not realise that it would be used. If one really means that the person is not telling the truth, why not bluntly say that?—then people would know what it meant. But the word "prevarication" in the fairly ordinary sense is generally understood to mean a hesitation, rather than a refusal to tell the truth. Hesitation may arise with someone who stutters and stumbles over words, and such a person could be accused of prevarication. I think that "prevarication" is even a parliamentary expression. We cannot use the word "lie", but there is nothing to prevent one putting into a statute what one means. If one means that the person is not telling the truth, then that is that.
§ I think that the formalising of the proceedings will make the situation very difficult. The whole meaning of the clause has changed. It was all based on a question of fairness: the police do it, the procurator fiscal does it, so why not let the defence do it as well? Now we are told that this power is to be used only very rarely. I have my doubts about that one.
§ I am not very happy about the phrase "prevaricates in his evidence". I think that the only person who will have the right to remain silent now will be a prisoner. Here we have a witness who has to wait beside the policeman. He has to wait 1266 until he gives his name and address. The Lord Advocate has got things wrong. The person must wait until he gives his name and address.
§
There is also the question of the penalty. Here we have a penalty not only of £50, but also of imprisonment
for a period not exceeding 21 days",
which is nonsense. In a case in which the maximum fine is £50 an alternative of 21 days is too many days. There used to be a relationship between the number of days and the monetary fine. I do not think that this whole thing makes entire sense. In fact, I want to see the provision for imprisonment for a period not exceeding 21 days removed from the Bill in both cases. This is a point which the noble Earl, Lord Selkirk, also had in mind, and we shall come to it later.
§ I should be very happy to be enlightened about the question of prevarication, and to know whether this is the right word to use. Does it mean simply not telling the truth? What is the objection to inserting this into the Bill in a much more direct fashion, instead of using this word which I have not previously seen in a Scottish statute? I beg to move.
§ Lord MACKAY of CLASHFERNMy Lords, the word "prevaricate" appears in section 344(1) of the Criminal Procedure (Scotland) Act 1975. I am not sure whether I know who was the Secretary of State for Scotland when that Act was passed. But that is where the word is used in relation to evidence, and the noble and learned Lord, Lord Wheatley, gave an explanation in Committee of what he understood it to mean. I think that telling lies on oath amounts to the crime of perjury if the matter in question is substantial and is relevant to the case. Prevarication is intended to be something less than that, and of the kind that the noble and learned Lord, Lord Wheatley, mentioned. So I think that the word has at least some honourable antecedent.
§ Lord ROSS of MARNOCKMy Lord, the Secretary of State at that time, in 1975, was myself, but perhaps I was badly guided by a Lord Advocate—he is not here. I am still not very happy about this. Putting the witness on oath introduces all sorts of other possibilities regarding penalties or disciplines that 1267 could be used, without having this kind of thing. One thinks of the whole business of contempt of court. The questions are being put not by a sheriff or a judge, but by the accused or his solicitor. I think I am right in saying that. I think that it is awful that a witness on oath should be put in this position and should be subject to a fine of £50 or 21 days' imprisonment. I hope that the Government will look at this matter again. I am not entirely happy about it, but at the moment I am not prepared to press the amendment. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 54 not moved.]
§ Clause 14 [Prevention of delay in trials]:
§
Lord MACKAY of CLASHFERN: moved Amendment No. 55:
Page 11, line 27, leave out ("no proceedings shall be competent against him in respect of that offence") and insert ("he shall be for ever free from all question or process for that offence").
§
The noble and learned Lord said: My Lords, if I may, I should like to speak to Amendments No. 55, 56 and 57 together. Your Lordships may remember that in Committee the noble and learned Lord, Lord Fraser of Tullybelton, made a strong plea that we should use the words from 1701 in this Statute, instead of changing them, and we have been persuaded to do that. The words that the noble and learned Lord mentioned in particular—
he shall be for ever free from all question or process
are being substituted in place of what we proposed. I beg to move.
§ On Question, amendment agreed to.
§
Lord MACKAY of CLASHFERN moved Amendment No. 56:
Page 12, line 9, leave out ("no proceedings shall be competent against him in respect of that offence") and insert ("he shall be for ever free from all question or process for that offence").
§ On Question, amendment agreed to.
§
Lord MACKAY of CLASHFERN moved Amendment No. 57:
Page 13, line 2, leave out ("no proceedingssh all be competent against him in respect of that
1268
offence") and insert ("he shall be for ever free from all question or process for that offence").
§ On Question, amendment agreed to.
§
Lord MACKAY of CLASHFERN moved Amendment No. 58:
Page 13, line 4, leave out ("A single judge of the High Court") and insert ("The sheriff").
§ The noble and learned Lord said: My Lords, this amendment is to give effect to a proposal by the noble and learned Lord, Lord Wilson of Langside, at Committee stage, in which he was supported by the noble and learned Lord, Lord Keith of Kinkel. While the matters in issue are extremely important, these noble and learned Lords took the view that the provision for appeal to the Sheriff was an adequate safeguard for the very important rights which were in issue. We had originally thought that because of the importance of the rights the matter should be referred to a High Court judge in the first instance, but in view of these representations, and bearing in mind the quarter from which they came, we have on reflection accepted the view. I beg to move.
§ Lord ROSS of MARNOCKMy Lords, I think that this shows the character of the Lord Advocate; that he was prepared to be persuaded by what was said earlier. This reflects great credit on him, and is one of the reasons why both the Committee and Report stages have proceeded so smoothly. I am certainly grateful for what the noble and learned Lord has done, and I am sure that the noble and learned Lords whom he has mentioned will be duly gratified.
§ On Question, amendment agreed to.
§ Clause 17 [Failure of accused to attend diet in summary procedure]:
§
The Earl of SELKIRK moved Amendment No. 59:
Page 14, line 36, leave out from beginning to ("an") in line 37.
§
The noble Earl said: My Lords, this amendment concerns a point which I raised at the Committee stage. I am afraid that I am still not happy with the reply that I received from the noble and
1269
learned Lord the Lord Advocate. The words in Clause 17(2)
Without prejudice to any power which the court may have to deal with the accused for contempt…
raise the possibility of a double jeopardy; that is to say, an offence to which two separate groups of penalties can be applied. The Lord Advocate said that this is in line with the Bail Act, but I do not think that this is true. If your Lordships look at Section 3(5) of the Bail etc. (Scotland) Act 1980, you will see that the
penalties provided…may be imposed in addition to any other penalty…
in respect of the original offence. That is quite different. There is one offence for skipping the diet; there is another offence, which is the original offence. Obviously they have different penalties—that I accept—but I think that the words in subsection (2) of Clause 17 raise the possibility of the punishment for the statutory offence which stands in that subsection and the punishment for contempt both being imposed for the same thing.
§ I realise, of course, that if someone skips a diet he is not liable for contempt, but suppose you have the case of, for instance, a newspaper editor who publishes something about evidence, or something of that sort, which might be brought into the realm of contempt, who is summoned to appear before the court but who skips that appearance. He certainly would be liable on that, as I see it, to the statutory penalty, which is under Clause 17; but he would also be liable on that account to punishment for contempt of court. So that would be a dual jeopardy to which he would be exposed. I think this is undesirable, and if this is true I am certain that the Government would not wish that to be the case. But I do not see why those words are in there at all. What do they mean?
§ If in fact someone is brought before the court and, if you like, skips his court, he can be brought in and given the statutory penalty, which is shown in Clause 17, and he can then be hit at by subsection (3), which quite clearly allows any other penalty to be imposed, which would be for contempt of court. Perhaps I may say that I have an amendment down to move that subsection out, but that was a mistake 1270 on my part and I have no intention to move that amendment.
§
I think that the position would be very much more clear if, as I have suggested, those words in subsection (2) are taken out. They can only apply, I may say, to someone who skips his diet, who does not turn up. They can have no other application that I can see. If you want to use the contempt of court procedure it is perfectly simple to use it. Indeed, it is provided, (shall I say?) when it says here
…in addition to any other penalty which it is competent for the court to impose…".
That would certainly cover any penalty arising under contempt of court proceedings. I think that those words could be safely left out, so avoiding any suggestion of dual jeopardy. This matter, as I think the noble and learned Lord knows, has been brought up by the Law Society of Scotland. They think that there is a danger of dual jeopardy. I can see no advantage in those words, and I believe it would be very much better if they were left out. I beg to move.
§ Lord MACKAY of CLASHFERNMy Lords, if I may first of all explain the situation so far as the Bail Act is concerned, the situation is that the offences which are there provided for are also possibly offences at common law, and what I was saying was that the position is the same as that which we have here. Also, of course, the position in relation to this particular clause is in line with matters which are provided for in the Bail Act.
The Earl of SELKIRKMy Lords, may I interrupt my noble friend for one moment? My noble friend says that, and it may be that they are liable at common law, but it does not refer to that. Subsection (3) says specifically
in respect of the original offence".That is the offence, whether he is guilty or not, for which the person is summoned to appear in court.
§ Lord MACKAY of CLASHFERNMy Lords, I am not founding on that clause in the answer I am giving. But, in any case, the situation is that the words to which the noble Earl objects are words which are intended to indicate that the powers of the court to deal with the matter 1271 as contempt are not being taken away. It does not mean that the court would, in respect of the same matter, deal with him both under this clause and as a contempt, but that, if the circumstances were such that it was appropriate to deal with the matter as contempt, that would still be possible. However, in view of what the noble Earl has said I think I can assure him that we shall again consider it very carefully, but that is our attitude for the present.
§ Lord ROSS of MARNOCKMy Lords, I hope that the noble and learned Lord the Lord Advocate will do so. I do not think he has entirely convinced me about this particular one, but I am not going to go on that. If he is going to look at this again, will he look at the first three lines of the clause? I never saw anything more difficult to construe than this, and so unnecessarily so. I think that could be enacted very much more simply. It says:
…the existing words shall be",so-and-so. The existing words are so-and-so. Then,…after that subsection there shall be inserted the following subsections…".Why not just,there shall be inserted the following sub-sections",and go ahead with it, without all this rather otiose and not very sensible prelude? I am not entirely convinced, from what the noble and learned Lord said. It says:Without prejudice to any power which the court may have to deal with the accused for contempt";then they can go on and deal with him in this particular way. He gave the impression that he could be dealt with in both ways. Is it that there is an option to treat it as contempt?
§ Lord MACKAY of CLASHFERNNo, my Lords.
§ Lord ROSS of MARNOCKMy Lords, it could be made much more clear than it is here. I think the noble and learned Lord had better have a session with his draftsman.
The Earl of SELKIRKMy Lords, I am grateful to the noble and learned Lord for what he has said. The point I am really making is the one which the noble 1272 Lord, Lord Ross of Marnock, has made. If there is an alternative—that is to say, they can either proceed with contempt or they can proceed with the statutory offence—then I would be wholly content; but I think that this is capable (perhaps by an ill-disposed sheriff, if you like, because there are such things in this world) of enabling them to proceed in both ways. I think it would be a pity to enable that possibility to happen. I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 60 not moved.]
§ Clause 18 [Desertion of trial diet]:
§
Lord MACKAY of CLASHFERN moved Amendment No. 61:
Page 15, line 14, at end insert ("(and its decision in that regard has not been reversed on appeal)").
§ The noble and learned Lord said: This, again, is a rather technical matter to which the noble and learned Lord, Lord Wheatley, referred when the Bill was in Committee before your Lordships. The present situation is that where the court, against the will of the prosecutor, deserts a diet simpliciter, the court may allow the prosecutor to raise a new case on the same matter provided the court is satisfied that the original reason for the matter not being proceeded with was excusable and was not a fault of the prosecutor which was inexcusable. The clause proposes to change that, so that once it is decided that a case has been stopped without any reservation—simpliciter, as they say—that will be the end of the matter.
§ The noble and learned Lord, Lord Wheatley, was concerned that that was reducing the power of the Lord Advocate as the public prosecutor, and of course it does that; but this is a recommendation of the Thomson Committee, and we felt that it was not right not to affect the Lord Advocate's powers in this way where that was proposed.
§ On the other hand, it is always possible to appeal the decision in the first case, and we think it preferable that if the matter is to be raised it should be raised in the first case while the circumstances are fresh and when people know the reasons for the prosecutor not proceeding. 1273 But in order to emphasise that the decision of the court at that stage is subject to appeal, we are proposing these two amendments, Nos. 61 and 62, and I hope your Lordships will feel able to agree with them. I beg to move Amendment No. 61.
§ On Question, amendment agreed to.
§
Lord MACKAY of CLASH FERN moved Amendment No. 62:
Page 15, line 27, after ("above") insert ("(and the court's decision in that regard has not been reversed on appeal)").
