Criminal Justice (Scotland) Bill [H.L.] (Hansard, 12 January 1995)

§ Lord Macaulay of Bragar
I have already given notice that I move that Clause 10 do not stand part of the Bill. This is quite an important matter in the administration of justice in Scotland. As we understand it, the proposal means that at an early stage in the proceedings the Crown will have an opportunity to cross-examine an accused person who may well not know, and in 99 cases out of 100 will not know, what the evidence against him may be.
At the moment limits are placed upon the questions which may be asked in the presence of the sheriff as to whether an accused person wishes to present a denial, an explanation, a justification or a comment. Questions may be asked about any extra-judicial confession that the accused may or may not have made to the police. So he is given an early opportunity to deal with that, which is fair enough.
However, the problem under Clause 10 is that in the proceedings the accused's solicitor has only limited rights to intervene in the judicial examination. People keep talking about the right to silence. I have always held the view that, since the judicial examination process was brought into the law of Scotland, to say that there is a right to silence is a misnomer. In any event the Government's proposal in Clause 10 will transform the judicial examination into an inquisitorial procedure which is inappropriate to the adversarial system we have. It would give the Crown an early bite at the accused to try to get him to admit to whatever charge he might face. If that happens, then, apart from allowing the right to obtain an admission from the accused, there will have to be the right for the accused's solicitor to cross-examine.
There is also a major problem that if the object of the exercise is to elicit an admission from the accused, then any questions directed towards him to elicit that admission must necessarily rest on information in the possession of the prosecutor which indicates that the accused is guilty of the offence as charged.
In most cases the accused will not have an opportunity to see any of the evidence against him. What may happen is that if his solicitor is doing his job 364 properly he will object to the line of questioning on the basis that he does not have in his possession the material on which the question which seeks to elicit an admission is based. The solicitor will then ask for a continuation of the case. That seems an unnecessary extension of the judicial examination procedure which is not welcome anyway in Scotland, but it is there. I oppose the Motion that Clause 10 stand part of the Bill.

§ The Earl of Mar and Kellie
I support the noble Lord, Lord Macaulay, in opposing Clause 10. I am not a lawyer but as a former prison social worker I am reasonably familiar with some of the people who will be the subject of a judicial examination. My understanding is that at such an examination neither the accused nor his solicitor (nor necessarily the prosecutor) is always in possession of all the charges. That seems an unsuitable moment for the prosecutor to attempt to elicit any admissions. Bearing in mind that the alleged event may have taken place some time before or that there could have been considerable drama in the days prior to the judicial examination, a period for reflection and for advice to be taken is needed before any admissions are sought.
I can see that Clause 10 conforms to the overall thrust of the Bill, being a modification designed to increase the possibility of conviction. I fear that it may lead to the possibility of wrongful conviction which would be a wholly unacceptable outcome.

§ Lord McCluskey
In my opinion, the speeches made in support of the Motion that Clause 10 should not stand part of the Bill are based upon a misunderstanding. First, the noble Lord, Lord Macaulay, referred to the right of silence. I wish to quote a passage from paragraph 4.16 of Scottish Law Commission Paper 130. It puts the point rather better than I could. It states: The first principle is sometimes referred to as 'the right of silence'. We find this an unhelpful expression and would adopt the observations of Lord Mustill in a recent case". There follows a quotation from the noble and learned Lord, Lord Mustill: This expression arouses strong but unfocused feelings. In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute".
It is very important always, when talking about the right of silence, to distinguish between the right of an accused person to remain silent under examination by the police, his right to remain silent once he has been charged—a very significant stage in the criminal process in Scotland—and his right to remain silent when he is in court. Section 20A relates to stage two when he has passed from the hands of the police. By charging him the Lord Advocate or his depute has in effect put the person in the custody of the court. That person is then brought before the sheriff.
The purpose of Section 20A which was explained in the Thomson Committee and in debates on the 1980 Bill was effectively to allow the person to be brought before the sheriff, and therefore there was protection for him. He was to be given an opportunity to explain matters averred in the charge. That is putting it very shortly. In 365 essence what happens is that at that stage a petition has been prepared which specifies that he, on a particular date, in a particular place, in a particular manner, did certain things to certain people. That is usual standard wording.
The procurator fiscal is therefore quite entitled to say to him: "Do you deny being in Sauchiehall Street? Do you deny being in the company of A and B, who are also mentioned in the petition? Do you deny being in possession of a knife?", or matters which are averred in the charge. It seems to me that there was a slight misdrafting of the provision initially. It should have contained the word "admission". The fiscal ought to be able to say: "Do you admit being in Sauchiehall Street on such and such an occasion? Do you admit that you were in the company of X, Y, and Z? Do you admit that?". If the accused would have answered to the first question, "I deny it", he can say, "I don't admit it". It is exactly the same situation. I see nothing to worry about here. There is no extension of the power of the fiscal. Apart from anything else, Section 20A contains in subsection (2) the provision that, the prosecutor shall, in framing questions … have regard to the following principles: (a) the questions should not be designed to challenge the truth of anything said by the accused". So the purpose of the questioning is not designed to secure an admission. It is to ask the accused if he is making an admission. He has a choice of three answers. He can say, "I admit it", "I deny it", or "I decline to answer". Accordingly, it appears to me the amendment is essentially technical in character. It does not expand the powers of the procurator fiscal. It invades no part of the right of silence, of which I am a strong defender. I would support the provision as simply a technical provision designed to clarify matters in the existing legislation.

§ Lord Fraser of Carmyllie
I am extremely grateful to the noble and learned Lord, first, for his very clear and lucid explanation of the broad group of rights and immunities that are too readily put together under the single heading of a right to silence. I would similarly like to adopt the language that he used in describing this amendment as simply technical. However, because there has been considerable discussion of this matter, particularly in Scotland, it is clear that some commentators have misunderstood the scope of what is being proposed. It may be helpful if I explain a little of what lies behind our thinking.
What this clause will not do is transform a procedure into something radically different to what it is now. The problem, as the noble and learned Lord said, is that at present a procurator fiscal may ask at judicial examination questions directed towards eliciting any denial, explanation, justification or comment from the accused about the charge against him. While this does not explicitly exclude questions designed to establish whether the accused admits any of the accusations or facts averred, that is the way the law has been interpreted in practice.
The consequence of the restriction is simply that, rather than ask an accused person a straightforward question along the lines that the noble and learned Lord 366 indicated as to whether he did something, was present at the scene of a crime, or was in possession of a particular weapon, the procurator fiscal must frame such questions in a negative form, for example, by asking the accused whether he denies exactly the same accusations or facts.
While that need not prevent a skilled prosecutor asking the questions he considers important, it does result in those questions being asked in a stilted and unnatural form which is likely to be more difficult for an accused person to understand, and even more difficult for a jury to understand when it considers the transcript of the examination at a subsequent trial. The change proposed in this clause is simply designed to make the proceedings more straightforward and intelligible. I emphasise that there is nothing sinister or extending in the provisions that we bring forward.
There are two things which this clause does not do, contrary to what has been suggested. First, it does not require the accused to break his silence if he wishes not to, or to incriminate himself. If the accused chooses not to answer questions he may do so, as very many accused persons do now. If he chooses to answer, his answers need not be any more incriminating than they would be under the current law. After all, he may refuse to admit, which may be less incriminating than a failure to deny.
Secondly, it will not enable procurators fiscal to engage in cross-examination or to attempt to drag confessions out of the accused. Subsection (2) of Section 20A prohibits the procurator fiscal from asking leading questions, reiterating questions the accused has refused to answer, or challenging the truth of what the accused has already said. Those restrictions will continue to apply to all questioning by the procurator fiscal as will the duty placed on the sheriff to ensure that all questions are fairly put to, and understood by, the accused.
On the last point, I believe it should be possible for the sheriff to discharge his duty rather more easily. It will be easier for the accused to understand what is going on.
I have taken a moment or two to explain this matter because there has been serious misunderstanding of what is proposed. I hope that as a result of this short debate on the clause it will now be understood exactly what limited amendment is proposed.

§ Lord Macaulay of Bragar
I am grateful to the Minister for his explanation. In relation to judicial examination, part of the problem within legal circles in Scotland is the use of the word "eliciting" in relation to admission. That can be phrased whichever way you like subject to the provisions of the Act as it presently stands. But to the layman it must mean that the procurator fiscal will, to put it in colloquial terms, "have a go" at the accused within the limits of the Act to see whether he will confess to what he has been charged with. That is a very dangerous inroad into the fairness of the criminal justice system in Scotland. It merits further consideration by the Government, perhaps taking account of what the various groups involved in the administration of criminal justice in Scotland have to say about it. 367 It is very difficult to look at this clause and say that it is not sinister. It certainly carries a sinister implication. If it will not make much difference to the law as it stands, why are the Government bothering with it? I know that it has been explained by the Minister and no doubt it will be read in the quarters that are involved in the administration of criminal justice in Scotland. Speaking for myself, with respect I am not convinced by the justification put forward for this step in the administration of criminal justice in Scotland.
I shall read with interest—I shall no doubt be regaled about it by various people—what has been said in the Chamber tonight.
Clause 10 agreed to.

