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

HL Deb 12 January 1995 vol 560 cc295-346

3.40 p.m.

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

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Lord Macaulaof Bragar

moved Amendment No. 1: Before Clause 1, insert the following new clause: ("Relief for non-compliance with Acts of Parliament relating to the administration of criminal justice .—(1) The Court may, in its discretion, if it considers it to be expedient and in the interests of justice, relieve any party from the consequences of any failure to comply with the provisions of any Act relating to the administration of justice in criminal cases, provided the Court is satisfied that such failure was due to mistake, oversight or other like cause, and not being a wilful, negligent or careless omission on the part of the party seeking relief from the Court. (2) Any relief under subsection (I) above shall be granted or refused at the discretion of the Court having heard submissions on behalf of those concerned in the proceedings, and, where granted, the Court may make such orders and impose such conditions as appear just and proper and in the interests of justice to enable the proceedings to continue.").

The noble Lord said: This is not the first time that the amendment has been put before your Lordships' House. The last time it was greeted not with disdain but with some degree of diffidence. I make no apology for proposing it again because since the Bill was last before the House there have been incidents in Scotland where, in the public eye, justice does not appear to have been done as a result of purely administrative oversights on the part of the prosecution.

The amendment in my name applies to both the prosecution and the defence. It is designed to give a degree of flexibility to the criminal law which at present exists in the civil law. I appreciate as much an anyone that in the criminal system one must protect the rights of the individual, but at the same time this Parliament has a duty to recognise public anxiety about technicalities allowing people to get away with crimes. For obvious reasons I do not care to name them, but there have been one or two cases where there has been a failure to serve a notice of penalties in the court and the court has then said, "We cannot do anything about it because there has been an administrative oversight". I can think of one major criminal case involving a £500,000 alleged fraud on the public purse in the west of Scotland where a sheriff omitted to sign the interlocutor to continue the case from one day to another. Counsel came in, quite properly, in his client's interests, when the case was called the second time, and said that the whole proceedings were incompetent because the sheriff had failed to sign the interlocutor. The case was dismissed.

Whether or not the person who was charged was guilty of defrauding the public authorities of £500,000 is neither here nor there. What is important is that, looking at that example, the public must say to themselves, "What kind of system do we have when pure technicalities like that can allow a person not even to stand trial?" That is why the amendment was put down.

For those Members of the Committee who are interested, I have worded the amendment carefully to deal with two situations. One is that the court is satisfied that any failure to comply with any Act of Parliament relating to criminal proceedings was due to, mistake, oversight or other like cause"— in other words, that is just the way that it happened— and not being a wilful, negligent or careless omission". That leaves it open to the presiding judge to say to the Crown or the defence: "Well, that was negligent and careless and you will have to bear the consequences of it by losing the prosecution". Alternatively, if it is a matter of lodging a special defence in a criminal trial that is not allowed by the court, then the person involved could take action against the solicitor.

I have worded the amendment carefully and left the whole matter to the discretion of the court. Subsection (2) states: Any relief under subsection (1) … shall be granted or refused at the discretion of the Court having heard submissions on behalf of those concerned in the proceedings". The amendment then gives the court discretion to make such orders as it sees fit and proper in the interests of justice, to enable the proceedings to continue". By "proceedings", I mean not only trials but, for example, proceedings in the Court of Appeal. This is purely anecdotal, but I was told recently of a person appearing in the Appeal Court who appealed against a conviction for murder. The matter is now being continued, but when the defendant appeared his solicitor was not there. I do not know whether there was legal aid, but the court continued the case. The man was expecting his solicitor to be there, and he was forced to go on with the case which was later adjourned in order to obtain notes in evidence from certain witnesses. If that had not happened, the man charged with murder—and whether or not he was guilty is neither here nor there—would have appealed against his conviction and at being forced to go on in the absence of legal representation. Incidentally, what happened was probably in contravention of the European Convention.

Those examples spring to mind. I tabled the amendment in the hope that the Government would take another look at it. I seem to remember that a former Lord Advocate, the noble and learned Lord, Lord Cameron of Lochbroom, indicated that perhaps there were situations where such a matter might be applicable within the criminal law, to keep the balance between the rights of the individual and the public interest. In those circumstances, I beg to move.

Lord Renton

Before the noble Lord sits down, perhaps he would clarify one matter. Subsection (1) of the amendment refers to: failure to comply with the provisions of any Act relating to the administration of justice in criminal cases". Does the noble Lord intend to refer there to the administration of justice on both sides of the Border, or not? Quite frankly, if this were intended to refer to the administration of justice in England and Wales, we would have to consider it in the light of the law of England and Wales.

Lord Macaulay of Bragar

I am grateful to the noble Lord for his intervention. However, the Committee will notice that the title of the Bill is the Criminal Justice (Scotland) Bill. It only applies to England in three sections, mainly under Clause 89. The amendment was only meant to cover the administration of justice in Scotland. Of course, if the administration of justice south of the Border should find it convenient to adopt the civilised practices of Scotland, then so much the better.

Lord Fraser of Carmyllie

In bringing forward the amendment, the noble Lord has raised an issue of considerable significance. In effect, he is raising the question of how innocent oversights or simple mistakes should be resolved in the context of criminal proceedings. His proposal is to give a general power to grant relief by the court in every case, no matter what that failure might be.

In some respects, having been a prosecutor, I see the attraction of that, but I am concerned at the effect that the amendment might have on the general conduct of business in our courts. It is a significant feature of our system that considerable importance is placed on the observance of the detailed procedures set out both in subordinate legislation and in statute. Indeed, the consideration of matters which might lead to the conviction and imprisonment of an individual are accorded such importance that a great many detailed provisions have been deemed to merit enactment in primary rather than secondary legislation.

I would therefore be unhappy with an amendment which proposed in effect that the court should have general powers to waive observance of those procedures, albeit in circumstances where the court is satisfied that there was no wilful, negligent or careless omission on the part of the applicant. I would consider it preferable to maintain the discipline of the existing statutory procedures affecting, as they do in so many cases, the liberty of the individual. They have been set down for a purpose. It is important that all those who are involved in the criminal justice process pay particular attention to regular observance of them and ensure the attention to detail which, I am sure the noble Lord would agree, is a hallmark of the criminal justice system in Scotland.

If there are particular requirements by way of time limits or whatever that are considered to merit special dispensation, I would certainly be willing to consider making special limited provision. But in the absence of specific instances I would not like to see a general power introduced as the noble Lord suggested. However, if he has particular circumstances where he believes it might be desirable to allow such a dispensation I suggest that he might return to the matter at a later stage.

Lord Macaulay of Bragar

I am grateful to the Minister for that answer. I have given one simple example of the sheriff who failed to sign an interlocutor and effectively blocked the administration of justice in the public interest. Is it not in the public interest that there should be a general discretion for the court to rectify that omission? Why should people get away with alleged crimes because someone has made an administrative error?

There is no greater protector of the interests of the individual than myself, as noble Lords will no doubt find during this debate. Indeed several Members of the House will make it perfectly clear that the interests of the accused must always be protected. But the interests of the public equally must always be protected. In striking a balance I cannot see any reason why a general flexibility should not be built into the criminal system. However, I heard what the Minister had to say; I shall read his remarks with care. Perhaps we can resume the debate at a later stage of the Bill's passage through the House.

Lord McCluskey

Before the noble Lord withdraws his amendment, the example that he has given is not an error by a party but an error by the court. He is saying that if the court makes an error which renders the proceedings fundamentally null the court will then consider whether or not it has been caused by, among other things, carelessness. That seems bizarre. The provision is modelled upon mistakes by parties in civil proceedings. That is where it comes from. It is not apt to cover the case that the noble Lord has mentioned.

Secondly, the obligation to sign the interlocutor in a particular way is almost certainly not based upon an Act but upon a common law provision. So while one has sympathy with the notion, it would be unfortunate if we enacted a provision which does not meet the problem and then rendered it possible for parties in other circumstances to be relieved of the consequences of their carelessness, thus making something of a shambles of the whole administration of criminal justice in Scotland.

Lord Macaulay of Bragar

I am grateful to the noble and learned Lord for his intervention. As my former devil master he teaches me another lesson in the administration of justice. I do not suggest for one moment that the court should be able to rectify its own mistakes. I made clear in explaining the reasons for tabling the amendment that it was a general provision. If the court makes a mistake, it would be open to the procurator fiscal or the advocate depute on behalf of the Lord Advocate to apply to the appeal court for the proceedings to continue and to rectify the error created by the judge in question. I do not see that as an insurmountable object in relation to the general provisions of the amendment. Amendment, by leave, withdrawn.

Clause 1 [Bail conditions]:

The Earl of Mar and Kellie

moved Amendment No. 2: Page 2, line 7, after ("with") insert ("or intimidate"). The noble Earl said: Amendments Nos. 2 and 3 seek to extend the standard condition of bail which prohibits the person on bail from interfering with witnesses or obstructing the course of justice. I wish to add the words so that the condition will subsequently read that, the accused does not interfere with or intimidate witnesses or victims or otherwise obstruct the course of justice whether in relation to himself or any other person".

It will not have escaped the notice of the Committee that the victims of offending behaviour are a larger group than the group of witnesses. Victims are potentially anyone connected to the receiving end of an offence. For example, aggressive action against a relative may cause a witness to alter, modify or reduce his evidence and co-operation with the investigation and subsequent prosecution. Personal experience of social work with offenders leads me to recommend that the addition to the wording of this standard condition of bail will clarify the condition.

Part of the process of working with offenders is to ensure that they understand what they agreed to when released on bail. Amid the dismal euphoria of release from custody, it is very important that any instructions given are understood. Failure will lead to a breach of bail conditions. I beg to move.

Lord McCluskey

I am not persuaded that this is a valuable amendment. First, the Bill as drafted refers to a condition that the accused, does not interfere with witnesses or otherwise obstruct the course of justice". Plainly, to intimidate a witness would be an interference within the meaning of that wording. Therefore, the words are an unnecessary elaboration.

My second and more fundamental point relates to Amendment No. 3. It refers to "victims". I trust that later today we shall discuss the matter of victims. But when you release a person on bail as an accused person, you cannot beg the question as to whether or not another person is the victim. That makes the assumption that you already have an accused and a victim whereas, to take an ordinary assault case, the person who is allegedly the victim may simply have been the loser of the battle. He may have started it. That is a very common case. The police come to the scene of a street fight. The losers are on the ground and the winners have absconded. It is assumed that the losers are the victims. In fact, they may well h[...]ve started the fight and have simply been overpowered by the others. There is therefore a deep objection in principle to using the word "victim" at this stage in a process. For that reason I urge the Committee not to accept the amendments.

Lord Monkswell

I can understand the noble and learned Lord's qualification about the use of the word "victim". Obviously, until someone is proved guilty, there is no victim, in one view of the case. The mover pointed out that what was important was the perception of the accused. We need to be very careful when discussing statutes that we do not write them merely for the purposes of lawyers and professionals who can understand the convoluted verbiage quite often associated with our statutes. We have to ensure that the words that are used are understandable to (dare I say it?) the man on the Clapham omnibus, the ordinary man in the street, who may be required to adhere to requirements of statute. That is very important. I am not sure whether the wording of the amendment is right, but we need to bear in mind the purpose of it and recognise its importance.

Lord Macaulay of Bragar

The noble Lord, Lord Monkswell, makes a very valid point. The Bill as it presently stands in generic terms covers victims. But it is important that the public should know that the law protects victims. Victims are one of the great subjects of discussion, and, as the noble and learned Lord, Lord McCluskey, said, we shall come to that at a later stage. But it should be made clear to people in the streets of the cities of this country (I extend this particular provision to England and Wales as well—it is in the streets where it matters and not in this august Chamber or in the other place—that witnesses have to face intimidation day in and day out. They have to face the consequences of giving evidence. It would be useful at least—I do not say that it would improve the present situation any more, but I suggest that if it does not do any good it will not do any harm—to accept the noble Lord's amendments. It should be made clear that people can be charged with intimidating witnesses or victims or otherwise obstructing the course of justice.

We who have practised north of the Border all know the terrible pressures that people are put under in sociological terms not to give evidence. They cannot get protection from the police because the police cannot protect every witness in every case. That would be impossible. But at least, by accepting the amendment, it would send a message to those who might intimidate or interfere with witnesses or victims that the courts will deal with them in a pretty severe manner. If it does nothing else, it will at least send a message to the community that Parliament is doing something to protect the innocents in our community who are the victims of violence, of whom there are too many these days.

4 p.m.

Lord Fraser of Carmyllie

This amendment has behind it an entirely laudable intention; that is to say, that neither victims nor witnesses should in any circumstances be intimidated prior to the proceedings. But, as the noble and learned Lord, Lord McCluskey, indicated, my response to the noble Earl would be that the standard conditions as described in the Bill are already sufficiently wide in compass to cover the points raised. In particular, standard condition (c) clearly sets out that the accused who is granted bail must not interfere with witnesses or seek to obstruct the course of justice. Any attempt to threaten or intimidate either a witness or a victim, who in most cases will be a potential witness, would almost certainly involve breach of that condition and might also involve the commission of an offence.

Lord Macaulay of Bragar

I am sorry to interrupt the noble and learned Lord. He read from the Bill and said, "or seek to obstruct the course of justice". In fact, line 7 (on page 2 of the Bill) states: or otherwise obstruct the course of justice". There is a big difference between the two: "seeking to obstruct the course of justice" and "or otherwise obstructing the course of justice".

Lord Fraser of Carmyllie

If it is a question of a witness being intimidated, I should have thought that it was perfectly clear to the noble Lord that that would amount to an offence under the law of Scotland. From his own experience, he will know that any accused person, or indeed any person, who has been convicted of intimidating such a witness prior to a trial can expect a fairly rigorous disposal at the hands of the courts.

Apart from the issue of the standard conditions, if it is considered desirable that there should be additional conditions to protect not just the victim, perhaps, but indeed the family of the victim, it would be open to the courts under the proposed new subsection (2) (b) (i) to impose additional conditions that it considered necessary to ensure that those standard conditions were observed. It might, for example, be appropriate to make special provisions for the family of victims to ensure that an accused liberated on bail stays away from that individual and his or her family. In every case those decisions will be taken by the court, having regard to all the information available to it and the specific circumstances of the case.

Therefore, while I share the views expressed from all sides of the Committee that we should give a proper focus to the position of victims, I do not consider that the amendment is necessary.

