Prisoners and Criminal Proceedings (Scotland) Bill [H.L.]

HL Deb 04 June 1992 vol 537 cc1030-72

3.38 p.m.

Lord Fraser of Carmyllie

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Fraser of Carmyllie.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

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

Lord Macaulay of Bragar moved Amendment No. 30: Page 21, line 44, after ("record") insert ("and any copies").

The noble Lord said: This amendment relates to the criminal proceedings part of the Bill, Part II. Clause 28 concerns people who have been arrested and are in custody and from whom prints and other impressions have been taken. Clause 28(3) states: The record of any prints or impressions taken under subsection (2) above shall be destroyed immediately following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings".

Amendment No. 30 is a simple amendment. It is a protective amendment. It seeks to ensure that no copies of prints or impressions are left floating around in the prosecutor's offices, in police stations or elsewhere. No doubt the police and the Crown authorities would like on occasions to keep copies of such impressions but I submit that that would be contrary to the presumption of innocence. By destroying not only the record but also any copies of the record the public mind would be put at rest as regards the fact that a record was not being kept by the authorities in a secret place. I beg to move.

Lord Fraser of Carmyllie

I have listened to the noble Lord's comments. As he will be aware, the Interpretation Act provides that words in a statute in the singular include the plural. Clause 28(3) accordingly already requires all records (and therefore all copies) of prints and impressions taken to be destroyed in the appropriate circumstances. The existing law in relation to the destruction of records of fingerprints or impressions taken from persons in detention is contained in Section 2(5) (c) of the Criminal Justice (Scotland) Act 1980. As the Committee is aware, the statutory provision there does not expand on the definition of "record".

I can inform the Committee that under the existing procedures where further copies are made of fingerprints obtained under Section 2 of the 1980 Act, all copies in the hands of the police are sought out and destroyed when required by subsection (7) of that section.

I would be willing however to table an amendment on Report in order to clarify that the legislation applies to more than one record and on that basis I invite the noble Lord to withdraw his amendment.

Lord Macaulay of Bragar

I am grateful to the Minister for that helpful reply. In the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 agreed to.

Clause 29 agreed to.

Clause 30 [Transcript of customs interview sufficient evidence]:

Lord Macaulay of Bragar moved Amendment No. 31: Page 23, line 3, leave out subsection (2).

The noble Lord said: This amendment relates to page 23 of the Bill. Clause 30 deals with the admission of interviews between an accused and officers of the Customs and Excise department. Subsection (2) states: Subsection (1) above has effect in relation not only to criminal proceedings commenced on or after the date on which this section comes into force but also, if the trial diet is on or after that date, to criminal proceedings commenced before that date".

That provision would appear on the face of it to create a problem. If a trial has started before this Act comes into force but the Act comes into force during the duration of the trial, these provisions might apply. I have tabled the amendment to seek clarification because obviously the governing words are the words, to criminal proceedings commenced before that date".

Perhaps now or at a later stage the Government can clarify what the phrase "proceedings commenced" means and when for the purposes of this Act proceedings will be deemed to have commenced. There has had to be resort to the courts and to the Appeal Court on occasions in the past to determine what is meant by that phrase. In a provision of such importance as the one we are discussing it would be helpful to have the phrase covered by an interpretation clause. I beg to move.

The Lord Advocate (Lord Rodger of Earlsferry)

The noble Lord has made a technical point. I am quite happy to take the matter away and consider it. As the noble Lord will appreciate, this matter concerns only whether or not one needs evidence in relation to the transcript itself rather than the question of admissibility of the evidence relating to the interview. However, I shall be happy to clarify this matter.

Lord Macaulay of Bragar

I am grateful to the Minister for giving that undertaking. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 30 shall stand part of the Bill?

Lord Macaulay of Bragar

I wish to make a point briefly in relation to Clause 30(1). This provision constitutes an extension of the admission of evidence in transcripts. Already such evidence is admissible as regards interviews between police officers and accused persons. I am not saying that the provision in Clause 30(1) is a dangerous extension but it has been extended to, a person commissioned, appointed or authorised under section 6(3) of the Customs and Excise Management Act 1979 and an accused person". The Law Society has made an objection to that provision. No amendment has been tabled to it but the society is concerned about the circumstances in which any such statements or interviews might occur. I accept the point made by the noble and learned Lord the Lord Advocate that admissibility is a different thing to evidence of what is said but in most cases the police are governed by strict rules as regards cautioning. Usually a representative of the accused is present during the course of an interview. I make these observations now as I wish to ask the Government whether it will be the case that no interviews will take place under the extension of interviewing procedure with its evidential consequences on the part of an officer authorised under the Customs and Excise Management Act without a caution having first been administered and the appropriate common law rules being applied. The accused should also be given the opportunity to have a solicitor present before an interview that is to be recorded takes place.

3.45 p.m.

Lord Rodger of Earlsferry

I can inform the noble Lord that the present position is that all interviews by Customs and Excise officers are conducted under guidelines based on the Scottish Office home and health department's memorandum of guidance. The police use that for similar interviews. Therefore the same principles apply. Before a suspect makes a statement he is formally cautioned and he may have a solicitor or legal representative present during the interview. I repeat that the only matter that is raised by the clause concerns the proof of the interview rather than the interview itself.

Lord Macaulay of Bragar

I suspected that that might be the case. Now that the noble and learned Lord has confirmed it, I hope the fears of the Law Society will be allayed.

Clause 30 agreed to.

Clause 31 [Evidence from abroad through television links in solemn proceedings]:

Lord Rodger of Earlsferry moved Amendment No. 31A: Page 23, line 39, leave out ("is in the interests of justice") and insert:

1. ("(i) is in the interests of justice; and
2. (ii) in the case of an application by the prosecutor, is not unfair to the accused").

The noble and learned Lord said: When a similar clause to Clause 31 was before the Chamber on a previous occasion concern was expressed about the safeguards contained in the provision. In particular it was suggested that there was a need to stress that the interests of the accused should be protected.

On this occasion the noble Lord, Lord Campbell of Alloway, has tabled Amendment No. 32 on the Marshalled List. Having seen that amendment, the Government have considered the position. The Government are, of course, aware of the need to protect the fundamental right of an accused person to a fair trial. It was precisely with that principle in mind that Clause 31, as it appears in the print of the Bill, includes a provision to the effect that an application for use of the procedure could be granted only if the judge were satisfied that it would be in the interests of justice for the application to be granted. That provision is contained in subsection 3(b) of the proposed new Section 32A.

Nonetheless, we have considered carefully the amendment tabled by the noble Lord, Lord Campbell of Alloway. On reflection we consider that it would be appropriate for the provision to make clear on the face of the statute itself that the judge should not allow the procedure for taking evidence by live television link from abroad to be used if it would be unfair to the accused. We considered that that was already implicit in subsection (3) (b) but we are quite happy to make it explicit on the face of the Bill.

Therefore, the amendment before the Committee takes account of the anxieties expressed by the noble Lord and at the same time recognises—and this is an important matter—that applications under the section may be made either by the prosecutor or by the defence. The drafting of the amendment adds that the specific requirement relating to the protection of the accused applies where the application for use of the procedure is made by the prosecutor. In that way the requirement of protection of the accused is made explicit on the face of the Bill.

I hope that that serves to clarify the position. I beg to move.

Lord Campbell of Alloway

I support the amendment, which affords the extra measure of safeguard in general law under Clause 31 of the Bill, which introduces Section 32A into the Act of 1980. It meets the concern expressed by the noble Lord, Lord Macaulay of Bragar, on 1st May 1990 when this question was last before the House on another Bill, the Law Reform (Miscellaneous Provisions) (Scotland) Bill. Having read the report of that debate I see that the noble Lord, Lord Macaulay, took that point.

The amendment subsumes the spirit of my amendment, Amendment No. 32, which I shall not move. It also bridges the gap of disparity of treatment as between Clause 29, which amends Section 32 of the 1980 Act on the admissibility of audio and video records which includes in substance that safeguard and Clause 31 which, without the amendment of my noble and learned friend the Lord Advocate, would not.

I am grateful to my noble and learned friend the Lord Advocate and, in particular, to parliamentary counsel for having taken the matter on board at such short notice and for having produced such an excellent result, a much improved form of drafting to my drafting of Amendment No. 32.

In the meantime I hope that the amendment moved by my noble and learned friend may commend itself to the Committee without prejudice to the merits of Amendment No. 33, which I shall move in due course.

On Question, amendment agreed to.

[Amendment No. 32 not moved.]

Lord Campbell of Alloway moved Amendment No. 33: Page 23, line 44, at end insert: ("(5) This section shall not apply in proceedings brought against any person under the War Crimes Act 1991.").

The noble Lord said: The amendment is concerned with an amendment of the procedural law of Scotland to admit live television into the courtroom in criminal proceedings under the 1991 Act. To that extension of procedural law there is no general objection. However, there is the most serious objection to the use of that type and quality of evidence in proceedings under the War Crimes Act at all events, and in particular for any purpose connected with identification. I remind the Committee that on a free vote on 1st May 1990 your Lordships so decided on the fifth day of the Committee stage of the Law Reform (Miscellaneous Provisions) (Scotland) Bill by a majority in excess of two to one against the Government.

The debate on 1st May 1990 (as reported in Vol. 518, cols. 933–960 of Hansard) was conducted on the assumption, as appears from the report, that war crimes trials would ensue, both in Scotland and in England, an assumption which remains valid today in view of the War Crimes Act.

Today, on this side of the Chamber, we labour under a two-line Whip although no other party has any whip. As a result, like last Tuesday, Members of the Committee on this side of the Chamber will not have heard the argument on the merits of the amendment. On Tuesday, noble Lords obeyed the Government Whip and Amendment No. 3 was defeated. However, as appears from Hansard, the merits of the argument conducted on the Floor of the Chamber were unanswerable and were unanswered.

Today, very few noble Lords on this side of the Chamber are present to hear the argument as there is an important matter proceeding elsewhere. Therefore, it is all but inevitable, one supposes, that the amendment, although previously accepted by your Lordships, will be lost on the Whip. However, I seriously question whether matters concerning the procedural law of Scotland in criminal proceedings are a proper matter for political controversy.

I also question whether the statutory imposition on Scotland of Clause 31, unamended by the amendment, is for the "better Administration of Justice" in Scotland in a war crimes trial. Those words are the savings proviso of Article XIX of the Act of Union which enables our Parliament to impose regulation upon Scotland. If, in the opinion of the Committee, Clause 31 unamended is not for the better ordering of the administration of justice in Scotland then, without that savings proviso of Article XIX, it is unconstitutional and Amendment No. 33 should be accepted.

However, the Committee is asked by the Government to assume that Clause 31 as it stands is for the better ordering of the administration of justice in a war crimes trial in Scotland; so to accept the rectitude of its statutory imposition on Scotland, without excluding its use in a war crimes trial, without regard to the merits of any debate; and so to reject this amendment.

In a matter which ought to be wholly devoid of political controversy, especially in view of the somewhat strained relationship between Scotland and England at this time, the Committee may well think that, apart from the constitutional aspect of this statutory imposition, it would have been wise or concessive to have afforded a free vote. A formal request to that effect has been refused. I am advised that it is proper and in order for me to draw the Committee's attention to this matter and, even at this late stage, on the Floor of this Committee I respectfully ask the Government, which I support, to think again and to withdraw the Whip.

On 1st May 1990 the Government introduced both Clauses 29 and 31 of this Bill in two parts of Amendment No. 292 to the Law Reform (Miscellaneous Provisions) (Scotland) Bill. The substance of the amendment which I move today was included in Amendment No. 293ZA, drafted by the noble and learned Lord, Lord Wilberforce, who is in his place. In fact the amendment was carried against the Government by 137 votes to 62 votes.

My noble and learned friend Lord Fraser of Carmyllie said (at cols. 956 and 957 of Hansard) that he wished to have what is now Clause 31 if there were to be a war crimes prosecution. He also said that a judge in Scotland would exclude the evidence or refuse to allow the TV link for the purpose of identification. If such be the case, it would be most interesting for the Committee to know for what other purpose such evidence is to be used in these trials and whether the Government would accept an amendment excluding use under Clause 31 for the purposes of identification in war crimes trials. Perhaps my noble and learned friend the Lord Advocate may care to deal with those matters.

