Criminal Justice (Scotland) Bill [H.L.] (Hansard, 14 February 1995)

HL Deb 14 February 1995 vol 561 cc577-94 577

§ 3.21 p.m.

§ Read a third time.

§ Clause 20 [Evidence of criminal record and character of accused]:

§ The Lord Advocate (Lord Rodger of Earlsferry) moved Amendment No. 1: Leave out Clause 20 and insert the following new clause:

§ Evidence of criminal record and character of accused

§ (".—(1) In section 141 of the 1975 Act (accused competent witness for defence in solemn proceedings)—

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

(i) after the word "character" where it first occurs there shall be inserted "or impugning the character of the complainer"; and
(ii) after the word "prosecution" in the second place where it occurs there shall be inserted "or of the complainer"; 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.
(1C) In subsection (1) above, references to the complainer include references to a victim who is deceased.".

§ (2) After section 141 of that Act there shall be inserted the following section—

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§ "Evidence of criminal record and character of accused.

§ 141ZA.—(1) This section applies where—

(a) evidence is led by the defence, or the defence asks questions of a witness for the prosecution, with a view to establishing the accused's good character or impugning the character of the prosecutor, of any witness for the prosecution or of the complainer; or
(b) the nature or conduct of the defence is such as to tend to establish the accused's good character or to involve imputations on the character of the prosecutor, of any witness for the prosecution or of the complainer.

§ (2) Where this section applies the court may, without prejudice to section 149 of this Act, on the application of the prosecutor, permit the prosecutor to lead evidence that the accused has committed, or has been convicted of, or has been charged with, offences other than that for which he is being tried, or is of bad character, notwithstanding that a witness or production concerned is not included in any list lodged by the prosecutor and that the notice required by sections 81 and 82(2) of this Act has not been given.

§ (3) An application under subsection (2) above shall be made in the course of the trial but in the absence of the jury.

§ (4) In subsection (1) above, references to the complainer include references to a victim who is deceased.".

§ (3) In section 160 of that Act (laying of previous convictions before jury), for subsection (2) there shall be substituted the following subsection—

§ "(2) Nothing in subsection (1) above shall prevent the prosecutor—

(a) asking the accused questions tending to show that he has been convicted of an offence other than that with which he is charged, where he is entitled to do so under section 141 of this Act; or
(b) leading evidence of previous convictions where it is competent to do so—

(i) as evidence in support of a substantive charge; or
(ii) under section 141ZA of this Act.".

§ (4) In section 346 of that Act (accused competent witness for defence in summary proceedings)—

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

(i) after the word "character" where it first occurs there shall be inserted "or impugning the character of the complainer"; and
(ii) after the word "prosecution" in the second place where it occurs there shall be inserted "or of the complainer"; 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) In subsection (1) above, references to the complainer include references to a victim who is deceased.".

§ (5) After section 346 of that Act there shall be inserted the following section—

§ "Evidence of criminal record and character of accused.

§ 346ZA.—(1) This section applies where—

(a) evidence is led by the defence, or the defence asks questions of a witness for the prosecution, with a view to establishing the accused's good character or impugning the character of the prosecutor, of any witness for the prosecution or of the complainer; or
(b) the nature or conduct of the defence is such as to tend to establish the accused's good character or to involve imputations on the character of the prosecutor, of any witness for the prosecution or of the complainer.

§ (2) Where this section applies the court may, without prejudice to section 350 of this Act, on the application of the prosecutor, permit the prosecutor to lead evidence that the accused has committed, or has been convicted of, or has been charged with, offences other than that for which he is being tried, or is of bad character.

§ (3) In subsection (1) above, references to the complainer include references to a victim who is deceased.".

§ (6) In section 357 of that Act (laying of previous convictions before court), in subsection (5), for the words from "evidence" where it first occurs to the end there shall be substituted "the prosecutor—

(a) asking the accused questions tending to show that the accused has been convicted of an offence other than that with which he is charged, where he is entitled to do so under section 346 of this Act; or
(b) leading evidence of previous convictions where it is competent to dc so—

(i) as evidence in support of a substantive charge; or
(ii) under section 346ZA of this Act.".").

§ The noble and learned Lord said: My Lords, at Report stage I undertook to bring forward amendments to what is now Clause 20. Amendment No. 1 is the fulfilment of that undertaking. Its main effects can be summarised briefly.

§ First, it extends the effect of Section 141 of the Criminal Procedure (Scotland) Act 1975 which permits questioning of an accused person as to his record and character to cover the situation where the defence attacks the character of a person who has been killed in the incident covered by the charge. That fills an obvious loophole.

§ Secondly, subsections (1A) and (1C) put on to the face of the statute the need for the prosecutor to obtain the leave of the court before asking such questions. This reflects existing practice in the light of the case of Leggate.

