Lords Sitting of 23 May 1994

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Lincoln.

War Widows: Pensions
Lord Mackie of Benshie Lord Mackie of Benshie asked Her Majesty's Government:
Whether they will increase the pensions of war widows by 30 per cent, as a suitable and proper gesture to celebrate the 50th anniversary of D-Day.
The Parliamentary Under-Secretary of State, Department of Social Security (Viscount Astor): My
Lords, the Government have always recognised the special sacrifices made by war widows. In April this year we fully increased war widows pensions. The majority of World War Two war widows now receive a total tax free pension of almost £140 a week.
Lord Mackie of Benshie: My Lords, I thank the Minister for that reply. There are about 47,000 war widows at present and they are decreasing in number. Does he not believe that those widows deserve a further increase to mark that occasion?
Viscount Astor: My Lords, war widows quite rightly receive a very generous pension. It is sometimes double that of other widows. It is important to remember also that many of our war widows have been widowed as a result of other conflicts. It is only 40 years since the end of the Korean War; 10 years since the Falklands War; and two years since the Gulf War. Our forces risk their lives today defending our interests in Ulster, Bosnia, Iraq and elsewhere. We must not forget that others are widows of men who have died as a result of disablement due to peacetime service; for example, those in training or in aircraft accidents.
Baroness Nicol: My Lords, as we remember D-Day, would it not be an appropriate time at which to broaden the scope of war widows' pensions to include those widows of ex-servicemen who were disabled and ill for a long time? Does not the Minister believe that that would be an appropriate way in which to record our appreciation of the work that those people have done over the years? I understand that many such widows are now in their 70s or 80s and are finding it very difficult to manage because under the present criteria they do not qualify for a war widow's pension.
Viscount Astor: My Lords, prolonged nursing care is recognised by the award of a temporary allowance for the first 26 weeks of widowhood where either a constant attendance allowance or an unemployability supplement was being paid to the late husband. The rate of temporary allowance payable for widows is approximately equal to the rate of war disablement pension plus
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allowances paid to the late husband. That ensures that there is no immediate large drop in the family's income when the husband dies.
It is important to remember that a war widow's pension is awarded where death is due or hastened by service. The wife of a war pensioner does not automatically become a war widow on the death of her husband. There must be a causal connection between death and service to justify the very preferential rates at which war widows' pensions are paid.
Lord Hailsham of Saint Marylebone: My Lords, while I suppose that everyone in the House will sympathise with the position of war widows, does not my noble friend agree that either those increases referred to in the Question and the other supplementary questions are justified on their merits or they are not? If they are justified on their merits, they should take place now. If they are not, it does not help matters to introduce the purely irrelevant factor of the fact that it is 50 years since VE-Day.
Viscount Astor: My Lords, my noble and learned friend makes an important point. As I said, war widows' provision is very generous and it is quite right that it should be. For example, it was made tax free in 1979 where previously half was taxable. They receive extremely preferential treatment which we shall maintain. Last year, spending on war widows' pensions was £345 million.
Lord Ennals: My Lords, I declare an interest as 100 per cent, war disabled with a wife. I wish to support the proposal made by my noble friend Lady Nicol. Is the: Minister aware that I agree with everything that he said about those who now receive war widows' pensions? But there is something very special about the widows of war pensioners who die. Does the Minister agree that it is extremely difficult for many of those widows to maintain the standard of living that they have had? Will he look again at the proposal that there should be a pension for those widows of war pensioners who then die?
Viscount Astor: My Lords, it is fundamental to the war pension scheme that a war widow's pension can be awarded only where death is due to service. However, in recognition of the prolonged nursing care given by the widows, as I said earlier, a war widow's pension is automatically awarded where a constant attendance allowance was in payment to the late husband. That, ensures that automatic entitlement is properly targeted on widows of the most severely disabled war pensioners who were assessed at 80 per cent. or more disablement: and who were in need of most care and attention during their lifetime.
Baroness Gardner of Parkes: My Lords, is the Minister aware that I was privileged to be the first honorary president of the War Widows Association of Great Britain and that my noble friend Lady Strange is currently president? Neither of us is a war widow but we are aware of the marvellous spirit and deserving nature of those women. Does the arrangement still apply that

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older war widows receive more than the younger ones, or are equal payments now made for the old and the young?
Viscount Astor: My Lords, a disablement war pension depends on many different factors. There were different rules relating to pre-1973 war pensions. Post-1973 widows are now paid attributable widows' pensions under the MoD Armed Forces Pension Scheme. The majority of war widows from earlier conflicts receive comparable sums of money.
Lord Bonham-Carter: My Lords, whatever the Government decide to do about pensions for war widows, will the Minister at least ensure that the widows of British ex-servicemen stranded in Hong Kong are given British passports?
Viscount Astor: My Lords, that is a rather different question as it relates to Hong Kong and nationality and has nothing to do with war pensions.
Lord Dean of Beswick: My Lords, in his reply to the first supplementary question, the Minister gave a figure of £140 a week. However, can he say what that amount represents? Is it a basic, average pension? If that is the case, are there other government sources from which further moneys could be derived so as to bolster that amount?
Viscount Astor: My Lords, I gave the average figure. Of course, £58 of the amount can be wholly disregarded for income-related benefit purposes. Moreover, widows do receive age allowances; for example, widows aged 65 receive £8.50, widows aged 70 receive £16.40 and widows aged 80 or over receive £24.40.
Lord Elton: My Lords, my noble friend the Minister referred to the magic date of 1973. Therefore, presumably he is aware that the widow of a serviceman who retired after 1973 receives half of his pension when he dies, whereas a widow whose serviceman husband retired before 1973 only receives one-third. Is that not a case which, on its merits—as my noble and learned friend Lord Hailsham rightly pointed out —ought to be considered as soon as possible to make those widows pari passu with their sisters?
Viscount Astor: My Lords, before 1973 the widow of a retired serviceman was entitled to a pension equal to one-third of her late husband's pension. In 1973 that was increased to half. That improvement applied only to that part of the husband's pension earned by service after 31st March 1973 and was not retrospective. However, those serving after that date could top up earlier service to increase their widow's benefits; and, indeed, many did so.
To comply with the Social Security Pensions Act 1975, pensions under the Armed Forces Pension Scheme are paid to the widows of post-retirement marriages. Those widows receive pensions which are based only on their husband's service from 6th April 1978. It is a fundamental principle of occupational pension schemes that when an individual retires it is the
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provisions of the pension scheme in force at that date which determine his pension entitlement. I realise that that is a rather complicated answer, but I hope that it deals with my noble friend's point. We are dealing with a complicated area.
Baroness Hollis of Heigham: My Lords, I should like to ask the Minister to look sympathetically at another anomaly which has arisen. At present, most people on benefit—that is, old age pensions, invalidity benefit and so on—will receive an extra 50 pence a week to protect them against VAT charges on fuel. However, as I understand it, 50,000 younger disabled war pensioners do not receive such VAT protection. Will the Minister look at the situation sympathetically because the needs of those people are at least as great as those of any other group in the community?
Viscount Astor: My Lords, from April 1994, in line with all widows pensions, war widows received an extra 50 pence a week to help with VAT charges on fuel. In addition, about 35 per cent, also receive double help because they are in receipt of a retirement pension based on their own contributions.
Baroness Hollis of Heigham: My Lords, I asked a question about disabled pensioners, not about war widows.
Viscount Astor: My Lords, the Question on the Order Paper refers to "war widows".
Lord Mackie of Benshie: My Lords, will the Minister explain to the House that the amount received by war widows is made up of other benefits such as income support, and so on, and that the basic pension is round about £74 to £75 per week?
Viscount Astor: My Lords, I am afraid that I do not have the relevant figures with me. I was pointing out what the provisions were and what the majority of war widows aged 70 currently receive.

Nuclear Test Ban Treaty: Negotiations
2.47 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether it is their policy that the successful completion of the current Geneva negotiations for a comprehensive test ban treaty is a necessary preliminary if the Nuclear Proliferation Treaty Extension Conference in April 1995 in New York is to be equally successful; and whether they will encourage and support endeavours to achieve this.
The Parliamentary Under-Secretary of State, Ministry of Defence (Viscount Cranborne): My
Lords, our aim is to conclude an effective comprehensive nuclear test ban treaty (CTBT) which makes a genuine contribution to non-proliferation as soon as possible. We continue to believe that imposing a deadline will not necessarily help the progress of negotiations. We do not, therefore, see a CTBT as an

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essential pre-requisite for a successful conclusion to the Non-Proliferation Treaty review and Extension Conference in 1995.
Lord Jenkins of Putney: My Lords, I am obliged to the; noble Viscount for that Answer, although I am sure that he will understand why I do not entirely agree with it. Will the Minister take into account the fact that proliferation has grown during the lifetime of the present Non-Proliferation Treaty? I take it that that is what the Minister means when he says that the Government are looking for an "effective" extension of the treaty. Would it not be a contribution towards making it effective if, by that time, we were to have an agreed CTBT? In those circumstances, can the Minister say whether there are any other plans to make the NPT more effective, if and when it is extended, than it has been hitherto? I ask that because, as the Minister is aware, proliferation—that is, both vertical and horizontal—has taken place throughout the lifetime of the present treaty.
Viscount Cranborne: My Lords, I am sure that your Lordships will accept from me that it distresses but does not altogether surprise me that the noble Lord, Lord Jenkins, and I are not in agreement on the point. However, I ask the noble Lord to consider the fact that the NPT and a comprehensive test ban treaty seek to achieve two different objectives. The Non-Proliferation Treaty, which will come to the end of its initial period of 25 years and fall due for renewal in 1995, is designed to try to prevent more states becoming nuclear weapon states. The comprehensive test ban treaty is allied to this but it is not contingent upon the NPT; it is really designed to try to prevent people from testing nuclear weapons. As to the second part of the noble Lord's question, I would remind him that the NPT is not easily susceptible to amendment. We will therefore seek to extend it in 1995, but we will at the same time endeavour to improve particularly the verification procedures with the IAEA which, as he well knows, are dependent and parallel with the NPT.
Lord Mayhew: My Lords, does not the noble Viscount agree that unless a treaty is in place by April next year when the non-proliferation conference begins, that conference is likely to fail, for the same reason as it did last time—that there was no comprehensive test ban treaty? Is the noble Viscount aware that there is great urgency about this matter? Is he also aware that the Government's insistence that safety tests be excluded from the ban is not only of doubtful validity in itself but is opposed by the Americans, the Russians, the Chinese and practically everyone else and has no chance whatever of being accepted but is delaying negotiations towards an agreement?
Viscount Cranborne: My Lords, I shall not attempt to repeat the argument that I put to the noble Lord, Lord Jenkins. However, I would say to the noble Lord, Lord Mayhew, who I know knows a great deal about these matters, that it is very much more important, in view of the different nature of the two treaties, that we should endeavour to conclude a comprehensive test ban treaty as soon as possible, but what matters more is that the
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terms of that treaty should achieve the objects we all desire. If it needs to be delayed beyond 1995 it would be merely artificial to attempt to link that in with the Non-Proliferation Treaty. If we can do it before 1995 —that looks increasingly doubtful—no one would be happier than I.
Baroness Blackstone: My Lords, will the Minister answer the question of the noble Lord, Lord Mayhew, when he asked why the UK Government are continuing to argue and apply pressure for safety tests within the remit of the comprehensive test ban treaty when it is perfectly clear that this will be unacceptable to the US Government and when, as I understand it, our Trident warheads have already been certified as safe?
Viscount Cranborne: My Lords, I am happy to tell the noble Baroness that our Trident warheads have indeed—as she knows—been certified one point safe. It is through the negotiations, and the form that they take, that we should try to make sure that the quality of the agreement—as I said to the noble Lord, Lord Mayhew —is as good as we can make it. There are a number of matters which we shall have to negotiate with our partners and with other states which are taking part in the treaty, of which safety is one.
Baroness Blackstone: My Lords, I must come back yet again to remind the Minister that he has not answered the question: why are we still pressing for safety tests? Will he please answer that question?
Viscount Cranborne: My Lords, as I have already said to the noble Baroness, there are a number of matters as regards which we must play an important part in the negotiations. Safety tests are important as regards proliferation and indeed the safety of nuclear weapons. We must pay careful regard to the purpose of a comprehensive test ban treaty. Safety is an important part of that as I am sure the noble Baroness will agree.
Lord Avebury: My Lords, has the Minister seen any evidence that the existing provisions on atmospheric testing are being widely ignored by the Chinese at their Lopnur site causing devastating increases in morbidity and mortality in the neighbouring state of Kazakhstan? What steps can the international community take to persuade China to comply with her existing obligations let alone any new ones that may be imposed under the comprehensive test ban treaty?
Viscount Cranborne: My Lords, the fact that atmospheric tests are still taking place in one of the five recognised nuclear powers under the Non-Proliferation Treaty rather accentuates the difference between the two treaties that we have been discussing during the course of this afternoon, and underlines the importance of our achieving a proper and effective comprehensive test ban treaty and the fact that it is well worth our while taking the trouble and the time to achieve that rather than over-hurrying the process.
Lord Jenkins of Putney: My Lords—
The Lord Privy Seal (Lord Wakeham): My Lords, we must go on. We only have six minutes left for each of the other two Questions.
Lord Jenkins of Putney: My Lords—
Noble Lords: Order!
Lord Wakeham: My Lords, I am most grateful to the noble Lord for giving way.

South Africa
2.55 p.m.
Lord Molloy Lord Molloy asked Her Majesty's Government:
What steps they will take to ensure close diplomatic co-operation with the new government of South Africa.
Viscount Cranborne: My Lords, we look forward with confidence to working closely with President Mandela and his new government. My right honourable friend the Foreign Secretary attended President Mandela's inauguration and met with him and Deputy President de Klerk. Mr. de Klerk visited London and saw the Prime Minister last week.
Lord Molloy: My Lords, I thank the noble Viscount, Lord Cranborne, for that reply which will be well received not only in our country but indeed throughout the Commonwealth and other parts of the civilised world. Does not he agree that this is a remarkable triumph of Mr. Nelson Mandela and Mr. de Klerk in ending apartheid? The present Cabinet in the new South Africa is drawn from all parties. It is another new country and its people think highly of this country. Will our Government make every endeavour to assist those people on their way to establishing themselves as a new free democratic country?
Viscount Cranborne: My Lords, the House will be grateful to the noble Lord, Lord Molloy, for what he said and will feel all too easily able to endorse the sentiments that he has expressed. I can indeed confirm that Her Majesty's Government are well aware of the massive amount of good will that has been shown over the past few weeks by representatives on all sides of all communities in the Republic of South Africa. This has been demonstrated in a number of ways, particularly by the extraordinary reception given to the Royal Navy vessel which recently visited Cape Town. The scenes were described as unprecedented for such a visit.
I reassure the noble Lord that we are doing our best in terms of aid and in terms of help in training the new security and police forces of the new government of South Africa. We are helping in a number of other ways to make sure that the good relations which we now have —as the noble Lord said—with the new government of South Africa will be built upon and that those relations will become an example for all of us in the years to come.
Lord Gisborough: My Lords, will my noble friend take a lead in the international community in recommending that great care is taken not to lend too
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much money as the overlending of such money has caused immense financial disaster in many other countries?
Viscount Cranborne: My Lords, I am of course interested by my noble friend's question. As I am sure my noble friend knows, we are increasingly careful, even by our own standards, as regards aid money and the direction of our aid money. The Republic of South Africa will be no exception in that regard. I would draw the attention of my noble friend to the various international initiatives from the World Bank and the IMF which are in the process of being developed to address the problems of the new government.
Lord Tordoff: My Lords—
Baroness Blackstone: My Lords—
Lord Wakeham: My Lords, it is the turn of the noble Lord.
Lord Tordoff: My Lords, I am grateful to the noble Baroness. Does the Minister accept that those of us who had the great privilege, honour and joy of being in South Africa during the election time are thankful for the answers he has given? I hope I may go a little further and ask whether Her Majesty's Government are taking steps to do everything in their power to ensure that South Africa returns to the Commonwealth at the earliest possible moment.
Viscount Cranborne: My Lords, we were extremely proud to see so many British parliamentarians taking part in the exercise to which the noble Lord referred. Of course we greatly look forward to the early return of the Republic of South Africa to the Commonwealth and we hope that that will not be long delayed.
Baroness Blackstone: My Lords, I was delighted to hear the Minister refer to the importance of our aid programme. In the light of its importance to our diplomatic relationships with South Africa, does the Minister agree that our embassy in Pretoria ought to have an ODA official occupying one of its existing senior posts at counsellor level or above?
Viscount Cranborne: My Lords, I am most interested in the suggestion made by the noble Baroness. With her permission I shall draw her remarks to the attention of my noble friend, who is sorry that she is unable to answer this Question today.
Lord Wright of Richmond: My Lords, does the Minister agree that not only the present British Ambassador in South Africa but also his recent predecessors have worked extremely hard to develop contacts both with Mr. Mandela and with all strands of South African political opinion? Does he also agree that they should have put Her Majesty's Government in a good position not only to develop close co-operation and co-ordination with the new South African Government but also to promote and protect British interests in South Africa?
Viscount Cranborne: My Lords, the noble Lord's knowledge and experience of these matters are

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unrivalled. I am delighted to be able to endorse everything that he said. It would be very unwise of your Lordships—therefore I am sure that your Lordships will not attempt to do so—to underestimate the influence of British diplomacy in bringing about this very desirable state of affairs.
A noble Lord: My Lords—
Lord Wakeham: My Lords, we ought to move on now.

Criminal Trials: Rules of Disclosure
3 p.m.
Lord Spens Lord Spens asked Her Majesty's Government:
Whether proposals to alter the rules of disclosure of evidence in criminal trials are under consideration for inclusion in a future criminal justice Bill.
The Minister of State, Home Office (Earl Ferrers):
Yes, my Lords. The Royal Commission on Criminal Justice made proposals on this matter which the Government are considering.
Lord Spens: My Lords, on a day in which the right to silence is under serious threat, does not the noble Earl agree that the rules of evidential disclosure are important to that decision and that this House should know more about those proposals which are under consideration so that we do not return to the bad old days of the Birmingham Six, the Maguire Seven, the Guildford Four and so on?
Earl Ferrers: My Lords, the two matters to which the noble Lord, Lord Spens, refers are separate issues. Early defence disclosure may help to improve the efficiency of the court process, and our proposals on the right to silence do not place any obligation on a suspect to answer questions.
Baroness Mallalieu: My Lords, is the noble Earl aware that at present in practice disclosure often means simply showing defence counsel into a room at a police station, pointing at a large number of boxes filled with documents, and telling them to look for themselves to see whether they can find anything relevant? Is he aware that that was the way in which the document which ultimately freed the Taylor sisters came to be discovered?
Will the noble Earl give some thought to the possibility of appointing a lawyer—possibly from the Crown Prosecution Service—at a very early stage in every major criminal investigation to ensure that evidence is kept under review and that the defence have those documents at an early stage? Will he have in mind that that might also free the officers in the case from that burden and allow them to carry on with the task of investigating rather than disclosing?
Earl Ferrers: My Lords, that is a helpful suggestion. We are considering these matters very carefully. The noble Baroness is quite right that in some cases there is an enormous quantity of paper to be read. I understand that in one recent case there were thousands of pages
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which I was told would take 40 years to read. That is one of the problems which the Royal Commission has had to address, and the Government have to address the views which the Royal Commission has put forward. I cannot give the noble Baroness an indication of what our stance will be because it is not yet decided.

Hill Samuel Bank and United Dominions Trust Bill [H.L.]
3.4 p.m.
Read a third time, and passed, and sent to the Commons.

Value Added Tax Bill [H.L.]
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that this Bill be now read a second time. This Bill is a pure consolidation of the enactments relating to value added tax presently found in the Value Added Tax Act 1983 and subsequent Finance Acts.
Once again I should like to offer my thanks, and I am sure those of the House, to the draftsmen for continuing their important consolidation work.
If your Lordships are content to give the Bill a second reading, it will be referred in the usual way to the Joint Committee on Consolidation Bills.
Moved, That the Bill be now read a second time. —(The Lord Chancellor.)
On Question, Bill read a second time, and referred to the Joint Committee on Consolidation Bills.

Criminal Justice and Public Order Bill
3.5 p.m.
Earl Ferrers: 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.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES (Lord Ampthill) in the Chair.]
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No.25:

Before Clause 32, insert the following new clause: ("Safeguards applicable to sections 32 to 34.—

.—(1) Section 32 below shall not apply unless it is established to the satisfaction of the magistrates, or of the judge (in the absence of the jury), beyond all reasonable doubt on the evidence adduced, an opportunity for cross-examination and submissions having been afforded, that—

(a) before questioning the constable informed the accused that he was seeking to discover by whom an offence had been committed, and of substantial particulars of such offence, and of his right to remain silent and of the consequences of his failure to mention a fact to be relied upon in his defence if proceedings should ensue; and

(b) a contemporaneous written record was made and shown to the accused for approval or signatures, such record having been tendered in evidence.

(2) Section 33 below shall not apply unless a reasoned finding or decision as to the inference drawn by the magistrates, and by

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the judge on a submission of no case to answer is made; and the judge may not direct the jury as to the inference to be drawn under this section.

(3) Section 34 below shall not apply unless it is established to the satisfaction of the magistrates, or of the judge (in the absence of the jury) beyond all reasonable doubt, an opportunity for cross-examination and submissions having been afforded, that—

(a) before the request was made the constable informed the accusedof his right to remain silent and of the consequences of his failure or refusal to comply with such request; and

(b) a contemporaneous written record was made and shown to the accused for approval or signatures, such record having been tendered in evidence.").

The noble Lord said: The object of the amendment is to afford safeguards when the right to remain silent is exercised under the proposed regime.
We are concerned with matters of principle arising on amendments to Clauses 32 to 35 on the Marshalled List, not only as to whether Clauses 32 and 33 stand part of the Bill but also as to the nature of the safeguards proposed as applicable to Clauses 32 to 35.
The noble and learned Lord, Lord Lowry, supported Clauses 32 to 35 in principle and was of the opinion that we have to search for the right formula. He was also of the opinion that these proposed innovations could positively help innocent offenders, for reasons which he gave at some length (col. 397 of the Official Report) at Second Reading. Such is the spirit in which I move the amendment.
In speaking to Amendment No. 25 perhaps I may describe the position in this way. There are six horses, under four different owners, in the field under starter's orders. Only on Amendment No. 26 in the name of the noble Viscount, Lord Runciman, would it be possible to place an even money bet. The first horse is mine— "Amendment No. 25, Safeguards to Clauses 32 to 34", which is sired by Compromise out of Hope. The second horse is "Clause do not stand part". The third horse is "Amendment No. 26, Pre-trial statements" in lieu of "Clause 32 Stand Part". The fourth is "Clause 33 do not stand part". Those three are sired by Justice out of Royal Commission. Horse No. 5, "Alternative safeguards to Clauses 32, 34 and 35", is owned and ridden by the noble and learned Lord, Lord Ackner, who tells me that today he has the support of Justice. The sixth horse is the government horse, which is always handled with care and consummate skill by my noble friend Lord Ferrers under Jockey Club rules without abuse of the whip.
The position is complex, and I hope that I have cleared the yard-arm in a vaguely intelligible fashion. Amendment No. 25, which I move, can only be accepted if Clauses 32 to 34 stand part of the Bill. Therefore, consideration must be given to the intention to oppose the Motion that Clauses 32 and 33 stand part of the Bill and also to Amendment 26, which is tabled in lieu of Clause 32. Attention must also be paid to the alternative safeguard proposals to Amendment No. 25 tabled by the noble and learned Lord, Lord Ackner, in Amendment No. 25A relating to Clause 32, Amendment No. 27A relating to Clause 34 and Amendment No. 29A relating to Clause 35. In moving Amendment No. 25, Amendments Nos. 27, 29 and 30, tabled by my noble friend Lord Ferrers, do not require consideration at this stage. I should like to thank my noble friend for having
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kept an open door to representations with officials from his department on Amendment No. 25, and for having taken back Amendments Nos. 22 and 24. Amendment No. 25, which I move, is a compromise. It stands somewhere between—I hesitate to say half-way— whether Clauses 32 and 33 do or do not stand part. The objective in moving the amendment is not, as at present advised, to divide the Committee but to contribute to the need to make,
"a fresh, clear start, agreed after mature debate",
to which the noble and learned Lord, Lord Lowry, referred in his remarkable and authoritative maiden speech, at col. 398 of the Official Report.
As to the matters of principle, Amendment No. 25 is concerned with safeguards for Clauses 32 to 34, but not for Clause 35. Perhaps the Committee will consider Clause 35, regarding the effect of an accused's failure or refusal to account for presence. Taken by and large after an arrest for an offence, there really is no injustice in drawing an adverse common sense inference from such refusal or failure to account for one's presence. The alibi procedure removes surprise at the trial. For those reasons, I cannot in principle accept or support Amendment No. 29A in the name of the noble and learned Lord, Lord Ackner.
As to Clause 32, I could only support the Motion that Clause 32 stand part, subject to the safeguards proposed by Amendment No. 25, or some other safeguards, but not in principle the safeguards proposed by Amendment No. 25A in the name of the noble and learned Lord, Lord Ackner, for reasons which I shall give in a moment.
Irrespective of whether Clause 32 stands part, in principle I wish to support Amendment No. 26 in the name of the noble Viscount, Lord Runciman, as to prosecution and defence statements on trial on indictment, but not in lieu of Clause 32.
As to Clause 33, I could only in principle support the Motion that Clause 33 stand part subject to the safeguards proposed by Amendment No. 25, as referred to on Second Reading, or some other safeguards to meet the concerns expressed by the noble and learned Lord, Lord Lowry, which as yet have not been tabled.
As to Clause 34, I could only support the Motion that Clause 34 stand part subject to safeguards as proposed by Amendment No. 25, or some other safeguards, but not in principle those proposed by the noble and learned Lord, Lord Ackner, in Amendment No. 29A. Although the noble and learned Lord, Lord Ackner, and I agree in principle that Clauses 32 to 35 should stand part so that an adverse common sense inference may be drawn either in the determination of guilt or as to whether there is a case to answer from the exercise of the right of silence (subject to safeguards), the reasons in principle why I cannot accept the noble and learned Lord's proposals in Amendments Nos. 25A, 27A and 29A are as follows.
First, putting it briefly, the accused is not informed of the consequences of the exercise of his right to remain silent, as he is under my amendment. Secondly, the presence of a lawyer, under the noble and learned Lord's amendment, would appear to exclude what is said on the doorstep, in the street or in the police car, which is not

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excluded by my amendment. Therefore I respectfully suggest that the noble and learned Lord's amendment is not only unduly restrictive but impracticable.
So also is, as the noble and learned Lord suggests, a taped recording away from the police station in any of the circumstances envisaged by Clauses 32, 34 and 35. This would present, I am advised, enormous practical difficulties. In this context, I refer to paragraphs 11 to 15 of the Royal Commission report, and to the Essex experiment, the result of which is not yet known.
As to the Motion that Clauses 32 and 33 do not stand part, it is accepted that the Royal Commission was nine to two against any changes in the right of silence. It is accepted that that view was supported by Justice. It is accepted that many members of both branches of my profession hold that view. The substance of the argument was deployed at Second Reading. It is an argument which I in principle cannot accept.
As to the safeguards proposed by Amendment No. 25, is it not idle to pretend that Clauses 32 to 34 may not affect the presumption of innocence and the burden of proof, as under the existing regime no adverse inference may be drawn from the right to remain silent? The noble and learned Lord, Lord Lowry, said at Second Reading,
"The judge can tell the jury about the accused person's non disclosure or failure to testify [but what he may say] has become so confused that even an experienced judge cannot be sure of what to say".—[Official Report, 25/4/94; col. 398.]
As regards Clause 33 in particular, the noble and learned Lord said that the judge must tailor his directions to specific facts. He stated at col. 397 of the Official Report,
"I am not yet quite sure what would be the best wording for the clause",
and that the method, and the judge's approach on failure to testify, must be watched carefully.
Secondly, is it not idle to pretend also that questioning on the doorstep, in the street, in the police car, and so forth, is a kind of mirror image of the taking of a confession at the police station, as has been suggested, or that such questioning may not indeed be used to obtain a confession at the police station?
Thirdly, as proposed by my amendment, is it not essential that some contemporaneous record should be made and offered for comment and approval? Fourthly, is it not right and proper that those questioned should be informed of the consequences of exercising their right to remain silent because the whole regime has changed?
As regards Clause 32, in particular, must not the substance of the offence in fairness be explained with full particularity—or at least with sufficient particularity? Is it not essential that any dispute between those questioned and the constable must be resolved by a reasoned decision in which the benefit of doubt is resolved in favour of the accused, a decision subject to review of the revising court? Before an adverse inference is drawn either by the magistrates or by the judge on the submission of no case to answer, a reasoned decision must be given. On trial by jury, if the judge rules that an adverse inference may be drawn, surely he must tailor his direction and leave it to the jury as to whether or not to draw any such inference in reaching their verdict. I apologise for the length of my opening speech. I beg to move.
Lord Hailsham of Saint Marylebone: It may be helpful if I put forward to the Committee a few general observations which I hope will be brief. The Committee has every reason to be grateful to my noble friend Lord Campbell for having numbered the horses in this Derby on the right of silence. It seems a fairly complicated race, and in what I shall say I am not putting my money exclusively on any one horse.
English law, from its early days, has paid undue attention to the question of admissibility of evidence and the competence of witnesses and too little attention to the weight of evidence and its reliability. Those questions are best not dealt with by technicalities but by common sense and a careful analysis of facts.
I illustrate that with one or two simple examples. From early days until 1898, it was in general true that an accused person could not give evidence on his own behalf, however innocent he was and however little the true facts may have been disclosed to the tribunal of fact. That rule applied in general to civil cases as well as criminal cases.
I do not know how many Members of the Committee have been surprised to read in the Pickwick Papers that in the breach of promise action between Mrs. Bardell and Mr. Pickwick, when the sole question at issue was whether or not a promise had been made, neither Mrs. Bardell nor Mr. Pickwick was allowed to give evidence. Sergeant Buzfuz was given the opportunity of talking his magnificent nonsense about "Gracious heavens!" and "Chops and Tomata sauce". The reason was that neither Mrs. Bardell nor Mr. Pickwick was a competent witness on the only point about which anybody knew anything.
That has led to a number of absurdities. Perhaps I should have said at the beginning that most prosecutions before a certain date, before the invention of police forces, were private prosecutions. Therefore, an elaborate set of rules had to be made about the admissibility of admissions or confessions which were obtained largely by persons in a position of authority who did not know how to behave properly.
We really ought to have outgrown those difficulties to a large extent in our legal development, but we have not wholly outgrown them. In 1898 when, for the first time, there was a general right on the part of the defence for the defendant to give evidence on his own behalf in a criminal trial, it was rightly thought that that might put him in an awkward position since he ought to know about his liability to be cross-examined and also about the effect of his not saying anything, which was his right.
I believe that we ought to retain, without alteration, the presumption of innocence—that is to say, the standard and burden of proof in criminal cases. Anything which can be shown to water that down needs a great deal of justification to make it acceptable, I hope, to Parliament. We also ought to preserve the right of silence which is absolute in the sense that a man who is under suspicion, at whatever stage of the trial or investigation, ought to be entitled to remain silent and to await further events.
It must be true that the burden of proof stays where it is because nought plus nought equals nought. No other

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way of doing the sum arrives at any reliable conclusion. If there is not sufficient evidence to prove the matter beyond reasonable doubt, as we used to say—a rather more complicated and less satisfactory formula is now used—if there is no such evidence, the case falls of its own inanition. But it remains true that at a particular stage of the proceedings, whether on the doorstep or when it comes to the prosecution closing its case at the trial, there comes a situation where it would be remarkable, if the accused made no statement at all and if the prosecution had made a convincing case, the jury should draw their own inferences. And they do. Let us have no doubt about it, in my experience—which now extends over a long time, although some of it is rather out of date—juries do draw an inference.
The Act of 1898 hedges the prosecution about, probably with some justification, on the comment they may make about the silence of the accused. The Act says nothing about the comment the judge may make nor about what the jury may say. Those are matters into which the Committee must probe. I do not say that the answers are absolutely obvious. The answers depend upon a correct analysis of facts which are infinitely variable and upon the application of a certain amount of common sense. For example, when a man is charged with an offence, if he remains silent but at the trial he wishes to say, "Well, as a matter of fact, I was in Peru at the time and I can call 25 witnesses to say so", it would be surprising that he had not said so before. That is a matter of legitimate comment.
Let us look at a simple case: that horrible offence which is still rather more common than one would like —incest within the family. The young daughter, accompanied by her mother and a policeman, says in detail with a good deal of plausibility what the father is alleged to have done. If he says absolutely nothing, that again is a matter of some surprise. He might at least say: "I am absolutely innocent". He can of course remain silent; but it may well be that a jury or a tribunal of fact will come to a view that the matter needs a certain amount of explanation. The effect of remaining silent at any stage of the proceedings means that the prosecution case, however it is formulated, remains unanswered and uncontradicted. It may be that it falls of its own inanition—and so it should, if it does not amount to a convincing case. It may be that it requires an answer in order that there should be the element of doubt that is required.
I believe that nothing should be done to water down the evidence, the burden and the standard of proof, and nothing should be done to militate against the absolute right of the accused to remain silent if so he chooses at any stage of the proceedings. But it ought to be made plain, if he does so, by a correct analysis of the facts and the application of the ordinary rules of logic and common sense, that he does so in the knowledge that if he remains silent such of the things which have been alleged against him are uncontradicted, and if he has any special defence, such as an alibi, or something of that kind—or even self-defence or provocation—he might perhaps have let people know in advance.
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I rather agree with what some members of the legal profession think; namely, that there ought to be a clear statement of the issues before the trial starts. That will no doubt be canvassed at some stage. But in the meantime, I want to suggest that this is the true view. First, everything that is logically relevant should be admissible before the court, subject only to this: that admissions obtained oppressively—by which I mean either by inducement or threat—should be excluded as a matter of discipline but not as a matter of logic. Secondly, on matters of fact, once evidence that is relevant and is capable of being logically probative is rightly let in before the tribunal of fact—judge alone; jury, if there is a jury; magistrates, if there are magistrates; or a Northern Ireland judge, if there is a Northern Ireland judge—relevance affects admissibility subject to excluding oppressive conduct, but reliability and weight ought to be left to the tribunal of fact after a proper direction and analysis of the circumstances. I suggest that those are the principles upon which a properly formulated Act with all these horses in the race ought to be decided by this Committee.
3.30 p.m.
Lord Wigoder: With the greatest possible deference to the noble and learned Lord, I cannot help wondering whether this debate is in danger of taking the wrong turning at a rather early stage in the proceedings. I say that for this reason. This afternoon there will clearly be a substantial debate on restrictions on the right of silence. I would have thought that that debate ought to come when we debate the issues in relation to whether Clauses 32, 33 and 34 shall stand part of the Bill. They are not grouped with the present amendment at all. At the moment the position is that Amendment No. 25 stands by itself. There then follow in the grouping three amendments in the name of the noble and learned Lord, Lord Ackner. There then follows the grouping which deals with the debate on clause stand part in relation to Clause 32 and the other clauses.
It seems to me that Amendment No. 25 by the noble Lord, Lord Campbell of Alloway—and I am grateful to him for tabling it in the form that he has—simply proposes a safeguard in the event that those clauses do come later to stand part of the Bill. Equally, the amendments of the noble and learned Lord, Lord Ackner, propose safeguards should those clauses stand part of the Bill. I would—
Lord Campbell of Alloway: I am obliged to the noble Lord for giving way. I shall not take up the Committee's time. I could not move, as I saw it. I had to break the groupings. I simply could not move Amendment No. 25 at this stage without referring to the problem as to whether the clauses stood. If I am wrong, I apologise to the Committee. I accept that I break the groupings, but it is for that reason. I could not do it differently.
Lord Wigoder: Of course I am not in any way criticising the noble Lord. But surely the logical position is that we should, for the moment, assume that the clauses will stand part of the Bill at a later stage in the afternoon. On that assumption, we should consider