It is accepted that under Article XIX of the Act of Union, Scotland retains its substantive and procedural laws in criminal proceedings indigenous to Scotland which differ from those in England, subject to statutory imposition only for the better administration of justice in Scotland. But it is one of the admitted purposes of Clause 31 that it should be used in war crimes trials, and a statutory imposition to be used for such purpose is wholly unacceptable as an aid to conviction. That could assuredly not afford the better administration of justice in Scotland or anywhere else in the world. It is without the Constitution.

In the debate on 1st May 1990 the noble Lord, Lord Macaulay of Bragar, made an important contribution (cols. 940 to 943), as did the noble and learned Lord, Lord Morton of Shuna. The essence of their argument was put in short form by the noble and learned Lord, Lord Wilberforce, who limited his observations to what is now Clause 31 of this Bill, excluding Clause 29 which was included in the first part of government Amendment No. 292.

In conclusion, I wish to refer the Committee to two short passages in the speech of the noble and learned Lord, Lord Wilberforce (at cols. 947 and 948). In a sense, it says it all. The merits and substance of the argument are exactly the same today as they were when these words were said. The noble and learned Lord said: The Committee has to consider whether the changes proposed in Amendment No. 292 are appropriate to be made in the context of a war crimes trial. The Committee will have to decide that matter on the basis of two simple considerations. First, there is the argument about changing the rules after the offence has been committed… It has been admitted that those provisions are included in order to deal with war crimes. Many Members of the Committee may feel that it is not right to change the rules at this time. These criminals should he tried under the rules which existed at the time when they committed their offence. I say no more about it… The other point that requires a few more words is whether the changes are appropriate to be made in the context in which we are considering them".—[Official Report, 1/5/90; col. 948.]

He then referred to the notable contribution of the noble Lord, Lord Macaulay of Bragar, and concluded: We cannot do justice to an accused charged with a war crime committed 50 years ago in a remote country by permitting evidence to be given in distant countries, possibly under the control of a foreign official, possibly of a foreign judge, simply because it is relayed by way of television to the court".—[col. 949.]

The noble Lord, Lord Callaghan, who spoke later in the debate, found the argument "absolutely irrefutable". The noble Lord, Lord Hutchinson, as the experienced advocate that he is, described the situation as "totally grotesque". I beg to move.

4 p.m.

Lord Wilberforce

I should like briefly to support the amendment moved so well by the noble Lord. Lord Campbell of Alloway. His speech said it all. On 1st May 1990 this Chamber decided by a large majority that a clause similar to this one, allowing a television link, should not be applicable to war crimes trials.

It is perfectly well appreciated that in Scotland there may be need for a clause in the form of Clause 31—the new Section 32A. A similar clause has been introduced in England and the argument is: if England has it, why should not Scotland have it too? There is no dispute about that. The dispute is about whether it is appropriate that such a clause and such a power should be capable of being used in relation to war crimes trials.

Perhaps I may straightaway dispose of one argument. It is said that England has this clause unmodified; why should not Scotland have the same? With respect, that is a completely invalid argument. The clause was introduced into English law in 1988. That was before any question of war crimes trials had come up. The legislation was passed in 1991. It would not have been possible or appropriate to introduce into the English legislation a disapplication in the case of war crimes. But contrary to that, in Scotland this clause arises when war crimes trials are over the horizon or are actually being conducted. It is necessary to face squarely here and now the question of whether it is right that the provision should be capable of being applied in a war crimes context. This Chamber decided to the contrary in 1990. With great respect I submit to noble Lords that in all honesty and consistency the same course ought now to be taken.

I shall not go over the arguments on the merits. They are well in the minds of noble Lords. The Committee has been reminded of some of them by the noble Lord, Lord Campbell of Alloway. I shall summarise the basic points. The exemption suggested by the noble Lord, Lord Campbell of Alloway, rests on the essential and constitutional right of a person accused of a criminal charge to be confronted with his accusers. That is a basic right. He has a basic right to see his accusers face to face. Trial by television link is directly contrary to that basic right.

The logistic difficulties are absolutely enormous. Everyone has them in mind. They have been underlined time after time. For example, let us consider a case with possibly 40 witnesses scattered all over the world, some of whom, all of whom or one of whom it is proposed should be allowed to give evidence by television link. The logistic difficulties are insurmountable. One has only to consider the position of the defendant. Is he to be allowed to have his witnesses brought into the court by television link? How is he to do that in the face of the prosecution evidence?

The noble Lord, Lord Hutchinson of Lullington, raised another point in the previous debate. What about a witness whom one wishes to be recalled? That is a situation which often occurs. The witness may be in Estonia. The television set may have been removed. How will one get him back to the television and cross-examine again on further points that may arise during the trial?

All those points are extremely serious. I take it that the answer from the Government Bench is to leave the matter to the judge. One has to make an application to the judge and the judge will not allow evidence by television link to be given if he believes that justice cannot be done. However, that argument was completely destroyed by the noble and learned Lord, Lord Morton of Shuna, on the last occasion. I speak with the appropriate deference of an English lawyer, but the noble and learned Lord told us the Scottish position at first hand. In Scotland one does not have witness statements as one does in this country. In this country one has statements by witnesses on either side in writing, signed by the witness and exchanged between the parties. In Scotland the judge does not see such statements. He has the indictment and nothing else. Therefore, how can one ask a judge, who is without knowledge of the whole state of the evidence, to rule on the question whether there should be one television link or 40 television links? The argument of leaving it to the judge simply does not wash.

One has to face the fact that we are dealing with war crimes, with an attempt to convict someone on evidence that is 50 years old, relating to a thousand miles away and based on a number of witnesses whose memories are very poor. We have to take warnings from the examples that are before us. The Canadian case—the only war crimes case which has occurred in that country—has completely broken down in the face of the inadequacy of the evidence. The Demjanjuk case gives rise to greater disquiet every time one considers it. Australia is having the greatest difficulty in getting its trial on its feet. One has only to recall other civil cases—one concerning a noble Member of this House; and another pending in Scotland on which the judge has gone to the Baltic States in order to try to take evidence—to see how incredibly difficult and inconsistent all the evidence is. That is inherent in the facts of the case. One cannot get away from it. It means that it is totally impossible to try to apply this untried procedure to a case of war crimes.

It is an untried procedure introduced into English law and to be brought into operation gradually in suitable cases in respect of children's evidence, and possibly in fraud cases as recommended by the noble and learned Lord, Lord Roskill. It is untried procedure in criminal cases. It is completely untried in relation to war crimes trials and ought not to be applied to them.

I appeal to the Committee to retain the decision that was taken in May 1990 and to add the amendment to the clause. It would give the Scottish lawyers what they wish. It would give them the benefit of the clause for general purposes, for children, fraud and so on, but would make it clear that it is not to be applied in the case of war crimes. I beg to support the amendment.

4.15 p.m.

Lord Macaulay of Bragar

I rise to support the observations made by the noble Lord, Lord Campbell of Alloway, and the noble and learned Lord, Lord Wilberforce. It goes without saying that in so doing I have not changed my mind since 1990. At the outset perhaps I may say that on this side of the Chamber there is a free vote on the matter because it arises from consideration of the principle of prosecuting war crimes. If there is a free vote on that issue, it follows logically and in fairness to all that there should be a vote on subsidiary issues relating to possible prosecution.

If there is ever to be a trial of a war criminal, the likelihood is—I say it, I hope, without prejudicing anyone's position—that it will be in Scotland. One would hope that if the alleged criminal is in Scotland, he will be tried in Scotland and not shipped off to some other part of the country where the Scottish rules of procedure might not apply.

Fairness is the cornerstone of justice. If we erode that principle of justice we head for severe and serious trouble regarding not only the concept of justice, but the rights of the individual. As the noble and learned Lord, Lord Wilberforce, said, we depart, of necessity perhaps, from having the accused confronting his accusers. The accused cannot go into the country where he has been accused of having killed people 50 years ago because the likelihood is that he would not get out of that country again. But to be deprived of that right is limitation enough; we shall have to be content with second best evidence.

The noble Lord, Lord Campbell of Alloway, reminded us of the observations of the noble and learned Lord, Lord Fraser of Carmyllie, about identification. I echo the words of the noble Lord, Lord Campbell. If the evidence is not about identification of an alleged war criminal what on earth is it about? Are we to have the ludicrous position of a witness saying, "I was at the graveside. I saw the man with the rifle. He ordered his troops to shoot 50 people. They shot. He fired as well. All the people were killed. The grave was filled in". (That is the sad picture that has been depicted over the years of the way such things happen.) Are we to go through this charade: that at the point at which the prosecutor in any other case would say to the witness, "Can you identify the man who was in charge of that brigade? Can you identify the man who gave the order and indeed joined in shooting those poor people?" the whole proceedings come to a halt? If that is so, what is the use of the evidence? It is evidence in a vacuum.

If that was the Government's view in 1990, why is identification not made an exception in the very acceptable amendment of the noble and learned Lord, Lord Rodger? It is not only the accused who will be identified; as has been pointed out, there will be the witnesses in his support. What will happen—it is a dangerous matter—is that a witness will not be shown a possible accused. He may be shown a photograph of an accused which was taken 40 years ago. That will be shown on a television link to some old person miles away. It is dangerous enough in court to ask people to identify persons by ancient photographs. How much more dangerous will it be to present a photograph on a television screen and to ask the witness to look at a photograph of a man 40 or 50 years younger than he is now?

Difficulties abound in this field. We have the current case abroad of the gentleman who was named Ivan the Terrible. He was convicted not as a result of evidence given by television link but as a result of confrontation with the witnesses. They swore on oath, no doubt doing the best that they could, that the man in the court whom they could see face to face was the man known as Ivan the Terrible. It was a flesh to flesh, eyeball to eyeball positive identification.

What has since happened? According to the defence in the appeal now being run there may have been another man who resembled the accused and he is being said to be Ivan the Terrible. If that is true a gross injustice has been done to the accused. Therefore, we should be most careful not to introduce into the court procedure methods of obtaining evidence which run severe risks of causing unfairness to the accused. It does not matter whether the case involves a breach of the peace or a war crime we; return to the issue of fairness. That is why I support the noble Lord, Lord Campbell of Alloway, in his amendment.

In a recent civil case in Scotland the judge went with counsel to a foreign part to take evidence. The client was left in Edinburgh with a telephone link. Whether that was evidentially successful we do not know but at least it presents an alternative to the taking of evidence by TV links. I do not know the details of the way in which the evidence is taken or the rights of cross-examination and the law that will apply. We have covered that course a few times. However, I say that the amendment is in the interests of justice to the state and to any individual who comes before the courts in Scotland. Accordingly, I support it.

Baroness Phillips

As a layman perhaps some of the noble and learned Lords will clear up a matter for me. Why should the provision relate only to war crimes? If a murderer is brought before a court will he be able to say that certain evidence cannot be introduced because he is claiming exemption under a certain Act? The provision will soon be extended to almost every crime and an accused might say, "No, you cannot try me because I am this and I am that". Surely the issue is being complicated unnecessarily.

I cannot recall any war criminals being tried in Scotland. There may be a lot of them lurking about somewhere but the matter is purely hypothetical. The noble Lord is merely following up an issue about which he feels strongly. I am sure that with the usual eloquence and the ability to change the facts, in which members of the legal profession seem to be trained, learned Members of the Committee will convince me that a different principle is not introduced. However, I believe that it does bring in a different principle because if one can claim an exemption under this Bill by reference to a particular Act what is to stop anyone having several Acts included and also claiming exemption? Luckily Members of the Committee have a free vote. I remain completely unrepentant about war criminals and I am sorry to say that I shall vote against the amendment. However, I should like an explanation on that point of law.

Lord Mackay of Ardbrecknish

Perhaps I too as a layman may intervene in the debate which naturally has been dominated by some noble and learned Lords, as was Tuesday's Committee stage of the Bill. I wish to make a few points. First, I was not in this Chamber when the War Crimes Bill came here for the first time. If I had been I should have agreed with the majority and voted against the Bill, asking Members in another place to think again. They thought again and reached the same conclusion; that they wished the Bill to pass. In my view the proper course was to allow them, as Members of the elected Chamber, to have their way. They had been asked to think again on what in my view were sensible grounds. However, for other reasons they wished to have the Bill on the statute book and proceeded along those lines.

