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

HL Deb 29 November 1994 vol 559 cc545-77

3.21 p.m.

The Minister of State, Scottish Office (Lord Fraser of Carmyllie)

My Lords, I beg to move that this Bill be now read a second time.

The Bill has two main objectives. The first is to enhance the effectiveness of our criminal justice system by strengthening the powers of the criminal justice agencies in the fight against crime. The second is to improve its efficiency and its capacity to deal with those who break the law.

This Bill is the result of the most substantial overhaul of the criminal justice system in Scotland in the last 15 years. I emphasise the word "overhaul", as we are not seeking to destroy the fabric of the system, and put something completely new in its place. We are building on strong foundations which have essentially stood the test of time. Over the past two years we have taken an intense look at how the system is operating, identified specific problems and points at which it is not running smoothly, and formulated proposals to make it work better.

We have been careful to take account of the views of all those with an interest in the criminal justice system in Scotland. The proposals in this Bill are the product of wide and detailed consultation: seven consultation papers, five research studies, a White Paper and a report from the Scottish Law Commission. I cannot recollect in past years any proposal for legislation for Scotland which has been subjected to that intense degree of consultation other than the Children (Scotland) Bill published last week.

The responses to the consultations suggest to me that we have found the right approach to reform. The great majority of our proposals were supported. And where our original proposals met with reasoned opposition they were reconsidered, and discarded or adjusted.

My belief that we have found the right approach was reinforced only two weeks ago with publication of the Labour Party paper Protection and Justice, which bore in many respects a remarkable resemblance to the ideas in our consultation papers and the White Paper. That confirmed for me that there is no significant area of our Scottish criminal justice system which we have failed to explore. There are just two particular measures which are not included in the Bill, for different reasons.

Our consultation paper Juries and Verdicts recounted the history and development of our system of three verdicts, and considered as impartially and objectively as it could the case for and against retention of this system. We considered very carefully the responses received and concluded that the arguments for retention of the size of the existing jury, the present majority verdict and the historic three verdicts were more compelling than those against.

Most emphatically we were of the view that the verdict of not proven should not be considered in isolation from those and other distinct features of our system. We do not then propose to interfere with any of them.

A second matter, about which there has been considerable public debate in the last year, is that of the case for change to the criteria applied by the Appeal Court in its consideration of criminal appeals, and for new machinery for considering alleged miscarriages of justice. The care of our analysis, in the paper Sentencing and Appeals, of the difficulties of these issues has been applauded in Scotland but many of those consulted felt that these difficult issues required yet further detailed analysis.

We have now responded to that view: my right honourable friend the Secretary of State for Scotland has appointed an independent expert committee under the chairmanship of Professor Stewart Sutherland, the new Principal of Edinburgh University. The committee has been asked to report no later than the summer of 1996. Professor Sutherland has made it clear that he intends to complete the committee's work as quickly as possible, and I am grateful to him for that undertaking but I do not underestimate the complexity of the task. It is far too important a matter to be decided precipitately.

I indicated earlier that the Bill contained proposals which were intended to increase the effectiveness of the criminal justice system in dealing with crime and criminals. These include the provisions on bail, the use of DNA analysis, the development of fiscal fines and new powers covering confiscation and forfeiture.

The Bill opens with provisions designed to crack down on the abuse of bail. Clauses 1 to 5 are designed generally to tighten up on the use of bail, to ensure that the public is protected and to make it clear that abuses will be dealt with firmly. For certain serious offences where the accused already has a conviction for such an offence, bail will not be an option. The Bill also provides the courts with powers to increase the sentence for an offence which is committed while the offender is on bail. Up to six months' imprisonment or a fine of £1,000 may be added to a sentence for such bail abuse. Those are tough measures. But the Government consider them wholly justified. The court must take into account not only the interests of justice but the protection of the public. Breach of the court's trust is a serious matter. The measures show the seriousness with which abuse of that trust could be treated.

New technology has provided the police with many additions to their armoury. Most recently DNA analysis is being developed as an effective test in the investigation of certain crimes. To improve further the effectiveness of DNA techniques in the detection of crime, Clause 48 proposes extension of the range of samples which may be taken without warrant in a criminal investigation. The Bill specifies the circumstances in which samples and prints may be checked against those held in police records. It also includes essential safeguards on the uses of samples.

There has been considerable public debate in Scotland about our proposal to extend the use of fiscal fines, particularly in relation to minor drugs offences. Use of fiscal fines has proved effective in keeping a range of minor offences out of our courts. We propose in Clause 50 to extend the range of offences for which a fiscal fine could be offered to all offences triable summarily. I emphasise the words "could be offered". The discretion will remain with the public prosecutor as to whether or not it is in the public interest to prosecute. No offence would be decriminalised. We are simply proposing that the range of alternatives open to the prosecutor should be widened.

Clause 51 provides for a sliding scale of fiscal fines which would allow the procurator fiscal to offer a fine fitted to a greater range of circumstances than at present. It will come as no surprise to noble Lords to learn that my noble and learned friend the Lord Advocate intends to issue guidelines to procurators fiscal on the use of the extended system of fiscal fines.

As regards confiscation and forfeiture, the Government have been in the forefront of measures to deprive offenders of the profits of crime and property used in crime. The Criminal Justice (Scotland) Act 1987 introduced confiscation of the proceeds of drug trafficking in Scotland and the Criminal Justice (International Co-operation) Act 1990, which was UK in extent, implemented the Vienna Convention. The provisions in Part II of the Bill will give the Scottish courts powers to confiscate the proceeds of serious crime and enable the United Kingdom to withdraw its reservation to the laundering convention as it applies to Scotland. The provisions follow recommendations made by the Scottish Law Commission in its report on confiscation and forfeiture which was presented to Parliament as recently as last September. It also adopts the Law Commission's recommendations for reforming the general and specific powers already available to Scottish courts to order forfeiture.

The legislation proposed in Part II is lengthy and necessarily complex and I do not wish to detain your Lordships now by going into it in detail. But clearly, with the recent publication of the Scottish Law Commission report, we have had to move quickly and we may wish to propose some amendments to it.

In addition to the proposals I have already outlined as being intended to assist the system in dealing effectively with offenders, the Bill proposes a number of initiatives aimed at fitting the punishment to the crime and the circumstances of the offender.

Clause 29 is intended to enable supervised attendance orders to replace imprisonment as the main sanction for fine default. It builds on experience that we have gained since 1991.

The supervised attendance order would in certain circumstances replace imprisonment for fine default up to level 2 on the standard scale. The provisions would also enable the courts to use supervised attendance orders in place of fines for 16 to 17 year-olds, and would replace imprisonment for fine default for this age group. However, many responses to our consultation paper emphasised the value of the sanction of imprisonment in encouraging the payment of fines and expressed concerns about the risk of increased non-payment if the sanction was removed entirely. The Bill therefore provides for flexibility in permitting certain of these new arrangements to be introduced gradually at local level.

Major strides have been made in recent years to develop and reinforce community based penalties generally. Clauses 30 to 35 seek further to improve the effectiveness, enforceability, targeting, and credibility of these measures. This includes provision to reinforce public protection where there is abuse of trust while undertaking unpaid work as a condition of probation or on a community service order.

The Bill also—in Clause 55—empowers my right honourable friend the Secretary of State to extend the scope of 100 per cent. funding of social work criminal justice services to bring in diversion from prosecution and certain services to the children's hearings in respect of young offenders falling in the age group of 16 and 17. Pilot work still needs to be done but the provisions confirm the Government's continuing commitment to this vital area of criminal justice.

I turn now to the procedural reforms in the Bill. Many of these provisions are designed to streamline the criminal justice process, to speed it up and to reduce as far as possible both inconvenience and waste.

Recent experience in summary cases has shown that the holding of what we describe as an intermediate diet, ahead of the trial diet, at which the judge can assess the state of preparation of the prosecution and defence cases, can bring considerable benefits in reducing the number of trials which have to be cancelled or adjourned.

Sheriffs have reacted very positively to the use of intermediate diets in those areas where they currently operate, and I pay tribute to the groups under sheriffs principal Nicholson and Cox in promoting the use of intermediate diets under existing statute.

We have decided as a result of the consultations to build on the existing statutory framework. The provisions contained in Clauses 12 and 13 introduce mandatory first diets in solemn proceedings in the sheriff court and mandatory intermediate diets in summary proceedings.

As part of our proposals, the prosecution and the defence will be required to identify matters which may be capable of agreement and take all reasonable steps to agree those matters before the trial. We believe all this will have a significant and positive impact on the conduct of court business. Not least it will mean that many thousands of police and civilian witnesses (many of the latter group will also have been victims) will be spared unnecessary attendance at court.

Allied to these provisions are provisions in Clauses 14 to 23 designed to simplify the agreement of evidence where it is undisputed or uncontroversial. In addition to putting emphasis on agreeing evidence in advance, we propose that procedures should be simplified by enabling certain types of evidence to be given by means of certificate. These proposals take account of the changing nature of the evidence which is now coming before the courts as a result of new forensic techniques and the nature of modern crime. Again they should also reduce the burden on the number of witnesses actually required to attend court to give evidence.

We also considered whether anything could be done to improve the experience of the criminal justice system by those who were asked to act as jurors, building on the principles already set out in the Justice Charter.

Jury service is an extremely important duty. We believe that we must do all we can to obtain juries which are representative of society as a whole. In Clauses 6 to 8 we propose the abolition of peremptory challenge of jurors; that jurors' occupations should no longer be listed in jury lists; that jurors excused service for any reason should be recalled within a year; and that persons on bail should be disqualified from jury service.

