Lords Sitting of 6 February 1995

Preamble
The House met at half-past two of the clock: The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of St. Albans.

EC Cohesion Fund: Allocations
Lord Bruce of Donington Lord Bruce of Donington asked Her Majesty's Government:
Whether, on giving consideration to the European Commission's budget for 1993 and 1994, they approved at Council of Ministers level the allocations out of the Cohesion Fund set out in their Written Answer of 18th January (H.L. Deb., col. WA 39) to the Question put by Lord Bruce of Donington.
The Minister of State, Department of Trade and Industry (Earl Ferrers): My Lords, the distribution of the Cohesion Fund between the four beneficiary states is settled by the Commission within ranges which were agreed by the Edinburgh European Council in 1992 and which were unanimously confirmed by the Council of Ministers.
The Cohesion Fund is included in the European Community budget, which is also approved by the Council of Ministers.
Lord Bruce of Donington: My Lords, I am most grateful to the noble Earl for that reply. I am sure that he will confirm to the House that the Cohesion Fund was established by Regulation 792 of 1993 and Regulation 1164 of May 1964. However, in view of the fact that our contribution to those funds for the past three years has totalled some £235 million, and in view of the Court of Auditors' comments on the administration of the fund contained in its recent report, do the Government agree that they should now
2
reconsider the whole question of allocation and the purpose to which the funds are put rather than acquiesce in their continuance for the political purposes of the Commission?
Earl Ferrers: My Lords, the noble Lord, Lord Bruce of Donington, is a bit hard on the Government in that regard. He asks the Government to reconsider, but they cannot reconsider. The matter was considered at the Edinburgh Council of Ministers and agreed. It was agreed that the United Kingdom should pay 15 per cent. of the fund unless there was an abatement. We received a two-thirds abatement under the Fontainebleau Agreement. Therefore, we pay only 5 per cent. of the total contribution that was agreed at Edinburgh. It was agreed by the Council of Ministers and we think it right that that should continue.
The Earl of Halsbury: My Lords, will the noble Earl come to my rescue and tell me what it is that "coheres"?
Earl Ferrers: My Lords, the Cohesion Fund was set up for two purposes: first, for transport infrastructure, which covers roads, railways, ports and airports; and, secondly, for environmental projects relating to sewage treatment works, urban waste treatment and drinking water supplies. Its aim is to enable the social structures of the less well-developed countries to reach the level of others. In that way, we "cohese" together as a Community.
Lord Ezra: My Lords, does not the noble Earl agree that in view of the fact that the fund is being used to develop transport and environmental projects in countries which could not otherwise finance them, that should be regarded as advantageous to the single market as a whole and, therefore, beneficial to all members?
Earl Ferrers: My Lords, the noble Lord, Lord Ezra, is quite right. The purpose of the fund is that all countries within the Community reach a reasonable level of social advancement.
Lord Morris: My Lords, in answer to the supplementary question asked by the noble Lord, Lord

3
Bruce of Donington, my noble friend answered as to the principle of the fund, but the noble Lord was asking about its allocation. Will my noble friend answer that point?
Earl Ferrers: My Lords, I thought that I had answered that question. I said that the allocation had been agreed at Edinburgh and subsequently by the Council of Ministers.
Lord Stoddart of Swindon: My Lords, will the noble Earl help me? It is difficult to understand what the Cohesion Fund is and what it will mean. First, does it mean that those countries which are now net beneficiaries from the European budget will receive even more money after the Cohesion Fund is operating? For example, in 1993–94, the Irish received £1,500 million from the European budget. That is equivalent to £35 per week for every family in that country. Will the Irish now receive even more?
Earl Ferrers: My Lords, I shall do my best to help the noble Lord, Lord Stoddart. The purpose of the Cohesion Fund is for the economic and social cohesion of the Community, and that is a Community objective. The Cohesion Fund makes provision for those countries whose GNP is less than 90 per cent. of the European average GNP. Those four countries are Spain where it is 75 per cent., Greece, 48 per cent., Portugal, 60 per cent., and the Republic of Ireland, 80 per cent. We are at the European average of 100 per cent. Therefore, all those countries which are below the European average have access to the Cohesion Fund.
Lord Peyton of Yeovil: My Lords, does my noble friend agree that, while not every proposal coming from Brussels is without blemish, nevertheless the constant nagging at everything that is done by the European Commission diminishes rather than increases our influence? Would it not be sensible if, from time to time, a little enthusiasm were to appear for an organisation to which we belong and from which we derive quite a lot of benefit?
Earl Ferrers: My Lords, if I may say so, my noble friend Lord Peyton has made an extremely important suggestion. I believe that we should all realise that we are part of the Community, which we all want to see succeed. It is a pity when some noble Lords—and, indeed, I can think of one in particular—table Questions complaining about what the European Community has done. The Community has actually done very well in this respect.
Lord Haskel: My Lords, does the noble Earl agree that we are all indebted to my noble friend Lord Bruce of Donington because, thanks to his Question, we have all learned that the Cohesion Fund is designed to even out the imbalances in the economies of various members of the European Community? In view of the conflicting statements from various Members of the Cabinet during the past few days, can the Minister say whether the Government are to take steps to seek abolition of the fund, or veto the UK's contribution towards it?
4
Alternatively, will they just let the money be paid as it is a contribution in smoothing the path towards a single currency?
Earl Ferrers: My Lords, I am grateful to the noble Lord, Lord Haskel, for so clearly explaining the advantages of the Question tabled by the noble Lord, Lord Bruce of Donington. He did so in a way that I was unable to do. Of course, as always, we are indebted to the noble Lord, Lord Bruce of Donington. However, the noble Lord's second supplementary was quite absurd, as I am sure he knows perfectly well. The European Community is a matter over which all sorts of people have many different concerns. It is quite right that such concerns should be expressed as, indeed, does the noble Lord, Lord Bruce of Donington.
Lord Wyatt of Weeford: My Lords, does the noble Earl agree that it is quite intolerable that the European Court of Human Rights continually overturns our laws? Is there some way of opting out of that damnable institution?
Earl Ferrers: My Lords, the noble Lord, Lord Wyatt, has expressed another forthright view. However, it has nothing to do with the Question on the Order Paper.
Lord Pearson of Rannoch: My Lords, will my noble friend be good enough to confirm briefly to the House that it is in fact the view of my right honourable friend Sir Leon Brittan that the cohesion funds, which many of us regard as being extremely wasteful, were in fact only dreamt up as a cushion against the hardships of monetary union with the so-called, "four poor countries"?
Earl Ferrers: My Lords, there are many different backgrounds to all sorts of decisions. However, the fact is that the heads of member states got together in Edinburgh and came to an agreement. That agreement was approved by the Council of Ministers and, therefore, it is part of the European Community's efforts and now forms part of our contribution towards that.

South Thames TEC
2.47 p.m.
Baroness Turner of Camden Baroness Turner of Camden asked Her Majesty's Government:
What steps they will take to ensure that other training and enterprise councils (TECs) do not encounter difficulties similar to those experienced by the South Thames TEC now being wound up; and what will take the place of that TEC if it ceases to exist.
Lord Inglewood: My Lords, the problems at South Thames TEC are atypical and stem from poor management accounting and inadequate internal financial controls. Sound commercial management, together with the existing contractual requirements on training and enterprise councils provide a proper framework for TECs to operate within. There is, therefore, no need to change the organisation of TECs.

5
My honourable friend, the Parliamentary Under-Secretary of State for Employment, James Paice, has invited two of the neighbouring TECs to take on between them responsibility for the provision of services in the current South Thames TEC area for 1995–96. He has invited CENTEC (the Central London TEC) to put proposals to him on how it would provide the full range of TEC responsibilities in the boroughs of Lambeth and Southwark and SOLOTEC (the South London TEC) in Greenwich and Lewisham.
Baroness Turner of Camden: My Lords, I thank the Minister for his response. However, is the noble Lord aware that there has been considerable criticism by former leading staff of the TEC: that one of the reasons for the problems that have arisen has been the Government's insistence that state-sponsored training for jobless people should be less about quality provision and more about getting people off the register of the long-term unemployed? Is the noble Lord also aware that difficulties arose regarding seconded civil servants who were able to provide a great deal of expertise? For example, once they were removed when their secondment had come to an end, there was difficulty in replacing the expertise that had disappeared.
Lord Inglewood: My Lords, as I explained in my Answer, the problems that have afflicted South Thames TEC are to do with financial management and cost control. It seems to us that the criticisms of which we are aware and to which the noble Baroness, Lady Turner, alluded have no direct bearing on the matter in hand.
Lord Avebury: My Lords, is the Minister aware of the particular difficulties which face the Windmill Project in Clapham as a result of the demise of the TEC? That project had taken on a training worker on contract who was funded 75 per cent. by the Home Secretary and 25 per cent. by the TEC. When the money ceased to come in in November, the Windmill Project (which is a small charity) had, nevertheless, to continue the payments which it was obliged to make under contract. Will one of the two other TECs to which the noble Lord referred in his reply assume that obligation?
Lord Inglewood: My Lords, I thank the noble Lord, Lord Avebury, for his question. I do not know the details of the Windmill Project to which he refers. Therefore I hope that I shall be forgiven for answering in more general terms. For payments which are due in respect of claims after 7th November, the Government have issued a letter of comfort to ensure that the bills will be honoured. The question of outstanding moneys relates exclusively to the period before 7th November. As regards the longer term, for the immediate future the activities are being managed by the receiver. As I explained in the first reply that I gave, for the period 1995–96 it is anticipated that the responsibilities of the South Thames TEC will be divided as I outlined.
Lord Gladwin of Clee: My Lords, while appreciating the answer given by the Minister as regards the reasons for splitting the South Thames TEC in half, does he agree that what is really required
6
now is a strategic look at London's needs? It is not satisfactory to split this difficult area of London into two and to ask the neighbouring TECs to do the work. We need something more than that. Will the Minister help?
Lord Inglewood: My Lords, as regards the longer term, my right honourable friend the Secretary of State has announced that he will conduct an investigation into the future of the TECs throughout the London area. He is proposing to start by discussing the matter with the chairmen of all the TECs concerned to see whether the best solution is the one that is currently in place. I am sure that noble Lords on all sides of the House will agree that it is important that we deal with this in the most satisfactory manner from the point of view of all those concerned.
Baroness Seear: My Lords, will the noble Lord accept that we are glad to hear that there will be an inquiry by the Secretary of State into the TECs in London because there is a great deal of anxiety on the part of those who depend on them for training programmes? I declare an interest because the Apex Trust, of which I am chairman, has such interests. When this inquiry is undertaken, will the Minister ask his right honourable friend the Secretary of State to take into account the problem of people with special needs? The whole trend in TEC financing has been such that the money goes where there is success in getting jobs or qualifications. This leaves people with special needs very much out in the cold. Yet it is those people who, more than others, need training if they are to get back into employment. They are the people who tend to cause a great deal of both economic and social difficulty.
Lord Inglewood: My Lords, I shall be pleased to pass on the comments of the noble Baroness to the Secretary of State.
Lord McCarthy: My Lords, will the Minister tell us how he can say in advance of the inquiry he announces that what went on in this TEC was atypical? Surely many other TECs might be running out of money and out of control. How can he tell us in advance that nothing like that situation will be found?
Lord Inglewood: My Lords, as regards the noble Lord's question, it is important to be clear that the inquiry to which I referred is concerned with determining the way in which the allocation of responsibilities of TECs is conducted across London. As regards the particular problems of the TEC we are discussing, in the contract that is in place between the TECs and the department there is a stipulation about the manner in which the internal financial controls are carried out. Way back in December 1993 South Thames TEC was identified as being the only TEC in the country that was high risk in this regard. In answer to the noble Lord's question, I would say that it is possible to identify that this was an atypical circumstance for the reasons I have given.

Local Authorities: Audit Commission Report
2.54 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
What action they are taking in the light of the Audit Commission's finding that inefficiencies among local authorities cost up to £1 billion a year of taxpayers' money.
The Minister of State, Department of the Environment (Viscount Ullswater): My Lords, the Government very much welcome these reports which set out clearly what could be achieved if all local authorities were to perform as well as the best. It is now for each individual authority to consider these reports and to see what value for money improvements they can make.
Lord Boyd-Carpenter: My Lords, does my noble friend's Answer mean that the Government as such are doing nothing about this?
Viscount Ullswater: No, my Lords. Indeed my right honourable friend the Secretary of State has already had preliminary discussions with local government leaders about the report and plans to have fuller talks with them and also with the Audit Commission next month. I should point out that the Audit Commission report is not a government report.
Lord Dean of Beswick: My Lords, the noble Lord, Lord Boyd-Carpenter, in his supplementary question asked whether the noble Viscount's answer meant that the Government were doing nothing about this. If they are not doing anything about it, the Government—the Minister must understand this—are only doing what they did when Questions were put in this Chamber regarding the Wessex Regional Health Authority, the West Midlands Health Authority and the development corporation for Wales. Nothing was done then either. Is the Minister aware that it is time that the three instances I have mentioned were dealt with by the Government, just like the matter we are discussing now?
Viscount Ullswater: My Lords, reverting more to the Question on the Order Paper, the studies make recommendations for good practice and the commission will usually seek to disseminate this through guidance to district auditors or sometimes in publications aimed at a wider audience. As part of the follow up, the auditors will usually be asked to pay particular attention to its findings during the course of the following year's audit. Therefore there is a route that the commission takes as regards local authorities. It expects the district auditor to pay attention to the recommendations.
Lord Cledwyn of Penrhos: My Lords, what precisely does the Audit Commission mean by "inefficiency"?
Viscount Ullswater: My Lords, the main findings of this report indicated that, although total local authority staff numbers have fallen between 1987 and 1993, non-manual staff numbers rose by 90,000, with numbers in senior posts rising by some 60 per cent. Significant
8
pay bill savings therefore are available from improved productivity and from the better management of pay. Those are the commission's findings, not the Government's.
Lord Stoddart of Swindon: My Lords, does not the noble Viscount agree that when one removes powers from an organisation and makes it responsible for only 20 per cent. of money raising powers, it is inevitable that it will be less responsible than if it had those powers? Is not the answer to give local authorities more power and make them responsible for raising a greater proportion of the money they spend?
Viscount Ullswater: My Lords, central Government do not control local government pay and conditions of service. That is the basis of this report. I believe that this report indicates that if all local authorities managed their pay as well as the best there would be room for savings.
Baroness Farrington of Ribbleton: My Lords, will the Minister confirm that the Audit Commission report did not refer to inefficiencies costing £1 billion but to increased expenditure on management? Will the Minister also confirm that an arbitrary figure of £18,000 a year salary was used and that this figure includes large numbers of local government staff who are not managers but deliverers of services, such as environmental health officers, chief librarians and others?
Viscount Ullswater: My Lords, the Audit Commission directed its attention to the question of management, staff and pay. I believe that that needs to be taken into account when looking at the matters in hand because it is up to each local authority to decide on its individual circumstances. I believe that they have not addressed the question of the management of pay as well as they could.
Lord Williams of Elvel: My Lords, following on the question of my noble friend Lord Cledwyn on the definition of inefficiency, would the Minister classify the failure of Westminster City Council to collect some £30 million for repairs from its leaseholders as inefficiency or culpable negligence?
Viscount Ullswater: My Lords, I shall not comment because that is a matter for the district auditor.

Plutonium Smuggling
2.59 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether, consequential to the seizure of 350 grammes of plutonium by the German police in August 1994, they will support the creation of an international agency to collect, store, manage and safeguard the world's surplus of plutonium and whether they will send a representative to the seminar on plutonium smuggling to be held in the House of Commons on 14th February.
Lord Inglewood: My Lords, incidents of smuggling involving nuclear materials are of course a matter of great concern. We believe that the priority must be to

9
help to improve the practical implementation of nuclear materials accountancy and physical security in those countries from which the material may be coming. We have been working in a number of international fora to achieve that. We believe that that approach is more likely to succeed than starting negotiations on a new agency. Foreign Office officials will attend the seminar on 14th February.
Lord Jenkins of Putney: My Lords, I am glad to hear the last part of the noble Lord's Answer. In the meantime, can he say whether the Government have considered or will consider the possibility of resourcing and financing sufficiently the International Atomic Energy Agency so that it may be able to fulfil that additional function which I believe we all agree is of extreme importance and urgency?
Lord Inglewood: My Lords, as the noble Lord, Lord Jenkins of Putney, said, this is a matter of great concern. However, we believe that it is important that we address it in a manner which will reap rewards. As I hope I made clear in my earlier Answer, we are not satisfied that the right way to deal with this particular problem is to set up a new agency. We believe that the right way to approach it is along the present lines, using the system of safeguards devised by the IAEA.
Baroness Blackstone: My Lords, does the Minister's Answer to my noble friend's earlier Question mean that the Government are now in favour of greater transparency about the level of plutonium stocks held in various countries, including their own? If that is the case, can the Minister tell the House what steps are being taken to pursue that goal of greater transparency?
Lord Inglewood: My Lords, as the noble Baroness may know, the UK is chairing a group in the wings of the IAEA in Vienna of plutonium-producing nations with a view to endeavouring to establish whether greater transparency can be introduced. As yet, we have not managed to achieve any agreement or consensus.
Lord Jenkins of Putney: My Lords, perhaps the noble Lord did not register the fact that we are agreed that the existing body provides one means of tackling the problem. We are at least agreed on that point. However, does he further agree that in order to tackle the problem, the agency will have to be more satisfactorily financed and resourced? Does he support that view?
Lord Inglewood: My Lords, it is essential that the agency is satisfactorily financed and resourced. Obviously, the extent of the resources required depends on what the agency is to do.

Allegations against Lords
3.2 p.m.
Lord Marsh: My Lords, under the Standing Orders as I understand them, perhaps I may ask a question of the Leader of the House for guidance.
10
There seems to have been a leakage of a paper from one of the Members of this House regarding what is alleged to be improper behaviour on the part of a number of Members of this House. That information has apparently been obtained from someone who I understand the noble Lord is unable to name because he is paid by that person. Apparently, the alleged informant knows of some other chaps who know of other people who are also engaged in encouraging people to behave improperly. Is it possible for the noble Viscount the Leader of the House to give the noble Lord concerned the opportunity to cast light on these matters or to apologise?
The Lord Privy Seal (Viscount Cranborne): My Lords, knowing the jealousy with which all Members of your Lordships' House rightly guard the reputation of this House, I am sure that the noble Lord, Lord Marsh, will agree with me that if allegations of so serious a nature are to be made about this House, whether by a Member of your Lordships' House or by anybody outside it, it is at least responsible for those making the allegations to be able to substantiate them.
I am sure that the noble Lord who has apparently made those allegations—whose nature I have myself only gathered from reading the press—will he in a position to substantiate them. Otherwise, we shall find ourselves in the difficult position of being blackguarded without any evidence to substantiate the blackguard, particularly in view of what the press calls the current climate.
I hope that, if there is any evidence whatsoever to substantiate the accusations that have been made, the noble Lord and his clients (in his professional capacity) will be able to substantiate those allegations. Otherwise, there is a risk of the reputation of this House being blackened in the public mind without substance.
I should like to add one further point. It is clear to all noble Lords that in the present climate it is incumbent on all of us to make sure that no suspicion can attach to Members of your Lordships' House. It is only right that your Lordships should have taken up the suggestion of the noble Lord, Lord Richard, that the House should examine the question of whether we should establish a register of Member's interests. As your Lordships know, the noble and learned learned Lord, Lord Griffiths, has kindly consented to chair a sub-committee of the Procedure Committee to investigate that possibility. The Procedure Committee looks forward to receiving the noble and learned Lord's report.
No matter what the Procedure Committee may eventually recommend to your Lordships, it has long been the practice of the House for noble Lords to speak on their honour. Therefore, it is perhaps sensible for me to take advantage of the intervention of the noble Lord, Lord Marsh, to suggest to your Lordships that, perhaps now more than at any other time, all of us should make sure that before we intervene in the business of the House if we have a financial interest to declare we should do so. To err on the side of over-declaration would be a fault on the right side.

Criminal Justice (Scotland) Bill [H.L.]
3.7 p.m.
Report received.
Clause 2 [Breach of Bail conditions]:
The Minister of State, Scottish Office (Lord Fraser of Carmyllie)The Minister of State, Scottish Office (Lord Fraser of Carmyllie) moved Amendment No. 1:
Page 2, line 26, leave out from ("regard") to end of line 27 and insert ("to

(a) the fact that the offence was committed by him while on bail and the number of bail orders to which he was subject when the offence was committed;

(b) any previous conviction of the accused of an offence under subsection (1) (b) above; and

(c) the extent to which the sentence or disposal in respect of any previous conviction of the accused differed, by virtue of this subsection, from that which the court would have imposed but for this subsection.").

The noble and learned Lord said: My Lords, when I sought to move the amendment at Committee stage I encountered a degree of reservation about it. In those circumstances, in case I had overlooked a point, I undertook to reconsider the amendment. I have done so, and I consider the amendment to be necessary. It may help if I explain my reasons briefly.
The provisions in Clause 2 will require a court, in determining the appropriate sentence for an offence which was committed while the offender was on bail, to have regard to the fact that the offence was committed while on bail. In making that determination, it may increase the sentence for the offence over and above any statutory maximum which might otherwise apply.
Under the terms of the new Section 3(2C), Clause 2 will not—or at least not clearly—enable the court to exceed the maxima in the light of any other relevant matters. Those might include the fact that the offender was subject to more than one bail order at the time the offence was committed, that he had a previous record of offending while on bail, and the attitude taken previously by the court to bail abuse by the offender. Those are relevant facts of which the court ought to be able to take full account in sentencing for offending while on bail. All the amendment seeks to do is to ensure that the court's discretion is not unnecessarily restricted when it comes to determine the appropriate sentence for offending on bail. I beg to move.
On Question, amendment agreed to.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 2:
Before Clause 6, insert the following new clause:
("Duty to provide victims with information
. In all proceedings there shall be a duty upon courts to recognise the position and vulnerability of victims and their families within the criminal justice system, and a consequent duty to provide victims with information about the progress of their case, on request.").
The noble Earl said: My Lords, the purpose of Amendment No. 2 is to secure in the Bill a statement of principle with which I doubt that any noble Lord present today would disagree. I believe that it would enhance the law of Scotland and send a powerful message to
12
the Scottish people if the concern of the criminal justice system for victims of crime could be enshrined in the statute.
Let me set the context of the amendment. We already have in the statutes many measures of care for offenders. We have probation orders with and without special conditions, community service orders, supervised attendance orders, intensive probation schemes, diversion from prosecution schemes—that is, both reparation and mediation—and bail accommodation schemes. All those are community-based disposals.
In prison, we have personal officer schemes, social work departments, education departments, alcohol and drug dependency projects and special units. The Scottish Prison Service has as its motto: "Dare to care". There are parole schemes, fiscal fines which avoid criminal records, police warnings, and 16 and 17 year-olds may be referred by the courts to the children's panel rather than being dealt with as offenders.
All that is excellent and, as someone who has worked on social work projects within the criminal justice system for several years, I am convinced of their merit, with the one proviso that the offender must be at the right stage to benefit from them. However, I detect a feeling in Scotland that the balance of care is tilted too far towards offenders. My solution to that is not to diminish services to offenders, but to add weight to services to victims. We already have a situation where victims are being helped on an informal basis by the police, court officers, their family and friends and by volunteers from the victim support schemes which operate throughout Scotland.
I believe that the statement of principle in the Bill would send a signal to the criminal justice system, to the general public, to offenders—especially those on social work disposals—and finally to those victims who have lost faith in the system and believe that personal revenge is the only way forward.
Before moving the amendment, I wish also to speak to Amendment No. 85. It seeks to confirm a particular task upon the court system in dealing with victim witnesses in particular. I say "confirm" because I know that many of the tasks described in the amendment are already happening on an informal basis. I believe that the ideas in the amendment, which has been drafted by Victim Support Scotland, would focus the attention of all courts throughout Scotland and enable them to work to a new national standard. I fully accept that the court staff in Scotland are rightly busy, but I believe that flagging these ideas would improve the quality of the court service and enable it to build expertise in that direction in the future. I beg to move Amendment No. 2.
Lord Macaulay of Bragar: My Lords, from this side of your Lordships' House, I wish to add support to the general principle enunciated by the noble Earl in the two amendments. I am not nit-picking and I do not say that the wording of the two amendments is particularly apt. However, that is a matter for consideration perhaps at a later stage in another place.
From the information that I have received, I know that the Government are looking closely at the question of the interests of the victim. What the noble Earl was