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whether the safeguard of the noble Lord, Lord Campbell of Alloway, is an appropriate one; or, alternatively, whether the amendments of the noble and learned Lord, Lord Ackner, offer suitable safeguards; or should we suggest possible amendments to them? I appreciate that, if at a later stage we decide that those clauses should not stand part of the Bill, then of course these provisions will fall automatically. And no doubt the amendments in the name of the noble Lord and the noble and learned Lord may well therefore in due course not be proceeded with to a vote before we have decided later in the day the substantive issue as to the restrictions on the right of silence.
I personally desire to say, not a considerable amount but a certain amount, on the restrictions on the right of silence. But I shall leave that, if I may, until a later stage when we come to Clause 32 stand part. All that I would want to say as to Amendment No. 25 in the name of the noble Lord, Lord Campbell, is that I believe that it is to some extent helpful because it provides some safeguards. It appears to me to provide some safeguards in eliminating the admissibility of conversations between a police officer and a man on the doorstep. I know that the noble Lord, Lord Campbell, said that he did not believe that it did, but I take the view that it does. I cannot see that a constable on the doorstep is going to tell the defendant that he is seeking to discover by whom an offence has been committed, the substantial particulars of the offence, the right to remain silent, the consequences of his failure to mention a fact, and so forth. Nor can I see that a constable on the doorstep is going to make a contemporaneous written record. For those reasons I believe that the effect of the amendment of the noble Lord, Lord Campbell—which I very much welcome—is that it will rule out of admissibility at the trial the situation in which a person who is very probably an extremely vulnerable human being is at his maximum vulnerability; that is, when he is being arrested, being taken from his home, from his car or the street, and being placed in the sometimes terrorising surroundings of a police station. To that extent, I welcome the noble Lord's amendment.
On the other hand, I venture to think that the further safeguard of a contemporaneous written record that the noble Lord proposes is not, as experience has shown, a very thorough safeguard—first, because there are cases where, as it is now well known, vulnerable people have been persuaded to add their signatures to statements that they have not made; and secondly, because there have indeed been many cases where the records that have been subsequently established of a defendant's statement are not made contemporaneously at all but are made some considerable time afterwards, when memory is liable to be fallible.
For those reasons, although I am grateful to the noble Lord, Lord Campbell of Alloway, for having a try at proposing safeguards, I myself can extend only an extremely lukewarm welcome to them. And indeed, when we come to debate the amendments of the noble and learned Lord, Lord Ackner, I would contend that they provide a very much more satisfactory safeguard for a defendant should we eventually take the view that Clauses 32, 33 and 34 shall stand part of the Bill. I
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believe—although it is not for me in any sense to decide the matter—that it would make for a more lucid and formative discussion on these amendments if we could separate the debate now into a discussion on the amendment of the noble Lord, Lord Campbell, and another on the amendments of the noble and learned Lord, Lord Ackner, and until we have disposed of them leave the general debate on the right of silence. Then we can come to the third group of amendments and the debate on whether Clause 32 shall stand part of the Bill.
Lord Windlesham: Following what the noble Lord, Lord Wigoder, has said, would it not make for a better debate if we were to hear the noble and learned Lord, Lord Ackner, now? He has formulated alternative safeguards dealing with exactly the same point. Then those Members of the Committee who wish to speak on this matter, as I do, would be able to do so when we had heard the two alternative courses of action put forward. As I understand it, I heard my noble friend Lord Campbell of Alloway say that he did not intend to push his amendment to a Division to take the opinion of the House. If he were to withdraw that amendment now, since the amendments are not grouped together, we could then move on to Amendment No. 25A.
Lord Campbell of Alloway: I am not prepared to withdraw the amendment at this stage. I do not intend to divide the Committee on it. However the Committee disposes of this matter is for it to decide but I shall certainly not withdraw my amendment at this stage.
Lord Renton: In the valuable speeches that we have heard so far I feel that one factor has been overlooked. It is a factor which I have felt for many years the court should bear in mind in relation to the whole of the trial and more especially in those circumstances perhaps in which the accused, having been interviewed by the police, has not understood the caution or perhaps unwisely may have decided or been advised to give evidence. It concerns those cases in which the accused is not what we might call an ordinary person.
There are various types of cases to bear in mind. In the extreme case the court will have decided that the accused is not fit to plead because of complete mental incapacity. However, there are those who are only very slightly handicapped but handicapped enough not to understand fully what is going on. Then there are those who are very young and have little experience of life but have just become adults. There are those who, for one reason or another, lack educational ability. There are even those who have mental illness. Mental illness is not always permanent; in fact there is an assumption that it is generally curable. At times people can suffer from mental illness—a nervous breakdown, for example— which at first may not be apparent. Nevertheless, it may affect the conduct of the accused. Finally, there are those people who are deaf. That is another category. Deafness is a very serious handicap when it comes to being interviewed by the police or cross-examined in court.
My own view is that, whatever decisions we reach on Clauses 32 to 34, we should bear in mind the particular difficulties which relate to the categories that I

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mentioned. I hope that I am not premature in raising this matter. However, the particular difficulties of such people should be kept in mind throughout our discussions on these clauses.
Lord Rawlinson of Ewell: I am sure that everybody else is perfectly clear about the whole matter but I confess that I am in a right muddle. As I made clear at Second Reading, I should like to see the present rules altered. I do not think that they properly serve the cause of justice today. Therefore, I believe that there should be amendments to the so-called right of silence. I do not want to see Clause 32 dismissed. I do not want it taken out of the Bill.
On the other hand, I am anxious, and indeed would like to hear, that an open mind will be kept on certain safeguards which certain noble Lords, and in particular the noble and learned Lord, Lord Ackner, propose as an amendment to Clause 32. I do not want to let the amendment of the noble and learned Lord, Lord Ackner, disappear, and I do not want to see Clause 32 struck out of the Bill. By making quite sure that that does not happen I hope that we can resolve the muddle, at least so far as I am concerned.
Lord Elton: There are two categories of people in the Chamber. There are those who understand all about the matter and those who are merely spectators and have to make up their minds on the statements of those who do understand. As one of the latter, I feel that it would be helpful if one thing could be made clear about the people to whom these rules are to be applied.
I note that Clause 33 alone has a definition of age and applies to,
"any person (other than a child)".
A "child" is described in the Bill as somebody under 14. In other words, there will be one year's worth of the secure training order customers whom we were talking about a week ago included in this tranche. However, I hope that at some stage those who understand all about the matter will tell us whether the people to whom Clauses 32 and 34 apply include children and if not, at what age the cut-out operates. I am sure that we recognise that people of different ages require slightly different treatment. We should like to know about that.
3.45 p.m.
Lord Simon of Glaisdale: The noble Lords, Lord Wigoder and Lord Windlesham, must be right. These two groups of amendments—those of the noble Lord, Lord Campbell, and those of my noble and learned friend Lord Ackner—presuppose that Clauses 32 to 34 will stand part of the Bill and provide safeguards. There is no reason why we should not discuss them now— provisionally, so to speak—provided that we keep that in mind.
The amendments of the noble Lord, Lord Campbell, are useful in drawing attention to the fact that there are successive stages in the investigation of a crime. In the first stage the police must make inquiries as to the scope of the crime, its nature and who might help in the investigation. At that stage the police inquiries are and must be open. The next stage is when someone is
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suspected of the crime. At that stage a caution must be given to the person who is suspect. The third stage is where there is sufficient evidence to charge the crime. At that stage at present all questioning must be suspended.
The Royal Commission proposes that there should be some slight modification of that system, with which I respectfully agree. But those are the three stages: the open inquiries; the stage when somebody is suspect and therefore must be cautioned but, subject to the caution, may still be questioned; and the stage where he is charged, after which, as at present, no further questions may be asked of him.
Lord Peyton of Yeovil: Perhaps I may make a brief intervention. I make the most charitable assumption that grouping is an arrangement designed for the convenience of the Chamber. I have always understood and hoped so. But very often it has the absolutely reverse effect and such seems to be happening now.
The noble Lord, Lord Wigoder, made the point very clearly. He asked whether or not we are to have Clauses 32, 33 and 34 in the Bill. Until we have decided that question it seems to me—I say it with the greatest respect to those who disagree with me—that we are spending a lot of time unnecessarily and prematurely on deciding the safeguards that will be necessary in that event. I do not know whether my noble friend on the Front Bench feels that he can helpfully intervene and assist us now, steering us in a way that might allow us to discuss what seems to me to be the substance of what is before us this afternoon; namely, Clauses 32, 33 and 34 and whether or not we are to have them in the Bill.
Lord Campbell of Alloway: I agree with the suggestion made by my noble friend. I sought to point to that objectively when I moved Amendment No. 25 and said that I could not effectively do so until we knew where we stood.
Lord Carlisle of Bucklow: Surely the sensible course is to debate Clause 32 and Clause 33 stand part before debating either this amendment or the following group. I rise to ask the Committee whether or not we have the power to change the order in which the amendments are grouped.
Lord Renton: Our procedure is perfectly clear and so much better established than I dare to say. It is established that we consider amendments to a clause before we decide whether or not the clause shall stand part. There is nothing we can do about that.
Earl Ferrers: My noble friend Lord Renton is correct in that we must consider the amendments to a clause before we decide whether or not the clause— amended or not—can stand part of the Bill. However much we may find it more convenient to do otherwise, we are not in a position to change the procedure. Of course, it may be more convenient to discuss the whole matter together in one debate—I fancy that it probably would be—but the way in which we have started means that it will probably be best for us to stick to the present

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arrangements and hope for the best. The noble Lord, Lord Shepherd, shakes his head and that is always a discouraging sign.
Lord Shepherd: I shake my head to the suggestion that we should make the best of the situation. The noble Lord, Lord Renton, is right when he says that we cannot move amendments after clause stand part. On the other hand, procedure in this Chamber, as we have known it over many years, is highly adaptable. If the noble Lord, Lord Campbell of Alloway, had responded to the suggestion of his noble friend Lord Windlesham, that might have led us out of some of our difficulties. The noble Lord, Lord Campbell of Alloway, made some powerful points. However, due to procedural difficulties we find ourselves not in a position to discuss what is, in a sense, the most fundamental issue before the Committee today.
The noble Lord, Lord Campbell of Alloway, would not have lost his right by following the suggestion made. The matter could be brought back at Report stage. But, again stretching the procedure of this Chamber, if the matter were of such importance this Chamber could require another Committee to be formed; in other words, another Committee could form itself back at a later stage before Report to take a procedural course.
Like the noble Lord, Lord Elton, I am not a lawyer, and I am beginning to be slightly bemused. The noble Lord, Lord Campbell of Alloway, would give great service to this Chamber and the issues before us if he were to respond to the suggestion of his noble friend Lord Windlesham and withdraw the amendment. He has already declared that he has no intention of dividing the Committee on Amendment No. 25. That does not prevent other Members of the Committee calling for a Division if they so wish, but the noble Lord does not intend to do so at this time. We are therefore having a general discussion hoping, as the noble Earl, Lord Ferrers said, "for the best". If the noble Lord, Lord Campbell, accepts the suggestion of his noble friend Lord Windlesham I suspect that the Committee will be extremely grateful to him.
Lord Mottistone: Perhaps the most convenient arrangement would be for my noble friend the Minister to respond to the amendment of my noble friend Lord Campbell of Alloway—as briefly as possible—so that at least we are clear as to what the Government think about Amendment No. 25. We can then consider the next amendment.
Earl Ferrers: My noble friend asks two contradictory questions. First, he asks whether it will be convenient for me to respond to my noble friend's amendment. I do not believe it is particularly convenient. He also asks me to respond briefly, and that will not be easy either. However, I shall do my best.
The right of silence is a matter of enormous sensitivity. Members of the Committee and many others hold strong views about it. My noble friend Lord Elton said that we fall into two categories—those who know all about it and those who are spectators. I have a funny idea into which category I fall because I am not a lawyer. When one is a Minister with the privilege of
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replying on behalf of the Government to a whole lot of lawyers—if I can put it in that all-embracing way—it is a difficult position to be in.
The proposition behind the amendment is perfectly simple; that is, whether certain evidence be available to the jury and, if it is, whether it will be unfair to the defendant. That is the basic principle we must decide. My noble friend Lord Campbell of Alloway is concerned about safeguards. The principal questions raised by his new clause are whether inferences should be able to be drawn from a person's failure to mention a relevant fact if, but only if, he has been cautioned and "substantial particulars" of the offence have been disclosed to him by the police officer questioning him, and whether the exchange must be the subject of a contemporaneous written record which has been offered by the police officer to the suspect for signature at the time.
There is no doubt that allowing inferences to be drawn from a person's silence under police questioning or at his trial is an important change, and such a change must be accompanied by proper safeguards. The Bill, together with existing legislation, incorporates a number of effective safeguards. The main issue which is involved both in the amendment of my noble friend Lord Campbell of Alloway and that to be moved later by the noble and learned Lord, Lord Ackner, is whether or not we should introduce additional safeguards to those already embodied in the law and those proposed in the Bill. We should bear in mind that the effect of the amendments may, in practice, restrict the circumstances in which inferences—in our view, common sense and realistic inferences—can be drawn.
We may all hold strong and differing views on principles. But nobody has a monopoly of wisdom on the mechanics of how one puts a principle into practice. The Government will certainly listen with interest to all that your Lordships have said, and will say this afternoon, in relation to safeguards. We shall certainly reflect carefully on the points made. On the same basis, I hope that the Committee will consider why the Bill has been drafted in the way that it has because, in view of what your Lordships say, now is not a convenient time for me to go into the reasons.
The new clause proposed in Amendment No. 25 suggests that before any inference can be drawn the suspect must have been given particulars of the offence and been cautioned. The difficulty is that the police do not caution people when they first walk through the door or when they are trying to ascertain what is going on. They do not give everyone they meet particulars of specific offences that they happen to be investigating. Code C of the Police and Criminal Evidence Act rules do not require that and it is not real life.
. Amendment No. 25 would mean that no inference could be drawn from the fact that the first words that a suspect addressed to a police officer were, "mind your own business", or something along those lines. A jury could take into account a confession made under those circumstances; they could take into account what lawyers call an "inconsistent statement" made in those circumstances, but they could not take into account "mind your own business" or "no comment".

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The Government's view, in schoolboy language, is that "that's not fair". It is not practicable to make a tape recording of every word which passes between a police officer and a person who is a suspect or who may become a suspect. Still less is it reasonable to do so to the standards rightly required before such a recording could be used in evidence. Police do not carry portable tape recorders with them wherever they go.
Tape recorders are remarkably prone to alteration. Whenever I use a tape recorder for writing my letters, so uncertain am I (unlike some Members of the Committee) of my ability to explain myself clearly that I frequently run the tape back, erase what I have said and substitute something else. One can just imagine the scope for altering what someone has said on a tape. They would be enormously unreliable pieces of evidence. That is why the most sophisticated arrangements have been made for tape recording in police stations—in order to prevent any chance of anyone monkeying around with the evidence. I suggest to your Lordships that if all that is needed for us to get over the problem which we are discussing is for police officers to use a portable tape recorder, then all the installations for tape recording in police stations would be a waste of time and money. But I doubt whether your Lordships would come to that conclusion.
The conclusion I come to is that, for those reasons, my noble friend's amendment is undesirable. But I understand his concern in trying to make sure that any evidence which is given to a court should be fair both to the prosecution and also of course to the defendant.
4 p.m.
Lord McIntosh of Haringey: Very much for the reasons that the Minister has given, I hope that the noble Lord, Lord Campbell of Alloway, will not pursue this amendment to a Division. Indeed, it is my understanding that he will not. I say that not because I do not think he is moving in the right direction. I believe that he is correctly seeking to remove some of the dangers in Clause 32; in particular the danger that arises from the phrase,
"at any time before he was charged with the offence",
which is far too wide. I suggest to the noble Lord that we would do better to deal with this matter not by seeking to distinguish between different kinds of interrogation before we come to trial as interrogation will always be different from evidence, different from examination at the trial. It may be necessary in due course to distinguish between different types of interrogation but we ought to try to avoid it now.
The important thing to do—and we could do it on the group of amendments led by the Question that Clause 32 stand part of the Bill—is to seek to establish under what circumstances (I come back to the words of the noble and learned Lord, Lord Hailsham) it may be necessary to ensure that the defendant does not spring a defence on the court. I suggest that it would be better to do that on the group of amendments headed by the Question that Clause 32 stand part of the Bill rather than on either the amendment of the noble Lord, Lord Campbell, or indeed the amendment of the noble and
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learned Lord, Lord Ackner. For that reason I hope that the noble Lord will maintain his determination not to pursue this amendment.
Lord Campbell of Alloway: I shall defer to the view of the Committee, but surely we should now move to the Question whether Clause 32 and Clause 33 stand part of the Bill and postpone any question of the withdrawal of my amendment. If there is a Division on the Question whether Clauses 32 and 33 stand part, then my amendment falls in any event. I do not know whether the Committee will divide on the Question whether Clauses 32 and 33 stand part. If I am asked to withdraw my amendment—I do not want to go against the general wish of the Committee —surely the noble and learned Lord, Lord Ackner, ought to withdraw his amendment. Although it may be slightly contrary to the rules, in this situation ought we not to move to the Question whether Clauses 32 and 33 stand part? That is the main issue which governs any amendment.
Lord Hailsham of Saint Marylebone: Perhaps I may try to be helpful. Whether I succeed or not is for the Committee to decide. We are at the moment in the position that the amendment of my noble friend Lord Campbell is the only Question before the Committee. I am not trying to prejudge anything which my noble and learned friend Lord Ackner may wish to do with his amendment, but perhaps I may suggest that the only course of action is to follow the rules of the House. I suggest that we might act in something like this way. Each person with an amendment, based on the assumption that Clause 32 remains in the Bill, should speak briefly to his amendment and hear a brief reply from the Minister. He should then seek leave to withdraw his amendment and we should go to the Question whether the clause should stand part. Both my noble friend Lord Campbell and my noble and learned friend Lord Ackner will be free to move any amended version of their amendments on Report when the House knows what they are trying to do. We must face the fact that that is where we are—and it is where we are whether or not my noble and learned friend Lord Rawlinson thinks it a difficult situation.
Lord Campbell of Alloway: All right, I give in. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 32 [Effect of accused's failure to mention facts when questioned or charged]:
Lord Ackner Lord Ackner moved Amendment No. 25A:
Page 21, line 39, at end insert:
("( ) Subsections (1) and (2) above do not apply unless—

(a) prior to the questioning or charge or notification of
possible prosecution the person is informed of the purpose and nature of the questions he is to be asked;

(b) his lawyer is present and he has had an opportunity of consulting him prior to the interrogation unless he has stated in writing that he does not require the services of a lawyer; and

(c) a tape recording is made of the interrogation.").

The noble and learned Lord said: The noble Lord, Lord Campbell, never ceases to astonish me. He paid me one of his unusual compliments on Second Reading, his speech immediately following mine, by saying that he

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totally agreed with it and was shortening his speech because of that agreement. He now seeks to muzzle my amendment because he made perhaps the tactical error of telling everyone in advance not to take it too seriously.
Perhaps I may now deal with my amendment. I start by saying that there is a far greater degree of harmony on this subject than is apparent. I indicated at Second Reading that there are two categories of silence. The first is the silence in court. The accused has had the advantage of the depositions being delivered to him and his advisers months before the trial. At trial he has heard his counsel testing the evidence of the prosecution. If he is then silent, as he is entitled to be, why on earth should not the prosecution and the judge say to the jury, "Members of the jury, you may think it is very remarkable that he has decided, as he is entitled to, in the circumstances of this case to remain silent."?
Perhaps I may give an example given by Professor Glanville Williams fairly recently. The defence has an alibi. The defendant calls, or causes to be called, several members of his family to establish that he was not at the scene of the crime at the relevant time but he opts not to give evidence himself. Why on earth, as a matter of common sense, should the prosecution and the judge be unable to say to the jury, "Members of the jury, you may think it is a very startling situation that the accused has decided to rely upon the evidence of his family as to where he was and not to give you the benefit of his own evidence. It does not prove he is guilty, but it is something that you are entitled to take into account and make what you wish of it."? That is the first category.
The harmony which I say exists here is quite clear. The noble Lord, Lord Alexander, said during the Second Reading debate:
"I am content that there should be reasonable comment on the failure of an accused to testify at trial".—[Official Report, 25/4/94; col. 453.]
But to make the matter doubly sure, we have an amendment, Amendment No. 26, which does more than that. It advances the situation by saying that there is an obligation upon the accused, when he is provided with the depositions and an outline of the prosecution case, to provide the prosecution with the nature of his defence. I would have wished it to be "the nature and the substance", but that is another matter.
In subsection (4) the amendment continues:
"In the event that the defendant—

(a) fails to provide a defence statement as required by this
section; or

(b) at trial departs substantially from the case which was
disclosed in the defence statement
the court may draw such inferences from the failure or departure as appear proper.")

The situation at trial, to use a lawyer's phrase, is an a fortiori situation which is even stronger because at trial he has had not only the advantage of the depositions but also he has heard the nature of the prosecution's case tested by his advisers. So the very nature of Amendment No. 26 recognises that silence at trial must be capable of proper comment. Just what the comment is depends on the nature of the case.
The second category on which we are now focusing is the situation of the defendant pre-trial, in the police station or elsewhere, being asked questions by the
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police. My noble and learned friend Lord Hailsham says that if it is logically relevant then evidence should be admissible. I accept that as a general proposition, but it has many exceptions as all Members of the Committee will know. Except in very limited circumstances an accused's record—that is to say, his bad conduct over the past—cannot be put to him when he gives evidence. It is logically irrelevant that he has been convicted on nine previous occasions of rape in similar circumstances to that for which he now stands charged. But the reason why it is excluded is because it is thought that the prejudicial consequences of admitting that material would outweigh the evidential value on the simple basis that if you give a dog too bad a name inevitably you hang it.
The question is this: of course it is logically relevant that the accused, when asked questions at the police station, refuses to reply. But is it fair? That is the test which was propounded by Lord Reid when this matter was debated over 20 years ago. He said that this so-called right of silence—the right not to have your silence commented on—does not exist. What does exist is an obligation upon the courts to see that the accused is treated fairly and the test must always be,
"Are you being fair to the accused?".
The noble Lord, Lord Renton, has given a number of examples of vulnerable personalities. But the ordinary, everyday person may find himself understandably overborne by the atmosphere of the police station. It may be that he is being subjected to hectoring or oppressive questioning, or perhaps he merely thinks that he is, but he is in a disadvantageous position because there is a situation of very substantial imbalance. Therefore, what we are concerning ourselves with is this: what are the proper safeguards that should be provided to right that imbalance in order to make sure, as far as one can, that the accused is being treated fairly?
At Second Reading I suggested—and my amendment merely sets it out—that unless he has the advice of a lawyer; unless he has the opportunity to consult a lawyer; unless he is told in a broad manner just why he is being brought to the police station; and unless he is told again in outline the sort of questions he is going to be asked, you are not providing him with the appropriate safeguards. If you provide those safeguards then the answer to Lord Reid's test of whether one is being fair to the accused is fully and properly answered. There will be those—and no doubt the Government—who will say "You are delaying the material that we want. You are adding to the expense by requiring a solicitor to be present".
I do not believe that delay is a proper answer for unfairness. As regards expense, if what I have said is the Government's view, then it is myopic for this reason. If the ability to comment on silence is permitted then there will be far fewer unnecessary contests in court. You will re-educate the legal profession (and it needs it) into approaching the criminal administration of justice on the basis that the police have a positive duty to investigate and that the public have a positive duty to co-operate with the investigation; that it is in the client's interest to bring out his defence at the earliest possible stage in the hope that that will satisfy the police. They

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need no longer waste further time on him and it may be they will obtain from him evidence which will lead them on the right track. That is what the measure is designed to do. I do not in any way seek to justify this view on more guilty men being convicted; I justify it on the basis that it is a sound, sensible and intelligible way of developing one aspect of the administration of justice. But if we are going to make these major changes, proper safeguards are required. That is what my amendment seeks to do. I beg to move.
4.15 p.m.
Lord Windlesham: This amendment is worth very serious consideration. It can be taken quite separately from the general issue as to whether the Committee supports the Government's proposals contained in Clauses 32 and 33, which would have the effect of curtailing the right of silence. The amendment of the noble and learned Lord, Lord Ackner, has the almost unique quality of bringing together those who are opposed to a change, and who would like to see the preservation of the status quo, and those who agree with the Government that a change is needed, including the noble and learned Lords, Lord Ackner, and Lord Rawlinson, the noble Lord, Lord Campbell of Alloway, and other Members of the Committee.
So what is in this amendment which appeals to those whose views are otherwise in conflict with one another? It is a question of whether—it can be argued whether it is the purpose—the Government's proposals would be strengthened by the addition of statutory safeguards. Those safeguards are very clearly spelt out in the amendment standing in the name of the noble and learned Lord, Lord Ackner. They should have a double effect. They should help to ensure the fairness of which he spoke and of which the noble and learned Lord, Lord Hailsham, spoke earlier, and fairness to the suspects; namely, those who are weak, vulnerable and confused.
The safeguards would also have the effect of providing additional protection for the police. They would avoid later challenges to the veracity of police accounts of what was said or not said at the interview. They would save that very lengthy and time-consuming process which took place in submissions before the courts before the introduction of PACE.
It is clear, therefore, that under the amendment a lawyer must be present or the offer of legal aid must have been refused, and that the purpose of the interview should be explained to the suspect. There should be a recording, and I hope that the noble Earl, Lord Ferrers, will not interpret that word in too limited a way. It could be a recording on video or audio tape, or an immediate hand-written note by the police officer. Whatever its form, a record should be available. Those factors should not be a hindrance—I do not see how it could be argued that they could be a hindrance—to the successful prosecution and conviction of professional criminals who are guilty of the offence with which they are charged. Many of them—most of them in all probability —will be professionally represented already. As we
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know, those accused of terrorist offences could well have been coached in advance in exactly what they should say.
The amendment would strengthen the Bill. There is no reason to suppose that it would undermine it. It is not a new idea. The noble Viscount, Lord Runciman, will recall that the minority members of his Royal Commission were in favour of a degree of curtailment of the right to silence, but with the addition of safeguards. We have heard very little in these debates so far about the report of the working group on the right of silence that was set up by Mr. Douglas Hurd when he was Home Secretary in 1988. The report was published in 1989, and I have a copy of it in my hands. The working group was chaired by a senior civil servant, one of the Home Secretary's own advisers. He wrote, of the judge's summing up at a trial:
"The judge will also have to invite the jury to consider whether, at the time when the accused failed to mention the relevant fact, he had had the benefit of proper safeguards, such as being cautioned about the consequences of silence, access to legal advice, and the special safeguards afforded to juveniles and mentally ill or handicapped".
Appendix D contained a text of the guidelines which it was proposed should be adopted. I shall not rehearse those in full since there are seven of them, but the word "safeguard" is used on several occasions in the appendix to the report. Those itemised safeguards are the ones which the noble and learned Lord, Lord Ackner, has incorporated in his amendment in more succinct form.
Am I alone or did I detect in what the noble Earl, Lord Ferrers, said in his reply to the earlier amendment a hint of open-mindedness on this matter? If that is so, and if the clauses survive, the amendment then becomes of considerable importance to the future of this measure on criminal justice.
Lord Archer of Sandwell: A few moments ago the noble and learned Lord, Lord Simon, reminded the Committee that under existing law there are three stages in the investigation of an offence by a police officer. The first is when the officer is simply seeking to ascertain whether an offence has been committed and perhaps the identity of the person with whom he is discussing it. The second is when the officer has reason to believe that that person has committed an offence and, at that stage, Code C under the Police and Criminal Evidence Act requires that certain steps shall be taken. There shall be a note made of the questions and answers. At an early stage that note should be offered to the suspect so that he can read it through and signify whether he agrees with it. There is then the stage when the suspect is arrested and at that stage, under Code C, further safeguards come into existence. The suspect must be taken to a police station and must not be examined further until he reaches the police station. The suspect must be offered legal assistance. All the other safeguards then follow.
If, at any of those stages, the appropriate safeguards are not observed—and the safeguards are there for all the reasons that were indicated by the noble Lord, Lord Windlesham, a few moments ago and exist largely to eliminate arguments about what was said and whether it

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was said without due consideration—there is usually an application to the trial judge as a matter of discretion to exclude evidence of the answers. That obtains even if the question evoked a confession. So, even if there is a confession, fairness is usually thought to require that evidence of it should be excluded.
If even evidence of a confession is excluded on the grounds of fairness, surely it must follow that evidence of silence should be excluded. Normally, that would be the position under existing law. Unhappily, however, as the noble and learned Lord, Lord Simon, pointed out, the Bill does not distinguish those three stages nor their consequences, so we cannot fit into the Bill the safeguards that should come into play at each stage. However, the amendment of the noble and learned Lord, Lord Ackner, goes very far to remedy that defect. For that reason, I hope that the Committee will support it.
Lord Hailsham of Saint Marylebone: Perhaps I may add just a word or two to what I said previously. I thought that I detected a note of criticism from my noble and learned friend Lord Ackner who pointed out that in my previous remarks I had not said anything about the information which might be available either to the police or to the learned judge, but not to a jury, concerning the previous record of the accused and so it is rightly excluded on the basis that it would have an emotional effect on a jury or tribunal that is disproportionate to its probated value. Perhaps I may respectfully say to my noble and learned friend Lord Ackner that I wholly agree with that general proposition and that I omitted that aspect of the matter intentionally because it did not seem germane to the point that I was seeking to make.
Having said that, I do not believe that, as drafted, the present amendment will do. It makes too many assumptions about the circumstances in which the silence or the speaking of the accused or the suspect takes place. Take this simple example. Let us suppose that a man knocks at your door. You appear at the door of your house and in reply to a question as to your name, you say, "Yes, I am Mr. Quintin Hogg"—I use that name without prejudice—and you add the words, "It's all right, Robert, it's a fair cop", I rather doubt that the absence of a tape recorder ought to do me much good and nor do I think that if I did not have a lawyer present, that ought to do me much good. In that supposition of a case, the policeman would not have had an opportunity, having asked a very simple and proper question as to my identity, of informing the person concerned of the purpose or nature of the questions that he is to be asked.
Therefore, I do not think that, as a piece of parliamentary draftsmanship, the amendment will do. However, I suggest that those are all factors that we should take into account during the course of these proceedings. My belief is that we shall not reach a final conclusion in Committee. We shall probably have to return to this matter at a certain stage on Report. I shall say no more.
Lord Ackner: Does my noble and learned friend appreciate that my amendment is dealing with silence
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and not the characteristically communicative way in which he greeted the policeman? That would of course be foolish but wholly admissible as the law now stands.
4.30 p.m.
Lord McIntosh of Haringey: The words of the noble and learned Lord, Lord Hailsham, are undoubtedly wise. It may well be that we are unable to reach a firm conclusion in Committee. I hope that he is wrong because I believe that there is an alternative; that is, the package presented in the group of amendments which will be led by the noble Viscount, Lord Runciman. There is no doubt that if the amendments tabled by the noble and learned Lord, Lord Ackner, were carried the Bill would be better than it is. Any safeguards of the kind that he proposes are of benefit and to that extent my noble and learned friend Lord Archer is right.
As with the amendment tabled by the noble Lord, Lord Campbell, I hope that the noble and learned Lord, Lord Ackner, will not pursue his amendment to a Division. A number of Members have suggested that we should take a decision on the circumstances under which we need to have Clauses 32 and 33 in the Bill. That opportunity will be provided by the next group of amendments. According to the way in which the vote went, we could return to more detailed questions of safeguards at a later stage. I urge the noble and learned Lord, Lord Ackner, not to press this series of amendments to a vote.
Lord Campbell of Alloway: I totally accept that the amendment tabled by the noble and learned Lord, Lord Ackner, is better than nothing and will improve the Bill. However, as the noble and learned Lord, Lord Hailsham, also said, I sought to point out my reservations, which may or may not be right or find favour when the matter is considered in detail.
As the amendments stand, in particular as regards Clause 35, they are not quite right and require further consideration. I agree that the whole matter should be further considered and that we should come back on Report if possible with an agreed amendment in the spirit mentioned by the noble and learned Lord, Lord Lowry, on Second Reading.
I do not seek to criticise the amendment tabled by the noble and learned Lord, Lord Ackner; I have given my reservations. However, I hope that he will withdraw it so that further consideration may be given to the matter.
Lord Elton: In order that consideration may be mature, will my noble friend Lord Ferrers help the Committee on a point which I have briefly raised? Members of the Committee have heard many illustrations today. The subject, unless mentioned by my noble friend Lord Renton or myself, has been a competent adult. As I read the Bill, Clause 32 makes no mention of the age of the person concerned. As Clause 33 specifically disapplies the clause to children, who are defined in Clause 36 as people under 14, it follows that the clause will catch children and that a proportion of them will be the same children who are caught by Clause 1, on which we devoted some time last week as regards secure training orders.