§ Thirdly, for the reasons explained in Committee and at Report, subsection (2) builds on an existing aspect of our law which is referred to in Section 160(2) of the 1975 Act. That allows the prosecutor to lead evidence about an accused's bad character or previous convictions if the defence leads evidence suggesting he is of good character. By virtue of subsections (1) (a) and (b) of the new clause, the prosecutor will be able, again with leave of the court, to lead such evidence either where the defence leads evidence of good character or where the good character of, say, a Crown witness or a deceased person is attacked. So if, for instance, the defence leads evidence to indicate that someone who was killed in o an incident had previous convictions for violence and so might be expected to have been the aggressor, the prosecutor may apply to lead evidence to show that the accused also had previous convictions for violence. This would allow the jury to have a rounded picture when judging who was the aggressor. Again, the need for the prosecutor to obtain the leave of the court before leading the evidence provides the necessary safeguard against abuse.

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§ Similar provisions are made for both solemn and summary cases. I do not believe that questioning or the leading of evidence under these provisions will necessarily occur frequently in our courts. But the provisions are significant in that they rationalise this area of our law. I beg to move.

§ Lord Macaulay of Bragar
My Lords, it is unfortunate that very substantial amendments have been made to the Bill at this late stage of the proceedings. However, I recognise that the formulation which the noble and learned Lord the Lord Advocate has outlined arises from discussions which we had at Committee stage. A great many people who saw the multiplicity of government amendments made complaints to me that it was too late to consider them properly. But, having read the amendments, I believe that they have been properly balanced.
The question of leading evidence about the previous character of an accused person in court is, as the noble and learned Lord has said, properly balanced now in that the court will decide whether the question can be put. I just wish that the Government will look again at the right of the prosecutor to comment on the absence of the accused from the witness box in the same way that they have applied their minds to this section of the Bill. As noble Lords will be well aware, this Bill will be subjected to severe scrutiny in another place. I do not voice any objection to the phraseology at the moment, but obviously there is time for the matters to be considered and for representations to be received.

§ The Earl of Mar and Kellie
My Lords, during the earlier stages of our debates I expressed my disquiet at the inclusion of a similar clause in the Bill. My reservations were about the risks of an unsafe conviction occurring after the indiscriminate use of the accused's previous convictions. I felt then that the information would be far from helpful to the jury in coming to a decision. I am beginning to be satisfied that this opportunity for the prosecutor to establish the accused's previous bad character will be used only when the defence has either led evidence which tries to establish the accused's good character or indeed impugns the integrity of personalities within the prosecution. Provided that the process of applying for permission to retaliate in this way is completely out of the jury's awareness and that the Bench has a discretion in granting that permission, my reservations are probably satisfied. I shall be interested to see how this new clause works out in reality, if and when it reaches the statute book.

§ Baroness Carnegy of Lour
My Lords, the noble Lord, Lord Macaulay, commented on the fact that a number of people asked him whether he was satisfied that it is right for the Government to put down a number of long and quite complicated amendments at this stage. I was glad to hear him say that, having examined the amendments, for the time being he is satisfied. I am not in a position to judge the amendments on their merits. It is very satisfying that my noble and learned friends on the Front Bench have found it possible to bring the amendments before this 581 House rather than wait for all that to be done in another place. There it will possibly be more difficult for some of the detail to be dealt with in view of the fact that so much of the discussion took place in this House. I am very glad that the amendments have come here, remembering that they can be altered to a small degree, if necessary, in another place.

§ Lord Macaulay of Bragar
My Lords, the observations that I made were not in acquiescence or satisfaction.

§ On Question, amendment agreed to.

§ Clause 37 [Leave to appeal]:

§ Lord Rodger of Earlsferry moved Amendment No. 2:

§ Page 28, line 12, leave out ("summing up by") and insert ("charge to the jury of").

§ The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 20. I gave notice on Report that we intended to bring forward these two minor amendments to adjust the terminology of Clause 37 and of the corresponding provision i9 the 1975 Act to refer to the "judge's charge to the jury", which is the phrase normally used in Scottish law, rather than the "summing up of the judge", which is more often used in England and Wales. I believe that that is a satisfactory change to the terminology. I beg to move.

§ Lord Macaulay of Bragar
My Lords, on a point of information from the noble and learned Lord the Lord Advocate, how did this alien phrase "summing up" creep into Scottish legislation? It tends to suggest that we are doing a mirror image exercise between English and Scottish legislation. We are all familiar with the phrase "the judge's charge to the jury" in Scotland, but I have never heard it described as a "summing up" at any time.

§ Lord Rodger of Earlsferry
My Lords, I have not got chapter and verse on it, but, as the noble Lord will be aware, the problem occurred in Section 274(5) of the 1975 Act. How and why it slipped in there I am not sure.

§ On Question, amendment agreed to.

§ Clause 75 [Exercise of powers by court or administrator]:

§ Lord Rodger of Earlsferry moved Amendment No. 3:

§ Page 65, line 10, leave out ("and 88") and insert (", (Inhibition of property affected by restraint order or by interdict) and (Arrestment of property affected by restraint order)").