§ On Question, amendment agreed to.
§ Clause 19 [No case to answer.]:
§ 8.39 p.m.
§ Lord MACKAY of CLASHFERN moved Amendments Nos. 63 to 70:
§ Page 15, line 34, after ("answer") insert ("both—(a)")
§ Page 15, line 35, at end insert ("; and
(b) on any other offence of which he could be convicted under the indictment were the offence charged the only offence so charged.")
§ Page 15, line 41, after ("offence") insert ("charged in respect of which the submission has been made or of such other offence as is mentioned, in relation to that offence, in paragraph (b) of subsection (1) above")
§ Page 15,line 42, after ("offence") insert ("charged in respect of which the submission has been made")
§ Page 16, line 12, after ("answer") insert ("both—
(a)")
§ Page 16, line 13, at end insert ("; and
(b) on any other offence of which he could be convicted under the complaint were the offence charged the only offence so charged.")
§ Page 16, line 17, after ("offence") insert (" charged in respect of which the submission has been made or of such other offence as is mentioned, in relation to that offence, in paragraph (b) of subsection (1) above")
§ Page 16, line 18, after ("offence") insert ("charged in respect of which the submission has been made").
§ The noble and learned Lord said: My Lords, I will speak to Amendments Nos. 63 to 70, if I may. This clause provides a new procedure in both solemn and summary procedures for the accused to submit, after the close of the evidence for the prosecution, that he has no case to answer on an offence charged in the 1274 indictment or complaint. The effect of such a submission being sustained by the judge will be that the accused will be acquitted of that offence, and the trial will proceed only in respect of any other offences charged in the indictment or complaint.
§ However, various provisions exist in terms of which if a jury or judge is not satisfied that an accused committed the actual offence charged, they or he may convict of an alternative or lesser offence. I can perhaps best illustrate my point by using an example. If an accused is charged with the crime of theft, he may be convicted of the crime of reset if the jury or judge consider that there was insufficient evidence to show that the accused actually stole the property but consider that there was sufficient evidence to show that the accused received some or all of the stolen property in the knowledge that the property had been stolen. The Government take the view that it may not be entirely clear from the present wording of this clause that the submission by the accused that he has no case to answer must relate not only to the offence actually charged in the indictment or complaint but also to any other offence on which he could be convicted under the indictment or complaint. Similarly before a judge upheld such a submission, he would require to be satisfield not only that there was insufficient evidence in law to justify the accused being convicted of the offence charged in respect of which the submission has been made but also that there was insufficient evidence in law to justify the accused being convicted of any of these other offences such as I have mentioned earlier. These amendments, therefore, for both solemn and summary proceedings make the matter clear beyond doubt and I would therefore commend them to the House. I beg to move.
§ On Question, Amendments agreed to.
§
Lord MACKAY of CLASHFERN moved Amendment No. 71:
Page 17, line 35, after ("removed") insert ("for so long as his conduct may make necessary").
§ The noble and learned Lord said: My Lords, this is an amendment to Clause 21 dealing with misconduct. Perhaps I could speak to Amendments Nos. 71, 72 and 74 together. These amendments give effect to an undertaking I made in Committee to 1275 consider somewhat similar amendments tabled by my noble friend Lord Selkirk. The noble Earl was concerned that the clause should explicitly state Parliament's intention that the power to exclude an accused who so misconducts himself that the trial cannot continue should be narrowly guarded. In particular, he wished it made clear that the power of exclusion should only continue for so long as it was necessary and that an accused who repented of his conduct should not remain excluded. I consider that the existing clause would be so construed. However, this is a difficult and important area and I feel that it is right that we should restrict the clause in the way my noble friend has proposed and to do it expressly, not leaving a matter of this importance to implication. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 72 not moved.]
§ The DEPUTY SPEAKER (Lord Aberdare)My Lords, I have to point out that if Amendment No. 73 is agreed to, I cannot call Amendment No. 74.
§ 8.44 p.m.
§
The Earl of SELKIRK moved Amendment No. 73:
Page 17, line 39, leave out subsection (2).
§ The noble Earl said: My Lords, this is part of Clause 21 which deals with summary procedure. We have already dealt with subsection (1) which deals with solemn procedure. This deals with summary procedure. I wonder very much whether it is desirable to remove the accused in summary procedure. As I have said before, it is a fundamental principle of Scots law that a criminal trial should not proceed outwith the presence of the accused. There may be cases in solemn procedure where this is necessary but there are two fundamental differences in dealing with summary procedure. In the first place, it is nothing like so serious to have to adjourn a case in summary procedure; because there is no jury there and fewer people are involved in it; while to adjourn because the accused 1276 misbehaves in solemn procedure is an expensive and serious matter. In summary procedure it is not so serious. Secondly, in solemn procedure, there is a record kept of the whole proceedings which is not normally so in summary procedure; so that although the accused is out of the court, he can read the whole of the procedure which takes place in his absence. There is some difficulty there—and the noble and learned Lord Justice-Clerk referred to it—but I do not think it would be a serious or fundamental one. He will have counsel appointed to look after him and at the end of the day could read every word of evidence submitted. Therefore, I do not think that as far as subsection (1) is concerned, it is so serious.
§ In regard to subsection (2) neither of these things will apply. If the accused leaves the dock, he will never know exactly what was said while he was away. He may get a summary account from his counsel but he will never know verbatim what happened. It is, I think, for those reasons rash to insert this at this time as far as the summary courts are concerned. I particularly regard this as so with the district courts. I think it is a serious decision to require the accused to leave the dock; and I wonder whether untrained magistrates (as is the case in district courts) are competent to form a judgment in this court. I should like subsection (2) left out altogether. I think we could try. It is a complete innovation in Scots law to remove the accused on account of his conduct from the dock. I accept that—and Scottish Law Society accepted subsection (1) but they do not like subsection (2). I agree with them. I think that this is taking a big risk at this time and I think it would be wrong. I beg to move.
§ Lord MACKAY of CLASHFERNMy Lords, I have a good deal of sympathy with the views expressed by my noble friend Lord Selkirk but, although I accept a good deal of what he has said about the differences between summary and solemn procedure, I consider it may be the best safeguard against such a thing happening in a summary court that there should be such power as this in the court. I think this is a matter which will be the subject of a good deal of consideration, and certainly we shall continue to consider the matter in the light of what my noble friend has said. But perhaps at this juncture he may be willing to withdraw his amendment.
The EARL of SELKIRKMy Lords, I think that the point which my noble and learned friend might consider is this. When this Bill is passed, any district court can, on its own intitiative, remove the accused from the dock. The noble and learned Lord the Lord Advocate and the Secretary of State have no power to stop it and it might be widely misused. If my noble and learned friend insists on this, can we not have it subject to a regulation of parliamentary approval that he is able to withdraw the power from the district court on summary procedure if it should prove necessary. I throw that out as a suggestion. It is possible that this power might be grossly misused at this particular level. In these circumstances, I do not want to press this: but I hope that he will consider it. Does the noble Lord, Lord Mishcon wish to say something? If not, I would propose to withdraw the amendment.
§ Lord MISHCONMy Lords, I hope that the noble Earl will not yet withdraw the amendment. It may be helpful to the House if I were to speak now on this amendment having first apologised to the noble and learned Lord that I did not hear his earlier remarks because I was out of the Chamber. Possibly it would help the House if, instead of making two speeches on the further amendment we have to leave out this clause, I say what I have to say now. First of all, I wish to adopt (as do my noble friends) the arguments of the noble Earl in relation to what we would call in England the summary court, the magistrates' court, which is what corresponds to the district court that the noble Earl talked about.
To give this power to the court I should have thought was not a very sensible thing by any means because it can be abused. Having said that, I must confess that there is a power afforded to the magistrates' courts in England to construct a hearing in the absence of the accused but not upon the basis of the words used in this clause. The material word here—and I took the liberty of speaking on this matter in Committee—is the word "misconducts". This is a very penal clause so far as the accused is concerned. He can literally be tried in his absence. The question of what amounts to misconduct can vary from one judge to another and, if I may say so, 1278 from one justice to another. What constitutes misconduct? Is it the question of the accused refusing to answer a question or answering back counsel if not the magistrate or the judge in a way which is considered by the court to be unseemly? Misconduct is undefined.
I believe (if I may try to quote from a piece of possibly slightly superior wisdom in those who drafted an English statute) when that power was given to the magistrates' court in English law it was given by the Criminal Justice Act 1972, and the language there used is "disorderly conduct" which defines, I believe, precisely what the noble and learned Lord, the Lord Advocate had in mind—I think it was he and not the noble Earl—when he addressed us on this clause at the Committee stage. If one admits the validity of this clause at least let us have clear language. It is a question of disorderly conduct and not misconduct.
So far as the Crown Court is concerned in England—if I may venture to say what happens South of the Border—I do not believe that there is a statutory power; but Archbold, when referring to the inherent power in the courts, talks about disruptive behaviour. He also cites certain cases showing that the court has this inherent jurisdiction—a jurisdiction which is not inherent in our magistrates' court and therefore had to be given by a statutory enactment. Later, as i said, without repeating so far as I am concerned a speech, I am trying to move an amendment together with my noble friend which excludes this clause.
If I may be permitted to make the speech now and not again, it is to submit to the House that on any view it is not a jurisdiction which should be given to the district court, and on any view the term "misconduct" is much too loose a word without any definition to appear in a statute which, as I said, deals with something which is quite penal to the accused. I therefore would respectfully suggest that if this clause is allowed to stand then one of these two terms is borrowed: namely, the term of disorderly conduct or disruptive behaviour.
The Earl of SELKIRKMy Lords, I would possibly accept the words the noble Lord uses. Of course one could say 1279
so conducts himself that in the view of the court a proper trial cannot take place ", I do not know. I am very happy to leave this to noble Lords. I will not press this amendment and I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§
Lord MACKAY of CLASHFERN moved Amendment No. 74:
Page 17, line 44, after ("removed") insert ("for so long as his conduct may make necessary").
§ The noble and learned Lord said: I have given the explanation for this already. I beg to move.
§ On Question, amendment agreed to.
§ 8.54 p.m.
§
Lord ROSS of MARNOCK moved Amendment No. 75:
Leave out Clause 21.
§
The noble Lord said: I am very sorry indeed that the noble and learned Lord, the Lord Advocate, could not see his way to leave out subsection (2). It is very very contentious indeed. He will be aware of course that it colours our attitude to the question whether the clause should stand part of the Bill. He must have received from the Law Society of Scotland their particular views. They were very strong indeed. They were divided about the whole clause; they were not very happy about it. There was no doubt at all about their opinion about subsection (2). They said:
As framed, it appears to the council that this clause would apply to any charge, any trial, and any court, even the district court. The council was at first inclined to the view that, if, as has been suggested, the purpose of the clause was to deal with terrorists, legislation should be enacted in that sphere only".
However, after they had debated the issues and gone over all the issues they came to the unanimous conclusion that they were opposed to the provisions so far as relating to summary cases where it appears totally unnecessary and might indeed be used oppressively in minor courts.
§ Here we have a clause with a very serious blemish and I do not think that we could let it go. In fact, I will appeal to the kindly nature of the noble and learned Lord the Lord Advocate. Remember, after we finish it in this House it goes elsewhere. Would it not be far kinder— 1280 would it not be the act of humanity—to take the clause out now? Can he think of the dire trouble into which the present Solicitor-General is going to get himself in another place? After all, here is a proposal so foreign a breach of natural justice, a breach foreign to our law and to our system and horrific to both lawyers and laymen alike.
§ How is the poor Solicitor-General, no matter how he is garbed for the occasion—probably he is going to wear sackcloth and ashes that day—going to support these words or listen to these words being thrown at him, as he gets up to defend the clause that he attacks so rudely—and so sincerely no doubt with his customary passion—in another place?
§ Are there circumstances in which a person in the dock could so break up a trial in Scotland that he would effectively be stopping justice? "No", said the Solicitor-General, "It could not happen. It has never happened. It will not happen". I am glad that at least someone on the Front Bench appreciates exactly the kind of position that the poor Solicitor-General is in if we in thoughtlessness and unkindness send this back. I appeal to noble Lords out of kindness for a man for whom I have a very high regard and very kind thoughts—the present Solicitor-General for Scotland—that I do not want to see him suffer. But my goodness! I would dearly love to be on that Committee though.