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In those circumstances there is a need for reliable safeguards. Although Clause 32(1) (a) strikes very wide and includes the failure to mention any fact relied on in his defence—and that may be at the beginning of the whole story on a dark and windy night on the doorstep —there is the modest safeguard in line 18. That provides:
"in circumstances existing at the time the accused could reasonably have been expected to mention".
There is therefore some element of intelligent clemency.
My anxiety is further aroused not merely by the maturity of the people who may be concerned. They ought not, as in the amendment tabled by the noble and learned Lord, Lord Ackner, to be allowed to sign away their right to have a lawyer present. I dare say that there are other provisions in statute which will prevent that, as is the case in paragraph (b) of his amendment. Clause 32(4) provides:
"This section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders".
As the ignorant spectator of this rather splendid and interesting tennis match, I would like to know who those people might be, the kind of questions that they would be likely to be asking and the penalties to which those who were questioned by them might be liable. I believe that Members of the Committee consider that, in respect of this point, there is a need for reassurance and for safeguards in the Bill. Children stand in need of that more than most.
Lord Hooson: For a number of years it has been known on these Benches that I have been in favour of modifying the right of silence but only in carefully structured circumstances. Indeed, I have spoken in the House about it. We should all do well to consider the pressure that has arisen to do away with the right of silence. When I started at the Bar there was no real pressure. That pressure has grown because of the increase in offences such as the carefully organised terrorist offences and internationally-planned crime, in particular in drugs and so forth. It is difficult for the police to deal with those matters. The pressure to modify the right of silence has not grown as a result of the ordinary run-of-the-mill criminal investigations by the police.
I have always taken the view that in certain circumstances an interrogatory element should be introduced into our law. I have suggested that in certain terrorist cases and serious matters a magistrate should be called to preside over the interrogation of the suspect. The interrogation would be conducted not by the magistrate but by the police in the presence of a lawyer, if necessary, on behalf of the accused. The lawyer would have no right to intervene but would have the right to advise his client. In such a structured circumstance the right of the prosecution to comment on the silence should be granted.
In present circumstances the great problem with any kind of amendment to the right of silence is that the safeguard proposed by the noble and learned Lord, Lord Ackner, merely helps the people who benefit most. They have been carefully tutored in our law to use the right of
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silence to their greatest advantage. For example, paragraph (b) of the amendment requires a lawyer to be present. The sophisticated people who advise terrorists and internationally organised criminals would immediately advise that no lawyer should be present. That would, therefore, do away with the right to comment.
I entirely agree with the noble and learned Lord, Lord Ackner, that if one is to modify the right of silence one needs considerable safeguards. One must ensure that the man who is easily influenced by the police and by the atmosphere in the court, or the man who by misfortune is holding something back because it is highly embarrassing to him or to his family, is safeguarded. I doubt whether this kind of amendment can achieve that.
The more that I have listened to and read about these matters the more I believe that until we have had a basic reassessment of the way in which we deal with the highly internationally-organised terrorist offences and other sophisticated, internationally-planned criminal activities it is better for us to preserve the right of silence exactly as it is.
Lord Monkswell: I am rather hesitant about entering into the debate as I am not a lawyer nor do I have much experience of courts and so on. But we are discussing, as I understand it, the general subject of the right to silence. The noble Lord, Lord Renton, mentioned the difficulties faced by people who may have a mental illness or a mental handicap. The noble Lord, Lord Elton, has highlighted the problems with regard to children.
Perhaps I may speak on the subject of what I might generically call "honourable people" as being an exception to the generality. We can all understand the laudable wish of the police, the judges and lawyers to hasten the process of justice to ensure that guilty people are put behind bars as quickly and as efficiently as possible. Therefore, they put pressure on people or encourage people involved in criminal investigations to come forward with explanations of their circumstances. However, I am curious as to how safeguards can be built in with regard to the right of silence—that is, having a lawyer present and a tape recorder running—if the person says nothing. Let us suppose that an accused says nothing and is effectively silent. Let us suppose that that fact is then brought to the attention of the court and that the court is told that although he had a lawyer present and a tape recorder running the accused was still silent. The implication is that the court is being terribly reasonable and that everything has been done to protect that person and so on. Still that person is silent. What inference will be drawn from that?
Perhaps I may suggest a few reasons why someone may be silent; first, to protect his good name. I shall tell the Committee a little joke which may help to illustrate my point. A farmer once showed some people round his farm and they noticed that there was a patch in the field that was uncultivated. They asked the farmer why that patch was uncultivated and the farmer said, "That is where I had my first sexual experience". The people then said, "But there is another patch in the same field a little further away. Why is that uncultivated?" He said, "That's where her mother stood". They said, "What did

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her mother say?" "Baa," was the response. That is rather a poor joke but it may help to illustrate why someone may be in a particular place but may not wish to talk about it or give any explanation as to why he is there. It may be that he was there because it had a particular association for him, something which involved no criminal activity but which would reflect badly on the name of the individual involved which he would not wish to become public knowledge.
People may be silent in cases where the honour and reputation of someone else is involved. If that were the case and the identification of someone would cause damage to be suffered to his good name, although again no criminal act had taken place, an honourable person may wish to prevent that fact coming into the public domain.
We must recognise that at present, the criminal justice system leaks like a sieve. Effectively, information which comes to the knowledge of the police very rapidly finds its way into the public domain and into the newspapers. One has only to remember the newspaper reports which followed the unfortunate death, in rather curious circumstances, of a Member of the other place not too long ago to realise how that information can become public knowledge.
There are a whole range of perfectly valid reasons why honourable people may wish to be silent when questioned by the police. They may keep that silence to the point of conviction itself for reasons that were important to them as individuals. They may not feel that it was right for them to seek to defend themselves or to give an explanation of the circumstances. It is important that we should recognise that that is a perfectly justifiable course of action for a person in this country to take. Therefore, the right to silence should not be denied in the terms proposed by the Bill.
4.45 p.m.
Lord Wigoder: I agree with my noble friend Lord Hooson that Clause 32 should not stand part of the Bill and in due course I shall seek to contend that. Should it do so, I disagree respectfully with my noble friend because I do not believe that there is time for the basic reassessment for which he perfectly properly calls. If Clause 32 stands part of the Bill, we should espouse the amendment in the name of the noble and learned Lord, Lord Ackner, as the basis for discussions to ensure that fully satisfactory safeguards are written into the Bill.
I am encouraged by the thought that should the amendment be tabled again on Report, the noble Earl, Lord Ferrers, is bound to receive it with enthusiasm. After all, it would represent the views of the minority of the Royal Commission and it is that minority, on this issue, whom the Government have praised so often for their perception and wisdom.
The Lord Bishop of Lincoln: I wish to support what the noble Lord, Lord Wigoder, has just said. That image of a silent and innocent defendant lies deep in our Judaeo-Christian tradition. Members of the Committee will recall that in the Old Testament, the Prophet Isaiah speaks of the servant of the Lord as being oppressed. He was oppressed and he was afflicted and yet he opened
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not his mouth. Those verses reappear in the New Testament in Acts at chapter 8, verse 32, at the conversion and baptism of the Ethiopian minister by the deacon Philip. Those words are clearly intended to refer to the conduct of the innocent Jesus at his. trial.
That tradition gives the Christian Church a special concern for the rights of the innocent and particularly those who are weak and not readily able to speak for themselves. It is against the background of that religious tradition and the practice of law in this country, and given the findings of the recent Royal Commissions, both of which sought to maintain rights to silence as essential safeguards against miscarriages of justice, that I should wish to reject Clause 32. I wish to argue also against the proposed new wording of the caution to be administered by the arresting and charging officer. I believe that that is confusing for a vulnerable defendant I believe also that it is modelled on the caution currently in use in Northern Ireland which has not been shown, it seems to me, to have improved the conviction rate in that jurisdiction.
Drawing adverse inferences from the silence of suspects and defendants on arrest in the police station and during trial would, in the opinion of many it seems, reverse the traditional presumption of innocence. I therefore ask Members of the Committee to associate with me in supporting the comments recently made by the noble Lord, Lord Wigoder, and to reject Clause 32.
Baroness Elles: Perhaps I may draw the attention of the Committee to a recent article written by a former police Commissioner, Sir Peter Imbert, which was reported in The Times on May 17th. He says:
'The Government does not want to abolish a suspect's right of silence. What is suggested—and what the Lord Chief Justice: appears to support—is a right to comment by the prosecution if the defendant—having maintained his silence until trial—then advances as his defence an apparently innocent explanation which a reasonable person could have been expected to have given earlier".
I suggest that that is a perfectly fair and reasonable comment. I am very grateful for the comments made by the noble and learned Lord, Lord Ackner, in setting out the terms of Amendment No. 25A. I believe that that goes some way to providing the safeguard measures, which seem to be absent at present from Clause 32.
I support Clause 32, especially in view of the great experience of Sir Peter Imbert who is a very wise man and widely respected both by lawyers and the police. The latter have a very difficult job to do. One of the objectives of the Bill was to convict apprehended criminals who can be proved to be guilty and to uphold such convictions. We have seen from very well-documented publications by Justice (which I have read with the greatest care) that there have been several cases where the unfairness at a trial led to the quashing on appeal of the conviction.
Therefore, we have two tasks before us. First we must possibly accept Clause 32. However, perhaps my noble friend Lord Ferrers would be willing to give some indication—and I believe that he has given some slight indication—that the Government would be willing to consider further safeguard measures which would meet the test of fairness and which, frankly, are not in the Bill at present. I believe that many Members of the

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Committee would wish to support Clause 32 provided that there was some way for all those who have tabled amendments or others who seek to support such amendments to provide adequate safeguard measures —and, indeed, the Government might take up such amendments—to discuss such matters between now and the Report stage.
Secondly, I ask my noble friend the Minister to consider the following. After hearing my noble friend's response, it is possible that the noble and learned Lord, Lord Ackner, will be willing to withdraw his amendment on the understanding that my noble friend the Minister will take very seriously the comments that have been made with regard to safeguard measures and agree to come forward with further proposals on Report.
Lord Annan: I hope that the suggestion of the noble Baroness will be taken seriously by Members of the Committee. It seems to me that we are slightly in danger of discussing whether Clause 32 should stand part of the Bill. However, I am sure that the Committee really wants to hear the noble Earl's reply to the noble and learned Lord, Lord Ackner.
Earl Ferrers: The noble and learned Lord, Lord Ackner, is always penetrating in his advice, suggestions and amendments. Indeed, he has been so today. I rather agree with the noble Lord, Lord McIntosh of Haringey, who said that he hoped Members of the Committee would not vote on the amendment. I have been asked by several speakers—notably, the noble Lord, Lord Annan, and my noble friend Lady Elles—whether the Government will consider such matters.
At the beginning, I said that we all have firm positions on principles. In other words, we will think various things and Members of the Committee will also have their views about the right to silence. How one operates the right of silence and puts it into practice is a matter of detail. We wanted to listen to what was said so as to ascertain the views held. Although we feel—as I hope to show when we discuss Clause 32 stand part —that there is a very important case for Clauses 32, 33 and 34, we would be the first to say that we have, as I said before, no monopoly of wisdom over the detail of such matters. We would certainly wish to hear the views expressed by noble Lords. I shall ensure that the views expressed will be taken into account.
Of course, I cannot give my noble friend Lady Elles the assurance that I shall return with a perfect amendment on Report. However, as I said, I shall ensure that such matters are taken into account. Similarly, I cannot give the noble Lord, Lord Wigoder, the lovely assurance that he wanted; namely, that whatever we bring back would have the enthusiastic support of the Chamber. Indeed, it depends what comes back. Nevertheless, that will be considered.
My noble friend Lady Elles was quite right to draw us back to the issue that we are really discussing—that is, the kind of evidence which is produced in a court which is unsuspected and unknown and which can, so to speak, totally throw everyone. The noble and learned Lord, Lord Archer of Sandwell, asked why fairness could not also apply to silence. The evidence of the
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accused's silence on police questioning could be excluded by the judge under Section 78 of the Police and Criminal Evidence Act if to admit it would be unfair.
My noble friend Lord Windlesham was concerned about safeguards and asked what the report of the Home Office working group had to say on the matter. That working group simply recommended that the court should be able to take into account whether the appropriate part of PACE safeguards was followed. The Government's proposals would allow a court or a jury to take that factor into account if they thought it was right to do so. It would be for the court or the jury to decide what inference they could properly draw in the circumstances.
My noble friend Lord Elton was concerned about children. I can assure him that all the clauses apply to children, except for Clause 33. The age limit for children is 14. My noble friend was also worried about Clause 32(4) which refers to Customs officers and others who are charged with a duty of investigating offences. The clause does not create any new penalties for failing to answer such questions.
As regards the matter that we are now discussing, I have already said that I shall certainly take into account the views expressed. However, I hope that Members of the Committee will also take into account the Government's reasons for putting such provisions in the Bill. They are important reasons, but we shall discuss that aspect in relation to clause stand part. What we are really concerned with is whether information given to the police at the scene of a crime should be available to the court. The fact that a man replies, "I am not saying" when questioned by a policeman is a matter of importance. The noble and learned Lord, Lord Ackner, said that he should be allowed to have a solicitor present. However, one then moves into the formal interview mode which is available at the police station, but one does so at the scene of the crime. The noble and learned Lord also said that the person should then be told the purpose and the nature of the questions that he will be asked. However, that is not the point. When a policeman first asks such questions at the scene of the crime, he may not know whether an arrest will be made or who will be arrested. Nevertheless, the person concerned may say something which is a matter of importance.
The noble and learned Lord said that the interview should be tape recorded and my noble friend Lord Windlesham said that we should use the word "recorded" in its broadest sense. Of course, we should like to do so; but the amendment refers to a "tape recording". We then return to the point that I made in relation to the amendment of my noble friend Lord Campbell of Alloway; namely, that it is very difficult to tape record something unless you use a portable tape recorder. Moreover, a portable tape recorder could be subject to all sorts of "monkeying" around and it would be most difficult to use as hard evidence.
I can see what the noble and learned Lord is anxious about. He is quite right to be anxious that there should be reasonable safeguards that what a person says should not be used in a way that would be deleterious or

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offensive to him if used in the wrong context in court. But I would suggest that if we were to use the amendment of the noble and learned Lord and incorporate it into the Bill, we would in effect be shifting all the principles of the Police and Criminal Evidence Act, and the safeguards at the police station, to the scene of the crime. I believe that it would be difficult to do that. What we are concerned with here is where the police go to a scene and they do not know what has happened, who the accused is or anything else and they ask people various questions, and if a significant question were to be asked, or a significant answer were to be given, or not given, at the appropriate time, that should be available to the court for the court to decide the weight that should be given to that evidence.
I accept that these are complicated matters but I hope that the Committee will be prepared to consider all the points which the Government have made, and will make on these matters. The fact is that quite a few people nowadays get away with things because of certain protections which are available to them, and that can frequently result in the courts coming to a conclusion simply because the. evidence which has been available is not available to the court.
5 p.m.
Lord Ackner: I am most grateful to the noble Earl for giving us, as I take it, an assurance that he will consider adding safeguards to this particular section. I do not suggest that what was said at the scene of the crime—if it is positive—is in any way prevented from being admissible. One is concerned with silence and only silence. I see no reason why at the interrogation where the lawyer is present, it should not be put to the accused, "When you were asked at the scene what explanation you had for being in the garden of the house where the burglary took place, did you not refuse to give any answer"? To which he may say, "Yes", or he may say, "No that is quite untrue", or whatever the reply may be. But this is an opportunity to get on record what took place at the scene and to avoid, I would have thought, all the kind of voire dire and complications which so often occur.
I do not propose to press this amendment at this stage although when the matter returns on Report I am sure that the Chamber will expect some positive input from the Government as to protection, particularly when one bears in mind that the Royal Commission's report has been out for nearly a year and what I have basically done is to incorporate in the amendment the views of the minority report to which the Government have so often referred back. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 32 shall stand part of the Bill?
Viscount Runciman of Doxford: I rise to oppose the Question that Clause 32 stand part of the Bill and to speak also to Amendment No. 26 standing in my name and the names of other noble Lords, and to the Question that Clause 33 stand part of the Bill. I have to admit I do so in a state of almost total procedural bafflement. The Committee must forgive me as my experience in the
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ways of this Chamber is limited. I can only liken my feeling, if I can borrow a metaphor from the industry in which I gain my living, to navigating in the dark on a moonless night without radar in a busy shipping channel.
Let me try to explain the purpose that the four of us have in mind and let me also say, by way of preface, that I agree with what has been said by the noble and learned Lord, Lord Ackner, to perhaps a greater degree than might have been supposed by those Members of the Committee who heard us differ on certain aspects of the Bill on the debate on Second Reading. I greatly welcome what he has said this afternoon and I am modestly encouraged by the response of the noble Earl, Lord Ferrers, to what he has said.
The regime which we have in mind would serve the following twofold purpose. First, it would remove the risk of wrongful conviction resulting from undue pressure on vulnerable suspects in police custody. But, secondly, it would impose on the defence a requirement of disclosure when, but only when, the defendant has been adequately informed about the nature of the charges against him or her and has had, unless it has been explicitly refused, considered legal advice. Therefore it follows that adverse inference could then be drawn at trial if, but only if, a defendant had either failed without good reason to provide a defence statement or had departed substantially and without good reason from a case which had been disclosed.
I wish to emphasise, if I may, that the signatories to this debate and to the amendment cover all parts of the Chamber. This in my view is in no sense a party political matter and I am sure that every Member of this Chamber wants to see convicted at the conclusion of criminal trials only those defendants who are guilty beyond reasonable doubt of the offences with which they have been charged. The issue is—here I entirely agree with what I understood the noble Earl, Lord Ferrers, to be saying—how in practice to achieve that aim so far as human fallibility allows.
I do not wish to rehearse all of the arguments which were advanced on Second Reading by myself and by others against the Government's proposals as they now stand, but I must say that nothing I have heard or read since, including what I have heard this afternoon, has led me to doubt that I was right in what I told the Chamber would be the consequences if these proposals are passed into law in their existing form. They must inevitably increase to some degree the risk of innocent defendants being convicted of crimes which they did not commit. That is something which I do not believe any Member of this Chamber can contemplate with equanimity, least of all when we know that the safeguards in PACE have failed to prevent a small but disturbing number of cases where a person has been convicted on the strength of a supposed confession of a crime which, as it turned out subsequently, that person could not possibly have committed.
It is not as though there will be a concomitant increase in convictions of the so-called professional criminals which would not in any case be obtained on the strength of the evidence adduced by the Crown and

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the direction which the judge will give, as now, where the defendant has said nothing to undermine, contradict or explain that evidence.
I recognise, of course, that there is room for argument on this issue and there has been debate—there was considerable debate in the Royal Commission—as to whether there is a case for amending the specimen direction which I used in the Second Reading debate as the basis on which I for one am satisfied that a jury will be properly directed. However, I defer to those whose experience of case law is a great deal better than mine. I am conscious that the noble and learned Lord, Lord Taylor of Gosforth, is sitting not far away on my left.
What will happen, inevitably, if this Bill is passed in its present form is that the length and therefore the cost of criminal trials will be significantly increased to no great purpose, if any, by the protracted legal arguments which there will be about the reasonableness of a defendant's decision to stay silent, as the defendant will have been advised to do, and the impropriety of any adverse comment on that silence. Indeed, several of the leading counsel whom I have consulted on this matter have said to me that if they had their own pecuniary interests at heart instead of opposing the proposals, as they do strongly, they would welcome them with open pockets.
In saying that, I am aware that the whole matter of prosecution and defence disclosure will feature in a subsequent Bill. That makes it all the more troubling that the Government should have proceeded on this issue without proper consultation, against the advice of the Law Society and the Bar Council, and also of the National Association for Mental Health which has voiced some serious anxieties, which were echoed in part in the remarks of the noble Lord, Lord Elton, and other speakers this afternoon. I share those anxieties. I am also grateful to the noble Lord, Lord Windlesham, for reminding your Lordships that the recent Royal Commission, although it was not unanimous on this matter, was unanimous in the sense that the minority agreed with the majority of nine that we must build on and not undermine the existing provision of the Police and Criminal Evidence Act and that any possibility of adverse inference from silence under police questioning must be conditional on legal advice and tape, video or some other form of recording of the interview.
Questions of disclosure and the question of the so-called right of silence ought, if possible, to have been debated together. It is a great pity that they have not been. Any proposed change ought to be analysed in the context of an integrated set of rules and procedures, all of which impact on one another. It is for that additional reason that I very much hope that between now and the Report stage there will be some move on the Government's part. No doubt others will make the same point later in this debate.
I have no difficulty in agreeing that adverse comment should be capable of being drawn from failure to provide a defence statement in advance of trial or from departure at trial from a defence previously disclosed. But the defence must be free to argue that in the circumstances of the particular case no adverse
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inference from silence can properly be drawn. The requirement of defence disclosure must be conditional on prior disclosure by the prosecution and adequate safeguards for defendants, whatever they may be, but they must be adequate and they must be firmly in place.
I believe that the regime which we propose meets those three conditions. I believe that it is flexible as well as fair. And I believe that it deals effectively with the problem of the ambush defences while at the same time affording the right degree of protection against undue or improper pressure.
5.15 p.m.
Lord Renton: The noble Lord's notice of intention to leave out Clause 32, his new clause after Clause 32 and his notice of intention to leave out Clause 33 are all grouped together. If those three Motions were to be carried that would produce a very strange situation in this Bill. Clause 32 deals with the:
"Effect of accused's failure to mention facts when questioned or charged".
That is the first circumstance in which the so-called right to silence—which is somewhat misnamed—arises.
For the benefit of those Members of the Committee who are not legally qualified, and for the benefit of the media and the public at large, the right to silence will remain whatever your Lordships do with the Bill. What is to be restricted is the attitude which the court may take, whether magistrates or a judge in a trial on indictment, and the inferences which the jury may draw, whether or not invited to do so.
Clause 32 deals with questioning by the police and what may arise in those circumstances. The proposed new clause after Clause 32 deals with proceedings which may take place at the trial by way of service of notice on the defendant. I should note in passing that whereas Clause 32 refers both to proceedings before magistrates and proceedings on indictment, the new clause in Amendment No. 26 refers only to trial on indictment and therefore could not be thought to have replaced Clause 32. It is not a mere technicality; it is a question of real substance which we have to bear in mind.
I now come to Clause 33, which again deals with quite separate matters. It overlaps to some extent with what is set out in Amendment No. 26. The clause deals fully with the effect of the accused's silence at trial.
The noble Viscount, Lord Runciman, may have asked for those three matters to be grouped together merely so that the Committee can have a general discussion on all three. I shall gladly give way if the noble Viscount wishes to clarify the matter.
Viscount Runciman of Doxford: That was indeed the intention.
Lord Renton: I am most grateful. If that is the intention I can save the Committee's time by not raising other points that I had intended to raise.
I conclude by saying that I believe that it would be unfortunate if we were to omit from the Bill either Clause 32 or Clause 33. At present I am keeping an open

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mind on the proposed new clause in Amendment No. 26 until I hear what my noble friend Lord Ferrers has to say.
Lord Stewartby: As my noble friend Lord Elton and others have said, this is a subject which can be considered in two entirely different ways. It can be considered either at a very sophisticated, technical, legal level or, by the rest of us who in terms of the voices raised this afternoon are certainly in the minority but I suspect in general are in the large majority; namely, those who have to come to the issues from a more general and non-professional point of view.
I have to warn the Committee that what I want to say on the subject is serious heresy. I do not mean heresy in terms of Canterbury but real heresy. If any Members of the Committee who belong to the legal profession have a blood pressure problem I suggest that this would be a convenient moment to have a cup of tea. I feel that in a debate of this kind it is necessary for somebody—and it looks as though it will fall to me—to put the flat earth view.
We have a serious problem, which is widely perceived outside, in that for all their tremendous integrity our legal processes in many cases throw up the wrong answers in the form of criminals being acquitted. Outside this Chamber, outside Westminster and outside the legal profession one could take it that a large majority of people in this country believe that the scales of justice are tipped much too far in favour of criminals and, by definition therefore, against the interests of the great mass of law abiding citizens of this country. That is why I so enormously welcome the inclusion of those clauses in the Bill. I deeply regret the fact that I have to make these comments in response to the noble Viscount, Lord Runciman, and to amendments which carry the name of my noble friend Lord Alexander and other noble Lords for whom I have great respect. Nothing I say diminishes the respect I have for them and for other noble and learned Lords in this House who have spoken today about the need to place safeguards on these provisions.
I am no longer closely in touch at the sharp end with the views of the electorate, as a few years ago I might have been. However, a brief sample of the views of the inhabitants of Stewartby at the weekend convinced me that views have not changed. It is generally regarded by the public at large that every acquittal of a criminal as a result of the technicalities or the safeguards of the legal system is in itself a miscarriage of justice. On its own it may be a rather modest miscarriage of justice, but cumulatively the fact that so many people who have committed crimes come before our courts and are not convicted offends many people outside your Lordships' House.
Perhaps I may say this to those who have developed the arguments for the sophisticated protection, the safeguards, which might be introduced in relation to these clauses. I hope that if such safeguards are acceptable to the Committee, they will not circumscribe the provisions in the Bill in such a way as to make them less effective in achieving the conviction of malefactors. Ultimately, the safeguard which every accused person
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has is the judgment of the court. What is wrong with trusting the judgment of the court? The court has to work on the information before it. What we have been discussing regarding matters of silence is relevant information. Either the courts are equipped to make judgment in the light of the information before them, or they are not. If they are not, the whole of our legal system over many centuries has been a waste of time. I do not believe that that is the case. Why should those who enjoy the protection in our system of justice—and indeed there is much protection—have such protection if they are not prepared to participate in the system by answering questions which are put to them in the course of a case?
There has been much detailed discussion about the difference between silence before a case comes to court and silence after a case has come to court. I accept that there are differences. But ultimately there is one aspect which is the same. Concern has been expressed that these clauses would cause danger for accused who are in some way vulnerable: perhaps they are people who are timid by personality; they may be overwhelmed by the circumstances in which they are asked the questions; or there may be other such problems. But there are opportunities for those matters to be explained; and if we assume that courts are not capable of making a distinction between those who are carefully briefed to maintain silence and those who have been silent at a certain point for other reasons of vulnerability, then we indicate that we do not have nearly enough confidence in the courts. I hope that the courts can be trusted to make such distinctions.
What do the innocent have to hide? They have nothing to hide. What do the vulnerable have to fear if it is possible for them or their representatives in court to make quite clear the reasons why at a certain point they preferred or happened to remain silent?
This is a terribly heretical speech in the middle of a number of impressive technical legal contributions to our debates. I hope that the Committee will accept the speech in the spirit in which it is offered. I feel that sometimes in your Lordships' House—it is not a criticism of noble Lords—we become so preoccupied with the technicalities that for a moment we may take our eyes off the main issue. The main issue is whether we have a system of justice which by and large produces the right results. I think the Committee would have to admit that outside your Lordships' House it is felt that however subtle the process may be, if it tends to lead to the wrong results, that system needs to be looked at again.
Lord Bonham-Carter: Before the noble Lord sits down, perhaps I may ask him two simple questions. First, what is the evidence on which he speaks for the vast majority of people outside this House? Secondly, will he explain to me what he means by the acquittal of a criminal?
Lord Stewartby: I had sat down thinking that the Committee had had enough of me already. However, I shall respond to both questions. I said I believe that it remains the case, as I am convinced that it was the case at the time that I had the privilege and responsibility of

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representing 80,000 of our citizens, that it is widely considered outside Westminster and outside the legal profession that too many malefactors fail to receive their just deserts because of technicalities in the legal system. That is all that I can say. It is my impression, and anyone can contradict it. My definition of a criminal is someone who commits a crime.
Lord Campbell of Alloway: Perhaps I may—
Lord Alexander of Weedon: I am most grateful to my noble friend Lord Campbell for giving way. I would certainly not wish to accuse my noble friend Lord Stewartby, for whom I have a very great and genuine respect, of being a heretic. But I know that he will bear in mind that slightly over three years ago a Royal Commission on Criminal Justice under the chairmanship of the noble Viscount, Lord Runciman of Doxford, was established, not because of concerns of society that we were failing to convict the guilty but because of concerns about wrongful convictions which were being seen to sap confidence in our system of justice.
I believe that the Committee today has to consider this issue with two objectives in mind: first, that clearly our system should be improved so as to convict more of those who are guilty; and, secondly, that it needs to be further improved to safeguard the rights of those who otherwise might be wrongly convicted. It is in that spirit that I wish to speak.
I thank the noble and learned Lord, Lord Ackner, for the meticulously fair way in which he stated my position and the position of Justice of which I am chairman. Those of us who oppose this clause are not just clinging to some outdated tradition; quite the contrary. For my own part, I have long argued that our trial system is inefficient and cumbersome and needs a much sharper focus. There is far too much scope for the defence to seek to confuse the jury. Justice demands not only fairness to the defendant but fairness to victims, witnesses, the public and, too, the tolerant juries. Therefore I willingly support the proposal that a judge should have the right to make sensible comment if a defendant does not go into the witness box when the case against him clearly calls for an answer. By then the defendant is advised by a lawyer and has ample time to seek to do justice to himself.
I also strongly endorse the proposal contained in one of the amendments that well before trial a defendant should be required to indicate the nature of the defence. When the prosecution case is known and the defendant has an experienced lawyer that is wholly fair. It should not harm, and indeed may help, the innocent. But it should also—and this is admirable—make it harder for the guilty to avoid conviction. I am wholly against surprise defences and I very much hope that in his response my noble friend Lord Ferrers will indicate his sympathy with our proposal in that respect.
In taking those steps forward to focus the trial, what we must not do, by one iota, I suggest, is to increase the chances of convicting the guilty.
Lord Hailsham of Saint Marylebone:The
innocent.
Lord Alexander of Weedon: The innocent. I am grateful to my noble and learned friend for listening to me so carefully. I believe that changing the emphasis in the police station carries that risk. I acknowledge that the amendments proposed by the noble and learned Lord, Lord Ackner, would lessen the risk, but I remind the Committee that the amendments are no more than minima. Two members of the minority on the Royal Commission favoured change. They proposed the safeguards which the noble and learned Lord seeks to introduce and we do not yet know whether the Government will accept them. However, even if they were acceptable, like the noble Viscount, Lord Runciman, who chaired the commission, I go along with the majority on the commission.
We are not talking here about the risks to hardened criminals. I believe that hardened criminals in the police station would continue to play the system, whatever the law and whatever safeguards were in force. We are concerned about risks to the less intelligent. Research was carried out for the Royal Commission which showed that typical suspects—I am not now talking about hardened criminals—are neither intelligent nor lucid. Three clinical psychologists assessed 156 suspects in London police stations. They found them particularly prone to give misleading or incorrect information. The average IQ of the suspects was 82, within the bottom 15 per cent. of the general population. Ten per cent. of them were mentally ill, mentally handicapped or brain-damaged; another 5 per cent. had language problems or were illiterate.
Add to that that the police station is, I suggest, for many, however well the interview is conducted, a strange and intimidating place. A president of the Law Society who is a contemporary of mine and for whom I have the greatest respect said to me that his impression was that many duty solicitors find the police station intimidating.
Nor is it simply a matter, as is sometimes suggested, of explaining why someone is in a particular case. I remind the Committee that the clause indicates that an adverse inference may be drawn from a failure to disclose any fact at all which is later relied on by way of defence. Is that not a charter for questioning which could bear oppressively and unjustly on those who are less intelligent than noble Lords, who would instantly be able to handle lengthy questioning?
Lord Renton: It is good of my noble and learned friend to give way. I am not sure whether he was in the Chamber earlier when I said that in relation to Clauses 32 to 34 we had to consider carefully safeguards for vulnerable people. I used that comprehensive phrase to describe all those whom he mentioned. Is it not possible to accept the broad principle in Clauses 32 and 33 which we are now discussing and ask the Government between now and Report stage to consider ways of protecting the position of those who are vulnerable?
Lord Alexander of Weedon: That is obviously attractive in principle, but the real difficulty arises when

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we look at it in practice. The overwhelming majority of suspects to whom I referred in the Royal Commission report were found to be vulnerable on analysis. But how will that analysis be conducted in the police station? How will the accused be able to deal with the circumstances in which they are put?
My noble friend Lord Renton said that the right of silence was not being removed. Theoretically, that is right. However, perhaps I may read the Committee the caution which, as I understand it, is the latest thinking as to what will be said to all those arrested in the police station in an unusual environment:
"I am going to put some questions to you. You are not obliged to answer them. But if you do not mention now something which you later use in your defence, the court may decide that your failure to mention it now strengthens the case against you".
What is the average person to make of that? How real is the right of silence for that average person? Are we not perpetuating a fiction, pretending to preserve the right of silence but in fact making a grave erosion into it?
I remind the Committee of this. Two Royal Commissions in the past 15 years have cautioned against interfering with the right of silence in the police station: the Runciman Royal Commission and the Philips Royal Commission. The Philips Royal Commission said in 1981:
"It might put strong (and additional) psychological pressure upon some suspects to answer questions without knowing precisely what was the substance of and evidence for the accusations against them".
When one comes to the Runciman Royal Commission, the majority endorsed that. The majority recommended against interfering with the right of silence. Yet, in weeks and without reasons, the Government had rejected that recommendation. That is why, although I strongly support the Government's basic objective of improving criminal procedures, with great regret and apologies to my noble friend Lord Ferrers, I find it difficult to go along with this measure.
Baroness Mallalieu: As a practising member of the Criminal Bar, I add my concern and opposition to Clauses 32 and 33. My opposition is shared not only by the Bar Council and the Law Society but also by the Criminal Bar Association, barristers and solicitors who both prosecute and defend, who are not motivated by political considerations and do not share the same political views but are motivated by a desire to see justice done and the avoidance of future miscarriages of justice both ways—that is to say, guilty people getting away with it and innocent people being wrongly convicted. It is significant that we all fear that the result of these clauses will be that more who are innocent of crime may be found guilty of it.
I do not wish to repeat what other Members of the Committee have already said, but perhaps I may try to rephrase the way in which the noble Earl, Lord Ferrers, tried to express the debate that we are having in a sentence. I would put it rather differently, in this way: should we elevate to the status of evidence something which is not evidence in our law at present?
The Home Secretary was kind enough to see those of us who are both members of the Bar and Members of this House and another place before the Bill started its
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passage through Parliament. I know that the noble Lord, Lord Renton, was there. A number of those present were concerned about the evidential status of silence on the part of the accused if this part of the Bill becomes law. The Home Secretary explained it to us in this way. If an accused person says nothing, then that on its own will not provide the prosecution with a prima facie case. However, if there is any other evidence, the silence of the accused may be treated as evidence for the Crown and may therefore make the difference between a case which is stopped at the close of the Crown case as having insufficient evidence and one which is left to the; jury to consider. In other words, silence on the part of the accused thus becomes positive evidence of guilt as a result of these clauses.
For me and others, that causes great disquiet because it does not seem to lie well with the cardinal principle of the criminal law that the burden of proof remains on the Crown. It seems to me to chip away at that principle. To use an analogy that was used earlier by the noble and learned Lord, Lord Hailsham of Saint Marylebone, in a case where there is insufficient evidence—amounting perhaps to a half on his scale—these proposals would add nothing to that half, leaving a case to the jury when it should not be.
Various Members of the Committee have spoken about vulnerable people and how they could be protected. The noble Lord, Lord Renton, in particular has returned to this matter. But vulnerable people fall into very many more categories than those who have already been mentioned. Vulnerable people decide either not to speak to police or ultimately at trial they decide not to give evidence for a variety of reasons. Of course there are some who do not speak because they are afraid that, if they do so, their guilt may be revealed. But there are also a great many more who are frightened. They are frightened of a policeman. They are frightened in court of facing what is perhaps generally regarded as a clever lawyer who will tie them into knots. There are people who are frightened because they are inarticulate and know that they are inarticulate; they are frightened of giving a poor account of themselves. And what about the bloody-minded?—people such as those referred to by the noble Earl, who say, when asked if they have anything to say, "Mind your own business". They may still be innocent. Perhaps they are vulnerable too. It is not just a question of physical disabilities, such as that referred to by the noble Lord, Lord Renton; there are other forms of disability and handicap which may greatly affect somebody's decision either to speak to the police or, later, to stand up on oath and give evidence before a jury. One should never forget that there are many people who are accused of crime who may be anxious to protect particularly friends or relatives, but also other people, and who do not speak for that reason.
Like the noble Lord, Lord Alexander of Weedon, I support Amendment No. 26. I accept that some changes are undoubtedly necessary to the present arrangements. I am very doubtful whether there are many so-called ambush defences. In 24 years at the criminal Bar I have never come across one; and I have come across very few other people who have ever done so. Nonetheless, it seems to me to be right and desirable that not only the

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judge and the jury but also the prosecution should know the issues in a case when the case begins, and not wait to see what the defence issues are as the case unfolds. The provisions of Amendment No. 26 seem to me to be sensible and important ones.
The present law has the advantages of simplicity and clarity which are understood by everyone. There is no law at the moment of adverse inferences. There is no requirement to explain to juries what they might mean. These clauses take us into a minefield. It is a minefield of lay confusion. The noble Lord, Lord Alexander, had only to read out the caution to see where we are getting there. It is a minefield of extensive legal argument. I have to say, it is a lawyer's benefit. In every case, in the absence of the jury, there will be lengthy discussions as to what inferences can probably be drawn from the evidence and as to how the judge is to direct the jury. And subsequently, there will be lengthy appeals because the judge will be claimed to have got it wrong.
There is scope for misdirection. In other parts of the Bill the noble Earl is trying to make life easier for judges by assisting with simplification. But in this field he is providing a danger area which at the end of the day will undoubtedly lead to more appeals and more legal argument.
But above all, there is the danger of miscarriage of justice. I ask: for what? There has been no satisfactory evidence produced to indicate that this will result either in more justified convictions or in any reduction in crime. If the scales of justice really are to be tipped further in favour of the prosecution, they must not be tipped, as these clauses would bring about, in such a way as to cause the position of the innocent to be severely jeopardised.
5.45 p.m.
Lord Taylor of Gosforth: I much regret that I was not present in the Chamber at Second Reading. I was sitting in court in Cardiff. I do not propose to deliver the speech that I might have delivered on that occasion. But in view of the opposition in principle to Clause 32 by Members of the Committee, led by the noble Viscount, Lord Runciman of Doxford, the Committee may wish to know my views as Lord Chief Justice. While they are my personal views, I know that they are shared by very many judges. Provided that suitable safeguards are in position, I am in favour of the changes that are proposed in Clauses 32, 33 and 34 and—it has been almost forgotten—Clause 35.
Perhaps I may begin by stressing what those clauses do not do. Despite frequent loose assertions to the contrary, they do not abolish the right of silence. A suspect or accused person is still entitled under those provisions to remain silent. Silence does not constitute a criminal offence or a contempt of court. If a defendant maintains his silence from first to last, and does not rely on any particular fact by way of defence but simply puts the prosecution to proof, then Clause 32 would not bite at all.
Again, it has been suggested that the proposals would shift or lighten the burden of proof which rests upon the Crown. Not so. The initial burden on the prosecution is
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to establish a prima facie case which must be done by evidence other than the mere silence of the defendant. Unless that is done, there is no case to answer and none of the provisions as to comment on silence would come into play. If the case does go the full distance, the question at the end is whether the prosecution have established the guilt of the defendant so as to make the court or jury sure of it. That always has been the burden of proof and it remains so.
What then is the proposed effect of these clauses? Where there is a strong prima facie case against the accused at the end of the prosecution but it could be argued under the present law that there was a possible innocent explanation for the conduct of the accused which, while improbable, nevertheless raised a reasonable doubt as to his guilt, then, if the accused does not give evidence it will be open to the court to draw the inference that there is no reasonable possibility of an innocent explanation to rebut the prima facie case established by the prosecution, and for the drawing of that inference to lead on to the conclusion, after all the evidence has been considered, that the accused is guilty. That to my mind does not involve any shift or, with respect to the noble Baroness, Lady Mallalieu, any chipping away at the burden of proof. In this context, Clause 36(3) is of great importance. It provides that,
"A person shall not have the proceedings against him transferred to the Crown Court for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 32(2), 33(4), 34(2) or 35(2)".
In other words, the prosecution cannot rely on silence as proof of guilt.
A further misconception is that the provisions permitting adverse inferences from silence would apply in every case automatically. That is not so. First, the clauses permit such inferences in only three instances of a failure to answer police questions. First, where possession of some article makes the defendant a suspect; secondly, where his presence at some place makes him a suspect; and thirdly, in the event of his subsequent reliance on a fact at trial—not, with great respect, to the noble Lord, Lord Alexander of Weedon, any old fact—but a fact which, if true, he could reasonably have been expected to mention to the police during questioning. These are surely reasonable provisions. A man is found in your back garden with a bag of tools. Asked by a policeman why he is there, he says nothing. At trial he suggests for the first time that his employer sent him to do some joinery and he mistook the address. Why should he not have said that to the policeman when it could have been checked out? What is unfair about making a comment about his failure to do so to the jury?
Secondly—I am talking about how generally these provisions would apply—it would be for the judge to decide whether to make adverse comment and what advice he should give to the jury about drawing unfavourable inferences. Great anxiety has been expressed outside this Chamber and by a number of speakers today, notably the noble Lord, Lord Elton, about the vulnerable or the very young who may be disadvantaged by these provisions. Of course they must be very specially considered. But if such a defendant is

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before the court it will be for the judge in his discretion and in fairness to that particular defendant to direct the jury on whether any adverse inference at all, and if so at what strength, should properly by drawn from silence. I believe that to be an important and realistic safeguard. If the judge, in a case which calls out for an indication to the jury that no adverse inference should be drawn, fails to tell the jury so, the Court of Appeal is there to correct any misdirection.
But these provisions are not directed towards the vulnerable or towards the common run of first offenders. The evidence before the Royal Commission from the the police showed that, by and large, those defendants respond freely to police questioning. Indeed, we have been told today that the vulnerable say all kinds of things that are inappropriate. We are not talking about silence in their cases. The evidence before the Royal Commission also showed, and judicial experience confirms, that it is the experienced criminals charged with very serious offences who most frequently decline to answer any questions. It is against them that these clauses principally, and in my view properly, are directed.
The proposals before the Committee are in almost identical terms to those recommended by a very strong Criminal Law Revision Committee in 1972. I remind the Chamber that that committee was presided over by that great and supremely fair judge, Lord Edmund-Davies, and included Lord Justice Lawton and a number of other distinguished judges and academics. Since then, there have been three changes which strengthen the case for implementing these proposals.
First, the Police and Criminal Evidence Act 1984 has introduced a regime of controls over police investigations and questioning which gives much greater protection to a suspect than existed in 1972. As the noble Viscount said, there have been instances where even that Act has not protected the defendant. We are dealing with human institutions. On occasions, and particularly if people are minded to undermine the system furtively, there will be instances where things go wrong. We must do our best to prevent that happening. But to abdicate any responsibility for receiving evidence about what happens before all the electronic devices are in place at a police station is to ignore a very fertile and important field of evidence.
Secondly, and in conjunction with the 1984 Act, the technology of tape recording has added greatly to the safeguards against any unfairness in police interviews.
Thirdly, the proposals of the 1972 committee were implemented in Northern Ireland in 1988 with an undertaking by the Government that the like provisions would be introduced here at a later date. I have had the advantage of detailed discussions with the judge who has had unparalleled experience of conducting trials under the regime proposed in these clauses. Sir Brian Hutton, who is presently Lord Chief Justice of Northern Ireland, has no doubt that the proposals have worked satisfactorily and have not introduced any unfairness into the proceedings. In that he agrees with his predecessor, my noble and learned friend Lord Lowry, who was present a little earlier and who supported these provisions at Second Reading.
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It has been said that the Northern Ireland provisions have failed to increase the conviction rate in the Province. Indeed, the conviction rate has dipped slightly since 1988. Therefore, the argument runs, the changes, whether or not one likes them, have failed and will fail here to achieve their desired purpose. Had the conviction rate gone up dramatically in Northern Ireland, no doubt the reverse argument would have been applied that a lot of innocent people were being convicted.
With respect, that is a facile argument. There may be many reasons why the conviction rate in Northern Ireland has not markedly improved following the 1988 order. This is not the only ingredient in the whole recipe for criminal justice there. Statistics cannot indicate the number of cases in which people under question have chosen to speak whereas previously they would have remained silent; nor in how many cases defendants have given evidence at trial where previously they would not have done so.
Moreover, the same Justice report, of which organisation the noble Lord, Lord Alexander of Weedon, is chairman, deploys the contrary argument that under these provisions failing to testify at trial is likely to lead to the inference of guilt where previously it would not. Opponents of the provisions cannot have the argument both ways.
A criminal trial should not be a game. I am quite sure that most members of the public—juries are drawn from members of the public—would regard it as repugnant to common sense that no regard should be paid to the failure of a defendant to produce, when challenged at the scene, the trump card that he seeks to reveal for the first time at trial. There are those who accept that reality but say, "We need not make any change in the law because the jury can be relied upon to use its common sense". That amounts to saying that judges should continue to be bound to direct juries to have no regard to the defendant's silence at the scene of the crime, in the safe and cynical knowledge that, despite that direction, the jury will do what common sense dictates. I regard it as highly unsatisfactory that judges should go through a charade of telling a jury to ignore something in the expectation and hope that the jury will have regard to it.
The very sensible proposal put forward by way of amendment by the noble Viscount, Lord Runciman, and others, and recommended by the Royal Commission, is that the defence should be required to disclose the main thrust of its case at some stage after delivery of the prosecution papers and before trial. I applaud that suggestion. But in my view, which I hope will be echoed later by the noble Earl, Lord Ferrers, the proposals in the amendment and the proposals in the present clauses are not alternatives at all. We need both. The issues should be clarified before the trial starts by reciprocal disclosure. But there is a world of difference between the defence which may be conjured up after seeing the prosecution's papers, and after time for reflection and advice, and the immediate reaction when found in possession of goods or on someone else's premises. I hope that a future Bill will provide for defence disclosure but in my view it: is not a sufficient alternative to the clauses under consideration.