13
doing was to put down a necessary marker that the Government cannot walk away from the problem of the impact of crime on the victims and, importantly, their families. That would impinge on the effects on the families of people who are killed, murdered or victims of culpable homicide. It is quite common for people to complain that once they have given their statement to the police, they do not know what is happening. We have been through this before, sometimes such people read about it in the local newspaper and wonder why they were not informed.
I hope that the initiative which the Government have already indicated they will follow will be pursued with some vigour, and that they will take the message from the noble Earl that the victim should at least be on a par with the offender in terms of information about what is happening.
I wish to raise one issue in relation to Amendment No. 2: whether the words "on request" are necessary or whether there should be a duty to provide victims with information as to the progress of "the" case, because it is not "their" case. The case belongs to the state because the state brings it, but there are victims in the case who are entitled to know precisely what is going on. To take the matter one stage further, they are entitled to know when the offender is being released from prison, if he has been sent to prison as a result of the offence. I support the noble Earl.
Lord Milverton: My Lords, the principle of the amendment is good and so is the initiative, for the offender and the victim of crime. Not only in Scotland but in the rest of the country there is a feeling which I have come across, as all noble Lords have, even down this way. It seems that the victims and their families are too easily dispensed with, unless for some reason the press think that it is good for the victim of the crime and the family for it to take notice. Then the press will go into it headlong.
I believe that it is important because victims and their families do not get a fair deal, the emphasis is too heavily on the offender, always finding a reason or an excuse for him so that he does not have to accept any responsibility, as he should and must do. Therefore, the principle and the initiative are thoroughly good and I hope to hear from the Government that they will agree to the amendment and are willing to work on it. I support the amendment.
Lord McCluskey: My Lords, I apologise for the roughness of my voice as I have laryngitis and also for the fact that, having just arrived from a trial in Glasgow, I have only recently discovered that the groupings include some of my amendments with Amendment No. 2. I am afraid that once again I do not accept that grouping.
As to Amendment No. 2, I wish to join in the welcome for the principle that lies behind it. However, I remind the House that a number of problems have not been addressed in it. First, it is vital to draw a distinction between a person who is the alleged victim of an alleged crime before the jury or the judge has returned a verdict and the person who is the victim of an established crime which the jury has held to be proved. It is important not
14
to jump the gun and suppose that everyone who complains of having been the victim of an assault is necessarily the victim. That is an abuse of language which I have seen in legislation in the United States and it can lead to an unfortunate position. We must find some way of differentiating in our legislative language between persons who are alleged victims and persons who are undoubtedly victims.
I seek to make that distinction and shall speak to it when I deal with Amendment No. 57. That amendment is concerned with people who are established to be the victims of a crime and it gives them a right to attend the sentencing proceedings. At that stage the crime has been proved and it has been proved that there is a victim. As I said in Committee, often after a street battle the winners go into the dock as the accused and the losers go into the witness box as the witnesses and the victims. Sometimes it takes a sophisticated process to determine who are the real victims and what were the real assaults.
I also wish to draw attention to the duty in the amendment to provide victims with information about the progress of the case. That would be a most extensive duty to perform. In Amendment No. 57 I have sought to impose a more modest duty in respect of sentencing proceedings in solemn procedures; that is, in jury cases, which are relatively small in number. However, if in every case in Scotland where there is a probable victim it becomes necessary to supply him with information at all stages of the process, the cost to the criminal justice system would be staggering and it would not work.
Lord Fraser of Carmyllie: My Lords, in moving the amendment, the noble Earl suggested that there might be a statement on the face of the Bill which indicates the concern that we all have for victims in Scotland. I understand his desire to do that, but I hope that from a broader reading of the Bill he will appreciate that one of the principal themes running throughout is that we should be taking steps to improve the position of witnesses, in particular victims. In Clauses 11 and 14, for example, we are trying to put in place better arrangements so that witnesses who may be victims are not unnecessarily brought to court to give their evidence. Clause 18 tightens up the provisions relating to attacks on character. We see that as being helpful to victims who are often extremely offended by such attacks. The provisions included in Clauses 12 and 13 to try to bring forward through the use of intermediate diets earlier pleas of guilty would similarly be of advantage to victims.
Furthermore, my Amendment No. 84 would insert a new clause that would establish a criminal courts rules council. I do not wish to go into the detail now, but the noble Earl will see that subsection (2) provides for:
"two persons appointed by the Lord Justice General after consultation with the Secretary of State, at least one of whom must be a person appearing to the Lord Justice General to have… an awareness of the interests of victims of crime and of witnesses in criminal proceedings".
I hope that with that additional provision the noble Earl will appreciate that we share his objective of doing all that we can to ensure that victims are properly regarded

15
in our criminal justice system. I appreciate the importance of ensuring that the vulnerability of victims as they attend court is properly understood.
Last October, I attended the launch of the report of a working party on victims within the criminal justice system. It was based on the experiences at Hamilton Sheriff Court. That report offered valuable insights, and I was encouraged to see that a number of its recommendations have already been adopted by the main agencies as normal working practice. Against that background, I see no need to impose on the courts a statutory duty of the kind proposed. Moreover, it is difficult to see what imposing a duty in such general terms would achieve.
The second part of the amendment, which deals with the provision of information to victims, is also laudable in principle. But the courts are in a position only to provide certain kinds of information; for example, to use the terms of a previous amendment tabled by the noble Earl, information about the procedure and processes of the court. However, information about the progress of the trial is a matter about which the court might be completely ignorant. Such information would have to be obtained perhaps from the procurator fiscal or the police. As was said by the noble and learned Lord, Lord McCluskey, that would be an extremely extensive duty to place on the courts and I do not believe it is proper to do so. It would require them to provide information that they did not have to hand and it may be that the procurator fiscal would be the appropriate person to go to.
As I explained at an earlier stage, support for victims at court is best provided by the court-based social worker and by volunteers from Victim Support (Scotland). Arrangements for that are already in place. I believe that such an approach would be appropriate; it would be inappropriate to impose a general duty as provided in Amendment No. 2.
Amendment No. 85 contains a number of technical defects, not least concerning who is the victim and at what time he can appropriately be described as such. The noble Earl moves from discussing victim witnesses to victims and I am far from clear about what is proposed.
I hope that the noble Earl will recognise that we are sympathetic to the general aims of his amendment. However, we believe that the administrative changes already in place and the various agencies within the system are already doing what they can to improve the position. I hope that on that basis he will withdraw Amendment No. 2. The noble and learned Lord, Lord McCluskey, indicated that he did not wish now to speak to his amendments in the group and therefore I shall not respond to them now.
Lord Windlesham: My Lords, perhaps I may comment on Amendment No. 85. During the debate on the first day of Committee I asked the Minister for information about the services provided to victims and witnesses in Scotland and the way in which they compared with the practice in Crown Courts in England and Wales. I was unable to be in the Chamber on the
16
second day of Committee when the Minister replied; the amendments were taken in a different sequence and he did not reply until then.
However, he gave a considered reply, for which I thank him. It appears at cols. 466 and 467 of the Official Report of 16th January 1995. He explained that court-based social workers in Scotland were required to provide information, advice and support to victims of crime. He went on to explain that there were in place standards which emphasise certain matters; for instance, that the victims appearing are often under severe stress and so forth. The Minister's comments ended with a resounding assertion that he hoped that what he had said would reassure me. He said:
"we respond quite as vigorously north of the Border as is done south of the Border to the needs of victims as they come to court".—[Official Report, 16/1/95; col. 467.]
I wish to press the noble and learned Lord and to ask for further information. However, first, I repeat my interest as President of Victim Support for England and Wales. That is the reason why I intervene in a Scottish debate. The principles are the same. I think we can all agree that the way victims and witnesses are treated in our criminal courts should be the same north or south of the Border.
In the past year or two a formal new additional service has been provided in the Crown Courts of England and Wales. I refer to the Crown Court witness service—I have the descriptive leaflet in my hand—which now exists in 50 of the courts. The number was initially 30. The service is directly funded by the Home Office for the purpose of providing enhanced services for victims and witnesses. Before that court-based probation officers had certain responsibilities for witnesses who came to court. They could help with witnesses, whether or not they were victims. They were already there as part of the existing services in the Crown Courts. The witness service is an additional new service of trained, salaried people with a specific responsibility and with accommodation in court for victim witnesses who appear in the court. Those people are assisted by a rota of volunteers. I did not detect from the Minister of State's answer whether what is happening in Scotland is comparable with that or whether these responsibilities, which are described in cols. 466 and 467 of the Official Report of 16th January, of the court-based social workers are in place already. If the Minister is not in a position to elucidate further now, perhaps he can do so at a later stage and inform me and the House of the outcome.
3.30 p.m.
Lord Fraser of Carmyllie: My Lords, I hope that I can give my noble friend something of a response. In short, we do not have the same system in place that he indicates is in place in a number of courts, but not all courts, in England at the present time.
Lord Windlesham: It is more than half.
Lord Fraser of Carmyllie: My Lords, as I sought to set out in my opening remarks on the amendment, we envisage that a number of different agencies have to participate. It may be the police at an early stage; it may

17
be the procurator fiscal; in some circumstances it will be the clerk of the court; and in some circumstances it may be the social worker. The report of the work undertaken at Hamilton Sheriff Court revealed that if the system were to be effective it would be necessary to ensure that all those different agencies at different stages played their part. Our view is that that is the best way to develop the system in Scotland, although we watch with great interest how the system is developing in England. We shall watch to see what difficulties are encountered and how they are resolved.
I should like to make it clear that we do, as is the case south of the Border, offer very significant support to Victim Support (Scotland). Some £878,000 is being paid in the current year. Additionally—this is important with regard to the way victims are treated—my noble and learned friend the Lord Advocate is proposing to set up a working party to monitor the way in which civilian witness statements are taken. He hopes that Victim Support (Scotland) will agree to participate in that group.
I hope that my noble friend will be reassured that we are well aware of the importance of ensuring that there is proper regard for the rights and dignity of victims and that we are approaching the matter on a broad basis.
The Earl of Mar and Kellie: My Lords, I thank noble Lords for their support for these amendments and the noble and learned Lord the Minister for his reply. I agree that the amendments need considerable tidying up. They were inadequately drafted. Services to victims in Scotland need to be publicised more. The way ahead to redress the balance between care for offenders and care for victims could be through publicity. I am glad that noble Lords accept the principle of our case. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Lists of potential jurors]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 3:
Page 5, line 14, leave out ("for") and insert ("after").
The noble Lord said: My Lords, it may be for the convenience of the House if I speak also to Amendment No. 4. The two amendments are interrelated. We have discussed this issue at earlier stages of the Bill and indeed on other occasions. I have put down the amendments once more in the hope that the Government will think again about interfering with the present method of selecting jurors and objecting to jurors in criminal trials in Scotland. I had the opportunity to have a brief word with the Minister. I understand that the Government are not prepared to alter their views at this stage.
The occupation of prospective jurors is a useful guide to the defence in deciding which jurors should be challenged. In a variety of cases and variety of circumstances in the courts it may be that certain people should not be on a jury. The noble and learned Lord the Lord Advocate said during the Committee stage that the beauty—he did not use that word but that is how I interpreted it—of the system is that it is random. A random system which leads to imbalance in the composition of a jury is a bad system.
The removal of the occupation of jurors from the list means that the selection will be completely at random and imbalances might arise—for example, as has already been said, in major cases involving fraud or even murder. Logically, if the clause is to go through, the address of a prospective juror should be removed as well. We know only too well from major murder cases in Scotland that certain areas, unfortunately, in major cities in Scotland—and no doubt in England and Wales—are designated as areas of high crime and areas from which people might or might not want people for their juries. There are areas of perceived high respectability at the other end of the scale.
The system of selecting juries in Scotland has worked well to date and is a quick and effective way of selecting jurors. The Government's proposals could lead us down the road of the American system of jury selection under which, as I understand it, potential jurors are investigated and interrogated on almost every aspect not only of their own lives but of their families' lives. In the current O.J. Simpson trial I have had the advantage of seeing a questionnaire which was sent to every prospective juror. It was to be filled in without consulting anyone and on the basis that the juror was on oath (although the document was sent to him) and that anything said would be investigated and if it were found to be incorrect the juror could be charged with perjury. The number of questions in that document was just short of 300.
I know that that situation is a long way down the road but I pose the question and say that any temptation to follow that system would be ill advised. The investigation of potential jurors in Scotland by such means would be ridiculously expensive, time consuming and unnecessarily intrusive. The present system is basically fair and inexpensive and should be retained.
This clause is to some extent linked with the amendment on peremptory challenge of three jurors which is available to the defence in the criminal courts. Amendment No. 5 has been linked with an amendment in the name of the noble and learned Lord, Lord McCluskey. The problem is that the Crown has great facilities for knowing who the prospective jurors are. For example, it knows who a particular person living in a particular area is; it knows whether he has a criminal record; it knows this and it knows that. It can easily object to jurors on cause shown by a nod and a wink to the defence. As I have said, the defence normally go along with the Crown on these matters. The defence have no access to that information. It has no way of knowing the occupation, if any, of prospective jurors.
This leads to a system which I believe is unfair. At Committee stage I posed the question whether, as a logical consequence to the passing of this amendment moved by the Government, the defence would be allowed an early list of jurors. In any high court or solemn proceedings in Scotland a list of jurors who are to be allocated to a case, whether or not it proceeds, is provided so that those advising the accused can see from where the jury members come, who they may he and whether or not they may be worthy of investigation (or such investigation as may be proper without annoying prospective jurors). They may advise the accused that

19
certain jurors should not be on the jury. The proposed omission by the Government is completely unfair, unnecessary and is not called for by any substantial movement in the legal process in Scotland. I beg to move.
The Earl of Mar and Kellie: My Lords, I rise to support the amendment. It seeks to ensure that juries are made up of appropriate people who can be easily scrutinised at the beginning of the trial process and who are unlikely to be biased in favour of the prosecution or defence. I speak briefly as someone who has been excused jury service on three occasions because I have been employed at the social work end of the criminal justice system.
Lord Fraser of Carmyllie: My Lords, when this matter was debated at an earlier stage I made the error of indicating that the occupations of jurors in England and Wales had never been shown on the jury list. I regret that my knowledge of the criminal law of England was imperfect in that respect. I understand the position to be that occupation was shown until 1973 but has never been shown since. I may be corrected again, but I understand that the absence of the occupation of the juror has not caused any particular difficulty this side of the Border.
As I explained at Committee, the clause is part of a package of reforms to improve the selection of jurors and to ensure as far as possible that a jury is randomly selected and is representative of the population as a whole. We know that in practice potential jurors of certain occupations are regularly objected to for no apparently legitimate reasons. The noble Lord gave an extremely interesting example at Committee stage. He said that if he saw someone described on the jury list as a security officer he would make the automatic assumption that the individual was a retired policeman and immediately object to him. With respect, that seems to raise an extraordinary number of questions. First, that individual may never have worked for the police. Secondly, if retired policemen are never to sit on juries it seems to me that the more appropriate way to deal with it is to have an extended list of those who are not eligible for jury service.
As my noble friend Lady Carnegy pointed out during our earlier debate, discrimination against certain occupations is unfair to individuals and also prevents the selection of representative jurors. Accordingly, in the view of the Government there are sound reasons of principle for the proposal in Clause 6. With that repeated explanation, I hope that the noble Lord will feel that he can withdraw his amendment.
Lord Macaulay of Bragar: My Lords, we are to some extent going over the same ground. It is a fact that in practice when people were designated security officers that assumption was made. In modern times when security services are put out to private tender and different groups look after security that fact may no longer apply. However, no doubt those involved in court cases will take that into account.
20
The fact that England has survived with this system since 1973 has nothing whatever to do with Scotland. On the next amendment I shall make the point that Scotland has an entirely different system. In England one can have either a unanimous verdict of 12 jurors or a majority of 10 votes to two. The system is completely different in Scotland. In an attempt to seek a balance in any trial it is important that the defence should at least know from where the juror comes, and who he is. It should be able to make a reasoned judgment on the matter, rather than having to scratch about for information on jurors to see whether the defence should advance an argument on cause shown.
I am sure that the matter will raise its head in another place. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
Clause 8 [Challenges to jurors]:
3.45 p.m.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 5:
Page 6, leave out line 14.
The noble Lord said: My Lords, Amendment No. 5 relates to the removal of the right to the peremptory challenge of three jurors. The matter is linked to what has already been said in connection with earlier amendments about leaving out the occupations and addresses of potential jurors for the information of the Crown and the defence in criminal trials.
There is no good argument as to why the peremptory challenge should be abolished. It is a quick and convenient way to convene a jury to hear a case. The view has been expressed that to require cause to be shown in open court can prejudice a potential juror, but I assume that if an argument on cause shown were presented to the court the presiding judge will ask the potential juror to leave the court.
I make the short point that comparisons between England and Scotland in the process of criminal law are invalid. It should be borne in mind that Scotland has a completely different system and balance. A criminal jury in Scotland is composed of 15 people. One can be convicted or acquitted on a single vote of eight to seven. The balance in the voting system in England is already in favour of the accused to some extent. In England the Crown has to convince 10 out of 12 people that a person is guilty before such a verdict can be recorded. In Scotland the Crown simply has to persuade eight out of the 15. That is why I suggest that there is an imbalance in the system. If we retain the previous situation regarding addresses and the peremptory challenge of jurors, we can retain a balance in the Scottish criminal system. I beg to move.
Lord McCluskey: My Lords, this amendment is associated with my Amendment No. 6. Clause 8 effectively removes the first few subsections of Section 130 of the Act which describe what the section is about. Section 130(1), which the Bill proposes to remove, reads:
"In any trial, each accused may challenge three jurors, as may the prosecutor, without giving any reason."

21
That enshrines the peremptory right—it is equal on both sides—of challenge to three jurors.
I remind your Lordships that the details of the discussion on this point can be found in the Official Report at vol. 559, no. 7, col. 566, when the matter was discussed at Second Reading on 29th November 1994, and in vol. 560, no. 22, col. 335, on the first day of Committee on 12th January 1995.
The Government have said that they are advancing a good basic principle in relation to the abolition of the right to peremptory challenge. I remind your Lordships of what I said on previous occasions. The matter of principle was looked at by the Thomson Committee in the 1970s, the most distinguished body of criminal lawyers and others which had been gathered for such a purpose this century. It did not recommend what the Government now propose but recommended that centuries of history and tradition should be adhered to in this regard. The Government brought forward a proposal in the 1980 Bill to reduce the number of peremptory challenges, and they ultimately settled for the compromise—agreed by all parties—of three peremptory challenges. That is what we find in Section 130(1) of the 1975 Act, as amended.
The Lord Advocate then and the Minister now both espoused the principle of randomness and justified the provision on that basis. But they do not seek to justify it properly on the basis of randomness because under the new Bill they give both the prosecutor and the defence the right to agree to interfere with random selection by their agreeing to take someone off the jury. They also leave the right to remove a potential juror for cause shown.
I urge the Government therefore not to tamper with a principled tradition which is centuries old, not on the basis that the Lord Advocate or the Minister thinks it is justified in principle, but on the basis that the Minister should be humble enough to realise that when judgments of principle are made, such as that in relation to the Child Support Agency, the Government can get the matter entirely wrong. One can think of other examples where so-called principles were brought forward and in practice produced extraordinarily bad results. I believe that that is a likely consequence in this regard and that the numbers called upon to attend for jury service will not be reduced. The probability is that the number of challenges for cause shown will rise in Scotland—they may not have risen in England, but I am sure that they will rise in Scotland.
One other red herring is constantly dragged into these debates and was dragged in on a previous occasion—that is the assertion that if a member of the public turns up in court carrying a copy of the Financial Times, that person will automatically be objected to. In 40 years of practice I have never known that to happen; in fact, I do not believe that I have ever seen a copy of the Financial Times in a Glasgow criminal court or any other criminal court in Scotland.
It so happens that, sitting as I am currently in Glasgow on criminal trials, I saw two juries empanelled last week and on each occasion three objections were taken—that is the maximum. On each occasion counsel did not look to see who the juror was to whom objection
22
was being made, so it was not done on the ground that the person was wearing a collar and tie or that she had had her hair recently permed or that he was carrying a copy of the Financial Times; it was done on the basis of an address or some other circumstance which counsel had obtained via the jury list.
That brings me to the terms of my specific amendment. At the present time, objection to a juror should be taken when the name of the juror is balloted. That is the present law. I say that it should be done by written intimation to the clerk of court after the ballot has been called and pleas recorded.
Your Lordships should understand that what happens at the present time is that the clerk of court, once the pleas have been recorded, pulls the names of the jurors from a glass bowl and, for instance, calls No. 128, Mrs. Sarah Jones. She makes her way towards the front of the court and if she is objected to, objection is taken while she walks. That may be upsetting; to some it may be humiliating and others may regard it as offensive.
I propose that if people want to object to a juror, not on a ground that he or she is holding a copy of the Financial Times or is wearing a specific kind of hairstyle, but on a ground related to the address or other information in the jury list, then counsel should prepare a list of the names to which he objects and hand that list to the Clerk of Court. That would be the effect of my amendment. It would enable the right of peremptory challenge to survive; it would enable it to be done on the basis of the jury list rather than on the appearance or accoutrements of the juror, and would preserve the tradition for which the Government have shown no justification to change.
I should like to know—and the answer should be recorded so that it can be studied in another place if not here—upon what true basis the Government are seeking to interfere with the right of peremptory challenge. Who made the suggestion before they put out their trawl looking for support? I support the amendment of the noble Lord, Lord Macaulay, and at the same time proffer my Amendment No. 6.
The Lord Advocate (Lord Rodger of Earlsferry): My Lords, the Committee debated the issue of peremptory challenge at some length, and the noble Lord, Lord Macaulay, indicated that he was today concerned with very much the same matters. In relation to the general principle behind the Government's proposal, I adopt what I said in Committee. In reply to the noble and learned Lord, Lord McCluskey, I simply say that the matter of peremptory challenge arose for consideration when the Government were considering various issues in relation to juries and how they operated in Scotland.
In relation to the specific matter of peremptory challenge, we were aware that that right had been enshrined in Scottish law for a long time—centuries may be a slight exaggeration; I believe that it was introduced at the beginning of the 19th century in response to specific circumstances at the time. It has been modified since, as your Lordships have been told. As I said in Committee, we were aware of the recommendation of the Thomson Committee. We were

23
also aware, as I indicated at Committee, that since that time there had been changes in the eligibility of people for jury service; and, more particularly, we were aware that over that period legislation introduced in England showed that the reform of the kind we envisage here did not bring in its wake in England the consequences which were thought may be brought in in the way of increased challenges for cause shown.
I do not believe that there would be a great increase in challenges on cause shown and that it is not legitimate to have regard to the experience in England. I accept that the juries are differently composed and that there are different mechanisms in place for verdicts in Scotland, as we all know. Nonetheless, I am certain that we can look to see what the experience has been.
In relation to the proposal of the noble and learned Lord, Lord McCluskey, I believe that in practice it would lead to further delay in the start of cases and would not be helpful. When one asks to what the noble and learned Lord is referring, we find that he is referring to the possibility that the defence, on looking through the jury list, will see, for example, a specific address. If that is a legitimate ground for objection to a potential juror—for example, that they live in the same street or next door to where the incident took place or that they may know the person concerned and that can be detected from the list—that may be a good ground for showing cause why that person should not be included on the jury. On the other hand, there is no reason why that should simply remain a basis for making a peremptory challenge.
I go back to the position from which I started; that it is right in principle to have regard to the random nature of selection, qualified by the kind of provision which we made in Clause 8 for both the prosecution and the defence and by the retention of the right to challenge on cause shown. We believe that with those qualifications the principle is the correct one and the clause should remain unamended.
4 p.m.
Lord Macaulay of Bragar: My Lords, I have listened with interest to what the noble and learned Lord the Lord Advocate has said. It merely underlines the problems which are awaiting us in the criminal courts. For example, the remaining matter which the defence can raise is cause shown.
I can very readily imagine defending someone in the criminal court in Glasgow, or anywhere else, and seeing that a juror came from a particular area with a high incidence of crime. That person would not necessarily be living in the same street or even the adjoining street, but on the face of it it could be said that he did not come from a part of the community which was interested in upholding law and order and justice. If I rose and said to the presiding judge, "I object to this juror", and he replied, "You can object only on cause shown, and what is that?", I could only say, "He lives on housing estate X and I have material from the Strathclyde police and the Lothian and Border police saying that one cannot trust anyone from that particular area because they will not
24
co-operate with the police. They are not interested in law and order". The judge would then say, "Don't be so ridiculous. You cannot categorise people in one particular area as being all tarred with the same brush of not being interested in law and order". Therefore my cause shown would be thrown out of the window. But looking at the other side of the coin, it is possible that the Crown's case as regards a particular individual would also be out of the window because very often such persons do not care about the system of justice.
As I asked before, for the purposes of criminal proceedings, who is going to define what cause shown is, or is it going to be left entirely to the discretion of the presiding judge? However, I leave these matters as they stand because, like other matters, they will be raised no doubt in another place.
I am grateful to the noble and learned Lord, Lord McCluskey, for his support of my amendment. As regards his own amendment I can see the point of it. But there are matters which arise; for example, at the moment potential jurors are given a fairly lengthy lecture by the clerk of court telling them what the system is and instructing them that the defence has the right to object to three people for its own reasons and that potential jurors must not take it as a personal slur on themselves. I have never heard of a potential juror running to the authorities and saying that he was very upset because he was objected to. The system seems to work well.
The noble and learned Lord's system can only work in terms of written objections to the clerk of the court if the defence is given a list of assize and time to look at it. Very often that is done after the case is called on, which does not give much time for writing down the names of jurors who might be objected to. I hope that the noble and learned Lord was not suggesting that that would be the only way to object. It is not unknown in certain towns or in country areas, for example, for a person who has arrived for jury service to be called early in the morning if his countenance, to say the least, suggests that he may have an alcoholic problem. Therefore, the prospect of sitting in court from 10 a.m. to 4 p.m. will be abhorrent to him because he will not get his favourite beverage. He certainly would not get it at lunchtime in the Scottish court system. Therefore, if someone of that kind was spotted and he was objected to, would that be cause shown?
If I saw someone whom I suspected of being an alcoholic or having an alcohol problem and then said to the judge, "I am objecting to this juror", the judge asked why, and I replied, "Because I believe that he probably is an alcoholic or has a severe alcohol problem", the judge would then ask, "What is the basis for saying that?". I would answer, "I just do not like the look of him". The judge would tell me to sit down and behave myself. One can see the problems which are going to arise in this matter. I hope that it will be closely monitored by the Government to see how the system works. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCluskey Lord McCluskey moved Amendment No. 6:
Page 6, leave out line 14 and insert:
("(a) in subsection (2) the words "when the name of that juror is balloted" shall be deleted and in their place shall be inserted "by written intimation to the Clerk of Court after the diet has been called and the pleas have been recorded".").
The noble and learned Lord said: My Lords, I have already spoken to this amendment, but in moving it I shall use the opportunity to respond to some of the points which have been made. I respectfully suggest that the noble and learned Lord the Lord Advocate is wholly wrong to suggest that the system I advocate would lead to delay. On the contrary, it would have the opposite effect. I envisage that defence and Crown counsel be given the list of assize in time for them to scan it and to decide whether on the basis of address, name or any other information that it may contain they want to object to a juror. They would simply note the ones objected to and write them on a piece of paper. When the clerk of the court called the number, counsel would indicate to him that the number related to a person who should not be empanelled as a juror.
It can be done in a number of ways. Another is to have the clerk of the court simply read out the number. He would call, for example, "No. 128" and pause. If one wanted to object one would say, "Object!". In that way the name of the person is not called and he or she does not even know they have been called and rejected. That disposes of an argument which has been advanced that it is humiliating for jurors to be objected to.
The noble and learned Lord the Lord Advocate replied to the effect that, if there was a basis in relation to the address, the name, occupation or some other matter, that could provide substance for an argument that cause was shown. That would simply waste time. I am certain that as regards those cases on which I now sit very frequently, where the religion, address or other features of a potential juror are thought to be of importance, counsel would have to take objection on the ground of cause shown. Then the judge would have to entertain submissions on the matter from both parties. That is a very costly and unnecessary exercise.
The Government still have time and I urge them to think again. I urged them to do so in 1980 but they declined. When the matter came back to this House from the other place they had thought again and arrived at a sensible solution. I urge them to do the same on this occasion. With that observation, I beg to move. I do not propose to say anything further.
Lord Rodger of Earlsferry: My Lords, I believe that I have already spoken to this amendment.
Lord McCluskey: My Lords, in the light of what has been said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 [Judicial examination]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 7:
Leave out Clause 10.
The noble Lord said: My Lords, again this is an issue that was debated at length at Committee stage. It has been retabled for the purpose of asking the Government to think again, as they have been asked to think again about the previous matters as regards jury service. The
26
Minister has Amendment No. 8 standing in his name which has the same effect as my amendment but it adds a new clause. I wish to speak to my own amendment at this stage.
The point of this particular amendment relates to what is called in Scotland judicial examination, where an accused person can be brought before a sheriff at a very early stage in the proceedings to be questioned by the prosecutor. That is the important phrase; namely, to be questioned by the prosecutor for certain reasons and for questions to be asked eliciting any denial, explanation, justification or comment by the accused on charges and so on.
The Government are attempting to bring into that area the question of an admission by an accused. I accept that the clause does not mention an admission of guilt. The phraseology is "eliciting any admission", which suggests to me that the prosecutor has the right to ask questions, apart from the right of the defence, in order to clarify matters at the end of the examination. The prosecutor is going to be entitled to elicit confessions of guilt. That suggestion substantially hits at the so-called right to silence. The judicial examination procedure erodes that anyway.
I have always held—and perhaps I am wrong—that the right to silence does not exist in Scotland anyway since the judicial examination procedure was brought into play. At the time objection was taken to the whole procedure in that it was quite wrong that within 24 hours of a serious crime having been committed the accused and his solicitor, perhaps having only a copy of the complaint to the petition, were wheeled in before a sheriff to be questioned by the prosecutor, who has in his possession no doubt a very full police report containing the background to the case, to which the accused has no access whatsoever. The prosecutor may also have supporting statements. The accused then has the right to consult a solicitor before answering detailed questions about where he was, what he did, who he was with, and so on.
In my submission, that provision will create a difficulty which need not exist because, as matters stand at present, there is nothing to prevent the accused making an admission anyway. To use a colloquialism, if the accused wants "to put his hand up" at a judicial examination and say to the procurator fiscal, in the presence of a sheriff, "Forget all this; I did it", there is nothing in the present procedure to stop him doing that. This provision, however, gives the procurator fiscal the power to wheedle an admission of guilt out of the accused in circumstances where the lawyer is placed in a difficult situation. We all know—everyone knows—that a person can admit to doing something but not be legally guilty of it. It is the loose use of the word "admission" that bothers me. Indeed, we must ask, "an admission of what?" What is behind the present phraseology?
Some of those who will be brought before a sheriff will be of limited intelligence—that is not their fault—and will therefore be unable to instruct a lawyer or to understand what is going on. Some people may be completely fazed by the trauma of the event in which they may have been involved. They may have been