I have more than a slight suspicion that today we are rehearsing the debates on the War Crimes Bill and are not debating and discussing the merits or demerits of television links. It appears to me that if the Members of the Committee who have spoken are right about the demerits of television links those demerits are right for all criminal law and not for this particular law. As a result of some small experience that I had on such an issue some years ago I am convinced that many court procedures try to ignore modern technology, whether it is tape recordings or videos. We have moved forward a little on that but not as much as we should have done. However, we should not ignore the use of television links. They may be especially important in fraud trials and in some drug trials when international evidence is required.

I believe that rather than have a narrow argument about whether the War Crimes Act should be excluded from the provisions of the clause we should argue the general principle of whether it is right to have television links. We should not return to arguing the merits and demerits of the War Crimes Bill as, I am afraid to say, my noble friend Lord Campbell has done. The noble Lord, Lord Macaulay, said that it does not matter whether one is concerned with the breach of the peace or a war crime. If that is what he believes about using television links we should be invited to oppose the whole principle—

Lord Macaulay of Bragar

I made that observation in the context of the question of fairness.

Lord Mackay of Ardbrecknish

I appreciate that the issue was fairness but I should have thought it related to whether television links were fair. I believe that Amendment No. 31A, which we have accepted, includes sufficient qualification to enable the court to hear an argument if, say, the defence in a war crimes trial or any other trial believes that it would not be in the interests of justice or fair to the accused. A defence counsel would put that argument before the court and if he won it the judge would be duty bound not to use the television link procedure.

That qualification, which we have passed and which is wise, should enable the Committee to pass Clause 31 without adding the amendment that we are now invited to consider. If we do not do so and agree to Amendment No. 33 we shall be rehearsing an argument about the War Crimes Bill. We shall not be looking at the merits and demerits of television being used in court. We should not do so in this Chamber because we have already done so in debate and in returning the War Crimes Bill to another place—

Lord Campbell of Alloway

The noble Lord misunderstands the point. I accept unequivocally that war crimes trials take place. That is the law of the land. Accepting that they take place I am concerned only to ensure that the accused have a fair trial. I am not going over the old argument about whether war crimes trials should take place, and I do not challenge the Government's decision. All I am doing is to explore with Members of the Committee how we can have fair trials. I suggest that it is impossible to have a fair trial by television link because 50 years after the event there is no cross-examination of an aged witness before the jury. This is quite another question.

4.30 p.m.

Lord Mackay of Ardbrecknish

I take on board the point made by my noble friend. However, there could easily be other trials—fraud or drug trials —which involve elderly witnesses. In those cases exactly the same arguments could be paraded: that television may not be the best link. In a modern world I believe that television is probably quite adequate as long as the court and defence counsel are agreed and believe that it is fair to the accused to use that procedure.

Many of the arguments which I have heard, which I would have agreed with on the day when the War Crimes Bill originally came before your Lordships' House, apply whether the witness is in court or whether he is at the other end of a television link. Therefore, I believe that when the Division comes, I shall resist the temptation to replay the War Crimes Bill and shall support the Government.

Earl Russell

The noble Lord asked us a very fair question which deserves an answer. He asked what is the connection between war crimes and television links. As I see it, it is in one word: namely, identification. Both matters involve difficulties as regards identification.

The noble Baroness, Lady Phillips, asked what is distinctive about war crimes: it is that by definition they must have taken place not less than 47 years ago. Therefore, they have inherent difficulties.

I agree with the noble Lord, Lord Campbell of Alloway. We have accepted the verdict of another place. However, it is true also that it is usually more difficult to identify a person on a film than it is in the flesh. There are many distinctive movements and appearances which one does not pick up nearly as easily on film as one does when one sees the person in the flesh. Therefore, here we have not one difficulty as regards identification but two difficulties. It is the argument in favour of the amendment that the one difficulty compounds the other and that although we may accept one difficulty, accepting both of them together is a work of supererogation.

I add only one point. There is no such thing as a crime so terrible that an innocent person should be convicted of it.

Lady Saltoun of Abernethy

As we have already heard from the noble Lord, Lord Campbell of Alloway, Clause 31 is word for word the same as subsection (2) of the clause which was introduced in Committee into the Law Reform (Miscellaneous Provisions) (Scotland) Bill two years ago. A similar amendment to that clause was won in a Division on that occasion. At a later stage of the Bill's passage through Parliament the clause, as amended, was dropped.

It certainly appears that the Government may have considered that, having been amended, the clause could not serve their purpose although there is opposition to it from, among others, the Law Society. The Law Society feels that it does not fit in with the adversarial system and it is uncertain as to the ability of juries to make an assessment of the demeanour of a witness when evidence is taken by television link. It feels that miscarriages of justice may result. Those miscarriages of justice would not only be in war crimes trials but would be in other criminal trials.

The noble Lords, Lord Macaulay of Bragar and Lord Carmichael of Kelvingrove, have given notice of their intention to oppose the Question That Clause 31 stand part of the Bill. The noble Lord, Lord Macaulay, shakes his head but I know that the Law Society in Scotland is not happy with that clause.

If suspects in war crimes trials are to be disadvantaged by the use of a form of evidence which many do not consider good enough, particularly on questions of identification, for other suspected criminals, there must be a greater danger of wrongful convictions taking place. The more heinous the crime, the more important it is—at least, that is how it seems to me—that everything possible should be done to ensure that a suspect gets a fair trial. The crimes in these cases are particularly heinous; to be wrongly convicted of being a war criminal would be a rather different matter from being wrongly convicted of, perhaps, shoplifting or a breach of the peace. Therefore, we should be more rather than less strict over the rules of evidence. The face of British justice has been looking rather tarnished lately, as several cases of wrongful conviction have come to light, most recently the case of Judith Ward. Quite apart from the morality of it, is it really wise to risk further wrongful convictions eroding still further our reputation, and this time in Scotland?

Yet the Government would appear to be determined to secure a conviction, even a wrongful conviction, at all costs. The argument—I do not know whether the noble and learned Lord the Lord Advocate will use it—that we are trying to thwart the will of the elected Chamber is surely flawed in the wake of the dissolution of the former Soviet Union. Where it is possible to travel freely to and from former eastern bloc countries, it must be possible even if more expensive and inconvenient, to arrange for witnesses to travel to Scotland to give evidence. And I remind the Committee that in February the Court of Session sat in Vilnius in order to take evidence from Lithuanian nationals.

The noble and learned Lord, Lord Wilberforce, has already pointed out that evidence, taken in a case still in progress in Scotland, from witnesses who were under duress was rescinded when the witnesses were examined face to face and were no longer under pressure. I wonder whether that would have happened had the second examination been by television link.

In the event that this amendment is carried, I believe that the Government are contemplating taking war crimes suspects resident in Scotland to England to be tried where video evidence is accepted. I really must advise them not to do so. It may not be technically in contravention of Article 19 of the Treaty of Union, but it seems to me that to drag possibly innocent residents of Scotland to England to be tried, when there is no other reason for doing so, in order to be reasonably sure of a conviction, which could not have been obtained under Scottish law, contravenes the spirit of the treaty, and that is how it will be seen. In the present political climate in Scotland, I believe that to do so would be unwise.

Finally, I must add that it is not helpful to solving the constitutional problems in Scotland for the Government to put a heavy Whip on a Committee stage of a Bill which is about matters which are not contentious in party political terms so that sensible amendments to a Scottish Bill are defeated by hordes of Peers tramping through the government lobby without, in many cases, the foggiest idea of what they are voting about.

Lord Hylton

I suggest that the Government have a duty to explain to the Committee what safeguards there will he and how they will work out in practice both in ordinary cases and a fortiori in war crimes cases.

The matter of cross-questioning has already been mentioned this afternoon and I hope that the Government will have a lot to say about that. I notice that the clause mentions only the giving of evidence and says nothing about cross-questioning.

I would mention also the question of definition of TV pictures and whether or not they are adequate. There is also the matter of sound quality to consider. Who decides whether those factors are acceptable? We must remember that it may be a matter of transmitting in both directions; that is, from the foreign country to Scotland and from Scotland to the foreign country.

Finally, I would mention the matter of interpreters and interpretations for witnesses who may have an imperfect command and understanding of the English language. What provision will there be for interpretation and how will it he controlled?

Lord Grimond

I rise to support the amendment. I need do so only briefly due to the excellent speech of the noble Lord, Lord Campbell of Alloway. He laid out arguments which have often been laid before us previously, but which nevertheless are relevant at this time.

The amendment applies only to war crimes. It may be that we are departing too far from the old principle of confrontation in court and the examination of the demeanour of those who give evidence. But that is not the question before us at this time. The Committee may feel that the matter was decided during the course of the war crimes debate and the eventual passing of the Act, because it was decided that this type of evidence should not be available in war crimes trials. It may be felt therefore that it is anomalous to reintroduce it in this curious form today.

Confrontation is extremely important in all trials but particularly in matters of identification in trials where the offences were committed over 50 years ago and in circumstances where it is difficult to find out exactly what happened. That seems to me to be the one overwhelming argument for objecting to television in those cases.

I should like to emphasise what was said by the noble Lord, Lord Macaulay of Bragar, regarding a recent trial for libel in Scotland. In that case the judge went to a Baltic state to take evidence because he required to see and hear for himself the demeanour and language—no doubt translated—of those who were giving evidence. A case of libel is far less important than would be a war crimes case. But in that situation it was thought possible and desirable for a judge to go to the Baltic state to take evidence. I hope that the Committee will not depart from the principle laid down in more serious cases that the evidence should not be available through television alone.

Lord Gridley

Perhaps I may make one or two comments on what I have just heard. I was in total agreement with the speaker from the Cross Benches. Whatever we do in this connection we must be extremely careful to ensure that the evidence we obtain in connection with bringing criminal prosecutions is sufficient. The Government have a bounden duty to see that it is satisfactory and safeguarded in every way.

I form that judgment for the simple reason that during the last war I was in a country that was taken over by the secret police of the Japanese, whose rule lasted for four-and-a-half years. During that time I learnt the difference between the kind of rule exhibited there and the type of rule which exists in the House of Lords and our Parliament in this country generally.

One was taken in for questioning—interrogation —by the people who operated the secret police. They adopted the attitude that they were absolutely determined to obtain an admission of one's guilt. That was the situation under which that country laboured for all those years. When the person being interrogated did not give the answers required, he was tortured until either he passed out or confessed. There is one gentleman in this House who suffered in that way.

In this country a person is taken in for questioning and an investigation is held. If the evidence is sufficient to make us believe that the man has committed a crime, then he is charged and eventually found guilty. But in that other place one was forced to plead guilty under the most frightful torture; one made an admission to get them to stop.

We returned to that country after that situation had operated for a number of years and found many people in opposition. The people who had made false admissions when they were not guilty were opposing those who were trying to run the country at the time. We are saying that we will bring people from those areas to give evidence after all those years and bearing in mind the circumstances under which that evidence was obtained. Unless satisfactory evidence is produced by Her Majesty's Government, we must hear a great deal more of what the Government intend to do to ensure that justice is done, bearing in mind the horrible circumstances that existed at that time. The danger is that justice may not be done when we try to administer justice ourselves after all these years.

4.45 p.m.

Lord Jauncey of Tullichettle

Perhaps I may make one practical point. It is widely recognised that dock identification is unsatisfactory. By "dock indentification" I mean the identification by a witness of an accused person in the dock for the first time since the crime was committed. In those circumstances, in Scotland and probably in England, it is the practice, where possible, to hold identification parades at some time between the commission of the offence and the trial of the accused.

War crimes trials are special in two respects. First, it would seem almost certain that there will have been no opportunity for an identification parade to take place to enable the witness to identify the accused prior to seeing the person on television. Secondly, and almost more important, the immense passage of time which is likely to have elapsed since the witness last saw the accused means that enormous changes may have taken place in the appearance of the accused. It would be difficult enough for a witness in the witness box to identify the accused; it would be doubly difficult if he was asked to identify the person via the television.