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The noble Viscount, Lord Runciman, and the noble Baroness, Lady Mallalieu, sought to raise the spectre of lengthened trials and much money-making by lawyers if these clauses were allowed to remain. No doubt in the early stages of the application of these clauses there will be arguments and there may even be appeals. I would be the first to wish for any proposal to be scotched that would increase the number of appeals. But experience shows that, with any new statute, things settle down, rulings are given, the Court of Appeal lays down guidelines and eventually a modus is established. I do not believe that the spectre of lengthened proceedings is one which is of any material importance to the considerations before the Committee.
Perhaps I can finally say this—and if I am saying it in the wrong place, I am afraid that my unfamiliarity with procedures in this Chamber confuses me as much as it does the noble Viscount. Although I support the proposals in these clauses, I am concerned that Clause 32 at present is too widely drafted. It would permit comment at trial and adverse inference to be made from a failure at any stage to answer police questions. As we have already heard, there are some—including my noble and learned friend Lord Ackner—who would limit the comment on silence under that clause to the police station, where all the safeguards of the defence lawyer being present and tape recording are in place. That is a somewhat too limiting restriction.
As I suggested, there are cases in which silence at or near the scene of the crime is particularly important. However, I certainly believe that the suspect must be cautioned before he is exposed to the risk of his silence counting against him. He must know what is at stake before he decides to speak or hold his peace. I did not table an amendment to that effect for the debate today. However, I hope that further thought may be given to that matter before Report stage. At present I would point out that there is an inconsistency between Clause 32 on the one hand and Clauses 34 and 35 on the other. The latter two clauses bite only on arrest, when a caution will have been given. Clause 32 bites at any time,
"on being questioned by a constable".
At the least, I suggest that Clause 32 should be brought in line with the other two clauses.
6 p.m.
Lord Carlisle of Bucklow: It is a great honour to follow the noble and learned Lord the Lord Chief Justice in a debate of this nature and it has the great advantage that much of what I wanted to say has already been said with far greater eloquence and authority than I could possibly muster.
I have this diffidence in speaking in this debate in that I realise that what I shall say runs contrary to the views of the majority of the members of the Bar Council and contrary to the views of Justice, both bodies of which I am a member and both bodies which I respect. But, like the noble Baroness, Lady Mallalieu, I spent my professional life prosecuting and defending in the criminal courts and have long been led to the view that the caution as it exists in this country ought to be changed; that in fact the balance has been tipped too far
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evidentially in the interests of the accused. I do not believe that the grave anxieties expressed in the briefings that we received on this matter will be fulfilled as a result of the proposals.
As the Lord Chief Justice said, these clauses do not end the right of silence as such; we are not forcing anyone to give evidence; we are not requiring anyone to incriminate themselves. All they do is mean that in future the prosecution may comment and the court and the jury may, in appropriate circumstances, be invited to draw such inferences as they, the court and jury, think proper from the fact that the defendant refused to answer certain questions and failed to mention certain facts which he relies on for his defence and which, as the Lord Chief Justice said, he could reasonably be expected to have mentioned at the time he was being questioned.
I am bound to say that I see nothing wrong in such a proposal. Nor do I see anything wrong, if the court rules that there is a case to answer and the defendant chooses not to give evidence, in those who prosecute being able to make comment on that fact. The position at the moment is that the judge can comment on the inability of a defendant to give evidence. Surely in many ways it is much fairer that those comments should come from the prosecution as against the defence making comments as to why the defendant did not give evidence, rather than the judge looking as though he has been drawn into the arena to counteract the remarks made by the defence.
As we were reminded by the Lord Chief Justice, there is nothing new in the proposals. They were the recommendations of the Criminal Law Revision Committee in 1971 or 1972. At the time I happened to be a junior member in the Home Office under my noble friend Lord Carr. He will remember that those were recommendations made at that time and they would perhaps have been considered had an election not shortly afterwards intervened. They are in many ways common sense and I suspect that, as my noble and learned friend Lord Hailsham said, that is what happens in practice with juries at the present time.
My noble friend Lord Alexander said he was concerned that such proposals would put great pressure on the vulnerable and the weak. I am bound to say that it is not my experience that it is the vulnerable or the weak who rely on the right of silence. Equally, it has been said that it may put at risk those who are innocent. Again, it is certainly not my experience that it is the innocent who rely on the right of silence. On the whole it is the experienced criminal who refuses to answer questions.
People are concerned—and rightly concerned— about the fact that vulnerable and weak people have made confessions which turn out in the end to have been mistaken. However, I would point out that they were made at a time when the so-called "right of silence" exists. My experience is that those who are weak and vulnerable may tend to say a great deal at the police station and seldom make use of the right of silence.
The change to the caution was recommended in 1970, as the noble and learned Lord the Lord Chief Justice said. Since then we have had tape recordings of

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interviews; the existence of duty solicitors, which means that practically everyone has access to legal advice; and the Police and Criminal Evidence Act, the provisions of which are aimed overall at ensuring that questioning is fair and reasonable. I have never understood why, if a person offers an explanation at trial which he has not given at an earlier stage and which common sense makes one believe that he should have given, the prosecutor should not be entitled to cross-examine on the line: "I hear what you say. If that is true, why did you not make that explanation at an earlier stage?"
I know that many others wish to speak in the debate, so perhaps I may close by making just two final points. First, there may well be perfectly legitimate and sound reasons why a person chooses to maintain silence both in the police station and in the court. But juries are not stupid. They are not required to draw inferences against a man because he chooses not to give evidence. They recognise the circumstances which lead people to hesitate to answer at a specific time. I have no doubt that, in relation to those who have reasonable and understandable reasons for choosing not to give answers, their representation at court and the arguments advanced on their behalf will ensure that they are not damaged by the proposals.
Finally, I say to my friends in the legal profession that, if an important witness for the prosecution made a statement to the police which omitted a fact which was highly damning or incriminating of the accused, and if he then made a second, much longer statement in which the damning and incriminating fact was adduced and that second statement was served on the defence by way of the evidence to be given by the witness, no counsel acting for the prosecution or, indeed, any police officer, would for a moment hesitate to draw to the attention of the defence the fact that the man had made an earlier statement which omitted that fact. Not only would that happen, but the defence counsel would then unhesitatingly cross-examine that witness by saying, "How do you ask us to believe this fact when on an earlier occasion, when invited to make a statement, you left it out?" He would argue that the jury should draw major inferences from the fact that on an earlier occasion the witness had chosen to fail to mention some fact. If that is true so far as concerns the prosecution in its statements of evidence, why on earth should it not be true for the defence? If the accused has deliberately refused to give facts which he knew to be relevant, why on earth, equally, should that not be known to the prosecution, and known through the prosecution to the jury, so that any proper inferences may be drawn?
Like the Lord Chief Justice, I support both clauses in principle, although, like him, I believe that Clause 32 as presently drawn is wider than it need be. I accept that there is a need for some form of legitimate limitation to the comment that can be made—for example, that the man must be cautioned or given the opportunity to have repeated the questions that have been put to him at this stage—but those are limitations on the clause, and not a reason for opposing the clause as a whole. I very much hope that the Committee will support the two clauses.
Lord Wigoder: I was more than a little astonished to hear the noble and learned Lord the Lord Chief Justice refer to Clause 36(3) as being in some way a significant protection for a defendant in showing, apparently, how fair the Government are determined to be. The clause provides that if there is no evidence against a defendant except that he was on some occasion silent, he cannot be convicted of a criminal offence. That is hardly an astonishing proposition or a very welcome proposition. It is hardly to be regarded as a concession that a charge of robbery with violence can be brought against someone and the prosecuting counsel can get up and say, "We have no connection between this defendant and this crime except one day a village policeman stopped him and asked him whether he was doing something or other and the defendant looked at him in an astonished way". On that evidence, according to Clause 36(3), that man cannot be convicted of robbery with violence. I should jolly well think not. I am astonished that anyone can look at a clause of that nature and say that it provides any kind of safeguard or protection to an accused.
At Second Reading I made two points about this matter which I certainly do not propose to repeat at this hour. One point concerned the vulnerability of a whole class of people taken to a police station who will, once these provisions are in effect, be encouraged to make a statement which may be totally untrue from start to finish. My second point was that more innocent people would inevitably be convicted and sent to prison for very long periods of time. Indeed, since the debate at Second Reading, there have been at least two cases in the Court of Appeal in which convictions have been quashed where people were said to have made statements that were accepted by a jury but were found by the Court of Appeal not to be reliable.
Nor do I propose to repeat what I said in the debate on the Gracious speech when the Session began many months ago; namely, that there are many cases in which the defendant has a perfectly good reason for not saying anything and which cannot be disclosed to anyone at the trial—to the judge, the jury or anyone else. As the noble Lord, Lord Monkswell, indicated, there are cases where a man's alibi involves his affair with his best friend's wife. There are cases where if a man were to tell the truth about a matter he would inevitably involve his brother who was obviously the person implicated in the commission of the offence. I have had cases of that kind in my experience. I am one of hundreds of members of the Bar who have had such cases. There must have been thousands of cases over the years of defendants who were totally unable for that reason to put forward any kind of story to the court.
In those circumstances, how can the judge, let alone the prosecuting counsel or the jury, make such inferences as appear proper? The judge does not know the facts upon which the inferences can be based. He may think he does, but he does not. In those circumstances, to extend comment on the exercise of the right of silence to the trial itself may have a disastrous result for some totally innocent people.
I know that time is running on so the only other thing I want to do is to call three witnesses on my behalf. I call

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first, very briefly, the judges of the Supreme Court of the United States. In the Miranda case in 1965—I shall read only one short paragraph of their judgment—they said:
"To maintain a 'fair state-individual balance', to require the government 'to shoulder the entire load', … to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth … In sum, the privilege"—
the privilege of silence—
"is fulfilled only when the person is guaranteed the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will'."
No one can argue that under the Government's proposals it would be the unfettered exercise of free will that led a person to continue to remain silent.
My second witness would be the debate in 1972 on the proposals of Lord Justice Edmund Davies' committee to abolish the right of silence. The debate was in your Lordships' House and numerous Law Lords took part. I think not one had anything other than serious criticism of a great deal of the report. Perhaps I may quote what Lord Salmon said in his maiden speech. He was probably one of the most experienced criminal judges of our time and one of the great judges of this century. Dealing with the right of silence, he said:
"I have perhaps the temerity to challenge the whole philosophy lying behind these recommendations; namely, that the rising wave of serious crime can somehow be stemmed by a relaxation of the safeguards which we have built up over the generations to ensure that the innocent shall go free. There is not a vestige of evidence to support this philosophy, and I would invite your Lordships to reject it". —[Official Report, 14/2/73; col: 1605.]
For my final piece of evidence perhaps I may refer to a letter from three people who have held the office of First Senior Treasury Counsel at the Central Criminal Court. That position is held by the most experienced member of the team of counsel at our most senior criminal court, instructed by the Director of Public Prosecutions in the most serious of cases. They are people with unrivalled knowledge of the workings of the criminal law—I wonder whether I may say, even as much knowledge perhaps as the noble and learned Lord the Lord Chief Justice. They work for the Director of Public Prosecutions and they are only too anxious that the guilty should be convicted. The letter comes from John Mathew, who was Treasury Counsel for 18 years and First Senior Treasury Counsel for the past three; Roy Amlot, who was a Treasury Counsel for 12 years and First Senior Treasury Counsel for the past two; and John Nutting, who has been a Treasury Counsel for 13 years and is First Senior Treasury Counsel at this date.
With their unrivalled knowledge of the criminal law, this is what they wrote:
"At first sight this might appear to be a fair and sensible reform, but in our view the enactment of such a provision would in fact be a retrograde step effectively abolishing a suspect's right to silence. For the first time in the history of criminal justice a jury would be invited to draw an inference of guilt against a suspect who failed to give an explanation to the police. Such a situation would gravely affect the presumption of innocence in criminal trials which rightly remains the basis of our system of criminal justice. If a jury is to be told that it can infer guilt from a failure to provide an acceptable explanation after arrest it is effectively being told that it can infer guilt from a failure to establish innocence. In this insidious way a major step is taken towards
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reversing the burden of proof. Juries will tend to say 'he has no right to be silent. He did not provide an innocent explanation to the police. We can say he is guilty'. This is a development in the criminal law which, if not prevented, is likely to contribute to injustice".
That letter was sent not to me but to The Times newspaper, unhappily at a time when that paper was about to publish a leading article of its own to precisely the opposite effect. So, although that distinguished newspaper is the first to criticise anyone who ventures to suggest any measure of censorship of the press, it exercised its own degree of censorship and decided, rather sadly, not to print the letter. I do not suggest that there is anything startlingly original in the letter. What is startling and should be brought to the attention of the public is that it comes from three of the most distinguished exponents of the criminal law that we have had in this country.
When we come to divide, as I hope we shall, I ask the Committee to remove Clause 32 from the Bill and then to agree to the consequent amendment in the name of the noble Viscount, Lord Runciman.
Lord McIntosh of Haringey: I am quite incapable of following the learned and powerful speeches which have been made on both sides. I am not a lawyer. My understanding of these matters has been greatly increased in recent weeks, but it certainly has not reached the level of that of noble and learned Lords, and other noble Lords who are also learned in the law, who have spoken.
I wish to make two points about this group of proposals having urged both the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Campbell of Alloway, to withdraw their previous amendments. The first point is that, a week ago when we were debating secure training centres, the noble Baroness, Lady Faithfull, was powerfully attacked for seeking to take out from the Bill a series of clauses without putting anything in their place. I believe that the strength of the argument that what was being said was very largely negative had a considerable influence on the way in which the Committee voted on Monday of last week. That is not the case with this group of proposals, which suggest that Clauses 32 and 33 should be taken out of the Bill only in return for a new clause which would convincingly answer the only effective case which has been made in favour of the restriction of the right to silence; namely, the claim of an ambush defence. Therefore, the arguments which were used about our procedures last week simply do not apply in this case.
The second point is that I have listened very carefully to any examples—there have not been very many—in which there is a danger that the guilty might go free because of the exercise of the right to silence. Every single example which has been adduced in Committee this afternoon, including the Lord Chief Justice's man with a tool bag in his garden—I was not quite clear whether it was in his garden or my garden—would be answered by Amendment No. 26. All of them depend not on the exercise of the right of silence, but on the subsequent use of a defence which had not been disclosed. Therefore every single argument which has been adduced in favour of Clauses 32 and 33 is

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effectively answered by Amendment No. 26. Without any disrespect to the array of legal talent which has been deployed on both sides of the argument, I urge Members of the Committee to bear those two simple facts in mind when they are considering how to vote on this issue.
Lord Hailsham of Saint Marylebone: I have very little to say. I have not so far spoken on this question. If I thought for a moment that either the right of silence —which is not a right of silence but a question of legal procedure and evidence—was in any way watered down by these clauses I would certainly be in the ranks of those who would have them expunged. I do not. Neither do I see the smallest chance of the burden or standard of proof being diminished by either of them. The fallacy was that of the noble Baroness, Lady Mallalieu. The effect of the clauses is that if the prosecution has made out a convincing case, the result of exercising your right of silence at the end is to establish that against that convincing case there is no answer and no evidence has been adduced. Juries will draw that inference. It is not an inference of guilt, but a conviction on the evidence before the court that the case has been made out beyond all reasonable doubt.
Apart from that, I was so impressed with what my noble and learned friend the Lord Chief Justice said that I do not believe that I can in any way add to it. His argument seemed to me to be absolutely conclusive. An earlier point that was made was taken up very clearly at another stage. That relates to the Northern Irish experience which put into effect the proposals of the Criminal Law Revision Committee 1972 which now has at least seven years' experience behind it both in criminal and civil cases. The effect of the intervention of the noble and learned Lord, Lord Lowry, by way of a maiden speech at Second Reading, has told us beyond doubt exactly what his experience has been; namely, that the administration of justice is being improved. One of the factors which has emerged is that the conviction rate is lighter under the Diplock proposals which are based on those recommendations than before when a case was tried by a jury.
The real fact is that we are all concerned about the possibility of miscarriages of justice. I believe that this is some guarantee that such miscarriages will not take place. We have all been concerned about long-standing convictions which have been quite rightly overturned by the Court of Appeal (Criminal Division) after years spent in prison by those involved. To my mind these situations fall into two classes and two classes only. The first is not relevant to the present question which we are discussing. That is when something has gone wrong with the scientific evidence. The other class is when, because of the complications and barriers to rational investigation put in the way of the police, they have taken the totally inadmissible course of concocting false evidence, which could not be prevented if you have artificial and wrong rules standing in the way of the investigation of truth.
In the end we are concerned with truth and not with any complicated legal question. We are concerned with the desirability of convicting the guilty and in seeing that nobody who is not guilty is the subject of an adverse
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conviction. I believe that that rationalises the law. What is relevant should be admissible as a general rule and, subject to the qualification made by my noble and learned friend Lord Ackner, what weight should be given to the relevant admissible evidence before the court and what reliability can be attached to it, are questions for the tribunal of fact. I believe that that is all that can be said by a legislator. In the end we must trust to the operation of the judiciary, which is another branch of our constitution, to administer those simple common sense, logical principles in practice. Personally, I found the contribution of the noble and learned Lord the Lord Chief Justice absolutely conclusive on this question.
6.30 p.m.
Lord Peyton of Yeovil: I wonder whether I may ask my noble friend two questions both relating to Clause 32 and upon which my own anxieties are centred. First —I do not know whether he can answer this at this stage —I should very much like to know what my noble friend's attitude to Amendment No. 26 is going to be. If he were going to accept the amendment, it would certainly make a difference to me.
The second question—I hope that my noble friend will deal with this reasonably fully—relates to the safeguards to Clause 32 because, as it stands, I view it with great unease. As the noble and learned Lord the Lord Chief Justice said in his very impressive speech, it goes a bit wide at the moment. It does. Its provisions apply long before cases come to trial. The noble and learned Lord the Lord Chief Justice said that the clause is not aimed against the weak, the foolish and those who cannot look after themselves, but there must be a considerable fear that such people will still be caught by it. When those people find themselves in very alien surroundings, scared, alarmed, with no advice as to their rights and not knowing what the case against them is, they are very vulnerable. Before I vote in favour of Clause 32 standing part of the Bill, I shall want to be very certain indeed that my noble friend Lord Ferrers has in mind an adequate armoury of safeguards against that happening.
Earl Ferrers: As was expected, we have had a most interesting debate on this matter and all the arguments on both sides have been put most forcefully. Your Lordships are only too well versed in these complicated matters, but I agree with my noble and learned friend Lord Hailsham that the speech of the noble and learned Lord the Lord Chief Justice was deeply impressive. I was glad to hear it. The fact that he happened to agree with the Government's view of Clauses 32, 33, 34 and 35 was, if I may say so, helpful.
I must advise my noble friend Lord Peyton who asked about the Government's views of safeguards that I told the Committee in connection with earlier amendments that the Government do not consider that they have a monopoly of wisdom on these matters. We wanted to listen to see what your Lordships would say about safeguards. Equally, I hope that the Committee will consider the Government's view of why these clauses are in the Bill in the first place. I have not yet had the opportunity to explain that.

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Clause 32 deals with a particular problem. It is very difficult to reconcile the present rules with what one might call plain common sense. Very often, the person who is best placed to explain the truth of events is the defendant. If he declines all opportunity to do so until the occasion of his trial, why should a court not be allowed to consider whether there was a good reason for his earlier reticence? Too often, police efforts to establish the facts of a case are impeded by those experienced offenders who exploit the present rules on silence. Whether their intention is to avoid charge, or to give themselves time to construct a plausible defence, it is not in the interests of justice that they should be allowed to take advantage of a feature of the criminal justice system which pre-dates the very many safeguards which are now in place to protect suspects.
I commend a remark which was made on Second Reading by the noble and learned Lord, Lord Ackner. He said that the current rules encourage solicitors to advise silence. It is time that we encouraged solicitors to say to their clients, "We should lose no time in putting forward your defence". The noble and learned Lord was right.
These are complicated legal matters and lawyers are right to argue the nuances and principles up hill and down dale to try to get the right result; as, if I might say so, your Lordships have done this afternoon.
However, there is another point of view. My noble friend Lord Stewartby put it very well when he referred to the point of view of the layman. One obvious role for the layman in the criminal justice system is to be a member of the jury. I suggest that when looking at these matters we could all do worse than try to put ourselves in the mind of a member of a jury. At present, a jury may learn about the fact that a defendant is telling a story at the trial which he did not tell to the police. Members of the jury will see for themselves whether the defendant does or does not give evidence at the trial. They may —I mean this simply as a matter of fact—wonder why the defendant was silent earlier. They may wonder why he does not give evidence at the trial. They may—who knows?—reach the conclusion that the story that they are now being told is unlikely to be true or they may think it odd that, if the accused has a defence, he does not tell them about it. But they are not allowed to hear any argument about that. If the matter is raised, they have to be told simply to put it out of their minds—no matter that they are curious; no matter that in any other normal transaction of life they might think it rather odd that a person is asking them to believe something which he or she is unwilling to state clearly out of his own mouth; no matter that a reasonable person looking at the circumstances of the case might think that some explanation was called for. As the law stands, the question is forbidden territory. We do not know— nobody knows—whether juries respect the prohibitions which the present law places upon them or whether they make a best guess at what the truth is: probably some do one and some do the other.
I agree with my noble friend Lord Stewartby that, looked at from a layman's point of view, that position is not easy to explain or justify. It is hardly the position
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that one would invent if one were starting with a clean sheet of paper. It has arisen largely because of history and because when matters of this kind are discussed it is natural and traditional to think about them in terms of protection for the defendant. However, your Lordships may think that there is also a case for common sense to be the guide as to what the jury can hear and think.
The noble and learned Lord the Lord Chief Justice gave an example. Perhaps I may give an example. Two ramraiders attack a jeweller's shop. They are disturbed by the arrival of a police car and escape on foot to a nearby block of flats. The police give chase. They do not see the two men's facial features but they see their height, build and clothing. The police make door-to-door inquiries at the block of flats and enter one flat where they find the tenants, a middle-aged couple, as well as two young men whose height, build and clothing happen to match those of the men for whom they are looking. The middle-aged couple seem agitated and upset. The police ask the young men what they are doing in the flat and one of them says that they have come along for a cup of tea. The middle-aged couple are too frightened to contradict the young men's story and are not prepared to give evidence against the two young men at a trial. Inquiries later reveal that there is no link between the middle-aged couple and the men. After being arrested and consulting their solicitor, the men claim that they were looking for a friend and had stopped at the flat to ask for directions. They later put that forward at the trial.
Under the law as it now stands, the inconsistency between what those men said to the police officer before they were arrested and cautioned and what they said at their trial could be the subject of very effective cross-examination and could be the subject of an inference by the jury who might think that the men were not to be believed. Equally, if the two men had said, "We have just raided the jeweller's shop", that would be a confession and would be admissible evidence at the trial. It could form a basis—possibly the main basis—of a conviction. But if instead of saying that they had come for a cup of tea, the two men had said nothing at all to the police officer or if they had asked him to mind his own business—perhaps using more colourful language —under the existing rules the prosecuting counsel could say nothing about that. Questions such as, "Why didn't you tell the police what you are now telling the court?", would not be allowed.
That is a simple scene which Clause 32 seeks to address. Under Clause 32 it would be open to the court or to the jury to draw such inference as they think fit from the fact that when the men were originally encountered by the police they failed to mention their story that they were asking for directions. The inference that could be drawn might be—to put it no higher—that their story at the trial was unlikely to be true. I suggest that there is nothing wrong in allowing the court to take into account the fact that these men said nothing to the police and in allowing the court to draw such inference as it may think fit and proper. I would have thought that there was more to be said in favour of treating that evidence like any other evidence and of abolishing the restriction which at present prevents the court or the jury

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from putting proper weight on it. At the heart of this matter is the failure to mention the fact at the first reasonable opportunity, and that that may be a matter which the jury might think worthy of notice.
My noble friend Lord Peyton asked me about Amendment No. 26. That does not deal with this problem, as the noble and learned Lord the Lord Chief Justice suggested. The problem is juries being unable to take into account the significance of the defendant's failure to answer a reasonable question at the first opportunity. Nor do I think that Amendment No. 26 can be seen as being a substitute for Clause 33, which has received widespread support from the judiciary, the police service and beyond.
We heard the views of the noble and learned Lord the Lord Chief Justice, with all the weight of his experience. I hope that I shall not embarrass the noble and learned Lord by quoting from what he said at the Tom Sargant Memorial Lecture, which he delivered in January. He said:
"When a prima facie case has been established by the Crown, and the defendant fails to testify, I see nothing unfair in the jury being told it is open to them to draw a proper inference from the absence of any answer by the defendant. Indeed, that accords with commonsense. The burden of proof remains on the prosecution to prove its case, but if they establish a case to go to the jury, that means that a reasonable jury, properly directed, could convict unless there is an answer. It is sensible that the jury may take account of the fact that no answer has been given by the defendant to draw the inference, if they think it right, that there is no answer".
So said the noble and learned Lord.
Amendment No. 26 does not address the matter of the failure to give evidence at the trial. But in the Government's view there is room for improvement, and that is what Clause 33 is about. Clauses 32 and 33 should stand part of the Bill. As regards Amendment No. 26 and defence disclosure, the Royal Commission has produced a very interesting proposal but it is one which requires some pretty rigorous analysis before we embark on legislation. Defence disclosure is linked with the Royal Commission's recommendations on prosecution disclosure and on pre-trial procedures generally, all of which we are carefully considering.
The Government see attractions in that idea and we are carefully considering whether and how it might be put into effect. However, I believe that the noble Viscount, Lord Runciman, will acknowledge that the Royal Commission did not supply a precise blueprint for its scheme. Nor does this amendment. It proposes a power to make rules of the Crown Court dealing with the practical arrangements for prosecution and defence disclosure. Those rules would allow changes or additions to be made to prosecution or defence statements, would set time limits and would deal with other expedient matters.
These are not questions of mere detail. The obligations on the defence would be new and substantial. Before any legislation on these matters is introduced, it would be proper to consider very carefully how this scheme would work. What form would the defence statement take? Should it be a substantial statement of the nature of the defence case or just a matter of ticking a box, as the Royal Commission appeared to suggest? When would defence disclosure be
534
made? How would it be enforced? Would the prosecution be allowed to change the prosecution statement after the defence statement? Would the prosecution statement bind the prosecution? Would the police be allowed to question the defendant about any new issue revealed in the defence statement? Those are important questions which need to be resolved before Parliament embarks on a decision. They are not yet resolved.
It is for these reasons that we believe that Amendment No. 26 is not appropriate for incorporation in the Bill. For the reasons that I have given, it is essential that Clauses 32 and 33 are included in the Bill. We have heard the weighty arguments of the noble and learned Lord the Lord Chief Justice and other Members of the Committee. I suggest that if any Member wishes to put to the test that Clauses 32 and 33 do not stand part of the Bill, the Committee should vote wholeheartedly in favour of them staying part of the Bill.
6.45 p.m.
Viscount Runciman of Doxford: I have listened with close attention to everything that has been said today. I find myself in a large measure of agreement with speakers from different parts of the Committee. However, before Members make up their minds on the issue that is now before us, I wish to take issue to some degree with what was said by the noble and learned Lord, Lord Taylor of Gosforth. Quite rightly, many Members of the Committee will have been influenced by what he said with all the authority of his experience and his office. I do not dissent for a minute with his remarks to the effect that there are many misconceptions, which he adroitly corrected, about the implications of this Bill or, more obviously, about the continuing need for greater safeguards, with which, in principle, I am entirely at one with the noble and learned Lord, Lord Ackner.
However, I ask Members of the Committee not to be influenced by whatever their views may be about the state of affairs in the very different jurisdiction of Northern Ireland. I made that point on Second Reading, when unfortunately the noble and learned Lord the Lord Chief Justice could not be present. I hope that I may be excused by those who heard me if I repeat that argument briefly. We are not talking about a regime of so-called Diplock courts and all that goes with them both in terms of rules and procedures and the background that led the Government to introduce that very different regime in that very different Province.
Secondly, I have to say that I cannot be happy with the suggestion that we can leave it all to the courts, or to the Court of Appeal, where a mistake is made at the trial of first instance. I really do not believe that it is good enough to say that if unfortunately the court of first instance gets it wrong, and someone who is innocent of the crime of which they are convicted goes to prison, it is all right because there is a good chance that after several years, as it may be, of languishing in prison the Court of Appeal will put it right.
I recognise that in particular in recent months or perhaps years the Court of Appeal has shown itself much more ready to overturn convictions where there is

535
reason to fear that a miscarriage of justice has taken place. I acknowledge the part which the noble and learned Lord, Lord Taylor of Gosforth, has played in changing the view of the Court of Appeal in the direction of a greater willingness to accept that miscarriages may have occurred. But it is precisely that which worries me when I contemplate the prospect of a regime in which it will be left to the Court of Appeal to correct wrongful convictions at the court of first instance.
That is linked in turn with the point which I made earlier but to which I have not received an adequate answer either from the noble and learned Lord the Lord Chief Justice, from the noble Earl, Lord Ferrers, or from any other speaker who takes a different view on these matters; that is, that the Royal Commission was unanimous about the need to strengthen the safeguards provided in the Police and Criminal Evidence Act. There is no question but that this regime will relax those safeguards. Therefore, we must decide a purely pragmatic question. As I said earlier today and on Second Reading, we all may differ in our views in principle but we do not differ as regards the aim; namely to do everything that we can to see that the courts get it right.
I ask Members of the Committee to consider whether they believe that, after all that they have heard, the risk of wrongful convictions will not be significantly increased if the Bill passes in its present form. Even if Members of the Committee think that there is such a risk, it is necessary to ask further whether it is thought that there will be any possible gain which will outweigh that risk in the greater likelihood of securing the conviction of defendants whose guilt would not be successfully established by the Crown—not, I emphasise, under the existing procedures but under the existing procedures as changed by the recommendations of the Royal Commission of which Amendment No. 26 is nothing more than a foretaste.
The point is that I do not pretend for a moment that Amendment No. 26 would, by itself, meet all the anxieties which have been voiced here this afternoon, and elsewhere, about the need to ensure that there are no miscarriages in the other sense; in other words, that people whose guilt is beyond reasonable doubt are acquitted when they should not be. But the noble Earl, Lord Ferrers, addressed many of his remarks to the Committee as though the alternatives were the status quo or the Bill which is now before us. That is not a real alternative. As I understand the matter, one alternative is the Bill as it now stands with all the criticisms which have been levelled against it from many different parts of the Committee. The other alternative is an opportunity to step back from those clauses and to substitute, in Amendment No. 26, the outline—and it is no more than the outline—of a regime which would meet all the anxieties that have been voiced without the disadvantages that I and others see as attaching to the Bill in its present form and which would be a part of the new regime envisaged both by the Royal Commission and the Government. I take the noble Earl, Lord Ferrers, to be saying, in effect, that there is, as yet, no firm
536
intention to implement precisely the recommendations which the Royal Commission put forward to deal with the very complex and interrelated issues of prosecution and defence disclosure and all that goes with that. However, I understood him to say that there is an intention to deal with the substance of our recommendations in one form or another. I should be the first to agree that we did not believe that with the recommendations we were laying down a blueprint so that the Government had merely to put the parliamentary draftsmen onto the job and then get a single Bill through Parliament in a matter of weeks. These are very complicated issues.
For that reason, I had hoped that the noble Earl would give some indication that the Government are prepared to take account of all the various misgivings about the Bill in its present form which have been voiced in the Committee this afternoon. I had hoped that the Minister would indicate not merely that the Government are open to suggestions as regards a little tinkering with the safeguards provided in Clause 32, but that there would be a serious willingness to reconsider the issues in order to bring in a regime which would implement in part what we are trying to achieve with Amendment No. 26; namely, what is covered in part in the Royal Commission's report but what has not yet been addressed in legislation. At the same time, I do not feel that the concerns about safeguards which have been voiced this afternoon have been addressed adequately in the noble Earl's response.
I had hoped not to feel bound to take the opinion of the Committee this afternoon because, as I say, this is not in any sense a party political matter. We should be all at one in trying to see how we can best ensure that in criminal trials a jury—and I am thinking in particular of cases which are sufficiently serious to come before a jury—gets it right. As I said in my maiden speech, that is a wholly uncontroversial aim. The question is how to achieve it. I am afraid that the assurances which the Minister gave in response to criticisms of Clause 32 are insufficient. I must remind the Committee that the Question that Clause 32 stand part is linked with Amendment No. 26, as is the Question that Clause 33 stand part. Therefore, I feel bound to test the opinion of the Committee on those issues.
6.56 p.m.
On Question, Whether Clause 32 shall stand part of the Bill?
Their Lordships divided: Contents, 176; Not-Contents, 114.

Division No. 1

CONTENTS

Ackner, L.

Brabazon of Tara, L.

Allenby of Megiddo, V.

Bridgeman, V.

Annaly, L.

Brightman, L.

Arran, E.

Brougham and Vaux, L.

Astor, V.

Bruntisfield, L.

Attlee, E.

Burnham, L.

Belhaven and Stenton, L.

Butterworth, L.

Biddulph, L.

Cadman, L.

Blatch, B.

Campbell of Alloway, L.

Bledisloe, V.

Campbell of Croy, L.

Blyth, L.

Carlisle of Bucklow, L.

Boardman, L.

Carnegy of Lour, B.

Borthwick, L.

