Criminal Justice (Scotland) Bill [H.L.]

HL Deb 22 January 1987 vol 483 cc1053-87

4.42 p.m.

The Minister of State, Scottish Office (Lord Glenarthur)

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 Glenarthur.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD WELLS-PESTELL in the Chair.]

Clause 1 [Confiscation orders]:

Lord Morton of Shuna moved Amendment No. 1: Page 1, line 14, leave out ("person's drug trafficking") and insert ("offence of which he has been convicted").

The noble Lord said: It may be for the convenience of the Committee if I speak to Amendments Nos. 1, 2 and 3 together because they are linked. The key comes in Amendment No. 3, perhaps because the other two are the forerunners to it; that is, to include in the offences for which confiscation may take place offences involving dishonesty where the proceeds are at least £10,000.

This part of the Bill is drafted to follow the Drug Trafficking Offices Act 1986, which makes provision for drug trafficking offences in England and Wales. The Government in another place introduced the Criminal Justice Bill for England and Wales, which contains provisions regarding confiscation of proceeds of serious crime other than drug trafficking offences.

The thinking behind both the drug trafficking offences confiscation and the provisions regarding confiscation for non-drug trafficking offences, if I may so refer to it, owes an immense debt to the report of the committee chaired by Sir Derek Hodgson on the profits of crime and their recovery.

The issues that I have attempted to raise in the amendments are, first, in what circumstances should confiscation to the state rather than recompense by the offender to the victim be appropriate; and, secondly, whether in the Bill as drafted we are being asked to approve of the idea of offending against the basic principle of law in a democratic society, which is the presumption of innocence.

To deal with the first matter, I believe it is only appropriate to remove to the state the criminal proceeds of crime if it is not reasonably practical to make the proceeds of crime go back to the victim. The victim should be compensated out of the proceeds before the state should confiscate. This means that I should not consider it appropriate to have confiscation in, say, a bank robbery because the proceeds of that crime should go back to the bank by means of compensation, civil action or whatever.

However, confiscation would be and is appropriate in what is wrongly but generally called "victimless crime". It is clearly wrong because there are victims in the crimes involved in drug trafficking matters and in all other victimless crimes. It would be more correct to say "unascertainable victim crimes" rather than "victimless crimes". I will perhaps be excused if I continue to refer to them as "victimless crimes". These are not only drug offences; they include, for example, insider dealing and various other types of fraud.

The Bill is correct in my view in giving a discretion to the court and to the prosecution to apply for or to apply confiscation. That is one major distinction from the drug trafficking offences legislation, which made it mandatory. If the drug trafficking provisions regarding confiscation are correct—and, if they are to be discretionary, I think that in basis they are—there is no reason not to give the same discretion in Scotland for non-drug trafficking offences such as fraud, as I have said, and insider dealing in the appropriate type of case.

On Second Reading the noble and learned Lord the Lord Advocate I think mentioned that the Government wished to refer this matter to the Law Commission for Scotland. I have great difficulty in seeing why that is so. The Government have decided that non-drug offences are to be subject to confiscation in England. In that case, why do the Government take a different view on Scotland? The last thing that I should have thought we wished to see—and if I may speak as a Scot, the last thing that I wish to see—is the people who go in for crimes which, if they committed them in England, would result in the confiscation of their assets, coming up to Scotland to commit them in order to avoid the confiscation of their assets. That is why, in my view, it is proper to add these non-drug serious offences to the power to confiscate. In my view these should be in the victimless type of crime.

The second point is the presumption of innocence. I should like to quote from the judgment of the Chief Justice Dickson in the Supreme Court in Canada in the case of Regina v. Oakes, of which no doubt the noble Lord the Minister is fully aware. He said: The presumption of innocence is a hallowed principle lying at the very heart of criminal law … The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the state of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the state proves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice". With a little research I think I could have found similar statements in any decade of English or Scottish criminal law. It is, however, not clear whether the provisions in this part of the Bill offend against the presumption of innocence.

What may happen is that if a person is convicted of a drug trafficking offence, under Clause 3 the court may assume that any property he holds or has held over the past six years is the proceeds of drug trafficking offences. What it does not say is whether it is to be assumed that the property is the proceeds of the drug trafficking offence for which he has been convicted. That is the major purpose behind Amendment No. 1.

I remind the noble Lord the Minister, who dealt with drug trafficking offences when he held another ministerial responsibility, that in Scotland we do not have a procedure for trying sample charges and we do not have the procedure of having offences taken into account. It is a purely English system that in records of previous convictions a person had 18 other other offences taken into consideration. Perhaps I may give an example of what may happen.

Suppose a man is caught on an embankment in Leith retrieving a parcel containing, say, ten pounds of heroin. He is clearly to be convicted of possession with intent to supply, and therefore it is a drug trafficking offence. As practice is at the moment in Scotland, that is the only offence he would be charged with; and of course he has not made the slightest profit out of it because the police have the ten pounds of heroin.

It was reported in the Guardian newspaper two days ago that in England two suspected drug traffickers had their bank accounts frozen by the High Court in London under the Drug Trafficking Offences Act. The two people were apparently caught with six kilos of heroin. As a result of what was found in the bank accounts restraint orders were being sought. That is all very well. If that were to happen in Scotland and large assets were found in various bank accounts and building society accounts belonging to an accused person, who has perhaps been drawing supplementary benefit throughout the previous six years and during that time has gone through two or three Porsches, that evidence, together with the possession of heroin, might clearly persuade a jury that over the previous five or six years he had been engaged in the supply of drugs to others.

If the Bill is to be used in that way, to enable evidence to be obtained, a charge to be brought and a conviction to be achieved showing a long series of trafficking in that way, I have not the slightest criticism and only congratulations for the Government. But it is not clear from the way the Bill is drafted that that is so. If, however, he is to be convicted on the example I have given of the one instance of possession and his assets are then to be revealed to the court, then according to Clause 3 of the Bill, unless he can prove the opposite, his assets over the past six years are to be assumed to be the proceeds of drug trafficking for which he has never been charged, let alone been convicted.

I quoted Chief Justice Dickson in the Oakes case because the Canadian state has adopted the Convention on Human Rights. We are bound by it although we have not adopted it. The Oakes case was, like this, a case of a reverse onus arising. Here, there is a reverse onus on the convicted man to prove that his assets were not from drug trafficking. In the Canadian provision the Canadian narcotics legislation provided that there was first a trial under the normal rules to determine whether an accused possessed drugs. If he was convicted of possession of the drugs the law provided that it was then for the accused to prove—in other words, a reverse onus—on the balance of probabilities that the possession was not for trafficking. That law was held by the trial judge, by the unanimous decision of the Ontario Court of Appeal and unanimously by the Supreme Court of Canada to be unconstitutional because it breached the Convention on Human Rights and the presumption of innocence.

It is because of my anxiety that we should not act against the convention and, after the Act has been in force for some time, be hauled to Strasbourg to be told that this is all illegal, and also because of my conviction that the presumption of innocence is, as Chief Justice Dickson said, basic to a democratic society, that I put forward these amendments. They make it clear that the offence which is to be taken into account is the offence for which the person has been convicted.

Sir Derek Hodgson and his committee did not quarrel with that. The very minor disagreement in the committee was on the effect of sample charges. With the greatest diffidence in speaking of English procedure, it is my understanding that if the sample charges are proved the person is then asked what his attitude is to the other charges outwith the sample, and it is hoped that he will ask for them to be taken into account. We do not have that procedure, but if those charges are taken into account there is in a sense a conviction in relation to those. There is no suggestion of assuming guilt for other offences, as appears to be a possibility here on one reading of the Bill. For those reasons—and I am sorry to have delayed the Committee for so long—I beg to move.

Lord Wilson of Langside

To an elderly Scots lawyer like myself it is a matter of great encouragement that so alert and fertile a mind as that of the noble Lord, Lord Morton of Shuna, has been applied to the problem not merely of keeping the law of Scotland in line with that of England, but ensuring that our law in the criminal context does not fall behind. I gathered from part of what he said that that results in the possibility of large or small numbers of insider dealers seeking refuge for their activities in Scotland at any time.

I look forward to the Government's response to this series of amendments. I have great sympathy with the view that it is better that this matter should be looked at and considered by the Law Society of Scotland. Of course, there are times when one takes a different view, but it is a matter of striking a proper balance and I should have thought that a better balance would be struck by ensuring that the matter is looked into in detail in the context of the Scottish legal system before any action is taken in relation to the problems raised by the noble Lord, Lord Morton of Shuna.

5 p.m.

Lord Glenarthur

I listened with care to the noble Lord, Lord Morton of Shuna, but I am bound to say that I am a little confused by the rather contradictory messages that come from his Amendments Nos. 1 and 2 taken with Amendment No. 3.

The main thrust of Part I of the Bill is that we should be able to get at the proceeds of drug trafficking. Thus Clause 1 empowers the High Court, in assessing the amount of a confiscation order, to take into account not only the profits of the offence or offences of which he has been convicted, but the profits of his entire drug trafficking career, wherever his activities may have taken place and whether or not he has previously been convicted of any offences. This approach follows exactly the Drug Trafficking Offences Act 1986, which the noble Lord prayed in aid, and which received support from all sides of your Lordships' House when we discussed it last year. Indeed, when it comes to the presumption of innocence, which was the point raised by the noble Lord, it was not, I think, in dispute at any stage during the passage of that Bill through your Lordships' House. However, I shall return to that point in a moment. Drug traffickers will know that they face the confiscation of all their proceeds of drug trafficking and we hope that because of it they will think twice before conducting their evil trade in this country.

Despite his introductory remarks, the effect of the noble Lord's Amendments Nos. 1 and 2 would be to change all that. The High Court would be able to take account only of the proceeds of the offence of which the accused had just been convicted. It would not be able to take his wider activities into account and the offender would know that he would be able to enjoy the proceeds of any such activity on his release from prison. It may even be that the offence of which he was convicted was not a particularly lucrative one and any confiscation order would make little or no inroads into his fortune. But most importantly, the Bill would be very much weaker than the Drug Trafficking Offences Act 1986 and it would be a weakness which drug traffickers would not be slow to exploit and which might encourage them to move north of the Border.