§ There is no doubt about the facts. We have never had occasion to use this power or even want to use it. We think that it might be used for terrorists—certainly not necessarily in all the courts. The clause, as it stands, is very, very undesirable. I am perfectly sure that he thinks this himself. He has to use his power as Lord Advocate. Let them know in the Crown Office that he is the boss, and if he thinks that the clause is useless let him exercise that power. I am perfectly sure that if he looked at this once again he would say, "Let us save the face of the Solicitor-General and also be honest about the power of the courts and those in charge of the courts in Scotland. We can deal with this without this new power". I beg to move.
§ Lord WILSON of LANGSIDEMy Lords, I do not know whether it will be 1281 helpful to the House if I answer the question rhetorically put by the noble Lord, Lord Ross of Marnock, as coming from the Solicitor-General for Scotland who apparently asked: "Was there ever an occasion in which any court in Scotland has been so disrupted by the conduct of an accused person as to make the continuation of a trial proceed in accordance with justice?" There is at least one court in Scotland which shall be nameless where there is a notorious accused person from time to time summoned to attend for trial after the places of refreshment have opened and who is in such a condition as to be incapable of understanding the proceedings and totally disrupts them. All the efforts of the police, the sheriff and the other officials of the court cannot contain this situation, with the result that from time to time these trials have to be adjourned, the witnesses have to be sent away and brought back on another day when, I am told, it has happened that the same situation has been repeated. This might be the kind of situation in which, quite properly, a power of this sort could be used to assist the process of justice and to ensure that cases will be disposed of and not continued unnecessarily, as at present they have to be. I am not saying this is a commonplace, but it happens from time to time.
§ Lord MACKAY of CLASHFERNMy Lords, I am very interested in the explanation given by the noble Lord, Lord Ross of Marnock, for moving this amendment. So far as the Solicitor-General for Scotland is concerned, I feel that he will be able to look after himself in connection with whatever is said about him. The clause in its present form is not the same clause as that to which the noble Lord referred. Although the differences may not be very great, there is a very substantial safeguard in this clause which was not originally in the Bill. If it was intended to suggest that I was not in favour of this clause, I
| CONTENTS | ||
| Ardwick, L. | Milner of Leeds, L. | Segal, L. |
| Balogh, L. | Mishcon, L. | Stewart of Alvechurch, B. |
| Blease, L. | Peart, L. | Stewart of Fulham, L. |
| Brooks of Tremorfa, L. | Pitt of Hampstead, L. | Stone, L. |
| David, B. [Teller.] | Ponsonby of Shulbrede, L. | Taylor of Blackburn, L. |
| Davies of Leek, L. | Ritchie-Calder, L. | Taylor of Gryfe, L. |
| Gaitskell, B. | Ross of Marnock, L. | White, B. |
| Houghton of Sowerby, L. | Sefton of Garston, L. | |
| Llewelyn-Davies of Hastoe, B. [Teller.] |
§ must say that I am in favour of it on the basis of the information which I have at the moment. I agree that it is a difficult situation, but it is still one which we have to try to deal with, and it may be that the best way of preventing this kind of thing happening is that this power should exist.
§ I should also like to point out, in answer to what the noble Lord, Lord Mishcon, said earlier, that it is not left on "misconduct". It is misconduct of a certain kind; namely, misconduct that makes it impossible to have a proper trial, in the view of the court. That is the standard and it is a very high standard indeed; so I invite your Lordships to allow this clause to stand part of the Bill and to reject this particular amendment.
§ Lord MISHCONMy Lords, before the noble and learned Lord sits down, would he give consideration to the words that have been thought out in another statute in order to deal with this situation he is talking about? In making this suggestion I am not in any way inferring that I am in favour of the clause—I support my noble friend Lord Ross in the views which he put forward—but is it not right that instead of having the term "misconduct" it would be so much more sensible to think in terms of "disorderly conduct" or the type of behaviour I have referred to previously as being defined by Archbold in that way, rather than the term "misconduct"?
§ Lord MACKAY of CLASHFERNMy Lords, I must say that as at present advised—but I am always learning—I prefer what we have got. However, I should certainly be glad to look at these suggestions at more leisure.
§ 9.4 p.m.
§ On Question, Whether the said amendment (No. 75) shall be agreed to?
§ Their Lordships divided: Contents, 24; Not-Contents, 80.
| NOT-CONTENTS | ||
| Amherst of Hackney, L. | Gainford, L. | Mowbray and Stourton, L. [Teller.] |
| Atholl, D. | Galloway, E. | |
| Auckland, L. | Gisborough, L. | Mirton of Lindisfarne, L. |
| Balerno, L. | Glasgow, E. | Orr-Ewing, L. |
| Balfour of Inchrye, L. | Godber of Willington, L. | Reading, M. |
| Bellwin, L. | Gridley, L. | Reigate, L. |
| Belstead, L. | Grimston of Westbury, L. | Rochdale, V. |
| Boyd of Merton, V. | Hanworth, V. | Rochester, L. |
| Camoys, L. | Harvey of Tasburgh, L. | St. Just, L. |
| Campbell of Croy, L. | Henley, L. | Sandys, L. [Teller.] |
| Chelmer, L. | Hives, L. | Savile, L. |
| Clifford of Chudleigh, L. | Holderness, L. | Selkirk, E. |
| Cork and Orrery, E. | Hooson, L. | Sempill, Ly. |
| Craigavon, V. | Hylton, L. | Strathclyde, L. |
| Crathorne, L. | Kilmany, L. | Swansea, L. |
| Cullen of Ashbourne, L. | Kinnaird, L. | Swinfen, L. |
| De Freyne, L. | Kinross, L. | Tranmire, L. |
| Denham, L. | Long, V. | Trefgarne, L. |
| Drumalbyn, L. | Lyell, L. | Vaizey, L. |
| Dulverton, L. | Mackay of Clashfern, L. | Vaux of Harrowden, L. |
| Ebbisham, L. | Macleod of Borve, B. | Vernon, L. |
| Elliot of Harwood, B. | Mansfield, E. | Vickers, B. |
| Faithfull, B. | Margadale, L. | Vivian, L. |
| Falkland, V. | Massereene and Ferrard, V. | Wade, L. |
| Ferrers, E. | Merrivale, L. | Westbury, L. |
| Ferrier, L. | Morris, L. | Wigoder, L. |
| Foot, L. | Mottistone, L. | Wilson of Langside, L. |
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Clause 22 [Restrictions on report of proceedings involving person under 16]:
§ 9.11 p.m.
§
The Earl of SELKIRK moved Amendment No. 76:
Page 18, line 6, leave out ("newspaper report") and insert ("report in any newspaper available in the United Kingdom").
§
The noble Earl said: My Lords: I drew attention to Clause 22 during the Committee stage, and I have since had a letter from the noble and learned Lord, the Lord Advocate, for which I am grateful. The position is rather peculiar, as regards both solemn and summary procedure. Apparently, Clause 22 extends to England and Wales, but not to Northern Ireland. But subsection (4) contains the words:
…references to a court shall not include a court in England, Wales or Northern Ireland".
Subsection (1) begins with the dictatorial words "No newspaper", the principle being that certain cases affecting young persons—that is, persons under the age of 16—will not be given publicity. I assume that newspapers could be prosecuted and fined up to £500 if they published reports which had been forbidden.
§ It seems to me that we should be 1284 perfectly clear as to which newspapers and in which circumstances this clause applies. The words "No newspaper" would clearly mean that the Patagonian press would be excluded. But which newspapers would be included? Does this restriction apply to papers which are published or available in the United Kingdom, or does it not? Clause 80 states, quite specifically, that Clause 22 extends to England and Wales. What happens if the Act is violated by some newspaper, such as the Cornwall Herald? Will the newspaper be prosecuted in the English courts or in the Scottish courts, because this clause clearly applies to England?
§
I think that this should be clear, and if the noble and learned Lord the Lord Advocate can explain it I shall be grateful. In the meantime, I should like to ask him about the meaning of the last line of this clause:
and the same provision shall (with the appropriate section number) be substituted for section 374 of the 1975 Act".
May I ask about Section 365 which says very nearly the same thing but in different words. I cannot think that we want both sections, so may I ask the noble and learned Lord the Lord Advocate to look at that point. I think that this is a curious mixture which took place when
1285
the Act was consolidated. If we are to deal with it again, could we have a look at that to see whether both sections are required? Let us have a clear explanation as to what papers and in what courts a prosecution can take place if anybody violates the instructions given by the court in regard to protecting the persons and the names of persons under the age of 16. I beg to move.
§ 9.15 p.m.
§ Lord MACKAY of CLASHFERNMy Lords, the noble Lord, Lord Ross of Marnock, suggested that there should be sackcloth and ashes for the Solicitor-General. This is a place where sackcloth and ashes are appropriate for me! Before I reply in some detail to the noble Earl, I should like to say that I am very sorry about a mistake that I made in answering the noble Earl when he raised this question in Committee. The reason was that I did not give proper effect in my answer to subsections (5) and (6) of Clause 80 which extend the provisions of Clause 22, in the first case to England and Wales and in the case of Clause 80(6) to Northern Ireland.
The situation is that this provision will be part of the law not only of Scotland but of England, Wales and Northern Ireland, if it passes. The result will be that the newspaper reports to which it refers will be any newspaper report circulated in any part of the United Kingdom. But the court to which the power to dispense with the provision is given is the Scottish court because it is Scottish court proceedings which are in issue. The offence, if it is committed by, for example, the Cornwall Herald, would be an offence against the law of England and Wales, if the paper is circulating only there. Of course, the court which could deal with the matter is the court of summary jurisdiction appropriate to that place. The provision is intended to secure protection for persons under the age of 16 from publicity subject, of course, to the court at any stage and the Secretary of State, after completion of the proceedings having a right to dispense with the requirements of the section.
The other matter which was raised by my noble friend related to Section 365. The situation is that Section 365 of the 1975 Act is being repealed by the Bill and therefore it is Section 374 only that needs to be referred to. I very much regret that 1286 I got this wrong on the last occasion and I hope that your Lordships will be kind enough to accept my humble apologies.
The EARL of SELKIRKMy Lords, if I understand correctly what the noble and learned Lord the Lord Advocate has said, my amendment fits the case exactly. Therefore, I ask him why he does not accept it because that is exactly what the position is. It relates to any paper available—not printed or published but available. That means that if Paris Match comes over with a very undesirable article about children in Edinburgh, it could be prosecuted. Is this correct? If it is, I suggest, with respect, that we should make this clear.
I am grateful to the noble and learned Lord the Lord Advocate for what he said about Section 365, which confused me completely. But would it not be better, instead of the stentorian "no newspaper", to say "newspapers available in the United Kingdom"? This should be made clear. I find myself at a loss to know why something of this kind cannot be properly attributed. I do not know whether the noble and learned Lord can undertake to have a look at this to see whether that is possible. If he will have a look at it, I shall beg leave at this stage to withdraw the amendment.
§ Lord ROSS of MARNOCKMy Lords, could the noble and learned Lord the Lord Advocate tell me whether or not this same restriction applies to reporting in the courts of England and Wales, or whether this is purely a Scottish matter? I ask for the simple reason that we have to try to be fair to newspapers in the benighted places that he has mentioned. They have already got into very considerable trouble, probably out of ignorance.
Even the publication of a photograph can get an editor into very considerable trouble. It would be of guidance to those who publish newspapers in England, Wales and Northern Ireland if the words "United Kingdom" were to be inserted here. Then they could have less of an excuse for saying, "We did not know—this does not apply in England." If we put it into this statute and give it the publicity which I trust this will get and as indeed it merits, from the Press of the United Kingdom, they will appreciate that in dealing with a court case in Scotland they have to be even more careful now as 1287 to particulars of persons under the age of 16, be they involved directly or as witnesses. I think this is an eminently sensible amendment and I do not know why there has been hesitation over it.
§ Lord MACKAY of CLASHFERNMy Lords, with permission, I will answer the question that there are somewhat similar provisions in England and Wales affecting courts in those countries. They are not exactly the same. These are modifications of provisions which have existed for some time. The two sections which I mentioned have had this ambit and we are only altering them somewhat to increase the protection, but the general principle has been operating for some time. Certainly I am happy to consider whether the matter can be made clearer, although I think the extent provisions under Clause 80 make the matter clear, as at present advised.
§ Amendment, by leave, withdrawn.
§ Clause 24 [Seclusion of jury after retrial]:
§ 9.22 p.m.
§ Lord MACKAY of CLASHFERN moved Amendment No. 77:
§
Page 19, line 20, at end insert—
("Provided that the judge may, for the purposes of this subsection, authorise a person to act on his behalf").
§ The noble and learned Lord said: My Lords, this is an amendment which gives effect to the point which was raised by the noble and learned Lord, Lord Fraser of Tullybelton, in Committee, providing that the judge may appoint someone to act on his behalf in reference to the matters dealt with in this clause, and I commend the amendment to your Lordships. I beg to move.