I now turn to the matter that has caused some concern; namely, the right to silence. In the White Paper published in June this year, the Government undertook to consult on whether any changes should be made to the judicial examination procedure and related matters, including the right to silence. After consideration of the comments we received, we have reached the conclusion that only very limited changes to the law are necessary. Our proposals are contained in Clauses 10 and 26 of the Bill.

We do not propose any change in the law on the right of the accused to remain silent under police questioning early in an investigation. Clause 10 proposes, however, strengthening the procedures for judicial examination by ensuring that the prosecutor can put to the accused questions designed to seek admissions. We believe that there is no reason why an accused should not, under the sheriffs protection, be invited to admit, deny or explain facts which point to his guilt.

At trial, the approach of the court is determined by the common law of Scotland and the court may comment on an accused's failure to give evidence. We have concluded that a statutory provision to restate the law on silence at trial in Scotland is not necessary but we propose, as recommended by the Thomson Committee and a majority of those who responded to our consultation paper, to remove the statutory prohibition on the prosecutor from commenting on an accused's silence at the trial.

We consider it wholly appropriate that the prosecution, when addressing the jury should be able to comment on a matter on which the court may comment and which the jury may take into account in reaching its verdict.

I now pass to two important provisions on sentencing. The provisions contained in Clause 27 would empower a court, in determining the sentence, to pass on an offender who has pled guilty, to take into account when and in what circumstances the offender made that plea. This provision would make it quite clear that it is appropriate for the courts in Scotland to do that.

Apparent inconsistency in sentencing is also a frequent public criticism. Clause 28 provides expressly for the Appeal Court to issue opinions on sentencing matters which go beyond the particular case before it and would require the lower courts to have regard to those opinions in their own sentencing decisions. Our proposals also include significant changes to the procedures for dealing with criminal appeals. The number of appeals coming before the Appeal Court has nearly trebled in the past 10 years. That clearly is putting our system under considerable strain.

Clauses 35 and 36 propose two significant new measures designed to assist the High Court in their consideration of criminal appeals. First, there would be a new requirement for leave to appeal. A single judge would decide on the basis of papers whether there were arguable grounds to allow the appeal to proceed and would seek to filter out clearly unmeritorious or frivolous appeals. The appellant would, however, have the right to continue his application for leave to appeal to the High Court, if it were rejected by the single judge.

Secondly, in appeals against sentence or other disposals alone the quorum of the High Court would be reduced from three to two judges. The quorum of three judges would be retained, however, for appeals against conviction.

I believe that these reforms will help the Appeal Court to cope with the substantial and increasing workload and allow it to concentrate its resources on those appeals which raise issues of greatest importance.

Passing to Clauses 39 to 47, they respond to criticisms that have been made of the procedures for dealing with accused persons who are insane and cannot therefore stand trial, and persons acquitted on grounds of insanity. Under the existing procedures in Scotland, a person found unfit to stand trial must be detained in a mental hospital—possibly for the rest of his life, if he gets no better—without the court reaching a view on whether or not he committed the act for which he was charged.

That is not justice. Under the provisions of the Bill the court would be required to undertake an examination of the facts in order to determine whether or not he did the act constituting the offence. There would be a wider range of disposals available to the courts in dealing with persons acquitted on grounds of insanity. Bet let me stress that, whenever a court considers it appropriate to impose a hospital order with restrictions to protect the public from serious harm, it may still do so.

The House may be aware that there are now a number of statutory exceptions to the general requirement in the 1975 Act in relation to the time limits within which summary prosecutions must be brought. We are considering whether it is now time to make amendment to achieve a greater consistency and we may wish to introduce amendments at a later stage.

Finally, as a further step to streamline the operation of the criminal justice system in Scotland, we hope to bring forward a consolidation of criminal procedure legislation immediately following the Bill's passage. In order to achieve that, some pre-consolidation amendments will be needed and we intend to bring those forward at a later stage.

We are fortunate in Scotland to have a criminal justice system which commands widespread public respect and confidence. We cannot be complacent, however. Times change and society's expectations change with them. The public are understandably becoming ever less tolerant of crime and criminals. They rightly expect quick and effective treatment at all stages of the criminal justice system, just as they do from other public services.

I believe that this Bill, if enacted, will achieve a step change in both the efficiency and effectiveness of the Scottish criminal justice system. I commend the Bill to the House.

Moved, That the Bill be now read a second time.— (Lord Fraser of Carmyllie.)

3.45 p.m.

Lord Macaulay of Bragar

My Lords, I should first like to pay tribute to the noble and learned Lord, Lord Fraser, who is universally regarded in Scotland as a man with a great sense of fairness and interest in making the Scottish legal system as fair and just as possible. That is recognised on this side of the House. We also commend the diligence with which the Scottish Office has attacked—if I may so put it—the various problems arising within the administration of the Scottish legal system and on the production of various papers, culminating with the latest one on the right to silence. Consideration of those papers may very well be rather rushed by the presentation of this Bill to your Lordships' House.

It is true that the views of various parties have been taken into account in formulating the Bill; but the presentation of the Bill has been something of a rocket to the legal community in Scotland and indeed to the people of Scotland. Time may have been taken to consider the representations in the formulation of the Bill, but there is deep concern about the amount of time that has been left for people to consider the passage of the Bill through your Lordships' House and another place. It has been suggested to me that perhaps the Committee stage of the Bill should take place some time in the middle of December. That is not a course which commends itself to me. I note that the Minister shakes his head and so I shall depart from that piece of carping and leave the matter there. We shall be delighted to consider the Bill in detail in the new year. The Government can rest assured that from this side of the House everything will be done to expedite the passage of the Bill, subject of course to the usual tradition of scrutiny and improvement. I shall come to the issues of the not proven verdict and criminal appeals at a later stage of my remarks.

In passing, the noble and learned Lord mentioned the question of fiscal fines. There is one matter about which perhaps the Minister, when he winds up, might advise the House. If a young person is found in possession of a small amount of cannabis during a police search and is given a fiscal fine, is that to be recorded as a first "offence"? If that person is then caught a second, third or fourth time, will a record be kept somewhere of something that is not a conviction? It is quite a serious problem. It can readily be seen what may happen. People will say, "It's all right. It's just a fiscal fine. I'll just keep on taking drugs"; and vice versa. The suppliers of drugs may encourage young people to indulge in drugs on the basis that, with any luck, they will get away with a fiscal fine.

We on this side of the House support any measures which can streamline the system of Scottish law without eroding the rights of the accused in particular. Regrettably, we see the Bill as a grave threat to the so-called right to silence. I shall come to that point later.

We welcome the introduction of any measure which assists in the smoother operation of the criminal law in Scotland provided that it maintains the essential balance between expediency and efficiency in the administration of the law; the rights of the individual in criminal proceedings; and in particular the long-standing rule that the Crown, which brings alleged offenders before the courts, must always be held to its obligation to prove any case, from breach of the peace to murder, beyond reasonable doubt. The basic concept of the presumption of innocence should not and must not be undermined, shifted sideways and sacrificed on the altar of administrative expediency. That is one view that some people may very well take of the proposals in the Bill.

My reading of the Bill in the time so far available has not yet convinced me that that balance is maintained by the Bill. I suspect that behind some measures in the Bill there is a deliberate and calculated erosion of the basic concepts of the legal system in Scotland, with a view to obtaining more and easier "convictions", to satisfy—as we have seen south of the Border—a bloodthirsty lobby of people who say, "Get them at any cost", devotees whose ideas of justice may be somewhat blinkered, if not perverted.

For example, we have heard of police officers at their annual conferences saying, "Of course, criminals are hiding behind the right to silence and we cannot catch them". If that is the philosophy behind the Bill, so be it. But I can assure the House that that philosophy—which I am sure the Minister would not endorse—will be fought tooth and nail from this side of your Lordships' House. Strangely enough, some people in that category who, in their experience, would express that view, are the same people who, when they get into trouble—I have had personal experience of defending some of them—immediately jump behind the right to silence and say, "I am not saying anything. It is up to the Crown to prove the case".

To sacrifice basic principles of law, long regarded as being for the protection of the individual and the avoidance of injustice in criminal trials, for reasons of expediency and cost cutting, is dangerous. If that is what is behind the Bill, to any extent, then the Bill must be carefully and rigorously monitored and scrutinised. This Bill will receive that attention in your Lordships' House in accordance with the usual approach of your Lordships to consider and improve Bills.

It is self-evident that any system is capable of improvement and no system, of law or otherwise, is or ever will be perfect. Throughout the United Kingdom events should by now have alerted us all that a system of law should always be tailored to ensure that the risk of miscarriages of justice is minimised in so far as possible, bearing in mind that cases in court depend on the honesty or dishonesty of police and lay witnesses and the vigilance of the court to control proceedings and direct the jury on legal issues arising within a case. No system can eliminate dishonesty. We have seen examples. If a police officer or forensic scientist wants to tell lies, nobody can stop them. They may be detected in due course; but that is a fundamental weakness of the system. Miscarriages of justice will no doubt occur as long as witnesses, of whatever standing they may be, are prepared to lie under oath. It is for the courts to attempt to trap them and give them their due justice in courts.

