Lords Sitting of 16 January 1995

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Lichfield.

Message from the Queen
The Earl of Airlie: My Lords, I have the honour to present to your Lordships a message from Her Majesty the Queen, signed by her own hand. The message reads as follows:
"I have received your Address and, relying on the wisdom of my Parliament, I desire that my prerogative in so far as it relates to the succession of peerages, should not stand in the way of consideration by Parliament, during the present Session, of any measure that may be introduced providing for an amendment of the law relating to the succession of legitimated persons to the dignities and titles of honour".

Royal Assent
2.37 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:
European Communities (Finance) Act;
British Waterways Act.

Education for the Unemployed: 21-hour Rule
Baroness David Baroness David asked Her Majesty's Government:
Whether they intend to change the 21-hour rule for education for the unemployed.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, the 21-hour rule is a special concession which enables income support claimants who are unemployed to spend their time usefully in part-time study while continuing their search for work. The Jobseekers Allowance White Paper, which was published on 24th October 1994, makes clear that the Government intend to continue broadly with the same approach and will be introducing appropriate arrangements within the jobseekers allowance.
Baroness David: My Lords, I am sorry that the Minister did not have something a bit more encouraging to say. Would he agree that in the light of the need to have many more highly trained and skilled people in the workforce it would be sensible to make the 21-hour rule very much more flexible so that full-time as well as
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part-time courses would be available to those students? Students ought to be eligible to benefit irrespective of the designation of a course. Is he aware that in some cases the decision whether a course should be full time or part time may be taken by a DSS official and that of course can lead to very bizarre and inconsistent decisions being taken across the country?
Lord Mackay of Ardbrecknish: My Lords, I am sorry the noble Baroness found my reply unsatisfactory. My reply, of course, restates the distinction between full-time students who are not eligible for benefit but are eligible for maintenance benefit, etc., inside the education system and people on income support who are unemployed and seeking work for whom obviously full-time studenthood would be inconsistent.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that unlike the noble Baroness many of us found his Answer wholly satisfactory?
Lord Mackay of Ardbrecknish: My Lords, I thought my Answer was wholly satisfactory also, so I am grateful to my noble friend. I reiterate the point that once the jobseekers allowance comes into place we would expect the situation to be broadly similar to that of today. Those people who are unemployed and seeking work but wish to undertake part-time study will continue to be eligible for support.
Lord Dormand of Easington: My Lords, as we are constantly being told about the improvement in the economy, is there not a parallel need, as indeed my noble friend has implied, for an increase in these educational opportunities? Further, will the Minister say something about the very special case concerning the long-term unemployed? Many people now have been unemployed for two years and these opportunities would be the first rung on the ladder for people in that position. There is a great need for that. Surely the Government can be a bit more flexible than they have shown themselves to be, particularly in the answers that we have been given so far?
Lord Mackay of Ardbrecknish: My Lords, I think the rule is flexible. I invite your Lordships to divide 21 hours a week by five days in the week. Your Lordships will see that this allows for up to four hours of study a day—indeed it is more than just study; it is supervised study—for someone to undertake and remain on unemployment benefit while seeking work. As regards the general question the noble Lord has asked me, there has been a huge increase in the opportunities in higher and further education over the lifetime of the Conservative Government since 1979 with unbelievably high percentages of people in further and higher education compared to what was conceived by the party opposite. So far as concerns unemployment, of course we have some way to go but we have made an excellent start in recent months with unemployment falling by half a million.
Baroness Seear: My Lords, I accept that, as the Minister said, there has been a considerable and very desirable increase in educational opportunities during the lifetime of this Government. However, will the noble

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Lord explain why it is not possible for someone who is seeking work also to be in full-time education? One does not have to be in full-time education from 9 o'clock in the morning until 6 o'clock at night. It is perfectly possible to apply for any job which may come up. Does the Minister agree that it is highly desirable that people should get the maximum amount of education and training while they are out of work? Why can that not be done?
Lord Mackay of Ardbrecknish: My Lords, as I explained, 21 hours a week translates into four hours a day. That is a considerable amount of time for education. I must say to the noble Baroness that there is a distinction in my mind, if not in hers, between somebody who is a full-time student—and most full-time students I know are not seeking employment—and somebody who will be eligible for the jobseekers allowance in the future or is currently on income support and who is actively seeking work. I should have thought that those two conditions—being a full-time student and actively seeking work—cannot apply concurrently.
Lord Hailsham of Saint Marylebone: My Lords, while I concede to the full the importance of full-time students having full-time education at suitable ages and under suitable conditions, is it not obvious that they come under the maintenance provisions and not under the provisions relating to unemployment and seeking work? Is that not perfectly logical?
Lord Mackay of Ardbrecknish: My Lords, my noble and learned friend is absolutely right to underline the points that I have made that those people who are full-time students are eligible for the maintenance grants and the fees paid to the institutions, and those people who are unemployed, actively seeking work and available for work can study for up to 21 hours a week while maintaining their benefit position.
Lord Taylor of Blackburn: My Lords, will the Minister answer the point which my noble friend Lady David made regarding discrepancies in different parts of the country?
Lord Mackay of Ardbrecknish: My Lords, I would need to see details of the cases suggested here. However, there is no doubt that one of the aspects which we have to address—and which we are addressing—in the shift from the old rules to the rules relating to the jobseekers allowance is that, increasingly, further education colleges are designing courses on a more flexible basis. Of course, we want to take account of that because they are moving away from the nicely clear-cut situation of full-time courses and part-time courses. I do not disagree with the noble Lord that there are some problems. Those are the problems which we hope to address when considering these matters.
Baroness Dean of Thornton-le-Fylde: My Lords, in the government White Paper on the jobseekers allowance issued last October the Government recognised that by acquiring skills unemployed people are helped back into employment. An increasing number of the long-term unemployed lack skills. In many
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instances the only way they will acquire skills is by returning to study. Will the Minister give a reassurance that the 21-hour rule will be applied flexibly and will be examined in the review of higher education which is currently taking place?
Lord Mackay of Ardbrecknish: My Lords, as I said, as we move to the jobseekers' agreement we are looking at how we should interpret and design the 21-hour-a-week rule in the new situations in relation to both the jobseekers' agreement and further education. However, I can confirm to the noble Baroness—as she confirmed to the House—that in the White Paper dealing with the jobseekers allowance we say clearly that:
"Unemployed people sometimes undertake courses of study. That can increase their employability and give them a better chance of getting a job".
I do not believe that there is anything between us in that regard.
Baroness Hollis of Heigham: My Lords, despite what the noble and learned Lord, Lord Hailsham, suggested, the Minister accepted that the line between part-time and full-time education is not as clear as it used to be. Will he therefore accept that the rules are being interpreted very differently across the country? NIACE has evidence that someone studying for five hours a week was denied benefit because she paid fees and was therefore thought not to be actively seeking work. Another person studying for 19 hours a week was denied benefit because the DSS official decided that that course must be full time, without any evidence to that effect. Can we therefore have from the Minister guidance sympathetic to the position of such people in terms of what has been discussed this afternoon?
Secondly, will the Minister readdress the point raised by my noble friend Lord Dormand and make the rules even more flexible by scrapping the rule for the long-term unemployed? Is it reasonable in a society where those who are already educated to A-level standard receive higher education and those who are poor, unemployed or, in seasonal and part-time work are pulled out of study the moment yet another seasonal job occurs and then are thrown back on benefit?
Lord Mackay of Ardbrecknish: My Lords, I would take up the remaining part of Question Time if I attempted to answer all the points raised by the noble Baroness. In general terms we do want to see unemployed people undertaking part-time study. However, we do not want that to be at the risk of their not continuing to seek employment, because that is the primary entry point to the jobseekers allowance and to income support.
As to difficulties in defining courses, we have accepted the current situation resulting from changes to definitions in further education establishments. So far as concerns individual adjudication officers, I must tell the noble Baroness that Ministers do not have powers to intervene. People who are dissatisfied with an adjudication officer's decision have the right of appeal to an independent social security appeals tribunal.

Income Support: Mortgage Assistance
2.47 p.m.
Earl Russell Earl Russell asked Her Majesty's Government:
What they anticipate will be the consequences of their decision to reduce income support help with mortgages.
Lord Mackay of Ardbrecknish: My Lords, the consequence of our decision will be the development of comprehensive, high-quality, private mortgage protection insurance. That will provide better protection for all home owners, including those who fall into difficulties with their mortgage payments and cannot be helped by the present system because they have savings, a modest pension or working spouses.
Earl Russell: My Lords, is the Minister aware that the private sector mortgage debt rose from 35 per cent. of GNP in 1983 to 61.7 per cent. of GNP in 1993? If even I per cent. of that figure were bad debt it would be a debt of £3.5 billion. Even if private insurance were available for the people concerned, does the Minister believe that now is the right time to put that extra burden on British insurance?
Lord Mackay of Ardbrecknish: My Lords, I have absolutely no doubt, and we have every indication, that British insurance will be found to be more than adequate in bringing to the situation perfectly satisfactory policies designed for people who want mortgages in the future.
So far as concerns the figure referred to in the main part of the noble Earl's question, perhaps I may turn the question around and ask him and those who oppose the policy—
Noble Lords: No!
Lord Mackay of Ardbrecknish: My Lords, if noble Lords become so irritated by the rhetorical question, I shall rephrase it. I am quite amazed that we are asked whether we should put the pressure on the insurance industry, when the corollary is that we are happy to put the pressure on other taxpayers.
Lord Dean of Beswick: My Lords, is the Minister aware that in this country each week 1,000 families are still losing their homes because of lapses in paying their mortgage? The measures to which the Minister referred in answering the first Question are welcome. However, is he also aware that none of those people who lose their homes today will receive one iota of help from those measures? Bearing in mind that it was the equity imbalance which resulted from the Government's financial policy which put those people in that position, do they not deserve better treatment than the Government accord them at this point in time?
Lord Mackay of Ardbrecknish: My Lords, the noble Lord helps to make my point. Many people are not assisted by the current provisions but many, although not all, would be helped if insurance provision was widely based and widely accepted as it will be for all new mortgage takers.
Lord Stoddart of Swindon: My Lords, many of us believe that this is a strange measure. Is the noble Lord
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aware that people living in modest houses pay mortgages in lieu of rent simply to obtain a roof over their heads? Why do the Government take benefit away from people paying mortgages but do not propose to take benefit away from people who pay rent? There seems a lack of equity in that position. I hope that the Government will reconsider their policy.
Lord Mackay of Ardbrecknish: My Lords, it is fairly self-evident that all of us take out a mortgage or pay a rent in order to obtain a roof over our heads. The position is quite simply this. To suggest to those people who take out a mortgage, and, more importantly, to those people who give a mortgage, that some form of insurance should be taken out against unemployment, we believe is a correct and responsible way for both the lender and the borrower to behave. Lest noble Lords go away with the thought that we are entirely withdrawing from that market, I underline the fact that we are asking the insurance companies and new borrowers to cover the first nine months. Anyone unemployed for longer than that period will be helped by the social security system.
The Countess of Mar: My Lords, is the noble Lord aware that a number of people who have been prudent enough to take out insurance against unemployment have found that the insurance companies have been let off the hook because of the small print? Before the Government bring any legislation before the House, will the Minister assure us that they will negotiate with the insurance companies to ensure that those companies do not get out of paying on the policies because, for instance, someone has not been employed for more than two years?
Lord Mackay of Ardbrecknish: My Lords, I can assure the noble Countess that we are looking at that problem—it has been brought to our attention—in our discussions with the insurance industry. The industry is bound by the ABI's code of practice. Once the policy has been taken out, the insurance ombudsman can arbitrate on disputes on behalf of policy holders. Despite the protections already in place, we are aware of the criticism referred to and are discussing the matter with the ABI and with the Council of Mortgage Lenders.
Earl Russell: My Lords, the Minister has invoked burdens on the taxpayer. Is he aware that at present 50 per cent. of those who receive income support help with mortgages are back at work within a year? Does he accept that if their homes are repossessed, that is unlikely to occur, and therefore the noble Lord risks putting on the taxpayer a much heavier burden than he carries already?
Lord Mackay of Ardbrecknish: My Lords, the noble Earl misses the point. If due to our policy, and with the quite lengthy time lag that we have allowed for, those insurance policies are available in the market, a borrower taking out an insurance policy who becomes unemployed will look to that insurance policy for nine months, and thereafter to the taxpayer. Therefore repossession does not come into the issue.
Baroness Hollis of Heigham: My Lords, what arrangements will the Government make, what help will

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they give, to those who often cannot obtain insurance? I refer to those with a history of intermittent unemployment, the self-employed, those on short-term contracts and those in part-time work. Do they not stand the risk of losing not only their job but their homes too?
Lord Mackay of Ardbrecknish: My Lords, I think that the noble Baroness confuses existing borrowers—for whom the policy is two months and four months; it is not the nine months to which I referred—and new borrowers. Perhaps I may simply quote from the Abbey National Building Society:
"If we have agreed a mortgage there is no reason why the borrower should not then qualify for mortgage repayment protection".