Carnock, L.

Boyd-Carpenter, L.

Carr of Hadley, L.

537

Chalker of Wallasey, B.

Mancroft, L.

Charteris of Amisfield, L.

Mar, C.

Chelmsford, V.

Marlesford, L.

Chesham, L.

Marsh, L.

Clanwilliam, E.

Merrivale, L.

Clark of Kempston, L.

Mersey, V.

Clitheroe, L.

Middleton, L.

Cochrane of Cults, L.

Morris, L.

Coleraine, L.

Mottistone, L.

Colnbrook, L.

Mountevans, L.

Colwyn, L.

Mountgarret, V.

Courtown, E.

Moyne, L.

Craigmyle, L.

Munster, E.

Cranborne, V.

Murton of Lindisfarne, L.

Crickhowell, L.

Nelson, E.

Cross, V.

Newall, L.

Cumberlege, B.

Norrie, L.

Darcy (de Knayth), B.

Oppenheim-Barnes, B.

De L'lsle, V.

Orkney, E.

Dean of Harptree, L.

Orr-Ewing, L.

Denham, L.

Palmer, L.

Denman, L.

Pearson of Rannoch, L.

Demon of Wakefield, B.

Peel, E.

Digby, L.

Pender, L.

Dixon-Smith, L.

Perry of Southwark, B.

Donegall, M.

Rankeillour, L.

Dudley, E.

Rawlinson of Ewell, L.

Eden of Winton, L.

Reay, L.

Ellenborough, L.

Rees, L.

Elles, B.

Rennell, L.

Elliott of Morpeth, L.

Renton, L.

Elphinstone, L.

Renwick, L.

Elton, L.

Rippon of Hexham, L.

Ferrers, E.

Rodger of Earlsferry, L.

Finsberg, L.

Rodney, L.

Fraser of Carmyllie, L.

Romney, E.

Gainsborough, E.

Saint Albans, D.

Geddes, L.

Saltoun of Abernethy, Ly.

Gisborough, L.

Sanderson of Bowden, L.

Glenarthur, L.

Savile, L.

Goschen, V.

Seccombe, B.

Grantchester, L.

Simon of Glaisdale, L.

Greenway, L.

St. Davids, V.

Gridley, L.

Stanley of Alderley, L.

Haddington, E.

Stewartby, L.

Hailsham of Saint Marylebone, L.

Strafford, E.

Halsbury, E.

Strange, B.

Hanson, L.

Strathclyde, L.

Harmar-Nicholls, L.

Strathmore and Kinghorne, E.

Harmsworth, L.

[Teller]

Haslam, L.

Sudeley, L.

Hayhoe, L.

Swansea, L.

Henley, L.

Swinfen, L.

Hertford, M.

Swinton, E.

Holderness, L.

Taylor of Gosforth, L.

HolmPatrick, L.

Tenby, V.

Hood, V.

Thomas of Gwydir, L.

Hooper, B.

Thurlow, L.

Howe, E.

Tonypandy, V.

Jeffreys, L.

Torrington, V.

Johnston of Rockport, L.

Trumpington, B.

Kenyon, L.

Tugendhat, L.

Kinloss, Ly.

Ullswater, V. [Teller.]

Kintore, E.

Vivian, L.

Lauderdale, E.

Wade of Chorlton, L.

Lawrence, L.

Wakeham, L. [Lord Privy Seal]

Leigh, L.

Wharton, B.

Lloyd of Berwick, L.

Wilberforce, L.

Long, V.

Wise, L.

Lucas of Chilworth, L.

Wolfson, L.

Lucas, L.

Wright of Richmond, L.

Mackay of Ardbrecknish, L.

Wyatt of Weeford, L.

Mackay of Clashfern, L. [Lord

Wynford, L.

Chancellor]

Young, B.

Macleod of Borve, B.

Zouche of Haryngworth, L.

NOT-CONTENTS

Addington, L.

Annan, L.

Airedale, L.

Archer of Sandwell, L.

Alexander of Weedon, L.

Ardwick, L.

538

Ashley of Stoke, L.

Kilmarnock, L.

Bancroft, L.

Kirkhill, L.

Barnett, L.

Kirkwood, L.

Beaumont of Whitley, L.

Lester of Herne Hill, L.

Blackstone, B.

Lincoln, Bp.

Bonham-Carter, L.

Listowel, E.

Boston of Faversham, L.

Llewelyn-Davies of Hastoe, B.

Bottomley, L.

Lockwood, B.

Brooks of Tremorfa, L.

Longford, E.

Bruce of Donington, L.

Lovell-Davis, L.

Callaghan of Cardiff, L.

Mackie of Benshie, L.

Carmichael of Kelvingrove, L.

Mallalieu, B.

Carter, L.

Masham of Ilton, B.

Cledwyn of Penrhos, L.

McGregor of Durris, L.

Clinton-Davis, L.

McIntosh of Haringey, L.

Craig of Radley, L.

McNair, L.

David, B.

Merlyn-Rees, L.

Dean of Beswick, L.

Milner of Leeds, L.

Desai, L.

Mishcon, L.

Dilhorne, V.

Molloy, L.

Donaldson of Kingsbridge, L.

Monkswell, L

Donoughue, L.

Morris of Castle Morris, L.

Dormand of Easington, L.

Morton of Shuna, L.

Faithfull, B.

Nathan, L.

Falkender, B.

Nicol, B.

Falkland, V.

Ogmore, L.

Fisher of Rednal, B.

Peston, L.

Gallacher, L.

Peyton of Yeovil, L.

Geraint, L.

Pitt of Hampstead, L.

Gladwyn, L.

Prys-Davies, L.

Gould of Pottemewton, B.

Rea, L.

Graham of Edmonton, L.

Redesdale, L.

[Teller]

Richard, L.

Granville of Eye, L.

Rochester, L.

Gregson, L.

Rodgers of Quarry Bank, L.

Grey, E.

Runciman of Doxford, V.

Hacking, L.

[Teller]

Hamwee, B.

Seear, B.

Haskel, L.

Sefton of Garston, L.

Healey, L.

Serota, B.

Henniker, L.

Shannon, E.

Hilton of Eggardon, B.

Shaughnessy, L.

Hollick, L.

Shepherd, L.

Hollis of Heigham, B.

Spens, L.

Holme of Cheltenham, L.

Stedman, B.

Hooson, L.

Stoddart of Swindon, L.

Howell, L.

Taylor of Gryfe, L.

Howie of Troon, L.

Thomson of Monifieth, L.

Hunt, L.

Tordoff, L.

Hylton-Foster, B.

Turner of Camden, B.

Irvine of Lairg, L.

White, B.

Jay of Paddington, B.

Wigoder, L.

Jay, L.

Williams of Elvel, L.

Jenkins of Putney, L.

Williams of Mostyn, L.

Kilbracken, L.

Windlesham, L

On Question, amendment agreed to.

Resolved in the affirmative, and Clause 32 agreed to accordingly.
7.6 p.m.
[Amendment No. 26 not moved.]
Clause 33 agreed to.
Lord Annaly: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Intelligence Services Bill [H.L.]
The Lord Chancellor: My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
[The page and line refer to Bill 49 as first printed by the Commons.]
COMMONS AMENDMENTS
1 Clause 10, page 7, line 36, leave out 'six' and insert
'nine'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. The amendment increases the size of the committee. When the Intelligence Services Bill was considered in Committee by this House, the noble Lord, Lord Richard, moved an amendment which bears a striking resemblance to the amendment that I now propose. As I made clear when the House first considered the Intelligence Services Bill, the oversight committee is one of the Bill's keystones. The Government attach a great deal of importance to its ability to operate effectively.
The Government took careful note of the arguments advanced by noble Lords in this House and elsewhere. They understood their concern that the committee be of sufficient size to carry out its important remit and be large enough to represent fully the interests of this House. Therefore, on careful reflection, the Government decided that the size of the committee could safely and sensibly be increased to nine while still being sufficiently small to safeguard the secrecy of the information with which its members will deal. I believe that that was the right decision and one which your Lordships will welcome. I commend the amendment to the House.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(The Lord Chancellor.)
Lord Richard: My Lords, I apologise to the noble and learned Lord for not being present at the beginning of his speech. However, I gathered the nature of its substance. I thank the Government for making the concession which, as the noble and learned Lord knows, was one about which we were most anxious in Committee.
On Question, Motion agreed to.
COMMONS AMENDMENTS
2 Clause 10, page 7, line 37, leave out from beginning to
'the' in line 38 and insert:
'(a) who shall be drawn both from the members of the House of Commons and from the members of.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2. I wish to speak also to the Commons Amendment No. 4.
These amendments make a minor change to the existing provisions for the quorum of the oversight committee. Amendment No. 4 removes the requirement in Schedule 3, paragraph 2(4), for at least one member of each House to be present to make up a quorum. It was pointed out during Committee stage in the other place that this requirement might place an unfair burden on Members of one House, if they are in a minority on the committee, in terms of attendance. It might hinder the
540
ability of the committee to make up a quorum and conduct its business as necessary. Without prejudging the Prime Minister's decision in appointing the commit-tee members, the Government accepted this argument.
The provision regarding the quorum was originally drafted in keeping with the general rule that membership of the quorum of joint committees be drawn from both Houses. However, this is an unusual committee in many ways. So long as the effectiveness of the committee is not compromised, and indeed this amendment would make that less likely, I believe it is sensible for the committee to have these particular administrative arrangements, reflecting as they do its relatively small size.
We have always intended that the committee should be a joint one. But only in the quorum provision in Schedule 3 was it made explicit that the committee's membership should be drawn from both Houses. It has therefore been necessary to make Amendment No. 2 to Clause 10 to make that clear. So in a sense this is consequential on the new arrangement for the quorum. I commend the amendment to the House.
Moved, That the House do agree with the Commons in their Amendment No. 2.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
3 Clause 12, page 9, leave out subsection (5).
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. This amendment removes the privilege amendment inserted by your Lordships' House in ordinary course. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 3.—(The Lord Chancellor.)
COMMONS AMENDMENTS
4 Schedule 3, page 14, line 15, leave out from 'three' to
end of line 17.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4 for reasons which I have already indicated in the speech I made in relation to Amendment No. 2. I commend the amendment to the House.
Moved, That the House do agree with the Commons in their Amendment No. 4.—[The Lord Chancellor.]
On Question, Motion agreed to.

Licensing of Domiciliary Care Agencies Bill [H.L.]
7.12 p.m.
Read a third time: an amendment (privilege) made; Bill passed, and sent to the Commons.
Baroness Trumpington: My Lords, I beg to move that the House do now adjourn during pleasure until five minutes past eight.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.13 to 8.5 p.m.]

Criminal Justice and Public Order Bill
House again in Committee.
Clause 34 [Effect of accused's failure or refusal to account for objects, substances or marks]:
Earl Ferrers Earl Ferrers moved Amendment No. 27:
Page 23, line 33, at end insert:
("(aa) a judge, in deciding whether to grant an application made by the accused under—

(i) section 6 of the Criminal Justice Act 1987 (application for dismissal of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act); or

(ii) paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (application for dismissal of charge of violent or sexual offence involving child in respect of which notice of transfer has been given under section 53 of that Act);").

The noble Earl said: In moving Amendment No. 27 I wish to speak also to Amendments Nos. 29, 31, 174 and 175. The amendments are essentially technical. They extend the scope of Clauses 34 and 35 as regards proceedings to transfer cases from the magistrates' courts to the Crown Court in order to bring them into line with Clause 32. I beg to move.
[Amendment No. 27A not moved.]
Earl Ferrers Earl Ferrers moved Amendment No. 28:
Page 23, line 43, at end insert:
("( ) This section applies in relation to officers of customs and excise as it applies in relation to constables.").
The noble Earl said: In moving Amendment No. 28 I shall speak also to Amendments Nos. 30, 174A and 175A.
Amendments Nos. 28 and 30 would extend Clauses 34 and 35 to include questioning by customs officers. Following the example of the Criminal Evidence (Northern Ireland) Order 1988 the clauses have hitherto encompassed questioning only by constables. Customs officers carry out their own investigations, under the safeguards provided by the Police and Criminal Evidence Act. They are already included within the scope of Clause 32. We think that it is logical that inferences should also be allowed to be drawn from silence under questioning by customs officers in the circumstances which are set out in Clauses 34 and 35.
The amendments to Schedule 10 would make the same amendments to the corresponding legislation in Northern Ireland. I beg to move.
Clause 34, as amended, agreed to.
Clause 35 [Effect of accused's failure or refusal to account for presence at a particular place]:
Earl Ferrers Earl Ferrers moved Amendment No. 29:
Page 24, line 24, at end insert:
("(aa) a judge, in deciding whether to grant an application made by the accused under—

(i) section 6 of the Criminal Justice Act 1987 (application for dismissal of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act); or

(ii) paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (application for dismissal of charge of
542
violent or sexual offence involving child in respect of which notice of transfer has been given under section 53 of that Act);").

The noble Earl said: I spoke to this amendment with Amendment No. 27. I beg to move.
[Amendment No. 29A not moved.]
Earl Ferrers Earl Ferrers moved Amendment No. 30:
Page 24, line 32, at end insert:
("( ) This section applies in relation to officers of customs and excise as it applies in relation to constables.").
The noble Earl said: I spoke to the amendment with Amendment No. 28. I beg to move.
Clause 35, as amended, agreed to.
Clause 36 [Interpretation and savings for sections 32, 33, 34 and 35]:
Earl Ferrers Earl Ferrers moved Amendment No. 31:
Page 25, line 11, after ("32(2) (b)") insert (", 34(2) (aa) and 35(2) (aa)").
The noble Earl said: The amendment has been spoken to with Amendment No. 27. I beg to move.
Clause 36, as amended, agreed to.
Clauses 37 and 38 agreed to.
8.15 p.m.
Lord Ashley Lord Ashley of Stoke moved Amendment No. 32:
After Clause 38, insert the following new clause:
("Amendment to section 10 of the Juries Act 1974.For section 10 of the Juries Act 1974, (Discharge of summonses in case of doubt as to capacity to act effectively as a juror) there shall be substituted—

Eligibility of people with disabilities to serve as jurors.

"10.—(1) People with disabilities shall be eligible to act as jurors unless in the opinion of the judge there are reasonable circumstances that would mean a person could not effectively discharge their duties as a juror.

(2) Where there is doubt as to a person's capacity to act effectively as a juror, the person may be brought before the judge, who shall determine whether or not he should act as a juror and, if not, shall discharge the summons; and for this purpose "the judge" means any judge of the High Court or any Circuit judge or Recorder."").

The noble Lord said: In moving Amendment No. 32, I speak also to Amendments Nos. 41 and 42.
Amendment No. 32 provides that disabled people shall be eligible to act as jurors unless the judge thinks that there are reasonable circumstances why they should not. Disabled people feel strongly on this issue because they resent unnecessary exclusion from a crucial aspect of our society.
No one knows the full extent of this exclusion. However, we know that there has never ever been a deaf juror; and there are examples of disabled people being refused jury service. I refer to the woman from Norfolk who wrote to me complaining that she was barred because there was no access for her wheelchair. It is inconceivable that human beings can be excluded from jury service for such reasons, but those are the facts.
The amendment is important not because it changes procedure or the role of the judge, but because it changes emphasis. Emphasis in this difficult field of

543
prejudice against disability is important. The amendment changes the emphasis. A disabled person is assumed to be capable rather than incapable of being a good juror.
With regard to reasonable circumstances, the failure to provide such facilities as access ramps or induction loops cannot be regarded as reasonable. Yet the Lord Chancellor's Department's Guide to Facilities for Disabled People in the Crown Courts and County Courts indicates that in no less than 44 per cent. of our courts the main entrance is not accessible to disabled people. In other words, disabled people are excluded as clearly and categorically as though there were a great mountain in front of them.
Nor is it reasonable to tolerate the ignorance and misunderstanding which occurred in the case of Mrs. Elaine Heath, a deaf lady who was rejected as a juror. In that case, the lady had the provision of computer aided transcription—the kind of system that I use in this House. When she went to the court, the judge said, "I'm sorry, you cannot be a juror. You are deaf'. That simply does not make sense. It shows a degree of prejudice and indifference on the part of judges which is regrettable and deplorable. That has been the case in cities such as Edinburgh, London, Glasgow, Cardiff, Liverpool and others. Deaf people have expressed a wish to carry out their duty as jurors and they have been denied the opportunity.
Sympathetic excuses have been offered as objections. It has been claimed that interpreters would be a distraction to the courts. But in fact as soon as the novelty wears off, people quickly become used to having a sign language interpreter. We have seen such interpreters at the party conferences. Only deaf people are now aware of sign language interpreters. Other people are almost oblivious to them once the novelty has worn off.
Some people say that a deaf person would not be able to judge the demeanour of a defendant or witness, or pick up any emphasis or hesitation. But the interpreter would be positioned close to the witness box so that a deaf person could watch both the interpreter and the speaker at the same time. Deaf people acquire the skill of having eyes all over the place, and are able to observe things far more assiduously and perceptively than most people.
Many excuses are offered. I have no time to deal with them. They are preposterous and rather pathetic excuses for excluding deaf people from jury service. But since 1979 many states in the United States have had deaf jurors. Evidence shows that deaf and other disabled people can be as effective as jurors as able-bodied people. I hope that the Committee will agree to the amendment.
Perhaps I may speak briefly to Amendment No. 41. It proposes that the Government shall publish a code of practice for deaf and hard of hearing people in court or custody who require communication support. I believe that the time has come to ensure equal rights of access to judicial proceedings for all deaf and hard of hearing people. I believe that the provision is a step in the right direction. It is not a major step but a step. That is the
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view of some of the judiciary. In the course of a judicial review from a magistrates' court hearing involving a deaf defendant at which there was no sign language interpreter, Lord Justice Watkins said:
"Justices who go on with the hearing of a charge against a defendant who is handicapped by deafness as this one was and is, take a very considerable risk of the hearing which they conduct being described as contrary to natural justice".
I believe that Lord Justice Watkins had a strong case. I hope that his words will be borne in mind. The present position is undoubtedly unsatisfactory. Deaf and hard of hearing people who have to attend court as defendants or witnesses must have communication support. It may be just an inductive loop or a sign language interpreter or a lip-speaker or, for the deaf-blind person a deaf-blind communicator. But whatever it is, that support should be provided.
Less than a few hours ago the Committee agreed the provision about the right of silence. Under that provision a refusal to answer could become incriminating. Yet a profoundly deaf person communicating only through sign language could well be unable, but not unwilling, to answer because he simply does not follow the questions. That is why I believe that communication support should be provided.
The Home Office is being very reactionary. It believes that it should be left to the discretion of the courts to decide whether a person understood his position in law. That is preposterous. What is required is the implementation of the recommendation of the Royal Commission on Criminal Justice, and in particular the recommendation that the courts should take responsibility for providing interpreters. An interpreter is there to interpret for the court as well as for the deaf person. These people should be properly trained, properly qualified and properly provided by the Government.
I wish to say a final brief word on Amendment No. 42. It provides that the Government should publish a code of practice for criminal courts to meet the needs of disabled court users. I wish to add my appreciation to the noble and learned Lord the Lord Chancellor for his generous help and co-operation in making provision for disabled people during the passage of the Police and Magistrates' Courts Bill. I also pay tribute to the fine work of the noble Lord, Lord Swinfen. Between them, he and the noble and learned Lord advanced the cause of disabled people during the course of that Bill.
Amendment No. 42 is a further step, prompted by the fact that codes of practice have proved to be helpful in providing for the needs of disabled people. The code of practice could include awareness training for courtroom staff; the need to provide information about access facilities both beforehand and within buildings, car parking areas and other places; installations and adaptations to buildings to maximise physical access —for example, with ramps, lifts and enough room for wheelchairs to move in and around the courtrooms. There should be simple things like doorways wide enough to permit wheelchair access and even simpler things like the heights of the counters and strength of the door closures as well as the provision of accessible information.
Those are modest steps which could be taken, but they are vital because without them disabled people are excluded from justice. In some cases, it can lead to injustice. No one in this Chamber would tolerate injustice willingly, but it is happening to disabled people. I would greatly appreciate consideration by the Committee, particularly Ministers, of the amendments. I beg to move.
Lord Swinfen: I wonder whether my noble and learned friend the Lord Advocate could advise the Committee on whether he is happy to deal with Amendments Nos. 41 and 42 at the same time as Amendment No. 32. I was taken somewhat by surprise because they are grouped well down the list. I am happy to deal with them now, even though I do not have my notes. My noble and learned friend nods and therefore he is happy to deal with them. Therefore, I shall speak now and hold my peace later in the evening.
I am happy to support the noble Lord, Lord Ashley, on Amendment No. 32. We all remember that not so long ago my noble friend Lord Ferrers was disabled, he moved around the House on crutches. I am glad that he later transferred to two sticks, then one stick and he is now leaping around like a spring lamb. During that period of disability, no one would have said that he was incapable of acting as a juror.
The amendment of the noble Lord, Lord Ashley, mentions disabilities in general; it speaks not only of those who suffer from a hearing impairment. The mere fact that parts of one's body do not work properly does not mean that the observation and mind do not work extremely well. Sometimes because of a disability the mental part of the body works a great deal better. Therefore, that is a good reason why people with disabilities should be allowed to become jurors.
The amendment is framed in such a way that people with mental or learning disabilities could be excluded from jury service by the court. I am sure that there are occasions when that would arise. It may be that my noble and learned friend could consider all three amendments. He could possibly meet the noble Lord, Lord Ashley, and me between now and Report stage and discuss them. I added my name to Amendment No. 41 in the name of the noble Lord, Lord Ashley, concerning assistance in courts for the deaf or the hard of hearing. I am particularly pleased with paragraph (b) concerning someone with that affliction being taken into police custody. It is important. I suffer in an extremely mild way from a hearing disability, I wear a hearing aid but most of the time I can get along perfectly well. However, if someone who is profoundly deaf is taken into police custody and is dealt with by policemen who do not understand the situation, who do not know sign language, it is important that that person receives help. After all, for profoundly deaf people that is their first and probably their only language.
Amendment No. 42 is in my name. My noble and learned friend the Lord Chancellor was kind enough during the Police and Magistrates' Courts Bill (which is now an Act), after I had moved an amendment at the Committee stage, to arrange for an amendment to be drafted for me for Report stage. It was to mean that
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magistrates' courts committees would have to take proper consideration of people with disabilities who used their courts in all capacities. That is, as magistrates, defendants, lawyers, friends and just as visitors. The same should be the case with county courts and above.
A code of practice was put into the Railways Act to ensure that railway authorities take into account, the needs of disabled people when undertaking major alterations to railway stations. I feel strongly that there should be no difficulty in that being taken into account in the Bill for court users in general, in our county and Crown Courts. I would be grateful if my noble and learned friend could assure the Committee that he would be prepared to meet me and the noble Lord, Lord Ashley, between now and Report stage. I strongly suspect that my amendment is not particularly well drafted, and I wish to make certain that it is workable. Crown Courts are sometimes listed buildings and therefore we cannot make certain alterations to them. I understand that; but it is important that wherever possible, the needs of disabled people—no matter what their reason for going to court—are taken into account.
Lord Airedale: I believe that the noble Earl, Lord Ferrers, would not fit easily into a jury box, even if he were not disabled.
Lord Archer of Sand well: In the next debate we shall discuss who should be excused from jury service. In relation to Amendment No. 32, it is equally important that disabled people should have the right to jury service; recognised if they wish to serve. It is part of being a citizen, and rejection can sometimes be an affront to someone's dignity.
Clearly, no one suggests that a person who is unable: to hear what is going on should be included on a jury. The Morris committee considered the matter as long ago as 1965 and said that no one should be eligible to serve: if they were unable to hear the evidence. However, that was 1965. Since then a great deal of technology has: been made available: interpretive sciences are now available and many people can now participate who probably at that time could not. The problem is that the; courts simply do not know what is available.
That is not the only issue on which we have found that in the courts we need to be educated. Recently, the: Council on Tribunals sought to produce a code of conduct relating to the disabled which we have now made available to all the tribunals in the country. In the course of that, we consulted many of the organisations representing the disabled. I thought I knew something about the subject. Until we produced the code, I was amazed at how little I knew and how insensitive I had been on occasions. One of the things we discovered in relation to access was that sometimes if one asks, one; receives the reply, "Oh yes, there's a lavatory available for the disabled, but you've got to find the person who has the key". So one has to go all over the building before the key can be made available. Sometimes a disabled person appearing before a tribunal is already in a state bordering on a nervous breakdown before the; hearing begins.
We have dealt with judicial ignorance in relation to problems of the ethnic minorities. Recently the Judicial

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Studies Board produced a code of conduct. I must say that the initial reaction of many of the judges whom I knew was, "We don't need this. We aren't prejudiced anyway. We don't do anything wrong". They discovered that they were learning something which they thought they had known already. I would certainly like to pay tribute to Sir Henry Brooke, who has placed this issue before a number of judicial training seminars and has greatly improved the way in which we treat members of ethnic minorities.
The same kind of approach would help in relation to the disabled. It would be possible in some courts and in some tribunals; and it would not be necessary in every court. In a large judicial complex there should be one court which is equipped with the technology that would assist those who are deaf. It would not be an inordinate expense, where necessary, to ensure that there is an interpreter for the deaf. If it were made known to the judiciary and to the jury officers how those who are deaf can now live normal lives, I believe that we would go a very long way towards enabling them to participate, as my noble friend said, in our system of justice.
8.30 p.m.
Lord Renton: As the noble Lord, Lord Ashley of Stoke, well knows, I have been very happy and proud to support him from time to time in both Houses of Parliament when he has been trying to help the disabled. The noble Lord has done a service by tabling his amendment. It is a very moderately phrased amendment. It gives scope for decision by the judge which would probably be realistic and just. But what we have to consider is where the priority lies. Is our first duty to ensure justice for the accused, or is it justice for a potentially disabled juror? On that, I must say that I think that justice for the accused and to the system by which the accused is tried must come first.
With that in mind, I would say that, for example, blind people really cannot act as jurors. So often in cases the demeanour of the accused—not only the words he utters and how he utters them, but the expressions on his face—has to be studied in order to find out as best one can whether he is telling the truth. A blind person therefore cannot do that.
What about mentally handicapped people? The noble Lord knows my interest. I think that if even a slightly mentally handicapped person were served with a jury summons, as soon as it was discovered that person should be exempt from jury service. That is my personal opinion.
Then we have the more difficult case of the illiterate person. In so many cases in courts these days there are documents. I am not talking of cases of forgery. There are all kinds of cases in which documents automatically have to be looked at. Sometimes even a policeman's notebook has to be studied. An entirely illiterate person cannot do justice to the case, and therefore should not be compelled, in my opinion, to serve as a juror.
I am sure that Members of the Committee would agree that all jurors should be mentally and emotionally stable. A person who is suffering from a nervous breakdown, however temporary, or a person who is
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suffering a tremendous emotional strain, perhaps due to the break-up of a marriage, or someone who is in the most acute pain following an accident—people like that would not necessarily make the best jurors. But having said that, the noble Lord, Lord Ashley of Stoke, has put forward a case which deserves very serious attention. I am sure that my noble and learned friend the Lord Advocate has given it that attention. I shall be interested to hear what he has to say.
Perhaps I may briefly turn to Amendment No. 42 in the name of my noble friend Lord Swinfen. I was full of admiration at his daring in suggesting that it should be considered with Amendment No. 32. Quite frankly, they do raise somewhat different—
Lord Swinfen: If my noble friend will forgive me, I did not suggest it. I said when I spoke that I was rather surprised.
Lord Renton: I am so sorry; I misheard my noble friend. If we are considering that amendment, perhaps I may briefly refer to it. It covers a very wide field and overlaps partly with Amendment No. 32 in the name of the noble Lord, Lord Ashley. There is the question, for example, of jurors in wheelchairs. You may have a frightfully shrewd juror who is, alas, confined to a wheelchair. On the face of it, in the interests of justice it would be an awful pity if he could not sit. He may even be the best person available to be the foreman of the jury. But jury boxes are not equipped to take wheelchairs. There is a real problem.
Perhaps I may draw on my own rather varied experience of the law and tell the Committee that I remember a case in a rather small quarter sessions court many years ago where an accused person had had an accident and was on a stretcher. I do not know why. He may have broken his thigh, or something like that. He had to be on a stretcher. Of course, normally nobody would dream of trying such a person but he insisted on being tried and getting his case over. The court acceded to his request. He could not be fitted into the dock on a stretcher, and there was no seat or bench near the dock where he could be put. So he was taken up to part of the public gallery. He lay there on his stretcher.
I was one of the counsel in the case. One could just see that there was somebody up there lying on a stretcher. We all thought it really rather embarrassing that this man insisted on being tried. When he was arraigned by the clerk of the court, the clerk of the court used the precautionary words: "Prisoner at the bar, can you hear me?" The answer came back: "I can hear you, but I can't see you". That created the most extraordinary dilemma for the court, for counsel and for the jury. But because the accused wanted the case to go forward we just carried on with it. I am sorry to have to say (I was not defending him) that he was found guilty, and rightly so. We do get very unusual circumstances, but very rarely.
Coming back to the amendment of the noble Lord, Lord Ashley, I would have thought that generally a judge will have no difficulty in deciding, given the power that the amendment gives him, when it is in the interests of the accused, in the interests of justice and the right of the person concerned, for him to serve on the

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jury and when it will not be so. I do not think that in practice it will create difficulties. I tend to support the noble Lord's amendment, but I should be interested to hear what my noble and learned friend the Lord Advocate has to say.
Lord Ashley of Stoke: Perhaps I may make a brief debating response to the noble Lord. Let me begin by acknowledging that he has rendered great service to disabled people. I respect what he says and what he does, whatever he says—and in this case I disagree with him. I congratulate him on the work that he has done.
However, the noble Lord put forward a very false antithesis. He asked the question: do we want to give justice to the accused or to the disabled person? That is a bogus question. It begs the question. It infers that by having a disabled person on a jury the accused suffers an injustice. But that is not so. The very fact that the noble Lord used the poor analogy of a blind person being unable to see the face of the accused shows how weak is his case. Any self-respecting crook will put on a false face if he is pleading a false case. If he should not smile, he will smile; if he should look glum, he will not look glum; and if he should look cheerful, he will not look cheerful. He will give the opposite expression to that of the truth. He will try to mislead by his expression. A blind person is better able to judge by listening to the voice only and not being misled by the false expression of the accused.
In the case of a deaf person, some people say—but not the noble Lord, Lord Renton, although I am sure that he would if he had time—that a deaf person cannot catch the inflexion of the voice. The inflexion of the voice is irrelevant because the English language cannot be twisted—although perhaps one could say that that is attempted by some lawyers. It means what it says. In a court of law, the deaf person, following the language by use of a hearing aid, palantype or sign language, and regardless of inflexion, will analyse the language and will not be misled. If there is a crook in the court, he cannot mislead a deaf person as easily as he might mislead a hearing person.
On all those counts the noble Lord, Lord Renton, offers the reverse of the truth. He is completely wrong. Not only does he have the matter wrong in those respects, but also in what he said about the judge. I specifically said that the powers of the judge are not changed. Under this amendment it is simply the emphasis of the Act that is changed, putting the emphasis on the ability of the disabled person to be a juror. I specifically mentioned that the judge would still determine the matter and be the person who says, "We cannot have this disabled person for good reasons". We still leave the matter to the discretion of the judge.
Therefore, I hope that the Committee will not be misled by the noble Lord, Lord Renton, but instead will support the amendment.
The Lord Advocate (Lord Rodger of Earlsferry):
The Committee has had a short but interesting debate on this topic. The Government are very sympathetic to what the amendment seeks to achieve. In fact, it is already the Government's policy that people with physical disabilities should be able to serve on juries
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wherever possible and practicable. Indeed, the Lord Chancellor's guidance to courts at present requires them to do all that they can to assist and facilitate the participation of such jurors.
As no doubt the noble Lord, Lord Ashley, knows, the only concern that the Government had about the proposal was whether or not an amendment in the law would be necessary to achieve the effect that he desires. I accept that the success of the policy—which is already the Government's policy—depends on the kind of factors of which the noble Lord spoke; namely, the need to get across the message to the people in the courts and in particular to the judiciary and so on. We do not feel that the current law represents an obstacle to the policy. The question is whether or not a change in the law, such as that envisaged by the noble Lord, might assist in carrying through the kind of policy that we are pursuing.
We have reached the conclusion that it would be possible to draft the law in a more positive way in order to deal with the participation, as jurors, of people with disabilities. We have concluded that such a change might indeed be a useful signal to the courts and other people who are concerned about the policy which it is desired to achieve. For that reason I am able to say to the noble Lord that we do not oppose the principle which lies behind his amendment.
At this stage I must say that we feel that the; terms of the amendment require to be looked at in more detail. For example, the amendment has removed all reference in an existing text to the need for people to have a sufficient understanding of the English language for them to serve as jurors. No doubt we all agree that that is necessary. I entirely accept the analysis put forward by the noble Lord, Lord Ashley, as to the nature of the dilemma posed by my noble friend, save only—which I am sure he accepts—that there may indeed be cases where a particular juror with a particular kind of disability may not be able to serve. To take an obvious example, if there were a case in which much of the evidence was on video tape, then someone who could not see that video tape would be at a disadvantage which might well make him unacceptable as a juror in that particular case. But, as the noble Lord recognises, the question would always be whether a particular juror with particular disabilities could serve on the particular jury in question.
With the undertaking that the Government will take away the noble Lord's amendment, look at it and come back at Report stage with a proposal, I hope that the noble Lord will feel able to withdraw his amendment.
8.45 p.m.
Lord Renton: Before my noble and learned friend moves on to Amendment No. 42, I wonder if he could say whether the Government, in giving this matter further consideration, will give priority to the interests of the accused and the administration of justice or priority to the sensitivities of disabled people.
Lord Rodger of Earlsferry: I would expect the matter to be left to the judgment of the judge on the case. That is what we envisage. I would expect that the judge would always wish to have only jurors sitting on the

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case who would be able to try the case fairly —that means fairly in the interests of the public and in the interests of the accused. I accept that that must be the case. But depending on the particular disability, that may not mean, in the particular case, that it prevents that person from trying the case properly.
I turn to Amendment No. 41, which was the first amendment spoken to by my noble friend. As he knows, there is already a code of practice which applies to the police under the Police and Criminal Evidence Act 1984. It stipulates that if a person appears to be deaf or there is doubt about his hearing or speaking ability, he must not be interviewed in the absence of an interpreter unless he agrees in writing to be interviewed without one. That guidance exists and has existed for some years. Further guidance was issued in 1985 and 1991 stressing the need for the police to be alert to potential difficulties in communicating properly and effectively with deaf people and stressing the need to ascertain whether or not an interpreter is needed.
Turning to the position in relation to the courts, Members of the Committee will be aware that a project is presently being run—the Nuffield Interpreter Project —which is wide-ranging and deals not only with the deaf, but also with interpreters for those unable to speak English. That project is funded from the Lord Chancellor's Department, the Home Office and the Crown Prosecution Service. We expect a report to be published in the Autumn. At the next meeting of the Nuffield project, consideration will be given to including sign language interpreters in a register of interpreters who are qualified for use within the criminal justice system. That is obviously an important matter and I hope that it will be a step forward in this area. The project liaises with the Council for the Advancement of Communication with Deaf People, which already has available a directory of sign language interpreters and is able to supply names of interpreters when requested.
That has been found to work well in practice. It is of course the case that hitherto the courts were not fitted with the kinds of equipment able to help deaf people in understanding what goes on in court. In particular, they have not been fitted with infra-red systems. Steps are being taken to improve that situation and such equipment has already been installed in a number of courts in different parts of the country. As the projects of refurbishment go ahead, we expect to install that system in other courts.
It has not been thought proper to use the induction loop system, to which the noble Lord, Lord Ashley, referred, because that is a system which allows the transmission to be picked up outside and therefore the transmission could be picked up outside the court room. As the noble Lord will understand, that may have implications in ensuring a fair trial if witnesses and so forth hear the evidence outside. For that reason courts prefer to adopt the infra-red system. As that system is increasingly installed, we hope that it will lead to improvements.
On the question more generally of disabled people and the courts, much has been done in recent years to improve the situation with the introduction of the Justice
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Charter in Scotland and the Courts Charter in England and Wales. Standards exist which require new court houses to comply with building regulations and to provide facilities for disabled people. In fact, there are jury boxes in some of our courts specifically designed to allow people in wheelchairs to sit as members of a jury. As has been said, it is right that where possible people whose only problem is that they are in a wheelchair, should be able to serve as jurors. I do not close my eyes to the fact that some of our courts, because of their existing design, make that impossible at present. But we hope that, as refurbishment and building goes ahead, the number of courts where it is possible will increase.
The Lord Chancellor's Department produced a digest of facilities for disabled people in the Crown Courts. As the noble Lord, Lord Ashley, is aware, that is circulated to bodies which represent people with disabilities of various kinds. By consulting the digest they are able to see what facilities are available in a specific court and what they need to do to alert people of their needs.
From the Government's point of view it is a little more difficult, as the Committee will appreciate, to provide change in magistrates' courts. They are under the control of local magistrates' courts committees and they are in local government accommodation. Therefore the responsibility for the facilities essentially rests with the local authorities. Detailed guidance has been made available for local authorities and for magistrates' courts committees on the provision of appropriate facilities for the disabled in all new magistrates' courts and also where improvements are being proposed. Applications for funds to improve facilities for the benefit of disabled people are dealt with as expeditiously and as sympathetically as possible.
My noble and learned friend the Lord Chancellor would welcome the opportunity to consider a code of conduct being drawn up by the Access Committee when it is available. Guidance and standards already exist. They were issued by the Home Office in 1991 to ensure that facilities for the disabled are properly and thoroughly considered in the magistrates' courts. The needs of disabled court users are more widely recognised now than they once were.
Having said that, if my noble friend wishes to meet me between now and Report, I shall be happy to meet him and the noble Lord, Lord Ashley, to consider whether anything further can be done. However, in the light of what I have been able to say at this stage, I hope that noble Lords will feel able to withdraw their amendments.
Lord Swinfen: I am much encouraged by what my noble and learned friend said. As a result of his offer to meet me and the noble Lord, Lord Ashley, I shall not be moving Amendment No. 42 when the Committee reaches it.
Lord Ashley of Stoke: I have a few differences with the noble and learned Lord. But I do not intend to delay the Committee now. I simply want to say that I warmly appreciate the sensitive, understanding and helpful way in which he dealt with my amendment and I beg leave to withdraw Amendment No. 32.
Amendment, by leave, withdrawn.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 33:

After Clause 38, insert the following new clause:
("Jury service: Excusal on religious grounds
. In section 9 of the Juries Act 1974 (providing among other matters for discretionary excusal from jury service)—

(a) after the word "may" in line 4 of subsection (2) there
shall be inserted—
"subject to subsection (2A) below"; and

(b) after subsection (2) there shall be inserted the following
subsection—

"(2A) If any person summoned under this Act to serve on a jury is a practising member of a religious society or order and applies for excusal on the grounds that such service would be incompatible with his tenets or beliefs, then he shall be entitled to be excused provided that—

(a) the appropriate officer is satisfied that such
grounds are genuine; or

(b) if (a) does not apply, the judge on whose authority
the summons was issued is so satisfied." ").