§ The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 4 to 19 and 21 to 25. I apologise to your Lordships' House for the fact that a number of the very technical amendments to correct cross-referencing of clause numbers in the Bill appear on the Marshalled List as starred amendments. I beg the indulgence of the House in considering what are minor technical amendments which it was not possible to table earlier.

§ When we dealt with the matter on Report, I said that those issues would be dealt with on Third Reading. Although the amendments may appear substantial, they are in fact a necessarily lengthy expression of a 582 straightforward principle. They introduce new clauses to replace Clauses 88 and 92 and make consequential amendments to other clauses and schedules.

§ In its report on confiscation and forfeiture, the Scottish Law Commission recommended that procedures generally available for inhibition and arrestment of property in connection with drug trafficking and terrorist offences should be extended to other serious crimes where confiscation and forfeiture were appropriate.

§ Existing procedures were available in Section 11 of the Criminal Justice (Scotland) Act 1987 for drug trafficking offences and in Schedule 4 to the Prevention of Terrorism (Temporary Provisions) Act 1989 for terrorist offences. The commission, however, considered that in relation to inhibition the existing provisions were cumbersome and inconvenient. It recommended a simple procedure available not only in the Court of Session, but also in the sheriff court. That procedure would be available on the application of the prosecutor. This recommended simple procedure for both inhibition and arrestment is set out in the Bill as drafted before your Lordships today.

§ We reflected further on that, however. As I indicated to your Lordships at an earlier stage, I have concluded that it would be inappropriate to bring forward a simplified inhibition procedure in respect of criminal proceedings only and available to the prosecution only. I am therefore asking the Scottish Law Commission to examine the whole question of inhibition procedure. Until we have its report and recommendations, I believe that the best course of action is to retain the existing procedures for inhibition in respect of drug trafficking and terrorist offences and to apply those existing procedures to other serious crimes through the medium of the Bill. The procedures have not caused difficulties in practice.

§ That is why I have brought forward these amendments. Although they appear extensive, what they do in essence is to reinstate the existing inhibition procedures in the 1987 and 1989 Acts and to insert them in the Bill so far as other serious crimes are concerned. At the same time, however, the amendments provide for the retention in the Bill of the simplified and extended procedure for arrestment of moveable property recommended by the commission.

§ As I have said, I apologise for the number of these technical amendments, but I hope that I have given a satisfactory explanation of a technical and complex matter. I beg to move.

§ On Question, amendment agreed to.

§ 3.30 p.m.

§ Clause 76 [Compensation]:

§ Lord Rodger of Earlsferry moved Amendment No. 4:

§ Page 66, line 11, leave out ("88") and insert ("(Inhibition of property affected by restraint order or by interdict), (Arrestment of property affected by restraint order)").

§ On Question, amendment agreed to.

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§ Clause 84 [Restraint orders]:

§ Lord Rodger of Earlsferry moved Amendment No. 5:

§ Page 75, line 6, at end insert ("(8) The court may, where it has granted a restraint order, interdict a person not subject to that order from dealing with property affected by it while it is in force. (9) Subsections (2) (a) and (3) (a) above shall apply in relation to subsection (8) above as they apply in relation to subsection (1) above; and subsections (1), (2), 14) and (5) of section 87 of this Act shall apply in relation to an interdict under subsection (8) above as they apply in relation to a restraint order. (10) Without prejudice to the time when it becomes effective, an interdict under subsection (8) above shall be intimated to each person affected by it.").

§ On Question, amendment agreed to.

§ Clause 87 [Variation and recall of restraint orders]:

§ Lord Rodger of Earlsferry moved Amendment No. 6:

§ Page 77, line 36, leave out ('88(8)") and insert ("84(8)").

§ On Question, amendment agreed to.

§ Lord Rodger of Earisferry moved Amendments Nos. 7 and 8: After Clause 87, insert the following new clause:

§ Inhibition of property affected by restraint order or by interdict

§ (".—(1) On the application of the Lord Advocate, the Court of Session may in respect of heritable realisable property in Scotland affected by a restraint order (whether such property generally or particular such property) grant warrant for inhibition against any person interdicted by the order or, in relation to that property, under section 84(8) of this Act; and subject to the provisions of this Part of this Act, the warrant—

(a) shall have effect as if granted on the dependence of an action for debt at the instance of the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly; and
(b) shall have the effect of letters of inhibition and shall forthwith be registered by the Lord Advocate in the Register of Inhibitions and Adjudications.

§ (2) Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 (effective date of inhibition) shall apply in relation to an inhibition for which warrant has been granted under subsection (1) above as that section applies to an inhibition by separate letters or contained in a summons.

§ (3) In the application of section 158 of that Act of 1868 (recall of inhibition) to such an inhibition as is mentioned in subsection (2) above, references in that section to a particular Lord Ordinary shall be construed as references to any Lord Ordinary.

§ (4) The fact that an inhibition has been executed under subsection (1) above in respect of property shall not prejudice the exercise of an administrator's powers under or for the purposes of this Part of this Act in respect of that property.