§ Lord McCluskey
moved Amendment No. 19: After Clause 10, insert the following new clause: ("Duty of prosecutor to investigate lines of defence .—(1) In section 20A of the 1975 Act, after subsection (3), there shall be inserted— (3A) The accused, before being asked any question by the prosecutor, shall be told by the sheriff that, if he answers any question in such a way as to disclose a line of defence (as for example alibi, incrimination, or the consent of an alleged victim), being a line of defence which is capable of being investigated at that time, the prosecutor will then be under a legal duty to investigate that line of defence thoroughly and as soon as is reasonably practicable". (2) After subsection (4) there shall be inserted— (4A) After any examination under this section has been completed it shall be the duty of the prosecutor, as soon as is reasonably practicable, personally or through his officers or officers of police, to investigate thoroughly any line of defence which is capable of being investigated at that time, provided it is a line of defence which has been disclosed by the accused in answer to any questions put to him by the prosecutor, and it shall be the duty of the prosecutor to disclose the full results of that investigation to the accused not later than the date of service of the indictment under section 70 of this Act.".").
The noble and learned Lord said: Section 20A which we have just been discussing was inserted by Section 6(2) of the Criminal Justice (Scotland) Act 1980. It allowed questioning by the procurator fiscal at judicial examination. It included certain provisos. I refer in particular to the proviso contained in Section 20A(1) (a): Provided that the particular aims of the line of questions under this paragraph shall be to determine: (1) whether any account which the accused can give ostensibly discloses a category of defence (as for example alibi, incrimination or the consent of an alleged victim)".
It goes on to say: and the nature and particulars of that offence".
So, if the procurator fiscal asks an accused person a question based upon the charge in the petition, which asserts that the accused was in Sauchiehall Street on a particular date at a particular time, and the accused replies, "I am perfectly willing to answer that question, I was not there", the procurator fiscal is then entitled to ask him, "Well, if you weren't there, would you be willing to tell us where you were?". He might also add, "Would you be willing to tell us who you were with?" and so on. In other words, he is entitled to ask the nature and particulars of a defence alibi. That seems to me to be entirely sensible and it has been accepted in practice since the Act came into force in 1981.
368 However, if one now looks at the source of this particular provision—namely, the Thomson Committee report—one finds that it is dealt with on page 43 in paragraph 8.14. That paragraph is concerned with the objects of judicial examination. It says: We consider that there are three objects … a. to afford to an accused at the earliest possible stage in the judicial process an opportunity of stating his position as regards the charge against him". So it was conceived by Thomson in favour of the accused person. I continue from that paragraph, reading in short: There are matters, such as an embarrassing alibi, which an accused could disclose at this stage in the knowledge that, if investigation of the alibi satisfied the procurator fiscal of his innocence, he would be saved from any public disclosure of his private affairs". I shall not read the rest of the paragraph; but the essence of the matter there and at paragraph 8.18, which is in similar vein, is to the effect that the accused who chooses to say, "I have an alibi" and gives the details of it can expect the procurator fiscal to investigate that alibi. If he gives a sound alibi, that is the time to do it, early on. The procurator fiscal has the resources to do it at that particular stage.
I have now looked at what happens in practice. I fear that in practice that ideal is not always followed. The noble and learned Lord the Lord Advocate will recall one case about which I wrote to him. For a number of reasons I shall not go into the details of that case. In essence, an accused person, having given the police at the time of his arrest a very limited account of his alibi, three days later at judicial examination gave a rather more detailed account. For administrative reasons, or by some kind of oversight, the second and much more detailed account was not investigated. In the event, he came to trial with a large number of alibi witnesses. I presided at the trial and so I can say that the jury, which took four minutes to acquit him, was thoroughly convinced of the soundness of the alibi that he advanced in respect of that particular charge.
I am concerned to bring the statute into line with the intentions which were expressed by Thomson and indeed by Ministers in this House in the debates on the 1980 Bill. I am sure that the noble and learned Lord the Lord Advocate, in the light of his experience in general and of the occasional case that may go wrong, will not find that a difficult matter to deal with in principle.
So far as concerns the details of it, I put forward two aspects: first, that the sheriff will tell the accused of the duty which the later subsection places upon the prosecutor; namely, a duty to examine the background of the alleged special defence of incrimination or alibi. It is an encouragement to the accused for the sheriff to say to him, "Look, they are going to ask you questions. You do not have to answer them. But if you have an alibi or some such defence, tell us. The procurator fiscal has a statutory duty to investigate it". That is an encouragement to people at an early stage to come out with their account of where they have been or any other account that they choose to put before the court. I accept the whole point that was made earlier; namely, that an accused person does not know in great detail with what he is charged or what the evidence is against him. But 369 he knows if he was not there; and if he was there and saw the offence committed by somebody else or some such matter he can say, "Look, I don't have the resources to investigate this, but you do. This is the story; you investigate it." I beg to move.

§ Lord Rodger of Earlsferry
I am very grateful to the noble and learned Lord for raising the matter in this amendment. The thrust of his amendment is entirely acceptable to the Government. Indeed, we are very grateful to him for bringing it forward. I can be brief in reply because the noble and learned Lord explained the genesis of the judicial examination procedure and pointed out that it was designed, for example, to elicit alibis or give an opportunity to the accused to put forward an alibi. Obviously, it must have been envisaged that that should be investigated. For my part, I accept that that is entirely right.
The noble and learned Lord mentioned a particular case—and there are probably others—where what I would regard as the appropriate duty has not been fulfilled. It is entirely helpful in working out the system of judicial examination that the quid pro quo, so to speak, on the part of the procurator fiscal should be put on the face of the statute. So I am entirely happy in following the general thrust of the amendment. It seems to me that, as the noble and learned Lord envisaged, it might very well be a provision which would show to the accused person the advantage of taking that opportunity to put forward at an early stage an alibi which could be investigated and as a result the charge might be withdrawn. That, of course, would not always be so.
I do not feel able to accept the full detail of the provision as regards the duty which is envisaged on the part of the prosecutor to disclose in all cases the full results of the investigation. I should want to look a little more closely at that matter. I fully accept that, if the investigation discovers evidence or material that may be of assistance to the accused, the procurator fiscal should consider himself—he should already do so—under a duty to make such evidence or material known to the defence. Procurators fiscal are given general instructions to that effect.
There may be cases where no evidence is found or where in revealing a particular matter—for example, the fact that supposed witnesses in support of the alibi had indicated that they had been put under pressure by the accused—danger to witnesses might result if the full nature of the investigation were revealed. I feel that a blanket duty of this kind would not be acceptable.
However, as I said, I am entirely happy with the general thrust. If the noble and learned Lord is prepared to withdraw his amendment on this occasion I shall undertake in due course to bring forward an amendment along similar lines when we have had a further chance to examine the matter.

§ Lord McCluskey
I am happy to accept the reply of the Lord Advocate on that point. I am conscious of the fact that when I put in the final part of the sentence, it shall be the duty of the prosecutor to disclose the full results", 370 I was going too far. In Scotland we do not want to end up with the situation where "statutory" means that a solemn duty is laid upon the Lord Advocate or his staff to disclose everything that an investigation reveals.
It is difficult to draw a line, particularly in a statute. Where we can avoid the need for that in Scotland lies in the fact that it is the tradition for the Lord Advocate, the Crown Office, to act as Ministers of justice. I believe that we will be able to found upon that. The Lord Advocate may consider couching his amendment in terms of a duty on the procurator fiscal to disclose such results of the investigation as appear to him to be reasonable and proper in all the circumstances. I have no doubt that some such formulation would meet my concerns. I am happy that the Government are willing in principle to accept the point and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Macaulay of Bragar
moved Amendment No. 20: Before Clause 11, insert the following new clause: ("Video recording of police Interviews with suspects .—(1) In any solemn criminal proceedings there shall, where practicable, be available to the defence and to the prosecution, a video record of the police interviews with the accused. (2) The video record shall be—

(a) recorded on standard equipment approved for the purpose; and

(b) sealed by two officers upon completion of the interviews and signed by the same two officers who declare that the video record has not been damaged or tampered with.").

The noble Lord said: Amendment No. 20 seeks to bring into focus the question of the tape recording of suspects or accused persons in police stations. It is tabled bearing in mind that in 1988 an experiment began on tape recording—not video recording—in police stations. The Criminal Justice Act 1980 allowed the police to detain people for up to six hours while they were being questioned. However, the second report of the Thomson Committee said that interrogation of suspects in police stations must be recorded on tape. I do not know how far that experiment has gone. The last figures with which I was provided were that in 1991–92 the procurator fiscal received 15,060 tapes from the police. That is a mere fraction of the reported cases, which numbered nearly 900,000 in 1991, and it was supposed to be a rolling programme of recording interviews of suspects in police custody.
The then Secretary of State for Scotland, Malcolm Rifkind, said at that time in 1980, The Government's view quite firmly and quite clearly is that, if the tape recording experiments which are presently being conducted in Dundee and Falkirk are shown to produce no insuperable difficulties, it is our firm intention to implement these proposals at the earliest opportunity". He went on to say that he did not see the question of resources as being of any significance in implementing the question of tape recording. That was in 1980 and refers to sound tape recording. The amendment seeks to obtain information from the Government as to what facilities are available in police stations throughout 371 Scotland to interview people on video tape in serious cases. I am informed that out of 569 police stations in Scotland—on the question of sound tape recording pure and simple—only 129 stations actually possessed the facility to record an interview between the police and the suspect.
Amendment No. 20 is in the nature of a probing amendment to ask the Government—I do not expect an instant answer this evening but certainly between now and the Report stage of the Bill—to inform the Chamber of the state of play in relation to the question of facilities, first, for sound tape recording and, secondly, for video tape recording within police stations in Scotland. I beg to move.

The Earl of Balfour
If the Government are seriously considering this amendment, perhaps I can once again make a small appeal. I ask that clauses covering roughly the same subject be put together. Amendment No. 20, introducing this clause, should perhaps be attached to Clause 20, which deals with video surveillance and recordings.
While I am on my feet perhaps I can ask whether, with today's advances in technology, in the case of a police interview about which the noble Lord, Lord Macaulay, spoke, we are necessarily using the right word. I may be entirely wrong, but there is also the question of cassettes with audio recordings as well as video recordings, which is vision recording. That should perhaps be considered in the legislation. I know that I am on dangerous ground and I am not awfully well up on these subjects. However, that is what I wanted to say.