The noble and learned Lord said: The noble Lord, Lord Ashbourne, who was kind enough to add his name to this amendment, asked me to say that his absence today is due purely to the fact that he is indisposed. The purpose of Amendment No. 33 is to provide that anyone for whom jury service is incompatible with a genuinely held religious belief, should be excused. It is not an academic issue. There are those who sincerely believe that they are precluded by scriptural authority from serving on juries, particularly, but not entirely, the Exclusive Brethren.
I say at the outset that I do not share that view. That is not the issue. They are people whose commitment to the obligations of citizenship cannot normally be faulted. They pay their taxes; they abide by the law; they help their neighbours. But in this respect they find that their civic obligations are in conflict with their religious faith.
This country has long recognised the right of conscientious objection to what would otherwise be a duty, and that is a tradition in which most of us take a pride. I do not believe it should or can be recognised in every context in which it arises. There are those who object on grounds of conscience to paying that proportion of their taxes which is destined to be used on nuclear weapons. I do not believe it would be practical to recognise that instance of conscientious objection.
In deciding whether a conscientious objections to a civic duty should be recognised, we should have regard to two factors. The first is the mischief which would result if the right were recognised. If it appeared that if the services of those who hold this belief were excused it would be impossible to empanel a jury and so would bring the processes of our criminal procedure to a standstill, I accept that we might need to think again. If recognising this right were likely to encourage vast numbers of potential jurors to seek excusal from jury service, I concede that there might be a difficulty. But that is simply not the case. Normally, those summoned for jury service answer the obligation readily and, in most cases, cheerfully. The jurors with whom I have occasion to work when sitting as a recorder devote great care and attention to their task, and usually appear to find it interesting. If the right of conscientious objection were to be recognised, it would create no problem for the administration of our criminal justice system.
The second criterion which I believe should be taken into account in deciding whether to recognise a specific right of conscientious objection is the degree of difficulty in testing whether the belief is a genuine one. In this instance, I see no difficulty. That is why the exemption in the amendment is confined to a member of a religious society or order. It is conceptually possible, of course, that an atheist might hold some genuinely conscientious objection to jury service; and if that were to arise, we might need to address it. But I know of no instance where it has arisen in practice, and we can confine ourselves to the real problem. And it is a simple matter, if someone claims to be a member of a religious body which holds this belief, to call evidence; normally, I imagine, in the form of a letter from a minister or other official of the church. He or she would certify two things; first, that the objector is a member of the church, regularly attends church services, takes communion and participates in its other activities; and, secondly, that it is a belief of that faith that members may not undertake the activity from which the excusal is sought.
That is a simple exercise and it creates no problem for those who have to decide whether to grant the excusal. So by both these criteria, no catastrophe would overtake us if we were to recognise the problem of conscience. Indeed, I believe that there is a very substantial advantage to the administration of justice in recognising the right, quite separately from the argument based on our tradition of tolerance. Every judge with experience in criminal courts knows that the interests of justice are not served by including in a jury a reluctant juror. A juror who does not wish to serve, who resents being present and who believes that he is precluded by his conscience from discussing the case with the other jurors, cannot make a proper contribution to the processes of justice. If we are balancing the advantages and disadvantages of recognising this right of objection, we need to throw into the scale the requirements of justice itself for those who are being tried.
This problem was considered as long ago as 1965 by the Morris Committee. In paragraph 153 of its report, the committee said:
'We recognise that there are people whose religious scruples would make it genuinely distressing for them to serve on a jury, but we cannot think that excusal as of right would be an appropriate way of dealing with this problem. In our view, such persons should apply for excusal in the normal way, and we have no doubt that summoning officers and courts will deal with their applications sympathetically".
That message was understood by the courts, and for many years there was very little problem. Section 9 of the Juries Act leaves the position to the discretion of the "appropriate officer" if he is shown there is a good reason for the excusal. There is an appeal from the appropriate officer to the judge. In 1988 the then Lord Chief Justice issued a practice direction encouraging courts to respond sympathetically to applications.
If they had always responded, I should not be troubling your Lordships with this amendment tonight. But, alas, that has not always been the case. In June 1988, at the Report stage of the then Criminal Justice Bill, I moved in another place a new clause to the same effect as this present one. It was defeated by 209 votes to 205. The argument of the Government on that

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occasion was that which had found favour with the Morris Committee—we do not need to make specific legislative provision: we can rely on the common sense and sympathy of the judiciary. I have no doubt that in the large majority of instances that is true. Unhappily, it is not universally true in 100 per cent. of cases. There is a substantial number of cases where objectors have found that their application was not received sympathetically. The Royal Commission chaired by the noble Viscount, Lord Runciman, heard evidence on the question, and in paragraph 57 said:
"Where practising members of a religious sect or order find jury service to be incompatible with their tenets or beliefs, that shall entitle them to be excused jury service, and we recommend accordingly".
I stress the word "entitle". This amendment seeks to implement that recommendation, and indeed it follows that wording.
On 16th December 1993 I tabled a Question asking for the Government's response to that recommendation. The noble Earl, Lord Ferrers, replied that the Government had received only three representations on the matter. It transpired on inquiry that a substantial number of those who had encountered difficulties since the report had abstained from writing because they did not appreciate that the Government implement the recommendation of a Royal Commission which has heard evidence on the subject only if they receive further representations. But I am told that since that exchange at least 45 people have written to the noble Earl recounting their experiences.
I have been shown a copy of a letter written by the Minister of State, Mr. Maclean, to Sir Teddy Taylor, who tabled a new clause to this Bill in another place. The letter is dated 11th May. It says that the Government support the principle that those with a genuine conscientious objection to jury service should be excused, and that the Government accept the evidence that their attempts to be excused have been unnecessarily difficult and stressful. The letter adds that the Government would be ready to consider administra-tive steps to deal with the problem—which, as we know, have not worked. Having pursued the path of logic to the front door, they then turn aside and decline to enter. The Government say that they have not reached a conclusion on the commission's recommendation.
There is scriptural guidance to which I sometimes turn. It concerns a certain importunate widow and I suspect that Robert Bruce had her in mind when he was contemplating the spider. Perhaps on this occasion the Government may take the final step. I beg to move.
Lord Simon of Glaisdale: I support this amendment which has been moved so ably, thoughtfully and moderately by the noble and learned Lord. I have been asked to speak on it by members of the religious society now known as Exclusive Brethren who were formerly known as Plymouth Brethren. The Committee will recollect that that body inspired one of the masterpieces of English literature, Father and Son, written by a former Librarian of your Lordships' House, Edmund Gosse.
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I first came across members of that society after a debate in your Lordships' House on matrimonial law. They came from some distance away in Yorkshire to seek an interview. It was quite apparent from meeting them that they were thoroughly good, honest people sincerely shaping their lives by scriptural authority. It is also quite plain that that authority enjoins them not to take the oath of judgment as jurymen. As the noble and learned Lord has just said, that alone should make us hesitate, because reluctant jurymen are not good jurymen.
But there is much more to it. They are people with a conscientious objection and unless there is some very strong reason to the contrary, that objection should be met. As a pupil of the late Lord Morris of Borth-y-Gest, I am naturally deeply influenced by the report of the Morris Committee. But, as the noble and learned Lord has just shown, administrative arrangements are not now sufficient. In addition to them, my noble friend Lord Runciman and his Royal Commission, having taken extensive evidence and speaking with great authority, have recommended that there should now be statutory provision for the consciences of these people. Under those circumstances I very much hope that the noble and learned Lord the Lord Advocate will give a favourable reply to the amendment which has been moved.
Viscount Brentford: It seems to me that we are a nation which is extremely tolerant and supportive of other people's religious views. If the law as it stands is causing hardship to people who, for sound biblical reasons, are in difficulties because of the varying ways in which their applications are being treated, we should enshrine this right in legislation.
Perhaps I may ask two questions. First, we have talked about the Exclusive Brethren, but are there other categories of people who would benefit from this change and are there any by whom this change in the law could be abused? The second question is this: I am not quite clear what are the problems resulting from the present position and I should like to know whether, when applications to be excused jury service are turned down, that means that those people are reluctant jurors. Is that infringing the system of justice at the moment? While not in any way wanting to avoid easing the consciences of such people, I wonder whether those points can be amplified so that we can know what is currently happening that is to the detriment of justice.
Lord Airedale: Christians might claim exemption under the doctrine:
"Judge not, that ye be not judged".
That would create a problem.
Lord Hylton: I am probably known as being sympathetic to small minorities and religious points of view. However, I am not quite clear, first, as to why those who object to taking an oath should not be allowed to affirm. After all, one can affirm (if one objects to oaths) in both Houses of Parliament. Secondly—
Lord Simon of Glaisdale: If my noble friend will allow me, as I understand it, it is less the oath than the judgment that is contrary to conscience.
Lord Hylton: I am much obliged to my noble and learned friend. I was just coming to that very point because—
Lord Archer of Sandwell: I wonder whether I can assist. In fact, it is the scripture relating to taking counsel with unbelievers which is the stumbling block.
Lord Hylton: I think that I am prepared to allow that case, but, with regard to juries, I do not think that I am prepared to allow the point that has already been raised about sitting in judgment. Surely the function of a jury is to decide, ascertain and present the facts of what has happened. Members of a jury are not required to pass judgment on their neighbour, brother or anyone else.
9.15 p.m.
Lord Monkswell: I must take issue with the previous speaker to some extent because, as I understand it, jury service is a process of judgment. The jury has to make a judgment as to the innocence or guilt of the person charged.
While I support my noble and learned friend in his amendment, I wonder whether I may elicit a little more information from him. First, why should this be a particular problem now? While I recognise that it has been a problem for some time, I wonder whether the changes in judicial practice over the years have made things worse. My noble and learned friend talked about judges allowing jurors to be exempt from service. Presumably another avenue that allowed jurors not to serve was the defence challenge to a jury person sitting. That would be another route for exemption. The curtailment of that right or facility over recent years may have conspired to make the problem worse.
My other question relates to the position of a person who is called to serve as a reluctant jury person. Presumably the only avenue open to that person so that he or she can abide by their religious convictions is not to make a judgment—effectively, to be neutral and not to come down on one side or the other. I wonder whether the result of that will have any effect either in terms of a mistrial or miscarriage of justice with regard to the jury's final verdict. I am thinking of cases where it might be a requirement to have a unanimous verdict —I am not a legal expert so I do not know—but obviously if one jury person is not prepared to make a judgment the result cannot be unanimous almost by definition. I should be grateful for some assistance.
Lord Archer of Sandwell: I am most grateful to my noble friend. The problem is that such jurors feel themselves precluded from discussing the case with the other jurors, but the whole process of jury trial involves the jurors discussing the case together. When they have been compelled to serve on a jury, objectors have sometimes wanted to give a verdict separate from that of the other jurors when they return to court, but that is not the way in which our jury system works.
Lord Rodger of Earlsferry: Again, this amendment has raised an interesting topic. The Government are sympathetic to the purpose behind the noble and learned Lord's amendment. As the interesting narrative of the noble and learned Lord showed, this is a matter which
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the Government have approached with some degree of caution over the years. That is understandable because the Government regard jury service as an important civic duty. Nonetheless, it is recognised that there are some people who, unlike many, are unenthusiastic about serving on a jury and who may try to get out of it by putting forward spurious reasons for not serving. Therefore, it has seemed that there might at least be a risk that the existence of a statutory invitation to seek exemption on these grounds will provoke a number of undeserving claims.
As the noble and learned Lord acknowledged, it is also the case that the courts have the power of excusal, and in 1988 the then Lord Chief Justice issued a practice direction which sought to clarify the situation. It emphasised that the courts should treat sympathetically those who applied for excusal on the grounds to which the noble and learned Lord referred.
Nonetheless, the Government have received representations from a number of religious groups arguing in favour of a specific statutory recognition of the grounds as they would apply to particular societies or groups. The argument in favour is to remove the element of uncertainty and allow the matter to be handled with greater certainty and consistency. The Minister of State at the Home Office recently met a delegation of closed brethren to hear their anxieties about the matter. They were put forward on the basis mentioned by the noble and learned Lord. It is also relevant to note that the matter was the subject of a recommendation by the Royal Commission.
We believe that there is a small number of other groups which might also wish to benefit from this kind of provision. We are thinking, for example, of Jehovah's Witnesses and Christadelphians. There may be others; who would wish to take advantage of it. The possibility of abuse exists; but in this life there are few things which cannot be abused. We cannot always legislate on the basis of doing only things which can never be abused. The assessment is that if the provision is properly drafted, the risk of abuse will be small.
Having considered the matter further, we are satisfied that the anxieties that we have about the provision are not insurmountable. We believe that the type of groups which would have particular objections to jury service on grounds of principle could be readily recognised and that the matter could be dealt with on that basis. On balance, we accept that a specific statutory formulation could provide for swifter and more consistent resolution of the requests for excusal, and that it would not provide unmanageable difficulties for the courts. Therefore, a statutory provision of the kind that the noble Lord argued for would be appropriate.
Nonetheless, the amendment on the Order Paper is technically defective because, for example, it refers to the summons being issued by a judge. We understand that that is the responsibility of my noble and learned friend the Lord Chancellor. We also wish to consider how the amendment should be drafted to reflect the purpose more specifically. In the light of those assurances, perhaps the noble and learned Lord will feel

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able to withdraw his amendment in the hope that, like Robert the Bruce to whom he referred, on this umpteenth attempt he may at long last achieve success.
Lord Archer of Sandwell: It is a pleasure doing business with the noble and learned Lord. I never claimed that my draftsmanship was beyond faulting, and I should be happy if it were looked at again. I had always believed that under the stony exterior of the Home Office there beat a heart of pure granite. I am delighted to have been proved wrong. I am grateful to Members of the Committee who have participated in the debate. I am grateful to the noble and learned Lord for his offer and I look forward to the next stage of our deliberations on the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 39 agreed to.
Clause 40 [Transfer for trial instead of committal proceedings]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 33A:
Page 26, leave out lines 28 to 37.
The noble and learned Lord said: Amendment No. 33A is the first of a sequence of amendments going up to Amendment No. 33KK. They all deal with technical consequential amendments to the statute book which result from the proposal in Clause 40 to reform the system of committal for trial. For the most part they make specific reference to passages in the statute book where words have to be changed.
Amendment No. 33A removes subsection (4) of Clause 40 which was included as a holding measure while the full search of the statute book was conducted. That having now been done, subsection (4) is no longer necessary. I beg to move.
Lord Airedale: I believe that we are now discussing the six pages of amendments to Schedule 4. If so, perhaps I may ask whether all those government amendments are in response to undertakings given in another place or whether they are an indication that the Bill was not properly thought out when it was presented?
Lord Rodger of Earlsferry: It is an indication of neither. The amendments are not in direct response to undertakings given in another place. However, when the Bill was drafted it was recognised that it would be necessary to look through all the nooks and crannies of the statute book to find the various small references which had to be changed. For that reason subsection (4) was included as a holding provision. It was recognised that further detailed work had to be done. That has now been done and the amendments now before the Committee are the result of that work.
On Question, amendment agreed to.
Clause 40, as amended, agreed to.
Schedule 4 [Transfer for Trial]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendments Nos. 33B to 33KK:
Page 129, line 45, after ("evidence") insert ("and").
Page 129, line 47, leave out from ("above") to ("shall") in line 48.
Page 132, line 24, leave out ("(6)") and insert ("(7)").
Page 133, line 40, at end insert:
(" "the 1948 Act" means the Criminal Justice Act 1948;").
Page 133, line 40, at end insert:
(" "the 1955 Act" means the Army Act 1955;").
Page 133, line 40, at end insert:
(" "the 1957 Act" means the Naval Discipline Act 1957;").
Page 133, line 43, at end insert:
(" "the 1979 Act" means the Customs and Excise
Management Act 1979;").
Page 133, line 45, at end insert:
(" "the 1983 Act" means the Mental Health Act 1983;").
Page 133, line 45, at end insert:
(" "the 1984 Act" means the County Courts Act 1984;").
Page 133, line 46, at end insert:
(" "the 1986 Act" means the Agricultural Holdings Act
1986;").
Page 133, line 49, at end insert:
("Children and Young Persons Act 1933 (c. 12.).
. In section 42 of the Children and Young Persons Act 1933 (deposition of child or young person), for subsection (2) (a) there shall be substituted the following paragraph—
"(a) if the deposition relates to an offence in respect of which proceedings have already been trans-ferred to the Crown Court for trial, to the proper officer of the court to which the proceedings have been transferred; and".").
Page 134, line 27, at end insert:
("Criminal Justice Act 1948 (c. 58.)

.—(1) The 1948 Act shall be amended as follows.

(2) In section 27(1) (remand and committal of persons aged 17 to 20), for the words "trial or sentence" there shall be substituted the words "sentence or transfers proceedings against him for trial".

(3) In section 80(1) (interpretation of expressions used in the Act), in the definition of "Court of summary jurisdiction", for the words from "examining" to the end there shall be substituted the words "a magistrates' court proceeding with a view to transfer for trial;".").

Page 134, line 27, at end insert:
("Army Act 1955 (c. 18.)
. In section 187(4) of the 1955 Act (proceedings against persons suspected of illegal absence)—

(a) for the words from "courts of to "justices" there shall
be substituted the words "magistrates' courts proceeding
with a view to transfer for trial"; and

(b)for the words "so acting" there shall be substituted the
words "so proceeding".").

Page 134, line 27, at end insert:
("Air Force Act 1955 (c. 19.)
. In section 187(4) of the Air Force Act 1955 (proceedings against persons suspected of illegal absence)—

(a) for the words from "courts of to "justices" there shall be substituted the words "magistrates' courts proceeding with a view to transfer for trial"; and

(b) for the words "so acting" there shall be substituted the words "so proceeding".").

Page 134, line 27, at end insert:
("Geneva Conventions Act 1957 (c. 52.)
. In section 5 of the Geneva Conventions Act 1957 (reduction of sentence and custody of protected persons)—

(a) in subsection (1), for the word "committal" there shall be substituted the words "the transfer of the proceedings against him"; and

(b) in subsection (2)—

(i) for the word "committal" the first time it occurs there shall be substituted the words "the transfer of the proceedings against him"; and

(ii) for the words "remand or committal order" there shall be substituted the words "court on remanding him or transferring proceedings against him for trial".").

Page 134, line 27, at end insert:
("Naval Discipline Act 1957 (c. 53.)
. In section 109(4) of the 1957 Act (proceedings against persons suspected of illegal absence)—

(a) for the words from "1952" to "justices" there shall be substituted the words "1980, that is to say the provisions relating to the constitution and procedure of magistrates' courts proceeding with a view to transfer for trial"; and

(b) for the words "so acting" there shall be substituted the words "so proceeding".").

Page 135, line 3, at end insert:
("Theft Act 1968 (c. 60.)
. In section 28(4) of the Theft Act 1968 (orders for restitution), for the words from ", the depositions" to the end there shall be substituted the words "and, where the proceedings have been transferred to the Crown Court for trial, the documents sent to the Crown Court by the magistrates' court under section 7(3) (b) of the Magistrates' Courts Act 1980.".").
Page. 135, line 13, at end insert:
("Sexual Offences (Amendment) Act 1976 (c. 82.)
. In section 3 of the Sexual Offences (Amendment) Act 1976 (application of restrictions on evidence at trials for rape etc. to committal proceedings etc.), for subsection (1) there shall be substituted the following subsection—
"(1) Where a magistrates' court considers an application for dismissal of a charge for a rape offence, then, except with the consent of the court, evidence shall not be adduced and a question shall not be asked at the consideration of the application which, if the proceedings were a trial at which a person is charged as mentioned in subsection (1) of the preceding section and each of the accused in respect of whom the application for dismissal is made were charged at the trial with the offences to which the application relates, could not be adduced or asked without leave in pursuance of that section.".").
Page 135, line 13, at end insert:
("Customs and Excise Management Act 1979 (c. 2.)

—(1) The 1979 Act shall be amended as follows.

(2) In section 147 (proceedings for offences under customs and excise Acts), in subsection (2), for the words from the beginning to "justices" there shall be substituted the words "Where, in England or Wales, on an application under section 6 of the Magistrates' Courts Act 1980 for dismissal of a charge under the customs and excise Acts, the court has begun to consider the evidence and any representations permitted under that section,".

(3) In section 155 (persons who may conduct proceedings under customs and excise Acts), in subsection (1), for the words "examining justices" there shall be substituted the words "magistrates' court proceeding with a view to transfer for trial".").

Page 135, line 13, at end insert:
("Reserve Forces Act 1980 (c. 9.)
. In paragraph 2(4) of Schedule 5 to the Reserve Forces Act 1980 (proceedings against persons suspected of illegal absence)—

(a) for the words "acting as examining justices" there shall be substituted the words "proceeding with a view to transfer for trial"; and

(b) for the words "so acting" there shall be substituted the words "so proceeding".").

Page 137, leave out lines 28 to 30 and insert:

(".—(1) Section 97 of the 1980 Act (summons to witness) shall be amended as follows.

(2) In subsection (1)—

(a) the words from "at an inquiry" to "be) or" shall be
omitted; and

(b) for the words "such a court" there shall be substituted the words "a magistrates' court for that county, that London commission area or the City (as the case may be)".

(3) After subsection (1) there shall be inserted the following subsection—

"(1A) Where a magistrates' court is proceeding with a view to transferring proceedings against an accused for an offence to the Crown Court for trial, subsection (1) above shall apply in relation to evidence or a document or thing material to the offence subject to the following modifications—

(a) no summons shall be issued by a justice of the peace after the expiry of the period within which a
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notice of the prosecution case under section 5 above must be served or the service of the notice of the prosecution case, if sooner; and

(b) the summons shall require the person to whom it is directed to attend before the justice issuing it or another justice for that county, that London commission area or the City of London (as the case may be) to have his evidence taken as a deposition or to produce any document or thing.".

(4) In subsection (2)—

(a) after the words "subsection (1)" there shall be inserted the words "or (1A)"; and

(b) after the word "court" there shall be inserted the words "or justice, as the case may be,".

(5) In subsection (2A), after the words "subsection (1)" there shall be inserted the words "or (1A)".

(6) In subsections (3) and (4), after the words "a magistrates' court" or "the court" wherever they occur there shall be inserted the words "or justice, as the case may be,".").

Page 138, line 12, at end insert:
(". In paragraph 5 of Schedule 5 to the 1980 Act (transfer of remand hearings), for the words "sections 5" there shall be substituted the words "sections 4(4)".").
Page 138, line 12, at end insert:
("Contempt of Court Act 1981 (c. 49.)
. In section 4(3) (b) of the Contempt of Court Act 1981 (contemporary reports of proceedings)—

(a) for the words "committal proceedings" there shall be substituted the words "an application for dismissal under section 6 of the Magistrates' Courts Act 1980"; and

(b) for the words from "subsection (3)" to "1980" there shall be substituted the words "subsection (5) or (7) of section 8A of that Act".").

Page 138, line 29, after ("trial") insert ("specified in a notice given by the magistrates' court under section 7 of the Magistrates' Courts Act 1980 or").
Page 138, line 41, leave out from ("words") to end of line 42 and insert ("from "a person's committal" to "beginning of the trial" there shall be substituted the words "the transfer of proceedings for trial by the Crown Court and the beginning of the trial;" ").
Page138, line 45, leave out from ("words") to ("; and") in line 47 and insert (" 'The trial of a person on charges the proceedings on which have been transferred for trial to the Crown Court-" ").
Page139, line 1, leave out second ("subsection") and insert ("subsections").
Page139, line 7, at end insert:
("(5) In this section references to the transfer of proceedings for trial are references to a transfer by a magistrates' court under section 7 of the Magistrates' Courts Act 1980 or by the prosecutor under section 4 of the Criminal Justice Act 1987 or section 53 of the Criminal Justice Act 1991 and the date of transfer for trial is the date on which the transfer is effected under the said section 7 or, where the transfer is by the prosecutor, the date specified in his notice of transfer." ").
Page139, line 7, at end insert:
("Mental Health Act 1983 (c. 20.)
. In section 52 of the Mental Health Act 1983 (provisions relating to persons remanded by magistrates' courts)—

(a) in subsection (2), for the words from "accused" to "or" there shall be substituted the words "court, on transferring proceedings against the accused to the Crown Court for trial, orders him to be safely kept in custody, or commits the accused in custody to the Crown Court"; and

(b) in subsection (7)—

(i) for the words from "inquire" to "into" there shall be substituted the words "proceed with a view to transferring for trial proceedings for"; and

(ii) for the words from "commit" to "1980" there shall be substituted the words "transfer proceed-ings against him for trial".").

Page139, line 7, at end insert:
("County Courts Act 1984 (c. 28.)
. In section 57(1) of the 1984 Act (evidence of prisoners), for the words "under committal" there shall be substituted the words "following the transfer of proceedings against him".").
Page139, line 31, at end insert:

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("Agricultural Holdings Act 1986 (c. 5.)
. In paragraph 12(1) of Schedule 11 to the 1986 Act (procedure on arbitrations under the Act), for the words "under committal" there shall be substituted the words "following the transfer of proceedings against him".").
Page141, line 12, at end insert:
("Coroners Act 1988 (c. 13.)
. In section 16 of the Coroners Act 1988 (adjournment of inquest)—

(a) in subsection (1) (b), for the words "examining justices" there shall be substituted the words "a magistrates' court which is to proceed with a view to transferring proceedings against that person for trial,"; and

(b) in subsection (8)-

(i) for the words "examining justices" there shall be substituted the words "a magistrates' court considering an application for dismissal under section 6 of the Magistrates' Courts Act 1980"; and

(ii) for the words from "person" to "committed" there shall be substituted the words "proceedings against the person charged are transferred".").

Page141, line 39, at end insert:
("(4) In paragraph 6 of Schedule 6 (reporting restrictions), in sub-paragraph (8), for the words "sub-paragraphs (5) and (6)" there shall be substituted the words "sub-paragraphs (5) and (7)".").
Schedule 4, as amended, agreed to.
Clause 41 agreed to.
Schedule 5 agreed to.
Clauses 42 and 43 agreed to.
Clause 44 [Reduction in sentences for guilty pleas]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 34:
Page 28, line 19, leave out ("it would otherwise have done") and insert ("the punishment it would otherwise have imposed").
The noble and learned Lord said: This is a drafting amendment to correct a grammatical error in the original clause. I beg to move.
Clause 44, as amended, agreed to.
9.30 p.m.
The Earl of Longford The Earl of Longford moved Amendment No. 35:

After Clause 44, insert the following new clause: ( "Penalty for murder
. No court shall be required to sentence a person convicted of murder to imprisonment for life.").
The noble Earl said: The effect of the amendment would be that if a person were convicted of murder he or she would not necessarily be given a life sentence; in other words, he or she may or may not be given such a sentence. I am not asking noble Lords either tonight or at a later stage, when there is a larger presence in the Chamber, to accept the amendment on the strength of my own personal convictions. Rather, I recall that in April 1991 this Chamber accepted such a proposal by a large majority, although the Minister, on behalf of the Government, did not like it.
On that occasion, two Lord Chancellors, including the noble and learned Lord, Lord Hailsham, favoured such an amendment as did the Lord Chief Justice and five Law Lords. Indeed, I was greeted with a large majority. Since then, in March 1993 my noble friend Lord Ashley introduced a Private Member's Bill to the
564
same effect. That was carried without a Division. There was only one dissentient voice which was dealt with firmly by other noble Lords.
That was the position a year ago. This Chamber, without a Division, accepted a Bill which had the same effect as that proposed by my amendment. Subsequently, in December last a very high-powered committee of the Prison Reform Trust produced a large report which reached the same conclusion. The chairman of that committee was the noble and learned Lord, Lord Lane, (the previous Lord Chief Justice). Moreover, the noble Lord, Lord Windlesham, who is arguably the most enlightened of all former Home Office Ministers of recent years—without leaving out present company—was also a member of the committee. Therefore, the committee must carry a good deal of weight as regards this place.
Tonight I propose again the same amendment that has twice found favour in this Chamber and once with the committee chaired by the former Lord Chief Justice. Why should this place change its mind? I may be told that the time is inappropriate. As St Augustine said on an earlier occasion:
"Give me chastity…—but not yet!"
Indeed, there may be some feeling of that nature. But what is supposed to have happened since that time a year ago? What changes have taken place? The noble Earl, Lord Ferrers, is still with us. He is, perhaps, as Sherlock Holmes once said of Watson, "the fixed point in a changing age". The noble Earl preaches just as acceptably whatever message he is required to deliver, even if a subsequent message contradicts an earlier one. At any rate, as I said, the noble Earl is still with us.
Presumably the latest figures as regards crime for the year 1993–94 are not available, or at least they have not been published. However, from the last available figures it would seem that the crime rate actually went down after many years of remorseless increase. Therefore, the change cannot all be put down to the increase in crime. So what has happened in the meantime? Well, one thing has certainly happened: there has been a new Home Secretary. Mr. Howard arrived on the scene with scant knowledge of prisons. Indeed, there was an argument in the Chamber as to whether he had once visited a prison or had in fact never done so. I took the charitable view and suggested that he had probably once visited a prison.
However, within a very short time Mr. Howard was delivering a programme consisting of 27 points dealing with law and order. Of course, that must be regarded as somewhat changing the atmosphere—at any rate, the atmosphere on the Conservative Benches. Therefore, I understand how hard it is for loyal Members of the Conservative Party. I know that I was one once but that was long ago. Indeed, no noble Lord here tonight was born at the time, and I think that is literally true.
No loyal member of the Conservative Party will find it quite easy in the age of Howard. Although nothing else has changed, he is a new phenomenon. Some people would say that is inappropriate—I hope that it is not felt to be so—because Mr. Howard's emergence on the scene, ignorant of prisons, with a totally new policy, makes what was right a year ago not right tonight. At

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any rate we may be told that by one or two speakers. So there we are: that is the situation. I shall not spend time over the merits of this proposal as they have been developed many times in this Chamber, not least by some of those who do not seem quite so strongly of the faith in these latter days. At any rate those merits have been strongly argued in this Chamber.
Put in the simplest possible way, the argument is that, when people are convicted of murder, it may mean one thing or it may mean another and the same sentence is quite inappropriate when applied to crimes of totally different character. The noble Lord, Lord Ashley, in a moving speech, pointed in particular to women who had been brutally maltreated for years by their husbands, and also to those who kill out of love and mercy. I, like other noble Lords —obviously some of those who are in the legal profession but some others not necessarily in the legal profession—have been in touch with convicted murderers for many years. I would say that I am now in touch with six such convicted murderers. Of those, three of the murders had been unpremeditated domestic murders that were not contemplated five minutes beforehand.
One case is that of a woman who was not present when her husband's mistress was murdered by two men and a woman. However, the extraordinary thing is that the woman I am discussing is in prison now while the three people who committed the murder are free. That, if you like, is just one of the unpleasant anomalies of this situation. However, there it is. The arguments for this measure have convinced this Chamber in the past. I shall not necessarily press this amendment tonight but I shall certainly press it at one stage or another, presumably the next one. I beg to move.
Lord Morton of Shuna: I hope that the noble Earl will not press this amendment to a Division tonight. The position that I have adopted has, I think, been clear for some years. The noble Lord, Lord Windlesham, and I —I believe it was in 1986—started this fight and we have continued, I hope consistently, since then. Although I have changed my position in this Chamber, I have not changed my conviction on this issue.
I consider it to be totally wrong that the sentence of a person convicted of a crime should be decided by a politician rather than by the judiciary. That has been behind the view which the noble Lord, Lord Windlesham, and I put forward in 1986 and have put forward consistently since then. Both of us had the honour of serving on your Lordships' Select Committee on Murder and Life Imprisonment and our views in that committee were noted.
I had the pleasure of speaking at one point in support of the measure that the noble Lord, Lord Ashley, put forward last year. Therefore I believe I can at least claim to have been consistent on this point. This Chamber has been consistent over the past six or seven years in saying that life imprisonment for murder is the wrong sentence and that the judiciary should have the opportunity to decide the appropriate sentence whether it is for the terrorist or for the person who kills in what is known as euthanasia.
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However, this is not the occasion on which we should vote. It is late at night. In the debates which we have had previously lawyers far more eminent than I, including those sitting on the Bench on which the noble Lord, Lord Windlesham, is now sitting, played a prominent part in the discussion. They are not present. Any vote that took place at a quarter to ten would not involve anything like the numbers who would participate in a vote which took place at seven o'clock, for example.
If we are to be serious about this subject, and I insist that we should be, there should be a serious debate with proper warning that the subject is to arise. There should be a debate in which everybody has the opportunity to express his or her views and arrive at a decision. I am confident that noble Lords will not have changed their minds and will come to the same decision. It is important that it should be a solid decision, with votes in three figures, as it has been on previous occasions.
For those very practical reasons I implore the noble Earl not to press his amendment at this stage and certainly not to irritate the Minister, who, I am convinced, on all occasions has acted totally within the merits of his conscience.
Lord Windlesham: It is a pleasure to follow the noble and learned Lord, Lord Morton of Shuna. As he said, we have together for many years argued the case which the noble Earl, Lord Longford, has put forward again so attractively tonight. My mind went back to the debates when the present Lord Chancellor replied for the Government for the first time from the Woolsack on the criminal justice legislation of 1987 and 1988. At that time he agreed to explore the possibilities of setting up a Select Committee of your Lordships' House. That was taken further with Mr. Hurd, who was Home Secretary at the time, and resulted in the report of the Select Committee on Murder and Life Imprisonment, of which the noble and learned Lord, Lord Ackner, and one or two others in the Chamber this evening were members.
I shall not rehearse the history since then. The noble Earl, Lord Longford, has done so exhaustively and fairly. I would add one further round of ammunition —namely, the report of the Select Committee of this House on Medical Ethics, which was debated earlier this; month and which reached similar conclusions. All these reviews and inquiries, and the overwhelming body of informed opinion over almost a decade, have come to the same conclusion—namely, that the mandatory penalty for murder should be replaced by a maximum penalty of life imprisonment to be imposed at the discretion of the court where it is believed to be appropriate.
As the noble Earl pointed out, I have been a member of two separate committees on this subject. I have spoken and written on the subject over a considerable period of time. I had the privilege of being a member of the Committee on the Penalty for Homicide chaired by the noble and learned Lord, Lord Lane, the former Lord Chief Justice, last year. I should like to record in public the courage of the noble and learned Lord, Lord Lane, in taking on the chairmanship of that committee so soon after his retirement as Lord Chief Justice. It is an indication of how strongly he felt on the issue. From