§ (5) No inhibition executed under subsection (1) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for the inhibition has been granted has ceased to have effect in respect of that property; and the Lord Advocate shall—

(a) apply for the recall, or as the case may be restriction, of the inhibition; and
(b) ensure that the recall, or restriction, of an inhibition on such application is reflected in the Register of Inhibitions and Adjudications.").

§ After Clause 87, insert the following new clause:

§ Arrestment of property affected by restraint order

§ (".—(1) On the application of the prosecutor, the court may, in respect of moveable property affected by a restraint order (whether such property generally or particular such property), grant warrant for arrestment if the property would be arrestable if the person entitled to it were a debtor.

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§ (2) A warrant under subsection (1) above shall have effect as if granted on the dependence of an action for debt at the instance of the prosecutor against the person and may be executed, recalled, loosed or restricted accordingly.

§ (3) The fact that an arrestment has been executed under subsection (2) above in respect of property shall not prejudice the exercise of an administrator's powers under or for the purposes of this Part of this Act in respect of that property.

§ (4) No arrestment executed under subsection (2) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for such arrestment has been granted has ceased to have effect in respect of that property; and the prosecutor shall apply to the court for an order recalling, or as the case may be, restricting the arrestment accordingly.").

§ On Question, amendments agreed to.

§ Clause 88 [Inhibition and arrestment of property affected by restraint order or by interdict]:

§ Lord Rodger of Earisferry moved Amendment No. 9: Leave out Clause 88.

§ On Question, amendment agreed to.

§ Lord Rodger of Earisferry moved Amendments Nos. 10 and 11: After Clause 91, insert the following new clause:

§ Inhibition of Scottish property affected by order registered under

section 90

§ (".—(1) On the application of the Lord Advocate, the Court of Session may in respect of heritable realisable property in Scotland affected by a restraint order registered under section 90 of this Act (whether such property generally or particular such property) grant warrant for inhibition against any person with an interest in that property; and the warrant—

(a) shall have effect as if granted on the dependence of an action for debt at the instance of the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly;
(b) shall have the effect of letters of inhibition and shall forthwith be registered by the Lord Advocate in the Register of Inhibitions and Adjudications.

§ (4) The fact that an inhibition has been executed under subsection (1) above, in respect of property shall not prejudice the exercise of a receiver's powers under or for the purposes of section 77, 80 or 81 of the 1988 Act in respect of that property.

(a) apply for the recall, or as the case may be restriction, of the inhibition; and
(b) ensure that the recall, or restriction, of an inhibition on such application is reflected in the Register of Inhibitions and Adjudications.

§ (6) Any power of the Court of Session to recall, loose or restrict inhibitions shall, in relation to an order containing an inhibition under subsection (1) above and without prejudice to any other consideration lawfully applying to the exercise of the power, be exercised with a view to achieving the purposes specified in section 80 of the 1988 Act.").

585

§ After Clause 91, insert the following new clause:

§ Arrestment of Scottish property affected by order registered under section 90

§ (".—(1) On the application of the prosecutor, the court may, in respect of moveable property affected by a restraint order registered under section 90 of this Act (whether such property generally or particular such property), grant warrant for arrestment if the property would be arrestable if the person entitled to it were a debtor.

§ (3) The fact that an arrestment has been executed under subsection (2) above in respect of property shall not prejudice the exercise of a receiver's powers under or for the purposes of section 77, 80 or 81 of the 1988 Act in respect of that property.

§ (5) Any power of the Court of Session to recall, loose or restrict arrestments shall, in relation to an arrestment proceeding upon a warrant under subsection (1) above and without prejudice to any other consideration lawfully applying to the exercise of the power, be exercised with a view to achieving the purposes specified in section 80 of the 1988 Act.

§ (6) For the purposes of this section, "prosecutor" includes, where an order has been made by virtue of subsection (2) of section 76 of the 1988 Act and the information mentioned in that subsection has not yet been laid, the person as regards whom the court which made the order was satisfied as is mentioned in subsection (3) (b) of the said section 76.").

§ On Question, amendments agreed to.

§ Clause 92 [Inhibition and arrestment of Scottish property affected by order registered under section 90]:

§ Lord Rodger of Earlsferry moved Amendment No. 12: Leave out Clause 92.

§ On Question, amendment agreed to.

§ Clause 100 [Forfeiture of property where accused has died]:

§ Lord Rodger of Earlsferry moved Amendment No. 13:

§ Page 87, leave out lines 18 to 20 and insert: ("( ) Paragraphs (a) and (b) of subsection (1) and subsections (2) to (5) of section (Inhibition of property affected by restraint order or by interdict) of this Act shall, subject to any necessary modifications, apply for the purposes of subsection (10) (a) above as they apply for the purposes of that section. ( ) Subsections (2) to (7) of section (Arrestment of property affected by restraint order) of this Act shall, subject to any necessary modifications, apply for the purposes of subsection (10) (b) above as they apply for the purposes of that section.").

§ On Question, amendment agreed to.

