§ 21 Clause 6, page 6, line 2, leave out 'section' and insert 'sections'.
§ 22 Clause 6, Page 7, line 23, leave out subsection (6).
§ 23 Clause 6, Page 7, line 28, at end insert—
§ Record to be made of proceedings at examination.
§ "20B—(1) The prosecutor shall provide for a verbatim record to be made by a shorthand writer of all questions to, and answers and declarations by, the accused in examination, or further examination, under sections 20 and 20A of this Act.
§ (2) The shorthand writer shall sign the transcript of the notes taken by him and shall certify that it is a complete and accurate record of the said questions, answers and declarations; and, subject to subsection (4) below, it shall for all purposes be so deemed.
§ (3) Subject to subsections (5) and (6) below, within 14 days of the date of examination, or further examination, the prosecutor shall—
- (a) serve a copy of the transcript on the accused examined; and
- (b) serve a further such copy on the solicitor (if any) for that accused.
§ (4) Subject to subsections (5) and (6) below, where notwithstanding the certification mentioned in subsection (2) above the said accused or the prosecutor is of the opinion that a transcript served under paragraph (a) of subsection (3) above contains an error or is incomplete he may— 1780
- (a) within 10 days of service under the said paragraph (a), serve notice of such opinion on the prosecutor or as the case may be the said accused; and
- (b) within 14 days of service under paragraph (a) of this subsection, apply to the sheriff for the error or incompleteness to be rectified;
§ Provided that where—
- (i) the person on whom the notice is served under paragraph (a) of this subsection agrees with the opinion to which that notice relates the sheriff may dispense with such hearing;
- (ii) the said accused neither attends, nor secures that he is represented at, such hearing it shall, subject to paragraph (i) above, nevertheless proceed.
§ (5) Where at the time of a further examination a trial diet is already fixed and the interval between the further examination and that diet is not sufficient to allow of the time limits specified in subsections (3) and (4) above, the sheriff shall (either or both)—
- (a) direct that those subsections shall apply in the case with such modifications as to time limits as he shall specify;
- (b) postpone the trial diet:
§ Provided that postponement under paragraph (b) above alone shall only be competent where the sheriff considers that to proceed under paragraph (a) above alone, or paragraphs (a) and (b) above together, would not be practicable.
§ (6) Any time limit mentioned in subsections (3) and (4) above (including any such limit as modified by a direction under subsection (5) above) may be extended, in respect of the case, by the High Court.
§ (7) In so far as it is reasonably practicable so to arrange, the sheriff who deals with any application made under subsection (4) above shall be the sheriff before whom the examination (or further examination) to which the application relates was conducted.
§ (8) Any decision of the sheriff, as regards rectification under subsection (4) above, shall be final.
§ (9) A copy of—
- (a) a transcript required by paragraph (a) of subsection (3) above to be served on an accused or by paragraph (b) of that subsection to be served on his solicitor; or
- (b) a notice required by paragraph (a) of subsection (4) above to be served on an accused or on the prosecutor,
§
24 Clause 6, Page 7, leave out line 29 and insert—
'(3) For section 151 of the 1975 Act (accused's declaration in solemn proceedings to be received in evidence without being sworn to by witnesses), there shall be substituted'.
§ 25 Clause 6, Page 7, line 31, leave out 151A' and insert '151'.
§ 26 Clause 6, Page 7, leave out subsections (2) and (3)' and insert 'subsection (2)'.
§ 27 Clause 6, Page 7, line 32, leave out '20A(3)' and insert '20B'.
§ 28 Clause 6, Page 7, line 33, after 'Act,' insert '(with any rectification, authorised under subsection (4) of that section, incorporated).'.
§ 3.27 p.m.
§ Lord MACKAY of CLASHFERNMy Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 21 to 28 en bloc. The purpose of these amendments is to deal with what we regard as important in connection with judicial examination; namely, to ensure that a record of the examination shall be made which is accepted as accurate by both parties, with the sheriff arbitrating in any disputes. The procedure set out in the amendment would ensure this and is in accordance with the Thomson Committee recommendations, subject to the fact that the First Diet recommendations have been modified.
It is intended that there shall be provision for tape recording of proceedings at judicial examination so that the sheriff will be able to check the record in the event of dispute. As Thomson recommended, only questions and answers are to be recorded. The cost of transcribing a full examination would be high, and unjustified when a question and answer record would allow greater freedom to the accused. We envisage a situation where the prosecutor will frame a question which will then be subject to comment by the sheriff, possibly at the prompting of the defence solicitor. The accused, before answering, may consult his solicitor. It is thus only approved questions and carefully considered replies which will be recorded. This is unlikely to be to the disadvantage of the accused, whereas a record which showed to the jury, for 1782 example, the question the accused felt unable to answer without legal advice, might prejudice him This is the basic explanation for these amendments. I beg to move Amendments Nos 21 to 28 en bloc.