The Earl of Mar and Kellie

I am a little concerned that there appears to be some dispute as to whether there is a victim. If an offence has been committed, there are distinct victims. I agree that it is questionable whether or not the accused is the offender.

Perhaps my concern stems from the social worker approach, where it has to be explained to someone who has just been placed on bail what he or she is not to do. It is at that point that I should like to have had those extra words on the bail order paper that has been handed out.

However, I have listened to what noble and learned Lords have said and I should like to consider the matter further. I shall probably come back at Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Clause 1 agreed to.

Clause 2 [Breach of bail conditions]:

Lord Fraser of Carmyllie

moved Amendment No. 4: Page 2, line 25, after ("sentence ") insert ("or disposal"). The noble and learned Lord said: There are minor drafting changes to the structure of subsection (4) in Amendments Nos. 4, 7 and 8. However, the main effect is to require the court, when it has exercised its powers to take into account when sentencing that the offence was committed while on bail, to state how the sentence differs from that which it would otherwise have imposed if the offence had not been committed while on bail and to give reasons for that difference.

We consider that this requirement will ensure that defendants are left in no doubt of the seriousness with which offending while on bail is regarded and how seriously they will be dealt with. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie

moved Amendment No. 5: Page 2, line 26, leave out from ("regard") to end of line 27 and insert ("to—

1. (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;
2. (b) any previous conviction of the accused of an offence under subsection (1) (b) above; and
3. (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: Clause 2 of the Bill gives the court new powers to deal with offending while on bail. The provisions enable the court, in imposing a sentence for an offence committed while on bail, to increase that sentence up to specified maxima to reflect the seriousness with which the court regards the breach of its trust.

As the clause is drafted, however, the court would be required to have regard only to the fact that the offender was on bail at the time. In our view the court should be able to deal more severely with an offender who was subject to several bail orders at the time that the offence was committed compared with an offender who was subject to only one bail order. Similarly, the previous record of an offender in relation to bail and any previous decision by a court under the provisions of this Bill to increase a sentence for bail abuse ought to be relevant to the court's consideration of the appropriate sentence.

This amendment would provide that the courts may have regard to such additional factors in determining the sentence. I beg to move.

Lord McCluskey

I ask the Committee not to accept this amendment. I establish my credentials. First of all, let me say—it was inaccurately recorded in the proceedings of the Second Reading—that I sit as a bail appeal judge approximately one week in four and hear approximately 120 bail appeals on those occasions. I always take into account the matters which are specified in this amendment. I see no reason why one should not take them into account. I should be surprised if one were not entitled to do so. It would mean that I had been behaving very badly for a number of years as a judge.

Before I say anything more, let me tell the Committee that I have just got off an aeroplane at Heathrow having come back from the mud slides and gales of California, where I was studying the effects of the Californian appeals system, of which I shall speak a little later. The Committee will therefore not expect from me the fluency that I have sometimes sought to profess in this Chamber and I ask Members to forgive me for that. However, on this particular matter I suggest that these amendments are entirely unnecessary for the reasons that I gave.

It is a bad principle to clutter up the statute book with matters that are entirely unnecessary. First, if we put in unnecessary enactments, we give rise to a greater possibility of error. Secondly, it causes delay. Each person who is considering bail must go through a tick list of items and discover whether or not they have all been met. Indeed, I doubt whether the new subsection (2A) is necessary or desirable for the same reasons.

I want to make a point which applies to a number of provisions in the Bill but I make it in detail only at this stage. Members of the Committee will recall that the Renton Committee, of which the noble Lord, Lord Renton—then Sir David Renton—was the distinguished chairman, produced a report which dealt, among other things, with over-elaboration of statutes. For example, paragraph 6.5 says, Another source of difficulty frequently mentioned is the tendency on the part of Parliament to try to provide for every foreseeable contingency. Because of this tendency statutes are drafted in elaborate detail which makes them difficult to understand. This has called forth criticism from a number of sources". There is then quoted a substantial passage from the evidence of Lord Emslie and Lord Wheatley, then the Lord President and Lord Justice Clerk of the Court of Sessions for Scotland. They said that, Most of the problems encountered by the Courts flow directly from the tendency of Parliament to ignore the virtue of enacting broad general rules in which the principal and over-riding intention can be readily seen, and to try to legislate in detail for particular aspects of the mischief which presumably the statute is intended to curb". The report goes on to note that that criticism does not come from the judiciary alone and mentions a number of others, including the National Farmers' Union, though I do not believe that it has any interest in this specific Bill. I shall not go into the matter in any detail. The report elaborates that point and ultimately makes recommendations to the effect that Parliament should try to avoid that kind of elaboration. That recommendation is contained in paragraph 19.41 of the report.

I urge the Government therefore to withdraw the amendment and think again about the necessity for the provision they seek to amend on the grounds that it is unnecessary, unduly complex, wasteful, will cause extra work, and flies in the face of the Renton recommendations. For those reasons we should not waste our time enacting it.

Lord Macaulay of Bragar

Perhaps I can add something to what the noble and learned Lord, Lord McCluskey, said. The Bill, as we protested in November of last year, was produced a fortnight after the end of the consultation period—so called—on the part of the Government and here we are in January of this year, a couple of months later, discussing amendments to the Bill at the hand of the Government.

It was made clear at the Second Reading of the Bill that the Government had taken advice; they had consulted here and there and heard everybody who was interested before producing this magnificent Bill. As a matter of information for the Chamber, and perhaps even those in Scotland may be interested to know, can the Minister say what inspired the amendment? Was it pressure from certain sources—for example, the police? Perhaps the Minister could enlighten the Committee as to what is behind it.

Having said that, on this side of the Chamber we are in favour of punishing people who commit crimes while they are on bail, and that must be looked at in context. But why do we see an amendment within a couple of months of the Bill being introduced in your Lordships' Chamber?

Lord Harris of Greenwich

I agree with the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Macaulay of Bragar. I find it difficult to understand the purpose of the amendment. When the noble and learned Lord, Lord McCluskey, began his speech the example that immediately occurred to me was the one he cited; namely, the views of the Renton Committee. The noble Lord, Lord Renton, unhappily, is not in his place and if he were here I am sure that he would say exactly what we have said during this debate on the amendment.

Perhaps the Minister will agree to look at the matter again between now and Report stage. There is no issue of substance involved, but it is totally pointless to add these words to the Bill. As the noble and learned Lord, Lord McCluskey, said, these are exactly the issues which a judge will take into account when deciding matters of this sort. It is cluttering up the statute book for no clear purpose. I shall be grateful, therefore, if the Minister will at least say that he will look at the matter again between now and Report stage to decide whether or not the amendment is necessary.

4.15 p.m.

Lord Hughes

I see a similarity between what was said on Amendments Nos. 2 and 3 by the Minister and what was said by the noble and learned Lord, Lord McCluskey. The Government argued against Amendments Nos. 2 and 3 on the basis that, while the proposal may be desirable it was not necessary. What was already present covered the point.

The noble and learned Lord, Lord McCluskey, said that he, as a judge, is already able to do the things which the amendment purports to be making possible for the first time. If the noble and learned Lord is correct, that he can quite properly do these things, then the argument can be put forward that the amendment is not necessary to make it possible for the noble and learned Lord to do what he is already doing.

Lord Fraser of Carmyllie

I am a little surprised that this matter creates some controversy. The clause gives the courts a new power to deal with those who offend while on bail. I understand the noble and learned Lord, Lord McCluskey, to say that he considers it desirable that he, as a judge, should be entitled to take into account a wide range of factors. Our concern was that the way the new provision is drafted at present restricts him in the number of factors that he can take into account. We therefore considered it desirable to take away that restriction and allow judges to take account of the full range of factors. That was the reason the amendment was tabled.

I am happy to look at the matter again if it is considered to be unnecessary and accordingly I shall not press it. I believe that the amendment is necessary but I am prepared to withdraw it at this stage and return to it at a later stage.

Lord McCluskey

Before the noble and learned Lord withdraws the amendment perhaps he will note that my complaint is not so much about the amendment, though it introduces unnecessary elaboration. My real complaint concerns the proposed subsection (2A). I should have tabled an amendment to illustrate that but was too busy to think of all the necessary details. Perhaps the Minister will bear in mind that my real complaint is that we do not need it.

Lord Fraser of Carmyllie

I understand what the noble and learned Lord says. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey

moved Amendment No. 6: Page 2, leave out lines 28 to 31.

The noble and learned Lord said: Amendment No. 6 is tabled in order to draw attention to a specific set of circumstances. The Committee will see on page 2, lines 28 to 31, that the provision provides that, The court shall not … have regard to the fact that the subsequent offence was committed while the accused was on bail unless that fact is libelled in the indictment".

Clause 2 therefore amends Section 3 of the Bail etc. (Scotland) Act 1980. That section creates certain offences; namely, breach of bail conditions in one shape or form—failure to appear, or something of that kind. Clause 3(4) of the 1980 Act allows a person who is charged with a serious offence on indictment to be charged on the same indictment with a breach of bail. In many cases the bail was granted not in connection with the serious offence which he is now facing on indictment but in connection with a different offence.

The inevitable result, therefore, of charging the breach of bail in the same indictment as the serious charge is to disclose to the jury hearing the case of the serious charge that the accused is facing, or has faced, another and different charge or charges. That is contrary to the principle that when a person faces trial the jury should not be given any information showing or tending to show that he has faced, or is to face, any other criminal charge.

There are one or two minor exceptions to that general principle. For example, a person may be charged under certain circumstances with loitering, being a known thief. That necessarily discloses that he is a known thief and therefore has previous convictions. He might be described as a reputed thief. But these exceptions are few. The normal practice is evidenced in road traffic cases. If a person is charged with dangerous driving, or drunk driving, and he is also charged with driving while disqualified, the charge of driving while disqualified is put on a separate indictment or complaint. That is so that the question as to whether he was driving dangerously or driving while under the influence of drink is looked at dispassionately, without the man having been given a bad name in the sense that it is disclosed to the court that he has previous disqualifications. Accordingly, the two charges are kept entirely separate and the previous disqualification is not disclosed.

My purpose is to draw attention to the fact that these provisions, which have certainly been in force since 1980 and are only being modified in this provision, are offensive to the general principle that one should not disclose previous convictions when one charges a person with an offence. This is a very important point. I have learnt that California has now moved, under Proposition 115, to what is called truth in evidence whereby the previous convictions of an accused person are disclosed before guilt is determined. We do not want to get into that situation, which is a desperately bad one. This provision seems to be a tiny step in that direction, although if it goes no further, it would perhaps be acceptable. The Government should reconsider the whole position in relation to disclosing previous offences when charging people with an offence along with a bail offence.

Lord Macaulay of Bragar

Before the Minister answers, I am rather puzzled by the subsection. I can see the point of it, but what does the phrase "having committed an offence while on bail" mean? Does it mean that he has been found guilty of an offence? It is a simple question which begs an answer.

Lord Fraser of Carmyllie

I listened carefully to what the noble and learned Lord said, and I understand his more general concern about what is contained within the new provision. The effect of Amendment No. 6 would be to remove the provision in the new subsection (2B) which requires the court, in sentencing for the subsequent offence, to have regard to the fact that the offence was committed while on bail only where the fact that the defendant was on bail at the time of the offence had been libelled on the indictment or, as the case may be, specified in the complaint. In effect, and on its own, this would prevent the accused from being given notice that new subsection (2A) might apply. Subsection (2A) provides that where a breach of bail has occurred by the commission of an offence the accused will not be guilty of an offence under the Bail etc. (Scotland) Act 1980. In these circumstances it will not be open to the prosecution to libel on the indictment or specify on the charge that an offence of breaching a condition of bail has occurred. Subsection (2B) provides that bail should be libelled or specified in the complaint and provides the accused with an opportunity under Section 67 or Section 312 of the Criminal Procedure (Scotland) Act to challenge the fact. Failure to do so would mean that the fact was admitted.

While I said I understood the noble and learned Lord's general intention, Amendments Nos. 6 and 9 do not seem to achieve what he intends. The effect of the second amendment is that where the principal offence was proceeding on indictment and an offence of breaching a bail condition applied, the prosecution would have to proceed with an indictment separate from the principal one. Under the provisions of the Bill this would apply in those cases where a breach of bail conditions occurred through the accused not turning up as requested, interfering with witnesses, and so on, or not making himself available for the purposes of inquiries. The provisions proposed by the amendment would not apply to the offence committed while on bail. Nor is any provision made for proceedings which are held under summary procedure.

While I shall want to consider carefully what the noble and learned Lord had to say—I shall certainly do so before the next stage—I invite him at this stage to withdraw the amendment.

Lord McCluskey

I shall certainly do that. I accept that these amendments and many others are technically defective. I am not a draftsman. I was trying to draw attention to the general principle. Perhaps I should have linked this aspect expressly with the amendment to which the Minister referred. Amendment No. 9 says: It shall not be competent to include in any indictment a charge under this section, but such charge may be included in a separate indictment".

So long as the principle is clear—the Minister has plainly understood the point that I was seeking to make and has undertaken to consider it—I beg leave to withdraw the amendment and I shall not move Amendment No. 9 in due course.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie

moved Amendment No. 7: Page 2, line 35, after ("sentence ") insert ("or disposal").

The noble and learned Lord said: In speaking to Amendment No. 4, I spoke also to Amendment No. 7. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie

moved Amendment No. 8: Page 3, leave out lines 1 to 7 and insert: ("(2D) Where the sentence or disposal in respect of the subsequent offence is, by virtue of subsection (2A) above, different from that which the court would have imposed but for that subsection, the court shall state the extent of and the reasons for that difference.").

The noble and learned Lord said: Similarly, in speaking to Amendment No. 4, I spoke also to Amendment No. 8. I beg to move.

On Question, amendment agreed to.

[Amendment No. 9 not moved.]

On Question, Whether Clause 2, as amended, shall stand part of the Bill?

Lord Macaulay of Bragar

I shall make only a short contribution to this part of the debate but I wish to draw attention to the fact that the amendments we have debated increase the sentencing powers of the court quite considerably. The Law Society of Scotland and the Glasgow Bar Association have expressed concern about the powers being given to the court in terms of Clause 2(1) and new subsection (2C), if that is not too technical. Those noble Lords following the Bill will know what I am talking about.