Those of us who have presided in the High Court in Glasgow will have seen witnesses brought in to identify an accused for the first time. They gaze round the court and their eye alights upon two burly policeman and one small man sitting in the dock. "That's him", they say. Occasionally they may identify a member of the public or a juror. There are considerable difficulties involved. The passage of time and the lack of opportunity for an identification parade makes war crimes different from the normal run of the mill trial.

The Earl of Selkirk

I make only two observations on this matter. First, Scotland has long been—for at least 300 years—extremely sensitive on the question of evidence. That is laid down clearly by our institutes. I need mention only one example: even if one judge is deeply impressed with one witness, that is not enough; there must be two witnesses on all occasions. That has become fundamentally the rule that applies.

I do not know what the opinion of the Committee is in regard to television. I wonder whether anyone has listened to a set and found that they cannot hear a word or whether they have found it difficult to hear arguments advanced on television. It may be that if one goes to a strange island or a different part of the world the television may not be as good as ours. What are we to do then? The television people should show that they can transmit evidence with absolute clarity and without the slightest dubiety as to what it stands for. This is not the stage for that to happen. There is another stage to be taken. I am very glad to have listened to what the noble and learned Lord, Lord Wilberforce, and my noble friend said today. We should not begin this process until we are better prepared. I support the amendment.

Lord Houghton of Sowerby

It is with great diffidence that I enter this debate. I took a very prominent part in the proceedings of this House in connection with the main War Crimes Bill. I remind the Committee that we tried to resist the main mischief not only once, but twice. We did not accept the rethinking of the Government and another place after the first round. We objected to their verdict the second time. The main mischief is really the original War Crimes Bill. We did our best in this House to stop it. It should be remembered that we tried to stop the main mischief over the whole field of war crimes legislation as it is now enacted in the War Crimes Act.

We lost the main battle. The present matter is incidental to the mischief that we were unable to stop. The noble Lord, Lord Campbell of Alloway, reminded us that we stopped the 1990 Bill as it applied to English trials of war crimes. Now the Government are resisting the application to Scotland of the exclusion that we decided for England.

Lord Campbell of Alloway

I am grateful to the noble Lord for giving way. Perhaps I may put the record straight. I am sure that the noble Lord will accept that it was a Scottish Bill and not an English one. I say that just to keep the record straight. It was the Law Reform (Miscellaneous Provisions) (Scotland) Bill 1990 and not an English Bill.

Lord Houghton of Sowerby

I am much obliged to the noble Lord. It is an extremely complicated matter as between English and Scottish law. The point is that underlying what the Government are now doing is their desire to pursue an individual case in Scotland. They do not feel that the way is clear at present to use television evidence which they have sought and possibly in some form already obtained. Therefore, behind this particular case lies the politics of the matter.

The War Crimes Act is designed not for fair trials, but for convictions. One must bear in mind the background to this matter. I shall not enlarge on it. There is no room here to talk about fair trials. I do not believe that there ever will be a fair trial in the circumstances of the mischief enacted not only here but in other countries as well. However, no conviction has yet been achieved in comparable circumstances to those concerning our War Crimes Act. Your Lordships' Committee should not be swayed by the Government's desire to facilitate a prosecution which at the present moment they feel they cannot make. Rather than give up the prosecution voluntarily they are prepared to go through the tedious process involving time and trouble in bringing a trial. No doubt they will be relieved at the end of the day for a jury to acquit the accused.

One must consider what is happening in Canada at the present time where a jury has acquitted an accused of all charges. But the case has not been finished with. The way in which accused persons are being held under the threat of ultimate trial and destruction is terrifying. Australia has got nowhere and neither have we. We are not going to get anywhere. Let us be candid about it: it is the forces of Jewish politics and the abhorrence of the world at the crimes which were committed which stand in the way of looking at these matters dispassionately and in the interests of what we believe to be justice. We would never permit a similar situation to arise for any other set of crimes other than those which are involved in the present war crimes legislation.

It is a tragic affair from beginning to end. It is time that we faced the truth of what cannot be done. My conclusion is that the members of this Committee should honour their previous decision and decide that they are not prepared to facilitate the use of this kind of evidence in a war crimes trial. We should not give the Government any encouragement to embark on a trial of this nature in Scotland.

The Earl of Perth

What worries me about the debate is that, quite apart from the legal side, I see questions arising on the constitutional side. That is a very serious matter. I have heard several Members of the Committee refer to what is happening as being a challenge to the Act of Union. That becomes much more serious when I learn that there is to be a two-line Whip. Therefore it is almost certain that it will be the English vote which will overrule—if it does overrule, and there is a good chance that it will not—the Act of Union and force us to do something which we in our wisdom believe to be wrong.

The Law Society of Scotland has come out quite firmly against the proposal. What is the good of all our judgments and the opinion of Scotland if they can be defeated by the manoeuvre of having a two-line Whip and getting the various English Peers to take part? I hope that this issue will be considered very seriously. Added to the weight of all the arguments which have been heard from the legal and humanitarian points of view and many others, I beg the Government to resist the temptation and to call off, as was suggested, the two-line Whip and remember that this matter is of real importance to Scotland.

Lord Harris of Greenwich

I would not worry myself so much about the English vote, if it can be so described, if the English vote had been sitting in this Chamber while this debate was taking place. The reality of the matter is that when the Division Bells ring scores of Peers who have not heard this debate will come into the Chamber and vote. They will no doubt secure for the Government the majority that they want. I have been a Member of this House now for approaching 20 years. I cannot recall any occasion concerning an issue of high legal significance of the kind we are debating today when the Opposition parties have said that they have no Whip on the issue, but the Government have. It seems to me that of all the issues on which there should not be a party vote it is the matter which we are debating today.

I do not propose to go over all our debates on the War Crimes Act. My view then was that it was a profound mistake; and, as has been made quite clear, the issue that we are debating today is quite different. We are talking about whether the novel procedure of television links should be introduced in cases that will turn primarily on evidence of identification, and whether the new procedure should be applied in cases where defendants will be defending themselves against acts that they are alleged to have committed 50 years ago. I repeat that it seems a profound error that this very important issue is being treated in this way by the Government Whips. I very much hope that even at this stage we shall be told that the Government will not insist on a party vote on this matter.

5 p.m.

Lord Thomas of Gwydir

I had not intended to participate in this debate; but, in the light of some of the remarks that have been made, I should like to say just a few words. First, I congratulate my noble friend Lord Campbell of Alloway and the noble and learned Lord, Lord Wilberforce, on the admirable way in which they have opened this debate and supported the amendment. I am sure that we all agree that the War Crimes Act will almost inevitably prove unjust in cases of identification. I have no doubt that after a passage of 50 years, it will be almost impossible justly to identify a culprit in a court today. For that reason, I believe that this House very properly objected to the War Crimes Act. Nevertheless, despite the fact that we held that view, we have been overborne by the decision of the Commons, and it is a decision that we accept. Therefore, the position is that the War Crimes Act obtains today and we have constitutionally accepted it.

The question is this: is it right that in this Bill for Scotland there should be television-link evidence? I think that the general view will be yes. The next question is: is it right that television-link evidence should be used in a war crimes trial? I think that there is no doubt that television-link evidence in a war crimes trial would be both unfair to the accused and would not be in the interests of justice. Therefore, in my view, the amendment that was moved by my noble and learned friend meets the whole of our worry. I have no doubt that, if it was a question of identification in a war crimes trial, those defending would go before the court and suggest that such evidence could not be in the interests of justice, and that it would be unfair to the accused.

The protection that would be available in a war crimes case is already written into the Bill. I remind the Committee that under Clause 31 the court must also be satisfied as to the arrangements for the giving of evidence by a witness. For that reason, I believe that there is already sufficient protection, and I shall support the Government.

Lord Rodger of Earlsferry

We have had an interesting discussion on the amendment that was tabled by the noble Lord, Lord Campbell of Alloway. In replying to the debate, I begin by repeating that, as the Committee will be aware, provision along the lines provided in Clause 31 already exists in England and Wales under the Criminal Justice Act 1988. That provision was brought into force for England and Wales in November last year in respect of cases of murder, manslaughter, or serious and complex fraud. I must remind the Committee that at no stage in, for example, the passage of the Criminal Justice Bill, which became the Criminal Justice Act 1991, was any attempt made either by this House or anywhere else to disapply the provisions of that Act to war crimes trials that might take place in England.

I do not understand that most Members of the Committee can have any basic objection to the principles behind Clause 31. It is surely right that we should take account of and use all the technological developments that occur in order to ensure that the courts in Scotland and England have available to them the best methods of obtaining evidence. This is simply one of a number of provisions in this Bill and in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 that are designed to bring the advantages of new technology to the courts in Scotland.

I repeat the important point that Clause 31 is of general application to solemn proceedings. The effect of Amendment No. 33 would be to create a special evidential regime for war crimes trials. If the amendment were accepted, in those proceedings—and only in those proceedings—evidence by live television link from abroad would not be possible. That would be in contrast to what happens in other proceedings, such as in murder cases, if Clause 31 were to be brought into effect.

We believe that it is wrong in principle to create a different evidential regime for proceedings under the War Crimes Act. In that respect, I fully endorse what the noble Baroness, Lady Phillips, has said. If it is the case for war crimes, why not for all sorts of other crimes also? It is important to remember how limited the scope of the War Crimes Act is. That Act established jurisdiction over certain persons who would not otherwise have been susceptible to the jurisdiction of United Kingdom courts in respect of murder, culpable homicide or manslaughter, contrary to the laws and customs of war. I stress that the important purpose of that Act was to establish the courts' jurisdiction. As several members of the Committee have said, that measure was enacted in the face of your Lordships' opposition; but, as has been accepted by your Lordships, it was enacted in accordance with established constitutional procedures and it is right that we should respect and not in any way seek to frustrate the law that is now on the statute book.

I do not wish to open up a discussion of the general merits of the War Crimes Act or of war crimes trials in general. I simply advise the Committee that this matter should be considered as one of principle. What does principle suggest about the trial of any individual who has been made subject to the jurisdiction of our courts? In my submission, principle surely tells us that that trial should be conducted according to the same rules of evidence and procedure as would apply in any other case of, say, murder, which was tried at the same time in the Scottish courts. If Clause 31 is enacted without the amendment of my noble friend Lord Campbell, then that is what will happen. In any other case of murder—however old the case may be—if appropriate, live television evidence could be used. As the clause stands, in a war crimes trial the same provision would apply. That is what even-handed justice requires.

If, on the other hand, the Committee were to pass the amendment that very basic principle would cease to apply. I see that the noble Lord, Lord Grimond, wishes to intervene. I gladly give way.

Lord Grimond

I am much obliged. I am certainly not a Scottish lawyer. I am a wholly out-of-date English lawyer. However, can the noble and learned Lord tell me for what crimes a person can be prosecuted after 50 years, except war crimes? Surely war crimes are in an entirely different category from other crimes. Therefore, to say that they must all be dealt with in the same way is irrelevant. Can the noble and learned Lord tell me what crimes there are for which one can be prosecuted when the offence took place 47 or 50 years ago?

Lord Rodger of Earlsferry

Whatever the position may be in England and Wales, the position in Scotland is that there is no proscription applying to crime at all. A person could be prosecuted for any crime after 50 years. That is the position in strict law in Scotland. It applies, for example, to an ordinary murder as it would apply to a war crime. Therefore, on that matter, there is no difference.

In looking at the amendment, the underlying assumption seems to be that it would somehow or other assure greater justice for the accused. But would it? Members of the Committee should notice that the clause as it stands—and I make this point in particular because the noble and learned Lord, Lord Wilberforce, mentioned it—would give the accused in a war crimes trial the right to ask for the evidence of defence witnesses to he taken by live television link. One can easily envisage circumstances where an accused might make such an application if, for example, one of the witnesses whom he wished to call to testify to his innocence of the crime was unfit and unable to come to court and give evidence. If the amendment is passed, then, at a stroke, the accused in a war crimes trial would lose that right—a right which would be available if he was being charged with and tried for any murder in a court next door. Is that just and fair to the accused?

