§ 10.32 p.m.
§ Lord Pitt of Hampstead
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Pitt of Hampstead.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The BARONESS WHITE in the Chair.]
§ Clause 1 agreed to.
§ The Lord Advocate (Lord Cameron of Lochbroom) moved Amendment No. 1:1152
Page 2, line 21, at end insert—
(" (d) after subsection (5) there shall be inserted the following subsections—
§ " (6) For the purposes of subsection (1) and (2) of this section, any substance sold in a container (whether sealed or not) shall, subject to subsections (7) to (9) of this section, be presumed to conform to the description of the substance on the container.
§ (7) Where a prosecutor (within the meaning of section 462 of the Criminal Procedure (Scotland) Act 1975) intends to rely on subsection (6) of this section, he shall give notice of his intention to the accused or his agent not less than 14 days before the commencement of the trial.
§ (8) The accused shall not be entitled to challenge the presumption in subsection (6) of this section, unless he or his agent gives notice to the said prosecutor of intention to do so not less than 7 days before the commencement of the trial.
§ (9) A notice under subsection (7) or (8) of this section shall be by recorded delivery letter, and the execution of the recorded delivery shall be sufficient evidence of the time of posting and of intimation of the notice, which shall be presumed to have been intimated to the addressee on the day after the day on which it was posted, except that, in the case of a notice posted on a Friday or a Saturday, it shall be presumed to have been so intimated on the Monday next following.".")
§ The noble and learned Lord said: This amendment is of a technical nature and arises because of the rules of evidence which are applicable to a criminal trial in Scotland. There a prosecutor must prove the nature of the contents of a container such as a bottle or tin, and in those circumstances evidence would require to be led from expert scientists as to any analysis of the contents. This is so even where, for instance, there is a brand product which carries on it a brand label which specifies the contents and the nature of the contents may not at the end of the day be a matter for dispute between the Crown and the accused.
§ The amendment seeks to obviate the need for full scientific examination in every case by creating a presumption for the purposes of any trial that any substance sold in a container, whether or not the container is sealed, shall be presumed to conform to the description of the substance on the container.
§ I should say that Parliament has already legislated in a similar manner: first of all, in the Licensing (Scotland) Act 1976 in regard to any liquid which is found in a container, sealed or open, in circumstances where that may constitute an offence under the legislation; and again in 1980, in the Criminal Justice (Scotland) Act, in the section which deals with offences at sporting events, where a similar presumption is to be found in relation to offences such as the possession of alcohol, for instance, while persons are travelling to or from a sporting event or at a sporting event itself.
§ It is important to note that this is a rebuttable presumption and it does not in any way compromise the accused's position. First of all, as your Lordships will see, under subsection (7) the prosecutor is required to give notice to the accused of his intention to rely upon the presumption; thereafter, under subsection (8), the accused person may give a counternotice that he intends to challenge that presumption. Thus his right is protected to insist that the Crown shall prove that the contents are of the nature alleged by full legal and scientific proof. But, where the matter is not contentious, the presumption, in circumstances where notice is given by the prosecutor and not challenged by 1153 the accused, would allow the trial to proceed without the unnecessary expense of full scientific examination and the leading of the evidence of two authorised analysts.
§ With leave, may I make reference to an amendment which is down in the name of the noble Lord, Lord Airedale, and which relates to subsection (9)? Your Lordships will understand that subsections (7) and (8) provide that notice shall be intimated in the first case by the prosecutor to the accused or his agent outwith a certain period of time before the commencement of the trial; and by the same token the accused may not challenge the presumption unless he gives a counternotice outwith the period of seven days before the commencement of the trial.
§ Subsection (9) specifies how such notices shall be given. They require that the notice shall be in writing —that is stated before—and it shall be by recorded delivery letter. As noble Lords will know, in the event of a recorded delivery the person who places the letter in the hands of the Post Office receives what I think is often an orange-coloured certificate and that is the execution of the recorded delivery. Your Lordships will understand that that merely gives the time of the posting. The prosecutor, or it may be the accused, will not know how long it takes for the notice to reach the addressee.
§ Therefore, in the cases to which I have already referred, Parliament has provided for a presumption that the intimation will have reached the addressee within a stated period of time. The reason for that is perfectly plain. If the prosecutor or the accused had to wait to find out when the notice had, in fact, reached its destination, it might have reached it after the stated time limit and he would have no opportunity then of sending a further intimation. As I have said, what has been done here is in accordance with precedent.
§ I have to say to the noble Lord, Lord Airedale, that the result of his amendment, which would take away the presumption and merely indicate that the execution of the recorded delivery shall be sufficient evidence of the day of intimation of the notice, seems to me to mean that the person who sends the intimation would have an advantage, because he would be able simply to send it on the eighth or fifteenth day before the commencement of the trial and would not give sufficient time for the counter-intimation to be given.
§ As I say, there is ample precedent. The system has worked well. I know of no difficulties that have arisen in Scottish criminal procedure as a result of the two Acts in which similar provisions are to be found. I therefore invite the Committee to accept this amendment, which is purely procedural. As I say, it does not prejudice any party but may secure an advantage in saving time at the trial. I beg to move.
§ Lord Airedale moved, as an amendment to Amendment No. 1, Amendment No. 2:
§ Subsection (9), line 4, leave out from ("the") to end and insert ("day of intimation of the notice").
§ The noble Lord said: As the noble and learned Lord the Lord Advocate has explained, this is an amendment to subsection (9) which makes the presumption—and a rather rash presumption the 1154 Committee may think—that a recorded delivery letter arrives the day after it is posted. That is the presumption contained in subsection (9). The difficulty that can arise is explained if we take the following example.