An important question is raised. If the country is to take such a serious view, and quite properly, of crimes committed while on bail, there should be a right to a separate trial. The question has been raised—it is not one I particularly agree with—as to whether in Scotland we should introduce a right to trial by jury rather than the summary procedure in view of the effects on the individual concerned. I should have thought that the deterrent value of the present Bail etc. (Scotland) Act has been to some extent to undermine. What might be better is, rather than, as the noble and learned Lord, Lord McCluskey, said in relation to Clause 1, constricting the court by putting into statute what the court can or cannot do, to leave it open to the court to exercise its common law powers to impose such sentence as it deems appropriate in the circumstances revealed to the court regarding the commission of the offence.

It appears that this clause is tinkering with criminal legislation. If it is felt necessary in the public interest to impose more severe sentences, let the court deal with it within the flexibility of the common law of Scotland rather than get ourselves tied up in administrative or legislative procedure. I know the trouble one gets into south of the Border in trying to define intent and murder and that kind of thing, because there they are hidebound by statute. Let us free the courts to deal with people who offend on bail by imposing sentences which the court sees fit in the particular circumstances, and allow the Scottish Court of Criminal Appeal to tell the Scottish public whether or not a sentence was a proper one. I beg to move.

4.30 p.m.

Lord Fraser of Carmyllie

One of the main effects of the Bail etc. (Scotland) Act 1980 was to move from the previous practice of "money bail" to the grant of bail on conditions. A primary purpose of these conditions is to ensure the appearance of the accused as requested for any diet. An additional purpose of the 1980 Act, however, was to address the problem of those on bail committing further offences.

During the 1980s, as recording practices by the police improved, it became clearer that the scale of offending while on bail was both significant and growing. The noble Lord will be aware of a very widespread concern in Scotland over that abuse of bail. It caused additional work for the police and there was undoubtedly an increase in public concern.

This clause builds on the 1980 Act provisions by increasing the penalties which may be imposed for bail abuse and by introducing a new power for the courts to adjust the sentence which they would otherwise have imposed for an offence if it had been committed while the accused was on bail. At present where an offence is committed while on bail a penalty may be imposed for a breach of bail conditions. The impact of such a penalty for bail abuse may, however, be lost on the offender especially if any sentence is made to run concurrently. Accordingly, this clause provides that, where the court considers it appropriate, it may—and it is no more than "may"—impose a higher penalty for an offence than it would otherwise have done, where the offence was committed while on bail. Where the sentence is so increased the court must state the degree of difference and the reasons for the increase. We believe that that will leave the offender and others granted bail in no doubt whatever how seriously bail abuse is to be treated.

With that explanation, I hope that the noble Lord will feel that he can support this important improvement in the provisions as regards bail and will recognise that they will indeed help tackle the growing problem of bail abuse which has caused so much concern in Scotland.

Lord Macaulay of Bragar

There is no doubt that there is concern both in the public and the police mind. We read in the newspapers about chief constables complaining of crimes being committed while people are on bail, of the softness of the courts in letting people out on bail, and so forth. I can quite see where that opinion comes from. It must be very frustrating for police officers to see people who they think should not be out on bail, walking about the streets.

I still wonder whether it is correct to put a statutory limitation on the power of the courts rather than just leave the matter to the common law power of the courts in Scotland to deal with the gravity of the case as and when necessary. It may very well be that the sentences referred to at new subsection (2C) of Clause 2(4) will not be sufficient for the court to deal effectively with the offence and the fact that the person was on bail. However, like most of the movers of amendments on the Marshalled List today, I do not intend to take the matter any further at this stage. I hope those who are interested will note what the Minister has said.

Clause 2, as amended, agreed to.

Clause 3 [No bail in homicide or rape proceedings after previous conviction of such offences.]:

Lord Macaulay of Bragar

moved Amendment No. 10: Page 3, line 17, at end insert ("or (e) serious sexual assault").

The noble Lord said: For the convenience of the Committee, it may be appropriate to deal with Amendment No. 11 at the same time. As regards Amendment No. 10, I find myself in a bit of a quandary because I have given notice that I intend to oppose the Question that this clause stands part of the Bill. To put it in legal terms, perhaps I may present what I have to say on an esto basis on the assumption that this clause will stand part of the Bill. I suggest to the Committee that it might be appropriate to include the words, "or serious sexual assault".

This is quite an important issue which has become more prominent in recent years. I hope that those noble Lords in the Chamber who have experience of dealing with the victims of assault within the domestic area will contribute to this particular part of the debate. This matter is raised on behalf of abused wives in particular, although we are now finding out that there are also abused husbands, but they do not come to notice quite so much as abused wives.

The point behind this amendment is that because the definition of rape is so constricted in Scottish law, if this clause is to remain, the courts should be obliged to take notice of serious sexual assault which falls short of rape. In other words, in the case of an assault or an indecent assault on a wife or partner, whatever the phrase is these days, the courts should be able to take into account a serious sexual assault falling short of attempted rape.

Amendment No.11 raises the question of a person being charged with any offence which includes serious sexual assault. I appreciate that this may raise a fundamental issue—no doubt it will appear later in the debates—that if a person has been charged with an assault, that does not mean that he is guilty. That may undermine the basic assumption of innocence within our law.

I put the amendment before the Committee. It has been suggested by those who want to hear the Government's response. I do not move it with any particular enthusiasm because I am a defender of the presumption of innocence. For example, a husband is often charged with assaulting his wife or partner, but by the time the case comes before the court various developments have taken place such as intimidation, and the wife changes her mind. The amendment is really for the protection of the individual in the interim period between the alleged assault and the trial. We have our own time-scale in Scotland which ensures speedy trials for the category of offences in the proposed new Section 28A(1) where such offenders should not be allowed bail. I beg to move.

Lord McCluskey

I certainly would not want to take any technical objection to the amendment for reasons which I have already given in describing my own amendments. I do not believe that one can talk about serious sexual assault. It does not have a meaning. One of the difficulties is that one would have to confine the matter to very specified crimes if one were to go ahead in this way.

The point raised by Amendment No. '11 is one of principle. I seriously doubt the wisdom of proceeding with that particular amendment because, if one is exercising a discretion in relation to bail, the prosecutor would bring to the attention of the bail judge the fact that the accused faces several charges. That may be taken into account in the exercise of discretion. But if this amendment were to be carried, it would make it mandatory for the court to refuse bail simply because a person had been charged with such an offence. I should have thought that that was obnoxious in principle and that the amendment should not be accepted for that reason. Accordingly, I oppose Amendment No. 11.

Lord Fraser of Carmyllie

For the very reasons which the noble and learned Lord, Lord McCluskey, has given, I wish to resist Amendment No. 11, although I have some sympathy with the intention of Amendment No. 10. I find the position of the noble Lord, Lord Macaulay, somewhat curious. On the one hand, he says that he does not want Clause 3 to stand part of the Bill, but at the same time, by moving these amendments from the Opposition Front Bench, it appears that he wants to extend its scope yet further. I leave the noble Lord to resolve that dilemma for himself.

To follow what the noble and learned Lord, Lord McCluskey, said, I must advise the noble Lord, Lord Macaulay, that this is not just a technical quibble about drafting. There is no term "serious sexual assault". If we are to deprive people of their right to bail, we must be absolutely specific as to what those offences are.

For those reasons, I do not think that there is any real possibility of the noble Lord redrafting the amendment to provide the type of definition that will be necessary. In any event, however, given its defective character at present and given the point of principle that is objected to with regard to Amendment No. 11, I invite the noble Lord to withdraw Amendment No. 10 and not to move Amendment No 11.

Lord Macaulay of Bragar

I have been called a lot of things in my day; but this is the first time that I have been called "an unresolved dilemma" and that I have found out that I am "defective" in character. Nonetheless, I am sure that the Minister used those expressions in the best of spirits. In answer to the noble and learned Lord, Lord McCluskey, I should have thought that the use of the word "serious" is subjective. If a prosecutor is to be responsible for framing charges against people, clearly the court would take into account the nature of the complaint or the indictment against that person when considering whether the charge fell within that context.

As I said earlier, I have reservations about Amendment No. 11 because of the presumption of innocence argument. I entirely agree with the noble and learned Lord, Lord McCluskey, on that matter, and I beg leave to withdraw Amendment No. 10.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

On Question, Whether Clause 3 shall stand part of the Bill?

Lord McCluskey

I have given notice of my intention to oppose the Question that Clause 3 shall stand part of the Bill. The short point is that the amendment which this clause makes to the 1975 Act is totally unnecessary. To paraphrase it, it says that if a person has previously been convicted of murder, attempted murder, culpable homicide (or manslaughter, as the same crime is known in England), rape or attempted rape and has previously been convicted of one or other of those crimes and is brought before a court and charged with attempted murder or culpable homicide or rape or attempted rape, he shall not be granted bail.

On Second Reading, at col. No. 568 of Hansard, I asked the Minister whether he could give me any instance where circumstances of that kind obtained and bail had been granted. He did not answer at that stage. No doubt he has been very busy conducting his researches since then, so I hope that he will answer that question today. My impression is that the clause is entirely unnecessary and that no judge in his right mind—many of us are in our right minds—would grant bail in such circumstances. All that the clause does is to clutter up the statute book with provisions which are simply not necessary. I shall be interested to hear whether the Minister has managed to dig out such a case. If he has, I am sure that the circumstances must have been very special indeed and I hope that he will tell us about them. If he has not found any such case, surely the sensible thing to do is to abandon the provision altogether.

In our jurisdiction, removing the discretion of a judge is a very serious constitutional step. In California, and in the United States generally under the Sentencing Reform Act and a number of other provisions specific to particular states, judicial discretion has been whittled down until it hardly exists in relation to a great many matters. The situation is becoming serious. We do not want to go in that direction for the reasons that I shall have to explain later. We must be careful about saying to judges who deal with bail, and in particular to High Court judges, "You can have no discretion in a matter of this kind". I ask the Minister whether there is any evidence that this provision is necessary and I oppose the Question that Clause 3 shall stand part of the Bill.

4.45 p.m.

Lord Macaulay of Bragar

Likewise, I have given notice that I intend to oppose the Question that the clause shall stand part of the Bill. I thoroughly endorse what the noble and learned Lord, Lord McCluskey, said. The provision seems to put some form of restriction on the judge granting bail rather than extending the circumstances in which bail should be refused. Some time ago the case of Smith v. Her Majesty's Advocate laid down the circumstances in which bail should be refused; but, as far as I can recall, nobody bothers with it any more. Perhaps the provision is a way of statutorily trying to redefine what a judge should do. However, the judge must always be the master of the instance in balancing the public and private interests in every case that comes before him. As the noble and learned Lord said, the clause seems an unnecessary restriction on the judges' rights.

When I read Clause 3, I was concerned about new Section 28A(1) (b) and the question of culpable homicide, which is the Scottish equivalent of manslaughter. I know that that provision will be qualified by new Section 28A(2) (b) (i) which states that the person must have been sentenced to imprisonment. However, let us consider current developments in life and the case of a husband who kills his dying wife or the wife who kills her dying husband. If a husband smothers his wife who has only two weeks left to live, he will quite properly be charged with culpable homicide. The court may impose a sentence—in the public interest, as it sees it—of two years' imprisonment, taking into account all the tragic circumstances of the case. I use that as one example. But is that person, who has killed on humane grounds, to be denied by statute the right to bail? When hearing a bail appeal in circumstances of that kind—we have heard about such cases recently—is the court to be restricted in the hearing of evidence concerning certificates from the accused person's doctor, psychiatrist, psychologist or an expert in post-traumatic stress disorder? If the Bill stands as it is, a court could not take such information into account.

I bow to the experience of the noble and learned Lord, Lord McCluskey, who said that he has served as a bail judge for many years. But surely a court would have to say to the counsel or solicitor presenting an application for bail on behalf of someone in such tragic circumstances, who may have been wrongly incarcerated by the trial judge, "I am sorry. I understand what happened and that your wife was suffering badly and that you wanted to end her life in order to prevent her suffering any further, but I am afraid that the Government have introduced a statute which means that I cannot do anything about it and you will have to go to prison and stay there until your appeal is heard".

I am not making a carping point. I am citing that as an example of why the Government might like to reconsider this provision. They might like to ask themselves whether culpable homicide at least should be taken out of the categories of those proceedings where a person has been charged or convicted. Indeed, the provisions go even further because new Section 28A(1) states, charged with or convicted of … culpable homicide". That means that the sympathetic spouse who has ended his partner's agonised life and who has been charged by the prosecutor has to languish in prison until the trial takes place and that a court has no power to release that person in the interests of humanity, if of nothing else, even where there is no risk to the community.

I am sure that the noble and learned Lord knows of many such cases. He must have read cases during his time in the Crown Office and in his present office with which he must have had considerable sympathy, and which must have raised questions as to whether the person should have been charged at all. In many cases—to use a colloquialism which is a piece of nonsense—someone walks free from court. No one ever walks free from court once he has been convicted; he has a conviction. I ask the Minister to look again at the provision. Depending upon his answer, we may look at the matter in a different light on Report.

Lord Fraser of Carmyllie

While I understand clearly what the noble and learned Lord said about the discretion invested in Scotland's judges, the law of Scotland already provides that the offences of murder and treason are not bailable. In those circumstances the discretion is already circumscribed. That has been the statutory position in Scotland since the Bail (Scotland) Act 1888. My understanding is that before the passage of that Act there was an extensive list of offences for which bail was not to be permitted. They were generally those offences which attracted capital punishment. Murder is not bailable in Scotland, because we regard it as the most serious of crimes, and it is for that reason, and for the protection of the public, that the law provides that persons charged with murder should not be released on bail.

The provisions of Clause 3 seek to extend those principles to cases where a person has previously been convicted of one of the very serious offences specified, and subsequently faces similar serious charges. The noble Lord, Lord Macaulay, described a graphic and moving case of a man who might have done away with his wife in circumstances which might not ordinarily attract a custodial sentence. However, what needs to be remembered is that that same individual, before the provisions of the clause would be attracted, would have had previously to have committed one of those very serious offences. With respect to him, it is unlikely, to say the least, that the problem he has described would arise.

Clause 3 seeks to provide assurance to the public that, where a person has previously been convicted of a serious offence, and is then charged with further offending of a serious nature, he will not be eligible for bail. While the exercise of the grant of bail must reflect the presumption of innocence of the accused and the specific circumstances of the case, the refusal of bail must also be considered where there is a risk to the public. We believe that in the circumstances envisaged in Clause 3 the risks to the public are such as to require the accused to be remanded in custody.

