HL Deb 25 October 1990 vol 522 cc1646-8

`.—(1) In any civil proceedings to which this section applies, the court may (whether or not on application made to it) request a party to the proceedings—

  1. (a) to provide a sample of blood or other body fluid or of body tissue for the purpose of laboratory analysis;
  2. (b) to consent to the taking of such a sample from a child in relation to whom the party has power to give such consent.

(2) Where a party to whom a request under subsection (1) above has been made refuses or fails—

  1. (a) to provide, or, as the case may be, to consent to the taking of, a sample as requested by the court, or
  2. (b) to take any step necessary for the provision or taking of such a sample,
the court may draw from the refusal or failure such adverse inference, if any, in relation to the subject-matter of the proceedings as seems to it to be appropriate.

(3) In section 6 of the Law Reform (Parent and Child) (Scotland) Act 1986 (determination of parentage by blood sample)—

  1. (a) in subsection (1), for the words "blood sample" there shall be substituted "sample of blood or other body fluid or of body tissue"; and
  2. (b) in each of subsections (2), (3) and (4), for the words "a blood" there shall be substituted "such a".

(4) This section applies to any civil proceedings brought in the Court of Session or the sheriff court—

  1. (a) on or after the date of the commencement of this section, or
  2. (b) before the said date in a case where the proof has not by that date begun.'.

Lord Fraser of Carmyllie

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 177. In moving the amendment I shall a so speak to Amendment No. 177A.

I am sure that noble Lords will welcome the provision as it enables the courts in civil proceedings to request a party to provide blood or other body samples for laboratory analysis. There has been criticism in recent months of the gap in Scots law which has prevented courts from obtaining useful evidence from the analysis of blood and body tissue. The courts in Scotland have acknowledged that gap, in particular in relation to disputed paternity cases.

The new clause was brought forward at Committee stage in the other place and the Government responded quickly in accepting the principle of the provision. Minor amendments were made at Report stage so as to provide that, instead of the court being empowered to "direct" a party to civil proceedings to provide a sample, the court should only be able to request such a sample from a party to the proceedings. The amendments were necessary because failure to comply with a direction of the court might be regarded as contempt of court. The clause provides, however, that where a party refuses or fails to provide a sample the court may draw an adverse inference. It is provided that an adverse inference may be drawn in relation to the subject matter of the proceedings. I believe that that is the proper approach since it would enable the court to address the crucial matter at issue in the proceedings as opposed merely to the witness's credibility and reliability.

The provision takes advantage of developments in recent years in the analysis of blood and body tissues using highly sophisticated techniques which are recognised to be extremely reliable. I hope that this measure will be welcomed on both sides of the House.

Moved, That the House do agree with the Commons in their Amendment No. 177.—(Lord Fraser of Carmyllie.)