I think that the noble Lord referred to the case of Regina v. Oakes when he spoke about the question of presumption of innocence. The important point to bear in mind is that there is of course no question of requiring a person who is accused of a drug trafficking offence to prove his innocence. The burden of proof will remain on the prosecution in the usual way to prove beyond reasonable doubt that the accused is guilty of the offence with which he is charged. However, after conviction the onus can be placed on the offender to show which of his assets were legitimately acquired, if the court considers it appropriate to do so. In our view such a provision is essential if the courts are to have a chance of depriving a convicted offender of the full proceeds of his crimes. I think it has been generally recognised that this particular crime is such a vile one that draconian methods are needed to try to prevent it developing any further than it has already developed.

I now turn to Amendment No. 3. As my noble and learned friend the Lord Advocate has said—I think at Second Reading in reply to the noble Lord, Lord Morton of Shuna—it is not the Government's intention to extend the provisions in the Bill to cover the confiscation of the proceeds of crime generally. As the noble Lord himself indicated, this whole question was the subject of a remit to the Scottish Law Commission—and indeed, the noble and learned Lord, Lord Wilson of Langside, referred to this point just now and seemed to agree with this proposition—which was suspended when the present proposals were being drawn up.

It is the present intention of my right honourable friend the Secretary of State to refer this whole question to the Scottish Law Commission to enable the fullest possible consideration to be given to what I think the noble Lord himself acknowledges to be a very complex question. In doing so, the Scottish Law Commission will be able to take account of the operation of the Drug Trafficking Offences Act 1986, which came fully into force on the 12th of this month; they will also have the benefit of seeing how this Bill and the Criminal Justice Bill have fared in their passage through Parliament.

The noble Lord's amendment seeks to broaden the effect of the Bill to include profitable crime generally, and while I appreciate why he is trying to do so, he will not be surprised to learn that I cannot advise the Committee to accept the amendment. Indeed, in the light of remarks made by his noble friend Lord Mishcon when we were dealing with the earlier Bill last summer, I was somewhat surprised when I saw it on the Marshalled List.

Apart from the considerations that I have already outlined, I believe that it is wrong to try to extend the drug trafficking provisions in this way. My noble and right honourable friends south of the Border have dealt with the question of confiscation orders in other cases than drugs in separate legislation because a different approach is necessary in these cases. The drug trafficking confiscation orders in the 1986 Act deal with any exceptional and grave problem and therefore bite much more deeply than the confiscation orders in the Criminal Justice Bill currently before another place. In seeking to deal with the two types of order in the same Bill, I fear that the noble Lord has succeeded only in diluting the effect of the drug trafficking confiscation orders, as I have already explained in relation to Amendments Nos. 1 and 2. This is just an example of the kind of difficulties we would find ourselves in, and why we think it better that the whole question should be looked at by the Scottish Law Commission, for whom I am sure the noble Lord has high regard. I hope therefore that he will agree to withdraw his amendments.

Lord Morton of Shuna

I am not quite certain whether it was at Second Reading or during the Committee stage of the Drug Trafficking Offences Bill, as it then was, that the noble Lord, Lord Hooson, raised the question of the presumption of innocence. Certainly the possible effect of the Convention on Human Rights was raised at that point, though not in any great depth.

It appears to me that the position in Scotland is very different because of the lack of Scottish procedure for sample charges. It means that after conviction for a possession for which there can be no profit, the court is asked to assume that something going back six years has been the profit of drug trafficking. It is very difficult to see how that does not involve a conflict with the presumption of innocence.

I have some doubt about why that is necessary, because in Scotland there is a procedure whereby one can be fined an unlimited amount. The Minister will no doubt say that imprisonment is always an alternative to a fine. So it is. There may be cases where a person would rather go to prison for a couple of years than pay a fine of £1 million. There is also a provision in Scotland for recovering fines by civil diligence. If the court intends to operate by fine and recovery, it can recover out of the convicted person's bank account. The Government have made up their mind that it is right to confiscate the proceeds of certain crimes. For Scotland, they have decided that they have a procedure that is proper to do it. It may be that my amendment is too shortcircuiting. The Government have come to a view that it is right to confiscate the proceeds of non-drug offences in England and have decided that it is appropriate to confiscate the proceeds of drug crimes in England and Scotland, so what is the Law Commission for Scotland left to do? Without a reference to it, the Government have already decided how to proceed. I regret that I find the Government's responses unsatisfactory, but I shall look at what the Government have said. I ask leave to withdraw the amendment at this stage, without making any promise that I will not return to it.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 and 3 not moved.]

Clause 1 agreed to.

Clauses 2 to 5 agreed to.

5.15 p.m.

Clause 6 [Implicative gifts]:

Lord Glenarthur moved Amendment No. 4: Page 7, line 21, at end insert ("of a case").

The noble Lord said: With this amendment I hope that is will be for the convenience of the Committee if I refer to Amendments Nos. 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 and speaks to them together because they all refer to the same matter.

On Second Reading, the noble Lord, Lord Ross of Marnock, entertained us with a scathing description of Clause 6. We have had another look at its drafting in the light of his remarks. The purpose of Clause 6 is to enable the court to assess the value at the time the confiscation order is made of a gift made by the accused. Such gifts, referred to in the Bill as "implicative gifts", can be either outright gifts or gifts for which the recipient paid the accused significantly less than its market value.

The purpose of the formula in Clause 6(2) is to enable the court to calculate the current value of the difference between the value of the gift at the time it was given and the price paid by the recipient. We also wish to ensure that the donee of an implicative gift does not secure a windfall advantage if the subject of the gift appreciates by more than the rise in the value of money between the date of receiving the gift and the date that the gift has to be valued under Clause 5.

It may be helpful if I explain the relationship between Clause 5 and Clause 6. Clause 5(5) (b) provides that for the purpose of assessing the amount of the confiscation order, the value of the implicative gift is to be the value of the gift when received adjusted to take account of inflation or, where the recipient still holds the actual property, the value of the property if it is greater. Thus, to take first the example of an outright gift: where the accused gave the recipient a painting worth £1,000 which he then sold and the proceeds of which he spent on a holiday, the value of the gift at the time of the confiscation order is to be £1,000 adjusted to take account of inflation. If, however, the recipient kept the painting and it is now worth £2,000, the value of the gift is to be £2,000.

The formula in Clause 6 comes into play when what we are talking about is not an outright gift but a sale for less than full value; for example, where the accused has sold a painting worth, say, £3,000 for £1,000, the value of the benefit to the recipient of the gift at that date would be £2,000; that is, the difference between £1,000 and £3,000, which is two-thirds of the value of the painting at that time.

If the recipient kept the painting which is now worth £6,000, the value at the date of confiscation is to be in the same proportion; that is, two-thirds of £6,000, which is £4,000. That is all Clause 6 seeks to achieve, albeit by what, on the face of it, seems a fairly complex formula. Regrettably, there would seem to be no simpler way of expressing this matter without some degree of ambiguity or uncertainty, which is something I am sure the Committee will agree must be avoided even at the cost of some complexity in the resulting provisions.

The Committee may wish to know that the committee of my noble friend Lord Renton on the preparation of legislation said that it welcomed the use of formulae where that enabled the draftsman to avoid a complex verbal description. I fear that a verbal description in this case would be more than tortuous. We have tabled the amendments to improve the overall drafting of Clause 6 which I hope makes the formula more readily understandable. I believe that there may be an error in the lines in Clause 6 referred to on the Marshalled List. I shall study that. I beg to move.

Lord Renton

As I understand it, the error is not on the Marshalled List, it is in the Bill. The figure 35 in the left-hand margin has been placed too late. It should have been placed against the previous line. If that is done, my noble friend's last three amendments make sense, otherwise they do not.

Lord Glenarthur

I am grateful to my noble friend. I think that perhaps arose because the formula was taken to be one line when it is two, or the reverse. I shall ensure that is corrected.

Lord Morton of Shuna

I have no intention of opposing any of these amendments. So far as one can follow them, they appear to make the position clearer. As a Member of this place for but a short time, may I suggest that it would have been clearer if the amendment had taken out Clause 6(2) and reprinted it. One could then have looked through the Marshalled List to see what the Government's intention is. It is difficult to find what the Government's intention is from Amendments Nos. 4 to 14.

Lord Renton

I warmly support that observation. That course would have saved us a tremendous amount of trouble. There are many occasions when that would be a more suitable way of disclosing what the Government have in mind. I welcome the use of a formula in this case. Unfortunately, formulae are rarely used except in fiscal legislation. Even there, they are perhaps not used as often as it might be helpful to use them.

Lord Glenarthur

I am grateful to my noble friend. I shall certainly let my noble friend and the noble Lord, Lord Morton, have a copy of the re-ordered subsection. Perhaps I should have let them have a copy earlier, but I shall certainly make sure that it is available forthwith.

Lord Wilson of Langside

I should be very grateful if the noble Lord would also let me have a copy. I was most grateful to the noble Lord, as I am sure were other noble Lords, for supplying us with Notes on Clauses. Without them I was quite unable to understand Clause 6. I appreciate that that was entirely due to my own intellectual limitations and I am not trying to claim otherwise. Like the other two noble Lords who have spoken, I too felt that it would have been much simpler had we had the amendments incorporated into the subsection. I gave up. Possibly if I had had a week to reflect on them I may have been able to understand the full implications. I would not claim that with any certainty at all. I had to take them very much on trust as I did not have the time or the resources to try to master them. I agree with what both the noble Lords have said.

On Question, amendments agreed to.

Lord Glenarthur moved Amendments Nos. 5 to 14: Page 7, line 23, leave out from ("less") to ("than") in line 24. Page 7, line 25, leave out from ("transfer") to ("section") in line 26 and insert— (". In subsection (2A) below the said consideration is referred to as "consideration A" (or as "A") and the said value as "consideration B" (or as "B"). (2A) In the case mentioned in subsection (2) above,"). Page 7, line 26, leave out ("in such a case"). Page 7, line 27, leave out ("value of the gift when received were") and insert ("reference in sub-paragraph (i) of subsection (5)(b) of that section to "the value of the gift when received" were a reference to"). Page 7, line 28, leave out ("the value referred to"). Page 7, line 29, after first ("of") insert ("the said"). Page 7, line 29, leave out ("of that section were") and insert ("the reference to "the value there mentioned" were a reference to a value"). Page 7, leave out lines 34 and 35. Page 7, line 36, leave out ("so"). Page 7, line 36, after ("to") insert ("in the said sub-paragraph (ii)").