§ Schedule 2 [Administrators]:

§ Lord Rodger of Earlsferry moved Amendment No. 14:

§ Page 98, line 18, leave out ("section 88") and insert ("sections (Inhibition of property affected by restraint order or by interdict) and (Arrestment of property affected by restraint order)").

§ On Question, amendment agreed to.

586

§ Schedule 3 [Sequestration etc. of Persons Holding Realisable or Forfeiture Property]:

§ Lord Rodger of Earlsferry moved Amendments Nos. 15 to 17:

§ Page 100, line 18, leave out ("92") and insert ("(Arrestment of Scottish property affected by order registered under section 90)").

§ Page 101, line 17, leave out ("92") and insert ("(Arrestment of Scottish property affected by order registered under section 90)").

§ Page 102, line 21, leave out ("92") and insert ("(Arrestment of Scottish property affected by order registered under section 90)").

§ On Question, amendments agreed to.

§ Schedule 4 [Amendments to the Criminal Justice (Scotland) Act 1987 Relating to Part II]:

§ Lord Rodger of Earlsferry moved Amendments Nos. 18 and 19:

§ Page 115, leave out from beginning of line 40 to end of line 36 on page 116 and insert:

("(a) in subsection (1), paragraph (b) and in paragraph (ii), the words "where granted under subsection (1) (a) above,", shall cease to have effect;
(b) in subsections (4) and (5), the words "or arrestment", in each place where they occur, shall cease to have effect; and
(c) subsection (6) shall cease to have effect.

§ . After section 11 there shall be inserted the following section—

§ "Arrestment of property affected by restraint order.

§ 11A.—(1) On the application of the prosecutor, the court may, in respect of moveable property affected by a restraint order (whether such property generally or particular such property), grant warrant for arrestment if the property would be arrestable if the person entitled to it were a debtor.

§ Page 119, line 35, leave out from ("following") to end of line 49 on page 120 and insert ("sections—

§ Inhibition of Scottish property affected by order registered under section 27.

§ 28A.—(1) On the application of the Lord Advocate, the Court of Session may in respect of heritable realisable property in Scotland affected by a restraint order registered under section 27 of this Act (whether such property generally or particular such property) grant warrant for inhibition against any person with an interest in that property; and the warrant—

(a) shall have effect as if granted on the dependence of an action for debt at the instance of the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly;
(b) shall have the effect of letters of inhibition and shall forthwith be registered by the Lord Advocate in the Register of Inhibitions and Adjudications.

587

§ (4) The fact that an inhibition has been executed under subsection (1) above, in respect of property shall not prejudice the exercise of a receiver s powers under or for the purposes of section 8, 11 or 12 of the Drug Trafficking Offences Act 1986 in respect of that property.

(a) apply for the recall, or as the case may be restriction, of the inhibition; and
(b) ensure that the recall, or restriction, of an inhibition on such application is reflected in the Register of Inhibitions and Adjudications.

§ Arrestment of Scottish property affected by order registered under

section 27.

§ 28B.—(1) On the application of the prosecutor, the court may, in respect of moveable property affected by a restraint order registered under section 27 of this Act (whether such property generally or particular such property), grant warrant for arrestment if the property would be arrestable if the person entitled to it were a debtor.

§ (3) The fact that an arrestment has been executed under subsection (2) above in respect of property shall not prejudice the exercise of a receiver's powers under or for the purposes of section 8, 11 or 12 of the Drug Trafficking Offences Act 1986 in respect of that property.

§ (6) For the purposes of this section, "prosecutor" includes, where an order has been made by virtue of subsection (2) of section 7 of the Drug Trafficking Offences Act 1986 and the information mentioned in that subsection has not yet been laid, the person as regards whom the court which made the order was satisfied as is mentioned in subsection (3) (b) of the said section 7.".").

§ On Question, amendments agreed to.

§ Schedule 5 [Minor and Consequential Amendments]:

§ Lord Rodger of Earlsferry moved Amendments Nos. 20 to 23:

§ Page 129, line 43, at end insert: 588 (" In section 274(5) (e) (record of proceedings at trial), for the words "summing up by the judge" there shall be substituted "judge's charge to the jury".").

§ Page 136, leave out lines 13 to 26.

§ Page 138, line 21, leave out ("or 92") and insert (", (Inhibition of Scottish property affected by order registered under section 90) or (Arrestment of Scottish property affected by order registered under section 90)").

§ Page 139, line, 39 leave out paragraph 108 and insert: (" .—(1) Schedule 4 to the Prevention of Terrorism (Temporary Provisions) Act 1989 (forfeiture orders) shall be amended as follows.

§ (2) In paragraph 16—

(a) in sub-paragraph (1), paragraph (b) shall cease to have effect;
(b) in sub-paragraph (2) (b), the words "where granted under sub-paragraph (1) (a) above," shall cease to have effect; and
(c) in sub-paragraphs (5) and (6), the words "or arrestment", in each place where they occur, shall cease to have effect.