The noble Lord, Lord Hylton, asked what safeguards would be available. Members of the Committee should look very carefully at the safeguards in Clause 31. In the first place, no application in a war crimes trial for the use of the power under this clause would ever be made except after consideration by the Lord Advocate, whoever he might be. I can tell Members of the Committee that whether that Lord Advocate was myself, or any of my successors of whatever party, the traditions of the office would absolutely ensure that his decision on the matter would be taken in the light of the interests of justice. Moreover, among those interests, one of the foremost would be the right of the accused to a fair trial. I repudiate completely any suggestion from any quarter that in the Bill the Government are somehow or other showing a determination that convictions will be achieved in an unjust way or that a prosecution would be taken unjustly. That seems to me to be totally inconsistent with the traditions of the office of Lord Advocate.

Plainly, in considering whether any application should be made to use the provision, the Lord Advocate, or whoever it may be, would scrutinise what kind of evidence the witness would be expected to give and whether it could be properly taken by live television link. Members of the Committee have given examples of the kinds of evidence which it is thought could not properly be taken by live television link. But, of course, there is a range of types of evidence. At one extreme there could be rather formal, technical evidence; for example, evidence from an archivist regarding what certain records contained. That archivist may not be an old man. Indeed, it may be a young lady who could give the evidence perfectly well on a television link. Would it be necessary for her to come all the way to Scotland to give that evidence?

That is one end of the range. At the other extreme there is the kind of evidence about which we have heard; namely, that which turns entirely on an issue of identification. Members of the Committee have pointed out repeatedly the difficulties which could arise in such a case. Is it really thought that the Lord Advocate of the day would be blind to those self-same problems? Is it thought that he would not take the matter into account when deciding whether to make any such application? It is really outrageous to think that that would be so. Indeed, there could be a whole range of cases at the middle stage where the Lord Advocate might have to decide very carefully whether an application should be made. The whole point is that the application would be considered in the light of what the Lord Advocate thought would be proper, having regard to the interests of justice.

But let us suppose—for suppose we must—that the Lord Advocate goes wrong. He may get the balance wrong. What then? At that point he will go into court. Members of the Committee must look at what the provisions, and the provisions as amended by the Committee this afternoon, provide. It will be seen that the way in which the subsection is framed is such that an application under subsection (2) will be granted only if "the judge is satisfied". Therefore, the judge has to be satisfied that the evidence is necessary, that the granting of the application is in the interests of justice and that it would be fair to the accused.

The noble and learned Lord, Lord Wilberforce, said that the noble and learned Lord, Lord Morton, had killed the matter stone dead by saying that we did not have witness statements in Scotland. If witness statements were necessary in order to ensure that the trial was conducted fairly, then, in the absence of such statements, the Crown would not succeed. The Crown has to satisfy the judge. If the absence of such statements meant that the judge could not be satisfied, then he would not grant the application. That is what the subsection says. The judge has to be satisfied.

I submit that the noble Lord, Lord Thomas, was correct when he said that the clause, especially as amended by this Chamber, contains all the safeguards which are necessary to ensure that a fair trial is available. I find far-fetched the idea that somehow or other judges in Scotland would not be alive to, and be acutely aware of, all the kinds of problems which have been mentioned today.

Let us further suppose that the application is granted but that, during the course of the trial for some reason or other when the provision is applied, something goes disastrously wrong and one finds that the effect of the evidence has been so to disrupt and cast doubt on the proceedings that the accused could not get a fair trial. Do Members of the Committee think that the Lord Advocate or the Advocate Depute prosecuting the case would be blind to the situation? He would surely have to take that into account. In such a situation, and in accordance with the kind of duty with which he is familiar, he might well conclude that it was not possible for a fair trial and desert the diet; that is, abandon the proceedings.

However, supposing that that was not done but that, nonetheless, it was apparent to the accused's advisers (the defence counsel) that the whole thing had become unfair. In such circumstances, an application could be made to the court to have the trial stopped on the grounds that a fair trial was not possible on the grounds of oppression. That remedy is open to the defence in any such trial. Those are the safeguards which are built into the provision in the statute and which exist under the general law which applies in criminal trials.

I do not apologise for this long account of these safeguards because in considering this matter the Committee has to take account of all of them. If the Committee does so it will conclude that this is a safe system.

If, on the other hand, the Committee accepts the amendment that will send a signal that we have, for other prosecutions in Scotland, a second-rate system which does not adequately ensure the interests of justice and the rights of the accused. The slur would not be confined to Scotland. I repeat that this matter is already covered by statutory provision in England and the Committee would be casting doubt on the provision which applies to murder, manslaughter and complex and serious fraud in England. There is no doubt that such a link could be used in a war crimes trial in England.

Again, if the Committee were to pass this amendment it would be casting doubt on the arrangements which could be applied in an appropriate case of a war crimes trial in England. I believe that it would be wholly wrong for the Committee to promote such doubts.

I therefore suggest that the amendment of the noble Lord, Lord Campbell, is bad because it would set up a special and different system for trying persons accused of war crimes. That is bad in principle. The principle suggests that the procedures should be the same as in any other case. Those procedures are designed to protect the rights of the accused. The clause is good as it stands and in the light of what I have said I ask my noble friend to seek leave to withdraw the amendment.

Lord Campbell of Alloway

I should like to thank all noble Lords who have spoken. The Committee will have formed a view on the merits of the amendment and certainly it is not my intention to reopen arguments in order to convince, but surely we do not have to entertain the type of emotive defence of the role of the Lord Advocate to which we have just now been subjected. In any event, if I may say so, I found some of the observations of my noble and learned friend the Lord Advocate wholly unconvincing.

Perhaps one of the reasons why I found them unconvincing stems from what another Lord Advocate said whom I shall quote: I hope that one thing is clear. Whatever the noble Lord, Lord Campbell of Alloway, may have said, I have never sought to disguise the fact—I repeated it in my opening remarks —that I should like to have this provision if there is to be a war crimes prosecution".—[Official Report, 1/5/90; Col. 957.] That was in 1990. That is why the Government require this provision. Why do they require it? They require it as an aid to conviction not as an aid to acquittal.

Having, I hope, dealt with that I should like to deal with something else. It is suggested by my noble and learned friend the Lord Advocate in some of his remarks to the Committee that "Oh, it's all the same. A war crimes trial is no different from any other trial.

We just have exactly the same system and what a marvellous system it is." By and large it is a marvellous system. But does the Committee remember the contribution from the noble and learned Lord, Lord Jauncey of Tullichettle, who explained that war crimes "are so very different"? The noble and learned Lord explained why. I shall not bore the Committee with the details. It is all very well for the Lord Advocate to ignore, so to speak, the opinion of a noble and learned Lord with experience of this order or, indeed, the contributions of the noble and learned Lord, Lord Wilberforce.

There are one or two scattered observations that I wish to make. The Committee will be relieved to hear that there are only a few. The first is important. There is no challenge, no hint of confrontation whatever with the Government on the War Crimes Act. The only question that arises is one of procedure to ensure a fair trial for the accused in a war crimes trial. The second matter is that if the Committee is minded to adhere to the opinion which Members of the Committee have already expressed on an exact replica of this situation in 1990 on a free vote, there is no confrontation with another place; and there was no confrontation on this matter with another place in 1990. The Committee is fully entitled to express its opinion and another place on this occasion, for all the Committee knows, might well accept it.

That is a matter for the other place to decide. Therefore, to speak in terms of any hint of confrontation is, frankly, wholly misconceived.

The next brief point, which was taken by several noble and learned Lords, is that it is utterly essential that in a war crimes trial, having regard to 50 years delay and having regard to the age of the witnesses, none of whom can be much younger than me—that is, 75—it is essential that the evidence from old people with fading recollections—and I charge the recollection of any Member of the Committee as to what precisely happened in the last war; I cannot totally remember—

Lord Campbell of Croy

I certainly can.

Lord Campbell of Alloway

My noble friend said that he can. I can remember broad outlines, but it would be difficult to swear to precise details. It is a matter for your Lordships. In any event, it is essential that with old witnesses their evidence should be laid before the jury and cross-examined according to our traditional procedures. That is a fundamental requirement of justice in a stale evidence case.

If what it comes to is that these men—and it may be so, I cannot say that I know it is so, but I suspect that it is so —cannot be brought to trial without this television link evidence as an aid to conviction or as an aid to raise the prima facie case, then the Committee may well think it better that they should not be tried at all.

Finally, I express my gratitude to Members of the Committee, in particular to the noble Lord, Lord Harris of Greenwich, for what he said about this place having to deal with this matter under a strong two-line Whip, a matter which concerns the procedure of criminal law in Scotland. I also thank most sincerely the noble Earl, Lord Perth, for his words which put the Members of the Committee who were able to hear it on clear guard about the constitutional position as between this country and Scotland on imposing laws upon Scotland which are not, in the opinion of the Committee, for the better administration of justice. I commend the amendment.

5.30 p.m.

On Question, Whether the said amendment (No. 33) shall be agreed to?

Their Lordships divided: Contents, 121; Not-Contents, 80.

Division No. 1
CONTENTS
Ackner, L.	Jenkins of Hillhead, L.
Airedale, L.	Jenkins of Putney, L.
Alexander of Tunis, E.	Judd, L.
Ardwick, L.	Kimball, L.
Auckland, L.	Kintore, E.
Aylestone, L.	Lawrence, L.
Belhaven and Stenton, L.	Lindsey and Abingdon, E.
Birk, B.	Listowel, E.
Boyd-Carpenter, L.	Lloyd of Hampstead, L.
Braybrooke, L.	Longford, E.
Bridge of Harwich, L.	Lovell-Davis, L.
Brightman, L.	Lyell, L.
Brookes, L.	Lytton, E.
Browne-Wilkinson, L.	Macaulay of Bragar, L.
Cadman, L.	Mancroft, L.
Campbell of Alloway, L. [Teller.]	Mayhew, L.
	Merrivale, L.
Carmichael of Kelvingrove, L.	Mersey, V.
Carter, L.	Meston, L.
Carver, L.	Molloy, L.
Chichester, Bp.	Monson, L.
Clanwilliam, E.	Monteagle of Brandon, L.
Cledwyn of Penrhos, L.	Morris of Castle Morris, L
Clinton-Davis, L.	Mottistone, L.
Coleraine, L.	Mowbray and Stourton, L.
Crickhowell, L.	Mustill, L.
Cross, V.	Napier and Ettrick, L.
Cullen of Ashbourne, L.	Penrhyn, L.
Dacre of Glanton, L.	Perth, E.
Darcy (de Knayth), B.	Portland, E.
Dean of Beswick, L.	Prys-Davies, L.
Donoughue, L.	Rea, L.
Dormand of Easington, L.	Richard, L.
Dormer, L.	Ritchie of Dundee, L.
Dundonald, E.	Robson of Kiddington, B.
Elgin and Kincardine, E.	Rochester, L.
Falkland, V.	Russell, E.
Foley, L.	St. John of Bletso, L.
Foot, L.	Saint Oswald, L.
Fraser of Kilmorack, L.	Saltoun of Abernethy, Ly.
Gallacher, L.	Seear, B.
Gisborough, L.	Selkirk, E.
Graham of Edmonton, L.	Shannon, E.
Greene of Harrow Weald, L.	Shaughnessy, L.
Gridley, L.	Sherfield, L.
Grimond, L.	Slim, V.
Halsbury, E.	Stedman, B.
Hanworth, V.	Stoddart of Swindon, L.
Harris of Greenwich, L.	Strathcarron, L.
Harrowby, E.	Sudeley, L.
Hilton of Eggardon, B.	Swinfen, L.
Hollis of Heigham, B.	Terrington, L.
Houghton of Sowerby, L.	Thomson of Monifieth, L.
Howie of Troon, L.	Tordoff, L.
Hughes, L.	Underhill, L.
Hunt, L.	Vaux of Harrowden, L.
Hylton, L.	Wharton, B.
Hylton-Foster, B.	White, B.
Jauncey of Tullichettle, L.	Wigoder, L.
Jeffreys, L.	Wilberforce, L. [Teller.]
Jeger, B.	Williams of Elvel, L.