The noble Lord said: I beg to move Amendments Nos. 5 to 14 en bloc.

On Question, amendments agreed to.

Lord Morton of Shuna had given notice of his intention to move Amendment No. 15: Page 7, line 42, leave out from ("purpose") to end of line 43 and insert ("which is recognised as charitable by the Inland Revenue").

The noble Lord said: During the Second Reading debate my noble friend Lord Ross of Marnock questioned whether this was not a very wide description. The noble and learned Lord the Lord Advocate has explained to me that this subsection arises from the insolvency legislation. With that explanation, as it would be better to have the same clause, I shall not move this amendment.

[Amendment No. 15 not moved.]

Clause 6, as amended, agreed to.

Clause 7 [Application of provisions relating to fines of enforcement of confiscation orders]:

The Lord Advocate (Lord Cameron of Lochbroom) moved Amendments Nos. 16 and 17: Page 8, line 51, leave out ("paying a sum to the clerk of the court") and insert ("making such payment"). Page 9, line 5, leave out from ("7") to end of line 10.

The noble and learned Lord said: For the convenience of the Committee I shall move Amendment No. 16 with Amendment No. 17. As currently drafted, Clause 7 provides that where imprisonment has been imposed for default of a confiscation order, any additional sum raised by an administrator and handed over to the clerk of the court is to reduce the term of imprisonment imposed in default. It does so by applying Section 409 of the Criminal Procedure (Scotland) Act 1975 to the enforcement of confiscation orders, with the proviso that in these circumstances the reference to the person paying a sum to the governor of the prison is to be construed as including a reference to an administrator paying a sum to the clerk of the court. We now take the view, however, that there is no reason why the administrator should not hand over an outstanding sum to the prison governor in the normal way, and this amendment therefore removes the proviso to Section 409 in Clause 7. Amendment No. 17 makes a consequential amendment to the reference to Schedule 7 to the 1975 Act in Clause 7. I beg to move.

On Question, amendments agreed to.

Clause 7, as amended, agreed to.

Clauses 8 to 16 agreed to.

Clause 17 [Supervision of administrators]:

The Earl of Dundee moved Amendment No. 18: Page 16, line 44, leave out ("(d)") and insert ("(c)").

The noble Earl said: This is a straightforward amendment which simply seeks to ensure that an administrator appointed under the Bill cannot enter into litigation relating to the property in respect of which he has been appointed without the consent of the accountant of court. I beg to move.

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

Clauses 18 to 24 agreed to.

Clause 25 [Compensation]:

Lord Morton of Shuna moved Amendments Nos. 19 and 20: Page 20, leave out lines 18 to 22. Page 20, line 29, leave out from ("paid") to the end of line 42 and insert ("by a police authority or joint police committee under the Police (Scotland) Act 1967 or by Commissioners of Customs and Excise, or by the Lord Advocate, as to the Court of Session shall seem just.").

The noble Lord said: In speaking to Amendment No. 19, it may be convenient if I also speak to Amendment No. 20 which is almost consequential on Amendment No. 19.

Amendment No. 19 endeavours to strike out paragraph (a) of subsection (2). This relates to compensation if a person's property is taken and then in the end he is acquitted. It relates to the circumstances in which compensation may be payable. According to subsection (2): The Court of Session shall not order compensation to be paid … in any case unless satisfied— (a) that there has been some serious default on the part of a person concerned in the investigation of the offence or offences concerned, being a person mentioned in subsection (4) below, and that, but for that default, the proceedings would not have been instituted or continued.".

Again this raises the question of the presumption of innocence. This is a very draconian provision because we already have the condition in (b), which I am not attacking in any way, that there has to be a substantial loss suffered. We are in a situation where somebody has been acquitted and so has been wrongly accused of a crime. He has suffered substantial loss, but no compensation is to be payable unles there has been serious default by somebody on the prosecution side.

It is very interesting to contrast these provisions with those in the Consumer Protection Bill which we were discussing earlier in the week. Under Clause 14 of that Bill, which involves suspension notices, in subsection (6) the Government propose that: Where an enforcement authority serves a suspension notice in respect of any goods, the authority shall be liable to pay compensation to any person having an interest in the goods in respect of any loss"— not any substantial loss, but any loss at all— caused by reason of the service of the notice if— (a) there has been no contravention in relation to the goods of any safety provision"; in other words, if a person has been acquitted: and (b) the exercise of the power is not attributable to any neglect or default by that person.".

We on this side of the Committee put forward an amendment to add to the protection of the authority that compensation will not be payable unless it were shown that the officer did not have reasonable grounds for exercising the power. The Government said no, and that amendment was refused. If the Committee compares it with the provision here, how is it possible to justify it? In a situation where somebody has been acquitted and suffered substantial loss, it may be that it is a totally false allegation against him. Perhaps somebody has gone to the police and said, "Mr. So-and-So trades in drugs", and then the whole case collapses. Why should the accused not get compensation in those circumstances?

The Government should not apply double standards. It is important that people who are found by the courts to be innocent should not be penalised. This is another situation where the Government intend to penalise somebody. In this case it happens to be somebody who has been acquitted.

I should like to remind the Committee that, contrary to the English procedure, in Scotland there is no way that somebody who is tried for an offence can recover the costs of his or her successful defence. In England, I understand it is normal that the costs are paid out of central funds. That is not the case in Scotland: you pay for your own defence. Not only do you pay for your own defence if wrongly accused, but apparently you have to show serious default on the part of somebody concerned in the police, Customs and Excise or procurator fiscal's department before you have any chance of getting back the substantial loss that you have sustained. I beg to move.

Lord Wilson of Langside

I have always felt it was a flaw in our criminal legal system in Scotland for an accused person who was acquitted not to have the right under any circumstances to have his costs met out of public funds. Nevertheless, I would not support this amendment in the context of this case. I do not wish to go into details. I have no doubt the noble and learned Lord the Lord Advocate will have a good deal to say and that he will not accept the amendment.

The real flaw in the case of the noble Lord, Lord Morton of Shuna, as he put it is that while he talked about a person who had been acquitted of a crime, the first time he came to the point he suggested—as I understood him and I hope I did not mishear or misinterpret his remarks—that the person had been wrongly acquitted of a crime. Unfortunately, because of the presumption of innocence there are occasions on which people are acquitted of crime who could not be properly described as being wrongly accused of the crime.

5.30 p.m.

Lord Cameron of Lochbroom

I am very grateful to the noble and learned Lord, Lord Wilson of Langside, for reminding us of a matter in our Scottish criminal justice system, namely that there is no right to compensation for an individual. It has to be borne in mind that there are many cases in which compensation would be entirely inappropriate—for example, where a person by his own actions brings reasonable suspicion to bear on himself, or when an accused is acquitted on purely technical grounds. This was the kind of point the noble and learned Lord was making.

Perhaps I should mention that as the noble Lord opposite indicated at the start of his remarks in moving this amendment, this is compensation if proceedings are instituted against a person and then certain things happen. Proceedings are instituted by the prosecutor. It is not a question of a false allegation being made. An allegation may be made, it may be false, but it cannot become proceedings, as the noble Lord opposite recognises, until such time as the prosecutor has satisfied himself that there is both evidence in law to support a charge and sufficient evidence in law.

Compensation as of right would therefore not be acceptable, and there would be considerable problems, both of practice and principle, if the courts were forced to make invidious distinctions in this way between those who ought to receive awards and those who should not. This was the view of the late Lord Thomson's Committee on Criminal Procedure, expressed in its second report, in 1975, on the question of awards of expenses in criminal cases, and it is I think applicable by analogy to the matter before us today.

We should also bear in mind—and again this point was made by Lord Thomson's committee—that people in Scotland are protected against improper prosecutions by the fact that we have an independent public prosecutor who is charged with the responsibility of initiating a prosecution only where sufficient evidence exists to support it and the matter is of sufficient importance to justify it. Clause 25 therefore properly limits compensation to cases where there has been serious default on the part of a person concerned in the investigation. This enables compensation to be paid in appropriate cases, without creating a need for invidious distinctions between people who have been acquitted. On the other hand, It ensures that compensation will not be payable under the Bill where a prosecution has proceeded in good faith and on proper grounds. This seems to me entirely reasonable within the current framework of our Scottish system.

I should point out that Clause 25 is specifically stated to be without prejudice to any right which may otherwise exist to institute proceedings in respect of delictual liability in the circumstances. This new statutory provision will therefore not inhibit a person who suffers loss as a result of the Bill from seeking other existing remedies.

Finally, may I make the point that Clause 25 in its existing form is precedented by Section 19 of the Drug Trafficking Offences Act 1986.

The noble Lord made much play, earlier, about trying to be alongside England, yet here we are, and he objects. I am bound to invite the Committee to oppose this amendment if the noble Lord should press it. But, I would invite him to withdraw it in view of what I have said.

Lord Morton of Shuna

I think that when the noble and learned Lord the Lord Advocate reads what he has said he may realise he appeared to make some confusion between expenses and what we are concerned with here. I merely pointed out that, contrary to the English proceedings, there is no way of paying the expenses of somebody who is acquitted. That does not happen in Scotland—that is the difference.

I was not challenging that that should be. What I am challenging, and suggesting is wrong, is that compensation should be payable in the special case here, where a person's property has been taken away from him for a period which may easily be six or nine months. Then he is acquitted, but he has suffered a substantial loss. This point is still to be found in subsection 2(b). I am not challenging that matter. Then he is to get no compensation for the substantial loss.

I regret the position I appear to be in. The noble and learned Lord, Lord Wilson of Langside, and the noble and learned Lord the Lord Advocate seem to be saying that unless you can prove some form of serious default on the part of somebody concerned in the prosecution it does not matter: a person has been accused of a serious crime, he has suffered a substantial loss but it does not matter.