Land-mines
2.56 p.m.
The Lord Bishop The Lord Bishop of Oxford asked Her Majesty's Government:
Whether the current moratorium on the export of land-mines includes components of land-mines; and under what conditions they would agree to a complete ban on the export of land-mines, including those which self-neutralise and self-destruct.
Lord Inglewood: My Lords, the moratorium on the export of non-self-neutralising or self-destructing anti-personnel land-mines announced on 27th July does not include component parts. However, any applications to export specially designed land-mine components for military use are subject to strict controls and would be considered on a case by case basis in the light of established criteria.
A complete ban on the export of land-mines at this stage would in our view be unlikely to secure the necessary broad international support or be properly implemented.
The Lord Bishop of Oxford: My Lords, I thank the Minister for his Answer. However, does he agree that the very limited need for those weapons by our forces in any foreseeable conflict is outweighed by the terrible suffering being caused to civilians, especially children, by such mines lying around—there are some 100 million of them—long after the conflict is past? Does he also agree that the export of self-neutralising or self-destructing mines, with a failure rate estimated at something like 10 per cent., would only add to those terrible problems and also discourage other nations from agreeing to a total ban on their production, stockpiling sale or use?
Lord Inglewood: My Lords, in his supplementary question the right reverend Prelate has indicated the core problem which is the 100 million or so land-mines in the world. I am sure that we all wish to see a reduction of those and eventually a world free of mines. The problem we face is that those weapons are easy to make and to use. We have to focus our policies on our prime purpose; to protect civilians from the consequences of indiscriminate use of land-mines which do not self-neutralise. In order to do that, we believe it is right,
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first, to bring about a regime where increasingly the mines which may be used in the world are those which self-neutralise—I refer to the so-called smart mines—rather than the "dumb" mines which have such dreadful consequences.
Lord Wright of Richmond: My Lords, is the Minister aware that in reply to my question during the debate on the Address about the Government's intentions to ratify two additional protocols to the Geneva Convention, I received a courteous reply from the noble Baroness, Lady Chalker, stating that it was purely a matter of time? Can the Minister tell us anything about the timing of the Government's ratification of those protocols?
Lord Inglewood: My Lords, I thank the noble Lord for his question. I am pleased to be able to advise your Lordships that we hope to be able to ratify them by the end of next month.
Lord Ennals: My Lords, I have been trying to follow the logic of the Minister's reply, but I have to admit that I failed to do so. Why would it not lead towards a complete agreement if the Government now announced that they propose to make a complete agreement so that there would be no exportation at all either of the whole land-mine or of a component of it?
Lord Inglewood: My Lords, we believe that under appropriate circumstances, in accordance with the principles of Article 51 of the UN charter, land-mines can be legitimate weapons of self-defence. As I said earlier, what the Government are concerned about is the consequence of the indiscriminate use of so-called "dumb" land-mines. We believe that in the wicked world in which we live, because land-mines are so easy to manufacture and deploy, and bearing in mind, for example, that this year we anticipate that it is likely that somewhere between 10 million and 20 million land-mines will be laid around the world, we must focus our efforts to ensure that the land-mines used are the so-called smart land-mines which are self-neutralising.
Lord Avebury: My Lords, in pursuance of the Government's laudable aim of greater transparency in weapons transfers, will the Minister ensure that the United Nations arms register includes a full list of the transactions for the sale and acquisition of those weapons? Could he publish in some suitable form a list of the states which, as he said in answer to the right reverend Prelate, are opposed to a complete ban on the manufacture, sale and use of those weapons?
Lord Inglewood: My Lords, regarding the second part of the noble Lord's question, I shall write to him with the details that we know. It was one of the aspects of the code of conduct which the British Government promoted that mutual information should be exchanged in that field.
Lord Judd: My Lords, does the Minister accept that there are genuine anxieties about the reliability and effectiveness of self-destructing and self-neutralising mechanisms in anti-personnel mines? Does he also agree that research in the Pentagon has called into

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question the military utility of such mines? In those circumstances, does he understand that the anxiety of the Red Cross and others is that a limited ban plays into the hands of those who want to evade the policing of such arrangements; and that a total ban on production stockpiling and export is what is necessary.
Lord Inglewood: My Lords, we share the underlying aspirations of the Benches opposite and the Red Cross to which the noble Lord alluded. But as I explained earlier, we do not accept that the line of action which the noble Lord proposes will help those wretched people who are currently being maimed, injured and killed by the indiscriminate use of land-mines around the world.
Lord Jenkins of Putney: My Lords—
Several Noble Lords: Next Question!
The Lord Privy Seal (Viscount Cranborne): My Lords, as always, I am in the hands of your Lordships' House but I am aware that there is one more Question and just over five minutes in which to cover it.

Nursing Auxiliaries: Sth-Bucks NHS Trust
3.4 p.m.
Baroness Castle of Blackburn Baroness Castle of Blackburn asked Her Majesty's Government:
What is the current ratio of fully qualified nurses to nursing auxiliaries in the South Buckinghamshire NHS Trust area; how this compares with the ratio in the hospitals concerned in each of the previous five years; how much training the nursing auxiliaries currently receive before being allowed to work on patients in the wards; and what rate of pay they receive for how many hours per day.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, the ratio of qualified to unqualified nursing and midwifery staff in South Buckinghamshire NHS Trust as at August 1994 is 2.4 to 1. Figures for the ratios of qualified nurses to auxiliaries in the trust for each of the past five years are not available, as the trust has been in existence for only just over one year.
The trust provides a five-day training course for nursing auxiliaries which is run by the College of Nursing and Midwifery. New starters either begin with formal training or are closely supervised and trained on the job until the formal course starts. Nursing auxiliaries work 37.5 hours per week and the current salary ranges from £6,690 to £9,875 per annum.
Baroness Castle of Blackburn: Is it not a fact that the number of nursing auxiliaries employed by the South Buckinghamshire trust has been increasing? It is now, as a proportion of the nursing workforce, 23 per cent. compared with 18 per cent. in 1987, five years ago. Is it not also a fact that those auxiliaries receive no preliminary training at all before going into employment? According to the chief executive, they receive five days' training in service, as soon as possible. Is it not also a fact that in its annual report
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the trust boasts of its increased performance activity, the increased number of patients it is handling, without any reference to or prospect of the increase in qualified staff that ought to be employed to carry that workload?
Baroness Cumberlege: My Lords, the number of nurses in that trust has increased, there are 150 more nurses than seven years ago. Auxiliary nurses also have a very important part to play in any ward in any hospital. They receive training—perhaps not immediately when they start, but they get on-the-job training. Then, as I explained, they attend a training course run by the College of Nursing and Midwifery.
Baroness Gardner of Parkes: My Lords, can the Minister tell us whether this Question is comparing like with like and whether the new nurse training system under Project 2000 makes a difference to the situation?
Baroness Cumberlege: My Lords, my noble friend is correct to bring that to the attention of your Lordships' House. The new Project 2000 courses are far more sophisticated, they equip nurses better to do the job. The nurses are there on a bursary and are full-time students. I believe that never before have we had more nurses, better qualified and better paid.
Baroness Jay of Paddington: My Lords, is the Minister aware that the points raised by my noble friend about the local situation in South Buckinghamshire are causing anxiety to nursing organisations across the whole country? They are particularly alarmed about the arrangements for local pay. Can the Minister give an assurance that the Government will abide by the national review body on pay, which I believe will report shortly? Will the Government ensure that all nurses with all qualifications at all levels are given a fair pay award this year?
Baroness Cumberlege: My Lords, I find it interesting that Peers on the opposite Benches should bring forward these issues. It was the Labour Party that cut nurses' pay and never this Government. This Government have always honoured the pay review body awards and we await its results. I have no doubt that the noble Baroness will be pleased.
Baroness Jay of Paddington: My Lords, may I therefore be assured that the nursing pay review board proposal will be abided by this year?
Baroness Cumberlege: My Lords, we will wait to see the results.
Baroness Castle of Blackburn: Can we also have an assurance that the Government will in future fund any pay increase to which they agree? They failed to do so with the last pay increase, thus increasing the pressure to reduce the quality of service by reducing the number of qualified staff and not filling vacancies. Is it not time we had another Halsbury Report such as the Labour Government introduced?
Baroness Cumberlege: My Lords, I find this intriguing. Reading the noble Baroness's memoirs, I recollect that there was a Cabinet meeting during which John Silkin sent her a note. It read:
"All things bright and beautiful,

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All projects great and small,
All things wise and wonderful
The Chancellor cuts them all.
He cuts the old age pension
Although he cuts by stealth,
And when he looks for savings,
He cuts the National Health."
Lord Graham of Edmonton: There is no answer to that!

Criminal Justice (Scotland) Bill [H.L.]
3.8 p.m.
The Lord Advocate (Lord Rodger of Earlsferry): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Rodger of Earlsferry.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 26 [Comment by prosecutor on accused's failure to give evidence]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 78:
Page 18, line 35, at end insert:
("() At the end of section 142 of the 1975 Act insert: "Where the accused does not give evidence such action shall be of no evidential value and the presiding Judge shall instruct the Jury accordingly.".").
The noble Lord said: The amendment relates to the direction which a judge should give in criminal trials where the accused does not give evidence. The situation in relation to the significance of an accused person not going into the witness box to give evidence in a criminal trial, the right of a prosecutor to comment on that absence from the witness box, and indeed the right of a judge in a criminal trial to comment on such an action taken by the accused, is now in a complete and utter mess. There is little point in making tinkering adjustments to the law of Scotland until a review is held on how matters stand so that positive views can be expressed about what the situation should be.
I have said more than once that the right to silence is the right of every accused person in the United Kingdom. People talk of the failure to give evidence. As I understand it, there is no such thing in law. There is the exercise of one's legal right in law not to give evidence. It is so often referred to in the newspapers that it has almost become, as it were, a newspaper cult. A headline in one newspaper at the weekend read: "Accused refuses to give evidence", or "Accused opts to remain silent". So what, if the accused chooses to remain silent?
This amendment tries to encourage the Government to do just one thing; namely, to institute a review of these important matters. At the moment we are floundering about with judges giving one direction here, one direction there; the Court of Criminal Appeal saying, "Maybe the judge shouldn't have said that, but after all that does not constitute a miscarriage of justice".
In the Government's own consultation paper, The Right to Silence, Judicial Examination and Evidence of Previous Convictions, which was circulated by letter from the Scottish Office on 15th September 1994, there is a rather alarming observation. Incidentally, the copy that I have bears no signature whatever. It could have come from the far side of the moon, except that there was a covering letter indicating that it came from somewhere a bit closer than that and probably from the Scottish Office. Paragraph 34—which I read in these terms—having summarised the law about what judges can and cannot say, states:
"While the case law thus suggests that in Scotland there is at present no barrier to the court drawing proper inferences from the silence of the accused at trial, it is open to differing interpretations, and the courts may be inhibited, by the apparent restriction on the judge's power to comment to special circumstances, from drawing inferences in all appropriate cases. The reported appeal cases do not reveal in how many cases comment might have been appropriate but was not made because of the strictures in Scott. A statutory provision clarifying the position would remove any uncertainty and encourage the courts to take account of the accused's silence where it appeared appropriate, while in no way compromising the accused's right to remain silent".
That is perhaps a very strange summary of the law. I appreciate that it is only one paragraph out of a fairly lengthy consultation paper. But what is it really saying? To use a horrible phrase, the "hidden agenda" behind it effectively is: if the accused does not go into the witness box, let the judge comment upon it as he sees fit. Then, once the case gets to the Appeal Court, the Appeal Court says: "You should not have said that, but never mind, there is no miscarriage of justice".
The Faculty of Advocates, of which I am a member, states at page 9 of its reply:
"It is therefore a subtle, but in the Faculty's view, important distinction which is to be drawn. Any inference which is permitted to be drawn under the present law is an inference from the other facts which have been established by the Crown; not an inference drawn from the silence of the accused, as is stated at paragraph 34",
to which I refer.
We have seen that the committee of the Faculty of Advocates took a slightly different view from the one that was expressed in the Government's White Paper. This amendment, in simple terms, seeks at this present juncture in the development—or indeed the non-development—of the law relating to the right to silence the right to comment on the absence of the accused from the witness box and the right of the judges and prosecutors to comment, the latter being inserted by statute in this present Act, to give a breathing space whereby Parliament can say to the judges: "Until we get this sorted out, here is what the law is to be from now on. You must tell the jury that where the accused does not give evidence, that fact is of no positive"—perhaps evidential—"value and you must ignore it when you seek corroboration of the Crown case".
In putting that forward as an absolute, which at the moment I do, I appreciate that for every rule there must be an exception. There may be exceptions, for example, in fingerprint cases, which have been mentioned before, and perhaps in respect of the DNA process, if that is to be accepted and its validity tested in the Scottish courts as being 100 per cent. proof as it was introduced. There

