HL Deb 02 July 1992 vol 538 cc877-83

3.25 p.m.

Read a third time.

Clause 1 [Release of short-term, long-term and life prisoners]:

The Minister of State, Scottish Office (Lord Fraser of Carmyllie) moved Amendment No. 1: Page 1, line 19, leave out ("or, if consultation with the Lord Justice General is impracticable,") and insert (", whom failing").

The noble and learned Lord said: My Lords, it will be for your Lordships' convenience if we consider Amendments Nos. 1, 2 and 7 together. These are essentially drafting changes. The amendments which were agreed to on Report sought to meet two rather different points which had at an earlier stage been raised by the noble and learned Lord, Lord Morton of Shuna, and the noble Lord, Lord Macaulay of Bragar, respectively. As I then indicated, I was not entirely happy with the precise terms of those amendments. Neither was the noble Lord, Lord Macaulay, who pointed out that they were not consistent.

What I have been looking for is a form of words to express the meaning that it is the Lord Justice General who is to be consulted or to issue certificates but that the Lord Justice Clerk may at need stand in for him. I am indebted to the Lord Justice General himself, who referred me to existing provisions in Sections 113 and 114 of the Criminal Procedure (Scotland) Act 1975 where the formula "whom failing" is used for very much the same purpose. I beg to move.

On Question, amendment agreed to.

Clause 10 [Life prisoners transferred to Scotland]:

Lord Fraser of Carmyllie moved Amendment No. 2: Page 10, line 8, leave out ("or") and insert (", whom failing").

On Question, amendment agreed to.

Clause 28 [Prints, samples etc in criminal investigations]:

Lord Macaulay of Bragar moved Amendment No. 3 Page 22, line 18, after ("inspector") insert ("but only in the presence of the person's solicitor").

The noble Lord said: My Lords, this is an amendment to Clause 28 of this Bill which involves the taking of prints and samples and other such things in criminal investigations. The Scottish Law Commission in its report on evidence recommended that samples should be taken only in the presence of a senior police officer. That has been recognised by the Government in that an inspector has to give consent to the samples being taken.

This amendment is moved to ensure that a proper balance is kept in this important matter because this measure impinges upon the general principle that a person need not give incriminating evidence against himself or herself. Clause 28(5) states: A constable may use reasonable force in exercising any power", to obtain samples. That being so there is no independent check against the force being used by the constable to obtain the sample. It would be helpful if a solicitor were available at the time the sample was taken to give a check when the case came to court.

I appreciate that the amendment may be rather tightly drafted and may not recognise the question of practicability in terms of time, place, the public interest and the preservation of evidence as a matter of urgency. However, the preservation of evidence as a matter of urgency is already covered by Clause 28(6). In the circumstances, in fairness to the accused and to the community, I commend the amendment to your Lordships' House. I beg to move.

The Lord Advocate (Lord Rodger of Earlsferry)

My Lords, I have listened to what the noble Lord said but I remain unconvinced by his argument. Your Lordships will notice that Clause 28 applies only to persons who are arrested or detained. Those persons already have rights under statute to have notification sent to their solicitor and to have access to a solicitor. I do not believe that what has been said would justify the addition of a right to have a solicitor present simply when samples of the kind specified are being taken. I remind your Lordships that the samples are merely combed or plucked hairs or swabs from a person's skin.

In those circumstances, although it is correct to say that reasonable force may be used if necessary, I believe that the fact that the samples have to be taken at the instance of and with the permission of a senior officer provides an adequate safeguard. That is the means of safeguard which the Law Commission recommended and I believe that it is satisfactory.

I trust that in the light of that explanation the noble Lord will withdraw the amendment.

Lord Macaulay of Bragar

My Lords, I am obliged to the noble and learned Lord the Lord Advocate for that explanation. The only way in which the clause can be tested is through its operation. In due course it will be monitored to see whether or not it achieves the degree of fairness which the amendment set out to achieve. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 [Evidence from documentary records]:

Lord Rodger of Earlsferry moved Amendment No. 4: Leave out Clause 29 and insert the following new clause:

Evidence from documents (" . Schedule (Documentary evidence in criminal proceedings) to this Act, which makes provision regarding the admissibility in criminal proceedings of copy documents and of evidence contained in business documents, shall have effect.").

The noble and learned Lord said: My Lords, in moving Amendment No. 4, it may be for your Lordships' convenience if I speak also to Amendments Nos. 6 and 8.

All of the amendments have been well heralded following the tabling by the noble Lord, Lord Macaulay, at Report stage of what is now Clause 29 of the Bill. At that time in accepting the new clause I indicated that I wished to consider its terms and would come back at Third Reading with amendments. Your Lordships will also recall that the impetus for bringing forward those provisions lies in the comments of the Lord Justice General in his recent decision in which he pointed to the urgent need for statutory provisions similar to those which already exist in England and Wales to extend the exceptions to the rule against the admissibility of hearsay evidence in criminal proceedings in Scotland. The amendments which I move today follow broadly the recommendations of the Scottish Law Commission, made after consideration of responses to its discussion paper.