The noble and learned Lord has asked me mischievously whether I have been able to trace a case of someone who has been convicted of one of those serious offences, charged subsequently, and granted bail. In posing the question, I have no doubt that he knew the answer. I am not aware of any such case. At worst, it seems to me that he is saying that the clause is unnecessary, and that he, as a bail judge, could not envisage circumstances in which he would wish to apply a discretion. So far as he and I are aware, there has been no case where a judge has exercised a discretion and allowed bail. There is a limited list where the discretion is already restricted. We are making this small addition to it. It may be in one view unnecessary, nevertheless, it provides assurance to the public in Scotland. It has been widely welcomed, and I should like to see the clause retained on the face of the Bill.

Lord McCluskey

The Minister mistakes the affability of my manner. I was not being in the least mischievous in raising the point. It was, and remains, a serious point. If there has been no case—I do not know the answer, but the Minister presumably has researched and found no case—in which a person with a previous conviction of the kind specified here has ever been granted bail, then the provision is entirely unnecessary. It is gesture legislation. It has nothing to do with anything real. We should not be engaged in such a thing. The law of Scotland is more serious than to be just a kind of football which is kicked around to make gestures in whatever direction. I do not know in what direction they are made, but I just do not understand it. It is not a mischievous point; it is a real point; it is a substantial point.

Lord Fraser of Carmyllie

I did not intend to indicate that I thought that it was not a serious point. When I used the word "mischievously" that was to indicate that I thought the noble and learned Lord knew perfectly well the outcome of my researches.

Lord McCluskey

Having read the Scotsman recently, the noble and learned Lord will know that sometimes such epithets are attributed to him when he has not even used them. So he must be careful when he does use them. In relation to the point about discretion, I suggest respectfully that the Minister's answer is not a sound one. The provision to which he refers is now contained in Section 26 of the 1975 Act, but it dates back to the 19th century. It states that all crimes and offences except murder and treason shall be bailable.

There may be exceptions to that, but it is a technical matter into which I shall not go. That of course imposes a limitation on a judge's discretion in relation to a specified charge of murder or treason. One can understand that, but to go from that position where judges always enjoyed discretion to saying, "You shall have no more discretion", is to take a significant step.

I do not know what consultation there was about this matter. I was one of the judges— judge A or judge B, I cannot remember—who figured in the bail report. I answered a great many interesting questions asked by researchers, but I do not recall being asked about that matter. I do not know what support there is. I do not know where this provision comes from. It is entirely unnecessary. It is unsound in principle. I ask the Government to consider carefully whether they want to press ahead with this pointless piece of unprincipled legislation.

Lord Macaulay of Bragar

Before the Minister replies, perhaps I may follow up what the noble and learned Lord has just said. Is the provision being introduced in the light of experience in England and Wales? If so, where can we find the statistics which suggest that people who fall within the categories described in Section 28A(1) do not abide by their bail conditions? It would be interesting to know. The more I look at Section 28A(1), the more I see it as a restriction on the right of the judge to exercise his judgment on behalf of the community.

I am not sure what statistics there are in the Crown Office, but I am sure that the noble and learned Lord the Lord Advocate could supply them. But do we know how many have been charged and convicted of attempted murder in the past year; and how many cases of attempted murder have been reduced to severe injury? Everyone knows—it goes without saying—that one can go to the prosecutor and say, "All right, forget the attempted murder, we will plead to severe injury". Down goes the charge to severe injury and in some cases the person does not even go to prison. If this provision remains, he will stay in prison on a charge which the Crown may have overstated. We have had discussions about that before. A person has been kept in prison on a charge of attempted murder which never sees the light of day in a court. I am at one with the noble and learned Lord, Lord McCluskey, in asking the Minister to take the matter away and look at it.

The noble and learned Lord, Lord Fraser, suggested that I have knee-jerk reactions to the Bill. I am too old to have knee-jerk reactions, physically or legally. I do not have knee-jerk reactions and must make clear, as I did on Second Reading, that any contributions from this side of the Committee are not made in any carping or destructive sense. We are trying to be constructive because when the government change, as will be the case in the not-too-distant future, we shall be faced with the same problems. We hope to have the same degree of co-operation from the Minister in opposition as we are trying to give him now.

I ask the Minister to be reasonable. I know that he has a reputation for being reasonable, compassionate and sympathetic. I ask him to take the matter away and think about it.

5 p.m.

Baroness Carnegy of Lour

On Second Reading I asked those Members discussing the Bill from the point of view of lawyers not to forget the public. Having heard the discussion today, I believe that the public would be horrified to know that in such extreme circumstances someone could be granted bail. They would be even more horrified if someone were granted bail and offended again. It is not much comfort to know that all judges in their senses would never grant such an application. Although judges would never grant bail in such circumstances, it would be of great comfort to the public to know that they could not do so—

Lord Harris of Greenwich

Perhaps I may ask the noble Baroness why the public would be reassured. We are told that there is no evidence to show that bail has ever been granted in such circumstances. Therefore, we are discussing a non-existent problem. I can understand the political purpose, which is to demonstrate that one is being tough on crime, but there is no serious legal purpose in the proposal.

Baroness Carnegy of Lour

People are extremely anxious about law and order and bail and therefore that argument does not wash. The fact that it has never happened is not the point. This slight addition to the Bill would give the public considerable reassurance. I do not believe that it would cause a great deal of trouble to judges or to anyone else. It is not a large addition; it is merely an enlargement of the circumstances. I speak as a layman but I believe that Members of the Committee are disregarding the way people feel. The fact that judges have never granted such an application and never would is not a great comfort. Indeed, I can imagine the newspaper headlines!

Lord Macaulay of Bragar

I apologise for interrupting the noble Baroness. She speaks of public anxiety. The offences listed are attempted murder; culpable homicide, which is causing the death of another person by an unlawful act; rape; or attempted rape. Fortunately, those offences are not a regular feature of life in Scotland. I agree that people are anxious when such crimes take place and follow them with interest. However, people in Scotland, England and Wales are anxious about the multiplicity of crimes that affect their domain and their households both personally and physically. They are concerned, for example, with burglaries. But there is no mention of people who break into houses. They are the people who should be locked up. If we are to be vindictive let us legislate that way but let us get down to the core of crime in the community. The four offences listed are not the core of crime and anxiety in the community. The simple things in life have the most devastating effect on ordinary people. If we are to accept constriction, then let us extend it.

Baroness Carnegy of Lour

I suggest that when the noble Lord goes home he talks to a few people in the street and asks whether they believe that it should be possible for bail to be granted in these circumstances. I believe that he will find that their views are not those that he has expressed.

Lord McCluskey

Perhaps I may be allowed the indulgence of saying a few words in response to what the noble Baroness said. I agree that the view of lay people who are not lawyers is extremely important. The law must be comprehensible and, in a sense, it must make gestures. However, we enact a provision in Parliament in order to counter a mischief. When judges look at the interpretation of a statute, they ask, "What was the mischief at which this was directed?". That is the approach I take. The answer is that there is no mischief because nothing is happening that we want to stop and nothing is failing to happen that we want to promote. Therefore, it is pure. One might as well enact Clause 56 on the basis that wickedness is bad. It is silly to make gesture enactments of that kind. One would then be doing what the noble Lord, Lord Renton, distinctly said should not be done; that is, cluttering up the statute book with unnecessary legislation. This is an important point. I cannot imagine that if the clause is carried today there will be dancing in the streets of Govan.

Lord Fraser of Carmyllie

We have probably said all there is to say about the clause. I share the view of my noble friend Lady Carnegy. The noble and learned Lord, Lord McCluskey, asked what was the mischief. Clearly, the mischief against which the clause is directed is that there should be no possibility whatever. At present there is a possibility that a man who has been convicted of rape in Scotland and is later charged again with rape can be given bail. I believe that if I asked the women of Govan whether they believe it right that a person previously convicted of rape and charged again with that offence should be out on bail they would give a simple, unequivocal answer. I believe that it is just as well to give them the reassurance that there is no possibility of that by including the provision as drafted on the face of the Bill.

Lord Harris of Greenwich

In the light of the discussion about Govan, I wonder what the people there would say when asked, "This person has been charged with housebreaking and has previously been convicted of that. Do you believe that in any circumstances he should be granted bail?". I suspect that the noble and learned Lord will know the answer to that question. Are we really going to start legislating on this basis? It is a non-existent problem. I fear that it is being proposed exclusively for party political reasons and for no other.

Lord Fraser of Carmyllie

I do not accept that argument. It is a reassurance that can be given to women who not only have never voted Conservative but have no intention of doing so. The provision is such that they will be reassured that there is no possibility of bail being granted. For that reason, it is desirable that it should be on the face of the Bill. The worst criticism that can be directed against it is that it is unnecessary. I do not accept that. If the discretion will never be exercised by a judge, it is proper that Parliament should put that beyond doubt and provide a specific enactment to that effect.

Clause 3 agreed to.

Clause 4 [Right of prosecutor to seek review of grant of bail]:

Lord Macaulay of Bragar

moved Amendment No. 12: Page 4, line 29, at end insert ("and to his solicitor if known").

The noble Lord said: The amendment proposes the addition of the words "and to his solicitor if known" in order to ensure that the accused's solicitor is provided with a copy of the prosecution's application for a review of the decision to grant bail. One would assume that in most cases where someone is applying for a review of a refusal to grant bail there would be a designated solicitor. Certainly, it would not take a great deal to find out who was representing the accused.

As the noble Lord, Lord Harris, pointed out, we must be careful not to run a one-sided justice system in Scotland; or, indeed, in England and Wales. There must be a balance between the individual and the community. Any person whose bail is being reviewed by the court at the instance of the prosecutor should, if possible, have full legal representation and be able to consult at the earliest possible opportunity. I beg to move.

The Lord Advocate (Lord Rodger of Earlsferry)

I accept that it may well be desirable for a person granted bail to obtain appropriate legal advice in the circumstances envisaged in the clause. However, the amendment falls into the same category of the unnecessary about which we have heard a good deal this afternoon. In practice, by intimation to the solicitor, that would be a way of intimating to the accused.

It is also the case that, in practice, where a solicitor is known to be acting, the procurator fiscal would intimate the application to that solicitor. While I accept that it is desirable that intimation should be made to a solicitor where such a solicitor is acting, I do not believe that it is necessary for that provision to be put on the face of the Bill. In the circumstances, I ask the noble Lord to withdraw the amendment.

Lord Macaulay of Bragar

I note with interest the remarks made by the noble and learned Lord the Lord Advocate. However, Members of the Committee will have noted that the amendment was carefully phrased so as to refer, to his solicitor if known". It appears to me that, for practical purposes, it is better if an accused person is represented by a solicitor from the outset. That saves a good deal of complicated court procedures later on. While I argued the other way around in relation to the last clause, on this occasion I believe that the Bill would be none the worse for the inclusion of the amendment which does not put any obligation on the Crown to seek out the solicitor. Indeed, the phrase "if known" has been chosen carefully. If a review was taking place it would, perhaps, be up to the accused to tell the authorities the name of his solicitor. That seems to be quite a practical way of ensuring that we do not have unnecessary miscarriages of justice and all the things that we hear about these days. I have listened to what the noble and learned Lord said. I shall not press the amendment to a Division at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [Bail pending appeal]:

Lord Rodger of Earlsferry

moved Amendment No. 13: Page 5, line 4, leave out lines 4 to 11 and insert: (" "(1A) The High Court shall not admit a convicted person to bail under subsection (1) above unless—

1. (a) where he is the appellant and has not lodged a note of appeal in accordance with section 233(1) (a) of this Act, the application for bail states reasons why it should be granted and sets out the proposed grounds of appeal; or
2. (b) where the Lord Advocate is the appellant, the application for bail states reasons why it should be granted;

and, in either case, the High Court considers there to be exceptional circumstances justifying admitting the convicted person to bail.".").

The noble and learned Lord said: The amendment corrects a defect in Clause 5 which would have the effect of requiring an offender who applies for bail pending appeal to state the grounds of appeal even where the appeal is made by the Lord Advocate. The amendment corrects that defect by restricting the requirement to state grounds of appeal to applications for bail where the applicant is also the appellant. Clause 5 will continue to require the applicant for bail to state the reasons for his application, whether he is the appellant or the appeal is raised by the Lord Advocate. It is, essentially, a technical matter. I beg to move.

Lord Macaulay of Bragar

We now have before us another curious situation. I merely raise the question: why has such an amendment been tabled to the Bill when, according to the statements made on Second Reading, the legislation arose out of great consultation among all the interested people in Scotland? However, here we have another major amendment. Can the noble and learned Lord tell us what inspired it?

Lord Rodger of Earlsferry

The inspiration behind the amendment is that the way in which the legislation is drafted at present would produce a nonsense. Therefore, in order to remove the possibility of the statute book containing something which would plainly be incorrect, the amendment has been tabled.

Lord Macaulay of Bragar

Can the noble and learned Lord say why this Chamber has been presented with a Bill containing a "nonsense"?

Lord Rodger of Earlsferry

As the noble Lord knows, mistakes can occur in drafting. It is important that such matters should be resolved. Certainly, amendments tabled by Members of the Committee have indeed highlighted some drafting problems. I should have thought that one of the purposes of a Committee stage is precisely to identify such matters and to put them right, so that the legislation which goes forward to another place will be in a better condition than it was when it entered this Chamber.

5.15 p.m.

Lord McCluskey

Perhaps I may join in the debate. It seems that the noble Lord, Lord Macaulay, does not, perhaps, appreciate the tremendous pressures that parliamentary draftsmen are under when they prepare legislation, not least in circumstances where the Bill has to be presented at an early stage in a Session.