27
involved in a domestic incident and their emotional disturbance and the pressure to which they may have been subjected cannot even be imagined by the sheriff or procurator fiscal or even by the solicitor who has been allocated to that individual. Not many people are capable of rational thought within 24 or 48 hours of a trauma.
Solicitors are being put in a difficult position. They are being forced to advise a client (who may be asked something) without having had a chance to consider the evidence although, on the face of it, an admission may point to a guilty verdict. The client may have a proper explanation.
The clause will place a heavy burden on the duty solicitor and the accused and, in my submission, may act very much against the interests of justice. I beg to move.
The Earl of Balfour: My Lords, unless the noble Lord, Lord Macaulay, is objecting to the new clause which it is proposed to insert into the Bill under Amendment No. 8, I cannot see why we need to discuss Clause 10 because it will disappear anyway.
Lord Macaulay of Bragar: My Lords, I take the noble Earl's point, but I wanted to argue the point that Clause 10 should disappear. We shall discuss the alternative in due course when the Minister moves Amendment No. 8.
Lord Fraser of Carmyllie: My Lords, we had an interesting debate on this in Committee. That debate was distinguished by the contribution of the noble and learned Lord, Lord McCluskey, who set out what takes place in a judicial examination and the weakness in it which Clause 10 now seeks to remedy. I am bound to say that I do not think that I can improve on the noble and learned Lord's explanation. However, I am somewhat surprised that the noble Lord, Lord Macaulay, has sought to return to this subject.
With your Lordships' forbearance, perhaps I may reiterate that Clause 10 does not represent an attack on the rights of the accused. It certainly does not affect his right to remain silent. He can refuse to admit an allegation just as easily as he can deny it at present. What the clause does do is enable the procurator fiscal to ask questions which the accused will be better able to understand. The noble Lord said that some of those who come into court for judicial examination may not always be of the highest intelligence. I would argue as vigorously as I could that this change will make it easier for such individuals to understand what is going on. It will also be easier for juries to understand what has transpired when they come to consider the transcript of the examination.
There is nothing dramatic or radical about the proposal. It gives full effect to the recommendations made by the Thomson Committee in 1975. I hope that the noble Lord will appreciate that there is no major attack on the right to silence or anything fundamental like that. With that explanation, I hope that he will feel able to withdraw the amendment.
Lord Macaulay of Bragar: My Lords, I have heard the noble and learned Lord's explanation. It was the
28
same explanation as we heard previously. As I have said, I do not consider that the right to silence exists in any case—nor do I consider that this provision advances the cause of justice in Scotland and I therefore wish to take the opinion of your Lordships' House.
4.16 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 93; Not-Contents, 117.

Division No. 1

CONTENTS

Acton, L.

Jay of Paddington, B.

Addington, L.

Jeger, B.

Airedale, L.

Jenkins of Hillhead, L.

Ashley of Stoke, L.

Jenkins of Putney, L.

Avebury, L.

Judd, L.

Barnett, L.

Kilbracken, L.

Beaumont of Whitley, L.

Listowel, E.

Birk, B.

Lockwood, B.

Blackstone, B.

Longford, E.

Bottomley, L.

Lovell-Davis, L.

Broadbridge, L.

Macaulay of Bragar, L.

Brooks of Tremorfa, L.

Mallalieu, B.

Bruce of Donington, L.

Mar and Kellie, E. [Teller]

Carmichael of Kelvingrove, L.

Mason of Barnsley, L.

Castle of Blackburn, B.

McCarthy, L.

Cledwyn of Penrhos, L.

McGregor of Durris, L.

Clinton-Davis, L.

McIntosh of Haringey, L.

Cocks of Hartcliffe, L.

Merlyn-Rees, L.

David, B.

Milner of Leeds, L.

Dean of Beswick, L.

Molloy, L.

Dean of Thornton-le-Fylde, B.

Monkswell, L.

Desai, L.

Morris of Castle Morris, L.

Diamond, L.

Nicol, B.

Donaldson of Kingsbridge, L.

Ogmore, L.

Dormand of Easington, L.

Peston, L.

Eatwell, L.

Plant of Highfield, L.

Elis-Thomas, L.

Prys-Davies, L.

Ennals, L.

Richard, L.

Ezra,L.

Sainsbury, L.

Falkender, B.

Seear, B.

Falkland, V.

Sefton of Garston, L.

Farrington of Ribbleton, B.

Serota, B.

Gallacher, L.

Shepherd, L.

Geraint, L.

Stallard, L.

Gladwin of Clee, L.

Stedman, B.

Gladwyn, L.

Stoddart of Swindon, L.

Graham of Edmonton, L. [Teller.]

Strabolgi, L.

Taylor of Blackburn, L.

Greene of Harrow Weald, L.

Tope, L.

Gregson, L.

Tordoff, L.

Grey, E.

Turner of Camden, B.

Harris of Greenwich, L.

Varley, L.

Haskel, L.

Wallace of Coslany, L.

Hilton of Eggardon, B.

White, B.

Hollis of Heigham, B.

Williams of Crosby, B.

Howie of Troon, L.

Williams of Elvel, L.

Hutchinson of Lullington, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Aberdare, L.

Brabazon of Tara, L.

Ailesbury, M.

Braine of Wheatley, L.

Ailsa, M.

Bridgeman, V.

Allenby of Megiddo, V.

Brigstocke, B.

Ampthill, L.

Brougham and Vaux, L.

Balfour, E.

Butterworth, L.

Belhaven and Stenton, L.

Caithness, E.

Blaker, L.

Campbell of Croy, L.

Blyth, L.

Carnegy of Lour, B.

Boardman, L.

Carnock, L.

Boyd-Carpenter, L.

Charteris of Amisfield, L.

29

Chesham, L.

Miller of Hendon, B.

Clanwilliam, E.

Milverton, L.

Cranborne, V. [Lord Privy Seal.]

Montgomery of Alamein, V.

Cross, V.

Morris, L.

Cumberlege, B.

Mottistone, L.

Davidson, V.

Mountevans, L.

Denham, L.

Mowbray and Stourton, L.

Dixon-Smith, L.

Moyne, L.

Ellenborough, L.

Munster, E.

Elles, B.

Nelson, E.

Elliott of Morpeth, L.

O'Cathain, B.

Elton, L.

Orr-Ewing, L.

Ferrers, E.

Palmer, L.

Flather, B.

Pearson of Rannoch, L.

Forbes, L.

Pender, L.

Fraser of Carmyllie, L.

Perth, E.

Gainsborough, E.

Pike, B.

Gardner of Parkes, B.

Quinton, L.

Geddes, L.

Rankeillour, L.

Goschen, V.

Renton, L.

Gray of Contin, L.

Renwick, L.

Gridley, L.

Rodger of Earlsferry, L.

Halsbury, E.

Rodney, L.

Harding of Petherton, L.

Saltoun of Abernethy, Ly.

Seccombe, B.

Harmar-Nicholls, L.

Selborne, E.

Harrowby, E.

Shannon, E.

Hayhoe, L.

Shrewsbury, E.

Henley, L.

Skelmersdale, L.

Hives, L.

Slim, V.

Holderness, L.

St. Davids, V.

Hooper, B.

Strathclyde, L. [Teller.]

Hothfield, L.

Strathcona and Mount Royal, L.

Howe of Aberavon, L.

Sudeley, L.

Howe, E.

Swansea, L.

Inglewood, L. [Teller.]

Swinton, E.

Kinnoull, E.

Terrington, L.

Lauderdale, E.

Teviot, L.

Lindsay, E.

Thomas of Gwydir, L.

Long, V.

Trumpington, B.

Lucas, L.

Ullswater, V.

Lyell, L.

Vivian, L.

Mackay of Ardbrecknish, L.

Wade of Chorlton, L.

Macleod of Borve, B.

Wharton, B.

Macpherson of Drumochter, L.

Whitelaw, V.

Marlesford, L.

Windlesham, L.

Merrivale, L.

Wise, L.

Mersey, V.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.25 p.m.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 8:
Leave out Clause 10 and insert the following new clause:
Judicial Examination
(" .—(1) Section 20A of the 1975 Act (examination of accused by prosecutor before sheriff) shall be amended as follows.
(2) In subsection (1)—

(a) after the words "eliciting any" there shall be inserted "admission,"; and

(b) in paragraph (i) of the proviso to paragraph (a), for the words from "category" to the end there shall be substituted "defence".

(3) After subsection (3) there shall be inserted the following subsection—
"(3A) The accused shall be told by the sheriff that if he answers any question put to him at the examination under this section in such a way as to disclose an ostensible defence, the prosecutor shall be under the duty imposed by subsection (7) below.".
(4) After subsection (6) there shall be inserted the following subsections—
30
"(7) Without prejudice to any rule of law, on the conclusion of an examination under this section the prosecutor shall secure the investigation, to such extent as is reasonably practicable, of any ostensible defence disclosed in the course of the examination.
(8) The duty imposed by subsection (7) above shall not apply as respects any ostensible defence which is not reasonably capable of being investigated.".").
The noble and learned Lord said: My Lords, in Committee the noble and learned Lord, Lord McCluskey, brought forward an amendment in rather similar terms to this, the general thrust of which I was then happy to accept in principle. He has again tabled an amendment in somewhat similar terms, but I hope that he may feel able to withdraw his amendment in the light of this one.
Amendment No. 8 imposes a duty on the prosecutor to investigate any ostensible defence disclosed at judicial examination, and requires the sheriff to inform the accused of that duty.
We have certain reservations about breaking down into specific statutory duties the procurator fiscal's broad duties to act fairly and to prosecute in the public interest. However, in the particular circumstances of a judicial examination it may be worth pointing out to an accused person that any defence of this kind which he or she discloses will be investigated.
Lord Macaulay of Bragar: My Lords, I am sorry to interrupt the noble Lord—perhaps it is my fault—but the last Division we had was on Amendment No. 7. We seem to have jumped to Amendment No. 10. Amendment No. 8 is about judicial examination, not investigating lines of defence, which is Amendment No. 10; perhaps I misheard—there was a lot of noise going on when the noble and learned Lord stood up—but could we just be clear that we are discussing Amendment No. 8?
Lord Rodger of Earlsferry: My Lords, we are discussing Amendment No. 8. It relates to investigating matters as a result of lines disclosed at judicial examination.
As I was saying, the fact that attention is drawn to this matter at judicial examination may indeed make the advantages of declaring a particular defence at that stage more apparent. Nonetheless, despite any reservations we may have, we feel it right to put it down in this particular way.
We have not gone further to include a specific duty on the prosecutor to disclose the results of the investigation to the accused. If the procurator fiscal's investigation uncovers evidence which may be of assistance to the accused, he already considers himself—or should consider himself—to be under a duty to make the existence of such evidence known to the accused and his advisers.
I would expect all prosecutors to apply that principle in this connection. If they do so, the full purpose and spirit underlying the amendment of the noble and learned Lord, Lord McCluskey, will be met. We do not think it necessary or particularly desirable to enshrine in statute what would, after all, simply be a particular application of the general principle. It is the general principle which is important and should be observed.

31
Moreover, any statutory formulation which required a prosecutor to make evidence available in every case might be contrary, in certain circumstances, to the public interest—for example, if disclosure might breach particular confidences or endanger witnesses. It is best to leave the issue of disclosure of the results on the broader, general basis, and it is for that reason that that particular matter is not covered by the clause. However, the general thrust of the clause reflects the spirit underlying the amendment of the noble and learned Lord, Lord McCluskey, and we are happy to accept the spirit of that clause. I beg to move.
Lord McCluskey: My Lords, perhaps I may speak to this amendment. First, I am grateful to the Government for accepting the general thrust of what I proposed. I agree entirely with the Lord Advocate's hesitancy in trying to break down the duties of the prosecutor because it might lead to an argument that unless a prosecutor has duties specified his general duty of fairness does not exist; and we would not wish to get to that position.
However, the amendment imposes a responsibility on the sheriff to do something; and the duty of the prosecutor, in a sense, flows from that—the duty to secure, to the extent it is reasonably practicable the investigation of the ostensible defence disclosed.
I am perfectly happy with what is now proposed. I accept that my wording—it imposed an absolute duty upon the prosecutor to disclose the full results within a specified time—might go too far in specific cases. However, I ask the noble and learned Lord the Lord Advocate to consider preparing a directional instruction to fiscals who have to conduct judicial examinations, so that they will know the thrust of what he has told your Lordships' House today; namely, that the prosecutor will disclose to the defence the results of the investigation. I hope that the noble and learned Lord will endeavour to word the instruction so as to show that that duty should be performed as soon as may be to give the defence time to investigate the matter.
It could well be that in a particular case the accused is deceiving his own defence lawyers. They do not have the legal aid facility, or any other facility, at that stage to make a thorough investigation. The fiscal investigates and comes up with the results which show that the man is not telling the truth. That is then disclosed to his lawyers. They go to him and point out the error of his ways. That may lead to an earlier plea. I am sure that from many points of view this is a desirable improvement. I did not speak upon the last matter. I have already done so, and I do not propose to add anything to that.
The general effect of the amendments, taken together, is not to make the position of the accused in relation to the right of silence in Scotland any worse; in fact it makes it better. I congratulate the Government on moving in that direction.
Lord Rodger of Earlsferry: My Lords, I shall of course be happy to consider an instruction of the type that the noble and learned Lord indicated.
On Question, amendment agreed to.
4.30 p.m.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 9:
After Clause 10, insert the following new clause:
Requirement to give notice of defence of automatism or coercion
(" . After subsection (1) of section 82 of the 1975 Act (requirement to give notice of plea of special defence, etc.) there shall be inserted the following subsection—
"(1 A) Subsection (1) above shall apply to a defence of automatism or coercion as if it were a special defence.".").
The noble and learned Lord said: My Lords, for the convenience of the House, I shall speak also to Amendments Nos. 104 and 105. The amendments address a very particular aspect of Scottish criminal law and procedure which will be familiar to a number of your Lordships; in particular, the noble and learned Lord, Lord McCluskey, will recognise to some extent the genesis of part of the amendment in the case of Ross v. H.M. Advocate upon which he sat in 1991. In that case, the Appeal Court held that "automatism"—using the shorthand—was a matter which could in particular circumstances constitute a defence.
During the course of argument on that case the question of notification of such a defence was raised. Three of the five appeal judges variously expressed the view that pre-trial notice of the defence of automatism should be required. The noble and learned Lord, Lord McCluskey, suggested that adding to the list of defences known as "special defences" merited fuller debate. The justification for the notification requirement in the case of the four existing special defences is to give fair notice to the Crown of an intention to lead evidence for such a defence.
I am aware that there exists a mechanism in Section 149A of the 1975 Act which allows the trial judge to permit the Crown to lead further evidence in the light of defence evidence or argument which could not have been anticipated. But, as was recognised by the Lord Justice General in the Ross case, that can be a somewhat unsatisfactory and inconvenient solution. The weight of opinion in that case indicated that it might be preferable to make the defence of automatism one of the special ones in the sense that notification should be given. That is what the amendment seeks to do.
One would therefore have to consider what would happen if for some reason notification was not given, because one is aware that that can occasionally happen. The question therefore arises as to what should then be the position. In practice, even in the case of special defences, the Crown has, from time to time, waived the necessary notice. But some doubt has been expressed about the competency of doing so. Therefore it has been thought desirable on this occasion while the matter of special defences is being looked at to amend the legislation to make it quite clear that the court can waive the notification requirement when it is considered appropriate to do so. That is why we have tabled the amendments to Schedule 5.
Also included in this group of amendments is a pre-consolidation amendment to require the defence in High Court cases to give 10 days' notice of its witnesses and productions. That is in line with the existing requirement on the defence to lodge any special defence

33
10 days before the trial starts. I hope that the House will feel able to support the amendments on the basis that they should facilitate the smoother conduct of trials and assure fairness both to the Crown and to the accused. I beg to move.
Lord McCluskey: My Lords, I support the amendment. I had intended to put down one in similar terms. Although the noble and learned Lord the Lord Advocate has presented the matter as a somewhat technical one, its basis is that it imposes upon the defence a duty to give advance notice of a particular line of defence, effectively; for example, as in the Ross case, "I did these things, but I am not criminally responsible because without my knowledge somebody else laced my drink with LSD" or some such substance. It is only right and fair that if such a defence is to be advanced, notice of it should be given before the trial because there may well be matters to be investigated. I am all in favour of the trial itself being as fair as possible and that we should get rid of all possibilities of ambush. For those reasons, I support the amendment.
Lord Macaulay of Bragar: My Lords, I add my support for the amendments in the area of technical defences. I agree with the noble and learned Lord, Lord McCluskey, that both lines will require a substantial amount of investigation as in cases such as the one he has instanced. The law on these two defences—if they were indeed defences at one time—has been clouded by legal and practical obscurity. I hope that the application of this clause will clear the skies.
On Question, amendment agreed to.
Lord McCluskey Lord McCluskey had given notice of his intention to move Amendment No. 10:
After Clause 10, insert the following new clause:
("Investigation of line of defence
.—(1) In section 20A of the 1975 Act, after subsection 3, there shall be inserted—
"(3A) The accused, before being asked any question by the prosecutor, shall be told by the sheriff that, if he answers any question in such a way as to disclose a line of defence (as for example alibi, incrimination, or the consent of an alleged victim), being a line of defence which is capable of being investigated at that time, the prosecutor will then be under a legal duty to investigate that line of defence thoroughly and as soon as is reasonably practicable".
(2) After subsection (4) there shall be inserted—
"(4A) After any examination under this section has been completed it shall be the duty of the prosecutor, as soon as is reasonably practicable, personally or through his officers or officers of police, to investigate thoroughly any line of defence which is capable of being investigated at that time, provided it is a line of defence which has been disclosed by the accused in answer to any questions put to him by the prosecutor, and it shall be the duty of the prosecutor to disclose the full results of that investigation to the accused not later than the date of service of the indictment under section 70 of this Act".").
The noble and learned Lord said: My Lords, in the light of what has just happened, I shall not move the amendment.
[Amendment No. 10 not moved.]
Clause 11 [Agreement of evidence]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 11:
Page 6, line 34, after ("accused") insert ("(or each accused if more than one)").
The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 13 and 19. The amendments are of a technical nature. They amend the new solemn and summary provisions which impose a duty to agree evidence to ensure that where there are several co-accused, all of the parties to proceedings will be under that duty.
The duty under Clause 11 is imposed only upon those accused who are legally represented. The purpose of these amendments is to ensure that in proceedings where there are several co-accused, one or more of whom is not legally represented, the duty will not apply. It would be illogical to impose a duty to agree evidence on one co-accused if that evidence would then have to be led orally in relation to another co-accused. I beg to move.
On Question, amendment agreed to.
Lord McCluskey Lord McCluskey moved Amendment No. 12:
Page 6, line 38, leave out ("unlikely to") and insert ("may not").
The noble and learned Lord said: My Lords, I return briefly to this matter which I mentioned in Committee. Under the system which the Bill is introducing or taking forward it is open to parties to reach agreement upon certain matters. I believe that parties should not only be free to reach agreement; they should be encouraged as much as possible to reach agreement. Accordingly, by removing the words "unlikely to" and substituting "may not", I am seeking to widen or increase the possible areas in which the parties may be able to reach agreement. If one side or the other does not know whether a particular fact which he wishes to establish is likely to be disputed, he says, "Well, it may be, it may not be, but I shall put it forward and if the other side agrees, well and good, but if it does not, then no harm has been done". That is a straightforward matter.
In dealing with the matter in Committee, the noble and learned Lord the Lord Advocate (at col. 376 of the Official Report) was concerned that such an amendment would impose burdensome duties upon the parties. I am sure that the parliamentary draftsmen could deal with that and that it would be possible to frame the matter so that it was an encouragement rather than a positive duty.
I am interested in achieving the maximum amount of agreement possible so that the trial can concentrate on those matters which are truly in issue. I should mention that the same point is covered by Amendment No. 29 which stands in my name. However, that is different because it is not affected by the point made by the noble and learned Lord the Lord Advocate in relation to the imposition of burdensome duties.
It may be that the Government are not happy to accept the amendment at the moment, but I hope that in the future they will consider whether they can widen the scope of the clause along the lines indicated. I beg to move.
Lord Rodger of Earlsferry: My Lords, I have listened carefully to what the noble and learned Lord,