The amendments are designed to assist the admissibility of business documents in criminal proceedings to reflect modern conditions and technology such as computer and copying machines. They are intended to reduce the need for witnesses to give evidence on matters which are almost always in practice unchallenged. On the other hand, the provisions retain important safeguards to protect the right of the accused to a fair trial. I beg to move.

On Question, amendment agreed to.

Clause 41 [Prosecutor's consent to or application for setting aside of conviction]:

Lord Fraser of Carmyllie moved Amendment No.5: Page 28, line 14, leave out (", on the appeal being intimated to him,").

The noble and learned Lord said: My Lords, I indicated at Report stage that I would bring forward a further amendment to the provisions in what is now Clause 41. The amendment will give the prosecutor flexibility to agree to set aside a conviction at any point during an appeal prior to its determination and not just at the point at which the appeal is intimated to him. I beg to move.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No.6: After Schedule 2, insert the following new schedule:

("SCHEDULE DOCUMENTARY EVIDENCE IN CRIMINAL PROCEEDINGS

Production of copy documents 1.—(1) For the purposes of any criminal proceedings, a copy of a document, purporting to be authenticated, in such manner as may be prescribed, by a person responsible for the making of the copy, shall, unless the court otherwise directs, be—

  1. (a) deemed a true copy; and
  2. (b) treated for evidential purposes as if it were the document itself,
whether or not that document is still in existence. (2) For the purposes of this paragraph it is immaterial how many removes there are between a copy and the original. (3) In this paragraph, "copy" includes a transcript or reproduction.

Statements in business documents 2.—(1) A statement in a document shall be admissible in criminal proceedings as evidence of any fact or opinion of which direct oral evidence would be admissible, if the following conditions are satisfied—

  1. (a) the document was created or received in the course of, or for the purposes of, a business or undertaking or in pursuance of the functions of the holder of a paid or unpaid office;
  2. (b) the document is, or at any time was, kept by a business or undertaking or by or on behalf of the holder of such an office; and
  3. (c) the statement was made on the basis of information supplied by a person (whether or not the maker of the statement) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in it.
(2) Sub-paragraph (1) above applies whether the information contained in the statement was supplied directly or indirectly but, if it was supplied indirectly, only if each person through whom it was supplied received it in the course of a business or undertaking or as or on behalf of the holder of a paid or unpaid office. (3) Where in any proceedings a statement made by any person is admitted as evidence by virtue of this paragraph—
  1. (a) any evidence which, if that person had been called as a witness, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;
  2. (b) evidence may be given of any matter which, if that person had been called as a witness, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and
  3. (c) evidence tending to prove that that person, whether before or after making the statement, made (whether orally or not) some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself.
 (4) Sub-paragraph (3) above shall apply in relation to a person who has, directly or indirectly, supplied the information on the basis of which the statement was made to the person who made the statement as it applies in relation to the maker of the statement.

Documents kept by businesses etc 3. Unless the court otherwise directs, a document may in any criminal proceedings be taken to be a document kept by a business or undertaking or by or on behalf of the holder of a paid or unpaid office if it is certified as such by a docquet in the prescribed form and purporting to be authenticated, in such manner as may be prescribed—

  1. (a) by a person authorised to authenticate such a docquet on behalf of the business or undertaking by which; or
  2. (b) by, or by a person authorised to authenticate such a docquet on behalf of, the office-holder by whom,
the document was kept; and a statement contained in any document certified as aforesaid may be received in evidence without being spoken to by a witness.

Statements not contained in business documents 4.—(1) In any criminal proceedings, the evidence of an authorised person that any particular statement is not contained in a document kept by a business or undertaking or by or on behalf of the holder of a paid or unpaid office shall be admissible as evidence of that fact whether or not the whole or any part of the documents so kept has been produced in the proceedings. (2) The evidence referred to in sub-paragraph (1) above may, unless the court otherwise directs, be given by means of a certificate by the authorised person in the prescribed form and purporting to be authenticated in such manner as may be prescribed. (3) In this paragraph, "authorised person" means a person authorised to give evidence on behalf of the business or undertaking or as or on behalf of the office-holder.