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first-hand experience I can assure the Committee that he was an extremely active chairman and his mark can be seen in the report. I do not think it necessary to go through the reasons—they are summarised on the opening page—as to why the mandatory life sentence for murder is founded on an assumption,
"that murder is a crime of such unique heinousness that the offender forfeits for the rest of his existence his right to be set free".
In words that could only have been written by the noble and learned Lord, Lord Lane, the following is stated:
"That assumption is a fallacy. It arises from the divergence between the legal definition of murder and that which the lay public believes to be murder".
The remainder of the argument flows from that.
I should like to assure the noble Earl, Lord Longford, that my conviction that a change is necessary is undiminished and so is my faith that it will come. But it will not result from this Bill. There is no possibility of the House of Commons or the Home Secretary accepting such a change at present. It is not an opportune time. But that is not to say that there is any lessening in the strength of the argument for reform.
9.45 p.m.
The Earl of Longford: Perhaps I may ask the noble Lord why debate was appropriate in 1991 and 1993? The situation in the House of Commons was the same. The Home Secretary was not quite so violent in his attitude to criminals. But the Government were against the issue then. So why has the noble Lord now switched?
Lord Windlesham: Most of us are conscious that there has been a marked change in public opinion recently on criminal justice and matters concerning law and order. However, the noble Earl need not despair. As he knows—and he has had longer experience than almost all of us in this House—opinion is volatile. Eighteen months or so ago, the noble Lord, Lord Nathan, led a delegation, including the noble and learned Lord, Lord Ackner, and myself, to see the Home Secretary (now the Chancellor of the Exchequer). He was ready to consider the pros and cons of the matter with an open mind.
I do not wish to get into an argument with the noble Earl. I admire him so much, and I believe that the House does too. We admire his idealism and it has been shown once again in the speech he made tonight. We admire his dedication to the cause of penal reform, and his experience. I do not refer simply to his compassion and idealism, but his sheer practical experience over a long period. He has provided an inspiration for many people. It is right that the voice of conscience should be heard in our debate tonight. However, like the noble Lord, Lord Morton of Shuna, I am sure that neither tonight nor any later stage of this Bill is the time to press the issue to a Division.
Lord Ashley of Stoke: Perhaps I may make a brief intervention. I readily recall the distinguished speeches made by the noble Lord, Lord Windlesham, and the noble and learned Lords, Lord Ackner and Lord Morton, when I brought a Bill forward in February last year. My
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noble friend Lord Longford, has done a great service by raising the issue again tonight. I hope that it has suitably embarrassed the noble Earl, Lord Ferrers, who has an uncomfortable line to pursue if he sticks to his brief, which is a pathetic document issued by the Home Office. I hope that the noble Earl will quickly rewrite his notes in the light of the distinguished speeches already made. It beats me how so good a Minister can peddle the line which he defends—the mandatory life sentence— on the grounds put forward by the odd individual who says that murder is a unique crime which requires a unique deterrent. MLS is not a unique deterrent.
I began joining noble Lords who have been pursuing the issue for so long because of my concern, as the noble Earl, Lord Longford, said with battered women who react and then kill after years of brutality. The Devlin dictum was fine in the 1940s: people had to have a sudden and temporary loss of self-control, because we did not understand the effects of violence. However, today we do and we have shown it by our treatment of veterans of the Gulf War and the hostages in the Middle East. The Americans have done it with the treatment of their troops who were in Vietnam.
However, it goes wider than battered women. I have looked at the issue time and time again since I began to support noble Lords who have been campaigning longer than I. I cannot see a single case for arguing in defence of the mandatory life sentence. I shall listen with great interest to what the noble Earl, Lord Ferrers, says and I hope that his argument will be better and possibly more refined, though it will not be more convincing than in the past. I hope that he will accept the amendment.
As a final word, I cannot speak for the noble Earl, Lord Longford, but I believe that he is far too good a tactician to push the amendment to a vote tonight. If it were a small vote, it would not help the cause. However, the noble Earl did right to raise the issue, giving us an opportunity to show that the House of Lords is practically unanimous in condemning the Government's defence of an outdated, anachronistic and unfair provision.
The Marquess of Hertford: Without rehearsing the arguments in favour of the amendment which I believe are obvious to everyone, I merely wish to put on record my strong support for the amendment moved by the noble Earl. I suppose that convention prevents me calling him my noble friend. This seems a long overdue change in the law. It has been referred to in the debate on euthanasia and at many other times. The words "common sense" have been uttered once or twice earlier this evening, notably by the Minister, and I think that common sense will prevail sooner or later, if not tonight.
Lord Simon of Glaisdale: I hope that the matter can now be brought to a conclusion. I have yet to find anyone outside the Government who thinks that the provision of a mandatory life sentence for murder is sensible. The argument put forward is that murder is a uniquely heinous offence and therefore deserves a uniquely exemplary sentence. A number of things are wrong with that. Murder is not a uniquely heinous

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offence; some murders, it is true, are horrible, but so are many other offences. Some murderers should be the objects of pity rather than horror and revulsion.
Nor is it true that the penalty of imprisonment for life is the most exemplary of all penalties. We still have the death penalty on the statute book for some offences. Nor is it true that a wrong message would go out to the public unless a sentence of imprisonment for life were passed. The public are not so stupid that they do not know that the profession is contradicted by the performance. They look at the performance. They see that prisoners are let out after an average of nine years and sometimes after a very much shorter period, and that is taken to be the reality. The mere fact that a sentence of life imprisonment has been passed does not send out the right message, but precisely the wrong one. It brings the pronouncement of the court and the law into ridicule. As I said, the general public compare the performance with the proclamation.
On this matter, everybody is out of step: your Lordships, when the matter was originally debated, and members of your Lordships' Select Committee on this very subject were almost all out of step. The Bill of the noble Lord, Lord Ashley, was given a unanimous Second Reading in this Chamber and was passed—all your Lordships were out of step. Then there came the Lane Committee—every member of that committee was out of step. And perhaps most out of step was the former Lord Chief Justice who headed the committee.
But that does not end the matter. There was then the committee on medical ethics. It was a distinguished committee, greatly admired in its deliberations. But unfortunately all the members of that committee were also out of step. It is only the Home Office which is apparently in step.
The noble Lord, Lord Windlesham, was a little pessimistic, I thought, about the prospect. The noble Earl, Lord Ferrers, is not going to go on talking nonsense indefinitely because that is not in his nature. I hope tonight that he will mark the change and accept the noble Earl's amendment.
Lord Carlisle of Bucklow: Perhaps I might intervene very briefly. I merely wish to say this. I have not had the good fortune to speak in any of the debates that have taken place since the report in 1989 of the noble Lord, Lord Nathan, which I believe has been debated twice in this House. I say to the noble Earl, Lord Longford, that I have total sympathy with the argument that he puts forward and the argument that was put forward in that report.
I personally believe that, whereas life imprisonment should be the maximum penalty for murder—and probably the likely penalty for murder—there are cases where it is inappropriate that a life sentence should be passed. I would welcome the opportunity for the courts to have a discretion in this matter. However, I am bound to say frankly to the noble Earl, Lord Longford, that I do not feel able to support him in the Lobbies tonight were he to choose to push this matter to a vote. My reason is this. I do not believe that a matter of such importance —it is of importance not only to Parliament but to the public as a whole—namely, the issue of what is the right
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sentence for murder, should be decided in a vote some time the other side of 10 o'clock at night in the Lords. That would send back a message to the other House that this decision was arrived at by perhaps a derisory majority in a very small vote. If your Lordships—and particularly the noble Earl, Lord Longford, much of whose concern over recent years has been to see this reform reach the statute book—really wish that to be achieved, it is much more likely to be achieved if the vote from this House was a substantial vote at an hour when the House was full. The Commons would then note the view of the Lords, rather than the suggestion that the measure was passed by a very small majority at a very late hour this evening. That is why, just like the noble and learned Lord, Lord Morton of Shuna, and my noble friend Lord Windlesham, although respecting the intentions behind the amendment, I beg the noble Earl not to push it to a vote at this stage.
10 p.m.
Lord Ackner: I should like to make but a short contribution. My first point is that, as an advanced democracy, we ought to feel a high degree of shame that, when it comes to what is alleged to be the most heinous of crimes, the length of time that a person spends in imprisonment is determined by a politician and in private. That is quite contrary to the way in which justice should be administered.
My second point in regard to the pessimism is quite short. Every government is anxious not to be thought to be going soft on crime. That was appreciated by the Select Committee on Murder and Life Imprisonment, on which I had the privilege to serve. Paragraph 178 of its report stated:
"After the introduction of a discretionary sentence for murder, the Committee anticipate that the average length of time served under a life sentence would be considerably longer than it is now".
That, of course, was because it would be reserved for the very serious offences. The committee added:
'The Committee expect that their proposals will lead to very lengthy penal sanctions being set in the most grave cases. In some cases, this may result in imprisonment for the rest of the prisoner's life".
The reason for the pessimism is that this Government's anxiety not to be seen or thought to be soft on crime has reached near pathological dimensions. No doubt we shall continue to hear the usual parrot cry of "the uniquely heinous offence". I read the debate on the report of the Select Committee on Medical Ethics. The justification for the life sentence was that a crime which involves an intent to kill is unique. But murder does not consist merely of an intent to kill. Murder can arise, and most frequently does arise, not out of an intent to kill but an intent to do grievous bodily harm. So even that, the last of the explanations, does not wash.
But, for the reasons that have been given by my noble and learned friends and in view of the various comments with regard to what would be thought to be the case if we were to divide on this issue tonight, I am sure that the noble Earl, Lord Longford, will be persuaded not to pursue the matter.
Baroness Mallalieu: The humanity and tenacity of the noble Earl, Lord Longford, in his work on behalf of

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life sentence prisoners are legendary and admired by us all. The arguments which he put forward and which have been echoed by many noble Lords tonight, many of whom have spent much time and trouble already on this issue, are ones which have already carried the day in this Chamber on a number of occasions.
It must surely be one of the most striking absurdities of our criminal justice system that a judge who presides over a trial for the most serious of all criminal offences, who hears all the evidence and who sees the defendant, is not allowed to sentence at the end of the trial other than as Parliament, which has done none of those things, dictates. For me, the most depressing part of tonight's debate was the reference by the noble Lord, Lord Windlesham, to an earlier visit with a delegation to a previous Home Secretary, when the door appeared to be open. It now appears that the door to this sensible and important reform has been firmly closed by the present holder of that office. I can only say, in supporting my noble friend, that I hope that the darkest hour is just before the dawn.
Lord Wigoder: For the reasons already given in this not entirely evenly balanced debate, I simply place on record that my noble friends on these Benches have always supported the amendment in the past and do so again this evening.
Earl Ferrers: The noble Lord, Lord Wigoder, invariably incorporates realism into a debate, and he did so when he said that so far this has not been an entirely even-handed debate. The noble Earl, Lord Longford, returns to a subject with which we know he is impassioned. He is always so courteous in his remarks. He spoke graciously of me when he said that I spoke eloquently on any subject on which I am asked to reply but that I will say whatever the line happens to be. Accepting a compliment from the noble Earl is rather like shaking hands with a fish: it slides all over the place and one does not know whether one has hold of the head or the tail. However, I accept the compliment in the spirit in which he meant it.
The noble Earl made various remarks and said that he would not go into the detail of the amendment because he had gone into it so many times before. That placed me in somewhat of a predicament. I thought that as the noble Earl did not want to go into the amendment, perhaps I should not bother to reply. However, other Members of the Committee decided to go into it in detail. The noble and learned Lord, Lord Morton of Shuna, whose views are always so eloquently expressed, advised the noble Earl, Lord Longford, not to divide the Committee this evening. I do not know whether or not that will precipitate him into dividing the Chamber, but I am sure that he will take the corporate advice of my noble friends Lord Windlesham and Lord Carlisle.
This is a debate on a matter on which people hold strong views and hold them passionately. My noble friend Lord Windlesham says that the overwhelming body of informed opinion agrees that the mandatory death sentence should go. Perhaps that is the view of the overwhelming body of informed opinion—I do not
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know where that information comes from—but I do not believe that it is the overwhelming view of the body of opinion. It depends whether it is important to follow the advice of informed opinion or simply opinion. I certainly feel that the majority of people—and I shall come to this—would not favour the abolition of the mandatory death sentence.
Lord Wigoder: Perhaps the noble Earl will forgive me interrupting but he made a slip of the tongue. We are discussing a mandatory life sentence not a death sentence.
Earl Ferrers: I am likely to make slips of the tongue all over the place in this kind of debate. But I am grateful to the noble Lord, Lord Wigoder, for drawing me up on that slip of the tongue.
My noble friend Lord Hertford said that it is common sense that the mandatory life sentence should go. It is always easy to disparage someone else's view by saying that one's own view happens to be common sense. That is not a view which would accord with everyone. The noble Lord, Lord Ashley of Stoke, took a sincere view over the matter. He is always very understanding about it. He said that this was an embarrassing time for me. I am deeply grateful to him for his courtesy and sympathy. I do not know why he should feel so effusive about the matter. He said that I hold a rotten brief and he hoped that I would rewrite it. That is an extraordinary thing to say before I have even opened my mouth. He does not know what is in my brief, unless he happened to crib it during the dinner break, and I do not suppose he did that because he is not likely to do so.
Along comes the noble and learned Lord, Lord Simon of Glaisdale, who says that he has yet to meet anyone outside government who approves of the mandatory life sentence—the noble Lord, Lord Wigoder, will be glad to see that I got it right this time. He should go into the outside world and he would find that there are plenty of people who feel that the mandatory life sentence is correct. The noble and learned Lord says that the Government say everyone else is out of step. I sometimes wonder whether the intellectuals are out of step with everyone. He said that one must not go on talking nonsense indefinitely. When the noble and learned Lord rose to speak, I had not yet spoken, so I do not see how he could have thought that I was speaking nonsense indefinitely.
Lord Simon of Glaisdale: I am afraid that the noble Earl has now spoken exactly as I anticipated.
Earl Ferrers: I can tell the noble and learned Lord that he has heard nothing yet. Let me tell him that we continue to believe that it is quite right to retain the mandatory life sentence to mark not, he will be glad to know, that it is a uniquely heinous offence, as the noble and learned Lord, Lord Ackner, thought I was going to say, but to mark the unique nature of the offence of murder and to provide in the case of murderers the particular safeguard that is afforded by the mandatory life sentence.
It is argued that there is no case for treating murder differently from any other very serious offence against the person. We do not accept that view. There is some

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force to the argument that some offences do not result in the death of a victim but are nevertheless so serious that they deserve the most condign of punishments. But it is difficult to deny that murder is unique in that it involves the deprivation of another person's life with intent to cause at least grievous bodily harm. The taking of someone's life under such circumstances inevitably sets murder apart from any other offence. We should not therefore be surprised that it is an offence which has particular resonance among the general public and implications for public confidence in the criminal justice system as a whole. I do not think we should underestimate that.
It is still less than 30 years since the death penalty for murder was abolished and was replaced by the mandatory life sentence. When your Lordships discussed this issue in 1991 my noble friend Lord Waddington graphically paraphrased the message that Parliament sent to the people of this country when the change was made. What my noble friend Lord Waddington virtually said was this: "Don't worry. Parliament was saying that the unique nature of the crime of murder will still be marked by a special punishment. The murderer, because he has taken another life, will still surrender his own in a very important respect. He may be released on licence, but the sentence will last for life. He will not be released without the consent of the Home Secretary, who will be answerable to Parliament if things go wrong. And because the sentence will last for life, he will be liable to re-call after his release if he does not behave and if it is thought that, once again, he has become a danger to the public".
That was the message which Parliament gave to the country when the death penalty was abolished. There is no evidence that public concern about murder has abated since April 1991 or since 1965. Indeed, in the view of many people, the public concern has become worse. It seems to me that it would be difficult to explain to the public why we were responding to that concern by abolishing the very safeguard which was put in place when the death penalty for murder was abolished.
The noble Earl, Lord Longford, reminded us again tonight that your Lordships hold very strong views on this subject. We shall continue to keep this situation under review and to listen carefully to what your Lordships say. But for the reasons I have explained, we are not yet persuaded that it would be right or that it would be necessary to abolish the mandatory life sentence.
Lord Ackner: Before the noble Earl sits down, does he agree that the public take the view that the present sentence of life imprisonment has become devalued because in the public perception it works out, rightly or wrongly, to an average of about eight or nine years? That is the consequence of spreading the life sentence over murders as moderate as mercy killings to those that obviously require incarceration for the rest of the life. Does the noble Earl agree that if the life sentence were limited to the very serious murders the public sense that the sentence had been devalued would no longer continue?
Earl Ferrers: I agree that the public's reaction is that people are let out from prison, after having received a sentence of life imprisonment, far too early for the comfort of the public.
10.15 p.m.
Lord Monkswell: Perhaps I may question the noble Earl a little deeper. Unfortunately, we are in the realms of sound bite and sloganistic politics. The noble Earl says that if you ask the man in the street whether someone who has committed murder should be sentenced to life imprisonment, the answer will be "yes" in the vast majority of cases. But we have a problem in that, on the one hand, there is acceptance that if a person commits a heinous crime like murder that person should receive life imprisonment. On the other hand, there is the realisation that life imprisonment does not actually mean that. The other factor is how the general public perceives different crimes which we currently label as murder. There may be. a legal definition which says that when someone takes the life of another that is murder, but in the common-sense view of the man in the street that is not necessarily the way it will be seen.
We have the problem of slogans and sound bites which appear to make sense, but the underlying reality is that people can see that it does not make sense. How do the Government see a way out of this impasse if it is not by accepting an amendment such as that moved by the noble Earl?
Earl Ferrers: I am not quite certain what sound bites are. I merely say to the noble Lord, Lord Monkswell, that a very great many people and public opinion generally, feel that there is a great deal to be said for capital punishment. If that does not take place then there has to be a life sentence in lieu. If Parliament decides to remove the mandatory life sentence as well and to devalue to something else, the general public will not understand.
The Earl of Longford: I shall set the mind of the Committee at rest. I do not propose to divide the Committee tonight. It is not that I am weakening in my conviction, because I propose to bring back this amendment at the next stage. It is not for me to say whether it will come on at the next stage at a time when many people are available. The authorities may choose to play tricks and the amendment may be dealt with at midnight. I cannot decide that. Infallibly, I shall move this amendment at the next stage. The noble Earl's reply was not one of his happiest, but as his other replies are often so happy, what I have said is not really dispraise. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Longford The Earl of Longford had given notice of his intention to move Amendment No. 36:

After Clause 44, insert the following new clause: ("Rights of life sentence prisoners to review of sentence

.—(1) All prisoners sentenced to imprisonment for life, other than juveniles and under-14 year olds, shall have the right to have their sentence reviewed by a court when they have served 15 years in prison, unless they have already been released on licence.

(2) The rights conferred on adult life sentence prisoners by subsection (1) above shall apply to—

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(a) all juveniles convicted of murder, after 10 years; and

(b) all under-14 year olds when they reach the age of 18.").

The noble Earl said: In view of the lateness of the
hour I shall not move this amendment tonight. I shall move it at the next stage.
[Amendment No. 36 not moved.]
Lord Ackner Lord Ackner moved Amendment No. 37:
After Clause 44, insert the following new clause:
( "Offence of excessive use of force in self-defence
. Where a person kills in a situation in which it is reasonable for some force to be used in self-defence or in the prevention of crime but the defendant used excessive force, he shall be guilty of manslaughter if at the time of the act he honestly believed that the force he used was reasonable in the circumstances.").
The noble and learned Lord said: This amendment has at least two striking features. The first is that my noble friend Lord Campbell of Alloway has unequivoc-ally signified his support by putting his name to it immediately under mine. He is not present for personal reasons which he has explained to me. He very much regrets his absence.
The other striking feature about the amendment is that, unlike the last amendment, it should be wholly uncontroversial. It provides that where a person kills as a result of using excessive self-defence, it should not be murder, as it is now, but manslaughter. By way of support I have the recommendation of the Criminal Law Revision Committee that the new defence, as I have spelt it out in my amendment, should be provided. In support I also have the report of your Lordships' Select Committee on Murder and Life Imprisonment whose Members were unanimously of that view. I quote:
"if murder was to be reserved for those homicides which are most deserving of stigma, this situation does not seem to be one of them".
It was pointed out in paragraph 88—again, I quote:
'The Lord Chief Justice told the committee that he had always thought it wrong that a person who goes too far in self-defence should be convicted of murder".
He should be convicted of manslaughter which provides the judge with the discretion, if he is so minded, to impose imprisonment up to the extent of life imprisonment although one would not have anticipated that in the bona fide use of self-defence, albeit excessive, so serious a sentence would be imposed.
My support for this amendment is that to which I have just referred. It justifies me in submitting that the amendment should be wholly non-controversial. I beg to move.
Lord Irvine of Lairg: The judgment of a court as to whether excessive force is used is necessarily retrospective. The judgment by a defendant of what force is reasonable in self-defence is taken in the agony of the moment. It is not possible in such cases to make too nice a measurement of the force that is appropriately used in resisting an attack. In our view, the amendment gets the balance right. We think that a jury would be well able to come to a view as to whether the defendant had the honest belief that is set out in the amendment, and we support it.
Lord Wigoder: I do not know whether my noble friend Lord Hutchinson of Lullington, who cannot be
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here this evening, will forgive me for supporting the noble and learned Lord, Lord Ackner, no less than twice in one evening, but I am happy to do so on this occasion.
It seems to me that the present test, which involves importing a reasonable man into the situation, is not appropriate, whereas it is entirely appropriate that the test should be what the defendant honestly believed was reasonable at the time. For that reason, we support the amendment.
Lord Rodger of Earlsferry: I accept that the point raised by the noble and learned Lord, Lord Ackner, is a difficult one on which various views can be held. I accept also that the substance of his amendment has been the subject of a recommendation by the two bodies to which he referred.
However, the Government are not persuaded that in this matter, which I recognise is very delicate, the balance should be disturbed. I accept that, for the reasons to which the noble Lord, Lord Irvine, referred, the present test can occasionally seem very demanding because a jury looks at these matters coolly whereas ex hypothesi the accused, the defendant, will have been acting in very different circumstances. However, as the Committee knows, the attention of the jury is always directed to that fact. Members of a jury are always told that they must not use too fine a jeweller's scales when weighing up such matters.
The effect of the amendment would be to say that the defendant's degree of guilt would depend upon his honestly held belief. That means that the degree of guilt would depend on the particular circumstances and set of beliefs which any particular defendant happened to have. We are not persuaded that it is appropriate to differentiate the degree of guilt simply by reference to something as entirely subjective as a set of beliefs.
We are anxious, in particular, that no signal should be sent of a reduction in the standard of the test required by law when we must consider the position of those who use weapons in the course of their public duties. Nor would we wish people to think that they could use force with even this reduced degree of blameworthiness; for example, in defence of property. It might give rise to undesirable behaviour on the part of people acting in some way as vigilantes.
I realise that different views can be entertained on this matter. I accept that these recommendations have been made but the matter has been considered over the years by courts in England and in Scotland and overseas. At this time we are not persuaded that a change should be made.
Lord Ackner: Whenever I hear the phrase, "The Government are anxious that a signal does not go out", my criticism that the Government are suffering from a pathological anxiety not to be thought to be going soft on crime is reinforced. The reply of the noble and learned Lord the Lord Advocate does not in fact, but almost seems to, suggest that my amendment will result in the acquittal of a person who uses excessive self defence honestly believing that the force was reasonable in the circumstances. He is to be found guilty of

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manslaughter, just like a person who kills under provocation is not guilty of murder but guilty of manslaughter.
It is obviously too late to divide the Committee. However, so unsatisfactory a reply will no doubt act as a stimulus to do precisely that on a later occasion. Accordingly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner moved Amendment No. 38:
After Clause 44, insert the following new clause:
( "Suspended sentences
. In section 5 of the Criminal Justice Act 1991, paragraph (b) of the subsection (2) substituted for subsection (2) of section 22 of the Powers of the Criminal Courts Act 1973 (Suspended sentences) shall be omitted.").
The noble and learned Lord said: With this amendment I invite the noble Lord, Lord Wigoder, to complete the hat trick. It is one which I am sure will appeal to him and to my old friend the noble Lord, Lord Hutchinson of Lullington. This again should be non-controversial. I say that because the Home Secretary, when addressing the Conservatives of Boothby on 6th November, said:
"I believe punishment deters crime. Fear of punishment will always be an important weapon in the fight against crime".
In the past, suspended sentences in particular, when combined with significant fines, have provided a very effective threat hanging over defendants' heads for the year or two that they applied. But Section 5(2) (b) of the ill-fated Criminal Justice Act 1991 seriously fetters the judges' current discretion. It can be exercised only where the circumstances are, in the words of the Act, "exceptional". As the law now stands, "exceptional circumstances" cannot cover character, youth, early pleas of guilt, provocation, the existence of dependent relatives and the fact that the offence caused the loss of a career, the loss of a home, the loss of pension or even such severe depression as to give rise to suicide attempts.
I submit that that section is but the residue of the misguided philosophy reflected in the 1991 Act that judges can do justice if they do it sitting in blinkers. In the same way as significant amendments were made in the Criminal Justice Act 1993 to the Criminal Justice Act 1991, I hope that this subsection will be repealed, with the result that fewer people will go to prison and with the result that the fear of punishment will continue to act in the fight against crime. I beg to move.
10.30 p.m.
Baroness Mallalieu: We support the amendment. Anything which allows a member of the judiciary, when sentencing, to have before him a full range of options is to be encouraged, particularly in circumstances where the judge would wish to avoid the use of an immediate custodial sentence but, at the present time, finds himself unable to do so. For those reasons, we support the amendment.
Lord Wigoder: Whether I am bowling slow leg breaks or playing centre forward, I am not entirely sure. But 1 am very happy to attempt to complete the hat trick to which the noble and learned Lord, Lord Ackner, referred.
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I support the amendment without any hesitation. Many of us who have sat for long periods trying criminal cases always welcomed the fact that we had the widest possible range of sentences at our disposal. The power of ordering a suspended sentence on some occasions proved to be highly effective and I should be very sad indeed if that power were not to be restored.
Lord Simon of Glaisdale: This evening the Government seem to be in no particular mood to listen to anything that is said in this Chamber. Nevertheless, for the little that it is worth, I too support the amendment.
Lord Rodger of Earlsferry: The Government always listen to what is said in this Chamber. They do not always respond in quite the way that Members of the Committee would wish. I have listened to what has been said. I was interested in particular in the support of the noble Baroness, Lady Mallalieu, for the amendment because, when the provision was introduced in 1991, the noble Lord, Lord Richard, wished to do away with suspended sentences. It may be that circumstances have changed.
As the noble and learned Lord, Lord Ackner, knows, the philosophy behind the 1991 Act was to stress the desirability of using options like community service and probation and so on when they were appropriate. Imprisonment was to be used only when that was truly the sentence which was required. In that context, it seemed strange that, having determined that prison was the appropriate sentence, it was generally the case that judges sometimes suspended that sentence. Therefore, that person would receive no effective punishment while somebody convicted of a lesser offence would be undertaking community service work.
Of course, I come from a jurisdiction which does not have suspended sentences but which has deferred sentences. I accept that the effect which such sentences may have is that described by Members of the Committee. I accept, and the Government accept, that there is a role for those suspended sentences. When the matter was introduced, I am aware that the noble and learned Lord made similar points to those which he made today.
If the present provision works badly and denies sentencers the opportunity to use an option which they believe is desirable, we are not saying that our minds are closed on this matter. As the noble and learned Lord will imagine, we have received many, many representations in relation to that legislation and in particular with regard to the previous convictions and unit fine provisions. We acted on those, but this is not a matter on which the Government have received a large number of representations from the judiciary. But, having said that, if the provision proves to be working badly, we would be prepared to consider the matter further as time goes by. However, at present we are not convinced that it is working badly. In those circumstances, I cannot agree to the amendment.
Lord Ackner: Before my noble and learned friend sits down, can he tell the Committee what sort of inquiries have been made since November 1993, when

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I raised the same point during the third day of the Debate on the Address (as reported in Hansard at col. 216 on 23rd November)?
Lord Rodger of Earlsferry: I cannot give the noble and learned Lord that information. However, I shall write to him on the matter and inform him of what has been done in the interim.
Lord Ackner: In anticipation of receiving that very important information, I shall withdraw the amendment with a view to considering whether adequate steps have in fact been taken.
Amendment, by leave, withdrawn.
Clause 44 agreed to.
Clause 45 [Restrictions on reports of proceedings in which children or young persons are concerned]:
Lord Mottistone Lord Mottistone moved Amendment No. 39:
Page 29, leave out lines 45 and 46.
The noble Lord said: Clause 45 introduces a revised Section 49 of the Children and Young Persons Act 1933, which relates to the legislation that prevents the publishing of the names, addresses, schools and photographs of children who are concerned with legislation in a youth court or similar. I am sure that Members of the Committee will agree with me when I say that it is most important that children who are involved in the courts in any respect should be kept anonymous as long as possible; and, indeed, forever, as far as is possible.
Subsection (5) (a) of the clause makes an exception to the general rules; namely, that a court may dispense with the special protection for children to which I referred if,

"it is appropriate to do so for the purpose of avoiding injustice to the child or young person".
So far, so good. However, subsection (8), which is the subsection that I seek to remove by way of my amendment, says:
'The court's power under subsection (5) above may be exercised by a single justice".
I believe that particular point to be inappropriate. I say that because it seems to me that the whole business of protecting a child from publicity is much too important to be left relaxed, for whatever reason, at the discretion of a "single justice". A single justice may be a new and inexperienced justice who does not have the experience of such a case. There is really no reason why there should not be a bench of three justices for the occasion such as would happen normally.
It seems to me that such a new relaxation—indeed, it did not occur in earlier legislation—would not help very much. It is not as though justices cannot be assembled for making such decisions quite simply. It has no real significance, and I am rather puzzled as to why the Government should have put subsection (8) into the Bill. I hope that my noble and learned friend the Minister will be able to tell me either that the Government will look again at the provision so as to determine why it is there or that they will agree to my amendment tonight. I beg to move.
Lord Rodger of Earlsferry: The reason for the provision being in the Bill is really to deal with particular situations of urgency. As my noble friend will be aware, subsection(5) (b) applies where the child,
"is unlawfully at large [and] it is necessary to dispense with those requirements for the purpose of apprehending him and bringing him before a court".
There may be a situation where a juvenile who has been charged with a very serious offence is on the run and there is a serious and immediate risk to public safety. In that kind of situation a decision to lift the ban on identification would require to be taken urgently. We would not want action to be delayed simply because it was impossible to assemble the necessary three justices. For that reason this particular provision is inserted. It is, as my noble friend will see, merely a permissive provision and of course it may well be the case that in the vast majority of situations where this power has to be exercised—we would not, of course, anticipate there would be many of them—it would be done by the full court. But it is to allow for the possibility of having to take such a decision in circumstances of urgency where otherwise there would be a potential danger to the public that we have thought it right to include this power in subsection (8).
Lord Mottistone: That puzzles me because the power in subsection (5) (b) can only be exercised by an application by the Director of Public Prosecutions, and that will cause considerable delay. I believe a little time will possibly be saved at the magistrates' Bench, but an awful lot of time will be wasted by going to Whitehall in the first instance. It seems to me that this is a wrong balance. It is not worth making the point now, but that is certainly not a satisfactory answer for me and I shall probably return to this matter at the next stage of the Bill. However, in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 39A:

After Clause 45, insert the following new clause:
("Evidence of children on commission

.—(1) Without prejudice to section 105 of the Magistrates' Courts Act 1980 (deposition of person dangerously ill) and sections 42 and 43 of the Children and Young Persons Act 1933 (deposition of child or young person where court appearance would involve serious danger to life or health), in those cases mentioned in section 32(2) of the Criminal Justice Act 1988 a court may appoint a commissioner to take the evidence of any child who has been lawfully required to give evidence as a witness if—

(a) in proceedings on indictment, at any time before the oath is administered to the jury,

(b) in summary trial, at any time before the first witness is sworn, or

(c) in exceptional circumstances in either trial or indictment or in summary proceedings, during the course of the trial,
application is made to the court in that regard; but to be so appointed a person must be, and for a period of five years have been, a member of the Bar, a solicitor or a justice of the peace.

(2) Proceedings before a commissioner appointed under subsection (1) above shall be recorded by video recorder.