It is interestng to see that result because freedom of the individual is of crucial importance to us all. I was not aware that the Labour Party was the only party who were interested in the freedom of the individual who had not been convicted of any crime. It appears that that may be so. We cannot be in a position where somebody is to be judged because they are being suspected of a crime.

I have had the honour to serve four Lords Advocate (or Lord Advocates, I am never quite sure what the plural is), including the noble and learned Lord, Lord Wilson of Langside. In the 10 years that I held that office I was fully aware—and I am sure that both noble and learned Lords are fully aware—that there are cases where witnesses set up a false case.

There is no fault on the part of the police. They have to take the statements that are made to them and put the case forward. There is no fault on the part of the prosecutor. He has the evidence. It is not the prosecutor's job to judge whether the evidence is true. That is the property of the jury. The court has to decide whether or not the person is guilty. It appears to me that we are going a long way and setting a dangerous precedent, but I do not wish to take the matter to a Division at this stage. Subject to the fact that I may return to this matter, I beg leave to withdraw the amendment.

Lord Wilson of Langside

Before the amendment is withdrawn, perhaps I may make the comment that I am astonished that in a Bill of this kind my old friend Lord Morton of Shuna should seek to make a rather silly party-political point about freedom of the individual. I think it is pathetic, but there it is. The real point is that I was not saying that there was not a problem here. I am quite aware of the problem, as I am sure the noble and learned Lord the Lord Advocate is. When I said that I would not support this amendment, what I was saying was that whatever the problem was this was not the sensible way to deal with it, and that was all I was saying.

Lord Cameron of Lochbroom

I should also like to support the point that the noble and learned Lord has just put to the noble Lord opposite. I noticed in passing that he failed to make any reference to the terms of Section 19 of the Drug Trafficking Offences Act 1986, which I understood was a Bill supported by his party.

Lord Morton of Shuna

Certainly the Bill was supported by the party. We are trying to apply it to Scotland. There are differences already in the Bill which I have pointed out. There are differences in the English procedure. The one factor that may make a crucial difference after a long trial and an acquittal is that the English acquitted person gets his costs paid out of central funds. That is one crucial difference.

Another crucial difference here is that in England it is mandatory, in Scotland it is discretionary. I do not wish to continue this argument. I am sorry if the noble and learned Lords thought I was childish. I do not believe that I was being childish. It appeared that one was getting guilt by accusation, and I would be perfectly prepared to stand with Chief Justice Dickson.

Amendments, by leave, withdrawn.

Clause 25 agreed.

Clauses 26 and 27 agreed to.

Clause 28 [Enforcement of Northern Ireland orders]:

The Earl of Dundee moved Amendment No. 21: Page 22, line 29, leave out ("a drug trafficking offence") and insert ("an offence to which that section relates").

The noble Earl said: This is a purely drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 28, as amended, agreed to.

Clause 29 agreed to.

5.45 p.m.

Clause 30 [Sequestration of person holding realisable property]:

Lord Cameron of Lochbroom moved Amendment No. 22: Page 24, line 39, leave out ("but the Lord Advocate, or the administrator if one has been appointed, may") and insert ("and it shall not be competent to").

The noble and learned Lord said: This is the first of a rather formidable looking group of amendments; namely, Amendments Nos. 22, 23, and 27 to 31 inclusive. There is however behind them a relatively simple purpose which is to provide that confiscation orders should not be able to be claimed in sequestrations; and that a claim in respect of a confiscation order or a restraint order cannot found a petition for sequestration. The amendments will apply to confiscation orders and restraint orders made under this Bill or under the Drug Trafficking Offences Act 1986, which are being enforced in Scotland. By making these amendments we will ensure that the Bill's provisions will not cut across the rights of ordinary creditors in these circumstances, and also align the Bill with the equivalent provisions of English law.

Rule 12 of paragraph 3 of the Insolvency Rules 1986 provides that in England and Wales a confiscation order is not a provable debt and therefore cannot lead to a claim in bankruptcy proceedings. It is not possible to proceed in this way in Scotland as we do not have the concept of provable debts nor the power to make such rules in subordinate legislation. Accordingly, I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 23: Page 24, line 42, leave out subsection (3).

On Question, amendment agreed to.

The Earl of Dundee moved Amendment No. 24: Page 25, line 2, leave out ("those powers") and insert ("the powers so conferred").

The noble Earl said: This is simply a drafting amendment to make clear that the powers referred to in subsection (4) of Clause 30 are the powers conferred on the Court of Session which are mentioned in subsection (2). I beg to move.

On Question, amendment agreed to.

Clause 30, as amended, agreed to.

Clauses 31 to 37 agreed to.

Clause 38 [Offence of prejudicing investigation]:

Lord Morton of Shuna moved Amendment No. 25: Page 33, line 26, leave out ("does anything") and insert ("makes any disclosure").

The noble Lord said: This is a case where my amendment seeks to bring this Bill into line with the Drug Trafficking Offences Act. I raised this at Second Reading. In view of the absence of any amendment from the Government to bring this into line I tried to search to see whether these words were in the Drug Trafficking Offences Bill as originally printed or were put in by some rebellious House, but it did not appear to be so.

In Section 31 of the Drug Trafficking Offences Act the words are, "makes any disclosure". Here it is "does anything", which is extremely wide. At Second Reading, in, admittedly, an attempt to be slightly frivolous, I pointed out that you could impede an investigation by getting married to the suspect, because then your evidence could not be used against him. Perhaps the Government will explain (whichever Minister is going to do the explaining) why they are changing this provision from what is in the Drug Trafficking Offences Act. I beg to move.

Lord Glenarthur

I share the concern of the noble Lord, Lord Morton of Shuna, that the offence provision should not strike at a person who does something unintentionally which prejudices an investigation. However, I must say that these circumstances should not arise. Clause 38(2)(a) provides a defence that the person did not know or suspect or have reasonable grounds to suspect that by acting as he did he was likely to prejudice the investigation. The offence thus strikes only at the person who knows or ought to know that what he is doing will prejudice the investigation.

His offending behaviour may or may not, however, involve the making of a disclosure. We have to consider the ways in which a person may prejudice an investigation without disclosure of any kind being involved, for example, by deliberately misleading the investigators and sending them on a false trail. To restrict the offence only to making disclosures might, we think, allow some culpable individuals to evade punishment.

The noble Lord referred to what he says was a frivolous suggestion—that somebody might get married in order to get away with it. All I can say to him on that is that Section 29 of the Criminal Justice (Scotland) Act 1980 provides that a spouse may be a competent witness. I therefore do not think that the example that the noble Lord drew at Second Reading was correct.

Lord Morton of Shuna

If he or she marries the accused there is no way one can force him or her to give evidence for the prosecution. I can assure the noble Lord of that.

Lord Glenarthur

I thought that it was a question of compellable but not competent.

Lord Morton of Shuna

It is the other way round, competent but not compellable.

Lord Glenarthur

The noble Lord is right.

Lord Morton of Shuna

We are still awaiting the reason why the Minister considers that the Drug Trafficking Offences Act—which he steered through this Chamber only some six months ago—is so defective. As this Bill is amending the Drug Trafficking Offences Act, why is the noble Lord not trying to amend it by including "does anything" in the Drug Trafficking Offences Act instead of "makes any disclosure"

Lord Glenarthur

The noble Lord has rightly pointed to the differences between Scotland and England with regard to the law. This was examined naturally by those concerned to try to bring the effects of the English legislation to bear upon Scotland. It was considered that the provisions of the Scottish Bill now before the Committee were the proper way to proceed there.

I do not think that the noble Lord can have it both ways. The explanation that I have given makes it perfectly clear that we have to consider the ways in which a person could conceivably prejudice some investigation in the future without disclosure of any kind. I do not think that I have anything further to add.

Lord Morton of Shuna

From the experience that I have—which I admit is short—there have been occasions where each side of the Committee has tried to have it both ways where necessary and to say, "This is done because it follows England" or "England is different from Scotland". I shall not take it further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Glenarthur moved Amendment No. 26: Page 33, line 38, leave out ("the") and insert ("a").

The noble Lord said: This is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 38, as amended, agreed to.

Clauses 39 and 40 agreed to.

Clause 41 [Minor amendments in relation to drug trafficking]:

Lord Glenarthur moved Amendments Nos. 27 to 31: Page 36, line 3, leave out ("Section 55(2) of") and insert ("In"). Page 36, line 3, after ("Act") insert— ("—

1. (a) in section 5(4) (interpretation)—
1. (i) after the words "future debts" there shall be inserted the words "or amounts payable under a confiscation order"; and
2. (ii) at the end there shall be added the words "; and in the foregoing provisions of this subsection "confiscation order" has the meaning assigned by section 1(1) of the Criminal Justice (Scotland) Act 1987 or by section 1(8) of the Drug Trafficking Offences Act 1986";
2. (b) in section 7(1) (constitution of apparent insolvency)—
1. (i) in paragraph (b), at the beginning there shall be inserted the words "not being a person whose property is for the time being affected by a restraint order or subject to a confiscation order,";
2. (ii) in paragraph (c), after the words "became due" there shall be inserted the words "or that but for his property being affected by a restraint order or subject to a confiscation order he would be able to do so"; and
1070
3. (iii) at the end there shall be added the words "In paragraph (d) above, "liquid debt" does not include a sum payable under a confiscation order; and in the foregoing provisions of this subsection—

confiscation order" has the meaning assigned by section 1(1) of the Criminal Justice (Scotland) Act 1987 or by section 1(8) of the Drug Trafficking Offences Act 1986; and restraint order" has the meaning assigned by section 9 of the said Act of 1987 or by section 8 of the said Act of 1986."; and (c) section 55(2)"). Page 36, line 41, leave out ("(5)"). Page 36, line 43, after ("(i)") insert— ("in subsection (2), at the end there shall be added the words", and it shall not be competent to submit a claim in relation to the confiscation order to the permanent trustee in accordance with section 48 of that Act."; and (ii) in subsection (5)—") Page 36, line 47, leave out ("(ii)").