§ (3) After paragraph 16 there shall be inserted the following paragraph—

§ "16A.—(1) On the application of the prosecutor, the court may, in respect of moveable property affected by a restraint order (whether such property generally or particular such property), grant warrant for arrestment if the property would be arrestable if the person entitled to it were a debtor.

§ (2) A warrant under sub-paragraph (1) above shall have effect as if granted on the dependence of an action for debt at the instance of the prosecutor against the person and may be executed, recalled, loosed or restricted accordingly.

§ (3) The fact that an arrestment has been executed under sub-paragraph (2) above in respect of property shall not prejudice the exercise of an administrator's powers under or for the purposes of this Part of this Schedule in respect of that property.

§ (4) No arrestment executed under sub-paragraph (2) above shall have effect once, or in so far as, the restraint order affecting the property in respect of which the warrant for such arrestment has been granted has ceased to have effect in respect of that property; and the prosecutor shall apply to the court for an order recalling, or as the case may be, restricting the arrestment accordingly.".")

§ On Question, amendments agreed to.

§ Schedule 6 [Repeals]:

§ Lord Rodger of Earlsferry moved Amendments Nos. 24 and 25:

§ Page 144, leave out line 26, column 3, and insert:

("In section 11, in subsection (1), paragraph (b) and, in paragraph (ii), the words "where granted under subsection (1) (a) above,"; in subsections (4) and (5), the words "or arrestment" in each place where they occur; and subsection (6).").

589

§ Page 145, line 9, at end insert:

("1989 c.4.

The Prevention of Terrorism (Temporary Provisions) Act 1989.

In Schedule 4, in paragraph 16, sub-paragraph (1) (b); in sub-paragraph (2) (b) the words "where granted under sub-paragraph (1) (a) above,"; and in sub-paragraphs (5) and (6), the words "or arrestment", in each place where they occur.").

§ On Question, amendments agreed to.

§ An amendment (privilege) made.

§ 3.34 p.m.