NOT-CONTENTS
Aberdare, L.	Lucas, L.
Aldington, L.	McColl of Dulwich, L.
Arran, E.	Mackay of Ardbrecknish, L.
Astor, V.	Mackay of Clashfern, L.
Bauer, L.	Masham of Ilton, B.
Beloff, L.	Mountevans, L.
Bessborough, E.	Murton of Lindisfarne, L.
Biddulph, L.	Nelson, E.
Blake, L.	Northbourne, L.
Blatch, B.	Oppenheim-Barnes, B.
Boardman, L.	Orkney, E.
Brabazon of Tara, L.	Park of Monmouth, B.
Butterworth, L.	Pearson of Rannoch, L.
Campbell of Croy, L.	Phillips, B.
Carnegy of Lour, B.	Platt of Writtle, B.
Carnock, L.	Prentice, L.
Chalker, B.	Renton, L.
Cocks of Hartcliffe, L.	Rodger, L.
Colnbrook, L.	Rodney, L.
Colwyn, L.	Romney, E.
Constantine of Stanmore, L.	St. Davids, V.
Cranborne, V.	Sandford, L.
Cumberlege, B.	Skelmersdale, L.
Denton of Wakefield, B.	Skidelsky, L.
Digby, L.	Soulsby of Swaffham Prior, L
Downshire, M.	Stanley of Alderley, L.
Eccles of Moulton, B.	Strabolgi, L.
Eden of Winton, L.	Strange, B.
Ellenborough, L.	Strathclyde, L.
Elliot of Harwood, B.	Strathmore and Kinghorne, E [Teller.]
Flather, B.
Fraser of Carmyllie, L.	Thomas of Gwydir, L.
Goschen, V.	Trumpington, B.
Harmsworth, L.	Ullswater, V.
Henley, L.	Waddington, L.
Hesketh, L. [Teller.]	Wade of Chorlton, L.
Hooper, B.	Wakeham, L.
Howe, E.	Westbury, L.
Joseph, L.	Wise, L.
Lane of Horsell, L.	Wynford, L.
Long, V.

Resolved in the affirmative, and amendment agreed to accordingly.

5.40 p.m.

Clause 31, as amended, agreed to.

Clause 32 [Evidence of children on commission]:

Lord Macaulay of Bragar moved Amendment No. 34: Page 23, line 48, after ("may") insert ("on cause shown as to why it is inappropriate or impracticable for the child to give evidence in court").

The noble Lord said: This is a short amendment relating to obtaining evidence of children on commission. It proposes to insert after the word "may" in line 48 on page 23 a qualification that the court may grant permission for the evidence to be taken, on cause shown as to why it is inappropriate or impracticable for the child to give evidence in court". Again, the same principles apply that if possible a witness should be in court. The amendment was put down so that such a motion should not be given by the court too readily without a proper examination of the reasons why there should be a departure from procedure. In one view at least, it may encourage what I may call "lazy" prosecutions. I beg to move.

Lord Rodger of Earlsferry

I fully understand the principle which lies behind the noble Lord's amendment. However, the point to which he adverts is governed by the provisions of Clause 34. They show that in these applications certain provisions of Section 56 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 apply. These lay down the situation in which such applications can be made. They can be granted on cause shown to the court such as having regard to the possible effect on the child, if the child were required to give evidence in default of the application or if the judge were satisfied that it is likely that the child would be better able to give evidence if the application were granted.

I shall not go through the various criteria but they limit carefully the circumstances in which the applications can be made. In the light of that explanation, I hope that the noble Lord will withdraw his amendment.

Lord Macaulay of Bragar

I thank the noble and learned Lord for that explanation, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

Lord Macaulay of Bragar moved Amendment No. 35: Page 24, line 1, after ("commissioner") insert ("who shall be legally qualified").

The noble Lord said: This amendment is in the same section relating to the qualifications of the person who is to take the evidence from the child. The effect of the amendment is to ensure that the person appointed as commissioner should be someone with legal qualifications. It is important that the proceedings should be properly controlled by a person with experience of court procedure. I beg to move.

Lord Rodger of Earlsferry

Again, the idea behind the amendment seems to me to be proper. It is that the commissioner who is appointed should be legally qualified. I cannot think of any occasion on which a court has ever appointed a commissioner who was not legally qualified. I therefore anticipate that the court would always in practice appoint a commissioner who was legally qualified, because the commission would be part of the trial proceedings over which the judge would normally preside. It may be that with that assurance the noble Lord will feel able to withdraw his amendment. If not, I am prepared to take it away and consider it.

Lord Macaulay of Bragar

I entirely agree with what the noble and learned Lord said about it being unlikely that an unqualified commissioner would ever be appointed but it is really a protective qualification. If it does no good, it does no harm. If the noble and learned Lord is prepared to give the amendment further consideration, then I shall beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Macaulay of Bragar moved Amendment No. 36: Page 24, line 11 after ("accused") insert ("nor his representative").

The noble Lord said: It may be convenient to deal with Amendments Nos. 36 and 37 together. Amendment No. 37 originally stood in the name of the noble and learned Lords, Lord Cameron of Lochbroom and Lord Morton of Shuna. The latter hoped to be here and apologises to the Committee for his absence, but he is engaged on judicial business. I agreed that at least I would present the amendment in his name to the Committee for its consideration.

Amendment No. 36 deals with the question of who should be present when the child gives evidence. In Clause 32(3) it is a qualification that neither the accused nor his representative should, be present in the room where such proceedings are taking place but shall be entitled by such means as seem suitable to the commissioner to watch and hear the proceedings". The noble and learned Lord, Lord Morton of Shuna, asked me to present Amendment No. 37 to the Committee as a probing amendment. He asks why it is necessary that the accused or his representative should be able to watch the child as well as to hear the proceedings. He raises the question, for example, about what happens if the accused is blind. That may not be a good example, but I put the matter before the Committee in order to ascertain the Government's reasoning behind the words "watch and". I beg to move Amendment No. 36.

Lord Meston

Before the noble and learned Lord replies, I wonder whether he can inform me what opportunity under this procedure an accused person would have for his case to be put to the child witness. If the amendment is accepted and neither he nor his representative is present, it will presumably depend upon the commissioner having an idea of what is or might be the accused's defence and putting the appropriate questions to the child witness. That seems to me to be a rather unsatisfactory position.

In all these situations, the interests of the child witness must be balanced against the interests of the accused. These are always difficult and sensitive cases; but I wonder what is envisaged here procedurally and what opportunity the accused would have for his case to be put, and for appropriate questions to be put to the child.

Lord Mackay of Ardbrecknish

When I read Clauses 32 and 33 on child witnesses, I was a little perturbed over exactly the same point as has just been made by the noble Lord, Lord Meston. I became even more worried when I saw the amendment in the name of the noble Lord, Lord Macaulay, proposing to take the representative of the accused out of the room in which the evidence from the child was being recorded on video.

My anxiety has been almost brought to a head by certain matters in the Scottish press and elsewhere concerning the situation in Orkney, and more recently in Ayr. The evidence there seems to turn on child witnesses. I am a little anxious that if the amendment were to remove the representative of the accused from the room, it is based on the assumption that child witnesses are totally trustworthy and reliable. I do not personally believe that children are any more reliable as witnesses than adults. Indeed, from past experience which I had as a school teacher, I am not sure that they are even necessarily as reliable as adults.

I appreciate that children must be protected from difficult and upsetting situations; but there must be a balance between that protection and subjecting their evidence to the same critical analysis as the evidence of any other witness in a case. Like the noble Lord, Lord Meston, I should like to hear my noble and learned friend the Lord Advocate reassure me that the interests of the accused are not put at risk under this clause, and especially under the amendment put forward by the noble Lord, Lord Macaulay.

Lord Rodger of Earlsferry

I do not think I could have put the case against the amendment more clearly than the noble Lords, Lord Meston and Lord Mackay of Ardbrecknish, have done. The principle behind the procedure in Clause 32 is that evidence should be taken from the child but that it should be taken under the appropriate legal safeguards. As has been said, while the interests of the child are important and it is important to reduce strain on children, one can never lose sight of the fact that one is dealing here with a criminal trial where the rights of the accused are important.

What is sought is to strike a balance in the clause by stating that the accused himself will not be present and that will reduce strain on the child. However, there was no intention that his representative would not be present. If his representative were not present, I, like the noble Lord, Lord Meston, should find it difficult to see how appropriate questions could be put in placing the accused's case to the child witness. Therefore it seems to me important that the accused's representative should be present. For that reason I invite the noble Lord to withdraw the amendment.

As regards the words "watch and" in line 19 on page 24 of the Bill, the position there is that it was thought appropriate that the arrangements should be made so that the accused, like other persons in the court, should be able in accordance with the usual provisions to see the witness. The demeanour of the witness is often a matter of great importance. It is part of the general proceedings of the trial. It would be wrong if the accused were deprived of the possibility of seeing the witness. A blind accused, of course, could never do that, but here we are dealing with the ordinary run of the mill kind of situation. It is envisaged, for example, that where screens are being used they should be such that they enable one-way vision. Technology does not seem to have advanced that far but by the use, for example, of closed-circuit television the accused could both see and hear the witness. I ask the noble Lord again to withdraw the amendment.

Lord Macaulay of Bragar

In Amendment No. 36 I was thinking of possible intimidation or some kind of confrontation that might affect a child's evidence. However, I am persuaded by the eloquent arguments presented from all parts of the Committee that the amendment is bad. Accordingly I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 agreed to.

Clause 33 [Concealment by screen of accused from child giving evidence]:

[Amendment No. 37 not moved.]

Clause 33 agreed to.

Clauses 34 and 35 agreed to.

Schedule 3 agreed to.

Clause 36 agreed to.

Lord Macaulay of Bragar moved Amendment No. 38: After Clause 36, insert the following new clause: ("Additional matters for court to take into account .—(1) Section 76 of the 1975 Act (Preliminary diet) shall he amended as follows. (2) In subsection (1) after "(c)" there shall he inserted the words "that there are documents the truth of the contents of which ought in his view to be admitted, or that there are any other matters which in his view ought to be agreed, the court may make such order as is mentioned in paragraph (a) above. (3) The existing subsection 1(c) shall become 1(d) and in that subsection after "(a) or (b)" shall be inserted the words or (c)".").

The noble Lord said: This amendment seeks to amend Section 76 of the 1975 Criminal Procedure (Scotland) Act as regards preliminary diets. The object behind the amendment is to see whether we can knock some evidential sense into protracted trials such as fraud trials where a vast amount of documents are produced. There has been recent experience in more than one court of circumstances where the documents are not admitted by the defence, presumably on the instructions of the accused. That rather ties the hands of his representative.

The end result in one trial—I understand this was the case although I was not present—was that a considerable number of representatives from various commercial firms were paraded through the court merely to speak to the document itself or, if the document was a copy, to explain where the original was. Such a procedure is not fair to the public or to the jury who have to listen to such a parade of evidence. On any commonsense view such matters could and should have been agreed beforehand.

At the preliminary diet stage before the trial has commenced the amendment suggests, in relation to the judge, the following words, that there are documents the truth of the contents of which ought in his view to be admitted, or that there are any other matters which in his view ought to be agreed, the court may make such order as is mentioned in paragraph (a) above".

The proposed new subsection (3) is merely consequential.

This is a matter of some concern particularly where cases are funded by public funds and legal aid. These matters should be streamlined in the public interest. The accused always has the right to silence and he does not need to admit to anything. Amendment No. 38 is a suggestion only but the Government may consider setting up a committee to consider how this matter can be dealt with. There is also the question of whether photocopies should nowadays be accepted as a substitute for the original. Many other issues could be regulated in the way I suggest. If they were so regulated the tedium would be removed from fraud and other trials and a more streamlined system would result in major cases than we have at present.

Sections 7 to 10 of the Criminal Justice Act 1987 clearly set out a procedure for England. It would be worthwhile, I believe, for the Government to consider those sections and see whether there is scope for adapting the principle to the Scottish system. If that were done, by the time a case came to trial the issues would be focused and the appearance of many side issues before the court would be avoided. I have tabled this amendment in a constructive attempt to assist the better administration of justice. I am sure the Government will accept that. The amendment also stands in the names of the noble and learned Lords, Lord Morton of Shuna and Lord Cameron of Lochbroom. I beg to move.

Lord Fraser of Carmyllie

The intention behind the amendment is laudable. I am grateful to the noble Lord for raising the matter in the absence of both the noble and learned Lords, Lord Morton and Lord Cameron of Lochbroom. Any measure which can be taken to improve the operation of the criminal justice system and avoid unnecessary delays and inconvenience to those involved is to be welcomed. The noble Lord has given a good example of a trial where this provision would have saved the time and money not only of the taxpayer but also of jurors and witnesses brought from all over the country to attend such a trial. A great deal of time, expense and worry would have been saved if the agreement the noble Lord spoke of had been secured in advance of the trial.