§ On Question, amendment agreed to.
The DEPUTY SPEAKERMy Lords, I understand that Amendment No. 78 has been withdrawn.
Clause 31 [Offences in connection with lights, reflectors, obstruction, etc., to be provable by one witness]:
§
The Earl of SELKIRK moved Amendment No. 78A:
Page 25, line 33, after ("laws)") insert ("as amended by section 131 of the Transport Act 1968, section 203 of the Road Traffic Act 1972 and section 24 of the Road Traffic Act 1974").
§ The noble Earl said: My Lords, Clause 31 is one of the clauses where the principle of Scots law, of having corroborative evidence, is put aside and one witness is enough to convict the seven types of offences. Accordingly, I looked this up because I thought it sufficiently important that I should have a clear idea of what types of offence could be convicted by one witness. The rubric deals with lights, reflectors, obstruction and minor matters dealing with motorcars, but in Section 80 of the Act I found that there were not the subsections referred to in the paragraph(9A) of Clause 31 of this Bill. Subsection (9A) refers to paragraphs (a) to (d) and (f), but I find in Section 80 there are only paragraphs (a), (b) and (c). I received an answer from the noble and learned Lord the Lord Advocate, but in fairness I must say that he did not tell me that (d) and (f)—and indeed (a) to some extent—came out of no fewer than four different Acts of Parliament. I think it is extremely important if people are to be convicted by one witness that they should know exactly what the offence is and there should be no possible dubiety as to the nature of the offence.
§ I have a further letter—and I am grateful to the noble and learned Lord the Lord Advocate. It is in the short report of the amendment and I have put down here the Acts of Parliament which have to be referred to in order to get a clear picture of those acts on which a person can be convicted on the evidence of one witness. I think it is right and proper that they should be clearly stated here, and to pass it off simply by referring to Section 80, which does not give the whole story, and so far as I know does not give it accurately, is quite wrong and is careless drafting. Therefore, I ask the Government if they will put in this amendment, saying where the nature of the offences can be precisely shown. For that reason, I beg to move.
§ Lord MACKAY of CLASHFERNMy Lords, the situation, unfortunately, is that Acts of Parliament are amended from time to time, and the Interpretation Act in its most recent form, the Act of 1978, provides in Section 20(2) that, where an Act refers to an enactment, the reference, unless a contrary intention appears, is a reference to that Act as amended and includes a reference thereto as extended 1289 or applied. So, when Section 80(1) of the 1967 Act is referred to, it is referred to as subsequently amended. Accordingly, the words that my noble friend Lord Selkirk proposes are already covered by the application of the 1978 Interpretation Act to the words of this clause.
I agree, of course, that when a person is looking up these matters he has to find these Acts, but, unfortunately, if all the amending acts are to be referred to expressly, Acts of Parliament are going to be even longer than they are at present. Therefore, I have to say that this Amendment would not be an improvement in the drafting but rather the other way. I would therefore invite the noble Earl to consider withdrawing his amendment. I feel that if this principle were to be given effect to it would have to be given effect to generally, and that would involve a tremendous amount of further references in Bills such as this.
§ Lord ROSS of MARNOCKMy Lords, surely the Lord Advocate appreciates that this is probably the one clause in this whole Bill that would apply to most ordinary individuals. We are not now talking about criminals, we are not talking about witnessing criminal acts, we are talking about people who drive motor-cars—and I think that would apply to the great majority of people in Scotland.
This change is a fundamental change; let nobody argue about that. I have heard so many arguments about this—that the law of corroboration in Scotland was supreme, that you could not prove an offence unless you had corroborative evidence; you required more than one witness. I can remember one change that was made; I think I have quoted it before. It was the Salmon and Freshwater Fisheries Act 1951. Then a few years ago in civil cases a judge was entitled to use his discretion—not absolute, but his discretion—in respect of accidents where there could not possibly be a corroborative witness. So if we are going to make a change like that, one that is going to affect so many people, it really ought to be clear as possible. I have already referred this evening to the question of legislation by reference.
This does not make sense to anybody who reads it, not even to a lawyer. The oble Earl has explained how much diffi- 1290 culty he had. He had to go to Section 80 of the 67 Act and then he had to go to three other Acts tracking right away back. This really is not good enough from the point of view of getting the law understood by people in any part of the country. We should be much more specific. Considering the length of this Bill, we surely could have been specific in this one clause, because it is really going to affect a great many people, many people who for good or ill think that it requires two policemen to say that their lights are not functioning properly.
May I say that I am not entirely happy in respect of this? I suppose we have all been pulled up by a policeman for something or other, perhaps thinking we had exceeded the speed limit by about one mile per hour. But they never stop there; they wander round the car. It is very easy for somebody to stumble and knock out a light and then come back and tell you that your light is out. It is not likely to happen if there are two witnesses. It is no use a Minister of State shaking his head. Why does he think this has been in the law of Scotland for centuries?
Certainly, if we are to make the change—and I do not say that the change is not desirable or justifiable—then let us make the change in language that people understand so they will know whether they are subject to new penalties and new conditions for an offence. I very much agree with the noble Earl, Lord Selkirk, and trust that the Government will look at this and spell it out. It should not take all that long. Then there will be one clause where we can say, "This clause we understand, this clause we can follow, and so can those who read about the Criminal Justice Bill".
However, I defy anyone in Scotland to read these six lines and understand, or indeed any of your Lordships who have been studying this Bill all day, and who have come here specially to hear me orate on this particular point! Let us be honest about it, not one of us knows what we are doing. Here we are legislating for the simple people of Scotland. They read statutes; the Criminal Justice Bill is the only thing they read at the weekend after they have read the football results. My goodness! this one does not make sense at all, and legislation which does not make sense should not be so readily passed. I 1291 tried very hard. I had not the endurance of the noble Earl, but I saw him sitting in the Library with his brow furrowed, writing something down, tearing it out again because it was wrong, getting another book and discovering that he had to get another three before he could get down to the heart of those six lines.
This is all very grand for the draftsmen; they have an art and an appreciation of these words and a way of doing things that is all their own. It is fine for them, but it does not make good sense for people trying to understand what the law says. I sincerely hope that the noble and learned Lord the Lord Advocate will exercise his powers and say, "We are going to have something different in Scotland in future", and that the law will not be a Chinese puzzle—something on which I am an expert. One of my privileges during the war was to make an assessment of the security in terms of time of Chinese codes and cyphers. I can assure noble Lords that it would take me much longer to break some of these clauses.
The noble and learned Lord the Lord Advocate should set his mind to making the law a little clearer. If we cannot please everyone with regard to what the law says, let us all be able to understand what it says.
§ Lord DRUMALBYNMy Lords, would it be of any assistance if the noble and learned Lord the Lord Advocate were to tell us how far in this case the rubric covers it? One notices that the clause covers paragraphs (a) to (d), which
| CONTENTS | ||
| Ampthill, L. | Gardiner, L. | Sefton of Garston, L. |
| Ardwick, L. | George-Brown, L. | Segal, L. |
| Atholl, D. | Houghton of Sowerby, L. | Selkirk, E. [Teller.] |
| Auckland, L. | Kinnaird, L. | Southwell, Bp. |
| Blease, L. | Llewelyn-Davies of Hastoe, B. | Stewart of Alvechurch, B. |
| Brockway, L. | Massereene and Ferrard, V. | Stewart of Fulham, L. |
| Brooks of Tremorfa, L. | Milner of Leeds, L. | Stone, L. |
| David, B. [Teller.] | Mishcon, L. | Taylor of Blackburn, L. |
| Davies of Leek, L. | Morris, L. | Taylor of Gryfe, L. |
| Elliot of Harwood, B. | Peart, L. | Thomson of Monifieth, L. |
| Faithfull, B. | Pitt of Hampstead, L. | Vickers, B. |
| Ferrier, L. | Ponsonby of Shulbrede, L. | White, B. |
| Foot, L. | Ritchie-Calder, L. | Wigoder, L. |
| Gaitskell, B. | Ross of Marnock, L. | Wilson of Langside, L. |
§ makes four, and (f), which makes five, and there are only three matters referred to, with an "et cetera". Would it make the matter clearer if the noble and learned Lord put into the rubric what each of these paragraphs refers to?
The Earl of SELKIRKMy Lords, I call this the worst type of legal quibble one can possibly imagine. It is outrageous that here we are passing Acts of Parliament which we all know are incomprehensible. I want to divide the House. I think that we should revolt against the draftsmen who put in front of us words which every one of us knows are quite incapable of comprehension. If we get into trouble let us get into trouble, but let us at least show that Acts are referred to in a Bill which no one can possibly understand. I could not have understood it if I had not received a letter from the noble and learned Lord the Lord Advocate, who has a staff behind him who can follow all this up. Other people do not have that staff. It is time that those who consider these matters put their house in order. If that is what the Interpretation Act leads to, let us change the Interpretation Act. It is quite outrageous that this should be the case. If anyone will support me—and I do not know whether anyone will—I shall be very willing to divide the House. I beg to move.
§ 9.35 p.m.
§ On question, Whether the said amendment (No. 78A) shall be agreed to?
§ Their Lordships divided: Contents, 42; Not-Contents, 61.
| NOT-CONTENTS | ||
| Amherst of Hackney, L. | Galloway, E. | Mowbray and Stourton, L. |
| Balerno, L. | Gisborough, L. | Murton of Lindisfarne, L. |
| Balfour of Inchrye, L. | Glasgow, E. | Orr-Ewing, L. |
| Bellwin, L. | Godber of Wellington, L. | Reigate, L. |
| Belstead, L. | Gridley, L. | Rochdale, V. |
| Boyd of Merton, V. | Grimston of Westbury, L. | St. Just, L. |
| Camoys, L. | Hanworth, V. | Saint Oswald, L. |
| Campbell of Croy, L. | Harvey of Tasburgh, L. | Sandford, L. |
| Chelmer, L. | Henley, L. | Sandys, L. [Teller.] |
| Cockfield, L. | Hives, L. | Savile, L. |
| Cork and Orrery, E. | Holderness, L. | Sempill, Ly. |
| Craigavon, V. | Kilmany, L. | Strathclyde, L. |
| Crathorne, L. | Kinnoull, E. | Swansea, L. |
| Cullen of Ashbourne, L. | Kinross, L. | Swinfen, L. |
| Denham, L. [Teller.] | Long, V. | Trefgarne, L. |
| Drumalbyn, L. | Lyell, L. | Vaizey, L. |
| Dulverton, L. | Mackay of Clashfern, L. | Vaux of Harrowden, L. |
| Ebbisham, L. | Mansfield, E. | Vernon, L. |
| Falkland, V. | Margadale, L. | Vivian, L. |
| Ferrers, E. | Mottistone, L. | Westbury, L. |
| Gainford, L. |
| Resolved in the negative, and amendment disagreed to accordingly. |
§ Clause 34 [Prosecution appeal by bill of advocation]:
§ 9.43 p.m.
§
Lord MACKAY of CLASHFERN moved Amendment No. 79:
Page 26, line 16, leave out from ("with") to ("shall") in line 17 and insert ("an indictment containing the charge or charges which were affected by the decision (the wording of which charge or charges").
§ The noble and learned Lord said: My Lords, Clause 34 places a new Section 280A into the 1975 Act. Subsection (2), to which this amendment is directed, states that where the decision being challenged by bill of advocation is reversed by the High Court, the prosecutor may, whether or not there has already been a trial diet with evidence led, reindict, the new indictment to be in the same terms as it was immediately before the decision. However, it is necessary to provide for the situation where there are a number of charges on the original indictment but a bill of advocation is taken in respect of only one, and trial proceeded and was concluded on the other charges. As the clause stands, it would be necessary to include on the indictment all the charges which appeared on the original indictment, and it is not intended that this should be so. Another example would be where a number of accused appeared on a number of charges on an indictment—not by any means an unusual situation—and a bill of advocation was taken against only one charge involving one accused, and trial proceeded and was concluded on all the other charges.
§ As the clause stands it would mean reindicting against all the accused merely to effect indictment of that one charge and one accused, and I think that noble Lords will agree that fairness would not in these circumstances be served. Our amendment seeks to restore the balance by enabling the second indictment to contain only the charge or charges on which the bill of advocation was taken and the decision reversed, and enabling, at the same time, any other matters on the indictment, not including the charge or charges reindicted, to be altered without difficulty, should that be necessary. I beg to move.
§ On Question, amendment agreed to.
1296§ Clause 35 [Appeals from decisions on competency and relevancy in summary proceedings]:
§
The Earl of SELKIRK moved Amendment No. 80:
Page 26, line 21, leave out ("42(b)") and insert ("43(b)").