§ The Minister of State, Scottish Office (Lord Fraser of Carmyllie)
My Lords, I beg to move that this Bill do now pass.
This is a major piece of legislation which, if enacted, will do much to enhance the efficient and effective operation of the criminal justice system in Scotland. Those of your Lordships who entered the Chamber from time to time during our discussions on the Bill might have considered that the qualification for participating in those discussions was to be either Scots or a lawyer—or preferably both. I do not believe that it is necessarily desirable to conduct legislation within quite such an exclusive preserve, so, although I am grateful to my legal colleagues from Scotland for their participation, perhaps I may extend even warmer thanks to those who are not lawyers who contributed to our debates on the Bill and who played a significant part in improving it.
Your Lordships scrutinised with some care the proposals relating to bail. I welcomed that scrutiny, particularly in relation to the possibility of prejudice to the accused and the proposals for limiting access to bail. What we must address—I believe that your Lordships support this—is the growth in the number of offences committed while on bail. I believe that the measures contained in the Bill do this and will serve to bolster the public's confidence in the workings of the bail system. In recent years, it has been somewhat tested.
We have had two lively debates in Committee and on Report about the principles underlying the selection of juries, and in particular the likely effect of our proposals to abolish peremptory challenge and to remove the occupation of potential jurors from the list. I listened with interest and care to the views expressed both from the Opposition and the Cross Benches, but we remain of the view that both proposals will improve the selection of juries without detriment to the interests of those accused of committing crimes.
I recognise that the debates which took place about the proposal to extend the scope of questions permitted at judicial examination did not persuade some of your Lordships that the change is desirable. The noble Lord, Lord Macaulay of Bragar, and the noble Earl, Lord Mar and Kellie, expressed most eloquently their concerns about the proposal.
590 I believe, however, that your Lordships' consideration of the matter has resulted in a better understanding of the nature of judicial examination and of the purpose of the modest changes in the Bill. The inclusion of a duty on the prosecutor to investigate any defence disclosed at judicial examination—a proposal initially brought forward by the noble and learned Lord, Lord McCluskey—will undoubtedly improve the operation of the system overall.
Your Lordships' opinion was sought on our proposal to remove the prohibition on the prosecutor commenting on an accused person's failure to give evidence, and your Lordships' House approved our proposals. We remain of the view that this is a common sense reform which will enable the issue of what inferences may be drawn from an accused person's silence in a particular case to be dealt with openly and in a fair manner.
The proposals to introduce a system of leave to appeal were examined in detail by your Lordships, most notably by the noble and learned Lord, Lord McCluskey. I hope that the answers provided by my noble and learned friend the Lord Advocate have alleviated some of his concerns. We firmly believe that the new procedures are essential to meet the requirements of the European Convention on Human Rights, while at the same time ensuring that the Appeal Court is not overburdened with unmeritorious or frivolous appeals.
A number of improvements have been made to the details of the proposals as a result of the debates in your Lordships' House, and I am grateful in particular to the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Macaulay, for their contributions.
The Government were greatly encouraged to find that the very important provisions in the Bill for reducing unnecessary attendance at court by victims and other witnesses appeared to enjoy broad support in your Lordships' House. The creation of mandatory intermediate and preliminary diets may not have attracted headlines, but the reforms will, I am confident, affect more people who come into contact with the criminal justice system than any other provisions in the Bill, and for that reason they are to be welcomed.
Allied to those provisions are the proposals for changes in the law of evidence which again are aimed at reducing unnecessary attendance at court by witnesses whose evidence is not, in the event, challenged. These measures appear to have the full support of your Lordships' House.
By way of contrast, our proposals to extend the circumstances in which evidence might be permitted as to the bad character or previous conduct of an accused provoked some controversy. In particular, we have reconsidered and improved the provisions in the Bill in the light of comments by the noble and learned Lord, Lord McCluskey. We are glad that we have been able to take the opportunity to introduce an important safeguard for the accused by placing on a statutory footing the decision of the court in Leggate.
Further safeguards for the accused and especially those who are unfit to plead or insane, also secured agreement on all sides of your Lordships' House. I was grateful for the attention which the noble Lord, Lord Macaulay, brought to bear on this package of measures. The helpful result has been a number of extensions to the periods allowed for certain appeals.
591 The Government recognise the increasingly significant contribution criminal justice social work services are making towards reducing offending behaviour. I say to the noble Earl, Lord Mar and Kellie, that I welcome the supportive remarks made by a number of your Lordships during the course of this Bill for the initiatives we are proposing aimed at increasing the scope and effectiveness of those services.
On Part II of the Bill, the provisions on the new arrangements for confiscation and forfeiture are necessarily complex, and l am grateful, as is my noble and learned friend the Lord Advocate, for your Lordships' forbearance in considering the amendments which we have found it necessary to bring forward. They were necessary as a result of our having moved so quickly, because it was only last September that the Scottish Law Commission's report became available to us; but we are pleased that we were able to introduce those amendments.
We have also managed to make significant progress with the minor amendments necessary to facilitate the forthcoming consolidation of criminal procedure legislation.
I should not like to see this Bill pass to another place without referring to the informed debates which have taken place on the position of the victim in the criminal justice system. I have welcomed the opportunity to address that fundamental matter. I welcome also the wider public debate that has been provoked in Scotland as a result of the debates that took place in Committee. Sometimes it might not appear that we provoke such interest in Scotland, but on this occasion we certainly did.
It is too easy to think of our criminal justice system as one concerned principally with the accused. A system which enjoys public confidence must be much more than that. The public rightly demands that victims be treated with courtesy and dignity, indeed even with appropriate compassion when there has been real trauma and distress. Much has been and is being done, but I fully acknowledge there is room for further improvement both in the quantity and quality of support and information provided to victims.
I am pleased to be able to inform your Lordships of an 11 per cent. increase in funding for Victim Support (Scotland) next year, bringing the total grant up to £.975,000. We are committed to improving the victim's experience of the criminal justice system, and we believe that the route we have set out on is the correct one, without imposing new statutory duties on the court.
While we might not have liked all the proposed new statutory duties, we are not entirely adverse to them. Your Lordships will recall our addressing in Committee the important subject of racial crime and racial discrimination. While I made clear my opposition to singling out racial motivation and requiring courts to consider that one aggravating factor above all others, I was content to accept a new statutory duty regularly to publish information designed to combat racial discrimination in the criminal justice system.
I conclude by again expressing thanks to all who have participated in the debates, in particular my noble and learned friend the Lord Advocate who has dealt with a number of extremely complicated matters. The Bill will pass now from this House to another place, amended and 592 considerably improved in the light of the proper and detailed scrutiny that has been afforded to it. I commend the Bill to the House.

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

§ 3.45 p.m.

§ Lord Macaulay of Bragar
My Lords, I am grateful to the Minister for the kind remarks that he has made about my contribution and that of other Members of your Lordships' House who have taken part in this debate. It was a useful but, as the Minister will recognise, not an exhaustive review of the criminal law in Scotland. That is an ongoing process, as is said, and we have to look at it from time to time. The Minister mentioned the Scottish Law Commission. We hope that with the change of government that will come within the next couple of years the Scottish Law Commission's reports may receive the attention that they deserve, and pass through a Scottish parliament in due course, but that is by the way.

Noble Lords
Oh!