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may be exceptional cases, but the general rule should be that a judge should instruct the jury in terms of Amendment No. 78, and I therefore so move.
Lord Stodart of Leaston: It is the most dangerous water for a layman, particularly a Scottish peasant, to enter when legal matters are being discussed; and well I appreciate that fact. But I am bound to say that when I read my noble and learned friends' remarks I was slightly confused—but then I often think that legal language tends to be a little confusing. My noble and learned friend stated:
"to restate the law on silence at trial in Scotland is not necessary but we propose … to remove the statutory prohibition on the prosecutor from commenting on an accused's silence at the trial".—[Official Report,29/11/94; col. 550.]
To a layman, this sounds slightly like a non sequitur. I asked myself this: If you are going to change the law on silence in a way that has aroused, as I am very well aware, considerable controversy, why do you not want to restate the law? I should have thought it was quite essential that you should do so.
However, on a first reading of the press headlines in Scotland—which said, broadly speaking, "Right of silence being done away with"—I am bound to say that I took that to mean that an accused person would be forced to go into the witness box and that it was his right of silence that was being removed. If it had happened as I understood it, that would have totally reversed the situation as it stood up to 100 years ago, certainly in England and Wales, whereby the accused was not allowed to give evidence on oath. But of course it does not mean that at all. The right to silence has been the right of an accused to be spared any comment by his prosecutor if he, the accused, decides not to give evidence himself.
It is now proposed that prosecuting counsel should be allowed the same right as the judge, who has always been allowed to point out to the jury the fact that the accused has not gone into the witness box.
This proposal drove me to a book which I strongly recommend to the Committee for really good bedtime reading; namely, the account of the trial—the last murder trial with any charisma attached to it—of Dr. Bodkin Adams. According to the account of that trial, defence counsel made a sudden announcement that he did not propose to call the accused. The Attorney-General half rose as if propelled upward by an amalgam of astonishment and dismay that not a word of his carefully prepared cross-examination and his closing speech would be heard. Then came—this, to me, is the important part—Lord Devlin's directions to the jury. He said that the jury must draw no conclusion from the accused not going into the witness box. He said:
"He has not failed to give evidence. He has exercised his right to be silent and demand that the Crown proves its case".
At Second Reading my noble and learned friend again took a different line. He said (Hansard col. 550) that it was a legal nonsense to allow comment to be made by either the judge or the prosecutor as a general rule on the absence of the accused from the witness box, though there must be exceptional cases where that may be justified. As I understand the matter, he said virtually, "If the judge can comment, why should not the
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prosecutor do so?" I believe that that view was upheld by the noble and learned Lord, Lord McCluskey, with the only reservation that judges always use restraint.
I ask my noble and learned friend to tell the Committee the basic objective of this amendment to the present law. Is it to produce better justice or to make a conviction more likely? After all, prosecuting counsel is there to do his best to win his case. As I understand it, a prosecution is generally not undertaken unless there is a fair chance of it being successful. Therefore, is it the purpose of this amendment that another string is being given to the Crown or does the noble Lord claim that it will make for better justice?
Lord McCluskey: I wonder whether I may comment on this point as I have already done so on Second Reading. First, I am satisfied that, contrary to what the Committee heard from the noble Lord, Lord Stodart, there is absolutely no need to restate the law on this matter in Scotland. It is abundantly plain that the jury is not entitled to regard the failure of the accused to go into the witness box as being of any evidential value whatsoever. We do not need to be told that and, in a sense, the law being abundantly plain, it would be almost an impertinence on the part of Parliament to tell us what the law is.
In the press and other quarters there has been considerable misunderstanding about what is happening in this Bill. I sit as a trial judge for approximately 12 to 14 weeks of the year. I have been appearing in the criminal courts for something in the order of 40 years, some 12 years as a prosecutor and other years for the defence. What commonly happens is that, if the accused does not choose to exercise his right to give evidence and chooses to exercise his right not to give evidence, his defence counsel will comment upon that matter when he addresses the jury. He will commonly say, "Ladies and gentlemen, you have heard the evidence for the Crown. The burden of proof is on the Crown. There is no burden upon my client and that is why, on my advice, he has not gone into the witness box". So comment is in fact made by the defence.
Secondly, as the Committee recognised, comment can be made by the judge. From time to time judges do comment but they must do so with restraint, which is only right and proper. I do not doubt that, having regard to the fact that this clause simply removes a part of the 1975 Act, the courts will interpret the duty of the prosecutor as a duty to comment with at least as much restraint as the judges are wont to exercise at the present time. I do not have the slightest shadow of doubt about that.
In what circumstances should the prosecutor have the right and responsibility to comment upon the accused not entering the witness box? I referred to that point at Second Reading. I want simply to make the point that almost from the first or second witness in the trial the jury is waiting to hear the accused's account of the matter. That is what the jurors want to hear. They have heard the case against him which has built up and up and they want to hear his explanation and how he will get out of accusation. Then the accused does not go into the witness box. It is deeply patronising to suppose that unless the prosecutor refers to the matter the jury will

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not have noticed. Of course the jury will have noticed. In my respectful view, the prosecutor has a perfect right to point out that matter if it is obvious.
Let us take the classic type of case where witnesses have given evidence that the accused was at place A and the accused has lodged a formal written alibi which is read to the jury at the beginning of the case saying, "I was not at place A at the time specified. I was at place B". Then the evidence of the witnesses who say that they saw him at place A is challenged by his counsel. One would have thought that the natural consequence of that would be that he would go into the witness box and say, "I was in fact at place B and therefore they are wrong". If his counsel, in reliance upon his client's private statement to him, has challenged the evidence of witnesses, it seems to me to be perfectly right and proper that the prosecutor will say, "Ladies and gentlemen, in looking at the evidence of X and Y you will recall that that evidence was challenged by counsel on behalf of the accused person. But you have no evidence to set against that, and in particular the person who could have said, 'I was there', and could have told you what he was doing has chosen not to give evidence. So when you come to assess their evidence you will be entitled to take that fact into account". As a judge, I would say that. I do not see why a prosecutor should be inhibited from saying what a judge would certainly say in those circumstances.
I want to emphasise the point that I made earlier. In more cases than not when an accused person does not give evidence it is common for defence counsel to refer to that fact in his closing speech. Indeed, it is that reference which commonly prompts me, as the judge, to make a further comment on the matter, knowing that by that stage the prosecutor has no right of reply or possibility of commenting on the comment made by defence counsel. Those are the reasons why I believe that the proposals in the Bill are sound and those contained in the amendment are unsound.
There is one very special point of principle to which I want to draw attention. The amendment concludes with the words:
"and the presiding Judge shall instruct the Jury accordingly".
That is an obnoxious provision. Parliament should not be instructing judges of the High Court on what they must say to juries. To include in an Act of Parliament a provision that the presiding judge "shall instruct the Jury" in certain terms appears to me to be wholly obnoxious and contrary to our traditions. For those reasons I oppose the amendment and will support the clause.
3.30 p.m.
Lord Hutchinson of Lullington: As a member of the English Bar, perhaps I might make a contribution on this matter. As a member of the English Bar I fought extremely hard to try and stop Mr. Howard's first act of vandalism; that is, abolishing the right of silence in the English and Welsh courts, as has happened.
I listened to the noble Lord the "Scottish peasant" with the greatest possible admiration. What he said makes the crucial point. Equally, I ask the Minister,
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before the Committee makes up its mind about the amendment, to answer the question in a slightly different form. In the clause what does,
"comment on failure of accused to give evidence",
mean? What is the "comment" that is envisaged? I was astonished to hear the observations fall from the lips of the noble and learned Lord, Lord McCluskey, who, if I may say so, was one of my great heroes in this Chamber in the old days. He says, with his knowledge of Scottish law, that there is no need to tell the jury that silence on behalf of the defendant has no evidential value whatever so far as concerns the Crown. If that is so, what is the point of the prosecutor making any comment?
The prosecutor comments upon the defendant's exercise of his right in law to be silent for a purpose. What is that purpose? That is what I ask the Minister to explain to the Committee. The only possible purpose that I can see is to say to the jury, "My duty as a prosecutor is to lay the evidence before you, to prove to your satisfaction that this defendant is guilty beyond reasonable doubt. If any of you still has a doubt, then you may take into account the fact that he has exercised his right and not gone into the witness box. By taking that into account you will add to the prosecution evidence which at the moment leaves you in some doubt. The fact that he has not gone into the witness box means that you can add to the scales of justice so that they sink on the side of conviction".
Is that the comment which prosecuting counsel will now be allowed to make in Scotland when a defendant exercises his right not to go into the witness box? If it is, then what the noble and learned Lord said about it having no evidential value is simply not so. To make a comment of that kind is to ask the jury to give the silence some evidential value; that is, to add it to the prosecution case. It is that which surely is the mischief. That is why both Royal Commissions in England pointed out that that was the mischief. To allow comment to be made by prosecuting counsel is simply to state that silence can amount to evidence; that the defendant can produce evidence against himself. The whole basis of criminal law, both in Scotland and in England, is that no defendant should ever be put in that position.
I want to ask the Minister one other question. I know that he will not avoid it as a number of his colleagues have done in the past. What happens if the silence of the accused is due not to guilt, but to some perfectly reasonable other reason? I say to the Minister—equalling the experience of the noble and learned Lord, Lord McCluskey, of 40 years' practice in the criminal courts—that in a large number of cases accused people do not wish to go into the witness box. They say to their advocate, "I do not want to go into the witness box", for all kinds of reasons which have nothing to do with their guilt.
In many cases a defendant may not wish to give evidence simply through fear. He may say, "I cannot face it. I have complete faith that the jury will see that the evidence of the Crown is insufficient and acquit me. But I shall not offer myself for cross-examination. I have heard people being cross-examined and I am too frightened to go into the witness box". That is one