(3)An accused shall not, except by leave of the commissioner, 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 Lord said: In moving Amendment No. 39A I wish to speak also to Amendment No. 39B. These two amendments are concerned with the conditions under which children may give evidence to the courts. I confess immediately that the wording of Amendment No. 39A is lifted almost without change from the Prisoners and Criminal Proceedings (Scotland) Act 1993—that is, from Scottish law. We have changed the phrase "solemn proceedings" to "proceedings on indictment" but the purpose is very much the same.
What we are concerned with here is what is called evidence of children on commission, which means in common language evidence which children may give to commissioners. We envisage a situation where before a trial—if possible quite a long time before a trial— children should be able to give evidence to a commissioner, who could indeed be the trial judge, and this should be done in the presence of prosecuting and defending counsel in such a way as to avoid the difficulties which still exist when children at a trial have to give evidence by video link.
There has to be, of course, protection for the defendant. We envisage that the defendant should be able to see and hear the evidence by video link that is given when evidence is given in commission, and should be able to communicate with his counsel by electronic means in order that the counsel may be able to cross-examine the child who is giving evidence in this way.
What are the benefits of what is proposed here as compared with the provision which is already available for children giving evidence? First, even with the video link, giving evidence in the course of a trial must be the possible source of considerable stress to children. It is still in the context of court proceedings. Court proceedings can be terrifying for adults, but for children, and particularly young children, they can be even more terrifying. The fact that we have recently, and properly, introduced protection for children from confronting the person against whom they are giving evidence is good, but it is not good enough for the purpose.
Secondly, the benefit of the amendment would be that the evidence could be given, if necessary, some considerable time before the trial. There may be a number of issues to be tied up, including court time, before a slot can be found for the case to be prosecuted. Provided a commissioner is known and counsel on both sides are known it should be possible for evidence of children on commission to be given very much earlier than would otherwise be the case. That has the benefit that the children are less likely to suffer from loss of memory due to the time which has elapsed since the occurrence took place and also that they are less likely to suffer from accumulated fear and the denial of treatment which would otherwise be possible but is held up pending the evidence that they have to give in court. That is the second important argument in favour of these procedures.
Thirdly, it is necessary that the need for cross-examination should be maintained. The new clause provides for that.
I appreciate that the Government have undertaken inquiries into this issue under Professor Graham Davies
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and are expecting a report on the way in which children should give evidence, which may be available by early 1995. Even if that happens on time, and I have no reason to suppose that it will not, it means that legislation to bring it into effect could not be implemented until, say, 1996, in other words, a couple of years from now. Even if that were the case and losing two years were not serious enough, Professor Davies's inquiry does not cover very young children, who are an important part of the case for the amendment. Under those circumstances it would be very desirable for this change, which follows the changes which have already taken place, to be incorporated in this Bill rather than left for future legislation.
Amendment No. 39B, to which I am also speaking, is concerned with the video recording of testimony from child witnesses. It would allow discretion to trial judges to allow examination-in-chief about matters covered on the video tape. The problem with video tapes is that, first, the interrogation in the taped interview may be flawed and, secondly, it may be necessary for the prosecution to have an opportunity to refresh the child's memory. The amendment would provide a gentle introduction for the child to court proceedings. It would protect the objectivity of the courts without adding unnecessary and undesirable terror for the child witness.
I hope that the Committee will feel that both of the amendments, which are supported by the NSPCC, are friendly to the child witness and yet respectful of the need for justice in cases where child witnesses are required. I beg to move.
10.45 p.m.
Baroness Faithfull: I rise to support the noble Lord, Lord McIntosh, on this amendment. The proposal set out in the amendment was a recommendation of the Pigot Report, which was published some years ago. It was a great disappointment, to all of us that it was not implemented. As the noble Lord said, it is put forward by the NSPCC, and it is also supported by the Association of Directors of Social Services and the: probation service.
Perhaps we may consider the various members of the; family. A child who has allegedly been abused has to be interviewed. Any child, but in particular a young child., will forget exactly what happens over a period of time In a number of cases it is sometimes a year, 18 months; or even two years before that child's case is heard in court. I have taken such children to court. By that time they forget and give the wrong evidence, and in the end the court has no resort but to discharge the case for lack of proper evidence.
Those of us who have been social workers and have dealt with such children are in great difficulties about treating the child. If one has a child who has suffered grievously, in particular in cases of child sexual abuse, that child should be having psychiatric treatment, counselling and help. Because of the evidence with which one may be interfering, one is hesitant about undertaking that and the child does not receive the help that he or she should because one has to wait for the

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court report. The mother of the child is in a perpetual state of anguish and worry when the matter hangs over her for such a long period.
If the perpetrator is the father or a relative of the family—as he often is—and the evidence is not acceptable, the child refuses to give evidence, or changes his or her evidence over time because the court has taken so long to be convened, very often the perpetrator is found not guilty or the case discharged. If a man is found guilty of sexually abusing a child, he receives a two-year prison sentence. While in prison he is helped—admittedly not as much as he should because the probation officers do not have the time. Nevertheless he has been to prison. He has been found to be guilty. However, if the case is discharged, very often the perpetrator leaves the family, goes elsewhere, and continues with his practices with children (if it is a sexual abuse case).
I do not believe that this country yet fully recognises what a serious problem it is. For everyone's sake—the child, the mother, and the perpetrator—it is essential that the men appear before the court and, if guilty, are found guilty, and not discharged because their cases have not been proven.
I speak with great feeling on the issue. I have started a charity to help these men to be rehabilitated and possibly, in some cases, as Lady Justice Butler-Sloss said, to return them to their families. From the point of view of every member of the family, it is important that the noble Lord's amendment should be seriously considered by Her Majesty's Government.
Lord Ackner: I strongly support the amendment. It seeks merely to provide an option in the range of options which will enable, as the Pigot Committee recommend-ed, the whole of the child's evidence, where appropriate, to be taken in advance of trial. The amendment precisely mirrors Scottish legislation which was implemented on 1st January of this year. The irony is that when at the Report stage we sought the same power, the same option to operate in England, my noble and learned friend the Lord Chancellor was brought in to resist it. Following his successful resistance, the option is provided only for Scotland. It is an odd situation.
This is not a disrespectful reference to the area north of the Border, for which I have great affection and respect. But it is the wrong way round, in my submission, to seek to see how the system works in Scotland where the opportunity of applying the system is so much smaller than south of the Border, where the population is much greater. It is wrong, from that limited experience—which may or may not be relevant to the English problems—two-and-a-half years hence to decide that the particular provision should be extended to England. The period of delay is not justified nor is it appropriate to make an attempt to evaluate the situation on what must inevitably be a small sample. Accordingly, I support the amendment.
Lord Mottistone: I too wish to support the amendment, having been much involved in the earlier
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legislation to which the noble and learned Lord has just referred. We were trying then to persuade the Government to go much further with the Pigot report.
The key point which the noble Lord, Lord McIntosh, mentioned is one that has always struck me. It is that, properly used, the process enables justice to be more accurately applied. If children's evidence is long delayed or in any way hampered through not taking advantage of the earlier opportunities that the amendment would give, the evidence will not be available to ensure that there is justice both for the accused and for the victim. It seems to me strange that the Government have been so slow and were resistant at the earlier stage. It is even stranger, as the noble and learned Lord, Lord Ackner, said, that it has already been applied in Scotland—I am sure with success. I hope that with his connection with affairs in Scotland, my noble and learned friend will find that, whatever he is told by the Home Office, he can tell us that this will be actively pursued and I hope that it will apply in the Bill.
Lord Ackner: Perhaps the Committee will forgive me for rising again. I omitted to address myself to the second amendment, Amendment No. 39B, as I suspect the noble Lord, Lord Mottistone did.
Even with adults, it is normal to put the witness at ease by introducing him or her with some questions, however common the ground may be on the issue. Even in commercial cases, where the present procedure is to exchange proofs of evidence, the advocate nevertheless introduces the witness in order that he should be put at ease. Persons who have not given evidence in court do not realise the stress and strain that it involves. It must be even more so with a child. It must surely be right to enable the prosecution to ask a limited number of questions, with the leave of the judge, of course, merely to put the child at ease. It may be said, "That can be left to the judge". However, with all due respect to my brethren, judges differ—some are more sensitive with children than others. In any event, the judge is not presenting the case for the prosecution. It is best that he is kept out of the arena.
Then in addition there may be some matter which has not been as fully covered as it should be and which should be in a moderate degree developed by the examination in chief. The present position is far too inflexible. I fully understand that the last thing one wants is to run the risk of the child who has already given evidence on video being examined in a way that causes inconsistencies which are then exploited, understandably, by the defence. But that is really a process of putting the child, so far as one can, at ease, and of course it is always within the discretion of the trial judge. I am grateful for having an opportunity of adding those words to the second amendment.
11 p.m.
Baroness Mallalieu: I support both these amendments. To deal with the second one first, my experience in courts dealing with cases of this sort is that this amendment will do no more than ratify the existing practice, which is that when the child first appears on the video screen the judge will have some conversation with

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him or her to set her at ease. The video is then shown in the presence of the child. At the end of the showing of the video—again, in my personal experience—the judge will tend to say to prosecuting counsel: "Is there anything further that you want to ask?". I have certainly never heard any prosecuting counsel denied an opportunity to ask questions at that stage, and indeed have heard many take up the opportunity either to clarify matters or to ask about things which have not been covered. So it may be that these provisions are strictly necessary in order to make what is happening in practice the position in law as well.
I support as strongly as I can what the noble Baroness, Lady Faithfull, said about the need for child evidence to be given as near as possible to the point of the events. My only reservation in relation to the wording of this clause is that it confines itself to the court appearances where serious danger to the life or health of the child is likely to be an issue. I hope that that relates particularly to mental health. In the course of representing many defendants in cases involving child sexual abuse, and in the course of examination of social services files, which are often disclosed to the defence, it is a common pattern to see over and over again records in those files of the growing anxiety of the child and the family about the pending court case, and anxiety on the part of the social workers, who are anxious to begin treatment which may involve discussing the offence with a child, but feel unable to do so. Whether or not the complaint is a valid one, and perhaps even particularly in cases where the complaint is a false one, it is clearly necessary for social workers to involve themselves in steps which will lead to the child receiving whatever help is necessary and available. If the trauma of giving evidence can be got out of the way and that treatment can be begun as early as possible, it is in everybody's interests and is not in any way to the detriment of the defendant. I strongly support both these clauses.
Lord Rodger of Earlsferry: The noble and learned Lord, Lord Ackner, pointed unerringly to some of the ironies of the situation. The fact that I should respond, coming from a jurisdiction which has this particular provision on this particular matter, perhaps completes the circle of ironies to which the noble and learned Lord referred.
The Government are not convinced that this is the time for this particular matter to be brought forward. Any objective observer would agree that over the past few years there have been a considerable number of changes in the machinery for taking the evidence of children. I think all would agree that these changes have introduced a degree of flexibility which is welcome. I am not sure that they have all yet fully bedded down and that the working methods have settled in. It is for that reason that, as the noble Lord, Lord McIntosh, mentioned, the Government have commissioned research on this matter. We await the results of that research. It is in the light of that research that we shall want to consider what further steps would be appropriate.
I accept that this provision may indeed be one of the steps which could be introduced. As the Committee will
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perhaps be aware, the position is that at present we have a slight mismatch between Scotland and England. There are some things which are available in England which are not available in Scotland and vice versa.
Although I accept, and noble Lords would not expect me to think otherwise, that this provision can be useful, it would be wrong to think of it as in any sense a panacea. The noble and learned Lord, Lord Ackner, put it correctly when he said that it was one possible option to be used. While it has the advantages of which the Committee has spoken, it also has at any rate potential disadvantages and difficulties. As yet, we have not had sufficient experience to be able to say whether they will prove to be real disadvantages or how real the problems will prove to be. It is a little difficult because it can lead to repeated cross-examinations of the child. For example, if it is found during the stage of the trial or shortly before that a particular matter which had not been explored with the child in the evidence when taken on commission, or a new issue, has arisen, one must under this procedure go back and have further evidence taken on commission. If that occurs during the trial it can lead to adjournments. That certainly is the position as the mechanism would work in Scotland. So there are at least potential problems with it. We are not quite sure yet how useful it will prove to be. It is certainly one of a number of options.
For the kind of reason that I explained, I do not feel able to say to the Committee that we can accept the amendment at this stage.
I turn to the other amendment. I was very interested in what the noble Baroness said about the way in which the provision works in practice in the courts. I would wish to reflect a little further on that matter. Everybody who has had anything to do with witnesses in a court of any kind, but in particular with children, would accept that it is a stressful experience for any witness. It is to be expected that some form of introductory questioning would take place, whether by the judge or whoever, to settle down the witness. We are all familiar with the fact that judges try to do that to some extent.
The provision for the matter to go straight into defence cross-examination was put in on the basis that one did not wish to prolong the proceedings unnecessarily and the evidence of the child was to be taken from the video link. But when that matter was debated in Parliament, it was the Government's clear view that examination could recur when matters had not been adequately dealt with in the video tape.
I understand that there have been cases in which judges have taken an opposite view, although I am not aware of any Court of Appeal decision which has ruled that such questioning is not permissible. As I said, we would expect judges to take some steps to settle down the witness and would expect the child to be relaxed in that way. Certainly, we should not want any situation to develop in which the pre-recorded video became simply the introduction to prolonged questioning by the prosecution.
Having heard what the noble Baroness said about the practice as it exists in the courts at present, I personally should like to take the matter away and think about it a little further.
Lord Ackner: Before the noble and learned Lord the Lord Advocate sits down, perhaps I may remind him that he referred to repeated cross-examination. If the evidence on commission is completed and thereafter the defence wishes to raise another matter, if the whole of that is reserved to the trial and requires the concurrence of the trial judge, there will be no repeated cross-examination. Any further cross-examination will be limited to one event, that event taking place subject to the concurrence of the trial judge at the trial. Does not that overcome the problem raised by the noble and learned Lord?
Lord Rodger of Earlsferry: My understanding is that it is possible—at least in Scotland—for a further application to be made before the trial. One of the advantages perceived of this procedure, and as has been spoken to, is that the earlier it can take place the greater the chance of relieving the stress of the child. But if it is done too early there is a risk that in the course of preparation the defence may alight upon something which they wish to clarify.
Rather than keeping it to the trial and then causing an adjournment at that stage, a further application could be made. If something further came out at the trial, there would be a risk—I cannot say that it would happen frequently—that at that stage further cross-examination would be necessary. That would place further stress on the child and in that situation would cause the further difficulty of a possible adjournment during the trial.
Lord Ackner: I do not see where the adjournment arises. The evidence on commission having been taken, counsel or solicitor for the defence says that there is a new feature which should be explored. The judge says, "Very well. I will grant that application" and the further cross-examination will then take place at the trial. There is no need for an adjournment. It is arranged that the cross-examination will be conducted when the trial takes place. If before trial further material emerges, the whole matter is taken at the trial in one go and not by a series of repeated returns to evidence on commission. That is the point that I seek to make.
If, unfortunately, the defence have not concluded all the cross-examination they wish, subject to the concurrence of the judge any further cross-examination is adjourned to the trial which will not involve the trial being adjourned. It will become part and parcel of the activity at the trial. That is my point.
Lord Rodger of Earlsferry: I certainly do not wish to prolong this debate unduly. My point is—and I am sure the noble and learned Lord will know from his own experience at trials—that on issues which were thought to be clear sometimes an odd quirk which had not seemed important at the time emerges during the trial. The whole point of the provision is that the child should not need to be near the court. Therefore, in that situation, it is envisaged—if such an application had to be made during a trial because of something which arose at that stage—there would potentially be room for an adjournment. That is the situation I had in mind.
Baroness Faithfull: Before the noble and learned Lord sits down, perhaps I can say that no mention has
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been made of how long it is before a trial that a young child has to give evidence. Can he say what happens in Scotland? How close to the case being brought to court is the evidence on commission carried out? To question a young child of five, six, eight or 10, two years after the offence is almost impossible. The noble and learned Lord made no mention of the number of men who are discharged through lack of evidence because the child is unable to give proper evidence after so long a passage of time.
Lord Rodger of Earlsferry: One of the advantages of the existing system in England of video evidence is that that evidence is captured at the earliest possible stage. In Scotland, for this kind of commission evidence, the application is made only after the indictment has been served. It is therefore within a month or so of the actual trial. How long that takes place after the offence has been committed will depend on how quickly after the offence being committed the matter has come to the attention of the authorities. Certainly, in Scotland the trial has to be held in any event within 12 months of the commencement of proceedings; and if the man is in custody, within 110 days of him being taken into custody. So the application would be made within that timescale. But how long that will be after the offence has been committed depends on how soon after the offence has been committed the matter is drawn to the attention of the authorities.
11.15 p.m.
Lord McIntosh of Haringey: I confess that I do not find the Lord Advocate's arguments as convincing as they often are. The risk of a trial being adjourned for further evidence would in no way be increased by the provision in the new clause. On the contrary, it ought to be reduced, because having the evidence taken in commission earlier than the trial has two kinds of benefit. The first benefit is to the child in that there is less delay in terms of being withheld from effective psychological or psychiatric treatment, if that is necessary. The second benefit is to the court and to the course of justice in that the child's memory is likely to be fresher and the evidence given by the child better for the purpose of the trial. Therefore, there would surely be less chance of something new coming out at the trial if the original evidence was better. In any case, if a new matter has to be resolved, can it not be resolved by a further commission rather than by bringing the child to court after the original commission?
I do not find any of the noble and learned Lord's arguments convincing and I do not really see, at the end of this interesting debate, why children in England and Wales are to be denied the opportunities which have been made available in Scotland. I earn my living from doing research and evaluation, largely for government departments and agencies. I am the last person to say that we should be making policy decisions before the evidence is available, but I suggest that in this case, although Professor Graham Davies has been commissioned to do research, the amount of evidence that he can bring to bear, bearing in mind that he was not commissioned to look at the evidence from very young

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children, is limited and that the delay which would be involved if we lost this legislative opportunity, which would be of the order of two years, is very serious indeed.
Unless something has come out since the Scottish legislation came into force on 1st January this year which has led the Government to have serious doubts as to the effectiveness of the Scottish legislation—I have not heard any such suggestion—we would be very unwise to lose the opportunity of legislating in this Bill. It is after a quarter past eleven at night. Clearly, it is not a matter which it would be appropriate to press to a Division, but it is certainly a matter to which, on the advice of all those organisations which have been proposing the amendment, we may wish to return at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 39B not moved.]
On Question, Whether Clause 46 shall stand part of the Bill?
Lord Simon of Glaisdale: Perhaps I may ask the noble Earl the Deputy Leader of the House how long he proposes to continue with the Bill, to what stage in the Bill, and to what hour. I would supplement this by asking him whether he regards these parts of the Bill as trivialities merely to be rattled through—with speeches from all parts of the Chamber putting forward criticisms, the Minister in reply stonewalling and then the proposer of the amendment saying, "At this hour it is inappropriate to divide the Committee".
With great respect, I ask the noble Earl whether he at least regards your Lordships' House as a revising Chamber. Does he think that it can possibly operate as a revising Chamber conducted in this way, with a number of noble Lords listening to the debates in this House who are far outnumbered by the appropriately called "payroll vote" of unfortunate Ministers kept in their rooms upstairs in order to vote down any amendment which might be temerously put forward?
Earl Ferrers: The noble and learned Lord is very perceptive of the position of Ministers who, as he says, are kept in their rooms late at night. Whether they are likely to vote down any amendment which is pressed is another matter. As the noble and learned Lord has observed, not many amendments are pressed at this hour of night for the reasons which he has given. Therefore, what he calls the "payroll vote" could be described as sitting in their rooms to no effect. Nevertheless, they sit in their rooms.
I understand the noble and learned Lord's anxiety about this. This is not a unique position, but one in which the House frequently finds itself. I agree that it is not desirable, but the business of your Lordships' House and the way in which it conducts itself is a matter for your Lordships. If your Lordships tend to spend longer on some parts of a Bill than others might prefer, that obviously protracts the business of the House. There are various agreements as to how far we should go. When the noble and learned Lord asks how far we propose to
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go, the answer is to the end of Clause 54. He asks how long that will be. That depends on how long your Lordships intend speaking on these matters.
It is a pity when these matters arise late at night. Inevitably, that will be so. The business of the House is entirely for your Lordships and if some wish to speak longer on some amendments rather than others, the penalty has to be paid by others of your Lordships.
Lord Simon of Glaisdale: The noble Earl said that it is by no means an unusual situation, and that is absolutely true. But that hardly excuses what is happening tonight and what has happened on other occasions. This is a particularly important Bill. Would the noble Earl say at what hour he expects, even with the most reasonable expedition, that we are likely to conclude Clause 54?
Earl Ferrers: That is a completely impossible question for me to answer. If your Lordships would be good enough not to speak too long on any amendment the business will be over fairly quickly. However, if your Lordships desire to speak at length then we shall be here rather longer. The matter is entirely for your Lordships.
Lord Simon of Glaisdale: Does the noble Earl really believe that it is consonant with the duty of this House to refrain from speaking to amendments which call for debate?
Earl Ferrers: I was not suggesting that. The noble; and learned Lord has himself taken up several minutes by discussing how long we should discuss this matter. If we wish to conclude quickly we had better get on and not spend too long arguing about how long we shall spend doing it.
Lord Wigoder: May we spend another 30 seconds on this matter? Leaving aside the question of Ministers; on the payroll, would the noble Earl seriously contend that any onlooker of your Lordships' Committee and its proceedings—I know that we are not supposed to see; them from here—could possibly think that this Committee has been doing justice to these important amendments in the past half-an-hour or so?
Earl Ferrers: I do not believe that it is up to me or anyone else to consider what onlookers think. They see what they see. Your Lordships' business is to try to deal with matters in front of the Committee. It so happens; that very often although there may not be many noble Lords present in the Chamber, those who are interested are those who are present. It is quite right that those who are interested should ask questions of the Government: and quite correct that the Government should give those answers. Just because the Benches are not full of the payroll vote, as the noble Lord would say, or, as I might say, full of his Back-Benchers who were here earlier but have now mysteriously gone away, does not mean that the matter is not properly addressed.
Clause 46 agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment: No. 40:
After Clause 46, insert the following new clause:

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( "Admissibility of confession evidence
. For section 76 of the Police and Criminal Evidence Act 1984 (admissibility of confession evidence) there shall by substituted the following section.

Admissibility of confession evidence.

"76.—(1) Subject to the following subsections, in any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings.

(2) No confession alleged to have been made by an accused person shall be admissible against that person in any proceedings unless—

(a) the confession has been made or adopted in the presence of a solicitor; and

(b) the prosecution adduces independent evidence which is capable of implicating the accused person in the offence of which he is charged.

(3) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person which is not excluded by reason of subsection (2) above, it is represented to the court that the confession was or may have been obtained—

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done, or for any other reason which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof; or

(c) in circumstances which failed to conform to the requirements of paragraphs 5 (right not to be held incommunicado), 6 (right to legal advice) and 10 (cautions) of Code C of the Codes of Practice issued under section 66 above, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

(4) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person which is not excluded by reason of subsection (2) above, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (3) above.

(5) Where a confession is inadmissible at the trial of the accused either because it is excluded by reason of subsection (2) above or is ruled by the court to be
inadmissible under subsection (3) above, any evidence obtained as a result of the accused's confession shall not be admitted in evidence against him.

(6) In this section—

"oppression" includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture); and
"independent evidence" means evidence which in itself implicates the accused by showing or tending to show guilt of the offence charged." ").
The noble Lord said: I rather think that the noble and learned Lord, Lord Simon, would say that the arguments that he has put forward about the importance of this amendment at any rate can be measured in spades or, as he would probably say, afortiori compared with the last amendment, because the issue that is addressed in Amendment No. 40, which is the admissibility of confession evidence, is of the utmost importance. Indeed, in view of the exchanges of the last few minutes, I wondered whether the Minister would care to consider the possibility that we might resume the House now, not get as far as we had intended - it is now nearly 11.30 p.m. - and resume on this amendment tomorrow afternoon. I know that I agreed to a different timetable,
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but it would not worry me at all if the House were to resume now and we were to consider this tomorrow afternoon.
Earl Ferrers: One might say that the noble Lord, Lord McIntosh, bounces. We had an agreement, to which I understand that he was a party, that we should continue to Amendment No. 54. But now, because the noble and learned Lord, Lord Simon, got excited about how long we have spent discussing this and then spent a good deal of time discussing why we should go on for so long but has now unfortunately disappeared—I think that he quite understandably wishes to retire elsewhere —the noble Lord, Lord McIntosh, says, "Let us stop now". Obviously, what happens is up to the Committee, but if we have made arrangements to continue to Clause 54, I should have thought that the proper thing to do would be to continue to that point.
Lord Wigoder: I support the noble Lord, Lord McIntosh. We are now considering an amendment which is of crucial and critical importance to the administration of justice, and I venture to suggest that it is apparent that the House in its present form cannot do justice to it.
Lord Harmar-Nicholls: One presumes that the agreements that have been entered into were entered into in the best interests of the House and Parliament as a whole. I think that if an arrangement has been made, all sides should keep to it; otherwise we get nowhere very quickly.
Lord McIntosh of Haringey: I proposed the timetable of business. It is no secret that the Opposition propose the timetable of business on Bills. I was not seeking to overturn unilaterally an agreement to which I was a party; I was merely suggesting, in view of the evident feeling in the Committee - admittedly, the two noble and learned Lords who felt it most strongly have now left—that it might not be a bad idea if, by mutual agreement, we broke the original agreement. That would not do any harm to the business tomorrow and would help us now; but if that is not acceptable to the Government, I shall plough on.
Baroness Faithfull: We are wasting parliamentary time because we have to withdraw amendments at this hour of the night because we cannot divide.
11.30 p.m.
Lord McIntosh of Haringey: 'Try me, Sir Arthur", is what Conan Doyle once said. I have been known to divide the House at 1.15 a.m.
Amendment No. 40 proposes a new clause, to be inserted after Clause 46, which is concerned with the admissibility of confession evidence. It arises from evidence which has been given to the Royal Commission on Criminal Justice. Indeed, it is the successor to considerable arguments over many years about the nature of confession evidence -arguments which were central to the reasons why the then Conservative Home Secretary set up the Royal Commission in the first place. I shall summarise briefly our basic dissatisfaction with the admissibility of

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confession evidence in order only to obtain a response from the Government. Clearly, as we have said, the subject deserves the attention of a much fuller Chamber.
As we said on Second Reading and in the debate last October on the Royal Commission, we would prefer the corroboration of confession evidence to be along the lines of Scottish law rather than English law. Scottish law provides, first, that there must be evidence that the crime has actually taken place. That may not be as obvious as it seems. Secondly, there must be facts available from a source other than the confession which would incriminate the suspect.
We are proposing in an amendment to the Police and Criminal Evidence Act 1984 that no confession shall be admissible unless:
"the confession has been made or adopted in the presence of a solicitor; and … the prosecution adduces independent evidence which is capable of implicating the accused person in the offence of which he is charged".
We are enforcing the Police and Criminal Evidence Act conditions of interview and interrogation and applying them to the most critical aspect of interrogation, which is the interrogation that results in a confession. On Second Reading I reminded the House of the recent case in the north east of England. There the judge ruled out a confession that had been obtained after hours and days of questioning of a clearly inadequate young man accused of abducting, assaulting and killing a young girl. As the young man said afterwards, "They asked me whether I did it 249 times and on the 250th time I agreed". In other words, he simply could not stand the pressure that was being put on him.
Admittedly in that case the judge found that the PACE rules were not fully obeyed. However, one can imagine conditions in which the PACE rules are obeyed yet the confession is nevertheless as unsatisfactory as that confession was recognised to be. Many of the cases which gave rise to the Royal Commission were similar.
Although the Police and Criminal Evidence Act has been in force for nearly 10 years, everyone concerned from the police outwards will recognise that it is enforced patchily and that the attitudes of the police towards it are not uniform throughout the country. There are many cases of interrogation which do not conform to the PACE conditions either in the spirit or the letter.
We believe that it is necessary to have both, not either, of two conditions. First, there should be the presence of a solicitor when the confession is made or adopted, and that should be under PACE conditions. Secondly, the prosecution should adduce independent evidence which implicates the accused person.
One could make speeches on this point which last several hours. For many months and years there have been seminars and debates on the issue in the legal profession and outside. It is one of the fundamental questions with which the Royal Commission is concerned and with which this Bill ought to have been concerned. The fact that the Bill is not adequately concerned with the validity of confessions and the conditions under which confessions may be admissible in evidence is one of the most serious criticisms of it that there could be. I beg to move.
Lord Wigoder: With very great hesitation, I venture to differ from the noble Lord, Lord McIntosh of Haringey, on this amendment. My doubts arise really as regards the new Section 76(2) (b). I suppose that it is a matter of (2) (b) or not (2) (b), that is the question!
Subsection (2) (b) provides that the prosecution must adduce independent evidence capable of implicating the accused person in the offence; in other words, it provides, by statute, that before a confession can be admitted there must be corroboration. I have doubts about the wisdom of that matter. I am fully aware that there have been many cases of uncorroborated confessions where horrendous miscarriages of justice have arisen. Equally, I am aware of the fact that in far more cases defendants have made confessions of which there is no corroboration. They have quite happily stood up in the magistrates' court or at the Crown Court and have pleaded guilty. They have instructed solicitors or counsel to act for them and they have gone off happily to serve their sentence. If subsection (2) (b) were in force, all those people would now be at liberty and would never have been charged in the first place.
I should very much prefer the position in which the judge is fully aware of the dangers of acting on an uncorroborated confession; looks carefully to see whether there is supporting evidence; and if there is no supporting evidence he warns the jury very carefully of the position and informs the members that only if they are absolutely convinced that the confession is true should it be acted upon. I believe that providing statutory corroboration as proposed in the amendment will do more harm than good.
Baroness Mallalieu: This amendment was a recommendation by the Independent Civil Liberty Panel on Criminal Justice on which I sat last year in May together with the former chairman of the Bar, Anthony Scrivener, and the chairman of the Civil Liberties Trust, Peter Thornton, both of whom are leading counsel.
At the outset, I shared the reservations, expressed by the noble Lord, Lord Wigoder, as to how one could ensure that false confessions did not translate; themselves into convictions which were unjustified. I confess that at the outset I was attracted by the argument that he has just advanced; namely, that a warning should be given to a jury rather than making a requirement as part of the law that there should be corroborating evidence.
It is late and therefore I shall draw attention to just one part of the material placed before us at our hearings which particularly impressed me. We heard evidence from many sources including the police, universities, the legal profession and others.
In particular, we heard from a Dr. Gudjonsson, who has been working in recent years studying people who have been proved subsequently to have made false confessions. He has done extensive work with a Dr. James Mackeith, who is a consultant psychiatrist of the Bethlem Royal Hospital.
Before I heard about his report, my immediate reaction would have been that anyone who falsely confessed to a crime that he had not committed must be

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off his head. Dr. Gudjonsson has found that many people make false confessions for a variety of other reasons which had not, I confess, occurred to me before.
First, he found that people make confessions voluntarily and without any external pressure because they have a desire either for publicity or for notoriety or a desire to protect the real criminal, or sometimes from a desire to relieve feelings of guilt that they may have about something that they feel that they have done wrong, correctly or otherwise.
As an example, he pointed to the 200 people in the United States who had confessed voluntarily to the Lindbergh kidnapping in 1932.
Then there are those who make confessions for what they perceive as some kind of immediate gain: for example, to bring an end to pressure from interviewing officers; being allowed to go home from the police station; or the dropping of a more serious charge. In those cases, the person who confesses does not believe that he has committed the crime—indeed, he knows that the truth is that he has not—and he may think that the truth will eventually be revealed. In court cases, researchers found that that was the most common type of false confession.
Then there are those who have what Dr. Gudjonsson termed a "memory distrust syndrome" where they become temporarily persuaded that they have commit-ted the crime because they begin to distrust their own recollection of events. The doctor cited the case of a man called Peter Riley. He had come home to find the body of his mother. She had been murdered. The police had used a polygraph test on him. That failed and, using that failure, he was persuaded that he was guilty and had confessed. It was two years later that independent evidence cleared him.
Dr. Gudjonsson told us that he did not believe that such confessions could ever arise from a single cause; nor did he believe that they could ever be completely eliminated. However, it was abundantly clear from his evidence, and that of those engaged in the field with him, that false confessions are not confined to vulnerable people, to young people, to mentally-ill people, to people of low intelligence or even to those suffering from temporary disabilities. That leaves aside other categories—categories about which there has been much publicity and which are, perhaps, better known —such as the fabricated confession of which notable examples were revealed by use of the ESDA testing in recent years, and the final and, arguably, the smallest category; namely, the confession which is a mistake, either in the recording or in the form of a genuine misunderstanding between the interviewer and the suspect.
As a result of hearing about such evidence and hearing evidence from other witnesses who appeared before us, together with considering the documents that we received, we felt that the warnings indicated by the noble Lord, Lord Wigoder, could not provide sufficient protection. I appreciate what the noble Lord said. His anxieties are that uncorroborated confessions do, on occasion, form the basis of valid convictions. However, I am troubled that some of those cases to which he
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referred may well fall into the category described by Dr. Gudjonsson as ones where a confession is made which was not in fact based on truth.
A number of recommendations were made, which I shall not mention in detail now because they are not strictly relevant to the amendment and the hour is late; but they include, for example, that a qualified solicitor should be present when interviews take place if at all possible, and that those who go to police stations acting on behalf of solicitors should receive proper training, as, indeed, should police officers in the way in which police interviews are conducted. For all those reasons, I support the amendment. In view of those additional safeguards, we felt that the provisions contained in the amendment were necessary to guard against those who do, unhappily, confess to offences which they have not committed.
Lord Hylton: As a non-legal person and largely as a result of prison visiting, I have over the past 10 years been involved in quite a number of both proven cases of miscarriages of justice and alleged ones in England and in Northern Ireland. I have written numerous letters to many Home Secretaries, and I have also discussed the matter previously with the the noble and learned Lord the present Lord Chancellor.
For all those reasons, I welcome the amendment. I do not know whether its content is 100 per cent. right; and, indeed, I shall not go into that aspect of the matter. I followed very carefully what the noble Baroness, Lady Mallalieu, said about the two doctors who made special studies of false confessions, and the types of people who are most likely, for one reason or another, to make such confessions. I urge the Government to study the published works of those two doctors and, if possible, have consultations with them before the Bill finally becomes law. I am convinced that we need much better safeguards against miscarriages of justice than we have at present.
11.45 p.m.
Lord Rodger of Earlsferry: It has been said on several occasions already that this amendment raises a lot of extremely important issues and I certainly concur with that. Even the spread of debate which we have had has indicated a divergence of view as to exactly where the balance most appropriately lies in the system in England and Wales on this matter.
The noble Lord, Lord McIntosh, mentioned the matter of corroboration. Although it does not work in Scotland in exactly the way that this clause would envisage, certainly in that system it has a role to play. But that matter was of course most carefully investigated by the Royal Commission and its conclusion was that it was not appropriate, for various reasons, to introduce that particular provision into English law. Again the proposed clause as it stands on the Marshalled List contains a number of provisions which the Royal Commission considered carefully and which—for reasons which it laid down—it did not feel able to accept and did not think would help. The most obvious point it made was that there may indeed be situations where a defendant declines to have a solicitor

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present in a situation where he nonetheless adheres to the confession which he has made. In that situation, that confession would, under this provision, be ruled out, and it is not obvious that that would be an appropriate situation.
The particular provision in subsection (5)—which is some sort of an embodiment of the principle of the foot of the poison tree—would seem to go very far because it would mean, for example, that, in a situation where all that had happened was that the man had declined to have a solicitor present but had given information which had led, for example, to the identification of two perfectly good witnesses who could speak prima facie, the evidence of those witnesses would on that basis not be available to the prosecution and could not be put before the court because it would result from a confession which was excluded under subsection (2).
Lord McIntosh of Haringey: I am grateful to the noble and learned Lord the Lord Advocate. It does not mean that the prosecution could not proceed: it would mean that the confession could not form part of the case.
Lord Rodger of Earlsferry: Subsection (5) of the proposed new clause states:
"any evidence obtained as a result of the accused's confession shall not be admitted in evidence against him".
As I read that, it is intended to exclude evidence which is obtained as a result of the confession. I may be wrong but that is how I read it. It is certainly the kind of provision which can be found in certain states in the United States of America, for example, but in the particular formulation it would seem to me to go too far.
The debate, although short, has raised a number of issues and the Government have wished to reflect further on the matters relating to confessions because they are obviously very important, and in particular to consider the recommendations of the Royal Commission. The Government are still considering these recommendations. These are difficult matters, as can be seen, and no view has yet been reached but we certainly do not want—there is always a risk in these things—to complicate the situation by complicated rules of evidence.
Even under the present law, it is the case that confession evidence may have to be rejected in spite of the fact that it appears actually to embody the truth— and that even in the most serious cases. That indicates that already the law holds the rights of suspects very dear, and that provision is already made to make sure the police act properly. But on the whole we wish to think further on the matter, particularly in the light of the Royal Commission's recommendations, and to come forward with our conclusions in due course.
Lord Mclntosh of Haringey: Of course I am interested in what the noble and learned Lord the Lord Advocate says about wishing to think further and perhaps if, as usual, we have talks between now and a later stage this might be one of the items on the agenda. Certainly I would be prepared to talk to the noble and learned Lord the Lord Advocate about this issue. I insist that, on the point he last made, on which I intervened, we are not saying at all that the prosecution should not
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proceed. We say only that the confession obtained under those circumstances should not form part of the prosecution.
As a result of this discussion I am assured in one respect, and I should like to be reassured. The availability of corroborative evidence is increasing all the time as forensic science improves. For example, the likelihood of there being DNA evidence is greater than it was. That type of corroborative evidence, although it will never solve the problem could go some way towards reducing it.
There are ways in which I am still as unhappy and dismayed by the Government's reaction to the amendment as I ever was. I recall almost: the last case of my late father-in-law, Tom Sargant. That was the case of Mrs. Livesey, who was convicted in Preston of the murder of her 14 year-old son. She was convicted after many hours of interrogation in which she finally said, "Oh, I don't know. If you tell me so often that I did it I suppose I must have done it". That was thought to be a confession. There was no other evidence available against her. Indeed, evidence came forward later such as the fact that this 14 year-old boy had been tied with naval knots which she could not possibly have known and that there were matches and cigarettes of several different brands, none of which she smoked, in the room when she returned from an evening out and, as she claimed, found him dead. All of those matters were well rehearsed in the press and the Court of Appeal. She gave: way after long interrogation and was convicted only on that minimal confession. She immediately retracted the confession and ever afterwards, even at the expense of parole, insisted on her innocence and has continued to do so ever since she was released at the end of her sentence. That sort of problem will not be relieved by leaving the law relating to corroboration as it is.
As everyone who has taken part in this short debate recognises, this is one of the fundamental issues concerning miscarriages of justice. It is what the Bill ought to be concerned with, but it is not. It is clearly an issue to which we shall have to return not only at later stages of the Bill but in later legislative activity in this Chamber.
Solely on the grounds that it would be impossible to secure a proper conviction of the Government at this time of night, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 47 and 48 agreed to.
(Amendments Nos. 41 and 42 not moved.)
Clause 49 (Powers of police to take Intimate body samples):
(Amendment No. 43 not moved.)
Clause 49 agreed to.
Clause 50 (Powers of police to take non-intimate body samples):
(Amendment No. 44 not moved.)
Lord Mottistone Lord Mottistone moved Amendment No. 45:
Page 35, line 46, at end insert:
("( ) the non-intimate sample is taken by or in the presence
of a medical officer").
The noble Lord said: I should like to make this point very briefly. The Magistrates' Association has told me

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that taking samples where consent has not been given is undignified and that it can, and does, lead to violence. There are also potential health risks. The association has therefore recommended that in the event of a prisoner objecting to giving saliva samples and mouth swabs the sample should be taken by or in the presence of a medical officer; hence my amendment. I beg to move.
Earl Ferrers: Non-intimate samples are precisely those which do not require specialist or invasive procedures in order to obtain them. The definitions are set out in Clause 53(3). They include hair but not pubic hair, nail cuttings or scrapings, impressions of the feet or other parts of the body, and saliva or a swab from a mouth. A mouth swab simply involves rubbing cotton wool against the inside of a lip.
It has been possible for some time for the police in Northern Ireland to take mouth swabs without consent and we understand that that has worked satisfactorily. In the Government's view those are all procedures which can be adequately performed by a trained police officer. They are not fundamentally different from taking fingerprints without consent, for which powers have existed for many years without difficulty.
I see no logic in my noble friend's proposition that the medical officer would need to attend only when consent was refused and that he need not himself take the sample. Either his skills are required in all circumstances or, I would suggest, not at all. It is not the job of doctors to act as independent observers of police procedures. The Committee might be tempted to think that there is no harm in having a medical officer present even if it is not strictly necessary. But I think that that would be a mistake. Each medical call-out costs the police a considerable sum of money and that is money which could otherwise be spent in fighting crime. It also causes delay.
I remind my noble friend that there are many circumstances in which police officers are obliged to use force. But the law is clear that the force involved must be reasonable to the circumstances and not excessive. The use of excessive force to obtain evidence from samples could render the evidence inadmissible under Section 78 of the Police and Criminal Evidence Act 1984.
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For those reasons, I suggest to my noble friend that his amendment is unnecessary.
Lord Mottistone: I am most grateful to my noble friend for his full explanation. I shall study it with care and may return to the issue at the next stage. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 45A to 45D not moved. ]
Clause 50 agreed to.
Clause 51 [Fingerprints and samples: supplementary provisions]:
[Amendments Nos. 45E to 45M not moved.]
Clause 51 agreed to.
Clause 52 agreed to.
Clause 53 [Samples: intimate and non-intimate etc.]:
[Amendments Nos. 45N to 45R not moved.]
Clause 53 agreed to.
Clause 54 [Extension of powers to search persons' mouths]:
[Amendment No. 45S not moved. ]
Clause 54 agreed to.
Lord Annaly: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
11.58 p.m.

Deregulation and Contracting Out Bill
Brought from the Commons; read a first time, and to be printed.
Firearms (Amendment) Bill
Brought from the Commons; read a first time, and to be printed.

City of Westminster Bill [H.L.]
Reported from the Unopposed Bill Committee with amendments.
House adjourned at one minute before midnight.