The noble Lord said: I have spoken to Amendments Nos. 27 to 31 when speaking to Amendment No. 22. I beg to move these amendments for the convenience of the Committee en bloc.

On Question, amendments agreed to.

Clause 41, as amended, agreed to.

Lord Cameron of Lochbroom

Amendment No. 32 as set out in the Marshalled List appears to be an amendment to Clause 42 but it should be an amendment to Clause 43. In those circumstances it may be appropriate that the noble Lord the Deputy Chairman of Committees should put to the Committee that Clause 42 shall stand part of the Bill.

Clause 42 agreed to.

Clause 43 [Interpretation of Part I]:

Lord Cameron of Lochbroom moved Amendment No. 32: Page 38, line 16, leave out paragraph (b).

The noble and learned Lord said: I beg to move Amendment No. 32. This amendment removes from the list in Clause 43(5) of circumstances in which proceedings are deemed to be concluded the reference to the procedure under Section 127 of the Criminal Procedure (Scotland) Act 1975. That section allows the prosecution, where a trial diet has been deserted pro loco et tempore or an indictment has not been brought to trial and the diet has not been adjourned, to give the accused notice within nine days on another copy of the indictment to appear at a further trial diet.

We have discovered, however, that the inclusion of the Section 127 procedure in this clause might lead to some practical difficulties. Restraint orders require to be recalled and property which was realisable is no longer so once the proceedings are concluded, thus under this clause as currently drafted where a restraint order is in force but the trial is deserted pro loco et tempore, the restraint order will remain in force only if the prosecution serves notice of a new diet on a copy of the indictment within 9 days.

The Section 127 procedure has seldom, if ever, been used. It is now more normal in these circumstances for trials to be adjourned to other sittings or to be indicted afresh. However, because of Clause 43(5)(b), where the prosecution proceeds by serving a fresh indictment (rather than by following Section 127), any existing restraint order will require to be recalled (because the proceedings will be deemed to be concluded for that purpose), and the prosecution will not be able to apply for a new one if a fresh indictment has been served, and any property held by the accused will therefore cease to fall within the definition of "realisable property".

It must be in the public interest for a restraint order to continue in force until the difficulty which caused the delay has been overcome. It may not be the fault of the prosecution; for example a trial might be deserted pro loco et tempore because witnesses are ill or because the accused seeks further time because he has not properly prepared his defence.

The Amendment therefore seeks to delete the reference to Section 127 from the clause. Instead, where a trial is deserted pro loco et tempore, any restraint order will remain in force until the trial proceeds or (assuming the drug trafficker is in custody, which is likely) until the time limit under Sction 101 of the 1975 Act is reached and that accused is discharged. I hope the Committee will agree that this is a more sensible way to proceed, and in these circumstances I beg to move.

On Question, amendment agreed to.

Clause 43, as amended, agreed to.

Clauses 44 and 45 agreed to.

Clause 46 [Detention in connection with certain drug smuggling offences]:

6 p.m.

The Earl of Dundee moved Amendment No. 33: Page 41, line 23, leave out ("has been") and insert ("is").

The noble Earl said: This is a minor drafting amendment designed to remove a possible ambiguity in Clause 46(4). Clause 46(4) provides that where a person has been detained under Clause 46(1)—that is, initial 24 hours' detention on suspicion of smuggling drugs concealed within the body—and has either failed to submit to tests, or the results of those tests have proved positive, the Procurator/Fiscal can apply to the sheriff for a warrant for further detention.

It is just possible, though I admit extremely unlikely, that the courts might interpret the present wording as meaning that the Clause 36(4) power is available only after the Clause 46(1) detention has terminated. That is not the intention, and this amendment therefore clarifies the position by ensuring that the subsection (4) power to go to the sheriff is available while a person is detained under subsection (1). I beg to move.

On Question, amendment agreed to.

Lord Glenarthur moved Amendment No. 34: Page 42, line 16, leave out ("and section 45").

The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendment No. 35.

These two amendments are designed to extend the rights and safeguards available to persons being detained under Clause 46. Clause 46 allows Customs and Excise to detain a person they suspect of smuggling drugs concealed within the body for up to 24 hours to enable certain tests to be undertaken which are capable of detecting the presence of drugs within the body. It also provides that where these tests prove positive or where the detainee fails or refuses to co-operate, the Procurator/Fiscal will be able to apply to a sheriff for a warrant for a further seven days' detention.

As presently drafted, Clause 46 detention is subject to the safeguards in Clause 44(5) and Clause 45. These include an entitlement to have a solicitor or another named person informed of the detention. This entitlement is, however, subject to the proviso that this intimation can be delayed if this is necessary in the interests of the investigation, the prevention of crime or the apprehension of offenders. In the case of Clause 44 detention, which lasts for a maximum of six hours, this is not unreasonable, but an unintended consequence of applying Clause 45 to Clause 46 without qualification is that notification of detention could be delayed indefinitely; that is, until the end of the seven-day period.

New subsection (8A) of Clause 46 therefore makes Clause 45 subject to certain modifications when it is operating in relation to Clause 46 detention. First, paragraph (a) provides that intimation to a solicitor and one other person cannot be delayed for longer than 24 hours and that any such delay must be on the authority of a superior officer; that is, an officer of senior executive officer grade or above. We take the view that it is necessary to provide for some delay in order to limit the possibility of tipping off the detainee's accomplices, and we have, I think, struck the right balance in settling for a maximum permissible delay of 24 hours. Of course in many cases there may be no delay at all or only a short delay.

Secondly, paragraph (b) goes much further than Clause 45 and gives the detainee the right to consult a solicitor. This right is subject to delay for up to 24 hours on the authority of a superior officer, who must be satisfied that it is in the interests of the investigation, and so on. The right to consult a solicitor is unqualified after 24 hours.

Thirdly, paragraph (c) provides that any delay in allowing a parent access to a detained child must cease after 24 hours. Clause 45, like Section 3 of the Criminal Justice (Scotland) Act 1980 on which it is based, allows parental access to be withheld where it is suspected that the parent has been involved in the alleged offence for which the child is being detained. This is necessary in order to protect the child who might otherwise be subjected to pressure from the parent. But even in these circumstances it would be unreasonable to deny such access for up to seven days, and we have therefore opted to allow for unqualified access after 24 hours.

Finally, in Clause 46 new subsection (8B) simply makes provision consequential on these modifications; for example, to provide that the time when the detainee requests to see a solicitor should be recorded.

On Question, amendment agreed to.

Lord Glenarthur moved Amendment No. 35:

Page 42, line 21, at end insert— ("(8A) Section 45 of this Act shall, subject to the following modifications, apply in respect of a person detained under this section as it applies to a person detained under section 44 of this Act—

1. (a) any delay in informing a solicitor and one other person of such detention as is mentioned in subsection (1) of the said section 45 shall not extend longer than the period of 24 hours from the start of the detention, and shall only be permitted on the authorisation of a superior officer;
2. (b) the person detained shall be entitled to consult a solicitor at any time without delay, and he shall be informed of such entitlement at the commencement of the detention; but, if a superior officer considers it necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, he may authorise a delay not extending longer than the period of 24 hours from the start of the detention; and
3. (c) paragraph (a) of subsection (2) of the said section 45 shall cease to apply at the end of the period of 24 hours from the start of the detention,

by any delay authorised by virtue of this subsection shall be for no longer than is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders. (8B) Without prejudice to section 20(2) of the Interpretation Act 1978, the references in section 44(5) of this Act to section 45(1) of this Act shall be construed as including references to subsection 8A above; and the requirement to record certain matters under the said section 44(5) shall include a requirement to record the time when a person detained makes a request to consult a solicitor and the time when the solicitor is contacted for the purpose of arranging a consultation.").

On Question, amendment agreed to.

Clause 46, as amended, agreed to.

Clause 47 agreed to.

Lord Cameron of Lochbroom moved Amendment No. 36: After Clause 47, insert the following new clause:

"Sentencing power of sheriff in solemn procedure. Sentencing power of the sheriff

—(1) In section 2(2) of the 1975 Act (which limits the term of imprisonment which the sheriff may impose on indictment), for the words "two years" there shall be substituted the words "three years".

(2) In section 221(1) of that Act (abolition of penal servitude and hard labour), in the proviso for the words "two years" there shall be substituted the words "three years".").

The noble and learned Lord said: This new clause increases the sheriff's sentencing powers in indictment cases from two to three years and thus implements one of the legislative reforms suggested by the review body on the use of judicial time in the superior courts in Scotland. That body, chaired by Lord Maxwell, was set up in July 1985 against a background of a steeply rising criminal workload in the High Court and related serious delays on the disposal of civil business in the Court of Session. In its report published in July 1986 the review body recommended a number of reforms in Court of Session procedures which did not require legislation and are in the course of implementation so far as appropriate. It also recommended that consideration should be given to four measures to ease the pressures on the superior courts which would require primary legislation.

The measures identified were, first, provision for the use of temporary judges; secondly, the introduction of a single judge sift of summary appeals; thirdly, the introduction of a two judge bench to hear criminal appeals against sentence; and, lastly, an increase in shrieval sentencing powers in indictment cases which is implemented by this new clause.

These proposals were the subject of consultation with interested bodies carried out by the Scottish Home and Health Department and the Scottish courts administration. Responses revealed that there were widespread reservations about the merits of proposals concerning the single judge sift and the two judge bench. There was also some doubt about whether any significant relief of workload would be achieved with these proposals. The Government have accordingly decided not to proceed with these two proposals. The proposal for the use of temporary judges would not be appropriate for this Bill since any use made of them would require to encompass civil business. However, we shall return to this matter when a suitable legislative opportunity presents itself with a view to permitting the use of senior counsel to act as temporary judges, as envisaged by the review body.