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reason a person may not give evidence. Another reason is that he does not want to bring discredit on other people which, if he tells the truth, he will have to do. I refer to discredit of spouses, children and friends. Alibis, as the noble and learned Lord mentioned, may involve bringing discredit on somebody else because that is where the defendant was and he should not have been there. That may bring discredit on the person's character or family and that may he a reason for a defendant not giving evidence.
Another reason—I know that some Members of this Committee will throw up their hands in horror at the thought—is that, unfortunately, on occasions, the police bring charges of an offence against someone who has committed the offence before. Sometimes they back it up with a false admission; sometimes they back it up by planting false evidence on the premises, such as drugs. If that person goes into the witness box and puts forward a defence that the police have done that, then, as Members of the Committee will again know, his previous convictions can be proved against him. The police know that. That person may not be a very admirable person but he did not commit the offence. Yet he is put in the impossible dilemma of either going into the witness box where the prejudice of his previous convictions will be put to him, or remaining where he is and saying, "I am innocent until the case is proved against me; get on and prove it".
Those are some of the reasons why a person may not wish to go into the witness box. Is it right that prosecuting counsel should speculate as to the reason why someone did not give evidence and then suggest to the jury that it is evidence of guilt? It may be absolutely untrue. It is in that way that miscarriages of justice come about. I should like to obtain an answer to those questions from the Minister before deciding whether or not to accept the amendment.
The Earl of Mar and Kellie: This clause has set alarm bells ringing, and elsewhere there have been many knee-jerk reactions to it. That in itself is no bad thing, as it clearly establishes that an aspect of Scottish legal right is under threat.
At present a judge may comment upon the fact that the accused elected not to give evidence. I understand that it is only 100 years since it was made lawful for the accused to give evidence at all. Evolution can be a slow process. I wonder whether we are going too fast in that direction.
What is proposed in the clause may not be as awful as is suggested. There may be occasions when a prosecutor with a weak case may be deemed to go over the top and create a wrong impression in a jury's mind. I therefore foresee difficulties for the Bench in the summing-up if that happens. I conclude therefore by opposing the inclusion of this provision.
Lord Rodger of Earlsferry: The debate on the amendment brought forward by the noble Lord, Lord Macaulay, has also touched on the substance of the clause itself. The effect of the amendment would be to prohibit a jury taking any account of an accused person's failure to give evidence at his trial, regardless of the circumstances of the case. In replying on this
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matter, I should like to stress, as indeed the noble and learned Lord, Lord McCluskey, has made clear, that under the law of Scotland as it stands at present, and as it has stood since at least 1918, it is open to the judge to make certain comments. There is case-law on that matter. The first point I would stress is that we are not in any way changing the law on the directions a judge may give to the jury.
The noble Lord, Lord Macaulay, read out from the consultation paper a passage dealing with this matter. In that passage the issue was canvassed whether it would he desirable to put this area of the law into a statutory formulation. We received a very clear reply on consultation that that was neither necessary nor was it desirable. As it stands at present, and as it has been developed by the courts, the law looks to the common sense of the matter, to which the noble and learned Lord, Lord McCluskey, has drawn attention, which is that juries do notice whether accused persons give evidence. At present the position is that the court may, in special circumstances and acting at all times with restraint, make a comment on the absence of evidence from the accused. The comment is given in a case where the Crown has brought forward evidence which, as it was put in a recent case, is crying out for an explanation and where in the face of that evidence there is no evidence from the accused giving an explanation when he is the one person who could give an innocent explanation. In that situation, as the law stands at present—this is as far as it goes—the judge is entitled to say to the jury that they may find it easier to draw a guilty inference from the facts or from the evidence which the jury is considering; in other words, from the facts or from the evidence put forward and proved, let us suppose in this hypothesis, by the prosecution. That is the law as it stands at present, and there is no intention on our part to change that law. All the clause seeks to do is to allow the prosecutor to make a comment, or, more precisely, to withdraw the statutory bar on the prosecutor making a comment.
I would say, just as the noble and learned Lord, Lord McCluskey, said, that the prosecutor will comment only with restraint because of course he must have regard to the fact that as the law has been laid down it is only with restraint that this can be said to a jury, and it is only in special circumstances that it can be said. If he goes further than that, if he says something which goes beyond that, it will be the judge's duty to correct what the prosecutor has said and to give the proper direction to the jury. If he should fail to do so, or, in certain circumstances, if the appeal court thought that what was said by the prosecutor was so outrageous, then presumably the matter could be the basis for a ground of appeal. Where the law itself only allows comments with restraint, and only for inferences to be drawn in narrow circumstances, it would be a foolish prosecutor indeed who went further than that.
Why are we doing this? Where it is open to the judge in an appropriate case to give this direction to the jury, it seems proper, with respect to those who argue the reverse, that that matter should be focused in the prosecution speech so that the prosecutor can invite the jury to consider that in the circumstances they may find

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it easier to draw the inference of guilt. When that is said, it means that the issue is fairly in play and then it is open to the defence counsel, who, as the noble and learned Lord, Lord McCluskey, said, almost invariably in these circumstances mentions the fact that his client has not given evidence, to say to the jury that they have heard what the prosecutor has said and that it is either right or that it is not the kind of case where they would be wise to draw that inference. The matter is then fairly in play and the judge in those circumstances can give the appropriate direction. Where the judge can give that direction, and where the defence is in no position to comment at that stage when the judge gives the direction, it seems better that the matter should be fairly in front of the jury at a proper stage when the prosecution is speaking and therefore the matter can be dealt with in the normal way, as any other issue is dealt with, between the parties in the prosecution. For that reason we think it is appropriate to deal with the issue in this way. I would add that in this issue we can claim the support of the Thomson Committee, which reported on criminal procedure in Scotland and which recommended the repeal of this statutory bar.
The noble Lord, Lord Hutchinson, said that there may be many reasons why an accused person does not give evidence. I accept that. But at present under our law in Scotland, whatever the reasons may be why someone has not given evidence, the fact of the matter is that the judge may, in an appropriate case and with restraint, invite the jury to draw the inference which I have indicated. Therefore, we are not changing that matter in any sense.
In my submission, the change which we are advocating here is a proper one. It does not go so far as some of the other changes which have been introduced elsewhere. It is entirely in accordance with the spirit of the law in Scotland. I commend it to the Committee.
Lord Hutchinson of Lullington: Before the Minister finishes his address, perhaps I may ask him to focus his mind for a moment on the distinction between a judge, who is subject to the control of the Court of Appeal in his summing up and so on, and the advocate appearing for the prosecution. At the moment, according to what the Minister has said, the advocate has to decide whether the case is one which is crying out for an explanation. That is the first thing he has to decide. Secondly, he has to tell the jury that they may find it easier to draw an inference of guilt. Thirdly, he has to act with restraint. Will the Minister explain how any lawyer can possibly know what he is doing? Those three requisites are totally without definition. The Minister has not answered this question: is it correct that the prosecutor can say to the jury, "You may add evidence; you may resolve your doubt by the fact that there has been silence"?
Lord Rodger of Earlsferry: Despite what the noble Lord says, I do not believe that there will be difficulty in identifying the kinds of cases where it would be appropriate to invite the jury to draw the kind of inference which I have suggested. The noble and learned Lord, Lord McCluskey, has had to deal with such cases
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as a trial judge and I do not understand that he has had particular difficulty in identifying those cases where, in accordance with the spirit of the law as it has been laid down, such a direction should be given.
It is appropriate where a judge may invite a jury to draw such an inference, that in presenting his case to the jury the prosecutor may put the matter in the way that I have suggested. He is not adding to the evidence at all but simply saying what seems to me to be a matter of common sense; namely, that when considering whether it is legitimate to draw the kind of inference which the prosecution is inviting should be drawn from the facts which have been proved, the jury may find it easier to draw that inference if it has not been presented with a competing explanation in evidence from the accused. If that has to be considered it is obvious that the jury may find it more difficult to draw the appropriate inference. That is all that this direction says, but in its absence it may be easier to draw the inference of guilt.
Lord McCluskey: I would regret very much if I were to lose the esteem which the noble Lord, Lord Hutchinson of Lullington, mentioned. As a precaution against being accused of inconsistency I wrote a book on the matter and I have it here. It was published some years ago. I read from chapter 7, paragraph 14:
"The prosecutor's conduct may afford a good ground of appeal".
I cannot believe that the Criminal Appeal Court in Scotland, which would strike down a judge's charge on the ground that his comment was excessive, would fail to do so if the prosecutor was guilty of the same excessive comment. It simply cannot be.
I believe that English lawyers are dealing with an entirely different situation from the one which faces the Scots. There are two important matters. First, since 1980, developing a system which has obtained in Scotland for centuries, the accused person is now brought before the sheriff usually within 72 hours of his arrest. He is examined on judicial examination. He has a right to remain silent which he may or may not do.
Secondly, nowadays almost all accused persons are interviewed in tape recorded conditions by the police. Again, the accused's right to remain silent is explained to him. If an accused person chooses on either or both these occasions to state things which go towards exculpating him, it has become the law in Scotland over the past 10 years—if it were not so before—that that statement by him can be founded as evidence of his innocence without his going into the witness box. That may strike English lawyers as slightly anomalous, but that is the situation. Accordingly, without going into the witness box, a person can have his evidence—for example, as regards an alibi or in relation to any other circumstance crying out for explanation—put before the jury in that form.
In those circumstances, the judge is obliged to say to the jury, "Ladies and gentlemen, in considering the evidence in this case, part of it consists of what the accused told the police and another part consists of what he told the prosecutor or the sheriff at the judicial examination". But neither the prosecutor, the police nor the sheriff at the judicial examination, have the right to

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cross-examine the man. Therefore it seems entirely proper and logical that in addressing the jury, the prosecutor can say, "Ladies and gentlemen, you must of course take into account the evidence of what was said to the police and what was said at the judicial examination, but do bear in mind that the accused was sitting there unable to be cross-examined. He has chosen not to go into the witness box and be cross-examined on these matters". It is extremely important that the prosecutor should have that right in the circumstances which have developed.
The noble Lord, Lord Hutchinson of Lullington, suggested that inevitably there must be an addition to the evidence if a comment of that kind is made. It must have evidential value. I dispute that. The position is that a comment does not add to the evidence at all. For example, in assessing whether there is corroborative evidence in Scottish law one would not add anything from the silence of the accused or the comment thereon.
But if the credibility of a witness has been attacked by the accused's counsel, as in the example which I gave before, it would be a sensible comment to say, "Why has the accused not chosen to go into the witness box and back up this attack with his own evidence?"
There is another example of the person who has given a statement in court and a previous contradictory statement. It is a perfectly legitimate comment to say, in assessing the reliability and credibility of a witness, "Look at the fact that on a previous occasion he said something different". That does not add to the evidence, but it is a legitimate comment of a kind which no doubt the noble Lord is familiar with in the English courts.
The final point is this: it is not just the judge who can comment on the accused not entering the witness box. It is not just his defence counsel, but all the other defence counsel. If any defence counsel lodges a defence of incrimination, that is to say, "My client says that he did not do it but the other fellow did", in his address to the jury defence counsel is perfectly entitled to say, "He did not give evidence". Therefore, everybody in court can comment on the accused's silence other than the prosecutor. That does not seem to me to be right.
Perhaps I may refer to another case within my experience. It commonly happens that when a man and woman are charged jointly with the murder of a child in their sole care or where there are two survivors of a battle in which the third has died, that one of the two accused persons goes into the witness box and explains his part in the affair and the other remains silent. It is nonsense to suggest that that is not a matter worthy of comment as regards the jury. I see that as no part of the invasion of the right of silence as I understand it and which is explained very fully in the speech by the noble and learned Lord, Lord Mustill, to which I referred on the first day of the Committee stage on Thursday, 12th January. The noble and learned Lord will no doubt find it in the appropriate column of the Official Report.
Lord Stodart of Leaston: Perhaps I may have the indulgence of the House for one moment. Understandably, such was the state of nerves under which I was speaking that I inadvertently misquoted my noble and learned friend. I turned over two pages of the
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Official Report by mistake and attributed to him the words of the noble Lord, Lord Macaulay. The words which I wish to refer to appear at col. 550 on 29th November, and they are these:
"We consider it wholly appropriate that the prosecution, when addressing the jury should be able to comment on a matter on which the court may comment and which the jury may take into account in reaching its verdict".
If I had not put that right the Official Report would make total nonsense.
Lord Wigoder: No doubt perfectly correctly, the Minister said that prosecuting counsel in Scotland would only exercise this power in an appropriate case and that he would exercise restraint in doing so. I know nothing whatever about the practice in Scottish courts. I cannot rival the experience of my noble friend Lord Hutchinson in the English courts. He claims to have had 40 years' experience at the criminal Bar and I had only 37.
I wonder whether what has been said about prosecuting counsel is not to paint a somewhat idealistic picture. The reality at the English Bar is that there are solicitors who instruct prosecuting counsel. The reality is that many solicitors prefer aggressive prosecuting counsel who will take the decencies to their uttermost limits. It may be that people are totally different and have totally different standards in Scotland, I know not, but I suspect that if the same temptations apply in Scotland some prosecuting counsel will be more enthusiastic about deciding what is an appropriate case and what degree of restraint should be exercised than will other prosecuting counsel. It may well be that they will benefit professionally in due course from their enthusiasm.
Therefore, I venture to suggest that there is a danger that we shall be starting out on a somewhat slippery slope and that gradually restraint will be exercised with less and less vigour and the appropriate cases will turn out to be more and more frequent. Of course, I understand the point raised by the noble and learned Lord, Lord McCluskey, that the Court of Appeal may well decide to intervene if prosecuting counsel appears to the court to have exceeded the appropriate limits. The problem will arise for the Court of Appeal where counsel has exceeded the appropriate limits and where the judge has then put his foot down—as one would expect—and told the jury that it was quite wrong for prosecuting counsel to do what he did. It is doubtful whether the Court of Appeal would be quite so willing to intervene in such a case, yet the comments of prosecuting counsel may have affected the jury without anybody being able to tell. I therefore view with some doubt the wisdom of the proposal that in the Scottish courts that power should be given to prosecuting counsel.
I should like to add a point that I raised three times during our proceedings on the recent criminal justice legislation. My noble friend Lord Hutchinson has raised this point again today. I refer to the simple case that we have all encountered many times at the criminal Bar of a man who cannot go into the witness box and whose reason for not doing so cannot be told to the judge or the jury. He may not be able to go into the witness box because his alibi defence—his true defence—is "I was