§
The noble Earl said: My Lords, I am moving an entirely trivial drafting amendment, but I am doing so because I do not think that this drafting error would have occurred had the clause not been constructed with unbelievable complexity. This is one clause dealing with one subject, but it is spread over three different places, and is almost impossible to read. May I explain what the clause consists of. The rubric in the Bill is:
Appeals from decisions on competency and relevancy in summary proceedings".
These probably do not take place often, but they can be important, and they are sometimes difficult. However, the clause is amending a section of the Criminal Procedure (Scotland) Act 1975, relating to procedure at first diet. I do not know which one is to be selected in the new Bill. There is a reference in the clause to Section 334 of the 1975 Act, but that is not the end of the matter because it is amended in a schedule to the Bill we are now looking at.
§ I ask your Lordships to look at Schedule 7 paragraph 43(a) where you will see that a subsection is amended. Subsection (2) of the earlier Act is referred to in Schedule 7 to the Bill we are considering. In order to consider subsection (3) one has to go back to Clause 35, where there is a reference to what is called subsection (2A). Subsection 2(b) is subsection (4), subsection 2(C) is subsection (5) and subsection 2(D) is subsection (6). Then we have to go back to the Act of 1975, the consolidated Act, where there is a series of references: six is three, seven is four and eight is nine—
§ Lord LYELLIs it not the other way round, my Lords?
The Earl of SELKIRKWhy should that be the other way round? This is an extremely complicated matter and the general public will find it very hard to 1297 understand. Why not substitute in respect of the 1975 Act a complete clause dealing with these various aspects, some of them amended in the schedule, some of them amended elsewhere? That would make it quite easy for anyone to read. It would be a sensible thing to do and would make the matter much more understandable.
I have no doubt that the Government will say: "We shall consolidate these Acts in due course". Well, no doubt that is true, but I doubt very much whether a consolidated Act will be available to the general public in less than three years. It may be even longer than that; it will depend on how long it will take to consolidate it. Would it be fair to have during that period a clause which is incomprehensible and which the public cannot understand? I really do not think that many people will be able to put this thing together and understand what is means. This is totally unnecessary complexity, and I ask the Government to consider very carefully whether they can reconstruct the clause so that it is reasonably sensible. I beg to move.
§ Lord MACKAY of CLASHFERNMy Lords, I am grateful to the noble Earl for bringing this matter forward. Of course I accept that there is an error here, and we are happy to correct it. So far as the structure of the clause is concerned, the situation is that consequential amendments to the deletion of the first diet are dealt with in the schedule and we have tried to deal with substantive amendments in the main body of the Bill. I shall certainly consider whether there is any way in which we can simplify this matter. My experience so far has been that attempts to simplify sometimes lead to further complexity, but I am certainly very glad to consider the matter.
The Earl of SELKIRKMy Lords, I am very grateful to the noble and learned Lord for agreeing to have a look at it, but I think he will find it difficult to make it more complex than it is already. I am therefore certain that, whatever he does with it, it will almost certainly be on the side of simplicity; but if he would look at it I think it would be sensible to put forward a clause which hangs together and makes some sense. I press this 1298 amendment because it is a drafting amendment.
§ On Question, amendment agreed to.
§ Clause 42 [Punishment for murder.]:
§ The DEPUTY SPEAKER (Lord Amherst of Hackney)My Lords, I must tell the House that if Amendments Nos. 81 or 82 are agreed to I cannot call Amendments Nos. 83, 84 or 85.
§ 9.51 p.m.
§
Lord MISHCON moved Amendment No. 81:
Page 30, leave out lines 11 to 32.
§ The noble Lord said: My Lords, I wonder whether I may be permitted to speak to Amendment No. 81 with Amendment No. 85, and may I inform the House immediately that Amendment No. 82 will not be moved. It will then make what I have to say rather more intelligible. My Lords, we are dealing here with a very serious clause and a very serious amendment. It is a clause which deals with murder trials and, as against the present position of Scottish law (which is, as I understand it, that the judge at the trial may, after conviction, if he sees fit, recommend a minimum term that the prisoner will serve even though a life sentence is given), this clause makes it mandatory upon the judge, unless there are special circumstances in the judge's mind—and if there are he has to say what they are—to state what that minimum sentence shall be.
§ At the Committee stage the noble Earl, Lord Mansfield, said that this was part indeed of the Conservative Party manifesto. I am hoping very much that party allegiances, and the question of it having appeared in a party political manifesto before an election, will not obtrude upon your Lordships' minds in a matter as serious as this. Very effective speeches were made—much more effective than I shall ever be able to make to your Lordships—at the Committee stage, and in particular, if I may say so, there was a very notable contribution from the noble and learned Lord, Lord Fraser of Tullybelton, 1299 who I personally am so glad to see in his place in the hope that he will also make a contribution tonight.
§ In the first instance, one would imagine that one had enough faith in Scottish judges for it to be apparent that, where they thought it was right to do so, they would exercise the discretion they at present have. Secondly, one would imagine that, if it is thought desirable on the grounds of public policy that a habit of making such a recommendation should be pursued, the judges of Scotland would have enough sense of public duty to follow any wish that might be expressed to them in that regard. However, to make it mandatory upon the judges to do this is surely highly undesirable. I could quote the reasons that were given by the noble and learned Lord, Lord Fraser, on the last occasion, but it seems wrong that I should paraphrase reasons which I hope he will be advancing himself tonight again; and if I can only learn from an indication from him that he will in fact be advancing those reasons tonight, I think it would be impertinent of me—and I have received that indication—to paraphrase what he said. I therefore want to add only reasons that he did not advance.
§ I have already said that I think there ought to be enough faith in the judges of Scotland. Furthermore, there was a point, I remember, that was advanced by the noble Lord, Lord Wigoder, at the Committee stage and it was this—and I hope it does not meet with too cold a reception when it comes from me. I did in my own remarks talk in terms of the law of England, and the noble Lord, Lord Wigoder, I remember so well at the Committee stage, said that, unless there was a very good reason (if he will permit me to quote him), surely upon a matter so serious as the crime of murder the laws North and South of the Border, and the customs and the traditions of dealing with murder trials, should be roughly the same. In other words, should it be a different treatment by a Scottish judge, who has to say what the minimum sentence should be, because the murder has been committed by an Englishman in Scotland, whereas the same situation does not apply if a Scot should happen to commit a 1300 murder in England and be subject to English law and sentencing by an English judge?
§ My Lords, I feel, as I have said, that this is a matter of great seriousness. I think I put it as high as this, that it is an impertinence to cast upon judges a mandatory duty of this kind instead of allowing it to be a matter for their discretion in proper places and in proper circumstances. As I have said, there were other reasons which were advanced, but I am leaving those who advanced them to do it with, as I have said, far more ability than I would be able to do it; but I do commend this amendment to your Lordships. May I explain before I sit down the way in which this amendment is put so that there is no misunderstanding? It is, first, to leave out lines 11 to 32 which would mean, as I understand it, that the present law would apply in Scotland—which is that the judge would have the discretion to make a recommendation in regard to a minimum sentence and then one must clear up the position later by dealing with the case on appeal where no recommendation has been made by the court below.
§ The appeal procedure is dealt with in paragraph (4) before one reaches Clause 43 of the Bill. There, by virtue of the fact that there is a reference to subsection (1) (which subsection I am hoping to remove by this amendment), the alternative words are set out that the Appeal Court, the High Court, if the appeal against conviction is unsuccessful, will be able if it sees fit—and again there is a discretion; and in the Bill itself the Appeal Court is given the discretion although the first court is not—to recommend the minimum period which should elapse before the Secretary of State releases that person on licence under Section 61 of the Criminal Justice Act 1967. It only remains for me to say what I think most of your Lordships know, that, in any event, the presiding judge makes a report to the chairman of the parole board and therefore all the relevant matters are before the parole board and there will be no question of the parole board not being in receipt of all the information possible.
§ The only thing one is omitting from this is the (in my view doubtful) effect of casting, as I have said, this mandatory duty upon the judge and, for reasons which 1301 we will advance, creating in many cases misapprehension and misunderstanding in the public mind. I beg to move.
§ 10 p.m.
§ Lord KEITH of KINKELMy Lords, I support the principle of this amendment; but I think that as drafted it does not fully give effect to the intentions stated by the noble Lord, Lord Mishcon. The reason for that is that Clause 42 opens with the provision:
For section 205 of the 1975 Act there shall be substituted",the provisions which follow.Section 205 of the 1975 Act is the provision which at the present time confers upon judges in the High Court of Justiciary the discretionary power to make a recommendation when sentencing an individual to life imprisonment as to the minimum period to be served. If Section 205 goes and nothing is put in its place, as the amendment proposes, then the power to make the recommendation will go and that will be the end of that.
The amendments which stand in my name later in the Marshalled List are intended to deal with that particular situation: in other words, the amendments which I shall propose if I have an opportunity are so drafted that the power to make the recommendations will be preserved. The amendment now proposed would not have that effect. However, in principle, may I say that I support the proposition that the existing power to make recommendations should remain, but that the mandatory duty of making a recommendation should not be placed upon the judges of the High Court of Justiciary.
The considerations against the Government's proposal were stated quite fully at the Committee stage by my noble and learned friend Lord Fraser of Tullybelton and myself. I do not propose to go into them in quite such detail as was then done. But basically and in summary the considerations are as follows: for the most part, the murders which have to be dealt with in the higher courts of Scotland are run-of-the-mill murders, the sort of murders that happen every day. But there are a very few which strike the public 1302 conscience as being exceptionally wicked and atrocious. I believe that the right course is that the power to make recommendations about minimum terms of imprisonment should be reserved for that class of particularly atrocious murders that have particularly jarred upon the public conscience.
In a sense, this exercise is in the nature of a public relations exercise. I am not alluding there to the fact that the noble Earl, Lord Mansfield, stated in Committee stage that these proposals appeared in the party manifesto prior to the last election. The purpose I think is first of all to exercise —as far as this can happen—some better and greater deterrent effect upon those minded to commit murder; but, more importantly, it is to increase the sense of public confidence in the judicial system in so far as that system has to deal with the crime of murder.
It is suggested that public confidence will be increased if in every case, unless there are special circumstances, the judge is required to make a recommendation as to the minimum term of incarceration. I believe very sincerely that if these proposals are passed the effect will be the very reverse. I consider—and I have thought about this quite deeply—that it would help to undermine public confidence in the judicial system so far as it has to deal with murder.
We must face realities. The Parole Board has been set up to perform what I believe to be an exceedingly valuable and useful function which it carries out with great devotion and, as far as can be seen, great success. It is part of the Parole Board's function to recommend when a prisoner serving a life sentence should be released. I think it should be trusted to get on with that; but at all events it is known to the judiciary that in the ordinary run of murder cases, such as I have mentioned, the Parole Board normally recommends release after some eight, nine or perhaps 10 years. All judges know that. If this proposal is passed, what are they going to do? They know the Parole Board normally recommend release around that period. I would have thought that any judge—and I have some experience myself—would say: "I don't want to interfere unduly with the Parole Board in the ordinary murder case: I recommend eight or perhaps nine years." 1303 What is going to happen if these proposals are passed? Is there going to be a series of recommendations of round about the nine-year mark? That is not going to promote public confidence, in my opinion, and that is the principal reason why these proposals are really a bad idea.
However, there is another aspect to be considered, which is I believe that this proposal would place a serious and unsatisfactory type of burden upon the judges who have to administer it. I have no interest of a personal character in that matter because although for some five years I was a Lord Commissioner of Justiciary, I do not hold that office any longer. If I did, I should be very concerned about the burden that I had to bear. It is stated that reasons must be given. In the ordinary case, the judge has before him, following a verdict of "guilty", a report on the social background of the accused, always a psychiatrist's report and, of course, always the record of previous convictions. Is the judge carefully to examine and analyse these papers? Is he to try to reach a sort of assessment as to the kind of danger the man represents to the community and weigh that against the seriousness of the crime, his social background and all the rest of it and give a reasoned opinion about it? If so, is he to deliver this ad longum the painful circumstances in which murderers are sentenced? I think that would be very undesirable. If it is not to be done that way, then it would be a quick, off-the-cuff thing and perhaps not very valuable.
However, there is this question of appeal, and if there is to be an appeal and the reasons are given, the tendency of any judge would be to go into the matter in very considerable detail. I do not feel that this would really be a very satisfactory state of affairs in the ordinary atmosphere of a criminal trial in the High Court.