While I address the matter now before the Committee, perhaps I may also deal with Clause 5 so that I need not speak separately on the Question that the clause stand part. For the reasons that the noble and learned Lord the Lord Advocate gave, the amendment improves the provision. I accept that fact. But what does the clause then seek to do? It seeks to put into statutory form that which is already the practice of the court. I said that on Second Reading. There seemed to be some silent challenge to my remarks—namely, that there was a Practice Note. I have that note with me. It is dated 18th March 1994 and states: Although section 238(3) of the Criminal Procedure (Scotland) Act 1975 enables an appellant to apply for bail when he has lodged written intimation of his intention to appeal, an application for interim liberation in the case of an appeal against conviction can normally be considered only when the note of appeal containing grounds of appeal has been lodged". That is the Practice Note of the Lord Justice General and it is the one that we follow. Let it be noted that those decisions are made by judges of the High Court in relation to such matters. I also said on Second Reading—and I need not go into it in great detail—that when Lord Wheatley gave the decision in Smith in 1982 he expressed himself in the same terms and said: Finally, I am regularly asked to grant interim liberation pending appeals. If the appeal is against sentence alone, no technical problem arises. If the appeal is against conviction the appellant has first of all to lodge a note of intention to appeal and later on a note of appeal which contains the grounds of appeal. An application for interim liberation can only be properly considered when the grounds of appeal have been lodged, and it is at that point that such an application should be made". I apologise for misleading the Committee. It is possible that some of those applications are considered by other people and not just High Court judges. That was an error on my part. However, if that is the practice of the court and that is the decision which was intended to be followed even before the Practice Note made it the correct practice, the simple point is that the provision is entirely unnecessary. I would not object to one or two unnecessary provisions. Perhaps Ministers like to have them for one reason or another. It is not for me to speculate. But when we see that provision after provision on the question of bail is quite unnecessary and is simply enacting the current practice of the court, one has to ask: what are Ministers trying to do? They are filling the statute book with unnecessary provisions for no proper, sensible purpose.

Lord Rodger of Earlsferry

It is certainly not my desire to fill the statute book with a large number of unnecessary pieces of legislation; nor, indeed, would it be my desire to see matters dealt with by statute where they can, with due solemnity, be dealt with by means of a practice direction. But, as the noble and learned Lord knows, a problem arose earlier last year in connection with a case where, despite what was said in 1982 by the Lord Justice Clerk Lord Wheatley, bail was granted. Of course a practice note was then issued. However, the Government thought that it was desirable that the proper position—the position which actually applies in these cases, and with which therefore accused persons and their advisers have to comply—should be set out clearly on the face of the criminal statute which applies, and that in those circumstances it was desirable to introduce this provision. For that reason it seems to me that this clause cannot really be described as being, in the circumstances, unnecessary. It sets out, with what I should have thought was due solemnity, the particular provisions relating to an important matter; that is, the circumstances which have to be fulfilled before someone can appeal.

Lord McCluskey

May I ask the noble and learned Lord the Lord Advocate whether we are to understand from what he has said about this, and from what has been said about other such clauses, that the Ministers now in office and bringing forward this Bill are departing from what was recommended by the Renton Commission on the basis of the evidence placed before it and submissions made to it by the then Lord Justice General and the then Lord Justice Clerk, because they made it absolutely plain that it is wrong to enact in great detail to cover every possible situation? One simply makes unnecessary complications. Why is this necessary when one sees that the provision which is now put forward leaves to the Court a discretion but introduces the notion of discretion to be exercised in exceptional circumstances? That is just unnecessary complication and I do not see any point in it.

Lord Rodger of Earlsferry

I think the difference between the noble and learned Lord and myself rests on whether or not this is something which is necessary and desirable. I would say that it is desirable that the circumstances in which someone can appeal should be set out clearly on the face of the statute. Indeed the position as it is at present is slightly misleading because it does not appear on the statute, whereas the matter is clearly dealt with in the case of the summary position.

However, the position in the solemn area is not clearly stated on the face of the statute. One has to recognise the fact that people could be misled. For that reason where other matters in relation to appeals are dealt with in the statute in a technical way it seems to us that the correct technical position should be set out on the face of the statute so that everyone—judges and everyone else—may be clear what the relevant provisions are. It is for that reason—not because we have departed from any other principle—that we think that this particular provision should be included in the Bill.

On Question, amendment agreed to.

On Question, Whether Clause 5, as amended, shall stand part of the Bill?

Lord McCluskey

Having spoken to this matter, I have nothing further to add except to say that the amendment which is being proposed under this clause is one which takes away a perfectly simple provision—a provision contained now in Section 238 of the 1975 Act which states: The High Court may, if it seems fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal".

That is a classic example of stating the general principle and letting the court regulate its own practice. I just do not see the need for what is being done. I have not been persuaded by anything the noble and learned Lord has said, but I do not propose to oppose this Question.

Clause 5, as amended, agreed to.

The Earl of Mar and Kellie

moved Amendment No. 14: After Clause 5, insert the following new clause: ("Victim or complainer to be informed if accused is granted bail The prosecutor shall be obliged to inform the victim or complainer if the accused is granted bail in terms of section 1 of the Bail etc. (Scotland) Act 1980."). The noble Earl said: I rise to move Amendment No. 14 and to speak to Amendments Nos. 81; 82, 129 and 131. I should say that the inspiration for these amendments comes from myself and also from discussions with Victim Support Scotland and indeed from my one time employment with SACRO. Amendment No. 14 has the purpose of ensuring that victims of offending behaviour are kept informed of the whereabouts of the offender when he is on bail. At the present time the victim is kept in the dark about the decision of the court, unless the victim attends the court or makes diligent inquiry, or worse, meets the accused in the street.

Considering the reluctant part normally played by the victim, I think it is reasonable that efforts should be made to keep the victim in the picture. This is especially so at the pre-trial stage when it is easy for overt or subtle pressure to be exerted upon victims, victims' families and especially victims' witnesses. I believe that this amendment would enhance the court service sufficient to outweigh the additional work involved. Amendment No. 129 is designed to establish an additional and most worthwhile task for the court service. At present victims' households and victims' witnesses are being treated less well by the courts than is possible. Let me go back to first principles. There has been some form of criminal justice system in Scotland for as long as there have been inhabitants. In differing ways parties in dispute turned to a third party to arbitrate. A system evolved which enabled the victim to be able to report the offence to a public body which then relieved the victim of any need to seek personal revenge. Now we have a sophisticated and professional court service which aims to establish what the accused did or did not do and to deal with that offender in what is hoped to be the most useful and beneficial manner. The marginalisation of the victim manifests itself in a lack of information and lack of contact by the court service. What is needed is a system of liaison with the victim so that there is no doubt about what is happening next, whether the case will go to court, and, if so, when and what will happen.

When the victim is a witness there is a need for a good sympathetic briefing about what will happen and how it will happen. During and after the trial there should be an in-courthouse witness support scheme. I believe it would be worthwhile to put a victim liaison scheme into operation using both the professional staff and properly funded volunteers. Such a scheme would be voluntary in its uptake by victims but should be offered to all.

The purpose of Amendment No. 131 is to place a duty on the procurator fiscal's office to inform the complainer or victim of the progress of the case against the accused. For the victim, the offence committed against him or her, whether it is an assault upon the person or a family member or whether it be a violation of his home or personal space, is likely to have been sufficiently traumatic in itself. Then comes the post-incident investigation and the court process where the emphasis will be placed on securing the conviction of the accused. Attendance at court is one of the last ambitions of most people in Scotland. There is a general lack of knowledge of how the courts work. For victim witnesses in particular this strange process can be a very unnerving experience during which they must relive the incident. While there are few ways around the emotional difficulties of that, there is every reason to expect that such witnesses will be cared for by the court system.

With regard to Amendment No. 81, I believe it would be helpful if the court in general and the offender in particular were made aware of the effect of the offending behaviour on victims. The Committee will be aware that being a victim takes many different forms. While it is fairly obvious what the effects of personal assault can be, it is less clear what the results may be from, say, deception, violation of the home or theft of possessions. It is likely that the result will be an increased sense of insecurity, a reluctance to trust others, the victim wondering who did it and generally staying in the house rather than going out for leisure purposes. That latter point may well extend to all the other homes in the street.

When it comes to offences which do not have personal victims, the effects are morale-sapping for the community. Seeing someone profit from illegal or immoral activity can drive down personal standards. Seeing public or corporate property being destroyed by vandalism leads to the comment "What's the point?" and creates an atmosphere of hopelessness for many people.

The provision of a statement about the effect of the offence would be an enhancement in at least two ways. First, the balance of concern for the victim would be addressed; and, secondly, the statement would constitute a useful start to the social work process as part of any order that the court may impose on the accused.

Finally, in relation to Amendment No. 82, I believe that it would be most beneficial if the making of a compensation order were to become the normal or mandatory practice for offences against the person and against personal property. The basis for that change would be the recognition that there are very few victims who are unaffected by the offence committed against them. The main thrust of this new sentencing priority would be to compensate the victim for the distress, hurt feeling, demoralisation and restriction which the offence has caused rather than to compensate for insurable loss.

There are certain circumstances where such a compensation order would be inappropriate. Here I have in mind a punch-up between established rivals. I am concentrating on the innocent victim rather than the loser among protagonists.

The overall effect of the amendment would be to institutionalise the balance of care for victims and to focus the offender's attention on why his or her offending behaviour is unacceptable and its consequences. I beg to move.

5.30 p.m.

Lord Carmichael of Kelvingrove

I step in where angels fear to tread to say that when I saw the amendments, particularly Amendment No. 14, I thought that this was the least that we could do for someone who was in such a position. I was thinking particularly of a woman who was alone with children in the house. I thought that it might be possible to obtain a court order to restrain the accused from approaching the house or the area.

The noble Earl, Lord Mar and Kellie, has elaborated on the proposal. However, it seems to me that a minimum could be done to give the victim an indication of where the accused was, whether he had been given bail and what restraints had been placed on him during the bail period. It must be obvious that, for example, a woman on her own with children must be terrified that a person who had assaulted her might be free to roam about without her knowing what had happened at the court. I believe that, at least as a commonsense approach, the Government should consider the amendment or perhaps come up with a simpler series of amendments to meet most of the points made by the noble Earl.

Lord Windlesham

In supporting the amendments—from south of the Border—I declare an interest because I am the president of Victim Support.

A great deal has been done recently to enhance the position of the victim in criminal proceedings, but there is ample room for further progress. After several years Victim Support has been successful in persuading the Home Office in England and Wales to agree to the systematic provision in each Crown Court centre of a professionally trained person, supported by volunteers, to assist victims and witnesses and, in fatal cases, the relatives of victims in the courts.

That began as a voluntary initiative, initially funded by a charitable foundation. After lengthy negotiation over a period of years the Home Office agreed to fund the programme. Recently the Home Secretary announced that he would extend it to all 80 Crown Court centres. Therefore, in about 20 or 30 Crown Court centres Victim Support is now running a full-time provision of the type envisaged in Amendment No. 129 moved by the noble Earl, Lord Mar and Kellie.

I should like to ask the Minister of State what has been done in Scotland.

Lord McCluskey

It will be appreciated that the amendments cannot sensibly all be discussed at the same time. In my opinion—and of course Members of the Committee will form their own view—the amendment with which we are now dealing is quite different in character from the amendments which relate to the treatment of victims at a later stage in the proceedings when they have been identified as victims. Those raise entirely different points and must be dealt with separately.

Amendment No. 14 deals with a situation which arises when an accused person is given bail. The amendment requires the prosecutor to inform the victim or complainer if the accused is granted bail. The point that I made earlier that at that stage one cannot conclude that there is necessarily a victim obtains here. The noble Earl said that if an offence had been committed there must be a victim, but at that stage we do not even know whether an offence has been committed. The first object in a criminal trial is to show that an offence has been committed and then to bring home criminal responsibility to the person in the dock. It is only logical that at that stage one cannot properly talk in legal terms about a victim, although I understand that people who have been the subject of an attack of whatever kind will not engage in such niceties. However, we must do so when dealing with questions of bail. Therefore, we cannot assume at that stage that a person is a victim.

We have to recognise that it would be massively expensive and an administrative nightmare to try to intimate to every person who is a complainer whether bail has been granted. In Scotland we are already conscious that the fiscal service is massively overworked and has far too much to do. If it had to do this as well that would create enormous additional problems.

There is a further point. At the stage when bail is sought, if there is reason to suppose that the person who seeks bail may approach the person who is claiming to be injured, the fiscal can properly ask for a condition to be attached to the bail order preventing such an approach. The court will commonly grant that; it will not commonly be opposed.

Therefore, I suggest that Amendment No. 14 is not sound. I shall address the other matters in due course when we reach them.

Viscount Colville of Culross

Perhaps I may add a word from the English point of view following what the noble Lord, Lord Windlesham, said. English practice is exactly as the noble and learned Lord, Lord McCluskey, described. If a bail application is made and it is thought that there is a possibility of the accused person approaching any witness—because at that time the victim is only a witness—it can be a condition of bail either that the accused does not contact that witness or, sometimes, does not go within a certain area where the accused might run into that witness.

That condition is then enforced by the police because it would be a breach of bail and consequently an arrestable matter if the person either approaches the victim or goes into that area. Not infrequently such matters come before the Crown Court as the result of an arrest, or a Bench warrant is issued because there is some evidence that the person is breaching the bail condition or is likely to do so. I suggest that it is much better to leave the matter to the judiciary to handle in that way through the police force rather than to impose what would be a difficult administrative, and, I agree with the noble and learned Lord, an expensive burden on someone.

Lord Fraser of Carmyllie

I regret it if the grouping has caused some difficulty. I had some understanding that the grouping had been agreed. Possibly the noble and learned Lord was not aware of that agreement. That being so, it is always open to any noble Lord to deal with a matter when we come to it. Accordingly, in those circumstances, I propose to seek to deal only with those matters spoken to by the noble Earl in moving Amendment No. 14.

The amendment obliges the prosecutor to inform the victim of the granting of bail. I listened with great interest to what the noble and learned Lord said about the conditions that might be attached which would seem to parallel the way in which matters are handled south of the Border. However, this is not just a matter of imposing a condition to keep an accused person away from one against whom it is alleged he committed an offence. It is to oblige the prosecutor to inform the victim of the granting of bail. Perhaps I may say to my noble friend Lord Windlesham that we accept that victims who wish to be informed should be given information about the progress of the case. That might include the circumstances in which bail was granted. However, we object to the straitjacket that the provision imposes. While we consider it desirable that such information should be given if it is wanted, there is within the provision no opportunity for flexibility.

I say to the noble Lord, if he is not already aware, that all Scottish police forces have a policy of providing information to victims. The force guidelines generally give individual officers a discretion as to the level of information to be provided to the victim. Officers make their own assessment of the victim's vulnerability and the severity of the offence. However, the noble Lord may not be aware that the Crown Office has commissioned research into information needs of victims. I can advise the Committee that the results of that research will be available shortly. Preliminary indications are that research has found that a significant number of victims are already given information on bail hearing. I am sure that that will be welcomed.