§ Lord Rodger of Earlsferry
To whichever matter one attaches Amendment No. 20, it is clearly a probing amendment. Though I cannot give the noble Lord the detail for which he asks in relation to the numbers of police stations and so forth, I am happy to write to him between now and Report. However, Members of the Committee who are involved in criminal trials will be aware, certainly in solemn procedure, that it has become very much the case that tape recordings are available of police interviews. They are extremely helpful in eliminating from trials much sterile discussion which used to take place as to what was or was not said at the time of an interview. That has been generally beneficial to the conduct of prosecutions and the interests of justice in Scotland.
It is of course the case that not all police stations possess such recording facilities; it is not necessary that all should. However, it is necessary that equipment should be available in various areas of the country where it can be used conveniently.
With regard to video recording, in one sense that seems to be the logical development, and the position is that technology has now advanced sufficiently to allow for interviews to be recorded on video cassettes. They provide a further benefit in that they may portray the demeanour of the suspect and the interviewers. To that extent they allow a clearer assessment to be made of the fairness of the interviews.
372 The use of video recording equipment at such interviews is a recent development. A pilot exercise was carried out in one Scottish police force over a period of six months. The conclusions from that exercise—it was a limited one—suggested that video recording provided additional safeguards, both to the suspect and to the police. It also had one further benefit; that is, it helped senior officers to see how the interviewers conducted the questioning and so forth, enabling them to help improve standards in that way. Where video recordings have been made, and where they are to be used, they have been made available to the defence and the prosecution.
As far as we can see, there is no need to put any arrangements on a statutory basis. We think that we should examine further, in the light of the experience so far, what the benefits would be of the wider use of video recording. For that reason we envisage that we may wish to commission a wider investigation than has been possible so far to assess exactly the value of the benefits obtained from the use of video recording.
I therefore say to the noble Lord that I shall write to him with the details. I can assure him that the matter of the possible introduction of video recording is one which is being considered.

§ Lord Macaulay of Bragar
I am grateful to the Minister for that reply and I look forward to receiving his letter with the full details. I shall not pursue the question of which area the exercise was carried out in because I do not think that that would be productive. But no doubt some statistics will be provided to those interested in that aspect of the law. One of the problems which we all recognise is that, whether in sound or in vision, there will always be the complaint that the suspect was primed to do what he did on tape, either visually or otherwise. But that is a matter for juries to determine or judges sitting alone. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Agreement of evidence]:

§ The Deputy Chairman of Committees (Viscount Allenby of Megiddo)
Before calling Amendment No. 21, it may be for the convenience of the Committee to know that, if this amendment is agreed to, I cannot call Amendments Nos. 22 to 25.

§ Lord Rodger of Earlsferry
moved Amendment No. 21: Page 6, line 36, leave out from ("(1)") to ("and") in line 39 and insert ("subject to subsection (1A) below, the prosecutor and the accused shall each identify any facts which are facts—

(a) which he would, apart from this section, be seeking to prove;

(b) which he considers unlikely to be disputed by the other party; and

(c) in proof of which he does not wish to lead oral evidence,").

The noble and learned Lord said: There are four government amendments to the clause, Amendments Nos. 21, 26, 28 and 29. The creation of the new duty envisaged in terms of Clause 11 for agreement on evidence is not intended to have the effect of preventing 373 important oral evidence—for example, that of the victim—from being heard. Amendments Nos. 21 and 28 are designed to make that matter explicit.
Amendments Nos. 26 and 29 make it clear that each party is under a duty to take reasonable steps to agree the facts that one party identified. I beg to move.

§ Lord McCluskey
In the light of the information that, if Amendment No. 21 is agreed to, we cannot consider certain other amendments, I shall address the Committee on Amendments Nos. 22, 23, 24 and 25. These are fairly small amendments but, looking at the Bill itself, the Committee will appreciate that the new Section 84A of the 1975 Act lays upon the prosecutor and the accused a duty each to, identify any facts which he would otherwise be seeking to prove which he considers are unlikely to be disputed by the other party". There are three features of that provision which I should like to pick up on. First, the duty imposed should be imposed upon the prosecutor but not upon an accused person. It is a possible infringement of the right of silence to impose upon an accused person a solemn duty to identify facts which he is seeking to prove and which he considers are unlikely to be disputed. It is not a serious inroad but nonetheless a real one.
I also note that, although that duty is created in these peremptory terms, no sanction is imposed for breach of it. Perhaps the Lord Advocate can tell me in terms what sanction will be imposed on an accused person who is called upon to identify a fact which he seeks to prove and which he thinks is unlikely to be disputed. I do not follow that. It may be that I have not properly read Section 84 of the 1975 Act. My Amendment No. 22 seeks to remove the obligation on an accused person to seek to identify such facts. I shall refer to that later on when I move the new clause which I suggest should take the place of this provision.
The background to this is the Scottish Law Commission report to which I have already referred. I draw attention in particular to paragraph 4.27 of that document. Again, it is unnecessary to go into the latter in great detail, but the Scottish Law Commission considered the very point as to whether the duty should be imposed upon an accused person. Paragraph 4.27 states: We considered whether it should be possible for the defence to operate the new procedure"— the new procedure being identification of facts for challenge or not— and decided that it should not for two reasons. First, there are advantages which we have mentioned in placing the initiative on the prosecution. Secondly, in a case where the defence wished to propose that certain facts or documents should not be disputed at the trial, there should be no difficulty in discussing with the prosecutor the framing of a minute of admission". That passage recognises the reality that if the defence want to agree something, they will take the initiative and come forward and say, "Look, we do not want to stop these witnesses going on holiday. Here are six of them who all say this. Would you agree to that?" The Crown 374 would investigate and, unless there were some strong reason, would agree. The passage goes on to recommend in paragraph 4.28: We therefore recommend that responsibility for initiating the procedure described in the following recommendation should lie with the prosecutor". The general thrust of this is that the prosecutor should take the initiative.
In paragraphs 4.17, 4.20 and 4.21 the same document deals with the possible infringement of the right of silence. I mention that because the Law Commission sees it in the context of the European Convention on Human Rights. From reading paragraph 4.21, it is clear that careful thought and extensive consultation would be required before any reforms of this kind could be recommended for Scotland. In effect, what the Scottish Law Commission is considering there is the role of the judge as a kind of intervener in a sense—stepping in and saying, "Tell me, what are you agreeing here?". In substance, this clause makes the judge an intervener. I have no objection to that in principle, but the clause lays upon the accused the duty to identify the facts with the word "shall".
The other point is a small one, but it is one which I would like the Government to consider. When the prosecutor, or if the Bill remains in its present form, the prosecutor or the accused, comes forward, he is to identify any facts, which he would otherwise be seeking to prove which he considers are unlikely to be disputed". Very often the prosecutor will know and the defence will know what is going to be disputed. There is a good deal of merit in the prosecutor in particular having in his mind what we in Scottish legal practice would call a note of line of evidence. He would say, "What do I have to prove in this case?" He has to prove point A, locus; point B, time; point C, action; point D, result; and so on. Some of those will be disputed and some may not be. Therefore, he should not be confined to putting into the draft document on the statement of facts those which he thinks are unlikely to be disputed. He should be free and, indeed, encouraged to put forward others as well. Therefore, Amendment No. 24—and there is another amendment elsewhere—is to that effect.
Amendment No. 25 seeks to delete the word "the" and substitute the word "any". The point is that there may be more than two parties—a prosecutor and an accused person. There may be more than one accused. The appropriate wording would therefore be "any" rather than "the". That is a point of detail and there is no need to do any more than to consider that in future.
Accordingly, in substance, all I want to happen here is that the prosecutor shall consider what he has to prove. He states these matters in an articulate fashion with discreet statements of fact. He puts them to the defence and they are free to agree them or not. That is so simple that it would tend to work in practice. For those reasons, if I get that far, I shall move the amendments on that basis.

§ Lord Macaulay of Bragar
I shall not detain the Committee for any length of time. This clause appears to be a statement of intent rather than having any real 375 teeth or bite to it. It is to take all reasonable steps to agree uncontroversial evidence. As the noble and learned Lord has just said, what happens when an accused does not? If he is legally represented and he tells his lawyer that he is not prepared to agree to anything, what will be made of that in the course of the trial? For example, if in the course of the trial he says, "Yes, that is true" is the prosecutor able to say to him, "Why did you not agree that when you were asked by the prosecutor between the service of the indictment and the swearing of the jury?" That is the usual line of cross-examination. I merely ask that seeking information and not as a matter of criticism.

§ Lord Rodger of Earlsferry
I start by saying that the noble and learned Lord, Lord McCluskey, moved Amendment No. 25. I am happy to accept that in principle and we shall need to look at the drafting of it. He has identified a point which is correct in connection with the situation where there is more than one accused.

§ Lord McCluskey
The noble and learned Lord will appreciate that I have not moved Amendment No. 25 and I shall be unable to do so if he persists with Amendment No. 21. As long as the noble and learned Lord understands the point, as he plainly does, that is good enough for me.

§ Lord Rodger of Earlsferry
That is on the basis that the noble and learned Lord's amendment has drawn attention to a matter which would require to be dealt with. As regards the wider thrust of the noble and learned Lord's remarks, we have considered carefully the question, especially in the light of the report of the Scottish Law Commission, whether the duty should be one which is exclusively on the prosecution.
We came to the view that in reality, whatever the exact technical matter as to whether there was a breach which the noble and learned Lord described as not a serious inroad into any right of silence, there was much to be said for a duty of this kind on the defence. The noble and learned Lord and also the noble Lord, Lord Macaulay of Bragar, asked what the sanction was. There is clearly no sanction of the kind which was envisaged as being raised in the course of a trial in that way.
I would not describe it as a sanction, but where it bites, as the Committee can see from Clause 12, there is introduced an additional Section 75A which deals with the first diet. Section 75A(1) (b) says, the extent to which the prosecutor and the accused have complied with the duty under section 84A(1) of this Act". It is a duty which can be focused at a hearing of this kind.
It seems to me that there is advantage from the defence point of view where they exercise the part which refers to them. Where they identify something which they wish to prove, if they think it is unlikely that the prosecution would dispute it, they should then be able to invoke the duty which is then put on the prosecution to take all reasonable steps to agree with them. Although I shall be the last person to say that the prosecution system in Scotland does not take all possible steps to act properly and to agree things where that is 376 possible, something may be said for having a duty of this kind put plainly on the face of the statute so that it is known that that is what has to be done in that circumstance. Therefore, it seems to us that the provision here is balanced.
The noble and learned Lord, Lord McCluskey, while opposed to the general tenor of these provisions as far as the defence is concerned, would seek to widen them a little by changing them from matters which the prosecutor or the defence consider unlikely to be disputed although they may be disputed.
That is a matter for judgment because the whole provision, which applies generally to these matters, for seeking agreement requires a certain expenditure of time and effort. One has to judge whether or not it is likely that that time and effort used in seeking agreement is going to prove fruitful. There is nothing against a prosecutor or the defence seeking to get wider agreement if they can. Nonetheless, in so far as this matter is imposing a duty, it seems to us that it is appropriate that that duty should be imposed. The obligation to take these steps should be imposed, but only where it is thought unlikely that the matters will be disputed. If one goes wider than that, there is the risk that people will be put under a duty which they may then be tempted not to fulfil. They will be put under a duty which is unlikely to be fruitful as a result.
Overall, I say to the Committee that these are matters where we believe the balance has been correctly struck and that they will have a beneficial effect in leading to a situation where people are not brought to court unnecessarily in order to give evidence. Anyone who has been a law officer knows that one of the matters on which one receives letters is where people are brought to court and feel that that has been unnecessary. I do not believe that one can envisage that necessarily a great deal of evidence will be agreed, but there are people—for example, householders—who are brought along to speak to the fact that their house has been burgled.
The experience so far of the use of preliminary diets which have been taking place in their new form for the better part of a year, indicates that in a great many cases we are getting agreement on such matters and, likewise, where cars have been stolen, and so on. That is all to the good. These are matters which we believe are unlikely to be disputed. It is because of that experience that the test which we are putting forward is an acceptable one.