35
Lord McCluskey, has said, but we remain of the view that the drafting which we have adopted puts the balance correctly. For the reasons which I gave in Committee, we believe that it is desirable that a duty should be imposed in certain circumstances. We believe that the correct balance should be achieved and that, as Clause 11 imposes a duty, that duty should not be imposed where the results are not likely to be successful. That is why the Bill is drafted as it is. If people wish to go further, they are free to do so, but it is in that area only in which the duty is imposed. I shall reflect upon what the noble and learned Lord said, but we believe that the duty is correctly described in that way.
Lord McCluskey: My Lords, in the light of the encouraging words at the end of that answer, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendments Nos. 13 to 19:
Page 6, line 39, after ("party") insert ("(or by any of the other parties)").
Page 7, line 2, leave out from first ("the") to ("shall") and insert ("agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties)").
Page 7, line 5, leave out ("against an accused who") and insert ("as respects which the accused (or any of the accused if more than one)").
Page 7, line 14, after ("accused") insert ("(or each accused if more than one)").
Page 7, line 19, after ("party") insert ("(or by any of the other parties)").
Page 7, line 25, leave out from first ("the") to ("shall") and insert ("agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties)").
Page 7, line 28, leave out ("against an accused who") and insert ("as respects which the accused (or any of the accused if more than one)").
On Question, amendments agreed to.
Clause 12 [First and preliminary diets in solemn proceedings]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 20:
Page 7, line 43, after ("shall") insert (", so far as is reasonably practicable,").
The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 24 and 26. These amendments take account of a suggestion made by the noble and learned Lord, Lord McCluskey, in Committee. The new duty imposed upon the court by Clauses 12 and 13 will be qualified by the words:
"so far as is reasonably practicable".
That change removes the imposition of an absolute duty to ascertain something which the court may not in all cases be able to ascertain, while ensuring that the court
36
will have to make every effort to ascertain whether the case is likely to proceed on time in the interests of the witnesses and others who may otherwise be called to court unnecessarily. I beg to move.
4.45 p.m.
Lord McCluskey: My Lords, I am happy to see the Government stumbling towards the light. I still believe that my solution is rather more elegant than that which is proposed by the Government. The problem with the words,
"so far as is reasonably practicable",
is that, when they are inserted in a new Act of Parliament, they trail clouds and clouds of earlier decisions by the courts all around the world and certainly on both sides of the Border in the United Kingdom. Arguments start about what is meant by those words.
My solution, which appears in Amendment No. 21, seeks merely to change the duty from a duty to ascertain something to a duty in inquire. The point is that, if the court has a duty, even if it is qualified by the words proposed by the Minister, to ascertain something, that implies a corresponding duty on the defence to take part in the exercise. It appears to me that that is an insidious way in which to invade the right of silence and a much more insidious way than anything proposed in relation to the matters which we discussed earlier.
I still hope that the Government will not close their minds on the matter altogether and that they will consider whether or not my solution is rather more elegant. However, I do not oppose the Government's amendment, but I hope that they will eventually see the light.
Lord Macaulay of Bragar: My Lords, I support the approach suggested by the noble and learned Lord, Lord McCluskey. It is well known throughout the world that as soon as the words "reasonable" and "practicable" find a place in the statute book, lawyers sit and clap their hands. Perhaps adoption of the noble and learned Lord's approach would mean that they have nothing to clap about.
Lord Fraser of Carmyllie: My Lords, when I originally moved the amendment I expected there to be cries of "Author!" because in Committee the noble and learned Lord, Lord McCluskey, said:
"It may be that the noble and learned Lord the Lord Advocate will consider using some such phrase as 'so far as reasonably practicable'".—[Official Report, 12/1/95; col. 385.]
In such circumstances, the solution which the noble and learned Lord presented was elegant and we were happy to accept it.
On Question, amendment agreed to.
[Amendment No. 21 not moved.]
The Deputy Speaker (Lord Brougham and Vaux): My Lords, I should point out that there is a printing error on the Marshalled List and the amendment should read "Page 8, line 28".
Lord McCluskey Lord McCluskey moved Amendment No. 22:
Page 8, line 28, at end insert ("but the accused shall not be obliged to answer any such question and if he does not answer that shall not be commented upon by the judge or the prosecutor at any later stage of the proceedings.").
The noble and learned Lord said: My Lords, I apologise for that mistake. I sought to correct it but the correction did not get through.
The amendment is worded in such a way so as to draw attention to the point on which I touched briefly a few moments ago. At this preliminary stage the judge is concerned with procedural matters and matters in relation to the preparation for the trial. I am anxious to have a provision which ensures that an accused person is not obliged to answer questions put to him by the judge at that stage. If he were obliged to answer, that would be an invasion of the right of silence, although not much comment has been made about that.
I insert those words to protect the right of an accused person or the solicitor acting on his behalf to decline to assist the court if assistance has to be refused in relation to the proper exercise of the right of silence. I beg to move.
Lord Fraser of Carmyllie: My Lords, the purpose of Clause 12 is to ensure that cases are as fully prepared as possible before the trial by all parties. Our intention in introducing this clause is to ensure that better use is made of court time, with fewer trials being cancelled at the last minute and fewer victims, witnesses and jurors being inconvenienced.
There appear to be no good reasons why an accused should wish to refuse to answer questions at a first diet. He will not be asked about his defence, although he will have to state his plea. The questions which may be directed to him are questions about the state of preparation of his case. They will be of a procedural nature: for example, whether he has cited all the necessary witnesses and expects them to be available, whether he has received and considered any statements from the prosecution and whether he has agreed any of the facts therein.
There will be no consideration of the substance of the case. So there is no risk that he will prejudice his defence by answering questions. Were there to be such a risk, I should understand the noble and learned Lord's anxiety. We are giving no power to the court to compel an accused to answer such questions. However, to build in a statutory right not to answer questions of such a procedural nature would give quite the wrong impression of the nature of the proceedings and would be likely to undermine the effectiveness, which I believe we are all agreed is both necessary and desirable, of the whole procedure.
Further, it is unlikely that at subsequent proceedings there would be any need to comment on what had happened at the first diet. But a blanket prohibition on comment as proposed would be inappropriate. For example, if an accused person sought an adjournment of
38
the trial for reasons which ought to have been apparent earlier, it would seem to me to be extraordinary if the trial judge could not then inquire of the accused why he had not made the court aware, at the earlier diet, of the problem which necessitated adjournment and had thereby inconvenienced not only the court and the prosecution, but also all the witnesses and jurors.
If the amendment were allowed, I would be concerned that it would, as I said, undermine the effectiveness of the whole procedure. With that explanation regarding the limited type of questions that we believe might occasionally be asked, I urge the noble and learned Lord to withdraw his amendment.
Lord McCluskey: My Lords, I shall certainly do so. However, in turn, I urge the Minister to think again on the matter. If the noble and learned Lord looks at the new Section 75A to the 1975 Act, he will see from paragraph (b) (at the top of page 8 of the Bill) that one of the things that the court has to ascertain so far as is reasonably practicable is,
"the extent to which the prosecutor and the accused have complied with the duty under Section 84A(1)".
The latter is a new section which is being put in the 1975 Act under Clause 11. The new section imposes upon the accused a duty to,
"identify any facts…which he would, apart from this section, be seeking to prove".
That seems to me to be a formal imposition on an accused person to disclose facts which he is seeking to prove, providing that they meet the other elements of the section. It also appears to me to be possibly tainted by the accusation that might be made; namely, that it is an invasion of the accused's right of silence.
As always happens after a Bill has been scrutinised in this House, I have no doubt that the Government will look again at the wording. I hope that the Minister will bear that in mind and ascertain whether a different form of wording would be appropriate. I have no objection to the point in principle. I entirely agree that procedural matters should, if possible, be sorted out so that the trial becomes a real bare knuckle contest if that is what it has to be under the adversarial system. However, I urge the Government not to close their minds to the possibility of improving the wording. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 23 not moved.]
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 24:
Page 9, line 12, after ("ascertain") insert (", so far as is reasonably practicable,").
On Question, amendment agreed to.
[Amendment No. 25 not moved.]
Clause 13 [Intermediate diet in summary proceedings]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 26:
Page 9, line 42, after ("inserted") insert (", so far as is reasonably practicable,").
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 27:
After Clause 13, insert the following new clause:
("Delay in trial Calculation of specified period where accused detained outside Scotland
.In section 101 of the 1975 Act (prevention of delay in trials), after subsection (1) there shall be inserted the following subsection—
"(1A) In calculating the period of 12 months specified in subsection (1) above there shall be left out of account any period during which the accused is detained, other than while serving a sentence of imprisonment or detention, in any other part of the United Kingdom or in any of the Channel Islands or the Isle of Man in any prison or other institution or place mentioned in subsection (1) or (1A) of section 29 of the Criminal Justice Act 1961 (transfer of prisoners for certain judicial purposes)."").
The noble and learned Lord said: My Lords, your Lordships will recall the debate in Committee on the Rowan case, which involved a prisoner held on remand in England being unable to be transferred to Scotland. The Crown had to seek an extension to the time limits for commencement of the trial in Scotland to ensure that the case would not be time barred.
The noble and learned Lord, Lord McCluskey, promoted an amendment in Committee which I accepted in principle. The amendment promotes a similar solution to that envisaged by the noble and learned Lord. It differs only in minor drafting respects and extends the provision to include the Channel Islands and the Isle of Man.
As I mentioned in Committee, the Government look on this as in interim solution to the problems which have been identified. To resolve all the difficulties will require amendment to United Kingdom legislation which is beyond the scope of the Bill. Nevertheless, the amendment will address the implications for Scottish proceedings. I beg to move.
Lord McCluskey: My Lords, I can certainly welcome the new clause. I also welcome the remarks just made by the noble and learned Lord the Lord Advocate; namely, that it is only a temporary measure. In Scotland, we are very proud of the fact that we bring people to trial swiftly. However, the real answer is to find a means whereby persons who are detained in a prison or some such place in the United Kingdom, but outside of Scotland, can be brought to Scotland to face trial within the time limits imposed by Scottish procedure.
I recognise that we are discussing a matter that has to be addressed in UK legislation. However, there seems to be a good deal of legislation in relation to criminal justice in the United Kingdom. Therefore, there should be an early opportunity to achieve that aim. I urge the noble and learned Lord to press that suggestion upon his colleagues in government. In the meantime, I welcome the amendment.
On Question, amendment agreed to.
Clause 14 [Uncontroversial evidence]:
[Amendment Nos. 28 to 31 not moved.]
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 32:
Page 11, leave out line 20 and insert ("evidence as to any such fact as is specified in the direction, notwithstanding that a witness
40
or production concerned is not included in any list lodged by the parties and that the notice required by sections 81 and 82(2) of that Act has not been given.").
The noble and learned Lord said: My Lords, when the matter was last before your Lordships in Committee, I undertook to consider the drafting of Clause 14 to see whether some improvements might be made in the light of certain observations made by the noble and learned Lord, Lord McCluskey. We have given careful consideration to what was said in Committee, but we have concluded that the clause should remain broadly as originally drafted.
The proposal of the noble and learned Lord, Lord McCluskey, would have returned the position to that outlined in the report of the Scottish Law Commission. However, we have concluded that it is desirable to have the facility available to both parties. Nonetheless, during the course of our consideration, various issues arose. In particular, we thought it correct to bring forward the above amendment which is a clarification. In the circumstances, where a court directs that a fact that has hitherto been considered uncontroversial because of the provision has to be proved in the normal way, it should be open to the party requiring to bring the evidence for such proof to do so even though he has not been able to include a witness or a production in any list previously lodged by him or has not been able to give the requisite notice in terms of Sections 81 and 82(2) of the 1975 Act. I believe that it is a useful amendment which makes the position quite clear. Again, it will allow matters to be dealt with effectively at the trial. I beg to move.
Lord McCluskey: My Lords, I am disappointed that the Government have not felt able to go along the road suggested by the Scottish Law Commission which I have advocated and supported. However, there is some hope in what the noble and learned Lord the Lord Advocate said; namely, that we may be able to go forward from where we are at present in relation to agreeing evidence. One way in which the noble and learned Lord can secure a real advance is to take advantage of what he has done and what the Government are doing in this particular clause by providing what the noble and learned Lord called the "facility" to both parties and introducing a regime in the Crown Office and the fiscal service whereby prosecutors think very positively about the possibility of coming forward with minutes of agreement. Hitherto the possibility for a minute of agreement has existed. This takes the possibilities a little further.
I am sure that if the noble and learned Lord the Lord Advocate were to think positively about that it would ultimately be to the good of us all and would save a lot of time and expense. He could encourage a new culture among prosecutors which would mean that they would seek to obtain agreement on all matters that perhaps are not in dispute. I hope that the noble and learned Lord will give consideration to issuing an instruction to those for whom he is responsible in this regard. However, I would not oppose—indeed I would support—the amendment.
On Question, amendment agreed to.
5 p.m.
Clause 15 [Evidence of biological material]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 33:
Page 11, line 27, leave out ("shall") and insert ("may").
The noble Lord said: My Lords, this amendment refers to the introduction of evidence as to the characteristics or composition of any biological material, notwithstanding that neither the material nor a sample is lodged as a production. It is a simple amendment which seeks to remove the word "shall" from page 11, line 27 of the Bill, and introduce the word "may". This amendment reflects the spirit of the previous amendment, which the noble and learned Lord the Lord Advocate moved, to give a degree of flexibility in the introduction of evidence. It may well be that there are good reasons why the sample is not available or lodged.
The inclusion of the word "may" would give the court a discretion—applying the touchstone of fairness—as regards why the sample or material is not lodged. As the clause presently stands, the court has no flexibility at all and presumably could not hear any argument in relation to the non-production of material or a sample from either the Crown or the defence point of view. It may save a lot of trouble—perhaps from an appeal point of view—if the court was given that flexibility to consider the matter in the light of any evidence or submissions presented to the court in relation to the particular matter under review in Clause 15. I beg to move.
Lord Rodger of Earlsferry: My Lords, the Government cannot accept this amendment. The position is that the clause is carefully focused in relation only to evidence as to characteristics and composition of any biological material. The position is that where it is only relating to characteristics and composition, these are matters about which evidence can properly be given in the absence of a sample and that evidence would not—for example, if it were relating to an analysis of the composition—be advanced by having simply present in court the sample itself.
The reason this has been brought to notice is because nowadays in particular people are sensitive to the health hazards which can arise from having, for example, certain blood samples in court. For that reason, it has been thought correct to address this matter. The matter has to be done on the basis of a general rule and not on the basis of a mere discretion because it has to be clear what the position is so that the prosecution knows whether the samples have to be there. If one had the kind of rule which the noble Lord envisages, that would introduce uncertainty, and it is to get rid of the uncertainty which has arisen because of certain decisions of judges in cases as to admissibility of evidence that this matter is being put on the statute book. Therefore I cannot accept the amendment.
Lord Macaulay of Bragar: My Lords, I am obliged to the noble and learned Lord the Lord Advocate for that explanation. I am not too happy with it but no doubt the matter will be monitored throughout court
42
proceedings and we shall see whether any serious debates take place in the course of criminal proceedings as regards the application of this particular section which, as I see it, may have certain evidential dangers. However, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 [Routine evidence]:
The Deputy Speaker: My Lords, I inform the House that if Amendment No. 34 is agreed to, I cannot call Amendment No. 35. I now call Amendment No. 34.
[Amendment No. 34 not moved.]
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 35:
Page 13, line 4, leave out ("which") and insert:
("(7C) No order shall be made under subsection (1A) above unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
(7D) A statutory instrument containing an order under subsection (2A) (b) (ii) above").
The noble and learned Lord said: My Lords, this amendment is brought forward as a consequence of an undertaking which was given to apply the affirmative resolution procedure to an order amending Schedule 1 to the Criminal Justice (Scotland) Act 1980. In moving the amendment, I should perhaps make it clear to the House that I intend to bring forward at a later stage an amendment which will provide additional items for Schedule 1 to the 1980 Act where it is considered that routine evidence provisions are appropriate. That is in order that, as far as possible, the matter should be tidied up in primary legislation before any question of using this power arises. I beg to move.
On Question, amendment agreed to.
Clause 18 [Evidence of criminal record and character of accused]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry had given notice of his intention to move Amendment No. 36:
Page 13, line 29, leave out from beginning to ("Act") and insert: (".—( ) In section 141 of the 1975 Act (accused competent witness for defence in solemn proceedings)—

(a) in subsection (1), in paragraph (0 (ii) of the proviso—

(i) after the word "character" where it first occurs there shall be inserted "or impugning the character of any victim who is deceased"; and

(ii) after the word "prosecution" in the second place where it occurs there shall be inserted "or of any such victim"; and

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

"(1A) In a case to which sub-paragraph (ii) of paragraph (f) of the proviso to subsection (1) above applies, the prosecutor shall be entitled to ask the accused a question of a kind specified in that paragraph only if the court, on the application of the prosecutor, permits him to do so.
(1B) An application under subsection (1A) above shall be made in the course of the trial but in the absence of the jury, the victim, any person cited as a witness and the public.".
( ) After section 141 of that").
The noble and learned Lord said: My Lords, government Amendments Nos. 36, 37, 40, 41, 42, 43, 46 and 47 deal with a number of issues arising from Clause 18. The intention behind Clause 18 was I think

43
apparent at the time of the discussion in Committee. A number of issues have arisen during the consideration of this clause both in the light of what was said in Committee and in the light of further work which has been done on it. I must say to your Lordships—it is with regret that I say this—that I am not satisfied that the amendments as they appear on the Marshalled List today would fully address all the points. In particular, I am not satisfied that they deal properly with the inter-relationship of Section 160 of the Act and Section 141, and what would be Section 141ZA. For that reason, it would not be my intention to move these amendments today.
In saying that I should also say that, partly in the light of the observations made by the noble and learned Lord, Lord McCluskey, as to the use of the word "victim", I think that the splattering of the term "victim" in Amendments Nos. 40, 41, 46 and 47 in the place of "complainer" would not be entirely helpful. Rather than move the amendments today and then have to re-amend them, I believe it is better that I should not move them. I do not propose to move the amendments. I apologise to the House that that is so but I hope at least that the amendments as they appear on the Marshalled List will give a general indication of the thinking of the Government on the matter. I shall not move Amendment No. 36.
[Amendment No. 36 not moved.]
[Amendment No. 37 not moved.]
Lord McCluskey Lord McCluskey moved Amendments Nos. 38 and 39:
Page 13, line 38, leave out from ("prosecutor") to end of line 39.
Page 14, line 7, leave out from ("prosecutor") to end of line 9.
The noble and learned Lord said: My Lords, these amendments raise the same point as Amendments Nos. 44 and 45. Your Lordships will recall that on the first day of the Committee on 12th January at col. 391 of the Official Report, Volume 560, No. 22, this matter was dealt with. I give the reference because I think it is important that those who look at this matter in another place can read the arguments in full. I do not propose to repeat them at this stage in the Bill.
This clause as presently drafted, and indeed the amendments which the noble and learned Lord the Lord Advocate will not move, take us in the same direction. They are a giant step away from a well established principle. The principle was this: that where an accused person chose to attack the character of a witness, or for that matter the character of a prosecutor, he then put his own character in issue, provided he gave evidence. If he was saying that the witnesses were against him and should not be believed because they had bad characters, then if the accused gave evidence it was only right and proper that his character, too, should be brought to the attention of the jury so it could make an equal judgment about the parties.
The new provisions put the character of an accused person in issue even if he does not give evidence. That is the whole essence of the matter, as your Lordships will see from what is currently appearing in line 31 of new Section 141ZA; namely, where the accused does
44
not give evidence on his own behalf but evidence is led, then his character can be attacked. In my view, that is unprecedented in our law. The noble and learned Lord the Lord Advocate put forward what I do not think is a respectable argument—the argument based upon Section 160(2) which deals with a totally different situation. An amendment was promised on the previous occasion. We shall have to wait with baited breath to see what it contains.
We are moving, without due and careful consideration, away from a situation which has been part of our law from the beginning. I have asked to see the justification for it. I should like to know who came up with the idea and who was consulted about it. In my view, we should not alter a very old rule of law which favours justice without thinking the matter through and consulting properly about it.
As some of your Lordships will be aware, because I mentioned the fact in Committee, I have been looking at the penal and criminal justice systems in North America, particularly in California. They are moving towards a situation in which the whole character of an accused person is laid before the court before the jury is asked whether he committed a particular act on a particular day. It would be deplorable if we were to go down that road. However, this is a giant and substantial step in that direction. I hope that the Government will consider carefully whether they want to go ahead with this proposal. In order that the matter may be discussed, I beg to move.
Lord Rodger of Earlsferry: My Lords, as was said when the matter was discussed in Committee, the Government see the proposal in the clause as one which should achieve substantial justice. As the noble and learned Lord said, at present the position is that when somebody brings the character of the prosecutor or the witnesses or his own character into issue then if he gives evidence he may be asked questions about his previous convictions and so on.
In addition, with the greatest respect to the noble and learned Lord, Lord McCluskey, it is clear that, by reference to Section 160(2) in relation to the general bar on leading evidence of previous convictions, it is possible to do so where an accused person has given evidence suggesting that he is of good character. The Government seek to generalise that provision and to allow that to take place in addition where the accused has attacked the character of the prosecutor and his witnesses.
The reason, which I submit is a sound one, is that if the defence has been conducted in such a way as to suggest that the witnesses for the prosecution are of bad character it is surely only right that a rounded picture should be presented to the jury and that they should be made aware also of any relevant characteristics of the accused and that he himself is not necessarily of good character. If that is not the case then the jury are presented with a false picture.
However, of course the Government accept that it is necessary, in order that such a rule should not be capable of wreaking injustice, that the whole matter

45
should be subject to a provision that the permission to lead such evidence should be given by the court. That is what is envisaged.
I believe that that safeguard, which is one that I have indicated that we wish to put also on the face of the statute in Section 141 of the existing legislation, will ensure that the proposal will not have the negative effects suggested by the noble and learned Lord, Lord McCluskey, but will allow juries, in an appropriate case, to see the full picture.
Of course I share the distaste of the noble and learned Lord, Lord McCluskey, for any general suggestion that juries would regularly hear about the accused's previous convictions, and so on. That would not assist. That is not proposed here. Only where he has put such matters at issue would that be done, with the permission of the court, by way of leading evidence. I believe that that balance is correct. I ask the noble and learned Lord to withdraw his amendment.
5.15 p.m.
Lord McCluskey: My Lords, I shall certainly withdraw the amendment because I do not propose to divide the House from these Benches on such a matter. However, I wish to remind your Lordships of the essence of the point.
First, when the defence representative attacks the character of a Crown witness, he does so not because he wants to show that the Crown witness is a bad character, but because he wants to show that the Crown witness is not credible. It is essentially his credibility that he is attacking. He does that by means of attacking the character of the witness. Accordingly, if he has done that, when the accused enters the witness box to give evidence his own character is relevant as shedding light upon his credibility. But the character of the accused person is not an issue in the case other than in those special circumstances.
Another case which arises under the new section is the case of an attack upon the character of a deceased person. There is a very famous case in Scotland of Daniel Patrick Boyle. He was a young man who was accused of murdering a much older man. In the event it appears that a fight started involving the older man and some companions armed with lethal weapons and a number, including Boyle's friend, also armed with lethal weapons. At some stage one of Boyle's friends went down and was attacked by the others with lethal weapons. Boyle rushed in himself, armed with a knife, to rescue his friend. In that context, the character of the man he stabbed and who died was of great importance. The man who was killed was William Murray Bennett, a well known Glasgow villain. He had been a Glasgow villain for a quarter of a century. Anyone seeing him brandishing a knife, an iron bar or a billiard cue—which I believe he had on that occasion—would know that he meant business. Therefore, it was perfectly relevant to bring out the fact that that man had a fearsome reputation and record for criminal activity. That should not have exposed the record of Boyle to examination by the jury because it was not a relevant consideration, whereas the record of the deceased was relevant.
46
There are special cases. I do not favour a change in the law which would result in the character of the accused becoming an issue in a trial except in the special circumstance to which we have become accustomed. Therefore, I hope that the Government will think again. In the meantime, I beg leave to withdraw the amendments.
Amendments, by leave, withdrawn.
[Amendments Nos. 40 to 48 not moved.]
Clause 22 [Evidence in relation to sexual offences]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 49:
Page 16, line 41, leave out from beginning to second ("of") and insert (".—(1) In section 141A(2)").
The noble and learned Lord said: My Lords, in moving Amendment No. 49 I shall speak also to Amendment No. 51.
The noble Lord, Lord Macaulay of Bragar, will recall that I accepted that the amendment which he put down to the clause at the Committee stage had merit. I am therefore pleased to bring forward an amendment which will introduce a revised form of wording to extend the protection afforded by Sections 141A and 364A of the Criminal Procedure (Scotland) Act 1975 against questioning on the previous sexual history or character of a witness in a sexual offence trial to those offences covered by Sections 2B and 2C of the Sexual Offences (Scotland) Act 1976.
I have taken the opportunity of reviewing whether there are other sexual offences which might usefully be added to the list covered by the provisions. We have concluded that offences under Section 7 of the Sexual Offences (Scotland) Act should also be included. That section refers to acts of gross indecency between males. I beg to move.
Lord Macaulay of Bragar: My Lords, I wish to put on record my thanks to the noble and learned Lord the Lord Advocate for taking on board the matters which were raised at Committee stage.
On Question, amendment agreed to.
[Amendment No. 50 not moved.]
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 51:
Page 16, line 44, leave out from ("women;";") to end of line 46 and insert:
("(b) after sub-paragraph (i) of paragraph (g) there shall be inserted the following sub-paragraphs—

"(ia) section 2A (incest);

(ib) section 2B (unlawful sexual intercourse with stepchild);

(ic) section 2C (unlawful sexual intercourse of person in position of trust with child under 16);"; and

(c) after sub-paragraph (iv) of that paragraph there shall be inserted the following sub-paragraph—

"(iva) section 7 (gross indecency between males)".

(2) In section 346A(2) of that Act (corresponding provision in relation to summary proceedings)—

(a) after paragraph (b) there shall be inserted the following paragraph—

"(ba) clandestine injury to women;";

47
(b) after sub-paragraph (i) of paragraph (f) there shall be inserted the following sub-paragraphs—

"(ia) section 2A (incest);

(ib) section 2B (unlawful sexual intercourse with stepchild);

(ic) section 2C (unlawful sexual intercourse of person in position of trust with child under 16);"; and

(c) after sub-paragraph (iv) of that paragraph there shall be inserted the following sub-paragraph—

"(iva) section 7 (gross indecency between males)".").

On Question, amendment agreed to.
[Amendment No. 52 not moved.]
Clause 26 [Comment by prosecutor on accused's failure to give evidence]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 53:
Leave out Clause 26.
The noble Lord said: My Lords, there was considerable debate about this proposal at Committee stage and I do not intend to go over the same ground again. The amendment stands in my name and the names of my noble friend Lord Carmichael and the noble Earl, Lord Mar and Kellie. It seeks to delete the Government's proposal that a prosecutor should be able to comment on an accused's so-called failure to give evidence. The Law Society of Scotland disagreed with the proposal in response to the Scottish Office consultation paper on the right to silence and other matters.
Without going over old ground, at present the prosecutor can comment on the fact that the Crown evidence is uncontradicted. Allowing the prosecutor to comment beyond the present provision is a dangerous intrusion into the law, in my submission to noble Lords. There is no reason why a prosecutor should have the right unless we go the whole road and say that the so-called failure of an accused person to give evidence will, per se, establish any material fact in the Crown case. What we will end up with is a porridge of instructions given to the jury by the judge.
The judge has to take on board not only his own onerous duties in heavy cases but a duty to control the prosecutor. Obviously he cannot control the prosecutor in the course of the prosecutor's remarks and would have to deal with the matter in the course of his charge to the jury. If the prosecutor makes improper remarks or remarks without justification about the accused not going into the witness box, at the close of the prosecutor's case the defence will seek to lead further evidence. That would create other difficulties in the proper administration of justice. As the Minister said at an earlier stage in the consideration of the Bill, we are all anxious to streamline the process of justice in Scotland. In my view, Clause 26 drives a coach and horses through the general provisions of the law in Scotland at the moment.
The amendment has been put down again deliberately to ask the Government to consider further consultation with the concerned parties, for example, the Law Society, the Law Commission, Bar associations, the Faculty of Advocates and so on. I do not know whether
48
there is a body representing accused or convicted persons apart from themselves. I do not ask for a Royal Commission because we know what happens to them: they disappear into the mist, like John Wayne riding off into the sunrise at the end of a Western. Then he suddenly reappears in the next film. I suggest that there would be no harm at this stage in the Government taking on board the suggestion to convene a meeting of all interested parties and delaying the matter, which will, of course, be considered again in another place. I ask them to withdraw their proposal and to support my amendment. I beg to move.
The Earl of Mar and Kellie: My Lords, I wish to continue to record my reluctance and caution about the inclusion of Clause 26 in the Bill. I fear that there may be a possible erosion of the accused's rights and for that reason I continue to oppose the inclusion of the clause in the Bill.
Lord McCluskey: My Lords, I have already sought to make my position plain. I support the amendment which the Government propose to the law in this regard. I cannot see that it is an invasion of the right of an accused person. It is the removal of an artificial restriction upon what one would sensibly expect—namely, that the prosecutor should draw attention to that which is obvious.
There is nothing more obvious to a jury when they have sat in a criminal court for two or three days or two or three weeks and observed the evidence being given against the accused person. They reach the stage when the accused has the opportunity to go into the box and give evidence. If he does not do so, then of course the jury observe that. They do not need to be told by judges or by others, but in certain cases the very absence of that evidence might be of some significance in determining what inferences should be drawn from the other evidence. Silence cannot add to the evidence which is available to the jury, but the absence of evidence from the accused to explain facts which he ought to be able to explain should be a matter on which the prosecutor can comment.
All I am interested in is that trials should be real and that we should remove artificial restrictions. The law as at present worded in the 1975 Act contains an artificial restriction of long standing. I am happy that the Government should continue with the exercise of removing it.
Lord Rodger of Earlsferry: My Lords, the Government will continue with that exercise because we remain satisfied that the position is as the noble and learned Lord, Lord McCluskey, indicated. It is important to remember that we are not changing the law on sufficiency of evidence. That remains exactly the same. We are not introducing any new test to be applied by judges in charging juries. That remains exactly the same as it has been developed by the courts. All that we are doing is to allow the prosecutor to make a comment where it is appropriate. If the prosecutor goes too far, he may be corrected by the judge and the matter can be dealt with in that way. If he goes so far that the matter

49
is somehow incurable, that could be dealt with by the trial judge saying that the case should be deserted. Alternatively, it could be dealt with in the Appeal Court.
I do not believe that there are likely to be frequent occurrences. On the contrary, I believe that we shall find that, just as the judge may make an appropriate comment, so in future the prosecution will and the defence will then be able to deal with it. It will merely he an issue like any other in the case and that is the correct way to deal with it.
Lord Macaulay of Bragar: My Lords, I am interested in the noble and learned Lord's explanation. I notice that he said that the Government's proposal allows the prosecutor "to make a comment". That phrase was used by the noble Lord, Lord Hutchinson of Lullington, in the course of his contribution during the Committee stage, as I recollect it. However, this is not a question of the prosecutor making a comment and saying: "You will have noticed, by the way, that the accused has not given any evidence in the case". That is a comment. At present the prosecutor may make the comment that the Crown evidence stands uncontradicted. If, as the noble and learned Lord, Lord McCluskey, suggests, the jury are all-seeing about such matters, they will take that in, for what it is worth. However, this is not an artificial rule, as suggested by the noble and learned Lord.
The procurator fiscal, the advocate depute or the Lord Advocate is not a witness in any criminal proceedings. He is not and should not be entitled to put his view of the absence of the accused from the witness box, who is exercising a legal right within the system before the jury. If the jury wish to consider it, that is entirely a matter for them and they should not be fed by the prosecutor so that they have improper thoughts about the absence of the accused from the witness box.
Perhaps I may say for the record that it was suggested that John Wayne rode off into the sunrise. In fact, he rode off into the sunset. I hope that that makes no difference to the arguments presented to your Lordships' House. I am not satisfied with the explanation given by the noble and learned Lord the Lord Advocate and I seek the opinion of the House.
5.30 p.m.
On Question, Whether the said amendment (No. 53) shall be agreed to?
Their Lordships divided: Contents, 71; Not-Contents, 106.