It is also proposed that in special circumstances the judge may refrain from making a recommendation, and say why. I find it very difficult to envisage the kind of circumstances which are here in contemplation. As I say, you get the ordinary murder case, and the especially atrocious murder case. I cannot quite see that if you are not going to treat the ordinary 1304 murder case as the kind of case where it is not appropriate to make a recommendation, you could never find a category where it was not appropriate. You may find that judges tend to put it away, saying, "There is nothing very special about this murder and therefore I do not propose to make a recommendation". But I foresee that this will cause very great difficulties for judges, and therefore it will not have a very satisfactory effect on the public view of the administration of justice.
Two reasons were advanced by the noble Earl at the Committee stage to those supporting the amendment: first, it was not in the party manifesto. I propose to say no more about that. Secondly, it was said that the proposal was recommended in the Emslie Committee Report of 1972. The Emslie Committee reported a long time ago. There has been considerable experience since of the working of the existing discretionary power to make a recommendation. It would be very interesting and of value if the noble Earl would say whether he consulted Lord Emslie, now the Lord Justice-General, as to whether his views about the matter remain as they were in 1972, or as to whether the general views of the Scottish judiciary have been obtained in an up-to-date context.
The fact is that this is a very serious and important issue which deserves the most serious consideration and full debate, which is not to be had at this time of night. These proposals are not to be passed on the basis that they were in the manifesto. They must be passed on their merits or not at all. Life imprisonment is a very serious penalty. It must be recalled that it is a penalty imposed by law after mature deliberation, here and in another place, as a penalty for murder. It means that the individual who is sentenced to that penalty is never free for the rest of his life from the prospect that, although he may be released for a time, he can be recalled if he misbehaves, because he is only out on licence. Properly understood, it is a very serious and significant penalty and I do not believe that these attempts to brush up its image are either necessary or desirable.
So, in the result, although I do not find myself able to support the amendment proposed by the noble Lord as drafted, I support the principle of it and would 1305 prefer in due course that my own amendment and not that of the noble Lord should be passed.
§ Lord MISHCONMy Lords, with the leave of the House, it may be convenient for me to say that I am most indebted to the noble and learned Lord, Lord Keith, for pointing out that defect in the amendment. It certainly was not the intention to remove the discretionary power and I am most grateful to him for bringing the matter to my attention. I should have thought that it would be for the convenience of the House, and would save a lot of time, if I therefore at this stage immediately withdrew my amendment and asked for the noble and learned Lord's following two amendments to be called. The debate can then continue without any interruption. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 82 not moved.]
§ 10.13 p.m.
§
Lord KEITH of KINK EL moved Amendment No. 83:
Page 30, line 12, leave out from ("judge") to ("make") in line 14 and insert ("may").
§ The noble and learned Lord said: My Lords, if I may, I will take with this Amendment No. 84, which is purely consequential. In effect, I have already spoken to the substance of this amendment. However, it might be helpful if I explained more precisely its effect. First, so far as Section 205A(1) is concerned, the effect of the amendment is to substitute for the mandatory provision there contained, a discretionary power to make a recommendation such as exists at present in Section 205 of the 1975 Act, which, it may be worth recalling, derives from Section 1 of the 1965 Act. So that power has been running for 15 years without, so far as I know, any serious complaints about its manner of exercise.
§ As regards subsection (2), my amendment retains the provision that reasons for the recommendation should be stated, but it deletes the second part of the subsection about "special circumstances", because that would no longer be apt if it were only a power and not a mandatory duty. Subsection (3) is unaltered and so is subsection (4). The result is that there will now be a right of appeal against the 1306 recommendation made under the power, which is something new and which, I think, is quite unexceptional. I should be quite prepared to accept that part of the proposal and likewise subsection (4) which deals with the power of the High Court—that is the court of criminal appeal, in effect—to make a recommendation when no recommendation has been made by the judge of first instance. That also would remain and is, I think, quite harmless. I should have no objection to it. The reasons for pressing this amendment upon your Lordships I have already stated as fully and as carefully as I can, and I beg to move.
§ 10. 15 p.m.
Lord CAMPBELL of CROYMy Lords, I know that the noble and learned Lord, Lord Fraser of Tullybelton, has still to speak but as I propose to say a few words perhaps I ought, from this part of the House, to do so next because the noble and learned Lord, Lord Keith of Kinkel, explained the purpose of his amendment when speaking to the earlier one. It is a brave layman who intervenes where judges and learned advocates are speaking on a subject of this kind. I do so, as some noble Lords will know, because I was Secretary of State for Scotland in 1970 and at that time set up the Emslie Committee under the noble and learned Lord, Lord Emslie, who then reported to me in 1972.
I had no opportunity to take any legislative action. As a result of that, of course, consultations were started. Quite apart from anything else, as the noble Lord, Lord Ross of Marnock, will remember, I got landed with a complete year of legislation to change local government in Scotland, a task which I had no wish to do but which inevitably I had to carry out at that time because of the recommendations of the Royal Commission headed by the noble and learned Lord, Lord Wheatley—yet another of our Scottish Law Lords. I therefore feel some responsibility for what now appears in the Bill. I hope that the member of the Government who replies to this debate will confirm, in case I am not correct, that this clause arises directly from the recommendations of the Emslie Cornmittee and that there is not very much change from what was then recommended.
1307 The noble and learned Lord, Lord Keith of Kinkel, has said that a certain amount of water has flowed under the bridge since 1972. I do not think he was saying that in 1972 he would necessarily have objected to what was then proposed. If I understood the burden of his argument, he was saying that judicial opinion in Scotland had changed somewhat since 1972. I shall be very interested to hear what my noble friend Lord Mansfield, who it seems is going to reply to this debate, has to say on the effect of the passage of those eight years.
I would remind your Lordships that the noble and learned Lord, Lord Emslie, who was recently introduced into your Lordships' House, has been the head judge in Scotland for at least seven years. He has been the equivalent of the Lord Chief Justice in England. Certainly what he, with his committee, recommended in 1972, was something which I think everyone in Scotland would take very seriously.
If I may go back to the situation which caused me to establish that committee in 1970, may I say very briefly that there was great disquiet in Scotland among the general public—and perhaps it may be a good thing for a member of the public like myself who is not in the legal profession to speak about this—and general concern that murders and crimes of violence were increasing. There were feelings, which may have been right or wrong, first, that it was possible for people with homicidal tendencies to be let out of prison after seven or eight years inside, and fears that they could be dangerous and, secondly, that the penalty itself of perhaps only seven years inside was not enough for murder: that some people might deliberately decide upon murder, in certain circumstances, knowing that there was no capital punishment and that they would have to spend, on good behaviour, only about seven years inside. Those feelings may have been completely wrong but people certainly did need some reassurance. Therefore a committee, which was a very distinguished and able one, under the chairmanship of the noble and learned Lord, Lord Emslie, was set up. That was the background to his recommendations.
My other reason for speaking—and 1308 this is something on which I hope I shall find that a chord is struck with the noble Lord, Lord Ross of Marnock, because he and I have both occupied the positions of being the Secretary of State who had to consider personally the cases—is that everything in this clause is leading up to those words, "The Secretary of State releasing a person on licence". Of course, those decisions are taken with all the information and advice from the psychiatrist and the Parole Board—and perhaps I may just mention to the noble Lord, Lord Mishcon, that it is the Scottish Parole Board.
Of course, there is more than one; the Parole Board does not operate North of the Border. The Scottish Parole Board makes its recommendations and the Secretary of State has to take them into account, but it is a personal decision. Junior Ministers do not take any part in this. It is a personal decision like the one that the Home Secretary in England has to take, as to whether somebody should be let out. I am glad to think that no one whom I let out committed a murder afterwards, but I am afraid there were a number of cases where people did, and of course that is the kind of decision that is difficult because one has to balance the safety of the public against whether somebody should be kept in prison like a vegetable for a very long period. I agree with all those speakers so far who have said that this is a serious subject which must be decided on its merits.
That is the background. I should like to remind your Lordships that the Secretary of State, in a lonely position, has to take this important decision about an individual's future and balance it against the safety of the public and the feelings of the public and the reactions that there are likely to be if, for example, there were a couple of murders by released prisoners on parole or people who had served their sentences when the public thought they had served much too short a sentence. Those are the difficult decisions to which all this is leading.
I should like to say one more thing arising also from something said by the noble Lord, Lord Mishcon. He said that when these decisions are being taken—and I think he was referring to the decisions being taken by the Secretary of State—the views of the presiding judge are all 1309 made available to the Scottish Parole Board and are taken into account. I mentioned this on Second Reading and I make no excuse for mentioning it again. The difficulty is that seven, eight, nine or 10 years later the presiding judge is often no longer alive, and if he is alive he is sometimes no longer in a condition where he can remember; he may be very elderly and not in a state to be able to cast his mind back to the particular case. Therefore, because of having met that kind of situation myself on several occasions, I felt that the recommendations which a judge could make just after the case had finished were very important. The degree to which these should be weighed against all the other considerations is a matter of great delicacy which I agree should be discussed, but I do not think one can dismiss this point by saying, as I think the noble Lord, Lord Mishcon, did, that the views and comments of the presiding judge would all be available to the Parole Board. Certainly in my time the difficulty was that the presiding judge was either not there at all or was not able to provide the sort of information that the Parole Board wanted. If, besides the records of the case, he had been able to make some sort of recommendation as suggested in this clause, I think it would have been helpful.
I agree that this is a difficult question. Having myself been responsible for setting up the Emslie Committee, of course I hoped when it reported in 1972 that action would be taken upon it. Legislation has been rather slow, as it often is. I have not heard the full debate, but I wish to put my views as somebody who has been engaged in this process, not as a lawyer, but who has had to take the very difficult decisions at the end of the day.
§ 10.25 p.m.
§ Lord MISHCONMy Lords, before the noble Lord sits down, and since he mentioned a view that I expressed, I wonder whether he will forgive me if I clarify, possibly, what I intended to say. There is obviously no objection, and can be none, to a practice being initiated whereby the judge at the trial makes a note, at the time, of his views, which can then go to the Parole Board. I realise of course that it is the Scottish Parole Board, but, if I may say so with respect, I still think it is called the Parole 1310 Board and not the Scottish Parole Board, and therefore I gave the correct name to it. The point at issue here is not whether that is a correct practice, which can easily be initiated by arrangement with the judges. What we are discussing here, as I understood it, is whether it should be mandatory for a recommendation of this kind to be announced.
Lord CAMPBELL of CROYMy Lords, I am grateful to the noble Lord. I am very glad to have given him this opportunity to intervene and clarify what he was saying. I agree that the question of discretion is important, and I hope that my noble friend when he replies will be able to say more about the words in the clause,
unless he considers that there are special circumstances making it inappropriate for him to do so".Clearly there is a certain amount of discretion there which means that not every judge in every case will have to make a recommendation. No doubt we shall hear more on that point. But I am glad to have given the noble Lord the opportunity to explain what he was saying, because I also wanted to bring out the point that there is this interval of seven, eight or more years between the trial and the time when the Secretary of State has to consider the case, with the recommendations before him of people who only know about the prisoner in his most recent months.
§ Lord FRASER of TULLYBELTONMy Lords, I wish to support the amendment proposed by my noble and learned friend Lord Keith. May I just remind your Lordships in one word that the present law of Scotland is that when a person is sentenced to life imprisonment for murder the judge may make a recommendation as to the minimum period of his detention. The judge is not obliged to do that. Exactly the same applies in England; the judge may make a recommendation, but is not obliged to. My information is that both in Scotland and in England very few recommendations have actually been made by judges, presumably because they do not think it appropriate to do so. I certainly do not recall having made a recommendation myself as a judge in those circumstances. I have made inquiries in Scotland and I am informed 1311 that the present system is working very well. The possible friction which it was feared might develop between the judiciary and the Executive on this slightly delicate matter has not arisen, and the present system works smoothly. I have no reason to think that it works any less smoothly in England, although I have not much information about that.
In these circumstances, I ask, why should the system be changed? I have discussed this with several Scottish judges, not all of them, because it was not practicable. I have not found one who wishes to change the system. Among my noble and learned friends in England with whom I have discussed the matter I have found no enthusiasm for changing the system in England, so far as I know. I must say I very much regret that this debate is taking place at half past ten at night. There are several of my noble and learned friends who are English lawyers who would have wished to be present but owing to the lateness of the hour they are not able to be here. I am not authorised to speak for them, but I know they would have wished to contribute to this debate. I think it is extremely unlikely that they would have wished to change the law in England, which seems to be working well, as it is in Scotland.