§ Lord McCluskey
I hope that the noble and learned Lord will not conclude that he has no more thinking to do on this matter. I share with him the objective which he has mentioned. For obvious reasons, one wants to reduce the unnecessary burden of bringing witnesses to court. The question is this: what is the best way to do it? My judgment is different from his. The judgment of the Scottish Law Commission was also different from his on this particular matter. It would be prudent to think about it again.
What concerns me is that when one looks at the wording as far as the prosecutor is concerned, he has a duty to do something if he considers the point is unlikely to be disputed. Therefore, in a sense, there could not be 377 a sanction there because one would have to test his honesty if he says, "I consider that it is unlikely to be disputed". It may be that the imposition of the duty is to impose an extremely light burden on the prosecutor. That is not what the Scottish Law Commission or I envisaged in the amendments proposed to an earlier Bill in this House.
My second point is that in many cases—I am thinking of a great many cases where the matter is reported to the fiscal by the police—he does not have the slightest idea of what the accused will or will not dispute. The accused has made no reply to the police, the police have collected certain bits of evidence and have no idea either. As a result the duty does not arise.
My third point arises because of something in the clause that was mentioned in passing by the noble Lord, Lord Macaulay. It ties in particularly with Clause 12, which we have not yet reached, but which states: the court shall ascertain whether the case is likely to proceed to trial on the date assigned … and … the state of preparation of the prosecutor and of the accused with respect to their cases".
If a defence solicitor who is falling under the duty imposed by the clause that we are now discussing then appears before the sheriff in terms of Clause 12 and declines to co-operate, is he going to be reported to the Law Society as in breach of some duty that he owes towards the court which has been imposed upon him by an Act of Parliament? I wonder whether that point has really been thought through and whether the advice of the Law Society of Scotland has been sought on those provisions and, if so, what it is. Perhaps we can return to this point on another occasion when the Lord Advocate has thought it through a little further.

§ Lord Rodger of Earlsferry
I commend Amendment No. 21 to the Committee.
On Question, amendment agreed to.
[Amendments Nos. 22 to 25 not moved.]

§ Lord Rodger of Earlsferry
moved Amendment No. 26: Page 6, line 42, leave out ("agree them") and insert ("secure the other party's agreement to them; and the other party shall take all reasonable steps to reach such agreement. (1A) Subsection (1) above shall not apply in relation to proceedings against an accused who is not legally represented.").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.

§ Lord Macaulay of Bragar
moved Amendment No. 27: Page 7, line 4, at end insert: ("() It shall be the duty of the prosecutor to make available to the accused all material relating to the charge or charges against the accused in the possession of the prosecutor; and such material shall include all statements, reports and productions in the possession of the prosecutor whether he intends to found upon them in the prosecution of the accused or not.").
The noble Lord said: This is the second time that this amendment has appeared in the House. It was put before your Lordships in one of our previous debates on criminal proceedings in 1993. It is interesting to note 378 that the Government are anxious to secure as much agreement as possible as early as possible between the accused and the prosecutor. It is not reasonable to ask accused persons to agree material unless they know what the evidence in the case is. The purpose of the amendment is to specify that, It shall be the duty of the prosecutor to make available to the accused all material relating to the charge or charges against the accused in the possession of the prosecutor … whether he intends to found upon them in the course of a prosecution. Everybody shakes their heads and says that that will result in the production of lorry-loads of material. To that I say, "So what?" If the state is launching a prosecution against an individual, that individual is just as entitled to the information upon which the charge may be based as the prosecutor. It is for the prosecutor to decide what use he wants to make of it. Equally, the defence should be allowed to see everything that has been recovered in the course of an inquiry so that it can look at the evidence that will be presented to the court to see whether the prosecutor has in his possession matters that are of value to the defence, but in which the prosecution is not interested. Unfortunately, in the past two years there have been cases in which the ground for appeal was that material in the possession of the Crown was not disclosed to the defence.
One of the main objectives behind the amendment is to ensure that such an appeal cannot be launched at a later stage in the proceedings—whether that be one year, 10 years or 20 years after the conviction. The defence should not be able to say to the Court of Appeal that the Crown had such material in its possession but did not tell the defence about it. Whether the Crown deliberately withheld the evidence is neither here not there; the real issue is that any evidence is evidence in the broad sense of the word and it matters not to whom it relates. Therefore, the prosecutor and the defence should have equal access to all evidence and an equal opportunity to use the material that is in the possession of the prosecutor for the purposes of the trial.
I believe that it was a Government Minister in the 1980s who said, "You cannot put a price on justice", and when the party in government changes, we shall have to look at that point. Those words may be true, but you cannot put a price on facts. If certain facts have to be determined in a case, they should be determined in the light of all the evidence that is available as a result of the state's investigation and should not be withheld from the defence for any reason whatsoever apart from where an immunity certificate is involved. However, I shall not go into that now because it is a delicate area and we have enough to contend with in this Bill without that. Accordingly, I beg to move.

§ Lord Rodger of Earlsferry
I cannot accept the amendment. As the noble Lord will be aware, as far as prosecutors in Scotland are concerned, the overriding principle is, and has always been, that the Crown must always act in the interests of justice. As part of that general approach, all members of the procurator fiscal service are reminded that they must disclose to the defence any information which supports the defence case even though it may be damaging to the Crown's 379 case. They are also told that the overall aim is to try to ensure that the true facts of any case are laid before the judge or the jury. That is the fundamental starting point.
Many members of the Committee will be aware that there have been cases in England and Wales in recent years in which critical issues in relation to disclosure have arisen and where rather wide-ranging doctrines of disclosure have been laid down. I do not comment on the position in England and Wales except to say that it is common knowledge that that has proved to be a particularly difficult and burdensome matter for the police. In addition, it is not always clear that the best way to advance the interests of justice is for the defence to be, in effect, snowed under with documents.
That is an important point to remember in the context of a system such as ours which prides itself, and rightly prides itself, on the idea of getting people to trial within 110 days. We are dealing with a very different system. We are also dealing with a different system in that it is most important to remember that, whereas in England and Wales the defence does not have the right to investigate a case by going and precognoscing the witnesses for the Crown, that has always been the practice in Scotland. The defence can investigate the case itself. The defence is therefore in a position to see the witnesses, to deduce what is the case, and to investigate it on its own behalf.
The background in Scotland is different from that in England in that situation, and a sweeping measure of this kind does not seem to me to be necessary. For example if the amendment is taken literally, then all material relating to the charge or charges, however irrelevant or obviously ill-founded it might be, would have to be made available. All sorts of pieces of paper would have to be made available. In such a situation, agents and counsel would rightly feel under a duty to go through all the material. That would lead inevitably to the kind of delays which are already happening in England because of the wide disclosure system. The basic approach of the amendment is misconceived. It does not address the issues as they arise in Scotland, and I cannot accept it.

§ Lord McCluskey
I support the Lord Advocate's position in this matter. At an earlier stage, in a slightly different context, I explained that I retained my faith in the Lord Advocate's Office as being a Ministry of Justice. That is important, and I was especially interested when a case came before me recently which illustrated a further difference between England and Scotland in that regard. In that case counsel came forward with a specification of documents, essentially to recover everything that the Crown had obtained in the course of the investigation. I refused to allow that to be granted. In the course of the discussion, the Crown declined to support a dictum by another judge in another case in which the court seemed to be saying that the Crown had a right to conceal matters from the defence. That may be going too far, but that is how it was understood in the profession.
The Crown still has its heart in the right place in that regard. The word "heart" comes to mind because I believe that the English case related to Judith Hart. Was 380 it Judith Hart? I cannot remember. The English case was the one that horrified me: the idea that tea chests full of documents had to be delivered to the defence at enormous public cost -money being diverted from other social and legal services—then the tea chests had to be analysed just in case there was something there.
We are fortunate in Scotland in that we have speedy trials, and we have a Crown Office that does the job thoroughly. I am happy to support the position of the Lord Advocate in this matter.

§ Lord Macaulay of Bragar
I was interested to hear the contributions made by the noble and learned Lord the Lord Advocate and the noble and learned Lord, Lord McCluskey. I did not find them convincing. I am not interested in whether the Lord Advocate—I use the term broadly, not with reference to the noble and learned Lord the Lord Advocate himself—or the Crown Office think that something discovered in the course of an inquiry is relevant or not, or whether it is ill founded. That is for the defence to decide. That is why the amendment is carefully worded. It does not envisage what the noble and learned Lord described: that a solicitor will come along and pick up a couple of tea chests full of copy productions, take them along to his office and spend a couple of weeks going through them.
The only obligation on the prosecutor is to make such material available. I can clearly remember a fraud case in which I was involved. It was only after a great battle with the Crown Office that we managed to obtain access to a number of papers and files. The Crown Office had them but we could not see them. I cannot remember whether seeing them was of any advantage—it may not have been. However, a great deal of time was taken up in trying to persuade the Crown Office at least to let us see the files. Only after a long battle were we allowed access to the documents. I cannot understand the objection that is raised.
No one will be snowed under with documents. We ask only that the cloud of secrecy is removed from criminal investigations in Scotland. The accused or his representatives should be allowed to see the evidence and the background to it just as much as the prosecutor. After all, the state brings the prosecution and there is no reason why the individual, who is having a case brought against him by the state, should not have access to state documents.
I understand that in some continental countries—for instance, in Sweden—one can walk down to the procurator's office and ask to see the file on a case, even that in respect of a murder. One can read the statements and do whatever one likes. At one time, the press were free to use the statements in the procurator's file. I do not encourage that, but perhaps the amendment will encourage openness between the Crown and the accused and will encourage the defence to agree the matters to which the Bill and earlier amendments relate.
Obviously I shall get nowhere with the amendment tonight. I shall note with interest what the noble and learned Lord said and in the meantime I beg leave to withdraw the amendment. 381 Amendment, by leave, withdrawn.