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in bed with my best friend's wife" or "I know who committed this offence. It was my brother". We have all had such cases. During a trial nobody knows—nobody can know—why a defendant is not giving evidence. In such circumstances I venture to suggest that judges would be very wise—as I am sure they are in Scotland—to make sure that they comment on that only in exceptional cases. If the power to comment is given to prosecuting counsel, at times such comment is bound to be passed in cases where the making of such a comment is totally unfair to the defendant.
4 p.m.
Lord Rodger of Earlsferry: Turning to some of the points that have just been made by the noble Lord, Lord Wigoder, perhaps I may say that the position in Scotland is different in that in Scotland we would be dealing in the sheriff court or the district court with the procurator fiscal, who is a permanent member of the public prosecution system in Scotland, or in the higher courts with an advocate depute. All those people are subject to the instruction of the Lord Advocate.
Although I am not suggesting that the approach of prosecuting counsel is absolutely identical in all cases or that all procurators fiscal prosecute in exactly the same way—they are all individuals: they are all subject to instruction—I think it not unlikely that, if such a provision were to be passed, the Lord Advocate would instruct advocates depute and procurators fiscal as to the approach that they should adopt towards the operation of the provision. I have no doubt that such an approach would be along the lines that were indicated by the noble and learned Lord, Lord McCluskey, because to do otherwise would be to invite the jury to approach the case on a basis that would be wrong in law.
If the approach was so over the top two possibilities would arise. If it were very bad, the judge would seek to correct it and such circumstances might give rise, as the noble and learned Lord said, to the possibility of the appeal court saying that because of the approach of the prosecutor the whole situation was so flawed that the conviction should be quashed. Therefore, the prosecutor would act in such a way at his peril. I should have thought that in a very extreme case it might be possible—I do not like to suggest this—for the judge to desert the case on the basis that he was satisfied that a fair trial could not then take place. Such a sanction would always be available.
Although one cannot rule out the possibility of inappropriate comment, I must advise the Committee that I think that that would be relatively rare and could be dealt with appropriately within the existing machinery of our legal system.
Lord Macaulay of Bragar: This has been a long but interesting and informative debate. In general, however, it has completely ignored Amendment No. 78 and has gone off at a tangent, dealing with issues which might have been raised more relevantly in a clause-stand-part debate. Therefore, with the leave of the Committee, and since these matters have been raised, perhaps it will be more appropriate for me to say now what I had been
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going to say at that stage and to answer the points that have been raised. Perhaps that will save the Committee some time.
The Father of the Scottish Bar, Mr. Lionel Daiches, QC, who is now 86, often uses his favourite phrase when evidence has been presented to a jury which the jury is then told to ignore. He says, "It is like throwing a skunk into the jury room and telling them to ignore the smell". So much for over-the-top comments by prosecutors and, even worse, for a judge's attempt to rectify that, because the latter in its turn will only draw attention to the fact that the accused has not exercised his right to go into the witness box should he so wish.
I always understood that a complaint at the instance of the procurator fiscal in Scotland or a petitioner indictment at the instance of the procurator fiscal or the Lord Advocate set out the following: here is a charge which the state is preferring against you and we are going to prove it. I did not understand—I have never understood—that the serving of a complaint or a petition on an individual puts him on his mettle to provide what the noble and learned Lord the Lord Advocate referred to as a "competing account". We are not dealing in competing accounts; we are dealing with proof of the indictment which the Crown has set out to prove against the accused—nothing more; nothing less.
With the greatest respect to the noble and learned Lord, Lord McCluskey, and, indeed, to the Lord Advocate, I find it astonishing that defence counsel may take it upon himself to say to a jury, "Ladies and gentlemen of the jury, you may have wondered why Mr. Bloggs did not go into the witness box. I tell you that he has a constitutional and legal right not to go into the witness box because the onus is always on the Crown to prove the facts of the complaint or indictment". From what the noble and learned Lord, Lord McCluskey, and the Lord Advocate said, it appears that the judge may then intervene and set up an evidential tit-for-tat between the accused and the prosecutor. That is very dangerous territory. If defence counsel mentions the fact and the noble and learned Lord then says, "Well, defence counsel mentioned it so I am going to talk about the accused's absence from the witness box", we are entering very dangerous territory.
Some reasons have been given for why people do not go into the witness box. I well recall a case I had in the High Court in Glasgow when the man was a shivering, gibbering wreck. He could hardly tell me his name. Doctors said that it would be the same the following day and the day after so long as he was facing the indictment. He was physically and intellectually incapable of giving evidence, far less was he able to stand up to cross-examination. But counsel cannot tell the jury that. Counsel cannot say to a jury, "I have just left my client in the cells downstairs. He is a nervous and gibbering wreck, and for that reason he has not given evidence". Counsel are not allowed to give evidence before a jury. They are there to deal with the evidence which has been presented.
The noble and learned Lord the Lord Advocate said that the law in Scotland has stood since 1918. I suggest with respect that it has stood still, and developments since then have merely demonstrated the mess into

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which we are getting. The noble Lord, Lord Hutchinson, referred to the fact that the same standard should be applied to the judge as to the prosecutor, and that in appropriate cases they may refer to the absence of the accused from the witness box with restraint. Who will lay down to the prosecutor what constitutes restraint? Is the Crown Office going to send out a circular saying, "You must exercise restraint. Restraint means this—"? It is an impossible exercise, because every case depends upon its own merits and its own atmosphere. Sometimes there is animosity between the prosecutor and the defence counsel or between the prosecutor and the accused. That is why things take off at a tangent. What the judge said in 1918 was:
"the judge may, and in my opinion should, in exceptional cases comment upon the fact and bring it distinctly under the notice of the jury, who are, of course, always entitled to consider the fact that an accused - who, it may be, is the only man in possession of the full knowledge of the facts—refrains from going into the witness-box for the purpose of clearing his feet and establishing his own innocence".
That has been followed through in other cases. It was said in a case in 1993:
"if there is something which is crying out for an explanation, and he [the accused] gives no explanation, then it may be easier for you to draw an inference of guilt from the facts which have set out the idea that he might in fact be guilty of this".
I do not know what juries make of that type of direction. The jury exists only on the presumption that it does what it is told. In a more recent case, as yet unreported, the same procedure was followed through. The judge said:
"There has been no innocent explanation advanced by the accused, but that is not adding anything to the Crown case".
That is the point of the amendment: there is no evidential value. The word "evidential" was included in the amendment deliberately. I did not say that it was not of any value to the Crown case—of course it may be—but it is of no evidential value. In the case of Deacons the judge said:
"It merely means that when you are considering a particular piece of evidence which looks at first blush as though it might be incriminating of the accused, and you are considering whether or not to draw the inference that it is an incriminating piece of evidence, if you think that it is something which calls for an explanation and there has been no explanation by the accused then, as I say, you might find it easier to draw the inference that it is an incriminating piece of evidence, but that is entirely a matter for you".
The last phrase, "that is entirely a matter for you" is the escape hatch which judges use when giving directions to the court. Time and time again there will be judges' charges which include that phrase perhaps 10 or 15 times in a long case. The Appeal Court will say, "of course the judge told the jury that it was a matter for them", the judge having given a direction in those terms. I wonder what it all amounts to. That is why I ask the Government not to introduce this clause and to think again.
I raise the next point because it is an important one. I assure the noble and learned Lord the Lord Advocate that I am certain that it will be taken up. If a prosecutor goes over the top during an important trial, there will come a point where if the judge does not think injustice may be done to the accused, the defence will perceive injustice being done and will ask for leave to lead evidence to explain why the accused did not go into the
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witness box. That, if it happens, and if it is accepted by the court, will lead to delays in trials, further expense, and injustice. It may lead to a retrial.
At present the prosecutor is allowed to say to the jury, "Well of course the Crown evidence is uncontradicted". That means that the accused has not said anything different. It is then for the jury to decide, on the evidence presented, whether it is satisfied that the Crown have proved the case, which is where the thing all begins and why I put down the amendment in the terms that I did.
If the noble and learned Lord, Lord McCluskey, thinks that the amendment is obnoxious to judges, I am not sure that I apologise, because the judges are the first people to criticise Parliament for not telling them what to do. It might be helpful if occasionally judges were instructed what they should and should not do in appropriate cases. There are other clauses in the Bill where the judge is instructed to give in writing his reasons for taking a certain course.
What I am worried about, having heard the debate—it concerns me greatly—is that the provision has opened the door. If this is the attitude being adopted by prosecutors and judges, we are entering an evidential free-for-all which will be contrary to the interests of justice in Scotland. It will be a sad day for the law in Scotland when this clause passes into the law, as it undoubtably will, bearing in mind the Government's position. Having heard all that has been said today, I shall sit back in a calmer moment, think about things, and decide what to do on Report. There is great feeling about this matter. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26 agreed to.
4.15 p.m.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 79:
Before Clause 27, insert the following new clause:
("Removal of 'Not Proven' verdict
. After each of the sections 153 and 355 of the 1975 Act there shall be inserted the following section as, as respectively, section 153A and section 355A—
"Removal of 'Not Proven' verdict.
. In any trial the verdict to be returned in respect of any accused person shall be either one of 'Guilty' or 'Not Guilty' and the verdict of 'Not Proven' shall, from the date of the passing of this Act, cease to have effect.".").
The noble Lord said: The amendment has been grouped with Amendment No. 80, and it may be for the convenience of the Committee if I speak to them both. I do not speak to the amendments on the basis that they are linked generally, although there may be situations where they are linked. Amendment No. 79 asks the Committee to approve the abolition of the "not proven" verdict in the law of Scotland. That is an issue which has exercised many people in Scotland over recent years. It is very much in the public domain. Perhaps I may say at the outset that I have no interest in any particular case

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which may have been the focus of the press recently. I know that a certain case may have focused the public's mind on the existence of that verdict.
The verdict of "not proven" has been in the law of Scotland for a long time, but we live in a different era now. The law has developed. The Court of Appeal is established to monitor and guide judges as to how the courts should run. The time has come to lay this verdict to rest. We should look to the issue of having just two verdicts; namely, guilty and not guilty. In the Government's paper Improving the Delivery of Justice in Scotland: Juries and Verdicts at Chapter 8 there is an unfortunate omission, because at paragraph 8.1 the case of McNicol v. Her Majesty's Advocate is referred to. It is reported in the 1964 Scots Law Times at 151. In quoting what was said in the case about the "not proven" verdict, the person who compiled the document left out two-thirds. I do not understand how that happened. Perhaps I may quote from Lord Justice General Clyde. In a way I am quoting against my argument but I shall deal with that in one moment. He said:
"The verdict of 'not proven' is well established in the law of Scotland. It has for some centuries proved a useful part of our criminal law and in practice it has worked well. In our view it ought to be left completely open and free to a jury to return a verdict of not proven if they so decide after hearing the evidence and speeches at the trial. But with the explicit and pointed criticism which was made by the presiding judge, in the present case, of this well established Scottish rule, it is quite obvious that the jury was strongly discouraged, from bringing in a verdict of not proven. They were, in effect, left with only two possible choices, when in fact they should have had three. For they were told that the honest and proper thing was either to find the appellant guilty or not guilty.
It is, of course, quite true that under the English system there are only the two verdicts and periodically the cry is raised from across the border that we in Scotland should tamely accept the rule established in the law and practice of England. But for upwards of 200 years a not proven verdict has been available as a third choice in the law of Scotland and no convincing argument has been advanced to justify its elimination from our law.
It is unnecessary to consider all the reasons in its favour, but perhaps I might just mention two. Its inclusion in the list of possible verdicts is much more humane and much more advantageous to an accused than if it were not so included".
The important quotation is:
"It gives a jury, who have some lingering doubts as to the guilt of an accused and who are certainly on the evidence not prepared to say that he is innocent, the chance to find the charge against him not proven. If that third choice were eliminated and if the jury had only two alternatives left, it is almost inevitable that in the situation that I have just envisaged they would hold that their doubts of guilt were not enough to amount to reasonable doubt and he would be convicted. In the experience of all of us there are many cases where a verdict of not proven has been reached and where had that verdict not been available the jury would have found the accused guilty, and there are many men and women today in Scotland who have been acquitted on a not proven verdict and who, had it not been available to them, would have been in prison".
Where does that leave the law? It is perhaps a definition of what "not proven" means; that is, if the jury has a lingering doubt in its mind. If the jury has a lingering doubt, the honest and straightforward answer is to acquit the accused because the Crown has not satisfied it beyond reasonable doubt that the accused is guilty.
The not proven verdict came into the law of Scotland in ancient times—about 200 years ago—in a different structured legal system when juries found the facts proven or not proven and the judges applied the law. Nowadays, juries are instructed in the law which they must apply to the facts that they have found proven. Juries now act as a unit of 15 who look at the facts, find certain facts proved and return a verdict on that. As was said in the previous debate, it is for the Crown to prove its case beyond reasonable doubt and the not proven verdict makes no sense.
If the juries are masters of the facts, as they are told they are, they must not be allowed to be the fudgers of the verdict. That is what happens in some circumstances. I am sure that Members opposite will know that those of us who practise deal with cases where that sticks out a mile, to use a colloquialism. Perhaps in a domestic case where a person should have been found guilty beyond any shadow of doubt a sympathetic jury used not proven as a get-out. We should have no such get-outs in the law and we must therefore get rid of this antiquated verdict.
The nonsense element of the verdict is underlined in paragraph 8.3 of Chapter 8 of the Government's publication. Although we have a definition of "not proven", the Appeal Court instructed judges on its meaning. It instructed judges not to attempt to explain the difference to juries, commenting,
"it is in our view highly dangerous to endeavour to explain what the not proven verdict is in relation to the not guilty verdict".
The verdict was defined, in the broad sense of the word, in 1964 and it amounts to a verdict of acquittal. However, the judges are told, "Don't put your toe in that water; it's too hot. Just leave it and tell juries that the verdicts of not guilty and not proven have the same effect; namely, they are both verdicts of acquittal". As I understand it, that is what is done. It does not do justice to the legal system and, accordingly, I ask the Committee to accept my amendment.
I now turn to Amendment No. 80—
Lord McCluskey: Would the noble Lord care to deal with the amendments separately because, although there may be an element of linking, they are separate issues?
Lord Macaulay of Bragar: I am happy to do that. I beg to move Amendment No. 79.
Lord McCluskey: I address myself to Amendment No. 79. I have some sympathy with the noble Lord's proposition that there is a lack of logic in having three verdicts. Unfortunately, he has chosen the wrong verdict to get rid of. The sensible verdict to get rid of is that of not guilty.
The reason is that in a criminal trial, leaving aside matters of detail, there is only one question. It is not the question, "Is he guilty or is he innocent?". It is not the question, "Is he guilty or is he not guilty?". The only question is, "Has the prosecution proved the case beyond reasonable doubt? Has the prosecution proved beyond reasonable doubt the guilt of the accused man?". Logically, the answer is yes or no.