Division No. 2

CONTENTS

Acton, L.

Desai, L.

Addington, L.

Diamond, L.

Archer of Sandwell, L.

Dormand of Easington, L.

Ashley of Stoke, L.

Eatwell, L.

Barnett, L.

Ennals, L.

Beaumont of Whitley, L.

Falkender, B.

Blackstone, B.

Falkland, V.

Bruce of Donington, L.

Farrington of Ribbleton, B

Carmichael of Kelvingrove, L.

Gallacher, L.

Castle of Blackburn, B.

Geraint, L.

Clinton-Davis, L.

Gladwin of Clee, L.

Dean of Beswick, L.

Graham of Edmonton, L.

50

Greene of Harrow Weald, L.

Masham of Ilton, B.

Gregson, L.

McCarthy, L.

Grey, E.

McIntosh of Haringey, L.

Harris of Greenwich, L.

McNair, L.

Haskel, L. [Teller.]

Merlyn-Rees, L.

Hollick, L.

Milner of Leeds, L.

Hollis of Heigham, B.

Monkswell, L.

Houghton of Sowerby, L.

Morris of Castle Morris, L

Hughes, L.

Nicol, B.

Irvine of Lairg, L.

Ogmore, L.

Jay of Paddington, B.

Plant of Highfield, L.

Jeger, B.

Prys-Davies, L.

Rea, L.

Jenkins or Hillhead, L

Redesdale, L.

Jenkins of Putney, L.

Richard, L.

Judd, L.

Seear, B.

Kennet, L.

Sefton of Garston, L.

Kilbracken, L.

Shepherd, L.

Lockwood, B.

Stoddart of Swindon, L.

Longford, E.

Taylor of Blackburn, L.

Lovell-Davis, L.

Tordoff, L.

Macaulay of Bragar, L.

Varley, L.

Mallalieu, B.

White, B.

Mar and Kellie, E. [Teller.]

Williams of Mostyn, L.

NOT-CONTENTS

Allenby of Megiddo, V.

Inchyra, L.

Balfour, E.

Inglewood, L. [Teller.]

Belhaven and Stenton, L.

Jellicoe, E.

Borthwick, L.

Keyes, L.

Boyd-Carpenter, L.

Kinnoull, E.

Braine of Wheatley, L.

Layton, L.

Brookes, L.

Lindsay, E.

Brougham and Vaux, L.

Long, V.

Burnham, L.

Lucas, L.

Cadman, L.

Lyell, L.

Caithness, E.

Mackay of Ardbrecknish, L.

Campbell of Croy, L.

Macleod of Borve, B.

Carnegy of Lour, B.

Marlesford, L.

Carnock, L.

Merrivale, L.

Carr of Hadley, L.

Mersey, V.

Charteris of Amisfield, L.

Miller of Hendon, B.

Chesham, L.

Milverton, L.

Chorley, L.

Mountevans, L.

Clanwilliam, E.

Napier and Ettrick, L.

Clark of Kempston, L.

Nelson, E.

Colwyn, L.

Norrie, L.

Cranborne, V. [Lord Privy Seal.]

O'Cathain, B.

Crook, L.

Orkney, E.

Cross, V.

Orr-Ewing, L.

Cumberlege, B.

Pender, L.

Davidson, V.

Peyton of Yeovil, L.

Denham, L.

Quinton, L.

Dixon-Smith, L.

Rankeillour, L.

Downshire, M.

Renwick, L.

Dundonald, E.

Robertson of Oakridge, L.

Elles, B.

Rodger of Earlsferry, L.

Elliott of Morpeth, L.

Saint Albans, D.

Elton, L.

Saltoun of Abernethy, Ly.

Faithfull, B.

Seccombe, B.

Fanshawe of Richmond, L.

Selborne, E.

Ferrers, E.

Shrewsbury, E.

Flather, B.

Shuttleworth, L.

Fraser of Carmyllie, L.

Skelmersdale, L.

Glenarthur, L.

St. Davids, V.

Goschen, V.

Stewartby, L.

Gray of Contin, L.

Strathclyde, L. [Teller.]

Halsbury, E.

Strathcona and Mount Royal, L

Harmar-Nicholls, L.

Sudeley, L.

Harrowby, E.

Swansea, L.

Hayhoe, L.

Swinton, E.

Henley, L.

Tebbit, L.

Hives, L.

Thomas of Gwydir, L.

Holderness, L.

Trumpington, B.

Hooper, B.

Ullswater, V.

Hothfield, L.

Vivian, L.

51

Wade of Chorlton, L.

Wharton, B.

Wakeham, L.

Whitelaw, V.

Weatherill, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.40 p.m.
Clause 27 [Sentence following guilty plea]:
Lord McCluskey Lord McCluskey had given notice of his intention to move Amendment No. 54:
Page 19, line 16, at end insert:
("( ) a victim impact statement as defined in section 217B(2).").
The noble and learned Lord said: My Lords, I do not intend to move this amendment, although I intend to speak on these matters in relation to Amendment No. 56. That is done in agreement with the noble Earl, Lord Mar and Kellie.
[Amendment No. 54 not moved.]
Lord McCluskey Lord McCluskey moved Amendment No. 55:
Leave out Clause 27.
The noble and learned Lord said: My Lords, this amendment is intended to leave out Clause 27. That clause provides that in determining what sentence to pass on an offender:
"a court may take into account… the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and… the circumstances in which that indication was given".
I do not oppose the clause because it is a bad idea to take account of an early indication—or any indication—by an accused person that he intends to plead guilty. In my view that is a perfectly proper observation; it is one which the courts in England have endorsed.
In Scotland a case was decided in 1987 called Strawhorn v. McLeod in which the court disapproved of a formal practice whereby a sheriff gave people a third off if they pled guilty at an early stage. The Lord Justice Clerk said in the report of that case—[1987] Scottish Criminal Case Reports, 413—at page 415 that no inducement should be offered to an accused person to plead guilty early.
It may be that it is wording of that kind that the Government have in mind when they want to change the mood in relation to those matters. I was surprised at the time and remain surprised by what the Lord Justice Clerk said in that case, speaking on behalf of the court. It is a matter of everyday practice that when an accused person appears before a court and says, "I plead guilty. I offered this plea three months ago and the Crown have not had to bring witnesses; they have not had to precognosce, take statements from victims and so forth and a lot of trouble and expense has been avoided", then the court is entitled to say that it will have regard to that and it is a pointer towards leniency. It cannot be made more formal than that. That is done and I certainly do it every day.
It may be that the Government have in mind not to overrule the case of Strawhorn, but simply to change the approach of the court to it. Can the Minister tell me whether the Government are trying to change the law and, if so, what change the clause is intended to achieve? I believe the clause to be unnecessary. As the
52
noble Lord, Lord Renton, pointed out in the Renton report, one should not legislate unnecessarily. There is enough material on the statute book without adding to it. I beg to move.
Lord Fraser of Carmyllie: My Lords, this clause was debated at some length in Committee. It enables the court, when considering what sentence to pass, to take into account the timing and circumstances in which an offender pled guilty. Its purpose is to make it clear to all that courts have such a power and, if possible, to encourage those considering a plea of guilty to tender it before the day set down for their trial.
The noble and learned Lord, Lord McCluskey, referred to the case of Strawhorn v. McLeod and I understand that in his view the clause is unnecessary because judges already exercise such power. However, the noble and learned Lord will recollect that during the course of the debate at Committee stage, the noble Lord, Lord Macaulay, appeared to understand the case of Strawhorn as prohibiting a reduction of sentence for guilty pleas.
With respect, I agree with the noble and learned Lord, Lord McCluskey. The effect of Strawhorn v. McLeod has been misconceived. I understand that the judgment focused on the prohibition of a declared practice of discounting. It did not prevent judges taking a guilty plea into account as long as they considered the circumstances of each case individually. However, the misconception which the noble Lord, Lord Macaulay, embraced seemed to me and to the Government to be widely shared—not in the High Court in Scotland but in the lower courts. It is for that reason we felt it necessary to bring forward Clause 26.
While the law on this issue may be fully understood by the noble and learned Lord, Lord McCluskey, I am concerned that it is not so understood in the lower courts and may not be understood by the accused person. While the noble and learned Lord may feel that it is unnecessary, perhaps I can say that the introduction of the clause was among the proposals that came from a number of his brother High Court judges in Scotland in response to the consultation on the issue. With that explanation I hope that he will withdraw his objection.
Lord Macaulay of Bragar: My Lords, for the record perhaps I may indicate that the Minister referred to introducing Clause 26. I believe that we are debating Clause 27.
Lord Fraser of Carmyllie: My Lords, I am grateful to the noble Lord. I was of course talking to Clause 27 and the proposal by the noble and learned Lord, Lord McCluskey.
Lord McCluskey: My Lords, in the light of the explanation offered by the Minister I am content to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 56:
After Clause 27, insert the following new clause:
("Victim Impact Statements
After section 217A of the 1975 Act there shall be inserted the following section—
"Victim Impact Statements.
217B(1) In any case in which an offender (whether or not he has pled guilty) has been convicted of an offence of assault, whether or not causing death, or of robbery or of any offence mentioned in section 141A of this Act the prosecutor when moving for sentence shall, if possible, place before the Court a victim impact statement as defined in subsection (2) below and the court shall have regard to it in determining the sentence or other disposal.
(2) A victim impact statement shall be a statement in a form to be prescribed by Act of Adjournal prepared by a legally qualified member of the procurator fiscal service and signed or otherwise authenticated by the victim (as defined in subsection (4) hereof) and containing information as to—

(i) the personal details of the victim, including his relationship (if any) to the offender,

(ii) the physical, emotional and mental consequences to the victim of the offence,

(iii) the financial or other patrimonial consequences to the victim of the offence,

(iv) (in any case in which the offender has been convicted on a plea of guilty) the victim's account of the offence,

(v) the victim's recommendation, if any, to the court as to whether or not leniency should be exercised in passing sentence,

(vi) any other matter prescribed by Act of Adjournal.

(3) Nothing in this section shall compel a victim to assist in the preparation of or to sign or authenticate a victim impact statement against his will.
(4) A victim for the purposes of this section is a person who has been the victim of an offence as specified in subsection (1) thereof or, in the case of an offence which has resulted in the death of the person assaulted, robbed or otherwise offended against, the widow, widower, child or parent of that person.
(5) A copy of the victim impact statement shall be served by the prosecutor on the accused not less than seven clear days before the trial diet."").
The noble and learned Lord said: My Lords, in moving Amendment No. 56, I shall speak also to Amendment No. 57. At Committee stage I proposed an amendment in the same terms as Amendment No. 56. However, it did not find its way into the record of proceedings and as a result people who purchased the Official Report were unable to follow precisely what it was that was being debated. I felt it desirable that it should appear in the record.
Perhaps I may draw your Lordships' attention to the features of the victim impact statements to which I want to refer. First, I am concerned with cases where the criminal process identifies a crime and a victim. Proposed new Section 217B(1) refers to a case where a defendant has been convicted of an assault, of a robbery or of an offence mentioned in Section 141A of the Act. It is therefore limited to the case where there has been a conviction and where that conviction has been of a kind specified in Section 141A plus assaults; that is to say, generally speaking, serious assaults plus sexual offences.
Subsection (2) says that the victim impact statement,
"shall be a statement in a form to be prescribed by Act of Adjournal".
54
I wish to draw attention to the fact that it is a written statement. I am totally opposed—the more I reflect on it the more opposed I become, if that is not a nonsense—to the idea that the victim should be allowed to address the court. For reasons explained earlier, that is something which we cannot tolerate in our system; it introduces the element of revenge which has no proper place in a court. However, partly in order to assure victims that their concerns have been properly taken into account, I am advocating that a victim impact statement be prepared. It will be a written document prepared by the procurator fiscal who occupies a special position in Scotland. He is not regarded as either the district attorney or the persecutor; he is regarded as exercising the functions of a minister of justice in an important sphere of criminal prosecutions.
The procurator fiscal will prepare, with the victim's assistance (only if the victim wishes it and not otherwise), a statement referring to the victim's personal details—the physical, emotional and mental consequences; the financial or other patrimonial consequences to the victim and, quite importantly, in any case in which the offender has been convicted on a plea of guilty, the victim's account of the offence.
I make this proposal because all too often a person who has suffered a serious assault or has been the victim of a sexual crime or other kinds of crime, discovers afterwards that the prosecutor has accepted a plea and the defence has been allowed to put forward an account of the matter, without contradiction, which does not square with the victim's understanding of what has really happened. I have known cases where the victim has felt cheated because his or her account of the matter has not been placed before the court. If we disappoint people, whether they be victims of crime or witnesses—or treat them badly in similar kinds of ways—a good deal of the population may become disaffected. The criminal justice system will not work if we lose the respect of people in that way.
I also propose that the written statement may contain other matters if, in the light of experience, it is thought desirable for other matters to be added. That can be done by subordinate legislation—an Act of Adjournal—enacted by judges of the High Court.
Subsection (3) provides that nothing shall compel a victim to assist. That means that the victims of crime are free to co-operate or not as they please. Subsection (4) attempts to give a definition to the word "victim", which is important in this type of case. Subsection (5) envisages service of a copy of the impact statement upon the accused person to give him time to respond to it. I believe that justice requires that an opportunity be given to respond to that kind of matter. Having outlined what I proposed, I shall move the amendment.
So far as concerns Amendment No. 57, this reflects a point that has already been discussed in an earlier amendment moved in the name of the noble Earl. However, in my case, Amendment No. 57 deals with the situation that arises in sentencing proceedings; in other words, when there has been a conviction and it has been identified that there has been a victim. I propose that in jury trials and sentencing in solemn proceedings, which in Scotland are more important than

55
the many non-jury criminal trials the victim, or the next of kin if the victim has died, shall have the right to attend all such proceedings. That will give rise to practical problems, but I believe that with goodwill they can be overcome. Although perhaps one need not discuss this matter as fully as on previous occasions, the Government are urged to take these matters on board. To assist them in that regard, I move Amendment No. 56.
The Earl of Mar and Kellie: My Lords, I wish to support this amendment. It seeks to build into the sentencing process a record of what has happened to the victim at the time of the offence and to record how he or she has subsequently coped with and got over the particular ordeal. Noble Lords will not be surprised that I support the amendment as it will assist the offender in hearing and beginning to understand what he or she has done. It will also assist the victim in that he or she will be recognised as a person of worth.
Lord Fraser of Carmyllie: My Lords, I said that I wanted to read carefully what had been said in Committee by the noble and learned Lord and others on victim impact statements. That I have done. I have also listened carefully to what the noble and learned Lord has said this evening. There is much with which I agree. There is no doubt that one of the frustrations that victims feel all too often is that the account of what has happened to them is not as full as it may be or does not reflect the degree of distress that they may have suffered as a result of assaults, or whatever they may be. I am sure that the noble and learned Lord, with his very much greater experience than my own in matters prosecuting, will also be aware that often what gives rise to frustration to the victim is where the account that he or she wishes to be given to the court cannot be given either because of the plea that has been tendered or the verdict that has been returned by the jury. The victim feels that in some sense his or her true position has not been properly reflected in the observations made by the prosecutor.
We have to be very careful that where proper discretion is exercised by the public prosecutor in Scotland it is not in any way fettered by a desire, albeit a proper one, to ensure that what the victim wishes to have said to the court in regard to the impact upon him or her is said, and that in spite of that we do not get the balance wrong.
I return to the views of those who are closest to and, I believe, are best placed to speak for the interests of victims and those who have undertaken research into the effectiveness of victim impact statements in various jurisdictions elsewhere where they have been tried. I am reluctant to quote selectively, but at Committee stage I referred to an article written by Professor Andrew Ashworth of the University of London in 1993. He came to the general conclusion that the best way forward was to improve services for victims rather than to rely on new procedural rights. Generally speaking, that is the approach with which we agree. As I understand it, Victim Support (Scotland) also takes such a line. It is for that reason that our efforts at present are engaged in
56
taking forward the matter in that fashion rather than looking to victim impact statements as a way of providing greater support for the victim.
Concerning the further amendment, it is proposed that there be a statutory right giving the victim notice of the sentencing procedures in solemn procedure cases. As is the case this side of the Border, sentencing proceedings in Scotland take place in open court, and any member of the public has the right to be present. I do not consider that there is any need for an express statutory right for victims of crime in this regard.
I am concerned that the notice of the sentencing given to the victim may frequently have to be no more than tentative, because in practice sentencing may take place on a variety of occasions from the first diet to the trial diet or at any time in a sitting that may last several days, or indeed at a sentencing diet following deferral for reports. Albeit with the best intentions that such a right is proposed, the practical effect of the amendment may be that the victim will turn up on repeated occasions when nothing happens, with potentially a greater degree of trauma and distress suffered by the victim because no sentence is passed on the particular day.
I have no difficulty with the idea that victims should attend if they want to. The Crown Office does what it can to keep victims advised of the progress of cases, but I do not wish to go so far as to give an express statutory right to this effect.
Lord McCluskey: My Lords, I have nothing to add to what I have said on Amendment No. 56. I am hopeful that, the matter having been raised in this way by the noble Earl, myself and others, further thought will be given in time to whether the interests of the victim can be advanced in this respect.
Regarding Amendment No. 57, I deliberately inserted the words,
"shall as far as practicable be given adequate notice by the Crown Office"
because I did not want to impose on the prosecutor an absolute duty. I was trying to encourage a new system under which the prosecutor would give notice. In Scotland if a person pleads guilty, normally the date of the hearing of the plea will be fixed weeks beforehand and an intimation of that can be given. In a case where a person intimates two or three days before his trial that he will plead on the morning of the trial, that again is known in time to tell the victim.
I accept that there may be occasions when the court cannot proceed to sentence because it requires further reports. Some are required by statute and some are required because the judge himself would like to hear further reports from psychologists or others. But it is usually fairly straightforward for the prosecutor to be able to predict whether or not a sentence will be imposed on a particular day and, accordingly, the clause was designed to allow for that. But, again, I believe that if one makes a point—if it is a good point and that is not for me ultimately to judge—it will continue to live for a while and eventually may come up in a different form. In the hope that that may be so, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 57:
After Clause 27, insert the following new clause:
("Victim's right to attend sentencing proceedings
. After section 217A of the 1975 Act there shall be inserted the following section—
"Victim's right to attend sentencing proceedings.
217D. The victim of any crime, or the next of kin of the victim if the victim has died shall have the right to attend all sentencing proceedings in solemn procedure under this Act and shall as far as practicable be given adequate notice by the Crown Office of all such sentencing proceedings concerning the person or persons who committed the crime or offence concerned".").
The noble and learned Lord said: My Lords, I move this amendment for a purely technical reason, the technical reason being that I am anxious that it should he printed in the record of these proceedings. However, I have nothing further to add to it. If your Lordships have no comment to make, I shall simply withdraw it.
Amendment, by leave, withdrawn.
Clause 28 [Sentencing guidelines]:
Lord McCluskey Lord McCluskey moved Amendment No. 58:
Leave out Clause 28.
The noble and learned Lord said: My Lords, this amendment seeks to leave out Clause 28. I spoke to this matter to some extent on a previous occasion in Committee. The clause has a side note "Sentencing guidelines". The clause proposes that the High Court, in disposing of certain appeals, may,
"without prejudice to any other power in that regard, pronounce an opinion on the sentence or other disposal or order which is appropriate in any similar case".
Secondly, it enacts that a court in passing sentence,
"shall have regard to any relevant opinion pronounced under subsection (1) above".
The argument here is a clear argument, based on the Renton Committee's recommendations, that this is entirely unnecessary.
The curious thing is that the side note is headed "Sentencing guidelines" but the new section does not seek to deal with guidelines. Perhaps I may refer your Lordships to the recently published book Criminal Sentences by Daniel Kelly. It begins with the words—I think there is some substance in these:
"The oft-mooted assertion that there is no sentencing policy in Scotland presents a challenge to ascertain the extent to which a coherent sentencing system may be discerned".
I pause to say that that is not a challenge which I would feel strong enough to undertake to beat at this time of night. The text goes on:
"An examination of the decisions of the High Court of Justiciary over the past decade or so reveals that although there may not be any guidelines"—
that word is in italics—
"on sentencing, there is a considerable amount of guidance"—
that word is also in italics—
"available on sentencing".
58
So there is a distinction between guidance and guidelines. The courts at the moment give guidance and do not wish to give guidelines. The section permits them to give guidance but is called a section about "Sentencing guidelines". I think that the Government have not had the advantage of reading Mr. .Kelly's introduction and should do so.
Mr. Kelly goes on to say that,
"in certain instances in the course of individual cases the appeal court has made observations which have a general application to sentencing practice in similar cases. Such general observations on aspects of sentencing … do in effect make up a significant sentencing framework in Scotland".
He comes to the conclusion after only 22 lines of discussion that there is a sentencing policy in Scotland. I congratulate him upon that discovery which had hitherto evaded me.
The point I seek to make, however, is that the clause is unnecessary. The courts do give guidance. The courts below are only too anxious to receive such guidance. They want it and they thirst for it, as I understand it, and they welcome it in the form in which it is currently given. Accordingly, it is unnecessary to have this clause. The noble and learned Lord the Minister said that the majority of those consulted, or the majority of judges, supported guidelines, but he does not introduce guidelines. The Government's position in this matter is slightly confused. I hope that in moving this amendment they will have an opportunity to clarify it. I beg to move.
Lord Fraser of Carmyllie: My Lords, I understand what the noble and learned Lord says with regard to the side note. The word "guidelines" does not appear in either of the two clauses but what is desired in those circumstances is clearly indicated. While it may well be, as has been the case for many years, that the courts will give some indication one way or another of what are appropriate sentences in some types of cases, I believe that the provision by the court of such guidelines will be widely welcomed by the public at large—I think that there is support for that—and also, as I indicated on a previous occasion, the majority of those who responded were in favour of the proposal: two of the three police organisations, the Faculty of Advocates, the Scottish Law Commission and a majority of the district courts. There is public concern about inconsistency and it would be desirable if that could be eliminated. It may be that from press reports the public fail to appreciate that there are good reasons for variations in sentencing. However, if there are inconsistencies that can be eliminated, so much the better.
It is the inferior courts which are looking for guidelines. I would not envisage that the Court of Appeal in offering any sentence guidelines would find that there was much application for such an approach in relation to High Court cases. However, those inferior courts look for that clear guidance from the superior court. I hope that by taking advantage of this provision they will receive it.
The noble and learned Lord has said that the clause is unnecessary. I would suggest that it represents a modest and flexible reform intended to improve consistency in sentencing. Nevertheless, it will also continue to allow discretion for sentencers to take

59
account of all the circumstances in particular cases. I hope that the noble and learned Lord will be satisfied that it has a proper purpose.
Lord McCluskey: My Lords, I am satisfied with the answer which I have now heard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 [Offences committed by persons under supervision etc: provision of local authority report]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 59:
Page 22, leave out lines 42 to 44 and insert:
(" .—(1) After section 179 of the 1975 Act there shall be inserted the following section—").
The noble and learned Lord said: My Lords, in moving Amendment No. 59, perhaps I may speak also to Amendments Nos. 60, 61 and 92. Clause 31 requires a social work report to be made before disposal in cases where an offender, while subject to statutory supervision, commits a further offence. This report takes into account the circumstances of the offence and the behaviour of the offender during supervision and is intended to help inform the disposal of the case. At present the clause extends to cases dealt with in the district court where a mandatory report is considered unnecessary and the court should be allowed to exercise its judgment in requesting reports where they are considered desirable. I should indicate that I envisage that there may have to be some further amendment of this provision to take account of stipendiary magistrates and not just the lay participants in the district courts. However, I shall return to that at a later stage.
In addition, there are other amendments which extend Clause 31 to cover two new classes of persons subject to community supervision being inserted by Clause 55. These classes cover those subject to a supervision and treatment order and young offenders who commit a further offence. The last amendment is minor and entirely technical. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 60 and 61:
Page 23, leave out from beginning of line 1 to ("of") and insert ("179A. Where a person specified in section 27(1) (b) (i) to (vi)").
Page 23, line 10, at end insert:
("(2) After section 380 of that Act there shall be inserted the following section—
"Offence committed by person under supervision etc.: provision of local authority report.
380A.—(1) Where a person specified in section 27(1) (b) (i) to (vi) of the Social Work (Scotland) Act 1968 commits an offence, the court shall not dispose of the case without obtaining from the local authority in whose area the person resides a report as to—

(a) the circumstances of the offence; and

(b) the character of the offender, including his behaviour while under the supervision, or as the case may be subject to the order, so specified in relation to him.