§ Lord Rodger of Earlsferry
moved Amendment No. 28: Page 7, line 7, leave out from ("(1)") to (" and") in line 10 and insert ("Subject to subsection (1A) below, the prosecutor and the accused shall each identify any facts which are facts—

(a) which he would, apart from this section, be seeking to prove;

(b) which he considers unlikely to be disputed by the other party; and

(c) in proof of which he does not wish to lead oral evidence,").

The noble and learned Lord said: I have already spoken to Amendments Nos. 28 and 29. I beg to move.
On Question, amendment agreed to.

§ Lord Rodger of Earlsferry
moved Amendment No. 29: Page 7, line 13, leave out ("agree them") and insert ("secure the other party's agreement to them; and the other party shall take all reasonable steps to reach such agreement. (1A) Subsection (1) above shall not apply in relation to proceedings against an accused who is not legally represented.").
On Question, amendment agreed to.

§ Lord McCluskey
moved Amendment No. 30: Leave out Clause 11 and insert the following new clause: ("Facts not to be disputed at trial .—(1) This section applies where in any criminal proceedings (whether they are proceedings on indictment or summary proceedings)—

(a) it appears to the prosecutor that there are facts which are or may be uncontroversial; and

(b) the prosecutor has—

(i) specified those facts, in a statement signed by him or on his behalf, as facts which, unless they are challenged under this section, shall be deemed to have been conclusively proved under subsection (2) below; and

(ii) served a copy of the statement on the accused not less than 14 days before the trial.

(2) Where this section applies, then, unless the accused or, if there are two or more co-accused, at least one of the accused has served notice on the prosecutor in accordance with subsection (3) below that he challenges any matter contained in the statement, the facts so far as unchallenged shall be deemed to have been conclusively proved. (3) A notice under subsection (2) above shall be served not less than 6 days before the trial or by such later time as the court may in special circumstances allow, being not later than the time when the trial commences. (4) Subsection (2) above shall not preclude a party from leading evidence of circumstances relevant to, or other evidence in explanation of, any matter contained in the statement concerned. (5) Notwithstanding the foregoing provisions of this section, the presiding judge—

(a) may, on the motion of any party made within the relevant period, in special circumstances; or

(b) shall, on the joint motion of the parties made within the relevant period,

direct that the service of a copy of a statement on the accused under this section shall be of no effect in relation to such matter contained in the statement as is specified in the direction. (6) In subsection (5) above "the relevant period" means the period beginning with the commencement of the trial and ending with the commencement, in the case of— 382

(a) proceedings on indictment, of the speeches to the jury;

(b) summary proceedings, of the address by the prosecutor to the judge on the evidence.

(7) For the purposes of subsections (3) and (6) above, a trial commences, in the case of—

(a) proceedings on indictment, when the oath is administered to the jury;

(b) summary proceedings, when the first witness is sworn.

(8) Where the accused has served a notice under this section or, if there are two or more co-accused, at least one of the accused has served such a notice, then, the fact of the service of the copy of the statement under subsection (1) above so far as it relates to the matter challenged, or of the service of that notice, shall not be referred to, if the proceedings are—

(a) on indictment, in the presence of the jury before the verdict is returned; or

(b) summary proceedings, before the judge is satisfied that the charge concerned is proved.

(9) A statement mentioned in subsection (1) above shall be in such form as may be prescribed by Act of Adjournal. (10) A copy of a statement required to be served on the accused, or a notice required to be served on the prosecutor, under this section may either be personally served on the accused or the prosecutor (as the case may be) or sent to him by registered post or by the recorded delivery service; and a written execution purporting to be signed by the person who served such copy or notice, together with, where appropriate, a post office receipt for the relevant registered or recorded delivery letter shall be sufficient evidence of such service. (11) This section shall not apply in relation to proceedings commenced before the coming into force of this section; and for the purposes of this subsection solemn proceedings are commenced when the indictment is served.").
The noble and learned Lord said: I can deal with the amendment briefly, although it is the longest in the Marshalled List, because as they say in California, "You don't have to be a rocket scientist to work out where this came from". It is lifted almost straight from the proposed Clause 7 of the Criminal Evidence Bill contained in the Scottish Law Commission Report. I made only one important amendment. In subsection (1) (a) of the proposed new clause I have added the words, "or may be" in order to make the point that, under the heading "Facts not to be disputed at the trial", if it appears to the prosecutor that there are facts which are or may be uncontroversial the prosecutor has this obligation.
I need not deal with the amendment at great length because I have already dealt with the general matters of principle. However, in order to assist the noble and learned Lord the Lord Advocate, the Minister, and their respective staffs—I believe that this falls within the jurisdiction of the Lord Advocate—I draw attention to what I said in respect of the Law Reform (Miscellaneous Provisions) (Scotland) Bill on 17th May, 1990—reported at col. 425 of the Official Report. I had intended to refer to paragraphs 4.1 to 4.26 of the Scottish Law Commission Report. However, we also have paragraph 36.04 of the Thomson Committee report, which is interesting to note. The question at issue was who should have the responsibility for taking initiative in reaching agreement. The conclusion was: We therefore recommend that the initiative for reaching agreement on these matters should lie with the Crown".
I wish to repeat what I have said many times; that in practical terms the Crown has an experienced and competent fiscal service. In Scotland it is served by a 383 diligent police force which does the Lord Advocate's bidding as it is required to do by statute. Therefore, all the facilities exist for the prosecution to establish the facts. Furthermore, as the burden of proof rests on the prosecution from start to finish, the prosecution knows what facts must be established. Accordingly, it is right for many reasons —and these are the principal reasons—that the initiative should lie with the prosecution.
On the other side of the fence, one has a legally-aided solicitor whose budget is substantially smaller, whose facilities are negligible compared with those of the Crown and whose diary is likely to be full of many other cases. Therefore, it is right that there should not be an equality of obligation; the duty should lie on the Crown. For those reasons, I beg to move.

§ Lord Rodger of Earlsferry
In speaking to the amendment, the noble and learned Lord really referred to some of the things that he had already said this evening. In the vast majority of cases, I accept, in practical terms, that the prosecution will have the interest in operating a system of agreement. As the noble and learned Lord said, they will have the burden of proof and therefore they will be seeking to establish matters.
Clause 14 provides the machinery for uncontroversial evidence in the Bill. Of course, as we have already seen, the duty, such as it is, lies in Clause 11: but Clause 14 is the one that gives the power. We say that it is useful for the power in Clause 14 to be available to the defence where they wish to use it. If, for example, they have some matter in relation to the identification of a car or something like that which they think the prosecution would not dispute and which it would be useful to get agreed, we believe that it is desirable that the machinery should be available to them as well as the prosecutor. For that reason, we think that such a provision is indeed desirable.
So far as concerns the detail of the clause, I can say on behalf of the Government that we are happy to look through the noble and learned Lord's proposed new clause to ascertain whether we can learn from the language that he has used, as opposed to seeing whether any improvements can be made to the provision.
In the light of the approach that we have taken to the matter of whether the defence should be able to use the machinery—namely, that we believe that such machinery should be available to them—we cannot accept a version which limits that availability to matters for the prosecution as the amendment suggests.

§ Lord McCluskey
I do not propose to press the matter at this stage. However, the noble and learned Lord the Lord Advocate mentioned making the machinery available. There is no problem about the Government's approach to the matter as regards having the machinery available to the defence. The defence are always able to approach the Crown and say, "Look, we are willing to agree this, and we are willing to agree that". The question is: who has the initiative? The machinery is designed to impose an equal burden or opportunity on both sides, although they do not have 384 equal resources. I hope that the noble and learned Lord will look very carefully at the matter to see whether he has made a great error in imposing in this group of clauses an equality of burden on the two sides. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11, as amended, agreed to.
Clause 12 [First and preliminary diets in solemn proceedings]:

§ Lord McCluskey
moved Amendment No. 31: Page 7, line 27, after ("shall") insert ("seek to").
The noble and learned Lord said: I now turn to a group of amendments starting with Amendment No. 31 and continuing through to Amendment No. 38. The amendments which are tabled in my name deal with a number of related matters. Amendments Nos. 31 and 37 both attempt to insert the words "seek to" into Clause 12. If one turns to line 27 of page 7 of the Bill, it will be seen that the purpose of the amendments is to avoid imposing on the court the duty to do something which it may be impossible for it to do. As presently worded, the provision reads, "the court shall ascertain".
I have already drawn attention to the fact that the accused cannot be compelled to take part in that business. There is no sanction and I hope that I shall not be told that it is unethical to decline to co-operate. Accordingly, a duty is imposed upon the court to ascertain. The logic of my amendment is that the provision would simply say that the court, "shall seek to ascertain". That is the sensible way to put it. It reflects the reality of the situation.
Amendment No. 36 is a related amendment. Its wording spells out all that one needs to know; namely, that, the accused shall not be obliged to answer any such question and if he does not answer that shall not be commented upon by the judge or the prosecutor at any later stage of the proceedings". That is to negative the possibility of an informal sanction; in other words, people alleging at some later stage of the proceedings that someone could have answered but did not do so.
These are all pinpricks into the right of silence at this stage in the proceedings. Those are the matters to which I wish to draw attention. For the moment, I shall content myself with moving Amendment No. 31. I beg to move.