My only concern about the amendment is this. During my time as Lord Advocate I had understood that it was the practice for such matters to be brought before the court at a preliminary diet relying on the provisions which exist already in Section 76(1)(c) of the 1975 Act. I say with no disrespect to the noble Lord, Lord Macaulay, that I rather wish that either the noble and learned Lord, Lord Cameron, or the noble and learned Lord, Lord Morton, had been present today because I should like to know whether the judiciary in Scotland are now choosing to define Section 76(1)(c) in a different way or whether they consider it does not allow for some examination of the issue of admission of documents. I invite the noble Lord to withdraw the amendment but I should like to seek the views of both of the noble and learned Lords who put their names to the amendment. If it is their view that Section 76(1)(c) is too restrictive I would be prepared to look at the matter favourably.

Of course there are wider issues which have to be examined to see whether we can improve the methods whereby uncontentious evidence can be agreed before a trial starts. The noble Lord will be aware that my noble and learned friend the Lord Advocate is already pursuing various schemes and initiatives, such as giving police officers' statements to representatives of the accused. However, I readily accept the noble Lord's view that even such initiatives may not be sufficient and we may have to look at some of the approaches which have been followed on this side of the Border.

6 p.m.

Lord Macaulay of Bragar

I am grateful for that information. As I understand it, that last experiment is confined to summary procedure.

One of the problems with the operation of Section 76(1) (c) is that what happens is dependent on the party making the application to the court and the court has no authority to bring the parties before the court. The principle behind the amendment is that the court will be given the power to bring the parties in a trial before the court; for example, where there are a great many documents or matters which the court considers could reasonably be agreed.

Perhaps I may say in passing that it might be a constructive exercise to consider the way in which some trials have proceeded where documents have not been agreed and the cross-examination which took place by representatives in the course of the trial. That might be an instructive exercise, although one would not necessarily find anything wrong. That might be reflected in another place in respect of remuneration, but we do not need to go into that aspect at this time.

In the light of the Minister's undertaking I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 agreed to.

Clause 38 [Date of commencement of sentence]:

Lord Campbell of Alloway moved Amendment No.39: Page 25, line 44, leave out ("(other than an offence in respect of which imprisonment for life is mandatory)").

Lord Fraser of Carmyllie

At an earlier stage I indicated to the noble and learned Lord, Lord Morton of Shuna, that I would accept the amendment.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 39A: Page 26, line 1, leave out ("paragraphs-") and insert ("words— or spent in custody awaiting extradition to the United Kingdom;").

The noble and learned Lord said: Broadly speaking, the intention behind the amendment is that when imposing a sentence of imprisonment or detention the court should either make allowance for time spent in custody on remand or awaiting extradition to the United Kingdom or should give reasons for not doing so.

There is a defect, which the amendment seeks to correct, in that the first mention of the extradited prisoner is in the new paragraph (c) which Clause 38 seeks to insert into Sections 218 and 431 of the 1975 Act. It is therefore merely implied that the courts are to have regard to time spent in custody awaiting extradition. Something more than an implication is required and the amendment provides that something by including a reference to such time in the existing words which are to become paragraph (a) of either section. I beg to move.

On Question, amendment agreed to.

Clause 38, as amended, agreed to.

Clause 39 [Prosecutor's consent to or application for setting aside of conviction]:

Lord Macaulay of Bragar moved Amendment No. 40: Page 27, line 25, leave out ("either in court or in chambers").

The noble Lord said: The amendment relates to the section dealing with the situation where the prosecutor consents to an application for the setting aside of a conviction. The objective behind the amendment is to ensure that everything takes place in public. Presumably a person who appeals has already been convicted. It is therefore important that if the conviction took place in public the disposal of the appeal should also take place in public. That is the purpose of the amendment. I beg to move.

Lord Fraser of Carmyllie

The effect of the amendment would be to remove the requirement that the proceedings under the clause could be heard in a location other than the court or chambers. We consider that undesirable. The procedure under Clause 39 is part of the appeal process and as such should be subject to the normal rule that judicial proceedings should be conducted within the precincts of the court. The clause as presented to the Committee in that respect mirrors the existing provision in Section 453 of the 1975 Act, and I am not aware of any difficulties which have been encountered in that regard in the operation of the section.

The provisions in Clause 39 are intended to provide an accelerated method of bringing an appeal to a speedy conclusion, thereby minimising the expenditure and time involved for all concerned. The procedure is dependent on the Crown deciding, either on its own initiative or at an early stage of appeal, that there are no grounds for sustaining a conviction. For that process to work the reasons should be clear, as Lord Justice General Cooper stated in 1947 in O'Brien v. Adair: where some fatal flaw in the proceedings has been discovered, or where new facts have come to the Crown's knowledge". In considering those proceedings the judge will require to have all the relevant papers which have been transmitted to the High Court by the inferior court. He may well require to hear parties and to have ready access to his clerk or to the justiciary office.

Lord Macaulay of Bragar

I am interested in the explanation given. However, if the case is heard in chambers how do the public become aware of the fatal flaw and the reason for the person who has been convicted walking free? I do not know whether there is an answer to that point or whether I have got hold of the wrong end of the stick.

Lord Fraser of Carmyllie

It may be that if the matter is considered in chambers the public would not be admitted. I have indicated that the procedure is part of the appeal process and intended to accelerate matters. We do not think that it should be done anywhere; it should be done either in a court or in chambers within the confines of a court building. That would seem appropriate, notwithstanding the accelerated and less formal approach that has been adopted.

Lord Macaulay of Bragar

I appreciate the need for acceleration of the formalities. However, that explanation does not meet the case. For example, a person who has been assaulted and thinks that the person who has been convicted of that assault is in prison may walk down the high street and see the person who assaulted him walking down the road. He will ask, "Why is he walking about? He should be in prison". If there is no public forum in which the release can be certified then justice is not seen to be done.

However, I listened with interest to what the noble and learned Lord said and I shall have a close look at his words in the report of the debate. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 agreed to.

Lord Macaulay of Bragar moved Amendment No. 41: After Clause 39, insert the following new clause: ("Obligation of prosecutor to disclose information .—(1) Section 83 of the 1975 Act shall be amended as follows. (2) At the end there shall be inserted the following subsection— (2) The prosecutor shall be obliged to disclose to the accused all information which he has in relation to the allegations made in the indictment." ").

The noble Lord said: The purpose of the amendment is to ensure that the prosecutor in a case should be obliged to disclose to the accused all information which he has in relation to the allegations made against the accused person

The reason for the amendment is that there is some confusion as to the duty of the Crown in relation to supplying material to accused persons. There have been considerable problems in cases in England, as Members of the Committee will be aware, which have led to notorious appeals. In those cases the defence had not been given relevant material —reports as well as statements—which would have assisted the defence and perhaps obtained an acquittal in the first place.

At least one judge has said that there is no obligation on the Crown in Scotland to tell the defence anything and that it is up to the Crown to decide what is appropriate. I understand that the noble and learned Lord, Lord Fraser of Carmyllie, expressed the view that he would always assist the defence and I am sure that that is quite true.

This amendment has been tabled on the basis that it is time to stop playing hide-and-seek in the prosecution system between the Crown and defence on relevant issues. It should not just be a matter for the Crown to obtain a statement or a report relevant to the inquiry, look at it, stick it in a file and then proceed to trial on what it considers is important. The defence should be entitled to see anything that has been recovered in relation to the prosecution, subject of course to cases of national security or the safety of the witnesses. But such matters can easily be dealt with.

In Scotland there is a theory of confidentiality of witnesses' statements which occurs when a person makes a statement to the procurator fiscal. So far as I am aware it does not have any legal basis and is illogical. If someone makes a statement to a policeman at the scene of, say, a murder, he does not enjoy any privilege at that time. There is no confidentiality and he may be taken before the court to give his evidence. As a person who is of value in a case has to give evidence at some time, it seems artificial to hide behind at least the theory of confidentiality. One wonders how many witnesses being precognosced by procurators fiscal are told that their statements are confidential. If so, I wonder how much confusion that causes. If a witness is told that, he may very well think he can say anything he likes about the case, on the basis that he will not be called to give that evidence in court.

I recall very clearly a case from central Scotland where the second witness in the case was a man who had reported an embezzlement within his firm. He had given a statement and specifically said at the bottom of that statement: "I am giving this information in strict confidence on the basis that it is not to be founded upon". He found himself as number two in the Crown List in the High Court to give evidence against the accused.

There is also police involvement. I recall a case in which a policeman went into court to give evidence and in the course of that evidence said that the accused person had made a very damaging admission. Defence counsel asked, "Were you not seen by a solicitor for the defence?" He said, "Yes". The defence counsel said, "You didn't tell the solicitor for the defence that, did you?" and the policeman, who was a very senior officer, said, "He never asked". So the policeman's view was that if the solicitor does not ask the correct question, he will never get the answer.

That information was in the Crown precognition and should have been made available to the defence. We are supposed to be moving into an atmosphere of openness. This is an area which should be open, to ensure fair trial and that no injustice will occur—so far as it is possible to avoid injustice within the courts when dealing with human testimony.

It may be time for the Crown Office to take a close look at all the principles behind this matter and—again, like the other amendment—consider whether this point might have a beneficial effect on the administration of justice in the long run. It will give people a feeling of security and a sense that they know everything about the case before it starts, so that they do not have to go fishing after a conviction. I beg to move.

Lord Rodger of Earlsferry

The issue raised by the noble Lord's amendment is undoubtedly most important. It is one which must be in everybody's mind today following the Judith Ward judgment this morning. The matter of disclosure is one to which all concerned with the prosecution must attach the greatest importance.

As the noble Lord, Lord Macaulay, said, the position in Scotland at present is that there is no legal duty to disclose information to the defence. The purpose of this amendment is to seek to alter the position in law. However, what matters is not the legal position but what the Crown sees as its duty in practice, whatever the law may or may not provide.

On that matter I can explain the position quite clearly. The overriding principle is that the Crown must always act in the interests of justice. As part of that general approach, all members of the Procurator Fiscal Service are reminded that they must disclose to the defence any information which supports the defence case even though it may be damaging to the Crown case. They are also instructed that they should provide assistance to the defence if it is necessary to enable witnesses for the defence to be traced. The overall aim should be to try to ensure that the true facts of any case are laid before the judge or jury.

I believe that that approach is well understood by procurators fiscal and Crown counsel. As the noble Lord, Lord Macaulay, knows, it is very common in our courts for the prosecution to lead, as part of its case, the evidence of witnesses who contradict that case to a greater or less extent. That is entirely proper since in that way the Crown is laying out, so far as it can, a true basis on which the jury is to decide.

Such then is the present position. For the future, as noble Lords may be aware, my right honourable friend the Secretary of State for Scotland has undertaken to consider carefully the recommendations of the Royal Commission into the English system, chaired by the noble Lord, Lord Runciman. I should have thought that the commission may well have recommendations to make on this matter and on the related and separate but equally important matter of police disclosure of information to the Crown authorities. For my part, I shall pay close attention to what is said by the Royal Commission and consider whether any further changes require to be made. Indeed, I can tell the noble Lord, Lord Macaulay, that the example of handing over police statements —admittedly, only in the case of summary proceedings —is an indication that these matters are under consideration.

The noble Lord indicated that the doctrine of confidentiality has been widely applied in Scotland. That again is something at which I intend to look.

Lord Macaulay of Bragar

I am obliged for that full and informative answer. I am sure that the noble and learned Lord's comments will have been noted with interest by defence counsel and solicitors for the future. There is certainly among some people a slight feeling that on occasions they do not get full co-operation. I accept that in 99 times out of 100, if approached, the Crown will be co-operative. I hope that it will always remain that way.

In the light of that explanation, which will be noted in the appropriate quarters, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.15 p.m.

Lord Macaulay of Bragar moved Amendment No. 42: After Clause 39, insert the following new clause: ("Right of prosecutor to appeal in solemn cases .—(1) Section 228 of the 1975 Act shall be amended as follows. (2) After subsection (1) there shall be inserted the following subsection— (1A) The prosecutor in such proceedings may so appeal on a point of law—

1. (i) against an acquittal in such proceedings; or
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2. (ii) against a sentence passed in such proceedings".").