However, consultation revealed that there was more general agreement that the sheriff's sentencing powers in indictment cases should be increased and that is why we have tabled this new clause. In making this specific proposal the review body noted that between 1983 and 1985 there was a dramatic increase in the number of High Court indictments from 449 to 827, representing an 84 per cent. increase. At the same time the number of sheriff court indictments remained relatively static. Moreover, in 1985, 39 per cent. of the sentences passed by the High Court were for three years or less. Of course, as the review body noted, the scope for the diversion of cases from the High Court to the sheriff court is less than this figure suggests for a number of reasons. Some accused are on charges which would not have taken them into the High Court were it not for association with other accused on more serious charges; in some instances the charges or parts of them are not proved or a plea is accepted to a lesser charge. Nevertheless, it seems clear that there is room for a rational re-allocation of work to give some relief to the High Court without overloading the sheriff courts.

The consultation paper issued by the Scottish Home and Health Department sought views on whether the sheriffs' powers should be increased to three or four years. Most respondents favoured some increase, and the majority favoured an increase to the four-year level. There is a measure of arbitrariness about any upper limit of this kind. The Government took the view that on balance the three-year upper limit was preferable. In fact, that was the upper limit recommended in 1975 by the late Lord Thomson's committee. The recommendation was rejected by the government of the day, but I hope that all shades of opinion will recognise that the change proposed is justified at the present time in order to alleviate some of the stresses on the High Court.

We do not intend or anticipate that this provision should have any effect on sentences in individual cases; rather it will enable the Lord Advocate to send certain cases to the sheriff court instead of to the High Court. If having heard the case the sheriff decides that it merits more than three years he will be able to use his existing powers to remit the case to the High Court for sentence. If the accused feels that he has received an excessive sentence, he will be able to exercise his existing right of appeal. These existing safeguards should ensure that this change in the law will have no adverse consequences on individual cases. It will, however, enable a better use to be made of existing resources. I beg to move.

Lord Morton of Shuna

I am very glad to hear that the single judge sift and the two judge appeal for appeals against sentence have both been discarded. I congratulate the Government on their decision. I am sure that is correct.

As regards this new clause, I would not oppose the increase in the power. I would hope that it would not entice sheriffs to increase the sentence in individual cases where previously they might have sentenced 18 months to 30 months, say. That would be very unfortunate. In my view—I am sure that it is a view shared by many—prison sentences are often too frequent and too long and certainly do not seem to be remarkably effective in reducing the amount of crime.

Subject to that, and subject to the fact that there is to be no limit on the power of remit from the sheriff to the High Court for sentence, I should have no objection to this. It appears to me there is a certain element in shrieval minds at the moment which feels that if the case has been sent to the sheriff court for trial that means a sentence of two years. I hope the noble and learned Lord will be able to agree with me that that should not be the case; for example, if three people are charged with house-breaking, two getting a sheriff court sentence and one for his record deserving a High Court sentence. In that case the power of remit should not be used and that should not be the reason why that sort of case gets sent to the High Court. I support the amendment.

6.15 p.m.

Lord Wilson of Langside

From these Benches I content myself with saying only in respect of the amendment and the other two matters on which the noble Lord, Lord Morton, sent his congratulations to the Government that I would add mine. I hope that that will please the noble and learned Lord Advocate and it may even please the noble Lord, Lord Morton, as well.

Lord Cameron of Lochbroom

I am delighted on this occasion that there is unanimity of view about the amendment that is before the Committee. I take the point of the noble Lord opposite about the use of power. I would anticipate, as I am sure he would, that sheriffs would not simply use the opportunity given by an increase in their power of sentence to increase sentences in particular cases before them. Equally, I imagine that all sheriffs would be conscious of the reasons why there is the power to remit and would use it when they think the circumstances so justify. That was precisely why Parliament thought fit to give them that power for their use.

I can do no more than say that I am delighted to know that both noble Lords have given this clause a fair wind.

Lord Wilson of Langside

I do not wish to detain the Committee, but I am a little concerned about the implications of the observations of the noble Lord, Lord Morton, with regard to the sentencing practice of sheriffs. I no longer need to be sensitive about that, but I found it rather startling. I am sure he would not have dared to suggest that the approach of judges of the Supreme Court was open to such speculation. I would not have said anything about this but for the circumstance that the noble and learned Lord Advocate referred to it. If that is a possible approach of any holders of judicial office to the problems of sentencing today—as it certainly was not when I was involved 20 years ago—it is time that somebody took a look at the matter.

Lord Cameron of Lochbroom

I am entirely confident that the sheriffs would carry out their judicial office properly. I certainly did not intend to suggest otherwise. I do not think that I did, and I do not think the noble Lord opposite was intending to make that point. I believe what he was saying was that he would expect the bench, wherever it be, to approach each case properly in exercising the judicial function, and that the fact that there has been an increase in sentencing power should not and will not have any effect upon their approach in individual cases.

Lord Morton of Shuna

I should like to associate myself with the remarks made by the noble and learned Lord opposite. I was not trying to suggest that sheriffs were going wrong. What I was trying to suggest, perhaps putting it in another way, was that increasing the power to sentence to three years did not mean that Parliament was suggesting that sheriffs had been too light in the past.

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 37: After Clause 47, insert the following new clause:

("Compensation by Offenders

(1) Section 58 of the Criminal Justice Scotland Act 1980 shall be amended as follows.

(2) At the end of subsection (1) there shall be added the words ("or to pay compensation for funeral expenses or damages in respect of a death caused (whether directly or indirectly) by the acts which constituted the offence and a court shall give reasons, on passing sentence if it does not make such an order in a case where this section empowers it to do so.")

(3) In the proviso to subsection (1), in paragraph (a) the word "or" shall be inserted after the word "absolutely" and paragraph (b) shall be omitted.

(4) The following subsection shall be substituted for subsection (3)— (3) A compensation order may only be made in respect of injury, loss or damage which was caused by or arose out of the use of a motor vehicle on a road as defined in the Road Traffic Act 1972 if it is in respect of injury, loss or damage as respects which

1. (i) the offender is uninsured in relation to the use of the vehicle, and
2. (ii) compensation is not payable under any arrangements to which the Secretary of State is party

and where a compensation order is made in respect of injury, loss or damage due to such an accident the amount to be paid may include an amount representing the whole or part of any loss or reduction in preferential rates of insurance attributable to the incident. (3A) A vehicle the use of which is exempted from insurance by section 144 of the Road Traffice Act 1972 is not uninsured for the purposes of subsection (3) above. (3B) A compensation order in respect of funeral expenses may be made for the benefit of anyone who incurred the expenses. (3C) A compensation order in respect of a death, other than a compensation order in respect of funeral expenses, may only be made for the benefit of persons who would be entitled under section I of the Damages (Scotland) Act 1976 to sue for damages in respect of that death.".")

The noble Lord said: I regret that the Committee will have to put up with two or three of these occasions when I am endeavouring to add various passages to a part of the Bill which is appropriately headed "Miscellaneous".

The first of them is to add provisions relating to compensation orders. The present provisions are in Section 58 of the Criminal Justice (Scotland) Act 1980. The English Criminal Justice Bill before another place is making the amendments to the compensation order rules that I have endeavoured to put into this amendment; in other words, that in certain circumstances there should be an ability to make a compensation order in respect of a road traffic offence or in respect of a death. Both of these recommendations were made by Sir Derek Hodgson's committee some time ago. I fully support the idea, and that is why I have put forward the amendment. It also seems appropriate that on this matter, which is the power to make compensation orders, the two countries should march in step.

In fact, as the noble and learned Lord the Lord Advocate will know, and as the noble and learned Lord, Lord Wilson, may recollect from his private practice some years ago, one of the many difficulties in civil cases of damages arising out of road traffic cases is the desire by the injured party or the bereaved parent that the guilty driver, for instance, should be punished rather than just that his insurer should pay. One often has a difficult job to persuade persons to accept a perfectly reasonable offer, on the basis that they want the driver to be punished.

The compensation order is a method by which, in an appropriate case, rather than the insurance company paying it the actual guilty driver should pay it. In certain cases where death arises, such as certain types of culpable homicide, it seems appropriate that there should be an ability to make a compensation order, as was recommended by Sir Derek Hodgson's committee.

Also on compensation orders, if I may detain the Committee for a few more moments, Sir Derek Hodgson recommended that the courts should receive some guidance as to the levels of awards to be made in compensation orders, and suggested that the Criminal Injuries Compensation Board should suggest guidelines. I have to declare an interest because I happen to be a member of that board, which is a great privilege. I should like to know whether the Minister can tell us whether anything is happening about that. I beg to move.

Lord Glenarthur

I am grateful to the noble Lord for providing this opportunity for me to explain the Government's position in relation to the use of compensation orders in Scotland. As he knows, such orders have been in use in Scotland for a relatively short time compared with England and Wales. They were introduced by the Criminal Justice (Scotland) Act 1980 in a simpler form than that recommended by the Dunpark Committee and instead followed closely the provisions of the Powers of the Criminal Courts Act 1973.

It is therefore perhaps not surprising that the noble Lord has thought it appropriate to suggest that similar amendments should be made to the scheme in Scotland as are now being discussed for England and Wales in another place. However, I do not think that such changes are appropriate for Scotland, at least at the present time. Nor do I expect the noble Lord to suppose that we would want to follow slavishly all the provisions now appearing in the Criminal Justice Bill. It is right that we should give a proper consideration to the operation of schemes such as that introduced for compensation orders in the Scottish setting, and then decide what changes may or may not be appropriate to deal with any inadequacies or difficulties that we may find.

With this approach in mind, the Scottish Home and Health Department funded a study on the use of compensation orders by Scottish courts by Dr. Maher of Glasgow University. A draft of his report has been submitted to the department and we hope that the final report will be available shortly. While no decision to publish has been taken in advance of our seeing the report in final form, in the ordinary course we would expect to do so. In the light of Dr. Maher's findings, we will then wish to consider whether changes in the legislation may be required or whether other options are open which could bring about improvements. Perhaps consultation with interested parties may then also be appropriate.

With regard to the particular changes proposed by the noble Lord, I should say that we are not without sympathy for their objectives, but it is necessary also to bear in mind that orders for compensation made by a criminal court cannot and should not be thought of as a substitute for the individual's remedies at civil law. There are a number of good reasons. The criminal process is not best adapted to dealing with an assessment of loss or damages, and the existing system is intended to apply to straightforward cases. I must say therefore that I am reluctant in principle to consider amending the system in any way which might introduce complexities or place further burdens on already overstrained courts.