Various issues were raised by the Minister, such as the perceived weakening of the so-called "right to silence"; the question of comments by prosecutors and judges on the absence of the accused from the witness box; sentencing guidelines; and the extension of the area of questioning open to a procurator fiscal in judicial examination. Those are examples of areas which will be closely examined in this House when your Lordships scrutinise the Bill, always with a view to maintaining the delicate balance between the rights of the individual and the interests of the state within a criminal justice system.

For example, in a country such as Scotland in which an accused is not obliged to say anything which may incriminate him, from beginning to end of the investigative and judicial procedure, why is his absence from the witness box often referred to as a "failure" on the part of the accused to give evidence? In what is he failing? Where the accused exercises his legal right not to say anything from the moment of his arrest, his absence from the witness box, far from being in any way a failure on his part, is a positive exercise of his constitutional legal right to remain silent. Unless and until there is a radical review of the criminal justice system, perhaps not only in Scotland, but also in England and Wales—it is sometimes suggested that the adversarial system of justice is not achieving justice in the public sense and that we should go over to the interrogative system such as they have on the Continent where the whole proceedings are under the control of the court—the right to silence is sacrosanct.

It is a legal nonsense to allow comment to be made by either the judge or the prosecutor, as a general rule, on the absence of the accused from the witness box, though I concede that there may be exceptional cases where that may be justified. For example, where my fingerprint is found on the till behind the bar of some hotel where there has been a break-in, and it is a hotel which I do not frequent, if there is no explanation as to why my fingerprint was there, then there may be a case in which comment may be made by the judge or the prosecutor. But those exceptions are few and far between and any intrusion into the right of silence must be scrutinised carefully.

If the prosecutor is to be allowed to comment on the so-called "failure to give evidence", how far is he or she to be permitted to go? Who is to control the forensic excesses of a prosecuting zealot—and there are plenty of them—whose idea of exercise of judgment is at the least questionable? Whose guidelines are they to follow? Who will lay down the guidelines to a prosecutor to say, "By the way, in a case of murder you can say this; in a case of rape you can say this; and in a case of theft you can say that"? Will guidelines be laid down for the prosecutor? Moreover, having been given that freedom, if a prosecutor goes completely over the top—I do not rule that out in a serious case and, incidentally, it could ruin the prosecution—how is the judge to negative those excesses? Each time the judge draws attention to the excesses of the prosecutor, by inference he draws attention to the fact that the accused did not give evidence. The whole thing therefore becomes an uncontrollable circus. I believe the Minister said in a radio programme last week that it is simply an extension of the existing right of the judge to comment on the absence of the accused from the witness box. I may be misquoting the noble and learned Lord. Sometimes I listen to the radio early in the morning rather than a repeat of the programme in the afternoon.

Perhaps I can draw your Lordships' attention to the case of Sutherland v. H.M. Advocate, SCCR 1994, page 90. That is a typical example of the dangers as regards what is happening. It is a case in the Court of Appeal. The opinion states that the judge, told the jury that he was perfectly entitled to take that course —that is, not to give evidence— and that it would be an entirely wrong approach for them to conclude that the appellant must have had something to hide, must therefore be guilty and should be convicted. He said that they must draw no adverse inference from the mere fact that he had elected not to give evidence. In the passage to which the ground of appeal relates he then said this … 'Having said that, however'"— note the word "however"— 'if there is some evidence in the case which is crying out for an explanation and there is no explanation from the accused when he is the one person who could give an innocent explanation, then you may find it easier to draw a guilty inference from the fact or from that piece of evidence which you are considering'". The appeal court said, As to whether he [the judge] exercised the necessary care and restraint when giving this direction, we note that it was contained in a single sentence and that it was preceded by directions in the clearest terms that the jury were not entitled to draw any adverse inference from the mere fact that the appellant had elected not to give evidence. We do not think that what the trial judge said in his passage went beyond what was appropriate and permissible. We reject this ground of appeal". That is sociological, if not legal nonsense. How can a judge say on the one hand, "Do not draw any adverse conclusion from the failure of the accused to give evidence", and on the other hand say, "but you will note that this is a piece of evidence which may require an explanation and he has not given evidence"? Why do we not get back to basics? In former days all a judge said was that the jury was not entitled to draw any adverse inference from the failure of the accused to give evidence? Why cannot we leave it at that and let the jury get on with it?

I should like to know—perhaps the noble and learned Lord the Minister or the noble and learned Lord the Lord Advocate can tell me—what evidential value the direction from the judge is to be given by the jury. In a recent case on television in Scotland the accused failed to give evidence. We did not hear what the judge said about the impact of that. But are we going to get corroboration not even by false denial but by absence from the witness box?

It is all very well for the noble and learned Lord the Lord Advocate to shake his head, and I understand why he does that. It is all very well for people versed in the law to say, "Well, of course, that is not the way things are". But if a prosecutor says, "Aha, Mr. Smith has not given evidence", and the judge says, "You will note this piece of evidence is here demanding an explanation and Mr. Smith has not given evidence. You will draw such conclusions as you think fit", what is a lay jury supposed to do except conclude that it is getting a nudge, nudge, wink, wink from the judge and say, "By the way, guilty may very well be the appropriate verdict"; not deliberately on the part of the judge, by no means? But as long as these freedoms exist from the Bench and, even more dangerously, from the floor of the court in the hands of prosecutors, we are in danger of eroding our system of law very considerably.

This matter, along with the question of judicial examination, must be considered. The noble and learned Lord the Minister raised the question of judicial examination with a view—if I have his words correctly—to eliciting a confession of some kind from the accused. Perhaps your Lordships are not familiar with the judicial examination. It is a process by which an accused person is taken before the court at a very early stage in the proceedings, before he even knows what the case against him is. He will have a copy of the complaint, or a indictment or a petition, but he is then "forced" to explain to the court what the case is all about, what his defences are, and so on. As it stands, the judicial examination is dangerous enough because it gives the prosecution one bite of the cherry before even the defence has had time to prepare anything. But if we are to go one step further and allow the prosecutor a real snap at the accused in order to get him to confess to something, that is quite a preposterous proposition. We shall be running two trials.

I go back to my basic point. If we do not like the adversarial system, if it is all wrong, let us get rid of it, and let us set up a commission to decide whether the whole legal system in England, Scotland and Wales is a proper legal system for modern times. However, what we are doing in this Bill is to mess about with procedure, with the accused and with the rights of the individual.

Judicial examination is just as important as any other element in the Bill. It is incumbent on the Government to take a second look at these matters—the right to silence and judicial examination—and sit back, get interested parties to come in and have a proper consolidated period of consultation and consideration. The right to silence consultation period ended on 31st October of this year. This Bill was printed on 16th November. There was a considerable response to the right to silence consultation paper. The rapidity of the production of the Bill raises very serious questions: either that the Government considered the representations and did not think them worth much, or they had already made up their mind, the consultation period was nothing more or less than a sham, and the Bill was ready on the stocks to be launched, giving it a fortnight after the close of the consultation period. I can assure your Lordships that within the legal profession there is great concern about the steps the Government are taking in the matters of the right of silence, judicial examination and so on.

The parts of the Bill which encourage expediency in the administration of justice without eroding, or potentially eroding, the rights of accused persons are welcome and will be supported, and are supported, by noble Lords on this side of the House. As I have already said, the passage of those parts of the Bill on to the statute book will not be impeded by unnecessary objections. We shall try to contribute constructively to the phraseology of the Bill. Various areas of the Bill, as the noble and learned Lord has already indicated, are better suited to be dealt with at the Committee and Report stages. It would be insolent of me to take up your Lordships' time in discussing those areas in detail.

I wish to raise two other issues. The first concerns sentencing guidelines. On this side of the House—the noble and learned Lord referred to the document produced by the Labour Party—we are in favour of consideration at least of a sentencing commission. The essence of guidelines is that they should be consistent. With the varying constitution of the Appeal Court in Scotland, where one does not get the same three judges listening to appeals, it is not necessarily the case that one will get a degree of consistency. We have to consider that point.

What I would not like to happen—and I have raised this point in your Lordships' House before—is to see sentencing guidelines become a straitjacket for a local judge. In a recent case in England a judge wanted to give some young fellow a considerable period in prison. He said, "I would like to give you x number of years but the sentencing guidelines say that I can only give you y". He had to pass a sentence which was not commensurate with the feeling of the local area and the nature of the offence because someone in the Appeal Court, looking at a bundle of papers, had said what was the appropriate sentence in that type of case. That should not be allowed to happen. It must not be a straitjacket for local judges.

We have our own problems in Scotland—speeders on the A.9, the Inverness road, probably one of the most deadly roads in Britain, if not in Europe. People come from the south, driving at 100 to 120 miles an hour. Perhaps in the south of England that might be regarded as just a yuppy exercise on a Friday evening. In Scotland it is regarded as a highly dangerous exercise on a very dangerous road. The guidelines that might be appropriate in the south of Scotland—in Dumfriesshire—might not be appropriate in Inverness-shire. I should like to think that the Government might consider setting up a commission of lay and legal representation to give a broad consensus as to the gravity of particular offences at a particular time and the way they should be dealt with.

The area of mental disorder in criminal procedure is a minefield of difficulty. It is a bewildering area. I ploughed my way through it and I commend the Minister and those who worked on it for the work they have done. We will do everything to assist in the passage of that part of the Bill, as we will do on the question of people profiteering from crime.

On the question of the abolition of the not proven verdict, all I can say is that we shall be back. The not proven verdict is regarded by many people—I declare an interest in that I have been against it for ever—as a nonsensical verdict. It is a fudge. Three verdicts in a criminal court. The rest of the world gets along with two. We in Scotland, for historical reasons, have to have three. All I can say at this stage is, let us get rid of it, but let us get rid of it after an informed debate in your Lordships' House.

