§ 7.19 p.m.
§ Report received.
The Lord Advocate (Lord Cameron of Lochbroom) moved the following amendment:
Page 2, line 43, leave out ("time") and insert ("date").
§ The noble and learned Lord said: My Lords, at last week's consideration of this Bill in Committee I undertook to look at Clause 2(9), which creates presumption as to the date of receipt of a notice under subsection (7) of that clause. This amendment has been brought forward since that time as a result of a suggestion made to me by the noble Lord, Lord Airedale, in writing, pointing out that the execution of recorded delivery, which is referred to in these subsections, refers only to a date stamp as proof of posting and does not refer to an exact time. Accordingly, the calculation of the period of notice will, if this amendment is accepted, be upon the basis of the date on which the information was posted. I am grateful to the noble Lord for having brought this matter to my attention.
§ However, as I said at Committee stage that I would consider the matter further, I should indicate that, as I said then, this provision has a statutory precedent. The equivalent provisions which I referred to in Committee have operated successfully in Scotland and those who advise me have not discovered any case in which a requirement to give notice within the prescribed period has given rise to any problem. Indeed, the system appears to have worked well. As I indicated in writing to the noble Lord, Lord Airedale, I shall look further at the matter in a much more general context. At present I accept that it would be tidier if this amendment had been made.
§ The noble Lord, Lord Airedale, voiced concerns about the situation when an accused person does not receive the notice that the prosecutor intends to rely on for the presumption in subsection (6), at least until such time as it is too late for him to give notice that he intends to challenge that presumption. In that circumstance I can offer some reassurance to the noble Lord.
§ The provision in Clause 2(9) is indeed only a presumption. If an accused person at a trial were to indicate that he had received the notice late and that is 477 accepted, then the presumption would be overcome and the intimation would be defective. In such circumstances the trial might be adjourned to another date to allow the matter to be cured. Alternatively, it might be heard in part so that the evidence of witnesses who had attended the court that day (I have in mind particularly children) could be heard and inconvenience avoided. Then the trial would be adjourned to another date for the purposes of dealing with scientific evidence which it would have been intended to challenge.
§ In the circumstances I have outlined it would be inconceivable that the trial judge or the prosecutor would do other than agree to such a course. The principle of fairness to the accused person would dictate that that was the proper course to be followed. I hope that that gives certain reassurance to the noble Lord, Lord Airedale, in particular on the matters that he raised at Committee. With that, I beg to move this minor amendment.
§ Lord Airedale
My Lords, I am grateful to the noble and learned Lord the Lord Advocate for this small crumb of comfort arising out of the fuss I made about subsection (9) when we were in Committee. I am also very grateful that he has agreed to have another more general look at this subsection. It has not really been cured yet by this small amendment. The difficulty is what we were told by the noble and learned Lord the Lord Advocate in Committee. Noble Lords may think this is a surprising proposition. I quote his words: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".—[Official Report, 19/6/86; col. 1155.]If that is right, it follows that the Post Office could throw the letter into the rubbish basket and still claim to have executed a recorded delivery. I cannot believe that the Post Office would ever have the temerity to make such a claim, and if it did I simply cannot believe that the court would accept a claim so grotesque. I still say that this subsection is founded upon a misconception. I trust that the earliest opportunity will be taken to redraft it to cure its defects. In the meantime, I am grateful for my crumb of comfort.
§ On Question, amendment agreed to.