In these rather unsatisfactory circumstances, I should like to say as strongly as I can that I think the amendment should certainly be carried and the law should not be changed. I wonder whether the Government have inquired the views of the Scottish judges. Perhaps the noble Earl will tell us. I wonder whether they have asked Lord Emslie his personal view at the present date; perhaps the noble Earl will tell us. As I understood it from what was said at the Committee stage of this Bill, the reasons put forward for change were, first, the recommendation of the Emslie Committee in 1972. I do not want to dwell too much on that. That was eight years ago in the rather early days of the life sentence. Since then a lot of water has flowed under the bridges, and one would like to know whether the Committee or Lord Emslie himself still adhere to their views.
I said in the last debate, and I might repeat it briefly now, that the English Criminal Law Reform Committee have 1312 a report, I think recently presented to the Home Secretary. I suppose it will be published shortly. It will be interesting to know what they have to say on this topic. It is one of the topics with which I understood they would be dealing. It will be interesting to know what reasons they have. They have had a further eight years' experience since the Emslie Committee reported. I have no reason to think that there is any difference between Scotland and England in this matter. The social conditions are much the same as far as this problem is concerned. I should have thought that the more up-to-date reasons of the English Committee would have been highly relevant to this matter.
The second reason is the party manifesto. I pass over that with a blush that it should be put forward as a justification for this matter. The third reason which has been resurrected tonight by the noble Lord, Lord Campbell of Croy, is that it was difficult for the Secretary of State to know what the trial judge thought when the matter came up some years later, when the time for release arose. I have the very greatest sympathy with any Secretary of State in the position to which the noble Lord referred, who has personally to make a decision of this sort which must often be very distressing and difficult.
However, on this matter events have evidently changed since the noble Lord, Lord Campbell of Croy, was Secretary of State, because the present position is that the trial judge now always, as a matter of routine, makes a report—which is not for publication—immediately after the trial. That report is preserved with the papers, so that when the Secretary of State comes to consider the question of release some years later he will know the view of the judge as at the time of the trial. That particular difficulty does not really arise. The point is that the judge is speaking at the time of the trial, knowing only the man's past history and the circumstances of the murder, but the more up-to-date information before the Parole Board is, I would think, and I understand the modern system of law is, more reliable than the judge's forecast.
Lord CAMPBELL of CROYMy Lords, I am most grateful to the noble and learned Lord for giving way. It was, in fact, because of the difficulties that I 1313 experienced at that time and complained about that the system was introduced. But, of course, it helped Secretaries of State a long time after me.
§ Lord FRASER of TULLYBELTONMy Lords, that is very likely reasonable. I did not actually know that, but I fully accept it. I am simply saying that that particular difficulty does not now arise, so there is no reason to change the law to deal with that situation.
My view is that judges ought not to be required to do something which they evidently do not want to do, either in Scotland or in England. Of course, they can easily make nonsense of it if they so wish. The judge has only to say that the minimum period is one day; he would be complying with the law, and much good that would be to anybody. I would not expect judges to adopt that extreme course, but I would expect a system of fairly routine recommendations to develop.
I should think there will be what I might, loosely—speaking, call the ordinary murder, and they would make some sort of standard recommendation for that. There will also be the family murder, using the family in the loose sense of common law wives and so forth, when very often there is a good deal of sympathy for the man who commits the actual crime. It may very often be thought to have happened in rather extenuating circumstances and a short, minimum period might very well be recommended in those cases. I have recently discussed this with one of my noble and learned friends who is familiar with the English courts, and he has told me that he can remember cases in his experience where in a family murder of that sort, if he had had to make a recommendation for a minimum period, it would have been quite short—perhaps two or three years, or of that order.
Thirdly, there is the shocking and atrocious murder where the judge will recommend a rather longer period. However, I should have thought that the recommendations will tend to fall into those three classes. If that is so, I do not think that the recommendation will strike terror into the hearts of wrong-doers, which I suppose is the idea behind this. I think that it will become routine and will have very little effect. Indeed, I think 1314 that it will be a great disappointment to those, who may exist, who think that judges will recommend long terms of imprisonment habitually, and stand as a terrible warning to people. They will be disagreeably surprised to find that in quite a few cases the judges will recommend quite a short, minimum period, knowing that the actual period may be a good deal longer. But the minimum will be comparatively short. I do not think that those who are looking for a terrifying series of pronouncements from the Bench will get anything of the sort. I think they will tend to get the opposite.
I am not going to go over all the ground covered last time, but I did mention before that there is the possibility of a misleading comparison of the minimum period recommended on a sentence of life imprisonment for murder with the actual sentence for culpable homicide or manslaughter, which is of course liable to be cut down to one-third in some cases and nearly always to two-thirds. That is a comparison which will be misleading, but the public will not understand why it is misleading. In these circumstances it seems to me that judges ought not to be compelled and driven to do something they do not want to do.
May I just finally say this? The judge is going to be compelled to make a recommendation and to say his reasons for so recommending. I wonder whether people have considered this. Do you know what happens at the end of a murder trial? The court is filled and rather tense. The family and relations of the accused are there, and when the jury comes back and announces "Guilty" there is usually a sort of shriek from the gallery and the mother faints and the wife screams and there is a bit of a scene. Is it really to be recommended that the judge shall stand up and say, "Well, on the one hand I have considered this, and on the other hand I have considered that, and on the whole I think three and a half years is the minimum". It is the sort of scene which really revolts one and it is quite absurd, and I think it will be most deplorable if judges are compelled to make recommendations when they do not want to. They have shown that they do not want the power. They have the power to do it when they think it is necessary, and I think the law should be left as it is when it is working not too badly.
§ Lord FERRIERMy Lords, this is a matter to which I have given a good deal of thought over the years, so far as a layman can, for reasons with which I shall not weary your Lordships, and having heard the speeches from the noble and learned Lords on the Cross-Benches, I shall certainly vote with the noble and learned Lord, Lord Keith, if he divides the House.
Lord MORRISMy Lords, with great trepidation I rise to support the noble and learned Lord, Lord Keith of Kinkel. I have listened with great care to both noble and learned Lords' arguments at the Committee stage and at this Report stage. I ask only that your Lordships consider carefully the fact that, when not one but two noble and learned Lords step down from Olympus at this ungodly hour, very great weight should be given to this fact on all sides of the House. I implore the noble and learned Lord, Lord Keith of Kinkel, should the Front Bench not give way on this point, to press this amendment, and I also beseech my noble friends to go through the Lobby with the noble and learned Lord.
§ Lord WIGODERMy Lords, at this late hour in the evening I shall make only two short points. First, the noble Lord, Lord Campbell of Croy, made the observation that there have been cases where prisoners serving an indeterminate life sentence have been released on parole and have committed further offences. That of course is entirely accurate as an observation, but it is not an argument either for or against the amendment which we are now considering. As the noble Lord will appreciate, in order for it to become an argument one way or the other one would have to know how many years that particular prisoner had served and what recommendation would have been made in his case had a recommendation been mandatory. It might have been a longer recommendation, in which case this would be a point against the amendment; it might have been a shorter recommendation, in which case it would carry no weight at all as an argument against this amendment.
The only other point I want to make follows upon what has been said by the noble Lord opposite, who pointed out that not one but two Law Lords have 1316 spoken in favour of this amendment. It is not any two Law Lords, it is "the" two Law Lords, because I think I am right in saying that the position is that there are nine Law Lords, who are the most experienced and profound lawyers in the whole of Great Britain, and, by long tradition—it may be with statutory authority, though that I am not sure of—there have always been two Scottish Law Lords. Both of those Scottish Law Lords have this evening come and indicated from their experience and their knowledge of the views of their colleagues in Scotland, their support for this amendment. In those circumstances—this is not in any way a party political matter—I hope that the noble Earl will say when he replies that it would be proper and appropriate for the Government to accept the amendment.
§ 10.40 p.m.
§ Lord ROSS of MA RNOCKMy Lords, the House should feel very grateful indeed to the two noble and learned Lords on the Cross-Benches who have addressed themselves to this subject tonight. It is a tribute to the House and a tribute to the debate that at this late hour we should have the attendance we have; I saw the place very much emptier much earlier. What we are witnessing now is a tribute to the importance of the subject and to the quality of the debate itself.
This is an important issue. It comes down to the question whether or not we want the sentence that is mandatory on a person having been found guilty of murder to carry the greatest weight. At present that sentence is life imprisonment. Power has been given—it was given not all that long ago—to judges, if they feel it right to do so, without reasons, to impose a mandatory minimum sentence. To depart from that and go to the point where the judges shall make a sentence, means that in every murder case in which a person is found guilty, irrespective of the circumstances and irrespective of public opinion, the judge must state a minimum sentence.
With due respect to the noble Lord, Lord Campbell of Croy, I was Secretary of State for eight years, so I have double the experience he has in this sphere. I also had the experience of seeing the public being whipped up with statements like, "It does not matter if it is a life sentence; 1317 a person can get out after eight years "—the kind of unthinking, emotional reaction in a particular case—when that is not true.
A life sentence means a life sentence. The Secretary of State, after all the advice he gets from the local committees, from the Parole Board, from the trial judge if available—and if the trial judge is not available, a recommendation comes from the Lord Justice-General, and that does not go to the Parole Board, but goes direct to the Secretary of State—at the end of the day has to make that decision. I have known murder cases where the Secretary of State would be pilloried if he did not make an earlier release on licence possible; indeed, it was a kindness to the person being sentenced not to reduce the charge, because they might have been, for culpable homicide, subject to a very much longer sentence.
The point is that life imprisonment, with the ability of the Secretary of State to release on licence, means that it could be after a day, a month, a year or after two, three or four years. But if you put that responsibility on to a judge and he recommends that a person shall be released after a minimum period of two years, it makes a mockery of life imprisonment; and that is the reason, to my mind, why judges in Scotland have not resorted to using the discretionary power they have—because they realise that.
One of the troubles with the Emslie Committe was that at the same time as they reported we had the report of the Edmund-Davies Committee for England and Wales, and they reported in the very opposite direction. I think it is true to say that the attitude of English judges and by practice that of Scottish judges is that they reserved a very long sentence, say 25 years' minimum, for a crime that has appalled the public and for which the public expect that kind of minimum sentence. But that is not the general average. When you depart from these deterring sentences, you make a mockery of the term "life imprisonment". It becomes a meaningless formula.
Probably with the best will in the world the Emslie Committee came to their decision. I had very considerable discussions on this matter and I came to the conclusion that the Edmund-Davies Committee's proposal was the right one. At present 1318 we have the Law Society of Scotland's report before us. What they say is—there is no doubt at all about it:
The general view of the Council is that the present law contained in Section 205 of the 1975 Act, which allows a judge to recommend the minimum sentence where life imprisonment is approved, is satisfactory, and the new provisions are opposed as being unnecessary".Not only do I think that they are unnecessary; having listened to the noble and learned Lord, Lord Keith of Kinkel, and to others who have intervened in the debate, I think that they are dangerous. I hope that the Government will change their mind about this matter.
§ 10.47 p.m.
§ The Earl of MANSFIELDMy Lords, as has already been said, the matters which have been the subject of this debate have all been fairly comprehensively covered during the Committee stage. I had not wished, nor indeed intended, again to go over the ground which has already been covered very thoroughly. However, in view of the very considerable interest which this matter has aroused in your Lordships' House at what is a late hour, and in view of the very considerable attendance there now is in the Chamber, and bearing in mind the very persuasive arguments—not least those which the two noble and learned Lords have presented—I think it is incumbent on me both to try to justify the decision which the Government made in including this provision in the Bill, and to seek to persuade the House (as I hope I shall) that this is a desirable reform.
At the Committee stage the noble and learned Lord, Lord Keith of Kinkel, set the scene when he said:
The point which is raised by the amendment is not at all a lawyer's point. As I see it, it is very much concerned with the question of what the attitude of the general public to the administration of justice in the higher criminal courts of Scotland is going to be".—[Official Report, 5/2/80; col. 1250.]This is a question of administrative law.If I do criticise the two noble and learned Lords, it is for the fact that when it came to the political content of what I said on the last occasion they did me less than justice, because they put it as the second of the Government's reasons for including this provision in this Bill. In a speech of about, I think, three columns of 1319 Hansard it occupied nine lines. My very last words were:
I would not seek to justify anything simply for that reason, but I just put that in for what it is worth". [col. 1255.]So, my Lords, it is not—
§ Lord ROSS of MARNOCKIt was not worth very much, my Lords, because that manifesto was turned down by the people of Scotland.
§ The EARL of MANSFIELDMy Lords, there is no one who can make a bad point better than the noble Lord can, and long may he be with us to do it.