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If the answer is yes, the Crown has proved the case and it is logical to say that the man is guilty, whether the jury says that or whether the judge says, "I convict you". If, however, the jury says that the case has not been proved, the logical answer is, "No, not proved". It so happens that "not proven" sounds old fashioned because we do not often use the word "proven". "Not proved" is a sensible answer to the question, "Has the Crown proved the case beyond reasonable doubt?". Logically, if the jury states that the case has been proved beyond reasonable doubt, the judge should turn to the accused and say, "In the light of the jury's verdict, I convict you". Alternatively, if the jury states that the case has not been proved the judge should turn to the accused and say, "In the light of the jury's verdict, I acquit you". In a criminal trial in Scotland, one question is never raised unless defence counsel is out of his mind. It is, "Is the accused not guilty? Is the accused innocent?". There is no burden upon him to prove his innocence and the defence is daft to try it.
It is sometimes said that there is a presumption of innocence and that, therefore, if the Crown's case fails the person should be presumed to be innocent. That is a misunderstanding of the nature of the presumption of innocence. The presumption of innocence is a device which operates within the context of the trial. The jurors retire to the jury room with the statement by the trial judge ringing in their ears that a person is presumed to be innocent unless the contrary is proven beyond reasonable doubt. They apply that presumption; they look at the burden of proof; they look at the evidence; and they reach a decision—guilty or not guilty. At that stage the presumption of innocence ceases to have any effect at all. It does not survive the verdict. That is the nature of it. The presumption of innocence does not apply outside the criminal trial itself. It is spent once the question has been answered.
If we were starting from scratch, I believe that there is a lot to be said for abolishing one of the verdicts, but for the reasons that I have given I should abolish the not guilty verdict although I should prefer that the jury would simply return an answer yes or no to the question put to it and for the judge to apply the verdict.
But in my experience, the not proven verdict has come to be used in certain particular circumstances and I should regret its disappearance for that type of case. A classic example of that is where a woman alleges that she has been raped. The jury accepts her evidence as credible and reliable but, for whatever reason, the Crown is unable to produce corroboration for that evidence or the corroborative evidence is destroyed in some fashion with the result that the jury, applying the well-known rule in Scotland about corroboration of all material facts, is unable to return a verdict of guilty; and yet it believes the complainant. The jury can then say "not proven". The jurors are saying that they do not disbelieve the woman but that the case has not been proven beyond reasonable doubt in view of the lack of corroborative evidence. That is a very important safeguard which I have seen applied many times.
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Unfortunately in rape cases it happens, even in the cases which reach court—and many do not even reach that far—that the corroborative evidence is wholly unconvincing, albeit that the woman herself is readily to be believed and relied upon.
The second circumstance in which, in my experience, juries tend to use the not proven verdict is where there is evidence which they regard as acceptable but when they look for corroboration, they find that it lies in the evidence given by policemen. The noble Lord, Lord Hutchinson, mentioned earlier that it is often alleged and sometimes established that policemen have given false evidence, in particular in relation to what is called "verballing"; that is, the statements allegedly given in the form of a confession by an accused person.
Where the evidence consists of some reliable evidence and the corroboration consists of unreliable evidence, in that type of circumstance again it is perfectly legitimate for the jury to bring in a not proven verdict. The jurors are not shedding any doubt on the reliability of the evidence led, other than the unacceptable evidence of the police officers. In particular, I recall a case in which precisely that happened. A woman alleged that she was attacked and robbed by two persons of her acquaintance. Her evidence was perfectly clear and reliable but there was no corroboration at all until, at a late stage in the course of a journey in the police car, the accused was alleged to have said, "I knew that no one would pick me out because they did not get a good look at me as I was doing it", or words to that effect. The jury decided that it could not rely upon that evidence and it acquitted, using the not proven verdict.
As I say, if I were starting from scratch I should no doubt come to the view that we should settle for two verdicts, but it seems to me that we should suffer a loss were we to change a very long-standing practice and abandon the not proven verdict. Accordingly, I do not support the amendment.
4.30 p.m.
The Earl of Mar and Kellie: I oppose this amendment which seeks to abolish the not proven verdict. I wish to retain this historic verdict in the way proposed by the noble and learned Lord, Lord McCluskey.
There has been much recent criticism of the not proven verdict in that it is suggested that it is used as a soft option by juries or that the jurors are under the mistaken belief that the accused can be tried again if better evidence is subsequently forthcoming.
I have two solutions to that: first, a campaign of public education about the verdict and its use; and secondly, a research project, with appropriate dispensations, into the thinking of jurors who had brought in not proven verdicts.
Lord Rodger of Earlsferry: I too would agree with what has been said by the noble and learned Lord, Lord McCluskey, and others that if one was starting to design a legal system now, it seems doubtful that one would incorporate three verdicts into it. It is a matter of observation that other systems do not have a third

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verdict and seem to survive without it. Therefore, as I say, if one were to start afresh, it seems unlikely that one would necessarily incorporate it.
But we are not doing so. The Scottish legal system has had three verdicts for over 200 years. The question is whether there is a sufficient case being put forward for abolishing one of those verdicts and in particular, the not proven verdict.
As Members of the Committee will know, this matter came particularly into public discussion in Scotland as a result of a particular case. Because the matter was given prominence, when the Government were preparing the consultation papers in connection with all those various matters they thought it proper to consult on the question of the retention of the not proven verdict.
As a result of that consultation, which we were at pains to make as neutral as possible, we received a large number of responses. It must be said that two out of three of the substantive responses supported retention of the three verdicts. Those who were in favour included most of the High Court judges, most of the sheriffs and justices of the peace, all individual lawyers and groups of lawyers who replied, all civil liberties groups and all groups representing victims. Those against its retention included the Scottish Law Commission, two police associations, a certain number of individual sheriffs and the campaign to abolish the not proven verdict which, of course, has made that its particular aim.
That campaign attracted considerable support in the Lanarkshire area which is where the particular case arose. However, we were careful to observe that on consultation we could not detect any widespread dissatisfaction with the verdict throughout other parts of Scotland. Therefore, the consultation revealed that, by and large, people were in favour of retaining that verdict and that there was no widespread dissatisfaction with it.
The noble and learned Lord, Lord McCluskey, has given examples of the kinds of cases where, in his experience, it is used. It is certainly the case that the verdict is used to a considerable extent in cases in Scotland and that has always been so. Therefore, it seems to correspond with a need felt by juries, because they choose that option when it is open to them, and it may be that in certain cases—perhaps a rape case such as that referred to by the noble and learned Lord—they find that it better expresses the conclusion which they have reached on the case than would a not guilty verdict.
The noble Earl, Lord Mar and Kellie, referred to the question of education on the subject. We hope that, at any rate to some extent, the consultation paper and the discussion which followed on it in the newspapers and elsewhere have gone some way to helping people to understand the significance of the verdict. I think that from time to time there is misunderstanding here. Of course I know—the noble Lord, Lord Macaulay, also knows it—that judges, when putting the matter before a jury, explain (nowadays in particular) that both not guilty and not proven are verdicts of acquittal.
It is true to say that there have always been opponents as well as supporters of these verdicts. As I said, we have considered this matter carefully on the basis of consultation and have come to the view that the verdict
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seems to operate satisfactorily and in the circumstances it would be wrong to remove it from our legal system. For that reason I cannot accept the noble Lord's amendment.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord the Lord Advocate for his observations and for the contributions made by other Members of the Committee. The noble and learned Lord, Lord McCluskey, has raised an interesting proposition which may be worthy of fuller examination. There is no party issue involved in this at all, although I appreciate that perhaps a Member on this side of the Chamber in another place was involved in the Lanarkshire case that has been referred to. However, what we are discussing is not a party issue. We have always tried to get over the feeling in the public mind on this issue. I believe that that has arisen because of the existence of the three verdicts. When a person receives a verdict of not proven people say, "He did it but they could not prove it". If we had only two verdicts—I have not had time to consider the proposition of the noble and learned Lord, Lord McCluskey—and it was clear to the public what the object of the exercise was (namely, the Crown either proves it or it does not prove it beyond reasonable doubt on acceptable evidence), this middle road in the public mind might very well be dug up, if I can put it that way.
The noble Earl, Lord Mar and Kellie, mentioned research and an amnesty. I believe he was referring to the contempt of court Act which prevents anyone from asking a juror why he or she reached a decision, how he felt about it and other questions. That might be an interesting piece of research. I would feel confident that if the Government tried to find out how juries think, because it is a closed book to everyone else, that might also be an interesting exercise.
It is interesting that the Scottish Law Commission is in favour of abolition of this verdict. I do not think antiquity is justification for retention. To use the old analogy, we used to stick small boys up chimneys to clean them, usually with their heads, but that did not mean to say that chimney sweeps should not have introduced the use of brushes rather than small boys. On the same basis the fact that the verdict of not proven has existed for 200 years does not necessarily make it a good thing in the legal life of Scotland. However, I shall consider with care what has been said in relation to the amendment. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.45 p.m.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 80:
Before Clause 27, insert the following new clause:
("Majority verdict of 'Guilty'
. After section 154 of the 1975 Act there shall be inserted the following section—
"Majority verdict of 'Guilty'.
. 154A. In returning a verdict in respect of any accused person, or persons, no verdict of 'Guilty' can be recorded unless at least ten of the jurors vote for that verdict.".").
The noble Lord said: This amendment was grouped with Amendment No. 79 but I shall now deal with it separately. The proposition is that in Scottish criminal courts as long as the jury remains at 15 members the majority for a verdict of guilty should be increased from eight to 10. Like the not proven verdict, the question of changing the margin in returning a verdict of guilty in the Scottish courts has been a matter of debate over many years. In recent years I have come into contact with people from abroad who work in this area. I have no doubt that the two noble and learned Lords sitting opposite have met many more people who work in other systems than I have. If one discusses the Scottish legal system with them, they ask what happens in a criminal court. One tells them that a person can be sent to gaol for life on a vote of eight to seven out of a jury of 15. At that point they hold up their hands in horror and ask how that can be done in a civilised community.
I make this proposition to the Committee. If the Crown has failed to satisfy seven people out of 15 that an accused person is guilty, does that not in itself cry out that there is reasonable doubt in the Crown proof of the case? We are all anxious that guilty people should he convicted, but we are all equally anxious that the innocent should be protected. I am sure that there are many people languishing in Scottish prisons who have been sent there on a single casting vote, so to speak, of a juror. With respect, jurors may have voted the way they did for a variety of reasons. They may have voted late on a Friday afternoon when it was time to go home. The jurors may have said, "Right, lads, let's have another vote on it", and the juror concerned may have held up his or her hand and said, "All right, I'll go for guilty". If the majority was changed to 10, it would make that possibility at least less likely in the jury room. It gives odds of two to one—for the Crown to prove its case—if I can put it that way.
In England of course there is a different system. A jury can either return a verdict unanimously or after a certain period of time a verdict of 10 to two out of a jury of 12. That is five to one against the Crown in terms of numbers in the jury returning a verdict of guilty. I am not proposing any radical change in the law. What I am proposing may mean just a slight change of emphasis. In a nation such as the United Kingdom it seems a bit daft—to put it no higher than that—that someone in Dumfries can go to prison for life on a single casting vote of a juror, whereas in England he or she would have to have 10 people finding him guilty before any conviction of guilt could be returned. I could discuss this for a long time but the Committee will be glad to know that I shall not do so. The point is a simple one. I beg to move.
Lord McCluskey: This matter was of course related, as the grouping and the noble Lord acknowledged, to the earlier matter. The three matters were dealt with together by the Thomson Committee which reported in October 1975—the three matters being the size of the jury, the size of the majority and the three verdicts. In Chapter 51 the committee concluded that the existing three verdicts should be retained—that was the matter we dealt with just a moment ago—that the number of jurors should be reduced to 12 and that the simple
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majority should remain. We have decided not to reduce the number of jurors to 12 in the legislation that has been through Parliament since that time and there is no proposal to do so here. In the circumstances one wonders what is the reason for moving from the simple majority.
The conclusions which were expressed in paragraph 51.12 of the Thomson Report were to the effect that there was no evidence that the public regarded the present system as working unsatisfactorily. In these circumstances I see no reason to depart from the present position. The noble Lord contrasted the difference between Dumfries on the one hand and somewhere south of the Border on the other. The criminal justice systems are so entirely different that it is not proper to make that kind of comparison. In the circumstances I urge the Committee not to accept this amendment.
Lord Rodger of Earlsferry: As I indicated, in preparing this legislation we consulted on a number of issues dealing with juries. One of the matters concerned whether the simple majority verdict should be retained. We were, of course, aware that retention had been recommended by the Thomson Committee in the circumstances alluded to by the noble and learned Lord, Lord McCluskey, and that has happened. It is true to say that we also consulted particularly having regard to the question of the possible abolition of the not proven verdict. Nonetheless, the result of the consultation was that two thirds of those who replied supported the retention of the simple majority verdict. We took that into account.
The noble Lord, Lord Macaulay, suggested that by introducing a provision for a qualified majority of this kind one would give greater protection to innocent persons. However, we already have built into our system the possible extra protection of the not proven verdict.
With all respect to the noble Lord, Lord Macaulay, he slightly simplified the position in England. As the noble and learned Lord, Lord McCluskey, said, one has to look at the position as a whole. In England the position is rather different. In particular, before any verdict can be returned 10 people have to vote for it. Under the noble Lord's amendment there could be a situation in which as many as nine people were in favour of a verdict of guilty and six against, but nonetheless a verdict of acquittal would have to be brought in. That seems to me to be likely to cause real difficulties. Because of that kind of difficulty, in England in order for a not guilty verdict to be returned one has to have 10 in favour. That immediately gives rise to the possibility—which we know occurs in practice—of hung juries and the need for retrials with all the difficulties which those entail.
Therefore, any reform would have to go much further than that proposed by the noble Lord. We see great disadvantages in the possibility of hung juries and retrials. Therefore, those point against a change. Before we felt that a change was desirable or called for we would have to be satisfied that there was a real problem to be tackled. As I said, our consultation indicated that