The question of defence access to Crown papers in criminal cases, which was focused on yesterday south of the Border, will have to be considered during the passage of the Bill.

Finally, on the question of miscarriages of justice, unlike in other respects, Scotland is well behind the field. England and Wales, we think, will have a new body in office probably within a year. What has happened in Scotland in response to various observations made about the difficulty of miscarriages of justice is that a committee has been set up. Perhaps I may quote Lord Ross, the Lord Justice Clerk of Scotland, speaking at the 10th Commonwealth Law Conference—I cannot remember where it was but it is the words that matter—in March 1993. In dealing with miscarriages of justice, he said: It thus seems that such a new body if brought into being would have an important part to play in remedying miscarriages of justice in the criminal justice system. Indeed unless such a new body is created, there will be some cases where one cannot be confident that means exist within the criminal justice system as presently constituted for remedying miscarriages of justice which may have occurred". That was a cry from one of the principal judges in Scotland to say, "Do something about miscarriages of justice". I recognise that the Government have done something about the situation because they have set up a committee which will not report until July 1996, or earlier, on the promise of the chair of the committee. I am somewhat concerned about the composition of the committee because I do not see on it any representation from practising lawyers apart from Professor Ross Harper who, for this year and the next two years, I believe, will be the president of the International Bar Association. I am not sure how much he practises criminal law. There is no representation from the Bar Association of Scotland or indeed from the Faculty of Advocates, as far as I can see.

Lord Fraser of Carmyllie

My Lords, there is Derek Emslie.

Lord Macaulay of Bragar

My Lords, I understand that there is one representative from the Faculty of Advocates, but in terms of practising criminal lawyers, I do not believe that Derek Emslie would put himself into that category at the moment. If I remember correctly, he is an Advocate Depute. But there is no input from the practising lawyers, particularly practising criminal lawyers in Edinburgh, who deal with the appeal procedures. I ask the Minister to take that into account and perhaps consider expanding the committee without making it too unwieldy in order to bring in the practitioners who have to deal not only with the appeals but with the clients involved in the appeals. It is all very well taking evidence from these groups, but what is needed is people to consider the evidence.

In closing, I welcome what the Minister has said—that we are to have a consolidating Bill for criminal law in Scotland—because since the mid-1970s, with all the necessary developments in the law as time has gone by, the practise of criminal law has become a nightmare in trying to find what the actual statutory law is. I look forward to the later stages of this Bill, which I consider should be free from petty party politics. I hope that everyone who takes part in the Committee and Report stages will bear that in mind. We do not approach it from a political point of view and I hope that no one else in your Lordships' House will do so because what matters are the interests of justice, the interests of the individual and the benefit of society.

4.12 p.m.

The Earl of Mar and Kellie

My Lords, we have before us today a Bill which goes some way towards meeting the needs of the criminal justice system in Scotland. Some of the measures contained in the Bill are desirable and will be an improvement, but I have to ask: do they go far enough or are they just catching up measures?

Noble Lords will be aware that I worked for many years in the criminal justice system on the social work side, supervising probation orders, community service orders and aftercare licences. I was also a prison social worker and worked most recently on an intensive probation project.

From that point of view, I am happy with the stiffening of penalties for contravention of the Bail Act, with two provisos. First, I am not happy about those who are released on bail at the sheriff court as regards whether they are adequately briefed on the conditions of bail. My observations are that the priority of court staff at that time is to secure a signature on the bail release form. Discussing bail conditions with offenders has shown me that they have little or no knowledge of what is involved despite in some cases being bailed several times in the past. A review of the court procedures in that instance is needed.

Secondly, I wonder whether the new aggravated bail contravention sentence is compatible with the presumption of innocence. Release on bail after a remand can have a destabilising effect on offenders leading to desperate behaviour and naive feelings of "what does it matter?". Of course it does to a victim, but an offender may not see it that way clearly. Bail information and accommodation projects, as run by the Scottish Association for the Care and Resettlement of Offenders, can be helpful in this instance.

The proposed arrangements for jury service should achieve a reduction in hassle and frustration for potential jurors. It also makes it more difficult to avoid jury service by means of the re-citing of excused jurors within one year. We welcome the decision to keep the number of jurors at 15 and to retain the not proven verdict.

There are measures to improve the pre-trial procedures which may prove to be efficient. The mandatory first diet and intermediate diet will reduce the frustration currently felt by jurors and witnesses at the adjournment of trials. I am concerned that Clause 10 will cause difficulties for accused persons not legally represented who may not give a considered answer and subsequently find themselves in greater difficulty than appropriate, for few of these people are well versed in the law.

The measures on uncontroversial evidence seem to be helpful in speeding up trials. However, Clause 18 sounds unfair for it provides information to the jury that I, if a juror, would not wish to know. Meanwhile, Clause 22 seeks to protect the victim from the most pernicious line of questioning in the court system.

The changes proposed for the trial are significant to this debate. Clause 25 allows for the removal from the dock of an accused who is misbehaving. Perhaps this may be a reaction to the evidence which is being led against the accused. Without his or her presence and reactions, how will the jury be able to reach a satisfactory opinion? Clause 26 opens a potential can of worms. It seems to me that a situation may occur when the accused will never dare not to give evidence because there is a danger that the jury's mind will be predisposed against the concept of not giving evidence. Ultimately, the Crown must prove its own case.

After conviction, Clause 27 formalises the concept of sentence discounting. This may help to bring a speedier close to a trial in which the defence is faltering; but will that lead to circumstances where the accused, although innocent, will end up pleading guilty? In Clause 28 there seems to be a move towards a sentencing policy. Does that not put in jeopardy the independence of the bench? On the other hand, it would avoid vast differences in sentencing. An extreme and possibly ludicrous case I encountered 25 years ago was at Polmont Borstal. Three boys from relatively crime-free Stornoway were given Borstal training for the theft of paint—a charge that might not have come to court in Glasgow. The novel solution to that case of considerable disparity and of penal contamination, was that they were put in the care of a Gaelic-speaking officer and liberated as soon as permitted.

Clause 29 broadens the scope of supervised attendance orders, especially for 16 and 17 year-old fine defaulters. Given that this group is wrongly disqualified from benefit fines do seem inappropriate for unemployed teenagers. As long as the supervised attendance centres have a programme which will begin to meet the needs of the offender, that would be a good move. To do so, the centre's programme must include discussion groups about offending behaviour, the effect of crime on victims, the use of leisure, entry to the workplace and the resolution of personal and housing problems. The extension of supervised attendance orders to 100 hours is appropriate when set against this list of appropriate tasks for supervised attendance order clients.

Clauses 30 and 31 enhance the role of social work in the criminal justice system, but will the funding be there? Clause 33 brings treatment by a psychologist into the world of probation conditions. Clause 34 aims to stiffen the penalties for offences committed at community service locations. I recall two incidents at the Inverness community service depot. On the first occasion, a supply of paint was stolen and, on another occasion, a set of joinery tools was stolen—albeit that the latter was recovered.

In the proposals for appeals, there would be a reduction in judges' time if the single judge sift and quorum of two judges were implemented.

There is good news about the treatment of those accused who suffer mental disorder. They could now be dealt with by either hospital order, restriction order, guardianship, or supervision and treatment orders after an examination of the facts. I hope that the resources will be made available to allow those orders to be implemented.

Clause 49 tidies up the anomalous situation regarding detention before charges are preferred, so that the total period of detention will be restricted to six hours. That is quite long enough for young and inexperienced offenders.

The proposal in Clause 50 which permits all statutory offences to be tried in the district court raises the question of whether we would see cases being remitted to the sheriff court for higher penalties.

The unspecified extension of the range of fiscal fines has some merit although there is a question about whether the exemption of a fiscal fine from a person's schedule of previous convictions will be suitable in every case as the range of offences dealt with in that way widens.

An increased range of social work activities are being brought forward on to the statute book at Clause 54 and therefore into the framework of 100 per cent. funding by the Scottish Office. They include the provision of social background reports to children's hearings for 16 and 17 year-olds to the procurator fiscal and the Lord Advocate, as well as supervision of the mentally disordered on supervision and treatment orders, the supervision of 16 and 17 year-olds on a supervision requirement under Clause 44 (1) (a) and (b) from a children's hearing with appropriate funding, and diversion from prosecution schemes. In Motherwell and Aberdeen reparation and mediation schemes are currently being run by the Scottish Association for the Care and Resettlement of Offenders after pilot projects in Edinburgh and Glasgow, the funding of which unfortunately ran out.

Part II deals with the proposals to extend confiscation, forfeiture and the accompanying restraint orders. All deal with money laundering and other proceeds of crime. I do not propose to speak at length about that, except to make two points. My first point is that while there is a good moral case for the confiscation of the means of crime and the forfeiture of its proceeds, it will all depend on the diligence of the procurator fiscal, the co-operation of the accused and convicted, and the persistence of the administrator. I wonder whether the expanded profession of administrator may prove more expensive to the court system than the amount recovered.

My second point is that confiscation and forfeiture are by no means a new idea in Scotland. There is a fine, if costly, history to that. The commissioners for the forfeited estates played a significant part in Scottish history visiting, among others, the Earldom of Mar in 1716. After pushing the Union through the Scottish Parliament, former Principal Secretary Mar rebelled against it, a view not lacking in support today. Ah well, the prison social worker in me cannot resist trying to rehabilitate the sixth Earl!