Additional evidence where evidence from business documents challenged 5.—(1) This sub-paragraph applies where—

  1. (a) evidence has been admitted by virtue of paragraph 2(3) above; or
  2. (b) the court has made a direction under paragraph 1(1), 3 or 4(2) above.
(2) Where sub-paragraph (1) above applies in solemn criminal proceedings the judge may, without prejudice to sections 149 and 149A of the 1975 Act, on a motion of the prosecutor or defence at any time before the commencement of the speeches to the jury, permit him to lead additional evidence of such description as the judge may specify. (3) Subsections (2) and (3) of section 149 of the 1975 Act shall apply in relation to sub-paragraph (2) above as they apply in relation to subsection (1) of that section. (4) Where sub-paragraph (1) above applies in summary criminal proceedings the judge may, without prejudice to sections 350 and 350A of the 1975 Act, on a motion of the prosecutor or defence after the close of that party's evidence and before the prosecutor proceeds to address the judge on the evidence, permit that party to lead additional evidence of such description as the judge may specify. (5) Subsections (2) and (3) of section 350 of the 1975 Act shall apply in relation to sub-paragraph (4) above as they apply in relation to subsection (1) of that section.

General 6.—(1) Nothing in this Schedule—

  1. (a) shall prejudice the admissibility of a statement made by a person other than in the course of giving oral evidence in court which is admissible otherwise than by virtue of this Schedule;
  2. (b) shall affect the operation of the Bankers' Books Evidence Act 1879;
  3. (c) shall apply to—
    1. (i) proceedings commenced; or
    2. (ii) where the proceedings consist of an application to the sheriff by virtue of section 42(2) (c) of the Social Work (Scotland) Act 1968, an application made, 882 before this Schedule comes into force.
(2) For the purposes of sub-paragraph (1) (c) (i) above, solemn proceedings are commenced when the indictment is served. (3) In section 6 of the Bankers' Books Evidence Act 1879 (case in which banker not compellable to produce book), after the word "1988" there shall be inserted the words "or Schedule (Documentary evidence in criminal proceedings) to the Prisoners and Criminal Proceedings (Scotland) Act 1992". 7. In this Schedule— business" includes trade, profession or other occupation; criminal proceedings" includes any hearing by the sheriff under section 42 of the Social Work (Scotland) Act 1968 of an application for a finding as to whether grounds for the referral of a child's case to a children's hearing are established, in so far as the application relates to the commission of an offence by the child; document" includes, in addition to a document in writing—
  1. (a) any map, plan, graph or drawing;
  2. (b) any photograph;
  3. (c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
  4. (d) any film, negative, tape, disc or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom;
 film" includes a microfilm; made" includes allegedly made; prescribed" means prescribed by Act of Adjournal; statement" includes any representation (however made or expressed) of fact or opinion, including an instruction, order or request, but does not include—
  1. (a) a statement in a precognition; or
  2. (b) any other statement made for the purposes of or in connection with—
    1. (i) pending or contemplated criminal proceedings; or
    2. (ii) a criminal investigation; and
 undertaking" includes any public or statutory undertaking, any local authority and any government department.").

On Question, amendment agreed to.

Schedule 5 [Transitional Provisions and Savings]:

Lord Fraser of Carmyllie moved Amendment No.7: Page 42, line 18, leave out ("or") and insert ("whom failing").

On Question, amendment agreed to.

Schedule 6 [Repeals and Revocations]:

Lord Rodger of Earlsferry moved Amendment No. 8: Page 43, line 26, at end insert:

("1965 c.20. The Criminal Evidence Act 1965. The whole Act.
1969 c. 48. The Post Office Act 1969. Section 93(4).")

On Question, amendment agreed to.

An amendment (privilege) made.

Lord Fraser of Carmyllie

My Lords, I beg to move that the Bill do now pass. In view of the important matters which many of your Lordships are eagerly waiting to discuss, I intend to be brief. However, I wish to thank those noble Lords who have taken part in the debates on the Bill. I am grateful both for the way in which the Bill has been welcomed and also for the constructive efforts which have been made to improve it.

The Bill will bring about more equitable arrangements for the early release of prisoners and will make several relatively minor but nevertheless significant improvements in the law governing criminal proceedings in Scotland. I trust that it will be as well received in another place as it has been in this House.

I reiterate my thanks to those who have contributed to the friendly and constructive debates which have taken place and would like to take this opportunity to add a special word of thanks to the Lord Justice General who has been most helpful in providing a considered view on a number of points, often at very short notice. I beg to move.

Moved, That the Bill do now pass.—(Lord Fraser of Carmyllie.)

Lord Macaulay of Bragar

My Lords, I should like to say briefly that this legislation is useful. One part will save a great deal of time, expense and inconvenience to witnesses and the public in the Scottish courts. I have reservations about the operation of the part of the Bill dealing with parole but time will tell how it will operate.

I am grateful to the Ministers, the noble and learned Lord the Lord Advocate and the noble and learned Lord, Lord Fraser of Carmyllie, for their careful consideration and acceptance of amendments proposed from this side of your Lordships' House. I hope that we can say without any degree of false modesty that the Bill leaves the House in better shape than when it arrived.

On Question, Bill passed, and sent to the Commons.