(2) In subsection (1) above, "the court" does not include a district court.".").
On Question, amendments agreed to.
Clause 35 [Leave to appeal]:
Lord McCluskey Lord McCluskey moved Amendment No. 62:
Page 25, line 35, leave out ("if") and insert ("unless").
The noble and learned Lord said: My Lords, I draw your Lordships' attention to page 25, line 35 of the Bill. In this clause we are concerned with inserting a new section into the basic 1975 Act. That new section is concerned with the obtaining of leave to appeal before an appeal is heard. I do not want to go into the background any more fully than I have done already. I do not wish to repeat what I said at an earlier stage on this matter.
The present wording to which I am proposing an alteration, appears in lines 35 onwards. It follows the provision:
"The decision whether to grant leave to appeal… shall be made by a judge of the High Court who shall—
(a) if he considers that the documents ... disclose arguable grounds of appeal".
I simply wish to change the emphasis so that it reads,
"The decision … shall be made by a judge … who shall—(a) unless he considers that the documents do not disclose arguable grounds of appeal".
In other words, the emphasis has changed. One reason why I have sought to change the emphasis is that the Lord Advocate himself, when we discussed this matter in Committee, used the expression which I now use. I believe that there is a difference between the manner in which it appears in the Bill and the way in which it is put forward by me.
The noble and learned Lord the Lord Advocate said:
"There is no question of these new arrangements reducing the level of scrutiny of appeals in general since only appeals which are clearly without merit—those which are unarguable is the way it is expressed—would be refused leave to appeal".—[Official Report, 16/1/95; col. 481.]
In fact that is not the way it was expressed, but if noble Lords accept my amendment, that will become the way it will be expressed. Therefore, the amendment goes to meet the Lord Advocate's position.
In my version the judge does not positively have to find arguable grounds as the Bill requires. He simply grants leave unless he positively concludes that there are no arguable grounds. It is a quite deliberate change of wording and not without some significance in the light of what the noble and learned Lord the Lord Advocate said in Committee. I beg to move.
Lord Rodger of Earlsferry: My Lords, I do not think that it would be very profitable to discuss my own particular wording on a previous occasion. I accept what the noble and learned Lord says, that his amendment would introduce a slightly different emphasis. Nonetheless, I believe that the way in which it is put in the clause before us is correct. It is a strong direction in that the judge shall grant leave to appeal and shall do so if he considers that the documents disclose arguable grounds of appeal. It is not a high test. It requires that the judge considers that the documents disclose grounds of appeal which are arguable—that is to say, about which an argument can be properly advanced to the court.

61
I believe that that is correct and the test that should be applied. Although I understand entirely the point which the noble and learned Lord has put forward, I believe that whatever gloss I may have put on it on a previous occasion, the test as expressed in the Bill provides the appropriate approach. It is when there are arguable grounds that the matter should be argued in front of the court. I cannot accept the amendment which is put forward on this occasion.
6.15 p.m.
Lord McCluskey: My Lords, despite the negative tone of that answer I have been encouraged by the Government's willingness to respond to comments and suggestions which have been made since the consultation process properly got under way and during the course of the progress of the Bill through the House. Although I heard a great many "No"s I believe that in the background there is the possibility of a faint "Yes". With that hope I look forward to the return of the Bill from another place perhaps with the wording I have suggested appearing in place of that which now appears. In the meantime, I beg leave to withdraw the amendment. I shall not move Amendment No. 63.
Amendment, by leave, withdrawn.
[Amendment No. 63 not moved.]
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No.64:
Page 25, line 37, after second ("appeal") insert ("and make such comments in writing as he considers appropriate").
The noble and learned Lord said: My Lords, I speak also to Amendments Nos. 69, 75 and 76. At Committee stage I commented that I would reflect on the point raised by the noble and learned Lord, Lord McCluskey, about the options available to the single judge or the High Court if when considering an application for leave to appeal they were to detect a fundamental nullity from the papers. In my view the correct approach would be for leave to appeal to be granted since the clause requires the single judge to grant leave if any of the documents before the judge, not just the note of appeal, disclose arguable grounds of appeal. For example, if a minute of proceedings revealed a fundamental defect, that would be one of the documents in the case. I accept, however, that in such circumstances it would be appropriate for the judge to be able to comment on the reasons for granting leave. The intention of these amendments is to make it clear that the judge can do so. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No.65:
Page 26, line 3, leave out ("and").
The noble and learned Lord said: My Lords, in moving this amendment I speak also to Amendment No. 66. This amendment is in response to the amendment tabled by the noble Lords, Lord Macaulay and Lord Carmichael, in Committee to require the judge's charge to the jury to be placed before the judge when
62
considering whether to grant leave to appeal. I indicated at the time that I was happy to accept the spirit of that amendment.
The amendment now before your Lordships will ensure that when a transcript of the judge's summing up is obtained (and such a transcript is always obtained by the clerk of justiciary when an appeal is against conviction or conviction and sentence), the transcript will be included in the documents placed before the single judge or, in cases where the application for leave to appeal is pursued, placed before the High Court. I hope that this meets with you Lordships' approval.
However, noble Lords will notice that the form in which the amendment is at the moment refers to "the summing up". I believe that it is more usual in Scottish terminology to refer to "the judge's charge". We have used "summing up" here because of the statutory cross-reference to Section 275(1). With your Lordships' leave, I propose at Third Reading to bring forward minor amendments to allow that to be put in the normal Scottish form. I beg to move.
Lord McCluskey: My Lords, there is one matter here to which we should draw attention at this stage, although it touches on the whole clause. In theory, the transcript becomes available at a very early date. There are only six weeks allowed between note of application for leave to appeal and the lodging of the note of appeal, if I recall correctly. But in fact the transcript never appears within that time, or seldom does. What happens is that the clerk of justiciary exercises a kind of dispensation and interrupts the period of six weeks. That is provided for in the statute, although I have been unable to put my finger on the particular provision. The result is that if we are to wait several weeks for a transcript, as is likely, the application for leave to appeal is bound to be delayed also by that circumstance, and everything else is then delayed. Accordingly, that is just one indication of the fact that the application for leave to appeal will delay appeals in Scotland, whereas in recent years we have been highly successful in moving towards disposing of appeals without delay. This is a retrograde step.
Lord Macaulay of Bragar: My Lords, the noble and learned Lord the Lord Advocate has taken on board what was said in Committee and will no doubt bear in mind what the noble and learned Lord, Lord McCluskey, has just said about delay. I think that the provision of the transcript is an essential ingredient in the appeal procedure. If something is wrong in the production line, the sooner it is sorted out the better. I am sure that the Government will take note of what the noble and learned Lord said.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No.66:
Page 26, line 5, at end insert ("; and
(d) where, by virtue of section 275(1) of this Act, a transcript of the summing up by the judge who presided at the trial is delivered to the Clerk of Justiciary, that transcript.").
On Question, amendment agreed to.
Lord McCluskey Lord McCluskey moved Amendment No. 67:
Page 26, line 5, insert ("and
(d) the appellant's detailed response to the report referred to in the proceeding paragraph, with such references to authority and such submissions as the appellant wishes to place before the Judge of the High Court.").
The noble and learned Lord said: My Lords, as has been said, the clause deals with leave to appeal and provides that the documents which are specified are to be placed before the court. We have just added the judge's charge to that list. I am seeking to add to the documents the appellant's response to the judge's response to the appellant's note of appeal because, as I said earlier, what happens is that when the appellant puts in a note of appeal he discloses in that note the grounds of the appeal. He may say, "The judge misdirected the jury in this or that respect", or, "The judge allowed this evidence when he should not have done so and disallowed that evidence when he should have allowed it". The judge is sent a copy of that and produces the judge's report. That is referred to in what will be new subsection (2) (c).
A judge who is faced with criticisms of his charge—for misdirecting the jury, for excluding evidence that should have been admitted or for allowing evidence that should have been excluded—tends to react slightly defensively. If he is told that the sentence is too long, he begins to justify the length of the sentence that he has given. I am afraid that that is an inevitable part of the human condition. The judge who is to hear the application for leave to appeal receives a formal note containing the grounds of appeal, a defensive response to that from the judge, and nothing more. What I am advocating is that an appellant should be entitled to respond to the judge's report and to reply to any matters that have been raised by the judge in that report.
In that way, we will be taking a small step towards achieving what the European Court of Human Rights referred to as "equality of arms" in the cases which we discussed in Committee. A court which is called upon to take such a decision ought to have before it equal representations, as it were, by both parties. For this purpose, the judge's position becomes akin to that of a party, so the court ought to have the appellant's response to the judge's report. In those circumstances, I think it appropriate to include this provision in the Bill. I beg to move.
Lord Rodger of Earlsferry: My Lords, the noble and learned Lord is addressing a particular problem in relation to the reports of trial judges. Although I accept that there can be cases where such reports are less than totally objective, nonetheless I believe—I hope that the noble and learned Lord will acknowledge this—that in most cases judges put the matters forward in what they would regard as as neutral a way as possible. I am sure that where they do not, the judges considering these matters will readily detect that and treat them accordingly. As a generality, I do not think the problem is great but, where it does occur, I do not think that one should call into play the idea that the judge then becomes somebody who is, so to speak, embattled, with equality of arms coming into it. We have complications enough with that concept without applying it to judges.
64
Matters would be further delayed if there were to be another stage at which comments could be made about the judge's report. I do not think that that is desirable. However, where leave was refused and where an application to appeal was made to the High Court, I envisage that it would be possible at that stage for an appellant to make any observations that he thought appropriate about the nature of the trial judge's report. That is the kind of matter that might be left to an Act of Adjournal. However, I am not convinced that at this stage it would be desirable to have the document to which the noble and learned Lord refers.
Lord McCluskey: My Lords, with respect, there is a lack of logic in that. If the Lord Advocate is right that between the stage of applying to the single judge and applying to the High Court, the appellant will have an opportunity to respond to the judge's _report, that provision ought to appear in the Bill—and it does not. The documentation that goes to the appeal body in relation to matters of leave is exactly the same as that which goes before the judge below, with the addition of any written reason which the judge has produced. The Government should think further about this. If they want to give an appellant the opportunity to respond to something in the judge's report if he detects a lack of objectivity, that opportunity could be achieved by provisions in the legislation. I am not sure that we would regard that as a suitable matter for an Act of Adjournal when Parliament had had an opportunity to include it in these provisions but had neglected to do so.
I have mentioned equality of arms, and in that connection I have looked carefully at the case of Monnell and Morris v. The United Kingdom, which was reported in 1987/10/EHRR on page 205. That case is interesting and the Lord Advocate referred to it in Committee. It is interesting to note that it expressly finds that appeal proceedings are covered by Article 6 of the European Convention. In that case, however, in upholding the position of the UK Government, the court noted that the appeal body had before it a transcript of the trial and all the relevant material. It is abundantly plain in that case that the court in England had before it much more material when considering questions of leave and other associated questions than would be the case under the provisions of this clause. The Government would therefore be wise to reflect further on these matters. However, I do not propose to divide the House and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 68 not moved.]
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 69:
Page 26, line 20, after second ("appeal") insert ("and make such comments in writing as the court considers appropriate").
On Question, amendment agreed to.
6.30 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 70:
Page 26, line 28, at end insert:
("provided that if any Judge of the High Court considers that there are or may be arguable grounds of appeal, leave to appeal shall be granted.").
The noble and learned Lord said: My Lords, this amendment is designed to ensure that if a person applies for leave to a single judge and is refused and then exercises his statutory right to apply to three judges of the High Court, any one of the judges of the High Court may grant leave if he considers that there are (or may be) arguable grounds for appeal. In short, if any single member of the court thinks that there is a suitable ground for appeal, the appeal should be allowed to go ahead. That reflects the practice in a number of courts, including the United States Supreme Court. In such courts if petitions for the court to entertain a case are considered they are looked at by all the judges individually, and I think that, usually, if three of the judges are in favour of granting leave to proceed with the petition, the petition proceeds; otherwise it does not.
So it is a practice that is well understood in other common-law jurisdictions and it would be desirable if we had that established here. Otherwise we shall simply get what would appear to be bland unanimous decisions issued by the three judges, concealing the fact that one of the judges thought that there should have been appeal leave granted. In these circumstances I beg leave to move the amendment.
Lord Rodger of Earlsferry: My Lords, I have listened with interest to what the noble and learned Lord has said. He must know his colleagues better than I but, with respect, in a situation where any one of the judges thought that there were arguable grounds for appeal, it would be difficult for his colleagues to say that it is a matter beyond all argument. For that reason, in that kind of situation I would expect that the tendency of the Appeal Court would be to grant leave to appeal. I noted, however, what the noble and learned Lord said about practices in other jurisdictions, and I am quite happy to reflect further on that matter. I am not persuaded that a change should be made, but I am happy to reflect upon it.
Lord McCluskey: My Lords, in those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 71:
Page 26, line 28, at end insert:
("(5A) Provided that this section shall apply

(a) where the appeal is on any ground which involves a question of law alone, or

(b) if the judge of the court of trial grants a certificate that the case is fit for appeal on any ground whatsoever; and provision shall be made, as soon as is reasonably practicable, by Act of Adjournal for procedures to seek, obtain and grant such a certificate.

(5B) An appellant shall be entitled to be present when his application for leave to appeal is considered if the judge or court considering the matter gives him leave.
(5C) Subject to subsection (5B) hereof, consideration whether or not to grant leave to appeal under subsections (1) or (5) above may take place in chambers without the parties being present, but the judge, in the case of subsection (1), or the High Court, in the case of subsection (5), will have the right to order a hearing with the
66
parties present to enable the application for leave under section 228(1) or under subsections (1), (4) or (5) of this section to be the subject of submissions.").
The noble and learned Lord said: My Lords, this is a rather lengthy amendment but I hope its meaning is plain on its surface.
First, I am proposing to add that this section shall apply where the appeal is on any ground which involves a question of law alone. That is the first significant part of this proposal. No doubt the Lord Advocate and the Minister have recognised that it is a quotation from the equivalent English provision, which I think is in the Criminal Appeal Act 1968, a copy of which I have somewhere but which has temporarily disappeared. When the appeal is on a question of law alone, leave is not required in England. The Government should explain why we do not have an equivalent provision in relation to Scotland.
Paragraph (b) adds:
"if the judge of the court of trial grants a certificate that the case is fit for appeal on any ground whatsoever;"
So, again, leave may be obtained on a certificate by the judge of the court of trial. That reflects exactly the statutory provisions in England under the same Act. I should like to see it introduced in Scotland. The trial judge is very much aware of the position and has a good feel for the case, something which the leave judge cannot possibly have. I have mentioned the possibility of an Act of Adjournal because the procedure would need to be regulated by some means. So that is the new subsection (5A). It reflects English practice, and I would submit that these are desirable changes.
Subsection (5B) simply provides that the appellant shall be entitled to be present if the judge or court gives him leave. Again as in England, the appellant should be allowed to be present if the court decides it wants him present. If that can be done in England I do not see why it cannot be done in Scotland.
Subsection (5C) goes a little bit further and envisages the court deciding to order a hearing. It is a point of real substance of which I hope the Government will take notice. It frequently happens that a person will come forward with, say, six grounds of appeal and the leave judge, or the appeal court dealing with the question of leave, may decide that there is substance or possible substance in only one of the grounds of appeal; they are not quite sure, but hesitate to dismiss it as unarguable. They may think that the other four or five grounds have no substance whatsoever. Under this procedure it will be possible, in effect, to determine whether or not there is any substance in the one ground that they think may be arguable. They could take it further and have a hearing on that particular question. I do not know whether the Government intend it, but, under the Bill as it is presently framed, if a person is granted leave to appeal because he has one good ground, he is free to advance another half a dozen bad grounds, even though the trial judge or the leave court have decided that those grounds are bad.
So those are the matters of substance sought to be raised by this subsection. Accordingly, because these matters are important, I beg leave to move this amendment.
Lord Rodger of Earlsferry: My Lords, I am grateful to the noble and learned Lord for raising these particular matters. I cannot answer him in relation to the matter of the English provisions.
Lord McCluskey: My Lords, with your Lordships' leave I have now discovered the Criminal Appeal Act 1968. It is Chapter 19, and, in the version contained in Statutes in Force, the provision simply reads:
"A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction".
Subsection (2) states:
"The appeal may be—(a) on any ground which involves a question of law alone".
And paragraph (b) goes on to deal with other matters.
Lord Rodger of Earlsferry: My Lords, the noble and learned Lord will appreciate that I would wish to study the context of that and perhaps respond to him in writing.
It seems to us, without knowing the full context, that a provision which allowed an automatic right of appeal on a matter which involved a question of law alone would give rise, potentially, to, a very wide exception to the provision. One might say, for example, that virtually any question of misdirection could be thought to be a question of law alone. So I think that that is not a matter which we could accept.
On subsections (5A) and (5B) I should not have thought that a certification procedure would have been necessary where, as quite frequently happens, the trial judge indicates that perhaps it is a matter which is doubtful, and so on. I should have thought that that was exactly the kind of situation in which any judge considering whether to grant leave would conclude that there was an arguable ground and, therefore, that he was under a duty to grant leave.
As to the presence of the appellant, I cannot see that that would advance things at all. Subsection (5C) takes us a stage further into the area of oral hearing. We have not tried to set a high test but merely a test of something which is arguable. Where it is arguable—where the judges think there may be need for oral argument—that would suggest that, prima facie, they think there is at least something arguable in it, which again would meet the test without the need for this further round of oral submissions.
I noted with interest the point which the noble and learned Lord made about once one ground gets in then all the other grounds can get in as well. I would wish to reflect upon that matter but, in the light of these observations, I would hope that the noble and learned Lord will withdraw his amendments.
Lord McCluskey: My Lords, I am happy to withdraw the amendment, but, having now found my notes, I realise that I have a little more to say. First, the notion of an appeal which involves a question of law
68
alone, which appears in Section 1 of the Criminal Appeal Act 1968 (the English Act) is reflected in Section 240 of the Criminal Proceedings (Scotland) Act 1975 which provides that an appellant shall be entitled to be present, if he desires it, on the hearing of his appeal, except when the appeal is on some . ground involving a question of law alone. That is a provision which has puzzled me in the same way as it has puzzled the noble and learned Lord the Lord Advocate.
The noble and learned Lord may be too young to remember the days before the new appeal procedures were brought in, when one applied for leave to appeal but it was heard in open court. Effectively one was arguing a question of law alone, although one might add a question of mixed fact and law. That distinction between a question of law alone, of the kind of which the noble and learned Lord has just been speaking, and a question of mixed fact and law, is one which is well understood in Scottish jurisprudence and is reflected in Section 1 of the 1968 English Act. Subsection (2B) refers to questions of fact alone, mixed fact and law, and so forth. It is that provision which relates also to where the judge of the court of trial grants a certificate.
I hope that the Government will consider carefully the possibility of the judge of the trial court being brought into the matter, because we have many things to do at the end of a trial. If there has been a conviction, in the High Court we would normally have to write a report for the Parole Board. We have to start preparing our report for the appeal, because appeals are extremely common nowadays. I see nothing wrong with our being invited at that stage to put down briefly our comments upon the merits of the case, as it were, in relation to an appeal. If the trial judge has a sense that justice may not have been properly done, perhaps because the defence has not been properly conducted, or for some other such reason, then he should have an opportunity to do that. I am sure that the Government, who have listened all along, will consider this matter further.
The Earl of Balfour: My Lords, before the noble and learned Lord, Lord McCluskey, withdraws the amendment, from my limited experience of court procedure, and as I understand the position, on technicalities of law, more than anything else, the verdict of not proven has from time to time been brought into Scots law. Surely that provision still exists on appeal: that the appeal judges could decide that the case was not proven in respect of the law. I may be wrong, but that is the impression I have.
Lord McCluskey: My Lords, before I sit down perhaps I may say that I doubt very much whether that is a matter which would trouble their lordships in the Appeal Court. They are concerned with errors of law. The error of law about which we are talking is, as I said, where a judge makes a mistake in the instructions he gives to the jury; where a judge makes a mistake in relation to the admissibility or exclusion of evidence, or something of that kind.
If something of that kind happens, the Appeal Court says, "Well, prima facie something has gone wrong here, or something has gone wrong. Does that amount