§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)
§ Lord McCLUSKEYMy Lords, the noble and learned Lord the Lord Advocate has spoken to eight amendments at the same time, and certainly I would acknowledge that they improve the situation which is covered by Clause 6. But, as your Lordships will see, this document before us contains no fewer than 21 amendments to Clause 6, and there were amendments made to that clause before it left this House.
If one now looks at the length and complexity of what is proposed to be added—for example, in Amendment No. 23— one sees that one has provision here for all kinds of bureaucratic nonsenses. One has notices; one has shorthand notes; one has service of notices within certain periods of time; applications for extension; application to the High Court; service by registered post, and so on. One is building here an enormously clumsy apparatus and introducing into the criminal system rigidities which we could simply well do without.
The clause has no friends. Its constant amendment, both in this place and in another place, have shown the need for substantial changes in the Government's original thinking. It is not too late for the Government to think again, although I would not ask your Lordships to reject the amendments. I accept that they improve the clause. However, I ask the Government, before they exercise their power under Section 81(2) of the Act, as it will be—namely, the commencing powers—to think long and hard before they bring the clause into force.
It is an unlovely and unloved clause. It is a procedure that has no friends. I cannot believe that it will simplify trials or make justice more easy to attain in Scotland. I ask the Government to take that into account before they bring this part of the Act, as it will be, into operation.
§ Lord FOOTMy Lords, I cannot help thinking that the noble and learned Lord, Lord McCluskey, was a little ungenerous to the Government. I recognise that there has been long and anxious consideration about the clause. However, it should be recognised that the clause, which was introduced originally by the Government in this House, was closely examined, and that during the course of the debates the Govenment gave way on a number of matters and incorporated various things for which we on these Benches and on the Opposition Benches had asked.
The Bill then went to the Commons. Those in another place introduced a number of amendments, including the ones that we are discussing now, all of which amend the clause and all of which are in favour of the accused person, and for the protection of civil rights. Whatever objections there may have been to the clause in the first place—I hesitate to speak about that because this is a matter of intricate Scottish procedural law—it seems that many of them have been cleared away in the course of the passage of the Bill in this House and in another place.
I use this opportunity to say—I do not think that I shall have occasion to intervene again in these debates this afternoon because everything that is under discussion, except possibly one matter, is likely to be agreed by the House—that on any showing what is being done in Clauses 1, 2, 3, 5 and 6, which are the clauses with which I and my noble friends were mainly concerned when the Bill was in this House, is of considerable importance. The clauses introduce a new pattern of procedure for dealing with suspects and the process of interrogation of suspects.
Whatever one may think about it, this will be an important experiment in criminal law in Scotland. I suggest that it will be an important experiment for the purposes of English law. A committee is now discussing whether the system of the Judges' Rules and the rest need to be amended, and I understand that it will come up with fairly considerable proposals.
It would be churlish of myself and my noble friends who have taken some part in the discussion on this Bill if we were 1784 not to acknowledge, as I am glad to do, that the Government in this House and, I believe, in another place, from what I read of the debates that took place there, have shown an extremely accommodating attitude. Some reform of this kind is essential. At the end of the day this House and the other House may well be able to congratulate themselves upon passing a measure of major importance in criminal law. With all respect, I add my congratulations to the Lord Advocate and the noble Lord.
§ Lord MACKAY of CLASHFERNMy Lords, I think that we should like to express our appreciation to the noble Lord, Lord Foot, for his comments. We have endeavoured to improve the clause. We are grateful to all those who have participated in that process, both here and in another place. This is the sort of development of the law which requires as much help as it can get from everyone who has anything to contribute. We gratefully acknowledge the help that we have received.
The noble and learned Lord, Lord McCluskey, criticises the clause for being bureaucratic. The difficulty is that one has to provide for a number of eventualities. One hopes that in most cases the eventualities will not arise and that the record will be approved simply. I believe that it is a clause that may gather friends as it goes along. We shall attend to what the noble and learned Lord said, but we are confident that the noble Lord, Lord Thomson, was right in recommending a procedure of this sort, and we are glad that it has met with some acceptance up to date.
§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)
§ On Question, Motion agreed to.
§ 3.35 p.m.