I wish to mention on a personal basis two aspects of the criminal justice system which ought to be in the Bill but which are not, yet. First, I had hoped that there would be a mandatory requirement on all Scottish prison service establishments to make available to prisoners, on a voluntary basis, a course to enable them to discuss their offending behaviour and other post-release issues. I have always been surprised that until recently such a fundamental subject has been a virtual taboo in prisons.

Secondly, I wish to complain that there is very little in the Bill which addresses the needs of the victims of crime. Urgent attention is required to be given to victim issues. Ought it not to be the norm, for example, that compensation orders are made? Again, the procurator fiscal should make more effort to keep the victim in touch with how the case is going and with what will be required of him or her as a witness. For the victim, the trial will probably be a re-run of the original offence—and the defence may be as aggressive as the offender. Again, the provision of a victim counselling service at court would be helpful. I pay tribute to the work of the Scottish Association of Victim Support Schemes across Scotland—from Clackmannan to Stranraer to Caithness. I hope that the Minister will soon be able to announce the doubling of funding for victim support. Spending more in that area will give better value for money for victims, who are fundamental to the criminal justice system. It is significant that if you are an offender, you will be seen by paid professionals. If you are a victim, you will be helped by trained volunteers. Such is the imbalance.

To conclude, the Bill tinkers with the criminal justice system to improve it, but I regret that crime will remain at an unacceptable level. Does the engine of the criminal justice system require fine tuning or replacement?

4.26 p.m.

Baroness Carnegy of Lour

s: My Lords, I begin by congratulating the noble Earl, Lord Mar and Kellie, on his speech, which I believe was his first from his Front Bench. He is a comparative newcomer to this House and I am sure that we all admire the way in which he has deployed his professional expertise in his first speech from that position.

The Bill deals with issues that are right at the top of the agenda for the people of Scotland. As elsewhere in the United Kingdom, we Scots think a lot and care a lot about jobs, schooling, hospitals, community care and the economy; but I believe that it is a fair guess that higher even than those in priority comes concern at the present time for the safety of our homes, our children, our elderly relations, ourselves, our cars and our possessions generally. There is concern about the number of burglaries and violent crimes which we read and hear about daily and which we and our friends and acquaintances may, alas, have experienced personally. High on our agenda too is concern that far too many people suspected of crime seem not to be caught or seem, having been caught, to be allowed to escape. There is concern that too many people receive sentences that seem far too lenient.

I know very well from when I served on the Bench as an honorary sheriff in the 1970s and early 1980s the frustration which ordinary law-abiding people feel if a court imposes a sentence that looks inappropriately light, if they think that an accused person is too easily given the benefit of the doubt, or if a convicted person is able to keep his or her ill-gotten gains and in no way make restitution for the loss suffered by the victim. Those frustrations are, I believe, no less—and probably more—strongly felt nowadays than ever before. We all hear and see more and more via the media, and the current desire for the operation of our courts in Scotland to be strengthened is very great and cannot be ignored.

At the same time, it seems to me that we Scots are deeply conscious—at any rate, when we take time to reflect—that accused people must be dealt with fairly; that as regards serious crimes juries are the people who should decide guilt or innocence; and that sentencing should be clearly fair as well as firm.

I say to the noble Lord, Lord Macaulay—who at present is not in his place—that I do not believe that the electorate or its elected representatives in Scotland are bloodthirsty. I believe that people are only too well aware not just that the victims of crime might at some point be their own parent, grandparent or child but that one day the accused person might be a member of their own family: a son, a daughter or a grandchild.

For that reason, as well as the basic tolerance deep down in the Scots personality and culture, I believe that people appreciate the need for balance in the law; that if, for example, there is to be the strengthening of deterrence—the more effective catching and holding of suspects and arrangements that make it more difficult for the guilty to be found innocent—there must also be proper safeguards to ensure that unnecessary force is not used, that the innocent are not convicted and that miscarriages of justice can be rectified.

Likewise, when people are reminded that the taxpayer must pay most of the costs of the administration of justice—of ensuring that firmness and fairness, in fact, happen—they accept that those costs must be kept in control. They understand well the need to make the procedures work as smoothly as possible with as little waste of time as can be managed. Those who at some time have been called as witnesses or jurors probably know from experience how time is wasted and how there are repetitions, delays and adjournments. It is interesting to note that the Government's figures show that of the 350,000 witnesses who attend court in Scotland each year, no fewer than 280,000 give no evidence at all. They are told that it is all necessary in the cause of justice. However, many are a little mystified why such inefficiency must be part of the law.

The Bill addresses many of those anxieties. As my noble and learned friend told us, and as subsequent speakers have mentioned, the first five clauses deal with the law relating to bail. They limit the range of people who may be granted bail and make it possible to impose tighter conditions. They make it possible to impose more severe penalties for those who break the conditions or commit offences while on bail. They also make it possible for bail to be reviewed if new circumstances come to light which cast doubt on the original decision.

Part II contains proposals relating to confiscation. They enable the court to confiscate the proceeds of crime and they set out how the court will determine what the convicted person has in fact gained by his or her crime. Part II also makes it more difficult for people convicted to escape from forfeiting the property that they have used in crime. It allows the court to make suspended forfeiture orders and to search for and seize property which might in due course be the subject of such an order. All those measures meet the anxieties of the public.

Much of the Bill is devoted to measures that would speed up the workings of the court and would enable court officials, lawyers, judges and, indeed, police officers to use their time more effectively and cost-effectively as well as taking up less time for witnesses and jurors.

The Law Society of Scotland has been kind enough to write to me as it has to other noble Lords. It is happy about the majority of the Bill. It tells me that the Government have consulted the society and have taken many of its suggestions into the Bill. It does not agree, it tells me, with Clause 10, which deals with judicial examination, or with Clause 26. We shall be discussing the proposal relating to the so-called right to silence, which I understand is different from that in the legislation for England and Wales. The Law Society of Scotland is also concerned that resources may not be made available on the taxpayers' behalf to finance the new arrangements. It wonders whether the Government have costed carefully enough the balance between the likely savings and additional expenditure. Can my noble and learned friend comment on the statement in the Explanatory and Financial Memorandum to the Bill that the cumulative effect of the proposals should be broadly cost neutral?

The Bill proposes many changes which, while looking eminently sensible to the lay person, will clearly demand new ways of working and, I dare say, even some new skills for lawyers. Of course the House will need to look carefully and in detail at the workability of the measures, not least through lawyers' eyes. After all, the lawyers must get it all to work. I imagine that when we hear the speech of the noble and learned Lord, Lord McCluskey, we shall not be allowed to forget that. I believe that the noble and learned Lord won the Sword of Honour during his training as an Air Force officer. He has ever since been a doughty fighter and we look forward to hearing his speech.

I hope that during our detailed deliberations noble Lords will not become so concerned by the challenge that the Bill presents to lawyers that the needs and anxieties of the public will sometimes be put on the back burner. We must not allow that. This Bill is much needed and I commend it to the House.

4.38 p.m..

Lord McCluskey

My Lords, on Second Reading it is appropriate to discuss the principle of the Bill. However, Part I contains many disparate and unconnected reforms and it is difficult to find the principle. That is not a criticism of the Government; it is just the way it is. I am inclined to agree with the noble Earl's judgment that the Bill is tinkering with the system. I was most surprised to hear the noble and learned Lord the Minister describe it as resulting in the most substantial overhaul of the Scottish criminal justice system for 15 years.

There is a temptation to go straight to the detail because there is no one coherent principle. However, I shall resist doing so. First, I wish to comment on the process that has led to the production of the Bill. It culminated in the publication in June of the Government's White Paper, Firm and Fair. I was and I remain a serious critic of that process. The Government went about it in entirely the wrong way and that is one of the reasons why they obtained some bad results.

The Government published about half a dozen papers during a period of less than 12 months. They allowed a brief period of consultation—two or three months at most—some of which occurred during the court holiday periods. The people who wrote the papers, who thought up the proposals that were included in them and who decided what was to be left out were civil servants, working to the instructions of Ministers. In some cases I know that their knowledge and practical experience of criminal practice and procedure was very limited indeed. In the case of the Crown Office participants to that process, their experience was entirely one-sided. They had the perspective and prejudices of full-time career public prosecutors.

Let us contrast that with the process which led to the 1980s Bill. I see that the noble Lord, Lord Ewing, is in his place. In the 1970s, for a period as long as nine years, many distinguished experts sat and considered criminal justice reforms. In particular, the committee under Lord Thomson produced three reports. It had on it three High Court judges, a sheriff, public prosecutors, professors, doctors, policemen and lay people. Over that period, it produced a serious look at all the matters. It heard evidence from people listed in Appendix 1 to the report and that list extends to four whole pages of consultees. Some people gave oral as well as written evidence.

It then took a long time to produce its report which was based on all the perspectives of anyone inside, or even outside, the Scottish criminal justice system. Therefore, the legislation which followed was soundly based and commanded widespread support. I mention the noble Lord, Lord Ewing, because when we were members of the government, we sat together and went through the reports. We included in the Bill as many proposals as the legislation committee would permit.

When the government fell, the succeeding government took over that particular Bill, and in many ways, they improved it. They extended it and added the results of the new consultation processes which had come on-stream at that time. That reform commanded the respect of the whole of Scotland. This one is based on an entirely different process. Nobody knows where the ideas came from. Nobody knows why some of them are there and why others have not even been canvassed.