69
to a miscarriage of justice?" That is the way it looks at it. That is a matter which is under consideration by the Sutherland Committee, and could perhaps be left to it.
Amendment, by leave, withdrawn.
[Amendment No. 72 not moved.]
6.45 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 73:
Page 26, line 36, at end insert:
("(8) The provisions of this section so far as they relate to appeals under paragraph (b), (bc), or (bd) of section 228(1) of this Act may be brought into force on such day as the Secretary of State may by order appoint under section 101(2) of the Criminal Justice (Scotland) Act 1995; but as the remaining provisions of this section so far as they relate to appeals under the remaining paragraphs of section 228(1) of this Act shall not be brought into force until at least eighteen months after the last date appointed under any commencement order brings into force the provision of this section in relation to appeals under paragraphs (b) (bc) and (bd) of section 228(1) of this Act, and then only if the Lord Justice General consents in writing that the provisions relating to such remaining paragraphs may be brought into force.").
The noble and learned Lord said: My Lords, the amendment introduces a new point. Although it looks complicated, its essence is clear. Subsection (8) to which I have referred in the amendment states:
"The provisions of this section so far as they relate to appeals"—
those are essentially appeals to do with sentence—
"may be brought into force on such day as the Secretary of State may by order appoint under section 101(2) of the Criminal Justice (Scotland) 1995; but"
this is the important point—
"as the remaining provisions of this section so far as they relate to appeals under the remaining paragraphs of Section 228(1) of this Act shall not be brought into force until at least eighteen months after the last date".
The reasoning behind the amendment is that we are moving to something that is entirely new; we are for the first time introducing leave to appeal, the leave to appeal question being determined by judges in chambers.
We do not know whether or not the procedure will work. We do not know whether it will reduce the burden on the courts and the legal aid scheme. We just do not know. I suggest that we bring it in gradually. Let us deal first with appeals against sentence, and at the end of 18 months reassess the position. Then, in consultation with the Lord Justice General, who is mentioned in the last few lines of the new provision, we can consider whether we should bring into force the remaining paragraphs of the section.
I do not know how the new system will work. It would make sense to approach it gradually. All I am doing is asking the Government to take power to deal with the matter one step at a time. We have heard from the appropriate Minister in another place in relation to the CSA—I think that the Statement was repeated here—that there is something to be said for pilot schemes and for advancing a step at a time. I believe that there is something to be said for a pilot scheme here in relation to sentence. If it works, by all means extend it; if it does not, then do not. I beg to move.
Lord Rodger of Earlsferry: My Lords, the Government do not wish to accept the amendment. As
70
the noble and learned Lord knows, the vast majority of appeals coming before the Appeal Court arise from summary proceedings. As I understand it, if the amendment were accepted, much of the benefit of the new leave to appeal machinery would be lost. The amendment seems also to envisage that the provisions in respect of sentence only appeals would come into effect first. But the issues relating to appeals against sentence alone are, as the noble and learned Lord knows, different from those relating to appeals against conviction, and therefore I am not sure that a pilot scheme would tell us very much about how the other cases would be dealt with.
The Lord Justice General has been kept informed of the developments of thinking on the new appeal provisions, and of course would be consulted before they were commenced. From a technical standpoint, the noble and learned Lord will appreciate that Clause 101(2)—the commencement provision—allows for different commencement dates, and so if it were thought that different commencement dates were desirable, I am sure that it could be done under the existing power. As I say, we do not believe that to be desirable.
Lord McCluskey: My Lords, again, this is a matter upon which I hope the Government will reflect. In the United States they go in for what is commonly called "sunset" legislation. They are not the kind of sunsets about which the noble Lord, Lord Macaulay, was speaking earlier. They are legislative provisions which expire after 18 months or two years, and so forth, unless they are kept alive deliberately. There may be a great deal of sense were we to consider introducing such provisions into our statutes.
However, I recognise that the amendments that I have put forward are technically defective. These are even more defective than most of the amendments I have put forward, because they were done in haste while I was trying to do other things. However, the principle is clear. The Government could consider staging the introducing of these provisions so that we can see how they work.
I distinguish between sentencing and other cases in this provision because I recognise that that distinction is made already by the Government in the Bill in relation to the number of judges who sit to decide certain appeals. However, I am content with the discussions that we have had so far and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker (Lord Skelmersdale): My Lords, I should point out in calling Amendment No. 74 that if this amendment is agreed to, I cannot call Amendments No. 75 or 76.
Lord McCluskey Lord McCluskey moved Amendment No. 74:
Page 26, line 40, leave out from beginning to end of line 46 on page 28.
The noble and learned Lord said: My Lords, I do not wish to press this amendment. I have tabled the amendment—and I should have tabled it in Committee—in order to make a point which I hope the Government will bear in mind as the Bill progresses through Parliament.
I have spent a great deal of time thinking about and discussing with sheriffs how it is possible to cut down the number of wasteful appeals; that is, appeals without any real merit which are truly unarguable. I recognise that the provisions in this part of the Bill are aimed at solving that problem.
As I hope the noble and learned Lord the Lord Advocate will recognise, the Bill's provisions are designed to achieve some kind of saving in the time of the High Court but they achieve no saving at all for the sheriff or district courts. The experience of the sheriffs to whom I have spoken is that a great many cases are appealed almost as a matter of form. No doubt that is partly as a consequence of the fact that legal aid extends to preparing grounds of appeal. But sheriffs are commonly asked to draft a stated case because the accused just wants to have a look to see whether there is any possibility of an appeal.
I regret that although the legislation which the Government are introducing looks at the position of the High Court, it does absolutely nothing for the lower courts which are burdened heavily by unmeritorious appeals. I hope that the Government will be able to assure me that while it may not be possible to introduce provisions into this Bill, some thought will be given to tackling that much more serious problem. I beg to move.
The Earl of Balfour: My Lords, the noble and learned Lord, Lord McCluskey, has said that to some extent he feels that the provisions are experimental. In Clause 73, no fewer than four different sections of other Acts are referred to. Perhaps my noble and learned Lord, the Lord Advocate, will consider bringing in the provisions a bit at a time. In that way the Secretary of State can see how matters are proceeding. If the first part proceeds effectively, then the other provisions should follow. That is just a suggestion.
Lord Rodger of Earlsferry: My Lords, as my noble friend will appreciate, I have indicated that the Government do not wish to proceed in that way for the reasons that I have given. However, I have indicated to the House that if it were desired to do that, that could be done by virtue of Section 101(2) which provides for different commencement dates.
The noble and learned Lord, Lord McCluskey, draws attention to the fact that while our proposal may relieve the burden on the High Court, nevertheless, it does not do that in relation to the sheriff and district courts. We were conscious of that and had we felt able to solve the problem, we should have moved an amendment to do so. As the noble and learned Lord will appreciate, the difficulty is that a balance must be struck. We do not wish to cut off the right of appeal from the district or sheriff courts at such an early stage so that, in effect, an appellant could not see what was the basis of the decision. For example, that is why we felt unable to intervene to suggest a cut-off point before the stated case stage, although I appreciate fully that the drafting of those stated cases may impose a considerable burden on the courts below.
72
It is not that we are unaware or unresponsive to that issue. However, we do not see how to solve the problem without restricting unacceptably the right of appeal. That is why the Bill is drafted in that way.
Lord McCluskey: My Lords, I hope that the Government will think further on that. I know that it may not be possible to do that in the context of this Bill but I believe that the noble and learned Lord the Lord Advocate agrees that it is a serious problem. As the Minister knows, when a person seeks to have a case stated, he makes an application to the sheriff and he puts grounds before him. It may be at that stage that his case is so obviously without merit that it should be possible to dispose of the matter. It may be possible to think of a mechanism whereby a sheriff is entitled to say, "I should not be obliged to state a case", and a judgment could be made on that in chambers by a judge or several judges of the High Court.
I do not suggest that that is an ideal solution because it would not deal with all the problems. It would not deal with bills of suspension and bills of advocation. However, there is perhaps more success to be garnered in that field than that which is covered by the Bill. Perhaps the Government will set up a working party to consider how that could be achieved. I wish them luck because I have thought hard about the problem without coming up with any better solution than the one I have just mentioned. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendments Nos. 75 and 76:
Page 26, line 47, after second ("appeal") insert ("and make such comments in writing as he considers appropriate").
Page 27, line 28, after second ("appeal") insert ("and make such comments in writing as the court considers appropriate").
On Question, amendments agreed to.
Lord McCluskey Lord McCluskey moved Amendment No. 77:
Leave out Clause 35.
The noble and learned Lord said: My Lords, the amendment invites the House to agree to strike out altogether Clause 35 which deals with the whole machinery for enabling leave to be sought and granted or refused.
On previous occasions I have referred to some of the light-hearted literature published by the Justice organisation in relation to miscarriages of justice. I say that it is "light-hearted" because in the midst of very solemn matters, it makes some light and amusing points. However in dealing with criminal appeals in England it has stated specifically that research carried out for the Royal Commission came to the conclusion that it is likely that some cases of merit are being weeded out wrongly at that stage—at the leave stage—of the appellate process. That is referred to on page 5 of the Justice report called Remedying Miscarriages of Justice, which was published in September 1994.
I believe that I mentioned previously the other matter which I should now like to outline more fully. Speaking about the single judge, the Justice report says:
"The single judge acts as the main filter for appellants. Research carried out for the Royal Commission identified major problems with the process"—
I emphasise the words, "major problems with the process"—
"this accords with Justice's experience".
I have had access to many of the research papers of the Royal Commission but, sadly, not to all of them; and I am not familiar with that one. However, it is no doubt readily available to the noble and learned Lord the Lord Advocate. I hope that he will look at it to ascertain the nature of those "major problems", because I can detect no trace in the Bill's provisions of an attempt to deal with major problems.
The report goes on to say:
"There is a lack of any consistent practice in the way that applications appear to be considered. In one case in which Justice has the papers a solicitor had in error sent in two sets of appeal papers in the same case. Two single judge decisions followed, one granting and one refusing leave. Both decisions had been made, at different times, by the same judge. The first decision was favourable and a custodial sentence was reduced to probation on appeal".
Then the report mentions the point which strikes me as being one of some importance:
"While all systems are capable of individual error, the single judge process is regarded as particularly susceptible to inconsistency".
The report then gives a number of reasons relating specifically to England, but of course a judge may have to deal with a large number of applications after a day in court, while preparing for work the following day. The report continues:
"Consistent and fair decision-making is not assisted by the fact that in most cases a judge's comments in refusing the application are brief, being one or two paragraphs at most".
There are many reasons for thinking that the matter is somewhat unsatisfactory and they are detailed in the report. We do know that the clause is bound to lead to some extra work as regards the reading of applications for leave to appeal. It will be extremely difficult to achieve consistency for reasons explained by the Justice report.
In conclusion, I have one important point to make. At present, the Appeal Court in Scotland can and does cope, although it does so with some difficulty because there is a great deal of work involved. But, in the circumstances, I urge the Government to consider whether or not the clause is really necessary and whether or not it addresses the problems identified by the Justice report and the Royal Commission's research papers. I beg to move.
The Earl of Balfour: My Lords, with the greatest respect to the noble and learned Lord, Lord McCluskey, Amendment No. 91 has been grouped with the amendment now before the House. Amendment No. 91 proposes that Clause 54 should be left out of the Bill. Does the noble and learned Lord wish to speak also to that clause, or will he deal with it separately?
Lord McCluskey: My Lords, with the permission of the House, I should like to say that, in effect, Clause 54 goes along with the amendment under discussion. I say that because if Clause 35 were to go, Clause 54 would go automatically. I do not believe that the House would
74
have any difficulty with that situation. The point of substance falls to be discussed in relation to Amendment No. 77.
7 p.m.
Lord Rodger of Earlsferry: My Lords, the noble and learned Lord, Lord McCluskey, said that the Appeal Court is coping, but only just, with the volume of appeals. We want to assist the Appeal Court so that it will concentrate its resources in handling appeals which are appeals with merit and which, therefore, we hope will indeed be dealt with and disposed of more quickly.
I turn now to the general approach behind the clause. The noble and learned Lord drew attention to the possibility of error by single judges. Of course, one has to acknowledge that such a thing is possible. However, one also has to bear in mind—and this relates to the consistency of which the noble and learned Lord spoke—that we are dealing with a smaller body of judges in Scotland than that in England. Therefore, it should be possible to achieve greater standards of consistency of approach among that smaller body.
Of course one has to allow for the possibility of lapses occasionally, and so on; but one has to remember that there is provision for the matter to be heard by an appeal body and therefore to be reconsidered by three judges. In that way, I hope that the possibility of error is minimised. For that reason, we believe that the possible problems outlined by the noble and learned Lord are not of such a nature as to invalidate the approach which is contained in Clause 35.
Lord McCluskey: My Lords, in the light of what has been said and in the hope that the Government will not close their minds to the possibility of reconsidering the matter, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
The Earl of Lindsay: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, may I suggest that the Report stage begin again at twenty-five minutes before eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.

Council for the Central Laboratory of the Research Councils Order 1995
7.5 p.m.
Baroness Miller of Hendon Baroness Miller of Hendon rose to move, That the draft order laid before the House on 16th December be approved [5th Report from the Joint Committee].
The noble Baroness said: My Lords, under the Science and Technology Act 1965, provision was made for the establishment of research councils under Royal Charter. There are currently six such councils. The proposed order will establish the Council for the Central Laboratory of the Research Councils as a research council in its own right under the Act.
The central laboratory will comprise the Daresbury and the Rutherford-Appleton Laboratories which, since the restructuring which took place in April 1994, have

75
been part of the new Engineering and Physical Sciences Research Council. That has always been regarded as an interim measure.
The laboratories are located on two main sites, at Chilton in South Oxfordshire and at Daresbury, near Warrington, Cheshire. They have an international reputation for top quality scientific research, particularly in the use of neutrons and X-rays for probing the structure of matter and in particle physics, space and remote sensing research and in advanced computing.
The laboratories' facilities and expertise are used by a very large number of researchers, many of whom are located in United Kingdom universities. The laboratories are, in short, a vital component of the UK science and engineering base. They employ 1,800 staff, of whom 850 are qualified scientists and engineers. Their income is around £94 million, of which £74 million comes from the existing research councils.
Our review of the laboratories included extensive consultation with their users, from both academia and industry. It was completed last autumn. A key outcome of the review was the recognition that continued ownership by a single research council is unsatisfactory. The laboratories carry out work for five of the six research councils, and ownership by the largest of them (which, incidentally, is also the largest customer of the laboratories) blurs the customer-contractor relationship.
The Chancellor of the Duchy of Lancaster, therefore, announced on 26th October last year that, subject to the approval of Parliament, the laboratories would together become a new non-departmental public body, to be called the Council for the Central Laboratory of the Research Councils, and established as a research council for the purposes of the Science and Technology Act 1965. That solution met with widespread support during the consultation exercise and has attracted cross-party support from the appropriate Standing Committee of the other place which, last Tuesday, approved the draft order.
In proposing this way forward, the Government have a number of objectives. We want to enable the laboratories to contribute more fully to the wealth-creation and quality of life goals which were set out in the 1993 White Paper Realising our Potential. We recognise the important role of the laboratories as a key part of the United Kingdom's science and engineering base, carrying out basic and strategic research: We intend that to continue; we do not want them to become short-term contract research centres. That is not their role.
We want to improve the accountability of the laboratories and to clarify their relationship with their customers. We also intend, through the proposed changes, to provide an environment in which the laboratories can develop their existing markets, and can address new ones. This is an exciting opportunity for the laboratories.
I wish to pay tribute to the efforts of the director and staff of the laboratories to build up connections with users of their research. They have established a high reputation for the quality of their work, and for their
76
scientific and engineering integrity, in both academia and industry. We wish to see them build on this firm base.
We envisage that the majority of the laboratories' funding will continue to originate from public sources. The major customers will be the research councils. They are fully seized of their responsibility to act as intelligent customers. The laboratories will be eligible to receive a direct allocation from the science vote. The Government envisage that the sums involved will be small in relation to the total public funding they receive through their research council customers, but the facility will be available to fund specific initiatives and activities.
Your Lordships may already be aware that my honourable friend, the Parliamentary Secretary of the Office of Public Service and Science announced that, following open competition, the first chief executive of the new body will be Dr. Paul Williams, who has been the director of the combined Daresbury and Rutherford-Appleton Laboratories since they came together last April. The membership of the new council will be drawn from the other research councils, the academic community, industry and commerce, and senior laboratory staff. This will give the council a composition representing the major constituencies who interact with the laboratories. The objects of the council as defined in its Royal Charter are set out in the schedule to the draft order. They have close parallels in the charters of the other six research councils, and positioning the new body alongside the other councils serves to underline the interdependent relationship between them. It also highlights the Government's wish to see the laboratories remain as a key component of the science and engineering base.
The Government are striving to ensure that the outcomes from the United Kingdom's excellent science and engineering base are more clearly orientated towards wealth-creation, and enhancing the quality of life. We are also committed to maintaining excellence in science and engineering, and to maximising value for money. The creation of the Council for the Central Laboratory of the Research Councils is a key step in this process. Accordingly, I beg to move.
Moved, That the draft order laid before the House on 16th December be approved [5th Report from the Joint Committee].—(Baroness Miller of Hendon.)
7.15 p.m.
Baroness Gould of Potternewton: My Lords, in making my first contribution from the Dispatch Box I wish to say how pleased I am that another member of the 1993 working peers intake has introduced the order. I wish to say immediately also that this is not a partisan issue. We believe that the order deserves support. There are, however, a number of comments we would make and questions we would ask which we hope that the Minister will be able to respond to, if not tonight, in writing.
There is no doubt that investment in our science base is money well spent. One cannot overemphasise the importance to the nation of placing science policy high on the Government's agenda. As indicated, the question

77
of the council was initiated by the Chancellor of the Duchy of Lancaster on 26th October of last year when he announced that he would set up an independent body in the public sector, and when he made the important statement that,
"Daresbury and Rutherford are national assets. They have been thoroughly reviewed, and my conclusion is that they should remain in public ownership. I believe that according them independent status is the right way to proceed, but with strong emphasis on operating in a commercial manner, and particularly meeting the needs of the customers".
That is a statement we can fully support and which we hope will mean that there are unlikely to be any significant changes in the work of the laboratory; that the basic research is not restricted in any way or the work and running of the new laboratory not interrupted by the change. As the Minister said, the laboratories have large-scale facilities such as ISIS, the most powerful neutron source in the world, a laser research centre and an international space research programme, as well as being the centre for microstructure fabrication. These, together with the 17 research projects, must be nurtured and protected. That is why it is important that the contracts under negotiation for those 17 projects are placed with laboratories with some speed.
There are also certain assurances that need to be given regarding the funding of the laboratory. We would be opposed to any reduction in funding; rather we believe that it should be increased, so assisting UK industry to keep abreast of development by our competitors, particularly in America and Japan. In her reply I hope that the Minister will be able to assure us that such expenditure on scientific research will be increased. My understanding is that the Government are expecting increased funding to come from industry. It is estimated, I believe, together with support from the Department of Trade and Industry, at about £19 million. The support of industry is welcome, especially so as all too often it has failed to back the efforts of and invest in British inventions and inventors.
There is also the question of any expectation of funds from Europe. If that is to be the case, can we be assured that it will be additional to government support and not mean a reduction in that support? This question of funding cannot be left just to competitiveness. I am sure we all agree that we cannot afford to lose any facility because of the lack of government funded basic research over a long-term period. The Government must ensure that the new body has ample funds to operate efficiently in the scientific environment. There has, however, also to be some measure of accountability over the spending of this £74 million of public funds. The new body must be accountable and independently monitored. Will the Minister in her reply give an indication of who will carry out that monitoring exercise? Coupled with the need for adequate finance, there must be sufficient specialist knowledge retained in-house to be able to use and interpret the advice it receives from its consultants. This raises the question of whether there are any proposed job cuts and whether in the future researchers will be expected to work to short-term contracts.
78
The aim of the new body is to support the advancement of knowledge and technology, meeting the needs of research councils, other customers and their user communities, thereby contributing to the economic competitiveness of the country and to the quality of life. These aims are rightly supported by the scientific community, those who benefit most from such economic competitiveness or wealth creation and many more who will benefit from any improvement in the quality of their life.
We ask, however: does this aim fit in with the Minister's statement about the need for preserving basic research as the new body is now considered to he in the category of wealth creation rather than basic research? I would ask the Minister in her reply to establish what is meant by basic research. Will this continue in the new organisation, and how does this differ from what is now said to be economic competitiveness or wealth creation and improving the quality of life?
In giving our warm support to the Government's intentions, to the council and its objects, I would add that there is an outstanding need for long-term corporate planning. Without a corporate plan of five, 10 or 20 years, the new body and the Government will blunder from one year's lack of resources to the next. The Government have to secure the long-term future and the stability of research bodies. Can we have an undertaking that the Government will examine this matter most carefully and that a long-term plan will be presented?
We are discussing a massive institution, not merely in terms of its budget and staff, but in terms of its contribution to science and technological development now and into the next century. Any steps that the Government take to these ends will guarantee our support.
Lord Colwyn: My Lords, I thank my noble friend Lady Miller for the clear way she introduced this order this evening. I also wish to congratulate the noble Baroness, Lady Gould, for the well-informed understanding of the problems that are concerned with this aspect of research and development.
My noble friend may be aware that I asked a Question on 12th January drawing the Government's attention to the need to promote high quality research in the area of gene therapy and to undertake a co-ordinated approach to new treatments and scientific research.
With that in mind I am delighted this evening to welcome the introduction of the order. I should like to think that it shows on my part an intelligent anticipation of government thinking.
On 12th January I declared an interest as a director of a biopharmaceutical company. Although I can see only a very tenuous connection between my directorship and our debate this evening, in view of the current climate I declare that interest this evening.
My noble friend Lady Cumberlege replied to my Question, stating (at col. 359 of Hansard):
"The main responsibility for government-funded research into human genetics lies with the Medical Research Council. The MRC spends around £12 million a year on the human genome project, whose main aim is to link specific diseases to the gene responsible. This important project is too large for any one organisation, and requires national and international collaboration".

79
She went on to say that:
"Apart from the MRC, support for genome research in the UK is also provided by the Biotechnology and Biological Sciences Research Council, the Wellcome Trust and the Imperial Cancer Research Fund as well as other charities, such as the Cancer Research Campaign".
My noble friend corrected me and said that although the US spends about 10 times more capital on gene therapy as the UK, the UK leads the world and that lead is the result of very good basic science allied to the clinical environment provided by the NHS. As a result, the UK has been able to attract leading scientists.
She also laid to rest my fears that the UK was taking an unco-ordinated approach to scientific research. The MRC and health department, through the appointment of Professor Michael Peckham as director of research and development, are responsible for the nation's co-ordinated approach. In addition, a number of advisory committees and councils have been established to assist in that process, one such council being the Central Laboratory of the Research Councils. I am pleased this evening to acknowledge its foundation and offer it support and encouragement.
The CLRC has been given a wide charter under which to operate. Under that charter its objectives have been defined in the order.
Objective (a) in the schedule is commendable, but I should like to remind your Lordships of the comment of Mr. Dai Rees, the Medical Research Council's secretary, in the 1994 Scientific Strategy:
"While I would naturally wish for more funding, constraints on public expenditure are a fact of life and we must make the best of what we are given from the public purse and increase our income from other sources whenever we can".
In view of the assurance of my noble friend Lady Cumberlege, I ask my noble friend whether the UK is doing enough to ensure that it remains a world leader in scientific research and, in particular, gene therapy.
Can the CLRC truly perform its first objective to full potential if capital investment remains at current levels? Many core technologies around the country are currently dormant. To promote research by providing facilities or additional technical expertise may well not be the answer as I guess that it is additional funding which will eventually convert core technologies lying on the laboratory bench into economic reality.
I hope that the CLRC will be able to encourage greater participation from the business community by establishing additional programmes outside those already in place.
I urge the CLRC to accept an obligation to ensure that objective (c) in the schedule is pursued with great vigour and that gene therapy falls under that umbrella.
If the CLRC fulfils that objective it is likely that the community, and more importantly the business community, will have a far better understanding of the promise that scientific research and particularly genetic research holds for the nation. I hope that, as in the US and Europe, more private capital in the form of
80
investment funds and other creative financing packages become available specifically to service the research requirements.
For the UK to remain a world leader more capital will be required as the public purse is stretched to the limit, and it is crucial that that finance is available in the near future.
If the CLRC is successful in educating minds and organisations with substantial capital awaiting investment opportunity, it will successfully fulfil its other objective—objective (b), which is designed to ensure that the CLRC contributes to the economic competitiveness of the United Kingdom and the quality of life. I welcome the order.
7.25 p.m.
The Earl of Selborne: My Lords, I too should like to intervene briefly to welcome the order. Before I do so I should like to thank my noble friend the Minister for the comprehensive way in which she introduced the order and also to welcome the noble Baroness, Lady Gould, to her new responsibilities on the Front Bench. I am delighted that she has joined the team.
In a sense this is unfinished business from the reform of the research councils last year, as my noble friend the Minister reminded us. I wish to draw attention to the exemplary way in which the Office of Science and Technology has undertaken the review. It has not rushed it. It has taken a great deal of advice, from scientists and customers. It has taken into account accountability and funding arrangements. The fact that that has taken 18 months from the announcement of the previous research councils demonstrates what a thorough job has been done.
There is one small matter about which I would be concerned had I to direct the new council, namely the support required from the Department of Trade and Industry. At present the Department of Trade and Industry is rather fickle in regard to research funding. It seems to be changing its priorities. It clearly feels that its previous contribution to research is not something which it wishes to maintain. I hope that the newly appointed director has been given an assurance from the Department of Trade and Industry, although I do not expect the Minister to answer that point because clearly such an assurance would not be public knowledge.
I wish to draw attention to an unfavourable comparison with how research might have been reorganised. This emanated from the Efficiency Unit scrutiny of public research establishments—an exercise which the House of Lords Select Committee regarded with some horror, as did the Select Committee of the other place. It was based purely on reasons of efficiency. Members of the House may remember that the proposals revolved around reorganisation on either a disciplinary or a regional basis, and, if that could not be decided upon, the proposal was to have directors of rationalisation.
The Select Committee considered that it is necessary to reorganise research from time to time. It is clearly necessary to review the scientific bases and priorities, value for. money and accountability, as is well demonstrated by the draft order before us tonight. What

81
one must not do is lay down doctrinaire rules as to how such reorganisations should be undertaken. There will be one solution on one occasion and another on another occasion. The Scottish system is quite different from that in the rest of the United Kingdom, and probably all the better for that in many respects. However, it would he a great mistake to think that because the Scottish system works reasonably well in Scotland it can be transplanted elsewhere.
In the Select Committee report which came out in November we draw attention to the fact that where rationalisation had taken place in the past it tended to have the characteristic of bringing together government departments, research councils and users of the research and producing a solution which appeared to meet everyone's requirements. We quoted the example of Horticultural Research International, which had brought together sites from the former agriculture and food research council and from the Ministry of Agriculture and put them together under one direction.
Had the order been tabled before we completed our report, I have no doubt that we should have quoted this also as an excellent model of how to organise and reorganise publicly funded research.
7.28 p.m.
Baroness Miller of Hendon: My Lords, the debate has benefited from a number of distinguished and valuable contributions, which I welcome. In particular, I should like to welcome that of the noble Baroness, Lady Gould, from the other side of the House. It is very nice that two of us from the class of '93 are here this evening.
Lord Graham of Edmonton: A very good year, my Lords!
Baroness Miller of Hendon: Indeed, my Lords.
The noble Baroness asked me several questions, particularly about funding, as did my noble friend Lord Colwyn. There is no reason to suppose that there will not be enough funding. The management certainly believe that they can attract enough investment. Currently they have a demand for some key facilities which exceeds the supply by three times. The laboratories have demonstrated their ability in the past to attract significant research projects from research councils and also external funding. The research councils will remain the main customers.
The noble Baroness also asked whether they thought that the new research council could attract investment. The laboratories have currently already initiated research work for over 150 companies. I am sure that the noble Baroness would not wish me to read out the names, but, to give a few examples, there is a £10 million investment from Japan and a £19 million investment in the Central Microstructure Facility for research in micro-electronics and micro-engineering, funded by five industrial partners and the DTI. There is also a £5 million contract to design and build the world's largest superconducting solenoid for CERN, with most of the components being made by United Kingdom industry.
82
The noble Baroness also asked whether the new council would be accountable. I should like to assure her and the House that it will be fully accountable. Like existing research councils, the new council will have to make an annual report to Parliament and publish accounts audited by the National Audit Office. The new chief executive, Dr. Paul Williams—to whom my noble friend referred—will be the designated accounting officer and will be responsible to the permanent secretary of the Office of Public Service and Science. Ministers will be answerable to Parliament.
The noble Baroness was also concerned over whether or not there might be job losses at the laboratories. We do not believe that there will be any direct impact on jobs at the laboratories arising simply from the change of status. Levels of employment will obviously depend upon the ability of the management and staff to attract customers. New arrangements intended to increase the laboratory's competitiveness should have a beneficial impact on employment.
The noble Baroness was also concerned as to whether basic research might be threatened. We neither intend nor envisage that the laboratories will become short-term contract laboratories. They will continue to work mainly for the other research councils, which have the support of basic research as part of their missions. The mission of the new council refers explicitly to its role in providing facilities and expertise to support basic research.
The noble Baroness was anxious about European funding. We expect that the laboratories will be successful in bidding for European funding and it will be in addition to other income from public sources. I also wish to assure her that the change will not interrupt the work of the laboratories.
My noble friend Lord Colwyn was worried about capital and we understand that it is essential to ensure that the CCLRC facilities remain competitive. So do its research council customers. We envisage that they will continue to support the laboratory with the funds necessary to carry out their work. My noble friend Lord Colwyn was also worried about gene therapy. My right honourable friend the Chancellor of the Duchy of Lancaster announced on 2nd February in the debate in another place on the allocation of the science budget that additional funding of some £3.5 million is to be provided for the Medical Research Council to take forward its important work on genome. That underpinning research work should lead to an improved understanding of our genetic make-up and subsequent treatments of the type referred to by the noble Lord.
The Government are working to establish a framework to ensure that we get maximum impact and maximum value from our national strengths in science and engineering. Within that framework, the creation of this new council is an essential part of the research council structure. In my opening remarks I mentioned that the proposed order received cross-party support in the other place and I am very gratified by the support it has also received from your Lordships and in particular my noble friend Lord Selborne.

83
It is notable that both the Royal Society and the Royal Academy of Engineering have welcomed the Government's plans. The Royal Society described Daresbury and Rutherford-Appleton as national assets. They are indeed and I believe that our proposals mean that we will get the best from them. I therefore commend the draft order to the House.
On Question, Motion agreed to.