The noble Lord said: Again this is an amendment of a probing nature to see whether anything will happen in relation to the right of a prosecutor to appeal in solemn cases. It would mean the insertion of a new clause in the 1975 Act, that in such proceedings the prosecutor could appeal on a point of law: (i) against an acquittal in such proceedings; or (ii) against a sentence passed in such proceedings".

I understand that at the moment the prosecutor has no such right. As the Committee will be aware, from time to time there are occasions when the public feel that their hands are tied by the judicial system because what is perceived to be an inadequate sentence has been passed for a serious crime. It would be invidious to detail particular instances but I have no difficulty in recalling cases which have upset either the public or relatives of the victim, cases in which a very serious crime was not met with what was considered a reasonable sentence. I accept, however, that the public do not hear the whole case and do not see the reports placed before the judge. The reason for this amendment is to give the prosecutor such a right, which would be exercised very sparingly.

It is important to remember—I am sure that we are all aware of it—that the victim has no representation in court and the family of the deceased has no representation in court. They are dependent on what comes out at the end of the legal machine, so to speak. I can think of cases of reckless driving causing death —bad culpable homicide. What should plainly in the public view have been murder becomes culpable homicide and, on the face of it, a trivial sentence is passed on the assailant. That makes the public feel that justice is not being done and that in serious cases the interest of the offender may supersede the interest of the victim or the victim's family. Are any steps being taken at present to consider introducing to the prosecutor the right of appeal in solemn cases?

The Committee will appreciate that it is a probing amendment. I look forward to hearing the reply from the noble and learned Lord. I beg to move.

Lord Rodger of Earlsferry

The amendment probes on two fronts. The first relates to the possibility of the Crown appealing on a point of law against an acquittal in solemn proceedings. Such a change in the law introduces a completely new concept which is quite contrary to what has always been regarded as a fundamental principle of our law: that once someone has been acquitted by a jury he is forever free from the risk of any further prosecution.

Limited departure from that principle has been made in connection with appeals. However, the amendment is a far-reaching proposal. I do not know of any proposal at present in the minds of those considering such matters to introduce an appeal against an acquittal in solemn proceedings.

If one turns to the matter of sentence, the effect of the amendment would be to give a right of appeal on a point of law against an inadequate sentence. However, as I understood the noble Lord, he raised a rather more general point relating to the matter of appeal against sentence generally. The noble Lord may recall that there was indeed a commitment in the Conservative manifesto in Scotland that a Crown appeal against lenient sentences would be considered. That is indeed the position. It will be considered. In due course a proposal on that line may he brought before Parliament.

Lord Macaulay of Bragar

I am grateful to the noble and learned Lord. I did not appreciate that an appeal concerning law against acquittal would harm the jury system. I was not so keen on that proposal but rather prefer the second which was meant to be disjunctive; the word "or" appears. The amendment may be badly framed. However, I am obliged to the noble and learned Lord for the explanation. I look forward to further developments. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Macaulay of Bragar moved Amendment No. 43: After Clause 39, insert the following new clause: ("Majority verdict in solemn proceedings .—Immediately preceding section 154 of the 1975 Act there shall be inserted the following section— "Majority verdict in solemn proceedings. 153A.—(1) No person shall be convicted of any offence unless 10 members of the jury vote in favour of a guilty verdict. (2) The verdict of the jury shall be publicly recorded and the number of jurors voting in any verdict shall be publicly announced." ").

The noble Lord said: This is another amendment which may be regarded as rather radical. The Committee know that there are three verdicts in Scottish criminal courts: guilty, not guilty and not proven. The "not proven" verdict is unique to the law of Scotland. Whether or not it is a good verdict in the public interest is another matter. It has been used on many occasions.

In Scotland one has a jury of 15. When one talks of the presumption of innocence, if seven people out of 15 are not prepared to convict that must surely constitute reasonable doubt as to the person's guilt. Yet in Scotland over the years people could be hanged or receive life sentences on the single majority vote out of 15 jurors. It is sad sometimes that people go down after a verdict of eight votes to seven. There is a sense of injustice and that there has been a reasonable doubt. In reality the majority always leaks out. We have this great theory that no one knows the majority. But there have been many occasions when for one reason or another the number leaks out. I do not suggest impropriety on anyone's part. Indeed, I seem to recall one case not so long ago in which the Appeal Court had knowledge of the majority—but I speak off the top of my head on that issue. It is a silly procedure unrelated to modern times.

The amendment proposes that, no person shall be convicted of any offence unless 10 members of the jury"—

out of the 15— vote in favour of a guilty verdict". That still leaves a majority of 10 to five. That is a ratio of two to one. It seems eminently more reasonable than convicting a person on a single majority vote out of 15.

The second suggestion is that the verdict of the jury should be publicly recorded and that the number of jurors voting in any verdict shall be publicly announced. That does not seem to harm the system.

Perhaps I may refer to the "not proven" verdict. As the Committee gather, I am not terribly keen on it. At one time it used to be defined by judges. There was a classic definition in 1964 in the case of M'Nicol by the late Lord Justice General Clyde. However, in recent times when judges have tried to explain the not proven verdict, they have got into an awful fangle. So far as I am aware the judges are now warned not to try to define that verdict. If the judge cannot define it, how is the jury supposed to know what it means? It is a fudge of a verdict. It is time we moved into the 20th century and modernised the jury system by bringing in a proper system that reflects guilt beyond reasonable doubt. The present system does not do so. I beg to move.

Lord Fraser of Carmyllie

As with the previous amendment, this amendment takes us to a fundamental principle of Scots law; namely, that a jury shall reach its verdict by a majority decision and that the details of that decision should remain confidential to the members of the jury.

That principle has stood for centuries and I would wish to have very strong arguments advanced and extensive periods of consultation with all those involved in the criminal justice system before beginning to address a possible overturning of that vital tenet of Scots law. We are not in a position to know what occurs in the jury room. That is another basic principle of our law. I am therefore not in a position to say whether a move to a majority of 10 would alter the way in which courts would have to operate in the time required for juries to reach their decision, or whether there would be any substantial alteration.

As the noble Lord says, around the courts one tends to hear rumours of what the majority was on any day. But I am sure that I do not need to remind the noble Lord of the provisions of the Contempt of Court Act 1981 in that respect. While there may be majorities of eight to seven, the system appears to have worked well. If any change were to be contemplated I believe that there should be a study of the matter. That might mean having some adjustment to the 1981 Act so that reviews, analyses and research with regard to juries could be undertaken.

Lord Harris of Greenwich

The noble and learned Lord raised a point which interests me. Does he say that research into the proceedings in the jury room is inconsistent with existing legislation or would it be possible?

Lord Fraser of Carmyllie

The noble Lord may remember the express provision in the Contempt of Court Act 1981 which ensures that no one can interview jurors to find out exactly how they voted. As I understand it, on this side of the Border, one Attorney-General in the past has allowed some limited access to jurors, but I believe that such access related to questions such as did the jury find the room big enough, warm enough, or airy enough, were there sufficient toilets, and such matters. But I believe that on both sides of the Border research on how the jury reached its verdict and the majority would be considered beyond the bounds of the Act.

Baroness Carnegy of Lour

Before the noble Lord replies, perhaps I may ask from where the amendment originates. Is it the noble Lord's own amendment? He raises a fundamental amendment at a late stage in the Committee stage. Does he raise it without any particular basis or consultation? It may be appropriate to raise it, but how can such a fundamental amendment be raised in this way? For my own information perhaps he can explain that, because I am interested.

6.30 p.m.

Lord Macaulay of Bragar

I do not have any source material for research; but the amendment comes from my experience and conversations with practitioners. There is a good deal of dissatisfaction that a person should be convicted by one vote out of 15. This seemed an appropriate forum in which to raise the matter and presumably it is the only opportunity that we shall have for a long time to amend the law of Scotland. I appreciate that it makes fundamental inroads into the present system.

The noble and learned Lord said that the system had worked well. That raises the question: worked well for whom? If one were at the receiving end of an eight to seven majority, I do not think that one would consider that the system was working well or that it was fair. In order to achieve a better balance of fairness in the system it is time that we looked at the issue. I agree with the noble and learned Lord that perhaps research could be conducted and that he should come back in due course so that we can debate whether the idea is good or bad. The answer to the noble Baroness, Lady Carnegy, is that the provision came from what I care to pass as a brain and is based on my experience in the courts and on conversations with practitioners. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 40, as amended, agreed to.

Clause 41 [Rules and orders]:

Lord Fraser of Carmyllie moved Amendment No. 43A: Page 28, line 36, after ("section") insert ("6(3),").

The noble and learned Lord said: The amendment corrects an omission. It is intended that an order on the provisions in Clause 6, like other orders of that kind, should be subject to affirmative resolution. A reference to subsection (3) of Clause 6 therefore requires to be inserted in Clause 41. I beg to move.

On Question, amendment agreed to.

Clause 41, as amended, agreed to.

Clauses 42 and 43 agreed to.

Schedule 4 [Minor and Consequential Amendments]:

Lord Macaulay of Bragar moved Amendment No. 44: Page 34, line 20, leave out ("four") and insert ("six").

The noble Lord said: The amendment was tabled by the noble and learned Lords, Lord Cameron of Lochbroom and Lord Morton of Shuna. I have undertaken to raise it before the Committee. The object of the exercise is to give more time to receive reports. Apparently some members of the judiciary find that reports are not submitted within the four-week period required in the legislation. It is believed that six weeks would be a more practical period of time. I beg to move.

Lord Fraser of Carmyllie

There have been problems and for that reason it is proposed to extend the period from three to four weeks. I hope that extension is sufficient. I understand that a period of six weeks would provide even greater flexibility but that would permit too much slack to enter into the system. There is a risk that the normal period for adjournments might rise to new levels.

While I appreciate that preparation for reports is undertaken against a tight deadline and that additional time would be welcomed, I have yet to be convinced that in all cases the system would benefit from such a large extension of time. The intention must be to ensure that having convicted an offender of a crime, the appropriate sentence should be passed down as soon as possible thereafter. The system has coped more or less with the three week requirement, and an extension to four weeks will resolve some of the anomalies without introducing too much slack into the system. I should prefer to go no further at this stage.

Lord Macaulay of Bragar

I am sure that the noble and learned Lords who tabled the amendment will note the Minister's comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 44A: Page 37, line 13, after ("3") insert ("of the Schedule").

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

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 44B: Page 37, line 36, at end insert: ("( ) In section 12 (photographing and measuring of prisoners)—

1. (a) for the words "The Secretary of State may make regulations as to" there shall be substituted the words "Rules under section 39 of this Act may provide for"; and
2. (b) the words "such regulations" shall cease to have effect.").

The noble and learned Lord said: I shall speak also to Amendment No. 48. The amendments would correct an anomaly in the existing provisions of the Prisons (Scotland) Act 1989. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 44C: Page 37, line 47, after ("large)") insert:

1. ("(a) after the word "institution", where it first occurs, there shall be inserted the words "or committed to a prison or remand centre";
2. (b) after the word "sentence" there shall be inserted the words "or committal";
3. (c) for the words "or young offenders institution" there shall be substituted the words ", young offenders institution or remand centre"; and
4. (d)").

The noble and learned Lord said: The amendment corrects another minor defect in the existing provisions of the Prisons (Scotland) Act 1989. I beg to move.

On Question, amendment agreed to.

Schedule 4, as amended, agreed to.

Schedule 5 [Transitional Provisions and Savings]:

Lord Fraser of Carmyllie moved Amendment No. 44D: Page 38, line 28, leave out ("that") and insert ("the 1975").

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

On Question, amendment agreed to.

[Amendments Nos. 45 to 47 not moved.]

Schedule 5, as amended, agreed to.

Schedule 6 [Repeals and Revocations]:

Lord Fraser of Carmyllie moved Amendment No. 48: Page 41, line 28, column 3, at beginning insert: ("In section 12, the words "such regulations".")

On Question, amendment agreed to.

Schedule 6, as amended, agreed to.

Clause 44 agreed to.

House resumed: Bill reported with amendments.