§ Lord Fraser of Carmyllie
This clause, as I think the noble and learned Lord appreciates, is an important part of our package of reforms of pre-trial procedure. It places a clear responsibility on the court, at a first or preliminary diet, to make a judgment about the likelihood of a case going to trial.
These amendments, one for first diets and the other for preliminary diets, would, as we see it, weaken this responsibility by requiring the court only to "seek to" ascertain whether the trial is likely to proceed on time. This would allow the court merely to make an attempt to determine if the case is likely to proceed on time but not in the end reach any conclusion. In that event, the important new duties placed on the court by the new subsections (8) and (9) and (1C) and (1D) of Sections 75A and 337A of the 1975 Act by Clauses 12 and 13 385 respectively would be rendered nugatory. The purpose of Clauses 12 and 13 is to ensure that cases are fully prepared before the trial diet. I think it is clear enough that the purpose behind that is to reduce as much as possible the number of occasions when the parties and all the witnesses turn up for a trial which does not take place. I do not imagine there is anyone who does not think that is a wholly desirable objective; it is a matter of whether we are going about this in quite the right way.
While I understand the noble and learned Lord's concern that in some circumstances it may be a difficult task for him to ascertain whether a case is likely to proceed, it is nevertheless important, if there is to be any success in our pre-trial procedures, that the court should reach some judgment about that probability. If a court fails to do that, we will find ourselves muddling forward in the way that has proved so unsatisfactory in the past. In short, we believe that what the noble and learned Lord proposes waters this matter down a little too much. However, I understand his anxiety about the extent of the existing duty. I shall have a look at this matter again so long as he does not understand by that that I am indicating I shall necessarily return with an amendment on it. However, I have heard his argument.
The noble and learned Lord also mentioned Amendments Nos. 36 and 38. Although they are grouped separately I do not know whether he wishes me to deal with them now or later.

Lord McCloskey
I shall deal with the point that has been made. It may be that the noble and learned Lord the Lord Advocate will consider including some such phrase as "so far as reasonably practicable" so that the court is not laid upon an absolute duty to ascertain something which it may not be able to ascertain. That is one suggestion which the noble and learned Lord need not respond to tonight. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Lord McCloskey
had given notice of his intention to move Amendment No. 32: Page 7, leave out lines 32 to 34.
The noble and learned Lord said: This is a consequential amendment and I shall not move it. However, I should draw attention to the fact that the whole character of Section 75A is such that the judge is made very much interventionist. I hope that has been carefully thought through. It is a matter in a sense beyond my ken because I am not involved in summary cases and we have not had this system, or anything like it, so far in the High Court. I shall not move the amendment.
[Amendment No. 32 not moved.]

§ Lord Fraser of Carmyllie
moved Amendments Nos. 33 and 34: Page 8, line 1, leave out ("67") and insert ("76"). Page 8, line 2, after ("Act;") insert: 386 ("() that there are documents the truth of the contents of which ought in his view to be admitted, or that there is any other matter which in his view ought to be agreed;").
The noble and learned Lord said: In moving Amendments Nos. 33 and 34 I shall speak also to Amendment No. 39. The Committee will be pleased to know that these are technical in nature, correcting minor errors in the Bill. I beg to move.
On Question, amendments agreed to.

§ Lord Macaulay of Bragar
moved Amendment No. 35: Page 8, line 6, after ("accused") insert ("or where he is represented, his solicitor").
The noble Lord said: This is a minor amendment. It has been put forward by the Law Society of Scotland, not because of any self-interest in relation to the income of solicitors but as a safeguard for the accused in the light of the matters which an accused person may have to agree with the prosecutor. It seems proper that if the accused is represented then he should have an opportunity to discuss matters with his solicitor before he reaches any agreement with the prosecutor. There are technical and legal matters contained in this particular clause of the Bill, and it is in the interests of justice to the accused that, if he has a solicitor, he should have access to his solicitor to discuss these matters. I beg to move.

§ Lord Fraser of Carmyllie
I do not think that there is anything between us on this matter. The amendment requires that the procedure for the new mandatory diets provided for in Clause 12 be amended to state explicitly that the court may ask questions of the accused, if the accused is represented, through his solicitor. The intention of the clause is certainly to permit questioning of the accused through his solicitor. That is not stated explicitly in the clause because in our view it does not need to be. That is because such questioning would be permitted by virtue of the ordinary law of agency. It would therefore be inappropriate to make express provision for solicitors, particularly given that there is another relevant category of agency; namely advocates.
I hope that with that brief reassurance the noble Lord will feel able to withdraw the amendment.

§ Lord Macaulay of Bragar
Perhaps the amendment should have read "his representative" rather than "his solicitor". However, having heard what the noble and learned Lord had to say about the matter I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 36 to 38 not moved.]

§ Lord Fraser of Carmyllie
moved Amendment No. 39: Page 9, leave out lines 13 to 16. The noble and learned Lord said: In moving Amendments Nos. 33 and 34 I spoke to Amendment No. 39. I beg to move.
On Question, amendment agreed to.
Clause 12, as amended, agreed to.

§ Lord McCluskey
moved Amendment No. 40: After Clause 12, insert the following new clause: 387 ("Calculation of specified period: effect of detention In section 101 of the 1975 Act after subsection (6) there shall be inserted— (7) The running of the 12 months period specified in subsection (1) of this section shall be deemed to be interrupted by the detention of the accused on remand in any other part of the United Kingdom and that period shall be deemed not to run during any period while the accused is detained on remand in any other part of the United Kingdom in a prison, borstal institution, remand centre, detention centre or remand home.".").
The noble and learned Lord said: At Second Reading I mentioned the Rowan case. That will be found at col. 567 of Hansard for 29th November 1994. I do not find it necessary to add anything to what I said then except that there has to be some legislative solution. It is better that it should be delivered swiftly rather than postponed.
The Minister, the noble and learned Lord, Lord Fraser of Carmyllie, wrote to me on 8th December, 1994 saying: I agree that the present position is not satisfactory. But in seeking to remedy it we must, I believe, take account of the effect of transfer on proceedings in England and Wales as well as Scotland". He has been in touch with the Home Office to invite officials to consider what is to be done.
In essence, what is being said is that we cannot legislate to remove this Scottish problem until the English Home Office decides to stir itself and do something about it. It is not for me to comment on the mysteries of government in any way, but I have sought to provide an internal Scottish solution to the problem. It is one which simply puts into statute a statutory interruption of the running of the 12-month period specified in Section 101(1).
I do not like to do this. I am strongly in favour, as I am sure that Ministers are, of our system of time checks. On the other hand, we have to recognise that when that situation occurs, we either allow the time to run out and the person gets off altogether—he is not brought to trial, simply because he is remanded in custody in England —or we have to go to the court and seek an extension on cause shown. That is an expensive operation. It may well not be granted in particular cases and we could therefore again lose a prosecution.
The third solution is something of this kind. I do not suppose that the amendment is technically perfect. But I hope that if not tonight, at least between now and the final stages of the Bill in this House, the Government will consider some solution along those lines. I beg to move.

§ Lord Rodger of Earlsferry
I am grateful to the noble and learned Lord for bringing forward the amendment. As he has explained the matter, I do not need to go into it in detail. The problem arises where someone in Scotland is due to come for trial but is in custody in England. In the legislation as framed at present, it is not possible for that person to be released for trial in Scotland. Since relevant time limits run in Scotland, the result is that there is a danger that those time limits may be infringed with the result that trial in Scotland of offences in Scotland would not be possible. That is clearly undesirable. Although much less likely, 388 there is certainly potential for a case to occur the other way round: for proceedings to be debarred in England by virtue of a similar situation with someone in custody in Scotland.
I do not believe that the matter has arisen simply due to a legislative oversight. I think that the position was regarded as being more complicated and difficult to resolve than those which were dealt with by the Criminal Justice Act 1961. As the noble and learned Lord indicated, the position has been the subject of discussion since the time of the Rowan case last year which thrust the matter once more to our attention.
I believe that the noble and learned Lord is right in envisaging his solution as being somewhat second best. However, I am grateful to him for putting it forward. Until a better solution can be found, for the reasons that he has given I believe that his proposal is desirable and acceptable. As the noble and learned Lord said, there are some matters of detail which have to be considered. But I am happy to accept the amendment in principle and undertake to bring an amendment back which deals with any technicalities.

§ Lord McCluskey
On that happy note, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 [Intermediate diet in summary proceedings]:

§ Lord Fraser of Carmyllie
moved Amendment No. 41: Page 9, line 29, leave out ("in paragraph (a), the word "and"") and insert ("the word "and" immediately following paragraph (a)").
The noble and learned Lord said: In speaking to Amendment No. 41, perhaps I might speak also to Amendment No. 187. These are amendments to correct a minor error which occurred at the drafting stage of the Bill. I beg to move.
On Question, amendment agreed to.
Clause 13, as amended, agreed to.
Clause 14 [Uncontroversial evidence]:

§ Lord Macaulay of Bragar
moved Amendment No. 42: Page 10, line 14, after ("proceedings") insert ("in which the accused is legally represented").
The noble Lord said: This is a minor amendment. Amendments Nos. 45 to 47, 55 to 57, and 60 to 74 are a series of amendments. I do not wish to take up the Committee's time, so I shall not move each amendment separately. The amendments came from the Law Society of Scotland which considers that the timescale is too short. Perhaps the Government will examine the timescale involved in those parts of the Bill. I beg to move Amendment No. 42.

§ Lord Rodger of Earlsferry
I may be wrong but I rather thought that Amendment No. 42 was directed at a slightly different point and not time limits. I thought that it dealt with whether or not someone required to be represented in order to take advantage of the procedure in Clause 14. 389 We consider that that procedure should be available to people who are unrepresented, just as it is available for those who are represented. The Scottish Law Commission examined the question as to whether people who were unrepresented could make admissions in terms of what they proposed as their method of proving undisputed facts. The commission concluded that in principle it was proper for that to be available and it stated: In principle it may seem inconsistent to impose a requirement of legal representation in any procedure for formal admission of facts when an unrepresented accused is entitled to plead guilty and thus make the most comprehensive admission of all". As a matter of principle, that is correct. Nevertheless, one can see that when someone is unrepresented special circumstances may arise. The Committee will have noticed that under Clause 14 (3) the court may allow a late service of the relevant notice in special circumstances.
As a further safeguard, under Clause 14 (6), the court, may, on the application of any party, where it is satisfied that there are special circumstances … direct that the presumptions … shall not apply". We believe that that provides the necessary safeguards so that even where someone is not represented it is proper for that machinery to be used.
The noble Lord referred in broad outline to many amendments which the Law Society of Scotland proposed in connection with time limits. That matter has been carefully considered and it seems to us that although the time limits are demanding, nevertheless they can be fulfilled. The whole object is to ensure that so far as possible matters are considered promptly by both sides and that relevant agreements are reached. Therefore, we think that the time limits are appropriate.