I want to say—and it is right that I should do so—that the consultation process, short though it was, produced a considerable amount of protest from people in Scotland, including myself, the Law Commission and a good many others, about the weakness of the process, the shallowness of some of the proposals and the unwisdom of some of the ideas being published by the Government. I wish to pay this tribute to Ministers—and I do so with the greatest sincerity—for listening to that consultation process in a way which, I must say, surprised me. But they certainly listened and the result is that the Bill is not nearly as bad as most of us had feared. I hope that they will continue to listen and I am sure that they will do so because we are all concerned to improve and streamline the system.

However, it is necessary to draw attention to one or two consequences of that particular process. The whole emphasis of the Bill is on what the White Paper calls "our fight against crime". That is what the White Paper is concerned about. I am certainly as anxious as the Government to fight against crime. The White Paper states that their highest priority is to protect the public from crime and from criminals.

Of course the public has the right to expect that kind of utterance from the Government. But the highest priority of the Scottish criminal justice system is to ensure that justice is done in and by our criminal courts. We, the judges, are not allies of the police or public prosecutor. We are not members of the same team. We and the criminal courts exist to ensure that those whom the police and the public prosecutor seek to prosecute will be dealt with justly and fairly and as speedily and inexpensively as possible.

The result of the process that I have described, with the main input coming from the prosecution, the Lord Advocate and the Solicitor-General, is that the balance of the Bill is entirely wrong. I detect only one measure which goes in favour of an accused person in a criminal trial. The whole thrust is to tip the scale against accused persons. That can be seen in the proposals with regard to bail, the increase in penalties, the limitations upon appeals, the reductions in legal aid, where it is hoped there is to be a saving in legal aid, the encroachment on the so-called right of silence and so on.

There is the proposal to reduce the right of peremptory challenge, the right of the defence to say, "We object to this juror" without having to show cause. The history of the matter is that until 1980, there were five peremptory challenges. The Thomson Committee considered the matter and suggested that we should reduce the jury to 12 and allow two challenges. The logic of that was that if you retained 15, you kept three challenges. In 1980 the Government came forward with a proposal to make it one challenge. In this House I introduced an amendment to make it three. The noble and learned Lord the Lord Advocate at that time—I think he is now the Lord Chancellor—marched his troops through the Lobby and the result was that the proposal was defeated.

The matter went to the other place and when it came back with the support of the Government, they had what was called a balanced compromise between those who held different points of view. It would be unwise to disturb that compromise now. The compromise was to have three peremptory challenges. What has changed today? Why are we being invited to abandon that balanced compromise which flowed from Thomson and which met with the somewhat muted approval of those who took part in the discussions at that time.

But an even more serious consequence of the somewhat incestuous way in which the proposals were conceived is that the procedural remedies which are to be introduced in Clauses 10, 11, especially 12, and 13 do not address real problems. Some delay and inconvenience is inevitable in a criminal justice system. It cannot be remedied. But in so far as it is possible to remove faults and improve matters, it is quite clear that the principal causes of delay and inefficiency in our system of bringing people to trial are to be found inside the prosecution system, the system over which the noble and learned Lord the Lord Advocate presides.

Again, I make it quite clear that that is not a criticism of him or those who act under him, including the fiscals and the Crown agents. I believe that they are heavily under-resourced. Many people support me in that belief. But the Bill does absolutely nothing at all to help them in that regard. As is pointed out in the financial part of the Explanatory Memorandum, the Bill is to be cost neutral. That is cloud-cuckoo-land. You cannot introduce extra bail duties for fiscals and advocates-depute, extra preparation for questioning at judicial examination, extra preparatory work for the fiscals to deal with the matters in Clauses 11, 12, 13 and 14, extra work at hearings in relation to insanity cases, extra responsibilities conferred in relation to confiscation under Part II and so on without increasing the resources available to the fiscal service. Those resources are already inadequate and I am afraid that the Bill is extremely weak in that regard.

There cannot be the slightest doubt that if you increase the number of penalties and the number of crimes but reduce access to bail, as this Bill does, the prison population is bound to rise. I believe that it costs about £20,000 per year to keep a person in prison. Perhaps the noble and learned Lord will correct me if that figure is wrong. Has that been taken into account? The only likely saving mentioned in the Explanatory Memorandum is on legal aid. That is very dangerous indeed.

I see that the noble and learned Lord the Lord Advocate is in his place. He will remember very well the case of Grainger because he acted for the unsuccessful party before the European Court of Human Rights. We got into trouble there because we had not allowed legal aid to a person in relation to an appeal and the Government had to pay compensation of, I think, £1,000.

I turn from what the Bill does contain to some matters that it does not contain. It does not contain certain potentially useful reforms. Mention has been made already —and I want to emphasise it—of dealing with the real miscarriage of justice cases which the present system cannot handle. We may not have had the same publicity in relation to those cases in Scotland but make no mistake about it, we have had such cases and, indeed, I believe that some may still exist.

What is significant is that within the past 10 days, the Government have set up a committee. Why have they waited until then? The Runciman Committee was appointed in the spring of 1991 and the problem was evident then. It reported in June 1993 and the answers were offered then and there has been a great deal of commentary in relation to them since that time. I should certainly like to know why it has taken until now for such a proposal to be put forward. It is a matter of urgency. If a person is languishing in prison suffering from a miscarriage of justice, nothing could be more urgent to him. We must not proceed about it in such a leisurely way as that which has been proposed.

I shall pass over a number of other matters that I should have liked to deal with because they may be suitably dealt with in Committee. However, there is one case that I should like to mention. I am sure that the noble and learned Lord the Lord Advocate will have a good deal of sympathy with this point. I have in mind the recent case of Eric John Rowan. He faced criminal charges in Scotland and was released on bail. Eventually, he failed to turn up for trial. One of the conditions of bail was that his passport should be confiscated. Shortly afterwards, he was arrested at Manchester Airport apparently trying to leave the country without a passport. He has since been detained on remand in England. The Scottish courts cannot bring him to trial because statutory provisions do not permit the release of a person held on remand in England to be tried in Scotland. The result is a nonsense.

We in Scotland are very proud of the fact that we have strict time limits on the prosecution of charges. Of course, such time limits affect Mr. Rowan. The Lord Justice General, writing the opinion of the court, said: In view of the difficulties which have arisen with the English prison authorities since the introduction of the 12 month time limit in Scotland by the 1980 Act, we believe that the time has come for the whole matter to be reconsidered by Parliament, with a view to the introduction of legislation to permit the transfer of prisoners on remand in such circumstances. In our opinion this is a reform which is now urgently needed". It is urgently needed and I should like to see it in the Bill. If we are faced with the problem that the English are not prepared to allow the UK legislation to be altered—and I believe that that may be a difficulty—then I believe another possible solution is to insert in the Bill a provision to enable the courts to extend the time limits on that specific ground. At least we will be able to do so without difficulty. The noble and learned Lord the Lord Advocate will no doubt be considering that particular matter.

I do not want to go into the bail provisions in any great detail. However, I doubt very much whether some of them are really necessary. For example, in Clause 3 your Lordships will find that certain persons who have been convicted of such crimes as murder, attempted murder, rape and so on, will not be allowed bail if they come before the courts. But who on earth would grant them bail? I sit as a bail judge once a week and I hear, perhaps, 30 or 40 cases each day that I sit. I should like to ask the noble and learned Lord the Lord Advocate whether there are any cases known to him within the past, let us say, three or five years when a person charged with murder, attempted murder, rape or attempted rape, and having a previous conviction for such a crime, has been released on bail? I should be astonished to discover that that has happened.

Clause 5 says that one cannot proceed with an appeal unless one has lodged the grounds of appeal. That is the practice of the courts at present. Indeed, it is the subject of a practice note which I have in my hand. I see that the noble and learned Lord is shaking his head. Nevertheless, it was issued by the Lord Justice General in March 1994. It is the practice and I, as a bail judge, observe it. In fact, the practice was first specified by Lord Wheatley, then Lord Justice-Clerk, in the case of Smith some years ago. I have the practice note with me in case there is any doubt about the matter.

Clauses 8 and 14 deal with a matter which is very close to my heart and, indeed, to that of the Minister. The noble and learned Lord will remember that I came forward in 1990 with proposals to require the prosecutor to serve on the accused person, along with the indictment, a list of separate facts which the accused person could then be invited to admit or deny. The Scottish Law Commission picked up the idea and wrote a very useful report on the matter of which the Minister and the noble and learned Lord the Lord Advocate will be aware. Indeed, in the 1990 debate, the Minister is noted as saying: The Scottish Law Commission is currently considering the responses to its consultation on Discussion Paper No. 77 on [these] matters".—[Official Report, 17/5/90; col. 429.] The commission produced a report and brought forward an excellent clause. The essential character of that clause was the same as the one that I advanced in 1990; namely, that the prosecution should, first of all, specify the matters that ought to be agreed or that might be made the subject of an agreement. The Bill distorts the whole thing entirely and lays the obligation upon both the prosecution and the defence. So, what price the right of silence if there is a statutory obligation to agree certain things? I do not really understand that at all.

Clauses 12 and 13 are said to tackle the question mentioned by the noble Baroness of people coming to court and finding that the case is not to be heard. It means going back to the system which was abolished following consideration by the Thomson Committee. We used to have two diets which were abolished in 1980 by a Bill introduced by the predecessors of those who now sit on the Front Bench. But here we are, for no particular reason, going back to that situation some 14 years later. I do not understand it.