Criminal Justice (Scotland) Bill [H.L.]
7.34 p.m.
Consideration of amendments on Report resumed.
Clause 43 [Appeal by accused in case involving insanity]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 78:
Page 38, line 17, leave out from ("(b)") to end of line and insert (", or both paragraphs (b) and (c), of that subsection, not later than 28").
The noble and learned Lord said: My Lords, in speaking to Amendment No. 78, perhaps I may also speak to Amendments Nos. 79 to 83.
I undertook in response to amendments moved in Committee by the noble Lord, Lord Macaulay, to reconsider the time limits we have provided for appeals by accused persons against the findings of and disposals made at examinations of facts and against the disposals made when a person is acquitted at his trial on the ground of insanity.
I accepted that seven days was too short a period in those circumstances. In giving thought to what might be appropriate alternatives, I have had regard to the various periods specified in the 1975 Act in relation to appeals in both solemn and summary proceedings. But I consider it neither necessary nor appropriate to replicate their complexity.
I entirely accept the noble Lord's reasoning behind the Committee stage amendments that lawyers may face difficulty, particularly in relation to the preparation of these appeals, in obtaining proper instructions from the accused. My view is that this problem is likely to be most acute in relation to appeals against the findings at examinations of facts; that is, that the accused did the act charged. That seems to me to be the category of appeal which might involve the most work to prepare and lodge. I seek to draw no distinction between solemn and summary cases and propose a time period of four weeks.
As regards appeals against the disposal made after an examination of facts or after a trial, acquittal on the grounds of insanity, I would propose a shorter period of two weeks. I hope that that is acceptable to your Lordships. I beg to move.
Lord Macaulay of Bragar: My Lords, I wish to put on record my gratitude to the Minister for his humane understanding of the problems faced by solicitors in cases such as those to which the clause refers and for taking note of what was said at Committee stage.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 79 to 83:
Page 38, line 19, at end insert:
("(iii) in the case of an appeal under paragraph (c) of that subsection against an order made on an acquittal, by virtue of section 174(2) or I74ZA(3) of this Act, on the ground of insanity at the time of the act or omission, not later than 14 days after the date of the acquittal;
(iv) in the case of an appeal under that paragraph against an order made on a finding under section 174ZA(2), not later than 14 days after the conclusion of the examination of facts,").
Page 38, line 42, at end insert:
("( ) Section 280 of this Act shall not apply in relation to any order as respects which a person has a right of appeal under subsection (1) (c) above.").
Page 39, line 11, leave out from ("(b)") to end of line and insert (", or both paragraphs (b) and (c), of that subsection, not later than 28").
Page 39, line 13, at end insert:
("(iii) in the case of an appeal under paragraph (c) of that subsection against an order made on an acquittal, by virtue of section 375(3A) or 375ZA(3) of this Act, on the ground of insanity at the time of the act or omission, not later than 14 days after the date of the acquittal;
(iv) in the case of an appeal under that paragraph against an order made on a finding under section 375ZA(2), not later than 14 days after the conclusion of the examination of facts,").
Page 39, line 34, at end insert:
("( ) Section 443 of this Act shall not apply in relation to any order as respects which a person has a right of appeal under subsection (1) (c) above.").
On Question, amendments agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 84:
Before Clause 48, insert the following new clause:
Criminal Courts Rules Council
(" .—(1) There shall be established a body, to be known as the Criminal Courts Rules Council (in this section referred to as "the Council") which shall have the functions conferred on it by subsection (8) below.
(2) The Council shall consist of—

(a) the Lord Justice General, the Lord Justice Clerk and the Clerk of Justiciary;

(b) a further Lord Commissioner of Justiciary appointed by the Lord Justice General;

(c) the following persons appointed by the Lord Justice General after such consultation as he considers appropriate—

(i) two sheriffs;

(ii) two members of the Faculty of Advocates;

(iii) two solicitors;

(iv) one sheriff clerk; and

(v) one person appearing to him to have a knowledge of the procedures and practices of the district court;

(d) two persons appointed by the Lord Justice General after consultation with the Lord Advocate, at least one of whom must be a procurator fiscal;

(e) two persons appointed by the Lord Justice General after consultation with the Secretary of State, at least one of whom must be a person appearing to the Lord Justice General to have—

(i) a knowledge of the procedures and practices of the courts exercising criminal jurisdiction in Scotland; and

85

(ii) an awareness of the interests of victims of crime and of witnesses in criminal proceedings; and

(f) any persons appointed under subsection (3) below.

(3) The Lord Justice General may appoint not more than two further persons, and the Secretary of State may appoint one person, to membership of the Council.
(4) The chairman of the Council shall be the Lord Justice General or such other member of the Council, being a Lord Commissioner of Justiciary, as the Lord Justice General may nominate.
(5) The members of the Council appointed under paragraphs (b) to (f) of subsection (2) above shall, so long as they retain the respective qualifications (if any) mentioned in those paragraphs, hold office for three years and be eligible for reappointment.
(6) Any vacancy in the membership of the Council by reason of the death or demission of office, prior to the expiry of the period for which he was appointed, of a member appointed under any of paragraphs (b) to (f) of subsection (2) above shall be filled by the appointment by the Lord Justice General or, as the case may be, the Secretary of State, after such consultation (if any) as is required by the paragraph in question, of another person having the qualifications (if any) required by that paragraph, and a person so appointed shall hold office only until the expiry of that period.
(7) The Council shall meet—

(a) at intervals of not more than 12 months; and

(b) at any time when summoned by the chairman or by three members of the Council,

but shall, subject to the foregoing, have power to regulate the summoning of its meetings and the procedure at such meetings.
(8) At any meeting of the Council six members shall be a quorum.
(9) The functions of the Council shall be—

(a) to keep under general review the procedures and practices of the courts exercising criminal jurisdiction in Scotland (including any matters incidental or relating to those procedures or practices); and

(b) to consider and comment on any draft Act of Adjournal submitted to it by the High Court, which shall, in making the Act of Adjournal, take account to such extent as it considers appropriate of any comments made by the Council under this paragraph.

(10) In the discharge of its functions under subsection (9) above the Council may invite representations on any aspect of the procedures and practices of the courts exercising criminal jurisdiction in Scotland (including any matters incidental or relating to those procedures or practices) and shall consider any such representations received by it, whether or not submitted in response to such an invitation.
(11) Except where the context otherwise requires, expressions used in this section and in the 1975 Act have the same meaning in this section as in that Act.").
The noble and learned Lord said: My Lords, noble Lords with a knowledge of Scottish criminal procedure will be aware that the High Court has had a long-standing power under statute to make secondary legislation, by Act of Adjournal, regulating practice and procedure in the criminal courts. This power is now exercised under Sections 282 and 457 of the Criminal Procedure (Scotland) Act 1975.
Existing legislation makes no provision for the High Court to consult in exercising its powers. This contrasts with the arrangements for preparing Acts of Sederunt, which regulate civil court procedure in Scotland and under which there are rules councils for the court of session and sheriff courts with a membership representing the judiciary and court users.
I am pleased therefore to be able to introduce this provision which provides for the setting up under statute of a rules council for criminal court proceedings. The new council will have broadly comparable functions to
86
the existing rules councils for civil court business and will provide a structured consultative forum for considering and commenting on proposals for changes to the rules of court. In this way the new body will assist the High Court in discharging its powers for making Acts of Adjournal.
Subsections (2) and (3) of the new clause make provision for the membership of the council. In drawing up the membership framework care has been taken to involve those with practical experience of working in the courts and operating the rules.
During the debate on this Bill, as happened earlier this afternoon, there has been considerable attention paid to the interests of victims in the operation of the criminal justice system. Noble Lords, therefore, will wish to note that provision has been made for involving in the new council a member who combines a knowledge of criminal court practices and procedures with an awareness of the interests of victims and witnesses in those proceedings.
The new arrangements are based on discussions with the Lord Justice General, whose suggestion it was that this change might be made. I beg to move.
Lord Macaulay of Bragar: My Lords, we regard this as a significant piece of legislation in relation to the criminal procedure in Scotland. It is most welcome.
On Question, amendment agreed to.
[Amendment No. 85 not moved.]
Clause 49 [Prints, samples etc. in criminal investigations]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 86:
Page 44, line 44, leave out from ("constable") to ("take") in line 45 and insert ("may, within the permitted period—
(a)")
The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 87, 88 and 89. They are technical in nature and I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos 87 to 89:
Page 45, line 3, leave out ("may,").
Page 45, line 10, leave out (", within the permitted period,").
Page 45, line 18, leave out ("(3) (a)") and insert ("(2)").
On Question, amendments agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 90:
After Clause 52, insert the following new clause:
Time limit for summary prosecution of statutory offences
(" .—(1) Section 331 of the 1975 Act (time limit for summary prosecution of statutory offences) shall be amended as follows.
(2) In subsection (1), after the words "in respect of" there shall be inserted "any offence triable only summarily and consisting of".
(3) Subsection (2) shall cease to have effect.").
The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 127 and 130. On Second Reading I indicated that we were looking at certain inconsistencies which exist in time-bar provisions in respect of the summary prosecution of

87
certain offences. The principal statute provision is Section 331 of the 1975 Act, which imposes a general bar against commencing summary proceedings in relation to statutory offences more than six months after the date of contravention. However, this section does not apply where the statute or order which creates the particular offence specifies its own time limit.
I am not in the habit of introducing government amendments by explaining first what they do not do. However, on this occasion, it might help to set the context. First, the amendments will not disturb any time bars in relation to the summary prosecutions of offences where, as I have indicated, the statute creating the offence specifies its own period. These time limits have been set in the light of the nature and circumstances of the offence in question. There is no need therefore to revisit them or to alter them.
Nor, and as importantly, do the amendments disturb the application of Section 331 to statutory offences which can be prosecuted only summarily. It is, indeed, desirable in the interests of justice that such lesser offences should be dealt with quickly.
A problem does, however, arise with statutory offences which are triable either summarily or on indictment. These are by definition more serious offences than those to which I have just referred. The existence of a general time bar of six months on a summary prosecution of offences causes particular difficulty in relation to offences contained in GB or UK statutes because there is no comparable general time bar on a summary prosecution of what are known as "either way" offences in England and Wales unless the statute specifically sets a time limit.
The unwelcome result is that the Crown in Scotland may be barred from prosecuting such offences there which the Crown Prosecution Service could prosecute in England when the offence does not come to light within the six month period. I am sure that noble Lords familiar with the Scottish system will appreciate that this is a growing problem given the increasing number of investigative functions which now fall to agencies other than the police.
The two minor amendments within the group repeal the last remnants of Section 331 of the 1975 Act, which were left in place in error when the bulk of that section was repealed in the Incest and Related Offences (Scotland) Act 1986. I beg to move.
On Question, amendment agreed to.
Clause 54 [Legal aid in criminal appeals]:
[Amendment No. 91 not moved.]
Clause 55 [Supervision and care of persons diverted from prosecution or subject to supervision requirement etc.]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 92:
Page 48, line 45, after ("174ZC(2) (d)") insert ("or 375ZC(2) (d)").
The noble and learned Lord said: My Lords, this amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 93:
After Clause 73, insert the following new clause:
Forfeiture: district court
(" .—(1) Where, in respect of any offence tried in the district court, the accused is convicted or (without proceeding to conviction) an order is made discharging him absolutely the court may, if it is satisfied on the application of the prosecutor that any moveable property which was at the time of the offence or of the accused's apprehension in his ownership or possession or under his control—

(a) has been used for the purpose of committing, or facilitating the commission of, any offence; or

(b) was intended to be used for that purpose,

order that the property shall be forfeited to and vest in the Crown or such other person as the court may direct.
(2) Any application under subsection (1) above shall be made following upon the conviction of the accused or, as the case may be, the finding that he committed the offence with which he was charged.
(3) Where, by itself, the use of property constitutes an offence in whole or in part, that property shall be regarded for the purpose of subsection (1) (a) above as used for the purpose of committing the offence, unless the enactment which created the offence expressly excludes the application of this section.
(4) Subject to subsection (5) below, where the accused is convicted of an offence under any enactment, the court shall not be precluded from making an order under subsection (1) above in respect of any property by reason only that the property would not be liable to forfeiture under that enactment.
(5) Subsection (4) above shall not apply—

(a) if the enactment concerned expressly excludes the application of this section; or

(b) to any property which has been used or has been intended to be used as mentioned in subsection (1) (a) or (b) above in relation to the offence of which the accused has been convicted, if the enactment concerned specifies the category of property which is to be liable to forfeiture thereunder, and the category so specified does not include the category of property which has been used or has been intended to be used as aforesaid.

(6) Where the court makes—

(a) an order under subsection (1) above that property shall be forfeited to the Crown; and

(b) a compensation order under section 58 of the Criminal Justice (Scotland) Act 1980,

against the same accused in the same proceedings, it may order that the proceeds of sale of the property forfeited by virtue of subsection (1) above shall be first directed towards satisfaction of the compensation order.
(7) For the purposes of any appeal or review an order under subsection (1) above is a sentence.
(8) In this section "the court" means the district court.").
The noble and learned Lord said: My Lords, Clause 73 makes provision for a new set of forfeiture procedures. These arrangements will not extend to district courts. In this respect, we agree with the conclusions of the Scottish Law Commission that new measures, which are modelled in part on civil proceedings, are not appropriate for the business of the district courts. On the other hand, we do not wish to deprive the district courts entirely of the useful general forfeiture power which is available presently and which the district courts employ. However, that particular power will be repealed as part of the reform.
We therefore considered whether district courts still need a general forfeiture power and we concluded that they do. The amendment introduces a substitute provision which will apply only to district courts. The conclusion is modelled closely on the provisions in Clause 73, adapted to make it workable for the district courts. The general power will extend only to movable property and will not attract the more complex arrangements which will support the suspended forfeiture order provisions.
Nonetheless, I believe that the clause will reinstate a valuable power to the district courts. It has been fashioned in a way which properly reflects the nature of the business of those courts. I beg to move.
7.45 p.m.
Lord Macaulay of Bragar: My Lords, is it proposed that the Government will give guidance to the district courts in the interpretation of the clause? It is not all that simple, even for lawyers to understand. In ensuring that the clause works effectively and without giving rise to appeals, it would be helpful for the courts to have guidelines.
Lord Rodger of Earlsferry: My Lords, I note what the noble Lord says. I cannot give him an undertaking in respect of that matter but perhaps I may remind him that the District Courts Association runs many training sessions, issues material and so forth. I should have thought that this matter was exactly the kind that the association would wish to take up.
On Question, amendment agreed to.
Clause 75 [Forfeiture of property subject to suspended forfeiture order]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 94:
Page 65, line 24, leave out from ("recorded") to end of line 25 and insert ("in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland.").
The noble and learned Lord said: My Lords, Amendments Nos. 94 and 95 are technical. I beg to move.
On Question, amendment agreed to.
Clause 78 [Appeal against court decision under section 76(1) or 77(1)]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 95:
Page 68, leave out lines 23 to 25 and insert ("cause a certified copy of the interlocutor of the Court to be recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland.").
On Question, amendment agreed to.
Schedule 4 [Amendments to Criminal Justice (Scotland) Act 1987 Relating to Part II]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 96:
Page 108, line 7, leave out ("1(1)") and insert ("59(1)").
The noble and learned Lord said: My Lords, this is a technical amendment. However, before moving it I should indicate one matter in connection with the forfeiture and confiscation provisions. We have not
90
addressed it at this stage but we hope to bring forward amendments on Third Reading. It relates to inhibition, which is at present covered by Chapter III of Part II of the Bill. At present that reflects the recommendation of the Scottish Law Commission to establish one system of inhibition for the prosecutor in the specific circumstances of confiscation or forfeiture; that would be a unique system. We do not consider that it would be appropriate to introduce a special system in the context of confiscation and forfeiture. We consider that the whole issue of inhibition ought to be referred to the Scottish Law Commission for detailed examination. In those circumstances, we would wish to revert to the arrangements which currently apply under the Criminal Justice (Scotland) Act 1987. That will require a series of amendments which I hope to bring forward at Third Reading.
I can assure your Lordships that, although the amendments will look extensive and complex, their purpose is straightforward and is, in effect, to bring the position back to that under the current legislation. I invite your Lordships to note that for the future. In the meantime, the matter before your Lordships is a technical one. I beg to move.
On Question, amendment agreed to.
Schedule 5 [Minor and Consequential Amendments]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 97:
Page 119, line 25, leave out ("resignation") and insert ("demission of office").
The noble and learned Lord said: My Lords, in moving Amendment No. 97 I shall speak also to Amendments Nos. 98 and 99. These amendments refer to the provision in relation to the succession to the office of Lord Advocate. As I indicated in Committee, it is not a matter upon which I like to reflect too much. However, it is a technical matter and we propose to insert the word "demission" or similar words in order to cover all the various circumstances in which a Lord Advocate may pass from that office. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendments Nos. 98 and 99:
Page 119, line 26, leave out ("tender resignations") and insert ("demit office").
Page 119, line 27, leave out ("resigning from") and insert ("demitting").
The noble and learned Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 98 and 99 en bloc. I beg to move.
On Question, amendments agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 100:
Page 119, line 34, at end insert:
(". In section 50 (latitude as to time and place), after subsection (3) there shall be inserted the following subsection—
"(4) Notwithstanding subsection (3) above, nothing in any rule of law shall prohibit the amendment of an indictment to include a time outwith the exceptional latitude if it appears to the court that the amendment would not prejudice the accused.".").
The noble and learned Lord said: My Lords, these amendments were prompted by a pre-consolidation review of the legislation. They allow the Crown to amend the indictment or complaint in cases where exceptional latitude has been taken in the specification of the time and place of the offence, if the court is satisfied that the accused's interests will not be prejudiced.
On occasion information becomes available in the course of evidence being led which indicates that the offence was committed outside the period of exceptional latitude presently permitted. The Crown's inability to amend caused difficulties, for example, in child abuse cases. Such amendment will be competent only where the court is satisfied that it will not prejudice the accused's interests.
The second part of the amendment to Section 312 of the 1975 Act will substitute the more modern definition of "money" recommended by the Scottish Law Commission in its report on confiscation and forfeiture.
I beg to move.
Lord Macaulay of Bragar: My Lords, I have some slight reservations in relation to the phraseology of Amendment No. 100. However, I shall not take issue with it at this time. I should like to look at it more closely and if there is a real issue on the question of fairness to the accused and to the state, that can be raised either at Third Reading or in another place.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 101:
Page 120, line 2, at end insert:
(" . In section 73(1) (execution of citation of indictment), the words from ", unless" to the end shall cease to have effect.").
The noble and learned Lord said: My Lords, in moving Amendment No. 101 I shall speak also to Amendments Nos. 112 to 115, 122 to 126, 128 and 129. Our review of criminal procedure legislation prior to the planned consolidation prompted a number of proposals for the repeal of provisions, mainly in the 1975 Act. None of those provisions is any longer necessary and this is an opportunity to clear the statute book of those spent provisions. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 102:
Page 120, line 9, at end insert:
(" . In section 79(1) (description of witnesses), for the words from ", with" to the end there shall be substituted "together with an address at which they can be contacted for the purposes of precognition.".").
The noble and learned Lord said: My Lords, Amendments Nos. 102 and 103 are related minor pre-consolidation amendments to Sections 79 and 81 of the 1975 Act. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 103:
Page 120, line 12, at end insert:
(" . In section 81 (examination by prosecutor of witnesses, etc., not included in lists lodged) after the word "address" there shall be inserted "as mentioned in section 79(1) above,".").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 104 and 105:
Page 120, line 14, leave out ("(1) (a)") and insert ("(1)—
(i) in paragraph (a)").
Page 120, leave out lines 17 to 27 and insert:
("(ii) for paragraph (b) there shall be substituted—"
(b) the court, on cause shown, otherwise directs."; and
(b) in subsection (2), for the words from "written notice" to "the court" there shall be substituted—
"(a) written notice of the names and addresses of such witnesses and of such productions shall have been given—

(i) where the case is to be tried in the sheriff court, to the procurator fiscal of the district of the trial diet at or before the first diet; and

(ii) where the case is to be tried in the High Court, to the Crown Agent at least ten clear days before the day on which the jury is sworn; or

(b) the court, on cause shown, otherwise directs, in which case it".").
The noble and learned Lord said: My Lords, in speaking to Amendment No. 9, Amendments Nos. 104 and 105 were also spoken to. With the leave of the House, I shall move them en bloc. I beg to move.
On Question, amendments agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 106:
Page 120, line 43, at end insert:
(" . For section 125 (on plea of not guilty, jury to he balloted and sworn) there shall be substituted the following section—
"On plea of not guilty, plea to be recorded and jury balloted.
125. Where the accused pleads not guilty, the clerk of court shall record that fact and proceed to ballot the jury.".").
The noble and learned Lord said: My Lords, this is a minor pre-consolidation amendment to remove an historical anomaly. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 107:
Page 120, line 44, after ("place),") insert ("(a) in subsection (1), for the words "date of such trial diet" there shall be substituted "last day of the sitting in which the trial diet was to be held";
(b)").
The noble and learned Lord said: My Lords, in moving Amendment No. 107 I shall speak also to Amendment No. 108. These two pre-consolidation amendments will clarify Section 127 of the 1975 Act. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 108:
Page 120, line 49, at end insert ("; and

93
(c) after subsection (4) there shall be inserted the following subsection—
"(5) The warrant issued under section 69 of this Act shall be sufficient warrant for the citation of the accused and witnesses to any further diet appointed under this section".").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 109:
Page 121, line 6, at end insert:
(" . In section 134 (provision for death or illness of jurors)—

(a) for the words "any juror is, through illness or for any other reason, unfit" there shall be substituted "it is for any reason inappropriate for any juror"; and

(b) for the words "or on behalf of the Lord Advocate" there shall be substituted "the prosecutor".").

The noble and learned Lord said: My Lords, Amendment No. 109 extends the court's existing power to permit a trial to continue before a reduced jury where a member of that jury has died, fallen ill or is for any other reason considered unfit to serve. The court will exercise the power on an application made by or on behalf of the Lord Advocate or an accused under Section 134 of the 1975 Act.
As the noble and learned Lord, Lord McCluskey, explained to the House at Committee stage, at present the extent of that power is somewhat unclear. It may not extend to all possible circumstances in which it would be undesirable for a juror to continue serving. The aim of the amendment is to widen the court's discretion in deciding whether a juror should continue to serve. The second amendment extends to a private prosecutor the rights presently available to the Lord Advocate or an accused to apply to the court for the continuation of a trial under this section. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 110:
Page 121, line 8, after ("(1);") insert:
("( ) in subsection (1), for the words from "it", where it first occurs, to the end there shall be substituted "copies of the indictment shall be provided for each member of the jury without lists of witnesses or productions"; and").
The noble and learned Lord said: My Lords, again this is a minor pre-consolidation amendment to Section 135 of the 1975 Act. I beg to move.
On Question, amendment agreed to.
[Amendment No. 111 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 112 to 115:
Page 121, line 27, at end insert:
(" . Section 144 (notice of spouse as witness) shall cease to have effect.
. Section 145(4) (interruption of trial) shall cease to have effect.
. Section 146 (sheriff's notes of evidence) shall cease to have effect.").
Page 121, line 35, at end insert:
(" . In section 153 (seclusion of jury, etc., after retiral)—

(a) subsection (I) shall cease to have effect; and

(b) in subsection (3) (b) (ii), the words from "(as" to the end shall cease to have effect.

. Sections 156(5) and 360A(2) (interruption of trial for verdict in earlier trial) shall cease to have effect.").
Page 121, line 38, at end insert:
(" Section 159(1) (previous convictions libelled as aggravations) and (3) (passing of sentence on second or subsequent conviction) and section 356(1) and (3) (equivalent provisions in relation to summary procedure) shall cease to have effect.
. Section 160(3) (verdict as to whether previous convictions proved) shall cease to have effect.").
Page 122, line 30, at end insert:
(" . Sections 190 and 391 (supplementary provisions as to probation: security for good behaviour) shall cease to have effect.").
The noble and learned Lord said: My Lords, in speaking to Amendment No. 101 I spoke also to Amendments Nos. 112, 113, 114 and 115. With the leave of the House, I shall move these amendments en bloc. I beg to move.
On Question, amendments agreed to.
[Amendment No. 116 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 117:
Page 123, line 36, at end insert:
(" . For subsection (1) of section 283 (application of Part H of that Act) there shall be substituted the following subsections—
"(1) This Part of this Act applies to summary proceedings in respect of any offence which might prior to the passing of this Act, or which may under the provisions of this or any Act, whether passed before or after this Act, be tried summarily.
(1A) Without prejudice to subsection (1) above, this Part of this Act also applies to procedure in all courts of summary jurisdiction in so far as they have jurisdiction in respect of—

(a) any offence or the recovery of a penalty under any enactment or rule of law which does not exclude summary procedure as well as, in accordance with section 196 of this Act, to the enforcement of a fine imposed in solemn proceedings; and

(b) any order ad factum praestandum, or other order of court or warrant competent to a court of summary jurisdiction.".").

The noble and learned Lord said: My Lords, this is a pre-consolidation amendment to Section 283 of the 1975 Act. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 118:
Page 123, line 38, at end insert:
(" . In section 312 (form of charge in complaint)

(a) in paragraph (f), at the end there shall be inserted the words "provided also that nothing in the foregoing provisions of this paragraph or in any rule of law shall prohibit the amendment of a complaint to include a time outwith the exceptional latitude if it appears to the court that the amendment would not prejudice the accused;"; and

(b) in paragraph (j), for the words from "all" to the end there shall be substituted "cheques, banknotes, postal orders, money orders and foreign currency;".").

The noble and learned Lord said: My Lords, when speaking to Amendment No. 100, I also spoke to Amendment No. 118. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 119:
Page 128, line 15, at end insert:
(" . In section 20 of that Act (admissibility of certain evidence regarding speeding offences etc.), after subsection (8) there shall be inserted the following subsection—

95
"(8A) As respects proceedings in Scotland, a copy of a document served on a person under subsection (8) above shall be served in such manner as may be prescribed by Act of Adjournal, and a written execution purporting to be signed by the person who served such copy document together with, where appropriate, the relevant post office receipt shall be sufficient evidence of service of such a copy.").
The noble and learned Lord said: My Lords, Section 28 of the Road Traffic Offenders Act 1988 deals with the admissibility of certain evidence in trials for speeding offences. An example may be a document which contains a measurement of the speed made by an electronic device for that purpose. Section 28 provides that such a document is admissible only if it is served in advance of the trial. However, no provision is made as to how the document is to be served. The amendment puts that right by specifying the manner of service and the way in which such service is to be proved. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 120:
Page 130, line 23, after ("or") insert ("Part II of").
The noble and learned Lord said: My Lords, in moving Amendment No. 120, I wish to speak also to Amendment No. 121. These are technical amendments to ensure that the provisions refer only to Part II and not the Bill as a whole. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 121:
Page 130, line 44, after ("and") insert ("Part II of").
On Question, amendment agreed to.
Schedule 6 [Repeals]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 122 to 126:
Page 134, line 26, column 3, at end insert:

("In section 73(1), the words from ",
unless" to the end.").

Page 134, line 31, column 3, at end insert:

("Section 144. Section 145(4). Section 146.").

Page 134, line 34, column 3, at end insert:

("In section 153, subsection (1) and, in subsection (3) (b) (ii), the words from "(as" to the end. Section 156(5).").

Page 134, line 37, column 3, at end insert:

("Section 159(1) and (3). Section 160(3).").

Page 135, line 6, column 3, at end insert:

("Section 190.").

The noble and learned Lord said: My Lords, in speaking to Amendment No. 101 I spoke to Amendments Nos. 122 to 126. I beg to move those amendments en bloc.
On Question, amendments agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 127:
Page 135, line 32, column 3, at end insert:

("Section 331(2).").

The noble and learned Lord said: My Lords, when speaking to Amendment No. 90, I spoke also to Amendment No. 127. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 128 and 129:
Page 135, line 39, column 3, at end insert:

("Section 356(1) and (3). Section 360A(2).").

Page 136, line 7, column 3, at end insert:

("Section 391.").

The noble and learned Lord said: My Lords, when speaking to Amendment No. 101, I spoke also to Amendments Nos. 128 and 129. I beg to move those amendments en bloc.
On Question, amendments agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 130:
Page 136, line 29, at end insert:

("1986 c. 36.

The Incest and Related Offences (Scotland) Act 1986.

In Schedule 1, paragraph 2.")

The noble and learned Lord said: My Lords, when speaking to Amendment No. 90, I spoke also to Amendment No. 130. I beg to move.
On Question, amendment agreed to.
House adjourned at three minutes past eight o'clock.