§ Lord Macaulay of Bragar
In making the observations that I did in formally moving Amendment No. 42, I was trying to be helpful to the Committee rather than taking up its time. A basic principle is involved and the noble and learned Lord has answered the question raised by the amendments. Again, the answer will no doubt be noted by the Law Society of Scotland which will have an opportunity to come back at Report stage if it wishes. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 to 47 not moved.]
Clause 14 agreed to.

§ Lord Macaulay of Bragar
moved Amendment No. 48: Page 11, line 11, leave out ("shall") and insert ("may"). The noble Lord said: This is one amendment that I did not mention in my "omnibus" approach to the Bill a short time ago. The amendment inserts the word "may" instead of "shall" in Clause 15. Again, the proposal comes from the Law Society. The effect of the amendment would be to allow discretion on the part of 390 the court as to whether evidence of biological material shall be admissible notwithstanding that neither the material nor a sample is lodged in court.
The rationale behind the amendment is that it is always up to the court to decide on the question of fairness. Accordingly, putting in the word "may" instead of "shall" would build into the statute the question of judicial discretion rather than a mandatory obligation upon the court by the use of the word "shall". "May" leaves it open to the court to exercise its discretion. I beg to move.

§ Lord Rodger of Earlsferry
The general principle behind this provision and the reason for bringing it forward is that there are particular difficulties associated with evidence in respect of biological material. The material itself may have no visual characteristics which would enable it to be distinguished from other material of similar appearance. It may in particular—this is particularly true nowadays—be a health hazard, or in some other cases the whole sample may be used up in the process of analysis. What is important about a biological sample is not the material itself but its chemical characteristics and composition.
There have been cases in which certain judges have sought to exclude evidence about biological material because the material itself has not been produced. It has not been possible to have this matter dealt with by the appeal court; therefore, the Crown has always been placed in a position of uncertainty as to whether or not the material is required, whether or not it has to be retained, or whether or not it has to be brought to court or otherwise made available.
In these circumstances, the clause seeks to put the matter beyond doubt and say that the court should not be able to refuse to consider evidence concerning biological material solely on the basis that such material is not produced. The trouble if the word "may" were introduced is that one would in effect be going back to square one and leaving the position uncertain. It is in order to have certainty that we have set out the provision in the way we have. It seems to us that the matter is appropriately dealt with in this way. Noble Lords will note that it is restricted to evidence as to the characteristics and composition of any biological material. The production of the material itself, just visually for the jury in that situation, does not have any relevance: it is the analysis that will be of importance. For that reason we suggest that this is an appropriate provision.

§ Lord Macaulay of Bragar
I am grateful to the noble and learned Lord the Lord Advocate for that explanation. The point does not rise directly out of the amendment, but I wonder if he will consider between now and Report stage whether there should be some built-in provision that, where it is anticipated that the material will be destroyed in the course of analysis, the defence should be informed of that fact so that the defence can be represented at the actual analysis of the material. It has happened in one or two cases. Certainly, in a case in which I was involved the production disappeared in the course of analysis and there was nothing left for the court to consider. The jury was left 391 merely with the scientist's evidence, for that was what it was. If I remember rightly, it was a canister of CS gas. The policeman, who did not take kindly to my cross-examination, invited me to attend the analysis of another production he had. It was an atom bomb. He said I was very welcome to attend the destruction of the material. That was perhaps taking things a bit far in the heat of the courtroom.
In the meantime, having made these probably useless observations at this time of night, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 agreed to.
Clause 16 [Routine evidence]:
[Amendments Nos. 49 to 51 not moved.]
Clause 16 agreed to.
Clause 17 agreed to.
Clause 18 [Evidence of criminal record and character of accused]:

§ The Deputy Chairman of Committees
Before calling Amendment No. 52, I must tell the Committee that if the amendment is agreed to, I cannot call Amendments Nos. 53 and 54.

§ Lord McCluskey
moved Amendment No. 52: Page 13, line 23, leave out from ("prosecution") to end of line 24.
The noble and learned Lord said: We have a whole series of amendments which relate to Clause 18. The Committee will observe that I have given notice of my intention to oppose the Question that Clause 18 stand part of the Bill. It will be appreciated by the noble and learned Lord the Lord Advocate that one or two of the amendments are of a technical character and I do not propose to take up the time of the Committee with them. I have brought them to the attention of the noble and learned Lord the Lord Advocate and his draftsman and they can consider whether there is any merit in them.
The amendments I have tabled for page 13, line 23, of the Bill raise the point of principle I want to make. It is that in this country, both south of the Border and in Scotland, previous convictions of an accused person are relevant only in so far as they bear upon the credibility, reliability and character of that person as a witness. I understand that that has always been the basic principle in Scots law.
The reason why I seek in Amendment No. 54 at page 13, line 24, to leave out "complainer" and insert "person" is that a person who is deceased cannot be a witness. There are other suggestions such as that there might be a deceased complainer, which is not a concept that makes much sense to me.
A giant step is being taken here away from established principle. I want to know the justification for it. I want to know that from the noble and learned Lord the Lord Advocate who proposed this provision and I want to know what the Scottish Law Commission says about it. Have the judges been consulted?
The character of an accused person is not a relevant consideration in determining whether or not he did the acts with which he is charged as criminal offences. That 392 has always been so. There has been an exception to that principle: namely, if he attacks the credibility and reliability of witnesses on the ground of their character and seeks to illustrate it by reference to their previous convictions. The principle then is that what is sauce for the goose is sauce for the gander. If he says that witnesses are not to be believed because they have previous convictions, then, when he himself comes to give evidence, the prosecutor is entitled to say, "You are not to be believed either because you, too, have previous convictions."
So he deliberately puts his character in issue. It makes perfectly good sense if he gives evidence because his character and quality as a witness should be compared with the character and quality of other witnesses on an equal footing. But if he is not a witness—this is at the heart of the particular clause—what possible relevance can his previous convictions have to the determination of whether or not he committed the acts. His credibility as a witness is not in issue. What is the possible relevance of it?
The answer may be that nowadays in certain circumstances an accused person, without going into the witness box, can in effect put evidence before the jury, through judicial examination, a voluntary statement or in statements made to the police at the time of the examination. If one wants to meet that situation, then let us confine the exception to the principle by restricting it to that situation.
I am very concerned that we are taking a real step—not just a small step—towards the situation that is becoming common in the United States, the so-called "truth in evidence provisions" I mentioned earlier; namely, that the prosecution puts before the jury in a criminal trial the previous convictions of the accused person, his general character, his relations with his girl friend, his relations with his children, if any, his truancy rate at school and everything else. The view is that the whole man must be presented to the jury in determining whether or not he committed a specific criminal act. That is a disastrous and unprincipled step and this too is an unprincipled step to take.
I ask the Committee to consider carefully whether the Government should be encouraged to take this step. I urge the Lord Advocate to consider what I say. Will he accept that he is making a substantial change in the law in this regard? If so, can he explain the need for it and what support he has for it from independent bodies? I beg to move.

§ Lord Macaulay of Bragar
I support to some extent the observations made by the noble and learned Lord, Lord McCluskey, on this clause of the Bill. I tabled a series of amendments on this clause which I do not intend to move; I want to take a closer look at it, having heard what the noble and learned Lord said.
One phrase puzzles me. It occurs in what will be new Section 141ZA(1) (b), which reads, but evidence is led by the defence, or the defence asks questions of a witness for the prosecution … with a view to impugning the character of the prosecutor, any witness for the prosecution or any complainer who is deceased". 393 Does that mean a personal attack upon the advocate depute or the procurator fiscal conducting the trial? I read the notes on clauses which the noble and learned Lord kindly sent to me and I know that it arises in those notes on clauses. However, I have difficulty in understanding what it means. That is one reason why my amendments to Clause 18 will be delayed until a later stage of the proceedings and I have heard what the noble and learned Lord the Lord Advocate says.
As I said, to some extent I support what was said by the noble and learned Lord, Lord McCluskey. I can see the reasons behind the amendment in that an accused person may try to destroy the Crown case by a backdoor method and by not giving evidence himself. If I understand the import of the new clause, I believe that that is what it is striking at. However, I shall listen with interest to what the noble and learned Lord the Lord Advocate says on this matter.

§ The Earl of Mar and Kellie
I support the amendment. I am concerned about the possibility of misuse of this clause allowing disclosure of a previous criminal record. As it stands, I do not believe that it will positively contribute to the decision-making process of the trial. No juror would find it helpful to know of the accused's previous record, bearing in mind the phrase, "Round up the usual suspects", which must be part of the tactics of an investigation. Scotland needs a guarantee of sound convictions.