In Committee I shall say that Clause 18 is a wholly misconceived clause. It enables the prosecution to put the previous convictions of accused persons before the jury, although the accused persons have not given evidence. I regard that as a terrible departure from the principle that ought to apply.

I can offer a little comfort to the Minister, as regards Clause 26—a clause much disliked by others. I actually support the provision. It relates to the comment by the prosecutor upon the failure of the accused to go into the witness box. Perhaps I may suggest to your Lordships the reason for my support. It is deeply patronising for judges and people like ourselves to imagine that, unless someone says to the jury, "Did you notice that he did not go into the witness box?", they will not have noticed. If a judge points out to them that an accused did not give evidence, one does not see members of the jury striking their heads and saying, "Jings, we didn't actually notice". It is deeply patronising to say that that cannot be commented upon. If the judge can comment upon it, as he can—though he should do so with restraint; and those restraints are fairly well known—I do not see any reason in the world why the prosecutor should not say, "Well, ladies and gentlemen, you have heard the evidence. His fingerprints were found all over the safe. His footprints were found on the carpet and his DNA sample matched that found on the broken window, but he did not offer an explanation". Members of the jury do not need to be told that. But, if the prosecutor wants to say it, let him go ahead and do so. I do not regard that as a serious invasion of some precious constitutional right. I believe that a good deal of nonsense has been talked about it by, among others, the noble Lord, Lord Macaulay of Bragar.

I am most doubtful about the proposal that judges should sit alone in order to consider criminal appeals. I have with me a document written by Justice. It was pointed out that there is such a system in England where a single judge scrutinises papers and decides, on the basis of the written papers, whether or not there will be an appeal. The document says that the single judge acts as the main filter for appellants—some research was carried out in that respect—and continues to say that there is a lack of any consistent practice in the way that applications appear to be considered. In one case as regards which Justice has the papers, a solicitor had in error sent two sets of appeal papers in the same case. Two single judge decisions followed: one granted leave to appeal and the other one refused it. Both decisions had been made at different times by the same judge. The first decision was favourable and a custodial sentence was reduced on appeal.

When one sits down at the end of a busy day and is handed a great heap of papers which one has to read before one has one's evening meal or whatever, one is bound to look through them fairly cursorily. Yet, if we refuse leave to appeal and the matter goes to the Appeal Court and leave is also refused there, legal aid is not granted. Therefore, the judges are being brought in to act as doorkeepers against further depredations of the legal aid fund.

There are many other matters which I should like to discuss, but I see that my time is nearly up. I repeat, I hope that the Government will do what they certainly did at the consultation stage; namely, listen and respond. I am anxious to help. I hope it is not immodest if I say that I have more experience of practice at all levels in the criminal courts in Scotland as a prosecutor, as a defence counsel, in the burgh court, in the district court, in the sheriff court and in the Appeal Court in all capacities than anyone else in this noble House. I share the Government's objectives in relation to speed, simplicity and comprehensibility in the criminal process. I hope the Government will study carefully the many amendments that I propose to put down and that they will be seen as genuine attempts to improve the Bill. That is what I propose to do and I look forward to the next stage.

5 p.m.

Lord Lyell

My Lords, the noble and learned Lord who has just regaled us with what I regard as an excellent speech—I am grateful to him for that—may care to wind his memory back 15 years when he carried out two other duties that he has not mentioned to your Lordships. First of all, from the Opposition Bench, when he "fine-toothcombed"—if I may put it that way—my efforts, together with my noble friend Lord Mansfield, to put through your Lordships' House the 1980 Criminal Justice (Scotland) Bill. The noble and learned Lord made one or two comments at the outset of his remarks which were fairly complimentary towards this particular measure; but 17 years ago the noble and learned Lord was on this side of the House and giving me instruction, and perhaps correction, over the patents Bill. Therefore the noble and learned Lord has even more practical experience than he has mentioned.

If I take the noble and learned Lord back 15 years, he may remember the 1980 Criminal Justice (Scotland) Bill on which his excellent and kind colleague Lord Ross of Marnock gave me and my noble friend Lord Mansfield a fairly harsh time—making the current Front Bench Opposite appear mere tabby cats—over the problem of attempting to calm the alcoholic hooligans at Scotland's football grounds. I was looking at this debate just yesterday, and there is column after column after column from Lord Ross of Mamock on how we would be acting oppressively and would remove the rights of individuals. The noble and learned Lord, Lord McCluskey, attempted to calm the flow from Lord Ross. But—surprise, surprise!—over the years when I have attended football games in Scotland—I am sure the noble Lords, Lord Ewing and Lord Carmichael, have attended football matches and the noble and learned Lord, Lord McCluskey, told me he attended such a game at the weekend—policemen and the police authorities have said that the 1980 Criminal Justice (Scotland) Act has achieved exactly what it was intended to achieve with minimal disturbance.

I am going back 15 years but I am delighted that the noble and learned Lord, Lord McCluskey, will be able to give us the benefit of his advice and his practical experience over the remaining stages of the Bill. It seems to me that this Bill is in the nature of a consolidating Bill and tries to encapsulate several reports and thoughts of the Law Commission and the legal fraternity in Scotland. I have three points to which I hope my noble and learned friend can respond either tonight or later in writing.

My first point concerns Clause 16 and forensic scientists. I was interested to note in subsection (4) that a forensic scientist is authorised to do certain things and, in subsection (4) (b) (i), "is a constable". I am interested to note that it appears that members of the police force are sufficiently qualified in this rather complicated science to be forensic scientists for the purpose of major criminal investigations. I hope my noble and learned friend can give me some advice as regards the qualifications that are required under Clause 16(4) (b) (i). To what level do these individuals require to be qualified, and where do they carry out their work? How many individuals are we thinking of—a handful, 50 or even 100?

Secondly, I studied Clause 20 which concerns video recordings. At first sight I thought this was dealing with video recordings of suspects being questioned; but on closer examination, I found that my fears were virtually allayed although I hope my noble and learned friend will give me clarification that the evidence which is available on the video recordings is adequate for the purposes of proof in the criminal courts.

Thirdly, Clause 26 concerns what we call the right to silence. I am afraid that I have not been able to understand the entire output of the 1975 Act; but I understand that that Act of 1975—let alone Clause 26—follows on from what I believe was known as the Thomson Report. That is the advice that I have been given. I recall the furore and high emotion that was aroused both here and elsewhere and all around the United Kingdom over the right to silence perhaps seven, eight or nine years ago when we were discussing a so-called right to silence with regard to serious offences which were connected with the prevention of terrorism and other aspects of the law both here and elsewhere in the United Kingdom. I have been considerably reassured on that matter by what my noble and learned friend had to say. I was interested, too, in what the noble Lord, Lord Macaulay, said. The noble and learned Lord, Lord McCluskey, spelt out in about two minutes flat what I believe and hope to be the case. Certainly the noble and learned Lord, Lord McCluskey, has reassured me on this point, and I should be grateful if my noble and learned friend the Minister could reassure me further. If the matter is complicated, perhaps he can write to me but I shall certainly listen carefully to what he has to say when he replies to the debate this evening.

Finally, I congratulate my noble and learned friend and the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Macaulay, who is not in his place, who are all practitioners of what I believe to be the best legal system in the world. I believe that this Bill, with any imperfections that we or Members in another place will attempt to iron out, will make a useful step in the progress of that legal system. I have had experience of the office of my noble and learned friend, and it is ready to give Members of your Lordships' House or of another place the opportunity to have a simple Bill—I believe the sinister words here are, "if government time allows"—with government support but the work has to be done by Back-Benchers. I believe the law can be tidied up. My time is up as regards this Bill and I look forward to hearing what my noble and learned friend has to say.

5.7 p.m.

Lord Carmichael of Kelvingrove

My Lords, this Bill is highly technical. I have listened to the speeches of the noble and learned Lord, Lord Fraser of Carmyllie, and my noble friend Lord Macaulay of Bragar, and of the noble and learned Lord, Lord McCluskey. I am not sure whether there is another title for a High Court judge other than noble and learned. As a layman, I am sure the House will realise the difficulty I experience in trying to reply to a debate such as this. However, I am sure that we will have an interesting Committee stage in which my education as regards the law will progress further.

There are one or two points in the Bill I wish to deal with. My only connection with some of the matters we are discussing is that I was for a number of years the honorary chairman of SACRO in Scotland. I have no doubt that the noble and learned Lord the Lord Advocate will have received briefs from SACRO, as I have, and will have considered a suitable response. One of the matters that has been referred to in a number of the contributions to this debate is that of resources. It is said that the costs will be roughly balanced. I wonder whether we can look forward to a time when resources will cover the costs of the courts, and of the prosecution—almost certainly the costs of the prosecution will increase under the terms of this Bill—and of the prisons and the expenses of social work departments. I am informed by others—I am fairly convinced of this myself—that the costs of these provisions will almost certainly increase because of the effects of the Bill. I should say the good effects of the Bill as I am not criticising it in that regard. I am just saying that I doubt whether we shall obtain the system of justice on the cheap that we hope the Bill will give us. I believe, and others have expressed the view, that the financial effects of the Bill will certainly not be broadly cost neutral. I hope that in replying the Minister will deal with that point.