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people were satisfied with the system which we now have, including the not proven verdict. Therefore, I cannot accept the noble Lord's amendment.
Lord Macaulay of Bragar: I am obliged to the noble and learned Lord. The fact that the public do not regard a majority verdict as being disadvantageous is perhaps also a simplification. It raises the question of who were the members of the public who replied to the consultation paper. Practitioners and bodies dealing with victims, and so on, reply to consultations. In general the public who are involved are people who have unfortunately become involved in the court process during their lives. Those are the people who know what they are talking about because they have been involved in the practical exercise of this matter, particularly those who' are languishing in prison.
The noble and learned Lord said that one could have nine jurors in favour of a guilty verdict and six against. I say, so what? I do not suggest for a moment that we should follow the English system, but the amendment proposes that for a verdict of guilty the Crown must persuade 10 people out of 15. I suggest that that is not an unreasonable burden to place upon the Crown, which after all brings the charges against members of the public in the first place. However, having heard the reply of the noble and learned Lord, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 81:
Before Clause 27, insert the following new clause:
("Effect of offence on victims
. After each of sections 217 and 430 of the 1975 Act there shall be inserted the following section as, respectively, section 217A and section 430A—
"Effect of offence on victims
. Before determining what sentence to pass on, or what other disposal or order to make in relation to, an offender the court shall have before it a report concerning the effect of the offence on the victim or victims.".").
The noble Earl said: I spoke to the amendment last Thursday when it was subsequently decided not to debate it at that time. Members of the Committee will have noted the similarity between the amendment and Amendment No. 86 tabled by the noble and learned Lord, Lord McCluskey.
I remind the Committee that the purpose of the amendment is that a statement about the effect of the offence on the victim should be made available to the court before proceeding to pass sentence. That would have two useful outcomes. First, it would enhance the balance of care for the victim. Secondly, it would be a useful starting point for the social work process for any offender placed under an order by the court. I beg to move.
Lord McCluskey: The new clause proposed by the noble Earl is grouped with the amendment which I propose. Amendment No. 84 mentions a victim impact statement as defined in Section 217B(2) of the 1975 Act, and Amendment No. 86 creates that Section 217B. The
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amendment is made to the existing Clause 27 of the Bill, which in turn introduces a new section into the 1975 Act which provides that
"In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pleaded guilty to an offence",
a court may take into account certain matters. I propose to add that one of the matters to be taken into account is a victim impact statement as defined in the proposed new section.
My purpose in putting down the amendments is to draw attention to the role of the victim in serious criminal proceedings in Scotland. I acknowledge at once that the wording of the amendments is not ideal, but my intention is not to seek to amend the Bill, and certainly not today. It is to enable us to consider the position of the victim in serious cases where there is an identifiable victim, because in some cases there is not.
I want to emphasise certain points at the outset. I shall address myself to the most serious cases only—those which are dealt with on solemn procedure in Scotland; namely, the jury cases. That is not clear from the amendments as drafted by me, and I apologise for that. That was my intention.
I recognise that it would be extremely expensive and administratively overwhelming to require victim impact statements in every single case, certainly at the beginning. Accordingly, I do not propose that at this stage. I also confine my proposals, as the amendments make clear, to assault cases, including assault cases resulting in death, whether that is described as murder or culpable homicide, to robbery cases and to sexual offences which are listed in Section 141A(2) of the existing Act.
The next point I want to emphasise is that my proposals relate to that stage in the criminal proceedings when it has been established, first, that a crime has been committed; secondly, that an identifiable and identified accused person has been found guilty of committing the crime; and, thirdly, that a person or persons has or have been shown to be victims of the crime of which another person has then been found guilty. I do not think it is right to use the term "victim" in an enactment dealing with criminal procedure before the stage has been reached at which a conviction has been recorded.
Even in that context it is not easy to define the victim, even in a case where the crime has resulted in the death of a person. Therefore, I recognise that my proposed subsection (4) is not the perfect answer to the difficulty, but I believe that a workable definition could be found by Ministers together with parliamentary draftsmen.
What is a victim impact statement in this context? Amendment No. 86 seeks to make the position clear. There are many possibilities. First, the victim may make an oral statement in court. That is the system which obtains in more than 40 states of the United States; it is widespread. I am wholly opposed to that idea; I am not in favour of it. I cannot emphasise that too strongly. The reason is that the situation would be far too emotional for everyone involved. It might be far too traumatic for the victim. It would also be an entirely uncontrolled situation. If one allows the victim to stand up in court, the victim should not be allowed to introduce material

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which should not be before the court. Judicial criminal proceedings should not be conducted in a highly emotional atmosphere. They are intended to produce a just result and a balanced disposal. One could not stop the victim from making new, unsubstantiated allegations, introducing hearsay, perhaps in an extreme case introducing abuse, and making theatrical gestures of one kind or another in highly emotional language.
Perhaps I may illustrate the point. In 1994 in a recent case in the United States the murder victim's widow was allowed to make an address to the judge, as she was entitled to do under the Victims' Bill of Rights. In the course of that address she turned to the accused person, by this time convicted, and in front of many television cameras said, "You are here. My husband is also here", and produced his ashes and dumped them down in front of the person convicted of the murder. That seems to be a monstrous way to allow court proceedings to be conducted. However, it seems inevitably built into the situation where one allows the victim to appear.
I see no place in our procedure for such behaviour. I reject entirely the notion of an oral statement. That is why the clause that I have drafted, imperfect though it is, fairly clearly states that the statement shall be a written statement,
"prepared by a legally qualified member of the procurator fiscal service and signed or otherwise authenticated by the victim",
as defined in the subsection. I emphasise that point. In this Committee we have repeatedly noted that in Scotland the public prosecutor—whether it be the Lord Advocate, one of his deputes or a member of the fiscal service—is exercising a role as a public servant, a Minister of Justice, whose duty it is to place all the relevant material before the court. I envisage him as participating in this exercise in that capacity.
What information should the victim impact statement contain? There are a number of heads in subsection (2) of the clause that I have drafted. They include:
"(i) The personal details of the victim, including his relationship (if any) to the offender, (ii) the physical, emotional and mental consequences to the victim of the offence, (iii) the financial or other patrimonial consequences to the victim of the offence".
I acknowledge that that is largely undertaken now. Some might ask: if that is done now, why is the provision necessary? The crucial difference—I urge the Committee to recognise it—is that the victim will have helped to prepare the statement. The victim will have authenticated it and therefore the victim becomes involved in the criminal justice process. However, even if the victim impact statement contained nothing further than the matters listed in paragraphs (i) to (iii), I believe that that would achieve something. The victim would be able to feel that he or she had had an opportunity to play a real part in placing before the court all the relevant facts. Accordingly, at this stage, apart from involving the victim in that exercise for the reasons that I have explained, nothing that I propose is startlingly new. The only new aspect is that the victim is directly involved.
The victim is involved if, and only if, he or she chooses to be involved. That is made abundantly plain in subsection (3) which states,
"Nothing in this section shall compel a victim to assist in the preparation of or to sign or authenticate a victim impact statement against his will".
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A victim will be able to say, "No, I prefer to leave it to the prosecutor. I've had enough, thank you very much", or, "My confidence is with the court". In the United States research indicates that only 3 per cent. of victims exercised their right. However, that statistic has to be taken with the utmost care because the American system of sentencing is highly distorted by the fact that the prosecutor, the defence and the judge can enter into a plea bargain as a result of which the sentence is determined before the victim impact statement is put before the court. Therefore, knowing that their statement may well have no effect upon the result whatsoever, many victims will not take part. Other statistics suggest that in those cases where the victim has a right to take part, the victim opts to do so in perhaps slightly more than a quarter of the cases. That is also an interesting statistic.
The victim does not always say, "I want blood. I want an execution. I want severe punishment". In a significant number of cases the victim pleads for leniency or some other modest disposal. Those matters have to be borne in mind although I believe that it is dangerous to consider the American experience where the criminal justice system is entirely different.
I turn now to what I believe are the novel features of my proposal. First, I believe that it is essential for the due and proper administration of criminal justice that before the judge determines the sentence to be imposed, he should have before him all the relevant information. I cannot imagine that anyone will contradict that proposition. In particular he needs to have full information about the criminality—the wickedness, the evil as it were—that inspired the criminal act. That is always a relevant matter: how wicked was the person? What is the criminality of the offence? That information might, and commonly does, include mitigating material about the person's background, and state of intoxication—that has a certain relevance in regard to sentencing although not in relation to the commission of the crime itself—or circumstances arising from the events themselves. The criminality is one aspect.
The second matter on which the court requires to have information relates to the consequences of the crime. Some people have argued that one should not take into account the consequences; one should simply consider the criminality. In my judgment that does not accord with common sense. If a drunken driver drives off the road, crashes into a shop front and breaks the glass, that is one thing. If a drunken driver who is just as drunk and no more drunk drives off a road, crashes into a bus queue, and kills three children, that is an entirely different matter and the public would not understand if that difference were not taken into account. Therefore the consequences of the crime are undoubtedly a relevant matter.
It is sometimes true that the consequences of the crime change the character of the crime itself. I give one instance. If you take a bottle into a pub and hit two men on the head, of whom one has a thick skull, he will turn round and punch you on the nose. The other has a thin skull and dies. So you face two charges: simple assault;