More generally, the Crown Office is actively considering how best to achieve better communication with victims on all aspects of the criminal process.

The noble and learned Lord, Lord McCluskey, may wish to return to victim impact statements at a later stage. However, the noble Earl made some reference to them, and they are contained within his amendment. I fully accept the principle that the effect of an offence on the victim or victims is a relevant and important consideration in sentencing. It is an important means of determining the gravity of the offence and thus an important means of determining the appropriate sentence. That is why procedures already exist to bring the relevant information to the attention of the court. I should have thought that in most cases where such information is properly to be brought before the courts, in Scotland the procurator fiscal or the advocate depute will have that information available, given our system—not least of precognoscing witnesses; and almost invariably the victim will be one of those who has been precognosced. However, I may have to discuss later whether it is desirable to provide an impact statement in quite the form the noble and learned Lord, Lord McCluskey, suggested.

I hope that Members of the Committee will forgive me for one moment. I seek to extract what I wish to say from those issues on which I thought that the noble and learned Lord, Lord McCluskey, intended to speak.

I believe that the next amendment which was spoken to related to confiscation.

Lord Harris of Greenwich

Perhaps I may be of some help to the noble and learned Lord. We have got ourselves into a slightly confused position. It is no responsibility of the noble and learned Lord. It seems to me that it is better if we deal with Amendment No. 14 first, and the other matters separately. Otherwise we shall get into an intolerably confused series of debates.

Lord Fraser of Carmyllie

I am grateful to the noble Lord for that suggestion. The noble and learned Lord, Lord McCluskey, and the noble Earl had separate amendments dealing with impact statements. Perhaps we may deal with those in a different context.

Lord McCluskey

Perhaps I may add a word of explanation. Unfortunately, because of my absence, I was entirely unaware of the grouping. Had I been consulted, I should certainly have suggested the removal of Amendment No. 14. from the grouping. I believe that the suggestion of the noble Lord, Lord Harris, is one which has the approval of the Committee.

Lord Windlesham

I do not dissent from that. However, before we leave the issue, perhaps I may repeat the question in case the Minister of State requires notice. It will give him time to consider it before reaching Clause 48. I should like an answer to the question as to whether there are plans in Scotland to provide full time staff to support the victim during court proceedings. That is referred to in paragraph (c) of Amendment No. 129. Is that happening now? If so, in which criminal courts? If it is not, what is planned for the future? I look forward to the answer to those questions at the appropriate time.

The Earl of Mar and Kellie

The grouping seems to have been too wide. Therefore, I beg leave to withdraw Amendment No. 14.

Amendment, by leave, withdrawn.

5.45 p.m.

Clause 6 [Lists of potential jurors]:

Lord Macaulay of Bragar

moved Amendment No. 15: Page 5, line 16, leave out ("for") and insert ("after").

The noble Lord said: The amendment relates to Clause 6 of the Bill. It is designed to ensure that not only a juror's address but also his occupation is disclosed in the list of potential jurors.

The purpose underlying the amendment is that the occupation of prospective jurors should be included in the list of assize people. That gives a useful guide to the defence to ascertain which jurors to challenge or indeed not to challenge. For example, as the Law Society of Scotland has pointed out, it may or may not be inappropriate for a social worker to serve on a jury in a child abuse case; or for a chartered accountant to serve on a fraud case on which he might impose his own views on the facts and indeed his own experience.

Jurors are told that they should be masters of fact. That does not imply that they should be expert witnesses. For that reason it is helpful to know the occupation of jurors in order to ascertain whether the distinction between being a juror and an expert is blurred. I am sure that both noble and learned Lords opposite know that it is sometimes counter-productive to challenge a juror because jurors become suspicious that the defence may be up to something if it opposes a person being called for no apparent reason. I know that the practice in the courts has been improved. I believe that all prospective jurors are now given an address by the clerk of the court, outwith the presence of the accused or anyone else, to say, "You've been called for jury service. If your name is called out and someone objects to you being called, don't worry about it, it's nothing against you personally". The jury is given that address and I sometimes wonder whether it is helpful or counterproductive.

If we do not leave the right to challenge three jurors, I hesitate to mention it but we may be in the O.J. Simpson scenario—to use a cliché from television. The accused may have to be served formally with a list of the potential jurors, say, 14 days before the trial. At the moment, in practice, as the Committee knows, in the High Court in Scotland or the sheriff court in the sheriff and jury proceedings, one is handed a list of potential jurors. The clerk of court will read out, "Numbers 51 to 95 today" and one is presented with the list. It may include Joe Bloggs, blacksmith, Jimmy Smith, bus driver and perhaps someone unemployed. One goes through the list and tries to assess whether those people might have a valuable input into the case.

However, if the occupation of the juror is hidden from the accused and his representatives we may be faced with a situation where there is a demand for the list of jurors to be given to the accused and his representatives early on so that they may make investigations as to who are on the list. That could be socially damaging and might have on-costs to the legal aid system. You may come to the court with a list of jurors and no one knows who is who, so you may ask for the court to be adjourned because you have just been handed the list of jurors—Joe Bloggs, Jimmy Smith and so on—and you want to find out who they are and what their prejudices might be, depending on the type of case. You may be adding to the costs of the legal aid system. I do not say that legal aid will be granted—and judging by the pronouncements of the noble and learned Lord the Lord Chancellor today in relation to England it is highly unlikely that it will be—but I raise the question also in the European context because people are entitled to know who is sitting in judgment of them and what is their occupation.

I am not quite sure of the objective behind the removal of the occupation. What social or legal function does it serve? For example, if you are sitting in a case of a robbery and you see: "J. Smith, security officer", you can bet your last dollar that "security officer" means retired policeman. Ergo, you say, "Objection". No questions are asked, you just say: "No, I don't want you on the jury". The chap does not take offence because he has been told about it and if he is a former policeman he would probably know why there is an objection to him anyway.

If it is a journalist, he has read all the background to the case. Let us take the current proceedings in the south and assume that the West trial—if it ever gets on—is taken in Scotland. There may be a journalist from—I shall not name any newspaper, there may be some interest in it—a tabloid who had covered all the background to the case, heard all the rumours, the gossip and innuendo. The defence has no notice of that person's involvement and if he does not disclose it and say to the clerk of court, "Look, I know all about this case, I have my own preconceived views as to the guilt or innocence of the person in the dock", then there could be real problems.

To erode the right of the challenge to a juror may create more problems than it removes. I have heard of no juror who has taken exception to being refused jury service; in fact, most people I know are delighted when there is an objection because they do not wish to serve on a jury. I am sure that we all know from our practice in court that serving on a jury can be a terrifying and responsible experience. In my submission, this is an unnecessary deletion from the rights of the accused, as are some of the other provisions in the Bill to which we will come in due course. Accordingly, I beg to move Amendment No. 15.

Lord Fraser of Carmyllie

The purpose of Clause 6 is to improve the selection of juries so that they are more representative of the population as a whole. As I think the noble Lord will readily admit, it is common practice for defence agents or counsel to object to potential jurors simply on the basis of their occupation. We do not believe that an occupation per se should be sufficient justification for an objection. It may result in those in certain occupations being deprived altogether of their opportunity to serve on juries.

The first of the two amendments would alter Clause 6 to reinstate the requirement to indicate a juror's occupation on the list of potential jurors. In my view, there is no practical requirement for a juror's occupation to be published on that list and I accordingly urge the Committee not to accept the amendments.

There are six other amendments in the group, but I understand that they are essentially consequential on the earlier ones.

To some extent I accept that if Clause 8 is to be part of the Bill and if the right of peremptory challenge is to be removed, the issue of occupation may not be as acute as I believe it to be at present. Nevertheless, I see no practical reason for having an occupation published on the list. Accordingly, I invite the Committee to resist the amendments.

Lord Macaulay of Bragar

I am grateful to the Minister for what I hesitate to call an explanation, if I may say so with the greatest respect. What is the reason for this legislation? It exists in England and Wales, I understand, and I am not sure what effect it has had. If I am being tried, why should I not know whether the person sitting on the jury is a former policeman? Why should I not know, if I am charged with a white-collar or blue-collar crime, whether the person who will try me is an accountant who would bring his expertise to deliberations in the jury room?

I do not know why this proposal is made, except to be a mirror image of what is happening in England. If I am wrong about what is happening there then, of course, I apologise, but it is a dangerous situation. Can the Minister or the noble and learned Lord the Lord Advocate give an undertaking in regard to informing the representatives of the accused in serious cases in Scotland in the solemn procedure before a jury in the sheriff court or the High Court? They need not necessarily give that undertaking today because I have only just raised the point. Will either of the noble and learned Lords the Lord Advocate or Lord Fraser of Carmyllie write to me with an undertaking or explanation as to what will happen once the designation of jurors is removed? Will the defence solicitors or the accused be given an early list of the people who have been cited to attend the court? If not, then what is the position in the long term where people may become involved in a jury trial who have knowledge or insight into the case? That may be particularly important in drugs cases. The defence may find out about it after the trial is over. Someone may say: "I will tell you who was on that jury—Joe Smith, who was a pal of so-and-so who did this and that". That may sound unlikely but that is the way it happens.

There is then an appeal and the defence will tell the Appeal Court, "We didn't know who the jurors were, the Crown would not tell us. We were presented with the list on the morning of the trial and didn't have time to investigate it". As counsel for the defence I may stand up and say to the judge, "Wait a minute, I have just been given this list of people supposed to be the peers of my accused. I want to know more about them. Would you kindly adjourn the trial?" You can imagine what would be the response from the court. I am sure that the noble and learned Lord, Lord McCluskey, might give an indication. We are entering very dangerous waters at the moment. I should like to have an undertaking from the Minister that the list of assize which will be served on the accused if this particular clause goes through will be served perhaps 14 days before the date of the trial.

One other consequence is that people who are simply going about their business who have their name on the list of jurors may very well be harassed, spoken to, and so on, which does not happen at the moment. I have never known a case—perhaps the noble and learned Lord will tell us whether he knows of one—which has had to be adjourned to consider the status of a juror. I can see the far-reaching effects of this particular provision. All sorts of legal points could be taken, perhaps even hampering the course of justice. I beg to move.

6 p.m.

Lord Fraser of Carmyllie

I do not know whether there is any proposal—nor would we have one—to give a list of the assize at an earlier date. I have to say to the noble Lord that he is making a mountain out of a molehill. The law of England has existed for many centuries. Jury trials have been held here for a very long time. The occupation of prospective jurors has never been shown.

Lord Macaulay of Bragar

With respect, I am not interested in that statement. I asked the question and have received an answer, but it is of no relevance.

Lord Fraser of Carmyllie

The noble Lord says that he is not interested in the reply. He asked a specific question and it is very unfortunate that he got the wrong answer, but that is nevertheless the state of play in England.

Lord Macaulay of Bragar

I take the point. I may have scored an own goal on this occasion, but that is another matter. The law of Scotland has also existed for a long time. We do not need any lessons from the law of England and Wales if there is any distinction between these two. In the meantime, I—

Baroness Carnegy of Lour

Before the noble Lord withdraws his amendment, if that is what he intends to do, perhaps I may ask him this. We have heard that this has been the case in the law of England for a very long time. We have had the description of the occupation in Scotland. If in effect it means that people are being challenged because they have the wrong occupation, is it not the case that we are then doing less well in England? I am new to this subject, but it seems to me that the noble Lord's argument is rather unreasonable. If it is a handicap to people to have certain occupations because other people will challenge them and they will not get to be on juries, is that not a bad thing?

Lord Macaulay of Bragar

It may be a case of negative discrimination because of a particular job. I accept that. But certainly those of us who have practised in the courts in the past know that it is required to have the designation on the list of jurors. I am not sure how much investigation is done in England when the English counsel or solicitors are given a list of potential jurors. That may be a matter that we can investigate between now and Report stage.

There are always apparently good reasons for objecting to particular people in particular cases. It is down to the judgment of the people involved. They decide whether or not a person in a particular occupation should serve on the jury. I really cannot see where this particular amendment is leading the criminal process in Scotland or what benefit it will have. However, I have heard what the Minister has to say. What he said about not giving notice to the defence will no doubt be noted in other quarters, and we shall return to the matter at Report stage. In the meantime—

Lord McCluskey

Before the noble Lord withdraws his amendment: I shall speak on matters to do with juries in connection with Clause 8 rather than this particular matter. But I ask Members of the Committee to bear in mind that the lessons to be learnt by England from Scotland or by Scotland from England may be many, but in the field of juries in criminal trials they are virtually none. The reason is that although both countries have jury systems, the English had a jury of 12 and required a unanimous verdict. The Scots have always had a jury of 15 and required a simple majority verdict. The English now have a qualified majority verdict of 10:2. These differences are so fundamental that one should not make easy comparisons across the Border. There are very few lessons to be learnt in this field by either side from the other. We must live with our own traditions and modify them in the light of modern requirements.

Amendment, by leave, withdrawn.

[Amendment No. 16 not moved.]

Clause 6 agreed to.

Clause 7 [Jury service]:

Lord Macaulay of Bragar

moved Amendment No. 17: Page 6, line 3, leave out paragraph (a).

The noble Lord said: We have discussed more than once in the course of the proceedings so far the question of a presumption of innocence. There is a view that the mere fact that a person has been charged with an offence and permitted bail subject to the constrictions which the Minister intends to impose in the light of the previous section in the Act should deprive him of his civil rights in the community. Again, it may very well be that there is a European context to this and that he may be being deprived of his rights as a citizen. The amendment represents a short proposition which may or may not appeal to the Minister. I beg to move.

Lord Fraser of Carmyllie

Clause 7(2) (a) of the Bill adds to the categories of persons disqualified from jury service those on bail in connection with criminal proceedings anywhere in the United Kingdom. I make this point with some hesitation in view of the last intervention of the noble and learned Lord, Lord McCluskey. Our proposal is based on a recommendation made by the Royal Commission on Criminal Justice in England and Wales. However, we have decided to include this in the Bill not simply on that basis. Before this Bill, in our paper on juries and verdicts, we included it as a proposal. Following on the consultation and the views that we received on it in Scotland, we decided that it should be included in the Bill.