§ Lord Macaulay of Bragar
My Lords, I just mentioned that in passing in case your Lordships had not noticed.
I welcome being involved to a certain extent with victim support organisations. I welcome and express the gratitude of the voluntary sector for the increase in funding to voluntary organisations that the Minister has managed to obtain. I know that he does not like being flattered by me, but I have described him previously as a caring Minister, and I repeat that, and make no apology for doing so. It is very much appreciated by the Scottish community.
What the Minister said about the Bill is in some ways puzzling. Your Lordships may wish to know that I lost my voice on Saturday morning. I was unable to speak until yesterday afternoon. It may be a matter of some regret that I can speak for a few minutes to answer some of what the Minister said. I cannot for the life of me see how removing any indication of a potential juror's occupation makes jury selection fairer. We have been over that course, and I have no doubt that it will be pursued in another place.
The way that judicial examination now stands is a contradiction in terms. There is nothing judicial about it. It is an attempt to get the accused to confess. That is the way it is being seen. The most remarkable thing the Minister said was when he talked about the inference to be drawn from silence. I am told by my noble friend Lord Carmichael, who has greater experience of Glasgow musicals than I have, that the late and great Tommy Morgan used to say to his wife, "You are nothing but a silent nagger". It seems to me that the inference to be drawn from silence is almost on a par with that. However, those are not matters to be taken lightly.
Both sides of your Lordships' House should recognise the input of the noble and learned Lord, Lord McCluskey, who has spent a great deal of time discussing matters with the noble and learned Lords the Lord Advocate and the Minister. He did not 593 always agree with them—he is not one for agreeing with Ministers—but useful amendments have emerged from our discussions.
We have reviewed and improved the Bill before it goes to another place on a purely non-party basis. I made it clear, leading the debate from this side of your Lordships' House, that it is not a party issue when we are trying to improve the criminal law system. I hope that it will be recognised by those on the government Benches—I am sure that it is—that the Bill's progress has been the result of the traditional exercise of a listening and amending process. As the Minister said, we hope that when the Bill goes to the other place it will take note of what has been said here and not go flying off at a tangent.
Other issues were raised which the Minister did not mention. Without a shadow of a doubt the issue of the non-proven verdict will come back in another place, as will the review of the jury system upon which I have already commented, and the appeal system. I tried this morning to obtain a copy of last week's decision in the High Court in Scotland which appeared to open the door to a greater degree of flexibility over the court considering new evidence.
I say this in the spirit in which we have conducted consideration of the Bill, and without having seen what the Lord Justice General said, but if the door is opened to appeals on evidence available at the trial, if there is a reasonable excuse for not leading it—if that is the broad import of the High Court's decision—is it necessary to have the Sutherland Committee sitting any more? What is the point of waiting two-and-a-half years for a committee to report back to the House? I believe that 1996 is the reporting year. A great deal of public money will be spent on a quango—or call it what you like. What is the point of that when the High Court has pushed itself into the 20th century and is looking forward to the next century and at what is worrying people throughout the United Kingdom; that is, possible miscarriages of justice?
The argument has been that if someone is allowed to bring in evidence that was available the so-called floodgates of appeal of one kind or another will be opened. The answer to that might be, "So what?". Every convicted person has the right of appeal and it is no answer to say that it is inconvenient for the courts to deal with that. We need a system which will deal with appeals efficiently and with a degree of flexibility.
I hope that between now and consideration of the Bill in another place, with its more robust surroundings, the Government will grasp the nettle of appeals and look at the Sutherland Committee and ask whether it is necessary. Is it not easier for the Government to go to the Lord Justice General and say, "We have read your opinion in that case. What does it really amount to? Do we need this committee any more or can we sit down and amend the Bill so that as it goes through another place we build into it the proper provisions to meet the safeguards that the public is worried about?"?
594 The Government should put in place a new system and one that is not strangled by antiquity. The fault with the Scottish appeal system is that it has been strangled. Everyone says, "If we allow this appeal we will get another 10 on the same ground". Again, I ask, "So what?". That is the right of the individual.
Being in opposition is an exercise in political impotence but in considering the Bill we may have achieved a few of our targets. We look forward to the not-too-distant future when perhaps the roles will be reversed. It would be churlish of me to conclude my remarks without paying tribute to the noble and learned Lords the Minister and the Lord Advocate for their consideration of everything that has been said from all sides of your Lordships' House. I thank them for the consideration and courtesy with which they dealt with all the remarks that were made during the debates on the Bill. It has been a valuable debate and I hope that it has improved the administration of criminal justice in Scotland.

§ 3.52 p.m.

§ The Earl of Mar and Kellie
My Lords, it will not have escaped your Lordships' notice that the Bill has been an education for me at every level. Perhaps in over dramatising the point, I can record that the baptism of fire has been gentle and on my part well received. Noble Lords have been both kind and generous. I thank the noble and learned Lords the Minister and the Lord Advocate for responding to my nine amendments which were usually drafted more with enthusiasm than with parliamentary skill. I was pleased that the care of victims was so well aired and that there was a commitment further to improve services to victims and their families. On Second Reading I called only for a 100 per cent. increase for Victim Support but the 11 per cent. increase is a real improvement and is welcome.
I look forward to the results of the research being undertaken by Stirling University into the effects of the increased use of compensation orders. The noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Macaulay of Bragar, gave the House a perspective of our legal system that I for one had not previously had. Perhaps the exchanges about the precise moment when a victim can be referred to as such characterise what I am referring to. Clearly, there are times when the social work and legal viewpoints can be widely separated. It is a little like the medical and legal situation which leads to the statement, "You are not dead until a doctor says that you are".
The Bill contains three controversial clauses dealing with changes to the judicial examination, the use of the accused's previous convictions and alterations around the accused's apparent right to silence. No doubt those issues will be raised again in another place.

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