§ An accused person arrives at the court and says, "Here is a document which arrived this morning by recorded delivery. If you do not believe me, you can look at the postman's book this morning containing my signature, showing that this document arrived this morning. The Act of Parliament says that I am entitled to 14 days' notice of the receipt of this document." The prosecution get up and say, "There must have been an extraordinary delay in the post, because we posted this document 15 days ago and we have our orange receipt form to show that". The prosecution will go on to point out that the Act of Parliament says that the letter is presumed to have been delivered on the following day after it was posted 15 days ago.
§ So how does the learned judge resolve that dispute? One would hope that the actual time of delivery would take precedence over the presumed time of delivery in the Act of Parliament. I have always been led to believe that the best evidence is to be preferred, and surely the best evidence is the date upon which the document arrived in the hands of the recipient. Indeed, it makes nonsense of providing 14 days' notice if you are going to have a presumption that the document was delivered to the recipient earlier than the date upon which the postman's book shows that it was delivered to him.
§ I hope that I have said enough to show that subsection (9) is not satisfactory. It may even be precedented; but I am old enough now to know that the statute book is full of good precedents and had precedents, and if this subsection is precedented it is a bad precedent. Where the actuality of the situation is in favour of the accused person, it must be wrong to act upon some presumption, albeit in an Act of Parliament, which is against the interest of the accused person. I trust that I have said enough to show that subsection (9) is in this way defective. My amendment substitutes the actuality for the presumptive matter. I trust that it finds favour with the noble and learned Lord the Lord Advocate and that he will accept this amendment. I beg to move.
§ 10.45 p.m.
§ Lord Cameron of Lochbroom
It is with some regret that I cannot accept the amendment of the noble Lord. The words, "execution of the recorded delivery", are the reference to the certificate which is received at the time of posting. The consequence of his amendment would be that that execution would be held for the purposes of subsection (9) to be the, "day of intimation of the notice", which would be complete nonsense because it would at that stage not even have gone out of the post office.
That is why I have suggested that one has to have the presumption of the kind which is suggested here to ensure that at least some time elapses between the time of posting and the presumed intimation of notice to allow, first of all, the prosecutor or the accused in advance of the final day to estimate how long it is that the post is going to carry the recorded delivery to its 1155 destination; and, furthermore, to be reasonably certain in the sense that if he can provide to the court the execution of the recorded delivery that shall be assumed to be sufficient evidence both of the time of posting, which is the only thing over which he has control, and of course intimation of the notice.
With that explanation, I hope that the noble Lord will understand my concern that the result of his amendment would be to make even greater difficulties than those which he has anticipated. It may be because he—and it is entirely my fault for not having explained it—has not understood that the execution of the recorded delivery is that document which is handed over at the time of posting and is not the document which is available at the time when the notice is delivered to the addressee. Accordingly, I regret that I cannot accept the noble Lord's amendment and I ask him to withdraw it.
§ Lord Airedale
I do not claim that my amendment is perfect, but what I seek to achieve is that if the accused person is to be given 14 days' notice by Act of Parliament that notice shall begin from the date upon which the recorded delivery letter is received because that date can so easily be discovered. I am suggesting that it is quite wrong ever to rely on some notional earlier date presumed in a section of an Act of Parliament earlier than the date upon which he actually received the letter. The only date when the 14 days should begin to run is the date upon which the accused person received the information.
If we take this matter to a decision this evening or try to, I do not suppose we shall arrive at a decision. We have to have a Report stage anyway, so I hope that the noble and learned Lord the Lord Advocate will have another look at this subsection and see whether it cannot be improved in order to achieve justice for the accused person.
§ The Deputy Chairman of Committees (Baroness White)
Does the noble Lord wish to withdraw the amendment?
§ The Deputy Chairman of Committees
The Question is that Amendment No. 2 as an amendment to Amendment No. 1 be agreed to?
§ Lord Airedale
I made an appeal to the Minister to have a look at this. We have to have a Report stage. Surely this can be looked at again.
§ Lord Cameron of Lochbroom
I did not intend to do a discourtesy to the noble Lord in not rising again. I obviously will look at what he has said. I have made plain the problem which I have outlined; that there is no way in which effectively one can discover when the notice was intimated, so that, for instance, a person who in perfect good faith may have given notice 18 days before the commencement of the trial and the post has taken longer and it gets there 13 days before. That means that the prosecutor is cut off from his right, because the first notice would have arrived there too late and the second notice would no longer be open to him. That would mean, perhaps, that a difficulty could arise.
1156 By the same token, it could not be said that, having received the notice 13 days before, the accused would not have ample time in which to consider whether or not he should be entitled to challenge. In those circumstances, if he sent it off in time then the prosecutor could not complain under subsection (8), because it would be assumed that the accused, having sent it off, let us say, 10 days before, could reasonably assume under the presumption in subsection (9) that it got there timously although in fact it had not done so.
It is to deal with those kinds of problem that the framework, which, as I have said, is precedented, occurs. But obviously I shall go away and consider the matter again with those who advise me. I cannot, however, at the present moment, offer much comfort to the noble Lord, for the reasons that I have set out.
§ Lord Airedale
I am very much obliged, and I am pleased that the noble and learned Lord will take another look at the matter. In those circumstances, I am of course pleased to withdraw my amendment.
§ Amendment to the amendment, by leave, withdrawn.
§ On Question, Amendment No. 1 agreed to.
§ On Question, Whether Clause 2, as amended, shall stand part of the Bill?
§ Lord Ennals
I only rise in order that those who read with fascination the Hansard report of these proceedings will recognise that I was here to support my noble friend. I certainly support this clause.
§ Clause 2, as amended, agreed to.
§ Remaining clause agreed to.
§ House resumed: Bill reported with an amendment.