Some of the points that I should like to raise have already been mentioned. However, I have been involved in the issues in my earlier role with SACRO. One of those questions is the handling of miscarriages of justice, a matter which was dealt with very well by the noble and learned Lord, Lord McCluskey. The disturbing feature of the issue of miscarriages of justice is that the stage has almost been reached when people believe there has been a miscarriage of justice; there has been so much publicity of cases in England that if someone puts up a reasonable case, the general public—and sometimes the press and media—believe that there may be something in it. Therefore, there must be a clear examination to debunk any supposed miscarriage of justice. That must be transparent. That is an important point for the future and for the sake of justice in Scotland.

SACRO was also concerned about bail. None of the issues relating to bail was raised during the consultation process. Some of the measures appear to have been brought in almost as a "get tough" policy towards offenders, an afterthought in response to a perception that those on bail do not take the conditions of bail seriously. While I was involved with SACRO, Lothian Region in partnership with SACRO, introduced a pilot project, with funding from the Scottish Office, offering bail information, supervision and accommodation to those on bail. That worked rather well. The project was aimed at reducing the number of remands into custody. It demonstrates that that approach is effective. So far as I know, the project is continuing. In the view of those involved with the scheme it would be preferable to increase the funding for such projects rather than to encourage more remands into custody when that has already proved to have disastrous consequences for young people, and particularly the vulnerable young people. No one would doubt that there is a group of young people for whom custody for a period and in certain conditions may be appropriate; but in the case of many young people it would almost certainly be better to have well supervised bail, which of course involves some cost.

Breaching bail is already deemed an offence in Scotland in its own right. That is harsher than the situation in England. Clause 2 represents a further harshening which is not in keeping with the present practice of extending bail on a presumption of innocence.

We have a large number of points to raise in Committee. I am sure that the Minister will appreciate that, and he will want a good debate on the Bill before it goes to another place.

Catching the eye of the noble Lord, Lord Lyell, perhaps I may respond to his comments about football. I should like to correct him. I believe that the measure that he mentioned resulted from the report of the late Frank McElhone. It was a very progressive move. As a regular football supporter, I deplore the amount of drink which is consumed outside the ground. It is quite appalling. I was going to say that it is almost like this noble House on a busy night, such as during the Maastricht debate. People stand outside the doors before going in. The situation is very bad in places like Maryhill Road, Parkhead and Ibrox when there is a big football match. The amount of drinking is excessive. But there is none in the ground. That is very important, quite apart from the fact that there are no cans or bottles to throw. In addition, perhaps by the time people go into the ground some of the effect of the drink has worn off. However, there is still far too much drinking in Scotland. I do not know whether the noble Lord would like to intervene at this point, but I felt that I had to put the record straight in case the noble Lord, Lord Lyell, had put the wrong slant on the matter.

In SACRO we also introduced mediation schemes under which the accused discusses with the victim the consequences of his actions. In the case of violence, particularly violence on the spur of the moment, it may be possible to make the person who had committed an offence rethink and have some contrition if he faces the person who was the victim of his violence. I do not believe that anyone is beyond some form of redemption and I believe that the scheme may be of some help.

There is another debate here this evening on a rather different subject—the United Kingdom motor coach industry. It could hardly be further from the very serious subject that we are discussing now. With those words and the promise of a very good Committee stage, I should like to hear the reply of the noble and learned Lord, Lord Fraser of Carmyllie.

5.16 p.m.

Lord Fraser of Carmyllie

My Lords, instead of immediately thanking all those who have contributed to the debate, perhaps I may record with some regret that, unfortunately, a Member of your Lordships' House, Lord Selkirk, who over many years regularly contributed to debates on criminal justice in Scotland died last week. His contributions will be greatly missed. Those of us who are members of the Faculty of Advocates were proud that, with his distinguished political record, he was also a member of the faculty.

I thank all those who have contributed to the Second Reading debate. The Bill was characterised by a number of your Lordships as being a tinkering with the system. The Bill is the result of extensive consultation. I certainly reject the idea that in any sense we did not recognise that what is at issue here is justice. In the foreword to our paper Firm and Fair we say: Scotland is well served by its distinctive system of criminal justice. An independent prosecution service acting in the public interest and a judiciary of absolute integrity are among its, particular strengths". I would be the last person in your Lordships' House to suggest to the noble and learned Lord, Lord McCluskey, that in any respect his intellectual capacity is failing. However, it seems to me, with respect, that he is coming to an age when his memory is becoming somewhat golden. If he genuinely believes that the 1979 Bill, and in its later form the 1980 Bill, commanded the universal respect of all Scotland, that does not square with my memory of it, although as time has gone by some of the features which were opposed at that time are now accepted as being important parts of our system.

This is not a tinkering with the system. We looked long and hard at all of the issues and where we might improve them. Certainly we did not try to address such fundamental issues, even if we wanted to, of whether we should move from our current adversarial system to an inquisitorial one. I would vigorously resist that, particularly at a time when so many countries in Europe are looking this way across the Channel to see whether they might move more towards our adversarial systems rather than remain with their own inquisitorial systems.

I accept that, if there is one big idea which is not contained within the Bill, it is in relation to the proposal that there should be a fresh view, possibly including the establishment of a tribunal, in relation to miscarriages of justice. As the Bill progresses through its later stages there may be those who will wish to return to that matter. We recognise the interest in it. We also recognise the great complexity of the issue. It is for that reason that the committee under the distinguished chairmanship of Professor Sutherland has been established. Perhaps I may say this to the noble Lord, Lord Macaulay. It would seem to me that its membership is not without distinction, including within it the Lord Justice-Clerk, and Sheriff Gerald Gordon, who will be well known to anyone with an interest in the criminal system, along with many other distinguished lawyers and others who have a knowledge of our system.

I make no apologies for returning to a number of matters in procedure which existed previously. Our experience has been that by focusing carefully on intermediate diets in the sheriff courts remarkable progress has been made in reducing the number of witnesses unnecessarily called to our courts and the number of trials unnecessarily adjourned or sometimes cancelled. Already we have achieved significant success. I believe that the provisions in the Bill will make those experiments even more successful.

It is not a matter simply of saving the fiscal's time or the court's time. Among the correspondence that I receive are letters from members of the public who have been cited as witnesses. They find that they have repeatedly to come to court and are then sent away without explanation. They have to return weeks later and then find that a plea of guilty is tendered, so even in those circumstances they are not required. What is alarming is their conclusion: that should they be witness to another criminal activity they would turn a blind eye to it. At the centre of the Bill is a serious purpose: it is to avoid just such a problem. As my noble friend Lady Carnegy pointed out, huge numbers of people are called to the courts as witnesses every year. We hope to reduce the number substantially.

I am grateful to my noble friend and to others in the House who have given a welcome to the provisions in the Bill. It contains a wide variety of different issues. Sometimes the support came, if I may say so, from unexpected quarters with unexpected vigour. I am grateful to the noble and learned Lord, Lord McCluskey, for his trenchant and brief explanation of the desirability of Clause 26. I hope that it will be understood far more clearly in Scotland what a modest proposal it is and where it fits into the existing common law.

At another point the noble and learned Lord complained that the balance of the Bill was entirely wrong; that it had all been inspired by Crown Agents, the Crown Office or the Law Officers. I cannot accept that. I believe that there were matters on which we wished to achieve a rather better balance. If I recollect the matter accurately, he singled out the change which we proposed on the peremptory challenge of jurors. His narrative of what took place in the 1980 legislation was entirely correct. Since then a similar abolition was proposed and indeed enacted in England. A number of anxieties were expressed at the time. However, my understanding of the situation south of the Border is that, notwithstanding that abolition, the threatened problems have not arisen.

There was general complaint that there was risk of some under-resourcing of both the fiscal service and the criminal justice system more generally. I come back to this point. I am concerned that our criminal justice system should work efficiently and effectively, and that no one—be they court staff, sheriffs, procurators fiscal or whatever—should have time wasted and public money wasted if it can be properly avoided, and that might best be done in relation to our provisions on routine evidence, certificated evidence, agreed evidence and intermediate diets.

There will be expenditure, and provision is allowed for it in the Bill. We should like to extend some of the arrangements and go further with 100 per cent. funding if the arrangements prove successful in relation to supervised attendance orders and the like. I have no doubt that noble Lords, including the noble Earl, Lord Mar and Kellie, will warmly approve of the arrangements that we have already made and of the way in which we wish to extend them.

I hope that our proposal that those who have had a fine imposed and do not pay it should have the matter resolved by the requirement that they are subjected to a supervised attendance order rather than be sent to prison will be more specifically welcomed. Anyone who has contact with the prison service in Scotland will realise the enormous waste of resources involved with the huge number of receptions required. Such a situation achieves absolutely nothing. People are sometimes in prison for only a matter of hours before their fine is paid but huge burdens are imposed on the service.

A number of detailed questions were asked. It would be difficult for me to attempt to answer them all. I shall take up the offer extended to me by my noble friend Lord Lyell to write to him on the issue of the' qualifications of forensic scientists. As he will appreciate, forensic scientists carry out a wide range of functions. He also asked me about the video-taping of police interviews. A pilot scheme in Lothian and the Borders has just been completed and we are looking to see what experience might be gained from that scheme to take the matter forward.

I am grateful for the welcome for many of the detailed provisions which have been introduced in the Bill. From the speeches that have been made, I am encouraged that the House will enjoy positive and constructive Committee and Report stages. I hope that sufficient has been said in the Second Reading debate to set out for all those not only in your Lordships' House but in Scotland who wish to know what the Bill contains. I hope that they derive that information from our deliberations this evening. I look forward to the later stages of the Bill. I commend it to the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.