I agree with the noble Lord, Lord Macaulay, that a person on bail has, and should continue to have, the benefit of the presumption of innocence. However, the justification for disqualification is not that those on bail might have committed an offence. Rather it is that they have been accused of committing an offence and are still subject to criminal proceedings, and that that might improperly affect their attitude to the proceedings in which they would be contributing to the verdict.

It does not seem right in the interests of justice that such people should be asked to serve as members of the jury. With that short explanation to the noble Lord as to how we arrived at this particular proposal, I hope that he will feel able to withdraw his amendment.

Lord McCluskey

I entirely support the noble and learned Lord the Minister in this particular regard, and indeed for the reasons that he and the Royal Commission have given. I was a prosecutor for a number of years, from 1964 to 1971, in the High Court. The way it worked in those days was that if the police knew that a person was on bail, or whatever, the police would come to the advocate depute, and the advocate depute, exercising the right which the Government are about to take away, would then simply intimate to the court that he objected without cause shown to the person. The person who was thus on bail did not serve. That seemed to be an eminently sensible way to go about the matter. I entirely support this provision because it is quite wrong that a person who is himself facing criminal proceedings should be asked to adjudicate judicially upon somebody else's guilt or innocence.

Lord Macaulay of Bragar

I find that a strange proposition. It almost amounts to a form of secret justice when people are put on a jury list and some police officer, prejudiced for or against the accused, comes to the prosecutor, or indeed to the defence, and says, "By the way, do you know that he is up on a charge of (whatever it might be)? Would you mind objecting to him?". If we are getting to that point, it is a very dangerous state of affairs. But I am not sure whether that was what the noble and learned Lord was suggesting.

Lord McCluskey

I am suggesting that on the jury there may be people whose minds are so affected by some event that they are not able to act judicially. It is exactly on a par with another case in which I, as a judge, felt able to excuse a serving juror when it emerged, during the course of the case—it was a murder trial—that her mother had been murdered. That person could not bear to look at the photographs or bear to think about the matter. Of course, she should have intimated that at an earlier stage, but she did not. Once into the trial, when she realised it, she did so. That person was unfit to continue as a juror because personal circumstances affected his or her capacity to act judicially. The same must apply to a person who is out on bail. It is not a question of secret vetting by the police; it is a question of fitness to act as a juror.

Lord Macaulay of Bragar

Perhaps we can discuss that point at greater length on another occasion. Does it mean that if I have an argument with my wife in the morning before I leave home, having been called as a juror, I can go to the judge and say, "By the way, I have had a pretty bad morning—it started off badly and can only get worse—and so I cannot apply myself to this case. Would you please excuse me?"? That seems an extraordinary proposition. But perhaps we will come back to it at some other time. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

6.15 p.m.

Clause 8 [Challenges to jurors]:

Lord Macaulay of Bragar

moved Amendment No. 18: Page 6, leave out line 17.

The noble Lord said: This is an amendment in relation to the peremptory challenge of jurors. Basically, the amendment refers to what we have already discussed; namely, that the peremptory challenge should not be abolished. My information is that the Thomson Report held that the peremptory challenge should be continued unless good reason were given for this particular part of the Bill by the Government. The Government have to look at the matter very carefully to consider whether it is in the interest of justice. I beg to move.

Lord McCluskey

It will be observed from the Marshalled List that I gave notice of my intention to oppose the Question that Clause 8 stand part of the Bill. But Amendments Nos. 17 and 18 run together and I shall therefore address the whole matter in dealing with Amendment No. 17. First, let me remind the Committee that at Second Reading I made some observations about this matter (Official Report, 29/11/94; col. 566). The position is that prior to 1980 there were five peremptory challenges; in other words, either party—although it was almost invariably the defence—could exercise the right, without cause shown, to say "I object". The juror would not then proceed to enter the witness box. Administratively, the position is different from that in England. What happened was that the clerk of the court would pull a number out of a box—say, number 123—and everyone knew who it was. Then he would call, "Mrs. Elizabeth Jones". At that stage the defence counsel would say, "Object", and the clerk would simply say, "Mrs. Jones, please remain in your seat". So it was done and always is done with reasonable dignity and the least offence to people.

There were five peremptory challenges. One will find the history of the matter narrated in the Thomson Report (Command paper 6218 of October 1975, paragraph 51.28). The Thomson Committee recommended reduction of the jury in Scotland from 15 to 12. That recommendation has never been acted upon. In that context the committee suggested the reduction of the peremptory challenges from five to two. So, logically, for 15 jurors it follows that it would recommend three peremptory challenges.

That matter was dealt with by that very distinguished committee. I gave an indication of its membership when I spoke at Second Reading. Therefore I need not repeat it. Let me refer to paragraph 51.30, which is what the committee found: The overwhelming view of our witnesses who submitted evidence on this issue was in favour of the retention of the peremptory challenge although some suggested that the number of challenges should be reduced". At paragraph 51.31 it said: We agree that peremptory challenge is difficult to justify in principle but we think that it should be retained in order to restrict as far as possible the use of the challenge on cause shown". So the recommendations were made on that basis.

In 1980 the Government came forward with a Bill and a proposal to reduce the number of peremptory challenges from five to one. At that time in this Chamber I asked that the number should not be five but three. The Government rejected that proposal. Then, in another place, the Government accepted that proposal. Accordingly, the 1980 Act confirmed that the number of peremptory challenges was to be three.

I do not want to quote at great length from what was said in the Committee in the other place but the Minister, Mr. Rifkind, said that Mr. Ewing—now the noble Lord, Lord Ewing—had asked the Government to have a rethink. He said: The Government have done so. The Government's original proposal was that there should be only one peremptory challenge. An amendment was tabled … which proposed three challenges … Three challenges is a balanced compromise between those who hold different points of view. It would be unwise to disturb that compromise now".—[Official Report, Commons, 23/7/80; cols. 628-629.] Therefore, in 1980 the Government's view was that the number should be three. The noble Earl, Lord Mansfield, who was the Minister responsible, accepted that in this Chamber at a later stage.

To echo what has already been said in an earlier debate, there are good reasons for objecting to jurors. The noble Lord, Lord Macaulay, referred to some of them. Even the address discloses the risk that the juror may have heard some of the gossip. He may live in the neighbourhood. One wants to know that. He may have lived in the same area as a previous, notorious case, possibly of the same kind in public imagination, involving the same wrongdoer. The name of the juror, particularly in parts of Scotland, may suggest ethnic, religious or even football associations that might lead to prejudice. I do not make any light-hearted remark about this risk. I know cases in which, if one is acting for the defence, it is extremely important to avoid having people of a different religious persuasion involved in the case. In my experience there have been many cases in which counsel have come to a sensible view that there are too many jurors of one sex on the jury or too many jurors of a certain age on the jury.

I see no reason to abolish the peremptory challenge which now exists. There is in circulation an apocryphal story about jurors in England carrying a copy of the Financial Times under their arm and wearing a tie and thus being objected to. I should like to know whether that ever happened or whether it is just a story invented for some particular purpose.

I am concerned about this matter. I shall be told that the practice in England tells me otherwise, but for good reasons I do not believe that the practice in England is very relevant. I believe that what will happen is that, if the defence wants to object to a person because that person's name is Riley or because that person lives in Govan or if counsel and agents want to object because that person is of a particular sex or age or for some such reason, but there is not cause shown, the objection will nonetheless be taken and a good deal of time will be wasted.

I cannot see any point in that. If the defence indicates that it is going to object, then, in order to save time and to have the case proceed, the Crown will tend to agree. Under the new provision the court then has no option and the juror will be stood down. It is silly to move in that direction—away from a compromise which followed the recommendation of an extremely experienced committee.

I know of no evidence of abuse of the system as it currently exists. In all seriousness, I say—I have said it before and repeat it—that I have more experience of appearing in the High Court in Scotland than any other serving judge or participating advocate with the possible exception of one or two who are now full-time lawyers acting for the defence. I have sat for 10 years in the criminal courts. I was a prosecutor and solicitor-general for 12 years. I acted for the defence over the rest of my career. I have no evidence whatever of abuse of the right of peremptory challenge. If the Minister knows of abuse of that right, I hope that he will tell us about it. I know that if we give a right of peremptory challenge, such as exists in the 1980 legislation, more jurors will need to be brought to court—not many, but a few. That is not in itself a bad thing. It is important that members of the public should come into court from time to time and see what the court does, even if their involvement is the modest one of attending for the purpose of balloting a jury and then being told their services are no longer required. I do not believe that most people would regard that as an improper waste of their time. For those reasons, I intend to oppose the Question that Clause 8 shall stand part of the Bill, but I support Amendment No. 18.

Lord Rodger of Earlsferry

The issue is an important one, as the speeches of Members of the Committee made clear. I start from the basic principle which I am sure most Members accept. The basis of jury selection in Scotland, as in England and Wales, is one of random selection. We are dealing with a principle that people who will form a jury and judge somebody should be selected randomly and in that way one obtains a fair system.

That is subject to one important point, to which the noble and learned Lord, Lord McCluskey, alluded—that is, that there can be good reasons why specific individuals should not serve on a jury. I do not need to debate whether all the examples he gave would be examples of good reason. I accept that there may be cases where it would be wholly inappropriate for a specific person to sit on a jury. For example, if the person happened to come from the house next door to where the victim was killed, that would be a very good reason not to have that person serving on the jury.

In that situation the Bill allows that matter to be aired, either by way of objection on "cause shown", or indeed where the matter is so patently obvious that the prosecution accepts the position in terms of the provision to which the noble and learned Lord, Lord McCluskey, referred—that is, subsection (3) (a).

There is no doubt that the provision allows for the position to be properly regulated where reasoned objection can be made. At present the situation exists where the defence—it is usually the defence—uses objections to remove people from jury service often for no obvious reason. For example, it may be because the person is a teacher. One has seen that happen on many occasions. There are all sorts of reasons why teachers may or may not make desirable members of a jury. But for that to be done on a regular basis, as the noble and learned Lord, Lord McCluskey, accepts happens, is wrong in principle. It is wrong that people who have chosen a specific occupation, or who happen to live in a district of the town when it is not associated with the crime, or who happen to have some other characteristic which the defence thinks makes them an unsuitable or perhaps disadvantageous jury member, should be removed from the jury automatically by the use of such objection. In that situation one is running the risk of skewing the selection of jurors in a way which is irrational, as the Thomson Committee said, and difficult to defend in principle.

I ask the Committee what its reaction would be if the Crown were to use its right of objection in that entirely random way. People would immediately object that the Crown were trying to take a view of who should sit on a jury, which is wholly unacceptable. Except where proper cause can be shown, the basic rule should be that people who are selected on a random basis should serve; where a proper reason for them not serving can be shown, then that matter can be dealt with by the courts.

The noble and learned Lord, Lord McCluskey, counselled against looking rashly at the experience in England and Wales. Nonetheless, what has changed in the years since 1980 is that we can look at the experience of England and Wales. I accept that the mechanics and so forth are slightly different. But the basic position has been that, despite forebodings as to the difficulties which would be caused when the peremptory challenges were removed, in practice the system works perfectly well. In fact, as I understand it, there are few occasions where time-consuming objections are taken to jurors.

This provision therefore rests on a good basic principle; that is, that the basic test should be random selection subject to reasoned objections in appropriate cases. That is the correct principle. Experience in England and Wales shows that that can work. The objections today are misconceived. I therefore ask the Committee to reject the amendment and in due course to provide that the clause should stand part of the Bill.

The Earl of Balfour

Before my noble and learned friend the Lord Advocate sits down, he spoke of "random selection". Perhaps I can give an example, though not necessarily a good one.

Unfortunately, farming has a high record of industrial accidents. I feel that I could end up in court on an offence under Health and Safety Executive provisions, which may go to trial. As a person involved—forgive me quoting an industry in which I happen to be involved—I would not be too happy for a farm worker on a similar farm acting as a member of the jury in my case. That may or may not happen.

Is there anything in the words used by my noble and learned friend, or has the procurator fiscal or some other individual any powers in his original selection of 15 or 20 persons, to weed out those who, in his opinion, may be influential in a specific case that is coming to trial? Unfortunately, I do not know enough about the law; but that is my question.

6.30 p.m.

Lord Rodger of Earlsferry

The simple answer to the question posed by my noble friend is that it would not be possible for the procurator fiscal or anyone else to weed out people in the way in which he suggests. Unfortunately, the position is that it is unlikely that my noble friend would be the only person whose trial would be down for hearing at a particular sitting. There would be a whole lot of cases. People would be summoned as potential jurors in a whole range of cases. The kind of approach which my noble friend suggests would not be possible. Furthermore, my noble friend has put forward a case where he conceives that having a farm worker serving on the jury might be objectionable for the reason which he stated. I can see that that might be so, but that is exactly the kind of case where one could point to a legitimate possible ground for objection to that person serving as a juror. That could be brought forward; and if the court thought it was appropriate in the circumstances, the juror would be removed from the jury.

The Earl of Balfour

I am sorry to rise again but I thought that we were no longer going to require jurors to declare their employment. Am I correct?

Lord Rodger of Earlsferry

That is indeed so. But it might come out. In the particular circumstances one might know the employment from the address or it might otherwise be known. I am assuming that for some reason the occupation is known. The point of principle is that where it is known, and there is an objection which can be legitimately taken, even after the Bill goes through, that is provided for. I do not think that I need to go any further on the matter.

Lord McCluskey

For me, the Lord Advocate needs to go a good deal further. I have already said—and he has not responded to my point —that the Thomson Committee was the most distinguished committee on criminal procedure in Scotland this century. It heard evidence from every legal body and all kinds of bodies, including policemen. The vast majority recommended retention of this right. The Thomson Committee recommended retention of it. The Government keep coming forward and saying no; and they do not explain why. They have to explain why.

There is another point. In a recent case it was obvious to me, although it so happened that the defence were not in the least interested in the composition of a jury and were paying no attention to who went into the jury box, that one of the persons who was shambling forward was half-witted. No one looked at him. I have no right of objection or I would have said "Don't let that person sit". This person shambled forward and took his place. No one objected. On the next day he did not turn up. He did not turn up because he had no money. He had walked six or seven miles home. He then set off walking the following morning and did not know where the court was. Supposing I had had a power to object, or I had been counsel and had looked around and seen this person coming up, I would have said, "I must get him off the jury. I do not want that person sitting in judgment on my client". What cause would I show under Section 130(4)? "My Lord, I object to this person on the ground that he looks a right dimwit". I cannot do that. One should give the right of peremptory challenge to cover all these situations.