§ Lord Rodger of Earlsferry
The noble and learned Lord, Lord McCluskey, produces a number of amendments which go to the drafting of specific matters. As I shall indicate in a moment, we shall certainly be looking at the drafting of this clause. But much more fundamentally, he raised the question of the matter of principle.
We see this provision as a logical development of the position which has obtained in our law for over a century. Section 160(2) of the Criminal Procedure (Scotland) Act 1975 is the current embodiment of a provision which goes back to Section 67 of the Criminal Procedure (Scotland) Act of 1887. By that subsection Parliament has provided, and I read short, that the prosecutor may lay evidence of the accused's previous convictions before the jury where the accused shall lead evidence to prove previous good character. That provision has nothing whatever to do with the situation under Section 141, to which the noble and learned Lord spoke, which arises where the accused gives evidence. Section 141(f) deals with the questions which an accused may be asked. That provides that he cannot be asked about previous convictions in broad terms unless he has fulfilled the qualifying conditions.
Section 160(2) has nothing to do with that but deals with the leading of evidence. The matters are quite distinct. That is not only plain on the face of the statute, but it is plain also from the fact that the provision came into our law in 1887, 11 years before the Criminal Evidence Act 1898 which first allowed accused persons to give evidence and which contained the original version of Section 141 for our law.
394 The provisions in Clause 18 which cover the leading of evidence with a view to establishing an accused's good character really do no more than re-enact what is already specifically covered by Section 160(2) of the 1975 Act. Indeed, it will be for consideration whether some consequential amendment of that section may be appropriate. All that we have done therefore is to build on that approach by adopting the general policy which is already enshrined in Section 141 and so allowing the prosecutor to lead evidence not only if the defence leads evidence or asks questions with a view to showing he is of good character, but also if he does so with a view to impugning the character of the prosecutor and so on.
The principle already enshrined in subsection (2) of Section 160 and developed in the Bill seems sound. It is surely wrong that if the defence decides, as a matter of tactics, to present the jury with a picture of the accused as a man of good character, or to bring out the faults of various witnesses or of a deceased person, the jury should be left with a one-sided picture. If they are to hear of these factors so far as regards one side, then at least in some cases it would seem appropriate that they should hear of them also so far as they affect the accused. Otherwise there is a risk that they are being asked to reach their verdict on a false and essentially distorted basis. I submit that that cannot be right.
Nonetheless I have listened very carefully to what has been said by your Lordships on these matters and I can perhaps indicate the position along these lines. The Government have already identified the need for an amendment to be introduced to cover the position of attacks on the character of deceased persons in Section 141 of the 1975 Act. That has been omitted by error and an amendment will have to be brought forward at the Report stage. Secondly, as noble Lords who are familiar with our system are aware, under the decision of the High Court in Leggat the prosecutor needs the permission of the court before evidence of character and so on can be adduced and questions can be asked under Section 141. It seems desirable that that matter, which is not dealt with specifically on the face of the statute at the moment, should be made clear and an amendment to that effect will be brought forward.
Given that that is the approach in Section 141, then it seems to us also that it would be proper to provide for the prosecutor to apply for permission before he may introduce evidence in the terms envisaged by Clause 18. At the present moment it is not required in terms of Section 160(2); but it seems to me that it will be proper that it should be so because, as experience has shown in connection with Section 141, there is a need for giving some measure of control in these matters so that there is no risk of what is designed to be something which will lead to a more just position, being abused. There will be a degree of control.
The noble Lord, Lord Macaulay, drew attention to the words regarding the attack on the character of the prosecutor. Those words have been taken from the corresponding provision in Section 141(IF). That particular subsection has been operating for a number of years. In the light of that explanation, and with the 395 undertaking that I shall be looking further into the drafting of these matters, I hope that the noble and learned Lord will be able to withdraw the amendment.

§ Lord Macaulay of Bragar
Before the noble and learned Lord sits down, perhaps I may refer to the fact that I raised a question as to what the phrase means. I am not sure whether he has given an answer. How will it be exercised in practice? What direction is given to procurators fiscal as to how to interpret the section? It is a rather puzzling piece of phraseology.

§ Lord Rodger of Earlsferry
As the noble Lord says, it is a slightly puzzling matter, and it is one which one might look at. One of the reasons why we copied the words from the present legislation is that it corresponds to the existing language. I have a suspicion that that language may to some extent owe its origins to the fact that this is a provision which is common for England and Scotland. It may have been more appropriate as regards prosecutors in England rather than Scotland. I am not quite sure about that matter. It is established legislative language.

§ Lord McCluskey
I am rather surprised at the Lord Advocate's answer to what I have said and his reference to Section 67 and Section 160(2) of the 1987 Act. I thought that I must have missed something. If he tended to take a logical development of Section 160(2), I am surprised that he should put the provision in beside Section 141. That is why I rushed to check the Notes on Clauses. I find no hint of Section 160(2). I believe that it is a rationalisation which has been put in at the last moment.
It appears to me that this is a very considerable step which is being taken. Section 160(2) dates back to 1987 and it says this: Nothing in this section shall prevent the prosecutor from laying before the jury evidence of previous convictions where … the accused shall lead evidence to prove previous good character". Obviously, if the accused says, "I lead evidence of my previous good character" the prosecution must be able to lead evidence of his previous convictions to show that he is not of previous good character. It has nothing whatever to do with what has been put in here. What has been put in beside Section 141 is something to blacken the accused simply because he attempts to show that the reliability of the evidence should be impugned on the basis that I have suggested.
I hope that the noble and learned Lord will think further about this matter. He said in terms that more amendments are coming. In particular, he has referred to the leave of the court. That might be an important safeguard. I shall keep my powder dry and withdraw this amendment.
Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Viscount St. Davids)
Before I call Amendment No. 53 I should point out that there is a mistake on the Marshalled List. It should read, Page 13, line 23, after "or" insert "of".

§ Lord McCluskey
had given notice of his intention to move Amendment No. 53: 396 Page 13, line 23, after ("prosecution") insert ("of"). The noble and learned Lord said: I shall shortly discover what this is about. We are on page 13, line 23. In the circumstances and this amendment being technical in character, I do not propose to move it.
[Amendment No. 53 not moved.]

§ Lord McCluskey
had given notice of his intention to moved Amendment No. 54: Page 13, line 24, leave out ("complainer") and insert ("person"). The noble and learned Lord said: This is a drafting point as I mentioned earlier. I do not propose to move the amendment.
[Amendment No. 54 not moved.]
[Amendments Nos. 55 to 57 not moved.]

§ Lord McCluskey
had given notice of his intention to move Amendments Nos. 58 and 59: Page 13, line 44, after ("but") insert ("shall if opposed, be heard"). Page 13, line 45, leave out ("and the public").
The noble and learned Lord said: These amendments deal with a slightly different point, but I shall not trouble your Lordships tonight with either because they will be caught up in the general review of this matter. Therefore, I do not propose to move them.
[Amendments Nos. 58 and 59 not moved.]
[Amendments Nos. 60 to 62 not moved.]
On Question, Whether Clause 18 shall stand part of the Bill?

§ Lord McCluskey
Having said all that I want to say at this stage on this matter, I do not propose at the moment to oppose the Question that the clause shall stand part of the Bill.
Clause 18 agreed to.
Clause 19 [Evidence as to controlled drugs and medicinal products]:

§ Lord Macaulay of Bragar
had given notice of his intention to move Amendment No. 63: Page 15, line 7, leave out ("14") and insert ("21").
The noble Lord said: We have already discussed the subject of this amendment—and of Amendments Nos. 64 to 74—at an earlier stage. I do not propose to move the amendment.
[Amendment No. 63 not moved.]
[Amendments Nos. 64 to 66 not moved.]
Clause 19 agreed to.
Clause 20 [Evidence as to time and place of video surveillance recordings]:
[Amendments Nos. 67 to 70 not moved.]
Clause 20 agreed to.
Clause 21 [Evidence in relation to fingerprints]:
[Amendments Nos. 71 to 74 not moved.]
Clause 21 agreed to.
Clause 22 [Evidence in relation to sexual offences]:

§ Lord Macaulay of Bragar
moved Amendment No. 75: Page 16, leave out lines 24 and 25.
397 The noble Lord said: This is a fairly short amendment which restates the offences which cannot be referred to in evidence. It merely restates the crimes involved, the point behind the amendment being that all the offences that are mentioned in Section 2C of the Incest and Related Offences (Scotland) Act 1986 should be included in the Bill by way of amendment. I beg to move.

§ Lord Rodger of Earlsferry
Amendments Nos. 75 and 76 relate to our amendment to the provisions relating to questioning on previous sexual history. A report on this matter has pointed out, among other things, that it would be desirable to include in the coverage of these matters the possible crime of clandestine injury to women. This amendment would remove that on the perceived basis that such a crime is not prosecuted nowadays. In fact, it is prosecuted and where it is prosecuted, it seems desirable that this provision should apply.
Amendment No. 76 seems to have merit because it may very well be appropriate to include those further offences under the umbrella of this provision. In the circumstances, I am happy to consider this amendment further. In the light of that undertaking, perhaps the noble Lord will withdraw his amendment.

§ Lord Macaulay of Bragar
I am grateful to the noble and learned Lord for that explanation. The argument which might have been presented, but which I do not present, is that the crime—I believe it is known only in Scotland as a clandestine injury to a woman—might be subsumed within an indecent assault charge, but I shall not go into the technicalities of that at this time of the evening. I am happy to take away the noble and learned Lord's's assurance and co-operation in respect of Amendment No. 76. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 76 not moved.]
Clause 22 agreed to.
Clauses 23 and 24 agreed to.

§ Lord McCluskey
moved Amendment No. 77: After Clause 24, insert the following new clause: 398 ("Disqualification of jurors: further provisions .—(1) In section 134 of the 1975 Act after the word "unfit" shall be inserted the words "or unable". (2) In section 134 of the 1975 Act after the second use of the word "juror" shall be inserted the words "or that by reason of his lateness, or unexplained absence or apparent inattention he should not continue to serve.".").
The noble and learned Lord said: The Lord Advocate will recognise what I am seeking to do here. The wording of existing Section 134 is rather restrictive. As judges we find from time to time—prosecutors and the defence will find the same—that there are circumstances for which one has not legislated, in a sense, but where it is not satisfactory that a juror should continue to serve as a juror.
I have put down a form of words to provide a peg upon which to hang the argument. Take, for instance, the example I gave earlier of the person who gets on to the jury and turns out to be unfit to serve by reason of the fact that he is dimwitted, does not know his way back to the court and so forth. If such a situation comes to light, one should be able to dispose of that person with the consent of all, or by the judge's ruling in the exercise of his discretion. All I am asking the Lord Advocate to do tonight is to say that he will look at this matter to see whether the old wording requires a little adjustment to allow us a bit more discretion in a simple matter of this kind. I beg to move.

§ Lord Rodger of Earlsferry
All of us who have to operate the section are aware that there can sometimes be difficulty in fitting precisely the circumstances into the wording as it is. On the basis that the noble and learned Lord has explained, I am happy to use this opportunity to look further at the matter and to come back on Report with an amendment, or with an explanation of why we think the position is satisfactory. I am happy to look at the matter if the noble and learned Lord will withdraw the amendment on this occasion.

§ Lord McCluskey
I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
Clause 25 agreed to.

The Earl of Lindsay
I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty minutes past ten o'clock.