Some of the changes proposed by the noble Lord in this amendment appear likely to do just that. An assessment for loss of society or loss of support arising from a person's death will not be an easy sum to determine, particularly as Scotland has no equivalent to the standard bereavement award of £3,500, which would represent the maximum for a compensation order for bereavement payable under the proposed amendments to the Criminal Justice Bill. Nor could questions of contributory negligence be readily settled in the absence of the victim.

The noble Lord raised the matter of guidelines for the Criminal Injuries Compensation Board. As I think he will know, that board conducts an annual review for discussion. I am bound to say that in view of the fact that I cannot read the note which is in front of me, I think the best plan would be for me to write to the noble Lord and explain the matter. I think that is the shortest way to bring this to a conclusion, and I will certainly correspond with the noble Lord.

Lord Morton of Shuna

I think that perhaps what the noble Lord could not read was not the information he was seeking. If he goes back to his previous office he may have some recollection of discussions with the Magistrates' Association and of the Home Office issuing guidlines intended for the magistrates. If the Minister is going to write to me, that is the subject which I hope he will deal with and also how, if at all, the guidance is to be applied to Scotland.

Lord Glenarthur

I will certainly undertake to do precisely that.

Lord Morton of Shuna

On the other point, I should have thought there is merit in the road traffic case. There is no intention of doing a special measurement of damage but just making an award. If a child is killed as a result of being knocked down by a drunken driver on a pedestrian crossing and the driver's circumstances are such that a prison sentence is inappropriate there may be cases where it is appropriate to make a compensation order of, say, £1,000 or so. However, I am in no way suggesting that should take away from the civil court's jurisdiction or that it should be any precise measurement of the loss. As the Minister is going to consider this matter on the basis of receiving a report, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 p.m.

Lord Morton of Shuna moved Amendment No. 38: After Clause 47, insert the following new clause:

("Accused and spouse

(1) Section 141 of the 1975 Act shall be amended as follows.

(2) In the proviso, in sub-paragraph (f)(ii) there shall be added the word "general" before the word "character" where it appears for the third time.

(3) In the proviso, after sub-paragraph (f)(iii) there shall be added the words (iv) for the removal of doubt, it is hereby declared that it is not an attack on the general character of any witness for the prosecution to invite the court to disbelieve that witness's evidence in so far as he testifies in support of the indictment, even if to do so involved an inference that the witness is lying or has fabricated that evidence either by himself or with others."").

The noble Lord said: It may be for the convenience of the Committee if with this amendment I mention Amendment No. 42. It may also be for the better understanding of those noble Lords who do not have an intimate knowledge of the 1975 Act if I were to explain that in that Act one has one set of sections dealing with solemn procedure—jury trials, in other words—and another for summary procedure. That means that if one makes an amendment one has to make it twice.

That is why Amendment No. 38 and Amendment No. 42 are in the same words but amend different sections. The provisions which I am seeking to amend go back to the Criminal Evidence Act 1898 when, for the first time, it became general law that an accused could give evidence in his defence. The 1898 Act applied both to England and Wales and to Scotland, and, as over the last 80 years the attitude of the courts has developed, there have appeared differences, some of which may be minor, in the approach of the English courts and the approach of the Scottish courts, particularly on the extent of the discretion. Particularly, perhaps, that arises because the judge in England and Wales, as I understand it, sees the depositions of witnesses and knows the record of the accused person, whereas the judge in Scotland does not have those privileges, advantages or disadvantages, whichever way one views it.

Until a few years ago the situation in Scotland gave little occasion for doubt or difficulty. It was accepted by the prosecutor that the defence did not put the accused's character in issue by testing the truth of the evidence given by the prosecution witnesses about the particular incident of which they were talking, and that it was only if they went beyond that and dealt with the general or the previous character of the witness that they allowed the character of the accused to be put in issue.

In recent years, and especially as a result of a decision of the Court of Criminal Appeal 18 months ago, in 1985, in Templeton v. McLeod, certain doubts have arisen. I suppose that in a sense I have to declare an interest—I am not sure whether or not I should—as I was the counsel on one side in that case and the noble and learned Lord was on the opposite side. The difficulty in that case was that the court adhered to the view that one could cross-examine a prosecution witness to the extent of saying that he was telling lies about his particular piece of evidence. But they went on to say that if one made an accusation that two of the prosecution witnesses had put their heads together to tell the same lie, that was putting their general character in issue, because that was accusing them not only of perjury but of a joint conspiracy to commit perjury, and that raises practical difficulties, because of the Scottish law of corroboration. For example, one gets the situation in Scotland of policemen going about in pairs, just because of the rules of corroboration.

One visualises a situation where the accused is charged with going through a red light, because two policemen sitting in their car think that he has gone through a red light. If the accused's defence is to be that the light was not red when he went through it, he will have to suggest that the evidence of each police officer is inaccurate, and it may well be that he will have to suggest that they put their heads together and decided that it was red.

It seems to me that there are difficulties both in saying that there is any material distinction between accusing somebody of perjury and in accusing somebody along with another of committing perjury. But there is also the difficulty that last year in a case called Conner v. Lockhart a completely different approach appeared to be taken, when it was held by the Court of Criminal Appeal that an accusation that a police officer—in this case, uncorroborated—fabricated evidence in giving false evidence about seeing certain marks on a door or had damaged the door himself, was not an attack on the character of that police officer.

The position is therefore that the law is in some doubt and what I have endeavoured to do in this amendment, apart from raising the doubt, is to restate the law as I understand it to have been before the Templeton decision; in other words, working on the previous Scottish authority which was the case of O'Hara. That is the intention behind my amendment. I make no claim that I have a draftsman's skill, and if the wording is wrong I shall be delighted if the Government will take it away and come back with a better wording. But, in the circumstances, I beg to move.

Lord Cameron of Lochbroom

Obviously I have listened with interest to what the noble Lord has said in support of the two new clauses which he proposes. I do not think this is an appropriate place in which to rejoin battle with the noble Lord opposite, as we did as counsel in the case to which he referred. As he has made clear, this is a legal point on which a body of case law has been built up and, more particularly, very recently built up. I am not yet convinced that it would be advisable to project a legislative intervention of the kind which he proposes into this arena. But I should like to reflect upon what he has said and perhaps I could let him know what view I reach—at least in the near future and perhaps before Report stage.

I think the noble Lord recognises that there are problems in drafting a clause of this kind to be injected into what has stood as something in our law for well over 80 years. I have to say—and I am sure that I do not say it in any criticism—that the way in which the present proposals for amendment are drafted is such that they would leave as many questions open as they seek to solve. Perhaps in these circumstances the noble Lord opposite will feel able to withdraw this amendment.

Lord Morton of Shuna

Before I do so, may I say that I should have mentioned that the noble and learned Lord will no doubt want for his reading and consideration the eleventh report of the Criminal Law Revision Committee. As it appears impossible to put in an Act of Parliament, "The decision of the Court of Criminal Appeal in A. v. B. is hereby deleted", it is difficult to go back to the previous law, which is what I have intended to do. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 39: After Clause 47, insert the following new clause:

("Probation

Section 183 of the 1975 Act shall be amended as follows—

1. (a) In subsection (1) insert the words "sentencing him" the words "to any sentence other than a compensation order";
2. (b) In subsection (6), insert after the words "including any" the words "compensation order or any".")

The noble Lord said: The purpose of this amendment is very simple and straightforward. It is to allow a person who is the subject of a probation order to have a compensation order made against him. As the law is at present, it is not possible to make a compensation order if a probation order is made. I do not need to go into details. There may be many cases where an offender is properly to be put on probation, but also it would be quite appropriate to get him to pay £25 for damage to a window, for example, or something of that nature. It is to give the court that additional discretion that this amendment is put forward. I beg to move.

Lord Glenarthur

I certainly understand the attraction which the noble Lord sees in the proposal to allow compensation orders to be made at the same time that an offender is placed on probation. Unfortunately, as is often the case in such matters, it is not all that simple.

First, it is important to remember that probation orders are made instead of proceeding to sentence. That is not a mere technical point; the 1975 Act provides this because probation is essentially different from other disposals. Where an offender is placed on probation, the court has not finished with him and he remains liable to be brought back before the court if he fails to comply with the terms of the order or commits another offence. In such circumstances, the court may then sentence the offender for the original offence.

On the other hand, a compensation order is a sentence. Payment of an order is to be enforced as a fine. I believe that your Lordships may see the possible conflicts that might arise if the amendment were accepted. How would the court deal with a probationer who failed to comply with the conditions of probation if it had already sentenced him by making a compensation order? What sense would it make to enforce the payment of a compensation order, ultimately by imprisonment, while the offender is on probation?

While I appreciate the arguments in favour of allowing compensation to be paid to someone who has suffered in consequence of an offence, it would not, in our view, be sensible to allow the two disposals to be combined. Having said that, that is not to say that I rule out entirely elements of compensation or reparation being included within the framework of probation. At present there may be some doubt as to the propriety of such a course as the only conditions which may be included by a court as part of an order have to be, necessary for securing the good conduct of the offender or for preventing the commission of offences". We are presently examining the whole question of broadening and developing probation, and the possibility of linking probation with compensation or other disposals will be considered. With that consideration in mind, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Morton of Shuna

It is interesting to hear what was provided to the noble Lord to say. I remind him that a community service order is a sentence. There is already power in the legislation to combine a probation order with a community service order, so under the present law it is quite possible to have a probation order and a community service order. The community service order is a sentence. It is difficult to see why a compensation order is so very different in terms of non-compliance from a community service order. However, if the Government are looking at the matter, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

Lord Morton of Shuna moved Amendment No. 40: After Clause 47, insert the following new clause—

("Art and part guilt.

Section 216 of the 1975 Act shall be amended as follows—

1. "(1)" shall be inserted before ("A") at the beginning of the section and after the word ("only") shall be inserted the words—
1083
2. "(2) Any person who, after this section is brought into force, aids, abets, counsels, procures or incites any other person to commit an offence against the provisions of any enactment shall be guilty of an offence and shall be liable on conviction, unless the enactment requires, to the same punishment as might be imposed on conviction of the first mentioned offence.".")