I will not accept from the Lord Advocate that I know perfectly well that the defence use objections for no obvious reasons. The reasons may not be obvious to the Lord Advocate, who I think had a very modest defence practice in his day, but the defence do not have to stand up and give reasons. That is the whole point. They made a peremptory challenge and the fact that a fiscal does not understand or the Lord Advocate does not understand why the objection was made does not mean to say that there was not a good reason. They do not do it for fun. I do not know whether they object to teachers. In my time I objected to many teachers as jurors when I practised in the civil courts because it was always thought in the 1940s, 1950s and 1960s, when there were quite a number of these cases, that teachers would somehow dominate the jury room. That was the belief at that time. We did not want anyone dominating the jury room so all teachers were removed from juries. I do not think that was true in criminal cases. It was certainly not my experience. No justification is being given for departing from the recommendation of the Thomson Committee for the practice that has obtained in Scotland for centuries.

The Lord Advocate makes the point of principle that the selection of jurors is random. It is not. First, jurors may be removed on cause shown. Secondly, they may be removed under Section 133: The court shall have power to excuse any juror from serving on any trial, the grounds of such excuse being stated in open court". So they may be removed on cause shown, they may be excused, or they may be taken away for reasons specified in Section 134. There are all kinds of reasons for getting jurors out. Selection is never 100 per cent. random.

Furthermore, on the point of bringing numbers to court, because there exists the possibility of objection on the ground of cause shown, on the ground of excuse to be stated in open court, or on the ground of unfitness by reason of this, that or the next thing, it follows that one has to bring more jurors than one actually needs. That covers the point of peremptory challenge. For all those reasons I urge the Government to do what they did in 1980 and think again. It is arrogant of the Government to come forward with this proposal on these inadequate grounds, given the whole background to this matter.

Baroness Carnegy of Lour

I am still not absolutely clear what the noble and learned Lord is saying. He quoted the example of a person who was clearly a dimwit and said that he could not do anything about it. However, as I read the Notes on Clauses, if the prosecution and the defence agree that the person is clearly a dimwit, he will not be a juror. It is obvious that that is covered. What we are talking about is the motivation of people to get rid of potential jurors on various grounds which may well be trivial. When it is obvious, is it not covered? I have not read the Thomson Report—I am sure it is a brilliant document—but this is a simple point on which we need to be clear.

Lord McCluskey

The judgment that one makes in the course of the few seconds that it may take a person to walk from the back of the court to the front of the court may not be one that is shared on all sides of the Bar. The defence might think that they cannot have that person because he looks as if he is not up to it. The Crown might say otherwise. I have known that to happen. If one gets agreement, that is fine. But if there is no agreement, what then? There is nothing wrong with the right of peremptory challenge. It may be difficult to justify in principle. I know precisely who wrote those words into the report. It was a person with a considerable degree of logic in his mind. But the simple fact of the matter is that it does no harm and I know of no reason to suppose that it is abused. I wish someone would give me an example of real abuse. I have never known one.

Lord Stewartby

I am sure that my noble and learned friend the Lord Advocate does not need any support from me but perhaps I may offer it nonetheless. I came in to listen to the debate because I was particularly concerned to hear the arguments which the noble and learned Lord, Lord McCluskey, would put forward. I defer to his great experience and knowledge but there is a non-lawyer's view about this which ought to be briefly stated.

Whether or not peremptory challenge is abused in practice—there is a difference of opinion on this between my noble and learned friend and the noble and learned Lord, Lord McCluskey—it is clearly open to abuse. As an ordinary citizen it seems basically wrong, particularly in a jury system where the verdict is by majority and is not unanimous, that the defence ought to be able to pick and choose the composition of the jury.

I find that very offensive. If this matter comes to a Division, I shall support the Government with enthusiasm.

Lord Pearson of Rannoch

Perhaps I may come in very briefly to support that point. Although I have not done jury service in Scotland, I have done it in England. I attended court on four days on the trot and I was surprised that each time I came forward for jury service I was objected to by the defence who said, "We do not like the look of that fellow". I did not understand what was happening until some of my colleagues said to me, "If you turn up dressed like that you will never get on a jury. Try not shaving for two or three days, turn up looking extremely scruffy and you will get on a jury". I followed that advice, and I was immediately allowed on the next jury with, I must say, deeply unsatisfactory results for other reasons. There were a number of people on that jury who would never find in favour of police or Crown evidence whatever the evidence before them. They had all been selected by the process which has been referred to. I agree with my noble and learned friend the Lord Advocate and object to this amendment.

6.45 p.m.

Lord Macaulay of Bragar

This has been a very interesting debate on an amendment which I thought would produce a short debate. The contributions of the noble Lords, Lord Stewartby and Lord Pearson, have been very informative in showing what life is all about at the sharp end of jury practice, so to speak. As the Committee will know, we are not allowed to have the privilege of serving as jurors.

When I was listening to the debate I wrote down two words, one of which was "why". No one in this Chamber can ignore what has been presented to us by the noble and learned Lord, Lord McCluskey, in support of his argument as an experienced High Court judge and who is one of the senior judges in Scotland. We have no other here. Why should his plea he rejected by the Government? All he is asking the Government to do is to go away and think about this matter again. They should forget about England and Wales. We are running our own legal system in Scotland within the Act of Union. That is one of the few rights which we have left. Perhaps we shall get others back in a few years' time.

The noble and learned Lord the Lord Advocate said, "We do not want to take up time-consuming objections". I do not know how often the noble and learned Lord has acted as defence counsel. There is a small amount of time needed to object. The clerk of the court pulls a little ticket out of a glass, tells counsel at the table "number 44", one looks at the list and says, "Not on; forget it". The clerk of the court says to the potential juror, "You need not come". That probably takes about 10 seconds. Therefore, in the course of a jury trial with three objections being taken, we are talking about 30 seconds to a minute of the court's time being taken up by the challenges. It is not a time-consuming objection at all.

As the noble and learned Lord, Lord McCluskey, has quite properly pointed out, if we do away with the right of objection, we shall go into the investigative procedure. Then we shall come to stupid arguments about cause shown. That is built into the criminal system in Scotland at the moment. I hope that I shall be supported in this matter. It operates through the goodwill of the defence and the Crown. The Crown comes to the defence and says, "By the way, that chap is on a charge of attempted murder". The police tell the Advocate Depute who then tells the defence who, 99 times out of 100, will say, "Just forget him and take him off the list". There are various ways of getting off a jury list which no doubt we all know. One can go to the clerk of the court and tell him that you are a journalist and know about the case. You can tell him this or that, and you will be excused.

What is important is that, as the noble and learned Lord the Lord Chancellor indicated yesterday, there are going to be inroads made into the legal aid system. I do not know what the package is going to be. There is going to be a Green Paper for England and Wales. I do not know what is going to happen in Scotland, but judging by the Government's performance we shall get a mirror image in Scotland. Who is going to pay the representatives for the time-consuming arguments about what constitutes "cause shown"? Although I have not researched this matter because I did not expect it to come up to the extent that it has today, to my knowledge no one in the criminal courts has defined what "cause shown" means.

If one takes away the job description of the person who has been cited as a juror and merely puts it down to investigation as to whether he is a proper prospective juror, one will perhaps get into real trouble. If the noble and learned Lord the Lord Advocate wants to get involved in time-consuming exercises, there is no more time-consuming exercise than three lawyers and a judge discussing what "cause shown" means. If this Bill goes through in its present form, no doubt that will be done. The courts in England, Scotland and Wales operate on the goodwill of everyone involved. For example, if I am told by my instructing solicitor that juror X has a bad reputation for whatever it might be, and that there are 10 witnesses who can speak to it, do I then go to the judge and say, "I am objecting to this man on cause shown"? The judge then says, "Show me the cause" because that is what "cause shown" means. I say to the judge, "I shall show you the cause. I have 10 witnesses outside who will tell you what Mr. Smith's propensities are either for the police, against them or for the accused, against certain kinds of offences" and all the rest of it. It is ridiculous to take this step at this stage with no reason.

We never get answers from the Government, but I should like to know why this provision is being made within the Scottish legal system. I should like to know where it comes from. It does not come from the Thomson Committee, as the noble and learned Lord, Lord McCluskey has already indicated. To my knowledge, no one has ever challenged the status of that committee to say that it was composed of a bunch of legal Rambos, so to speak, who did not know what they were talking about. It was a very distinguished committee, as the noble and learned Lord has indicated. Its views have been taken very seriously and it is hoped that that will always be so. Can the Minister tell the Committee where the demand comes from?

Arising from the debate is the parallel point which the noble Earl, Lord Balfour, raised. Will this measure apply to civil jury trials in Scotland? It is a while since I took part in one because civil jury trials in Scotland are a protected species. My recollection is that as regards the list of jurors for civil trials, everyone knows what occupations they follow. If I am wrong, I shall stand corrected.

If we are going to change the system for criminal cases, there must be change for one reason and one reason only—that is to say, that the knowledge on the part of the defence of the occupation of a prospective juror who may be "prejudiced" by his occupation against a particular kind of crime is the reason why the measure is being removed. It does not matter to leave it as regards civil matters. I say with some diffidence that it is part of the, "You have got to get the criminals convicted" mentality which pervades this Government's thinking. I suggest that the noble and learned Lord the Lord Advocate takes heed of the wise counsel which he has been given by the noble and learned Lord, Lord McCluskey, and thinks about this matter again.

Lord Rodger of Earlsferry

I always listen with the greatest care to what is said by noble Lords and by the noble and learned Lord, Lord McCluskey. Rightly and understandably, he has drawn attention to the position which was adopted in the Thomson Committee Report.

The Thomson Committee recognised that in principle it was difficult to justify a system of objections which were not based on cause shown. I start from the position—I do not blink from this at all—that the basic principle which underlies the selection of jurors in Scotland is that of random selection. Although I am, of course, aware of the qualifications, that is nonetheless the basic principle and I believe that it is proper. Because I believe that it is a proper basic principle, it seems to me that it should be departed from only where the reasons for doing so can be explained and justified. Where that can be done, jurors should be excused; otherwise, the correct basic principle is that they should not be.

Since the Thomson Committee reported, we have had—I do not hesitate to say this—the experience of a reform in England where peremptory challenge has been abolished, so we have been able to use that experience to judge what would happen if a similar reform took place in Scotland. That information was not available to the Thomson Committee, but we can now use it to test its judgment on the matter.

In addition to that, the Government have had available to them the results of consultation on this subject. Although not all the judges were in favour of a change, the great majority of High Court judges were in favour of the provision which is embodied in the Bill. Therefore, it certainly is not the case that the Government's position on this matter was unsupported on consultation. Indeed, although there was not a great majority, the majority of those who were consulted were in favour of the change. I say that that amounts to a perfectly proper basis for the Government bringing forward this proposal—

Lord McCluskey

On a point of information, is the Lord Advocate saying that the majority of judges in the High Court signified their support for this proposal?

Lord Rodger of Earlsferry

That is my understanding. However, I shall, of course, look into the matter and write to the noble and learned Lord if that turns out not to be the case. My understanding is that of those who replied, the majority were in favour of the proposal. Perhaps that is a more correct way of putting it; I shall have to check. Basically, the position is as I have stated it.

The noble and learned Lord asked about the potential juror who is half-witted. That matter was usefully drawn to our attention during consultation. It was precisely to deal with such situations that the provision was introduced. I believe that that is a practical way of dealing with the situation along the lines that were indicated by my noble friend Lady Carnegy.

Therefore, although one can imagine difficult situations, I believe that the provisions will work perfectly satisfactorily in practice. I say that partly because we can look to the position in England and Wales where we know that, in practice, the system has worked satisfactorily despite forebodings. What has happened in England and Wales does not bear out the idea that there might be long and time-consuming objections based on cause shown. It is easy to think that that might happen, but practice in England suggests that it does not.

I accept that in due course such points might arise in certain cases and that the question, "What is a proper cause shown?" may be discussed, a ruling eventually given, and that practice will settle down on the basis of that. I accept that, but I believe that the reform that we are introducing is right in principle. As the Committee will know, at the moment objections are taken because the defence conceives that particular categories of people might be less satisfactory as jurors from the defence point of view. Given that the peremptory objection is available, I do not blame the defence for using it in that way, but I say that it is wrong in principle and that what we are doing is right. Therefore, I adhere to the clause as it stands.

Lord McCluskey

Does not the noble and learned Lord recognise that the House of Lords is a very dangerous place in which to say that a thing should be abolished if it is not justified in principle? If there is one institution in our country which is not justified in principle, it is the House of Lords which is dominated by hereditary Peers. If the Minister wants some worthwhile work to do, perhaps he should include in the Bill a clause saying that the House of Lords should be abolished and justify that in precisely the same way.

Lord Macaulay of Bragar

I have heard the Lord Advocate's answers to the various questions that have been asked, but another issue arises. The noble and learned Lord said that the majority of judges who had responded were in favour of the provision. May I ask: responded to what?

Lord Rodger of Earlsferry

To consultation.

Lord Macaulay of Bragar

May we see the questionnaire and the answers? Could they be placed in the Library so that we can see which judges responded? Did the respondents include temporary judges, the College of Justice, and sheriffs who undertake 90 per cent. of the jury trials in Scotland? If I may say so, it appears to be fairly useless information at the moment. If the Lord Advocate writes to the noble and learned Lord, Lord McCluskey, perhaps he will send me a copy of the letter.

In dealing with the reformation of the law in Scotland it is worth remembering that this is about the tenth such Bill in about 10 years. Who speaks for the judges on such Bills? The noble and learned Lord, Lord McCluskey, is a Member of this House and in due course we shall have among us the welcome addition of the Lord President of the Court of Session but, up to now, what canvassing of the judges has been done, and in what form?

I am sure that those who are interested in the jury system will not be impressed one whit by the Lord Advocate saying that if something is all right for England and Wales, it is all right for Scotland. We have had plenty of that already politically and we do not want any more. Our system is working efficiently at the moment and does not need any further amendment or tinkering of this nature. I am sure that all those who are involved in the administration of justice in Scotland will read the report of this debate with interest. We shall return to the matter at a later stage, but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 8 shall stand part of the Bill?

Lord McCluskey

I have nothing to add in relation to this matter.

Clause 8 agreed to.

Clause 9 agreed to.

The Earl of Lindsay

I beg to move that the House be now resumed. In moving this Motion I suggest that the Committee stage begin again at 8 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.