However, I should like to get on to the more serious part of this serious amendment. As has been said, this provision stems directly from the Emslie Report, and I do not think that one can just dismiss the conclusions which were reached. I know that it was some years ago. I know that much water has since gone under the bridge, but I do not believe that public anxiety over the way in which murder trials are conducted and, above all, over the way in which murderers are treated has in any way been allayed in the years which have passed. This measure directly stems from the very serious public disquiet which there is in Scotland.
In paragraph 93 of the Emslie Report, it says—and I think it proper to repeat what I said before—that the effect (of this measure, in effect):
…would be that at the end of almost all trials which result in a conviction for murder the Court, in addition to imposing the mandatory life sentence, would recommend, in the light of its assessment of the offence and the offender, a minimum period of years for which the offender should be initially detained. The making of such a recommendation would enable a distinction to be made in public, by the Court, between one murderer and another. The convicted person and the public would thereby be made aware of the gravity with which the Court viewed the case and any potential offender would be made aware, in a more direct way than is possible with the present sentence, of the likely consequences of a similar crime. At the end of a murder trial which attracted considerable publicity the pronouncement of a sentence of life imprisonment coupled with a recommended minimum period would usefully sharpen the deterrent value of the sentence. The introduction of such a provision would also go some way to strengthen public confidence in the penalty for murder by removing the present anomaly whereby the judges, who are entrusted with the task of saying what custodial element is necessary for, in particular, the purpose of deterrence and prevention in any other Common Law crime, play virtually no part at all in determining the period 1320 which convicted murderers spend in prison. The present provision for obtaining the trial judge's view on these matters is of little value and contributes nothing to the general deterrent influence of the penalty itself".I know that the noble and learned Lord, Lord Fraser, said that there are scenes which can be not only unpleasant but harrowing at the end of a trial. Certainly, the noble Lord, Lord Wigoder, and I have both been present in English courts when they are so. In such cases, for instance, as an extremely serious case of robbery, where the trial judge does have to set a sentence, he does have to tell the accused and the now-convicted persons what he thinks of their behaviour; he does have to tell them the sentence he is going to impose and the reasons why he is imposing it in short; and there are expressions of grief on the part of relations and friends of the convicted men. But is that so unpleasant in one case—that is, of murder—that it should, as it were, vitiate any other considerations? I submit not.I was asked in effect by the noble and learned Lord, Lord Keith, whether I, personally, had had conversations with the Lord Justice-General. The answer is, No. But I know that my noble and learned friend the Lord Advocate is in constant contact and he has had consultations with him and with others. May I take next the question of existing discretionary power?
§ Lord WIGODERMy Lords, will the noble Earl indicate whether he can help the House as to what are the present views of the noble and learned Lord, Lord Emslie?
§ The Earl of MANSFIELDMy Lords, I am not going to do so. It is hearsay evidence and I do not think it would be right of me to regale the House with whatever the Lord Justice-General may or may not have said in conversations—and I do not know whether they were private and I do not know the circumstances in which they took place—with my noble and learned friend. I do not think the House would expect me to deal with that sort of conversation.
§ Lord WIGODERMy Lords, of course I was not asking the noble Earl to deal with that on an unofficial basis. Have the Government not taken any steps to find out officially what the views now are of the noble and learned Lord, Lord Emslie?
§ The Earl of MANSFIELDMy Lords, the answer to that is, Yes.
§ Lord MISHCONMy Lords, I am pleased to hear that the answer is, Yes, because without necessarily convincing the House one way or another, I think it would be helpful (if the noble and learned Lord, Lord Emslie, has been consulted officially) if one knew whether or not he was still of the opinion that he was some years ago at the time of the Emslie Report. That does not mean any hearsay evidence or talking in terms of private conversations, but, if official consultation has taken place, may the House know what the results of the official consultations were?
§ The Earl of MANSFIELDMy Lords, I have given my answer to that and I am afraid that I cannot go further than what I have already said.
§ Lord MISHCONMy Lords, I ask permission to speak once more and not again. I will not interrupt the noble Earl on this matter again. I am sure the noble Earl will realise the seriousness of his statement in the sense that if Lord Emslie—and I am able now to talk only in terms of hypothesis—had changed his mind and the House was not frankly informed, the House would be misled if the Emslie Report is being quoted.
§ The Earl of MANSFIELDMy Lords, I am not sufficiently informed to be able to make a creditable and comprehensive reply on behalf of the Government. If I attempted to do so, it would be not right of me. The noble Lord may shake his head and he may make of it what he likes. But I am not in a position to give an account of whatever conversations have taken place on this matter.
§ Lord MISHCONVery surprising!
§ The Earl of MANSFIELDI can only go on, my Lords. What I had come to, in effect, was an attempt to justify the making mandatory, except in exceptional circumstances, of what has always been, since the death sentence was abolished, a discretionary power. Acting, as I have said the Government have, on the report of this committee, they now seek to make the power mandatory except in exceptional circumstances, and I now come to the point which was put to me as to when exceptional circumstances come about.
1322 It is right to say that the Emslie Report expressly declines to go into such possible reasons, and one can quite see why, because one would imagine—indeed, one would more than imagine: one would conclude—that that would be up to the good sense of the judges themselves. I could give two instances, perhaps, and the first is one which illustrates what the noble and learned Lord, Lord Fraser, said either tonight or in Committee (or both; I cannot quite remember), and that is the case of what I might call the less heinous murderer, where, if left to himself, a judge faced with this duty would say, in effect, "This deserves a minimal custodial sentence". That, I suggest, would be the sort of occasion on which it would be quite proper for a judge to give the reasons and say, "In these circumstances, I do not propose to lay down a minimum".
The second instance in which I suggest it would be perfectly possible, and indeed proper, for the judge (as it were) not to carry out this duty would be if, for instance, he was of the opinion that the character of the convicted murderer was such that he might be exceptionally (shall I say?) receptive to reformation; that he was the sort of person who the prison system, or any help that might be given within it, would reform particularly quickly; in which circumstances a recommendation would not only he unreal but would perhaps be positively not in the public interest. I think I have now dealt with that particular point.
The Government take the view—and I cannot over-emphasise this—that the pronouncement of these recommendations will serve to enhance the preventive and deterrent effects of the life sentence. As I have said, there is widespread concern at the moment, and this is not only in Scotland, but it exists particularly in that part of the United Kingdom. I do not agree that in what has been called "run-of-the-mill" murder cases a pronouncement of the eight, nine or 10 years will undermine public confidence in the penalty for murder. The average time of imprisonment before release on licence is, I believe, currently about 10 years. This is an immensely long time for an individual to be deprived of his liberty. I take the point that some members of the general public may not appreciate this; but I do not think that it is beyond the ability of 1323 those concerned to increase the general level of awareness of the life sentence.
I concede of course that the trial judge when pronouncing sentence is in no position to gauge what rehabilative effect a period of imprisonment may have, except in situations which I have illustrated. That is why he is required under this clause to make only a recommendation as to the minimum term which should be served before the offender is released on licence. The release date will, as now, be determined by the Secretary of State in the light of the advice of the Parole Board. To that extent, the position does not change at all from what it is now. They—that is, the Secretary of State and the Parole Board—will not necessarily be bound by the judge's minimum recommendations, and in cases where the offender makes good progress towards rehabilitation in prison he may, if appropriate, be released on licence at an earlier date.
For all these reasons therefore I invite your Lordships to consider that this is a useful measure which could be written into our statute law. I am aware that many remarks have been addressed to me as to what the view of the noble Lord, Lord Emslie, may be now in contradistinction as to what his view may have been when he headed this inquiry.
I think I should leave the matter like this: I do not think that it is entirely profitable to consider the present views—whatever they may be—of an individual as compared to the views of the committee which he chaired. The view which the Government wishes to see now put into this Bill is not the view of an individual; it is the view of a committee which sat and which reported, as I have indicated, in no uncertain terms as to what it would like to see put into the law of Scotland. It is on that basis that I invite the House, and especially my noble friends who may well have been swayed by what I respectfully say is the undoubted advocacy of the noble and learned Lord, not to go into the Lobby in what I would suggest is the wrong direction.
§ 11.3 p.m.
§ Lord KEITH of KINKELMy Lords, as I said—and the noble Earl has rightly drawn attention to it—at the Committee 1324 stage, this is not a lawyer's point, it is very much a point of individual judgment; but to a large extent it is a point of very great concern to the judiciary. It is of some significance that no modern view has been obtained as to the opinion held generally among the judiciary in Scotland. It might at least have been, I would respectfully think, of some assistance to your Lordships. If I may deal with one or two points: first of all, I think that it must be of some significance that, with the possible exception of the noble Lord, Lord Campbell of Croy, no one has spoken in favour of these proposals and against the amendment, apart from the noble Earl. If this is truly to be considered an argument, I do not think there can be any doubt as to which side has prevailed, and no doubt your Lordships will act accordingly.
Some point was made about giving the reasons and the painfulness of giving elaborate reasons in the circumstances normally prevailing at the conclusion of a criminal trial. This matter should be kept in mind: there is no other provision which I am aware of in any statute dealing with the criminal law which requires reasons to be given for any sentence at all. This is something new and unique. It obviously would require consideration by the judges as to the extent of the detail they must go into as to the reasons in this exceptional situation. That is a new, novel and strange situation which I would think is undesirable. Although one might accept it if it were applied to the exceptional case, such as the atrocious murder to which I referred, I would think it not acceptable if it had to be done in every single murder case, unless there were some special reason, and it is very hard to see what the effect of it would be in the special case.
The problem which the noble Lord, Lord Campbell of Croy, encountered during his period as Secretary of State in respect of the difficulty he found in getting the views of a trial judge has now, I think, largely due to altered practice, been done away with. For at least the last eight years, to my certain knowledge, the judge at the conclusion of every murder trial has prepared a contemporaneous record, which is kept with the rest of the papers and is available to the Parole Board and also to the Secretary of State. That is one of the points made in the Emslie Report and is one change which has been made since that report was prepared.
1325 At the end of the day, I would respectfully suggest that the most creditable course in all the circumstances would be for the Government to withdraw these proposals; but, in the event that they were not prepared to do so, then with regret I should find it necessary, having regard to the importance which I personally attach to this matter, to require a Division.
| CONTENTS | ||
| Abinger, L. | Glasgow, E. | Segal, L. |
| Ampthill, L. | Keith of Kinkel, L. [Teller.] | Selkirk, E. |
| Ardwick, L. | Kinnaird, L. | Sempill, Ly. |
| Balerno, L. | Kinross, L. | Simon, V. |
| Blease, L. | Llewelyn-Davies of Hastoe, B. [Teller.] | Southwell, Bp. |
| Brockway, L. | Stewart of Alvechurch, B. | |
| Brooks of Tremorfa, L. | Milner of Leeds, L. | Stewart of Fulham, L. |
| Craigavon, V. | Mishcon, L. | Stone, L. |
| David, B. | Morris, L. | Swinfen, L. |
| Davies of Leek, L. | Peart, L. | Taylor of Blackburn, L. |
| Faithfull, B. | Pitt of Hampstead, L. | Taylor of Gryfe, L. |
| Falkland, V. | Ponsonby of Shulbrede, L. | Tweeddale, M. |
| Ferrier, L. | Ritchie-Calder, L. | Vaux of Harrowden, L. |
| Foot, L. | Ross of Marnock, L. | Vernon, L. |
| Fraser of Tullybelton, L. | St. Just, L. | Westbury, L. |
| Gaitskell, B. | Sefton of Garston, L. | Wigoder, L. |
| NOT-CONTENTS | ||
| Abercorn, D. | Ferrers, E. | Mansfield, E. |
| Amherst of Hackney, L. | Galloway, E. | Margadale, L. |
| Atholl, D. | Gisborough, L. | Mottistone, L. |
| Bellwin, L. | Godber of Willington, L. | Mowbray and Stourton, L. |
| Belstead, L. | Grimston of Westbury, L. | Murton of Lindisfarne, L. |
| Camoys, L. | Harvey of Tasburgh, L. | Reading, M. |
| Campbell of Croy, L. | Henley, L. | Reigate, L. |
| Chelmer, L. | Hives, L. | Saint Oswald, L. |
| Cockfield, L. | Holderness, L. | Sandford, L. |
| Crathorne, L. | Kinnoull, E. | Sandys, L. [Teller.] |
| Cullen of Ashbourne, L. | Long, V. | Savile, L. |
| Denham, L. [Teller.] | Lyell, L. | Trefgarne, L. |
| Drumalbyn, L. | Mackay of Clashfern, L. | Vaizey, L. |
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ The Earl of MANSFIELDMy Lords, I beg to move that further consideration on Report be now adjourned.
§ Moved accordingly, and, on Question, Motion agreed to.