The noble Lord said: This amendment is to be spoken to with Amendment No. 43. What I have endeavoured to do here is to bring into the law the Scottish Law Commission report on art and part guilt of statutory offences. The amendment that I have put forward is the draft that the Scottish Law Commission attached to their report of April 1985.

The purpose of the amendment is to make clear—especially in cases where the guilt is that of a person in a special capacity such as, to take a slightly old-fashioned example, a tramway conductor—that somebody who incites a person to commit an offence should be guilty and subject to the same penalty as the person who was guilty of the statutory offence. I beg to move.

Lord Cameron of Lochbroom

I am grateful to the noble Lord opposite for bringing these two amendments forward. They provide an opportunity for me to state the Government's position with regard to the recommendations of the Scottish Law Commission in the report to which the noble Lord referred. As the commission indicated in its report, there were considerable differences of view as to the possible advantages of a general aiding and abetting provision. Those differences caused them some difficulty, since I think that the groups holding opposing views were about equal in number and each contained consultees whose views always carried great weight.

Having considered the possible advantages advanced by the commission, we are unable positively to conclude that any major benefit would arise from the changes recommended. We did not, therefore, bring forward in the Bill any provisions to introduce a general aiding and abetting provision.

In fairness, it must also be said that, apart from one substantial matter to which I shall refer in a moment, we see no real disadvantages in the changes proposed. Therefore, we should not wish to resist on principle the introduction of such general provisions into the Criminal Procedure (Scotland) Act 1975.

Nevertheless, as presently drafted, I am doubtful about how the aiding and abetting provisions in relation to the existing provision on art and part guilt in statutory offences would operate. I should say that I am anxious that art and part guilt of statutory offences should remain unaffected, and I therefore wish to give further consideration to the drafting of an appropriate amendment with that object firmly in view. On that basis I invite the noble Lord opposite to withdraw his amendments at this stage.

Lord Morton of Shuna

It was precisely because I did not intend that art and part guilt of statutory offences should be abolished that the amendment is drafted in this way. In other words, it follows a subsection which says precisely that there is art and part guilt in statutory offences. However, in the light of a response which is rather more encouraging than I have been accustomed to receive over the last hour or two, I must ask leave to withdraw the amendment and hope for better things to come.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 41: After Clause 47, insert the following new clause—

("Forfeiture of property.

(1) The following section shall be inserted after section 223 of the 1975 Act— 223(A). (1) Where a court makes an order under section 223 of this Act in the case where the offender has been convicted of an offence which has resulted in a person suffering personal injury, loss or damage, the court may also make an order that any proceeds which arise from the disposal of the property and which do not exceed a sum specified by the court shall be paid to that person. (2) The court may only make an order under this section if it is satisfied that, but for the inadequacy of the means of the offender, it would have made a compensation order under which the offender would have been required to pay compensation of an amount not less than the specified amount.

(2) The following section shall be inserted after section 436 of the 1975 Act— 436A. (1) Where a court makes an order under section 223 of this Act in a case where the offender has been convicted of an offence which has resulted in a person suffering personal injury, loss or damage, the court may also make an order that any proceeds which arise from the disposal of the property and which do not exceed a sum specified by the court shall be paid to that person. (2) The court may only make an order under this section if it is satisfied that, but for the inadequacy of the means of the offender, it would have made a compensation order under which the offender would have been required to pay compensation of an amount not less than the specified amount.".").

The noble Lord said: This amendment again follows the Criminal Justice Bill which is going on in another place. It relates to forfeiture of property and enables the court, when there are certain and obviously very unusual circumstances where there is a forfeiture of property and where there is a person who has suffered personal injury as a result of an offence, to make an order that the proceeds of the forfeited property should be used towards paying compensation to the injured person. I believe that that follows Clause 72 of the Criminal Justice Bill. In principle, it seems to be not a bad idea and the Government seem to like it for England; I like it for Scotland. I shall now no doubt hear why the Government do not like it for Scotland. I beg to move.

Lord Glenarthur

Once again I have to say to the noble Lord that I find myself in sympathy with the principle underlying the amendment. It seems right in principle, where an offender's means are inadequate to provide compensation to someone who has suffered loss as a result of an offence, that any proceeds from the disposal of items forfeited by the court may be paid as compensation to the victim.

I think we should perhaps be realistic about the number of cases in which such action may be possible. Criminals rarely sink their own capital into the acquisition of items used to commit an offence. Nevertheless, I accept that, where there are such proceeds, compensation may be appropriate. However, I have to say that I am not all clear that the courts cannot already, under the existing provisions, take just those steps which these amendments provide for.

We should be cautious about enacting changes to these powers piecemeal. As I indicated to the Committee when discussing the proposed new clause on compensation orders, we should prefer to take a considered view of the operation of the present scheme before tackling any changes that may be appropriate.

Having said that and having expressed sympathy with the principle of the noble Lord's amendment, I hope that he will feel able to withdraw the amendment.

Lord Morton of Shuna

Before I do so, I should ask the noble Lord this. If he is right and finds that the court already has this power, will he write and tell me what and where it is? Subject to that, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment Nos. 42 and 43 not moved.]

Clauses 48 and 49 agreed to.

Clause 50 [Penalties in respect of summary conviction for certain offences]:

Lord Glenarthur moved Amendment No. 44: Page 45, line 36, after ("Justice") insert ("(Scotland)").

The noble Lord said: This is simply a drafting amendment. I beg to move.

On Question, amendment agreed to.

Lord Glenarthur moved Amendment No. 45: Page 45, line 43, after ("sum") insert ("in question").

The noble Lord said: This is a purely drafting amendment designed to bring the wording of proposed new Section 289GB(l) (a) of the Criminal Procedure (Scotland) Act 1975 into line with proposed new Section 289GB(3) (a), which it mirrors.

Perhaps I may take this opportunity to tell the Committee that, at the very point where the amendment is to be inserted, the line numbering seems to have gone wrong. There are nine lines between 35 and 40 and, therefore, two ways of arriving at a possible line 43. The amendment takes effect in new Section 289GB(1) (a), not in the first line of Section 289GB(2). With apologies for the confusion, I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 50, as amended, shall stand part of the Bill.

Lord Morton of Shuna

I should be grateful if whichever noble Lord is dealing with this will tell us where we can find the Criminal Justice (Scotland) Act 1986, which is referred to throughout the clause. If it is intended to be this Bill, it is now 1987, and no doubt at the next stage of the Bill the alteration can be made. I did not wish to table a series of amendments to change the date if I was wrong, but I was not aware of a Criminal Justice (Scotland) Act 1986.

Lord Cameron of Lochbroom

I think that the answer lies in the fact that the Bill was introduced in September last year. At that time it would have been appropriate. We will take note of what the noble Lord's eagle eye has lit upon.

Clause 50, as amended, agreed to.

Clauses 51 to 56 agreed to.

Schedule 1 [Minor and consequential amendments]:

Lord Glenarthur moved Amendment No. 46:

Page 49, line 39, at end insert— ("8A. In each of sections 215 and 426 (detention etc. deemed to be legal custody) for the words "Part I of the Criminal Justice (Scotland) Act 1980" there shall be inserted the words "any other enactment or any subordinate instrument".".).

The noble Lord said: The amendment is required in consequence of the provisions made in relation to detention under Part II of the Bill. Its effect is to extend the definition of legal custody under both solemn and summary procedure so as to include detention under Part II of the Bill. It is necessary to include detention within the definition so that a detainee who escapes may be apprehended, and any attempt to rescue him from custody is an offence. The definition has not been framed to cover all detention under statute.

On Question, amendment agreed to.

Lord Glenarthur moved Amendment No. 47:

Page 49, line 47, at end insert— 9A. (1) In section 268 (reckoning of time spent in custody pending appeal), for subsection (1) there shall be substituted the following subsection—

1. "(1) Subject to subsection (2) below, where an appellant is admitted to bail under section 238 of this Act the period beginning with the date of his admission to bail and ending on the date of his readmission to prison in consequence of the determination or abandonment of his appeal shall not be reckoned as part of any term of imprisonment under his sentence.".
2. (2) In subsection (2) of that section, after the word "appeal" there shall be inserted the words ", including any period spent in custody in consequence of the recall of his bail,".
3. (3) For subsection (3) of that section there shall be substituted the following subsection—

(3) Subject to any direction which the High Court may give to the contrary, imprisonment of an appellant—

1. (a) who is in custody in consequence of the conviction or sentence appealed against shall be deemed to run as from the date on which the sentence was passed;
2. (b) who is in custody other than in consequence of such conviction or sentence shall be deemed to run or to be resumed as from the date on which his appeal was determined or abandoned;
3. (c) who is not in custody shall be deemed to run or to be presumed as from the date on which he is received into prison under the sentence.".").

The noble Lord said: The amendment is intended to deal with problems that have arisen in the interpretation of Section 268 of the Criminal Procedure (Scotland) Act 1975. That section is intended to set out the periods spent by an appellant in solemn procedure on bail or in custody which are to be reckoned as part of his sentence where he is imprisoned following determination or abandonment of his appeal. The section also specifies from what date a sentence of imprisonment is to run or be resumed in such a case.

Unfortunately the section is less clear than its summary counterpart, and fails to deal with the situation that arises from time to time where an appellant is, pending his appeal, imprisoned on some other account. In such a situation there is ambiguity as to whether the time spent in custody on matters unrelated to the appeal should be regarded as part of the first sentence and as to the date from which the resumed first sentence was to run. The amendment will remove these ambiguities by providing that none of the time between an appellant being liberated on bail and his recommittal to prison under sentence in the case in which he was appealing shall count as part of that sentence. It further provides that the resumed sentence will run from the date on which the appeal is determined or abandoned.

I should make clear that these difficulties of interpretation are not academic only but have given rise to particular difficulties in determining the length of sentence remaining in a number of cases. The amended provision I believe to be both fair to the appellant and much clearer than the present provision. I commend the amendment to the Committee.

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Repeals]:

[Amendment No. 48 not moved.]

Schedule 2 agreed to.

House resumed: Bill reported with amendments.