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and culpable homicide. Therefore the consequences matter in relation not only to the nature of the crime but also to the appropriate penalty.
Currently and traditionally the convicted person will be able to place before the court material on all mitigating factors including those essential elements. He has the right to do so personally, or he may do so through his lawyer, commonly at public expense although that is not a matter of any great importance. In addition to placing material before the court by one of those routes, he can submit reports which have been prepared by others—psychological reports and medical reports. Social inquiry reports are placed before the court which largely contain the narrative of the accused person to the appropriate social worker or probation officer. So there are many routes by which the accused can place his account of matters before the court.
Not only that, he is entitled to call witnesses in mitigation of the penalty. He can, and commonly does, make allegations about others who are involved in the case. That sometimes happens in relation to the deceased. For example, we shall discuss later the case of Boyle, which will be referred to in connection with an amendment put down by the Government. The deceased was an infamous criminal called Bennett, from Glasgow. Undoubtedly, when I, as the trial judge, was moved to impose sentence, my attention was drawn to the fact that Bennett was a villain and his loss to Glasgow was not serious. That is a matter which I was asked to take into account. However, sometimes allegations are made about the deceased or the complainer which are not as easy to understand and establish.
In summary, the convicted person can always place before the court whatever he and his lawyer believe might help to mitigate the penalty. He has the right of appeal if the penalty is too severe, but the victim has no say whatsoever. It is not the job of the prosecutor to say anything at all about the possible sentence. In that context, I might refer the Committee to what was said in the McKenzie case in 1989, in which the noble and learned Lord the Lord Advocate appeared in his role as Solicitor-General. There the trial judge—who was myself—had taken a course of which the court, I confess, entirely disapproved. In the course of his opinion, which was the opinion of the court given by the Lord Justice General on behalf of himself, the Lord Justice Clerk and Lord Brand, the Lord Justice General, said:
"It is right at this stage to emphasise the position of the Crown in this matter. As we have said, the Crown is the master of the instance at all times up to the moment when the prosecutor has moved the court to pronounce sentence. But at that stage, the matter moves entirely from the Crown to the court, and it is desirable for good reasons of public policy that the Crown should not be involved in the process of sentencing in any way whatever. It is known to all who practise in the criminal system of this country that the Crown has absolutely no role or interest in this process. The learned Solictor-General"—
that is, the noble and learned Lord, Lord Rodger of Earlsferry—
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"today has quite rightly emphasised the importance of this principle and he has stressed that nothing should be done to weaken it in any way by putting the burden of a requirement such as placed on the Crown in this case to participate in the process".
So the Crown thoroughly disapproved of what had been proposed: namely, that the victim should be invited to consider expressing a view on the matter. That is a fundamental principle, that the prosecution should not be involved in the process.
Again, I draw a distinction between Scotland and England on the one hand and the United States on the other. What has happened in the United States as a result of the victims' bills of rights in the various places in the legislation is that the prosecutor has become, as it were, counsel for the victim. So he is the one who presents the victim as an oral witness in support of the victim impact statement. It is he who adduces the witnesses and in one case of which I know, the victim employed lawyers and inquiry agents to round up people who could show what a villain the accused was and the prosecutor then leads all those people as witnesses. The prosecutor enters into the process there. In my view, he should not do so here, except as a person who mediates between the victim on the one hand and the court on the other in the way of helping to prepare the statement and keeping it relevant and balanced.
In referring to what was said in the McKenzie case, I emphasised and I repeat that the Crown has no role in sentencing. In fact, that is the theory, but in practice there are sometimes departures from it. The most common way in which the Crown actually plays a role in relation to sentencing is this. The Crown may decide, for perfectly understandable reasons, to accept a lesser charge or to allow deletions from the charge. So, where someone is accused of using a knife repeatedly, the word "repeatedly" may disappear. If the charge is assault to cause severe injury, the word "severe" may disappear. There will, I hope, always be a justification for that, but there is a power with the Crown to reduce the charge and thus to reduce the sentence.
However, in the more serious case—and the one which is relevant here—the case may be settled by a modified plea. We do not have the American type of plea bargaining with the judge involved, but we have plea bargaining. The accused can go to the Crown and say: "Would you accept such-and-such a plea?" Alternatively, I have known the advocate depute, even in the High Court, to approach the defence and say: "We would be willing to accept such-and-such". That is one thing: to accept a modified plea, drop charge one; plead guilty to charge two; plead guilty to charge three, as amended and under certain deletions. That is the kind of deal which is necessitated by expediency at present.
However, what sometimes goes with it is that the defence and the prosecution agree on a narrative of the matters to be put before the court. I have known that to happen. It is not concealed from the court, and an advocate depute will stand up and give the account and if I say: "What about such-and-such?", he will say: "My Lords, my learned friend and I have agreed the narrative and I do not propose to add to it or subtract from it". What we may then get is, from the victim's point of view, a sanitised version of what happened.

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The victim being unrepresented, the victim being unheard and the victim being told nothing at all about either the modified plea or the agreed narrative, he or she may simply pick up the evening paper, listen to the evening radio or watch the television and discover what has happened in his absence. There have been a number of notorious cases at least reported in the newspapers of victims, as one can imagine, being seriously upset at the result of proceedings and greatly frustrated that they had no part in it.
All I ask in that regard is that the victim in serious cases involving some kind of personal hurt should be given an opportunity, which he or she can accept or reject, to place his or her views and perspective before the court. I do not suggest that the victim should tell the judge what to do. The maximum I suggest is contained in paragraph (v) of subsection (2) in Amendment No. 86:
"the victim's recommendation, if any, to the court as to whether or not leniency should be exercised in passing sentence".
I wish to emphasise what I believe is the moderation of that wording. I do not believe that the victim should be entitled to say: "Send him away for life", "Execute him", or whatever. I do not believe that the victim should have that right. If the victim should have any word at all in relation to the sentence—and I remain to be persuaded that that is an entirely good idea—it should simply be a recommendation as to whether or not leniency should be exercised in passing sentence.
Paragraph (vi) is a technical matter. The victim's impact statement could contain,
"any other matter prescribed by Act of Adjournal".
That would simply allow the system to be developed in the light of experience.
I believe, in common with others—including the noble Earl to whose amendment we are technically speaking at this stage —that more account must be taken of the concerns of victims, their interests and perspective. They must be treated with greater dignity and respect. They should not be regarded as they were in the past—but I think not now —as fodder for the criminal process. I have been saying that publicly for more than a decade: I referred to the matter in the Reith Lectures which I delivered in 1986. Members of the Committee who were fortunate enough to buy a copy of the book before it was remaindered will find references to it in the book. In particular, I quoted there from an article which appeared in The Times of 5th March 1986 which reiterates something of what I said. I quote from the article:
"After a guilty plea it is possible, and quite usual, for the defendant's lawyer to plead in mitigation of sentence that it was really the victim, not the defendant, who was to blame … The victim cannot insist on being heard".
The author of that article, John Spencer, goes on to quote Victims in the Criminal Justice System in an article which demonstrates that victims though pleased with the police, were,
"increasingly disappointed with criminal justice as the case went on. By the end some were so fed up that they vowed that they would not bother to report an offence another time".
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That brings me to the next point. There is a danger that if we, as the mechanics of the criminal justice system who try to operate the machine, do not take account of the interests, feelings and concerns of the victims we shall alienate them from the criminal justice system. Each time we alienate a victim we alienate members of his or her family and friends. The criminal justice system is crucially dependent upon the co-operation and support of victims, witnesses and the public. If we neglect the proper interests of victims and others, we put that co-operation and support at risk. Accordingly, in supporting the principle of the amendment that the noble Earl put forward, I commend my Amendments Nos. 84 and 86. I shall return later to the other amendments. For the moment I confine myself to the principle of victim impact statements.
Lord Macaulay of Bragar: From this side of the Chamber this amendment obtains a modified amount of support. There is no doubt that everyone in society is anxious that the victim should always be considered right through the judicial process. There is equally no doubt that it has taken a long time for the victim to be recognised as an integral part of the process and not just as an artefact within the process.
One of the difficulties in Amendment No. 86 might be the use of word "impact", which perhaps carries with it several connotations which the amendment could do without. Perhaps it might simply read "victim statements". Otherwise it suggests that what the victim tells the court will have an impact one way or another. If it has an impact and there is no provision for the judge in a particular case to say what element of the sentence imposed is attributable to the victim impact statement, another spectre is raised of appeals being taken against sentence on the basis that the judge was unduly swayed by the victim statement.
There is also the question of the cross-examination of the evidence that is being presented to the court. I know that subsection (5) of Amendment No. 86 obliges the prosecutor to serve the statement on the accused,
"not less than seven clear days before the trial diet".
However, there is no provision that, having received that, the accused can then serve notice on the prosecutor that he intends to lead a multiplicity of witnesses, as was perhaps intended in the case to which the noble and learned Lord has already referred.
In speaking at this stage, I am grateful that, as the noble Earl indicated, he put the amendment before the Committee perhaps as a pipe-opener to the Committee becoming more involved in debating the issue of the victim within the criminal justice system.
What troubles me and a number of other people is that, by the time the case comes to court, the victim—and particularly a young victim—perhaps of a sexual assault, of which, as we all know far too many cases are coming to the fore these days, may have received counselling for a year. That victim may very well be on the road to recovery. If this amendment were to stand in its present form, it would mean that the prosecutor would have to contact the victim—perhaps it might be more appropriate to say an adult victim—who might be receiving counselling. It is well known that reliving the

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dramatic events of assault can set a person on the downward path back to square one. I wonder whether it might not more appropriately be made clear to a victim, and made a part of statute, that the victim should always have the right to contact the court should he or she so desire. That can be communicated to the victim through the various organisations that now exist throughout the United Kingdom. There are plenty of social workers who could become involved to advise the person of the right to contact the prosecutor if he or she so wishes prior to the case being dealt with. There are counsellors; and there is also a victim support organisation which deals now with many victims—in Scotland in the past year it dealt with 40,000.
The received wisdom, as was brought out in a poll, is that, generally speaking, victims do not want to take part in the retribution process. Basically, they do not want to be involved at the end of the prosecution in the sentencing. I do not say that this happens in all cases, but mainly they just want to forget about it.
It is also always open to the court, when considering sentence, to ask the prosecutor if he can give or obtain further information on the condition of the victim. Indeed, I was involved recently in a case where that was done. The judge insisted that he wanted to know how the victim was. The advocate depute then advised him fully as to the result of the assault.
One other matter which I raise merely in passing is that Amendment No. 86 states:
"the prosecutor when moving for sentence shall, if possible, place before the Court a victim impact statement".
What constitutes the "possible" and what constitutes the "impossible" is not stated. We may get, as it were, a dual standard of justice whereby the prosecutor may say that in a particular case a victim impact statement will not be sought and in another case says that it will. Depending on the nature of the statement, differing standards of justice may be applied in the sentencing. In a case where a person has died, there is the question as to who is the victim. The victim is the body, but the victims in murder cases are the immediate family and even the extended family. In a murder case it may not make much difference, but nonetheless there is a victim.
I am not very happy about victim involvement at all in relation to direct involvement in sentence, even so far as saying to the judge that he should exercise leniency. That is for the judge to say.
The amendments at the hand of both Members of this Committee are well-intentioned and probably necessary in order to put some pressure into this particular area of criminal law in Scotland. It would be interesting to know whether the Government would be prepared to constitute a working party to look into the role and scope of the victim in assault cases within the categories that were defined by the noble and learned Lord, Lord McCluskey, as being applicable in his amendment.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): This has been a very interesting and important debate. I am particularly grateful to the noble and learned Lord, Lord McCluskey, for his contribution. Not only did he have a number of very
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innovative and interesting ideas to put forward, but he brought to his argument a comparative perspective of which I believe few of us would have comparable experience.
As the noble and learned Lord expressed in general terms, and as has been expressed in general terms by those who contributed to the debate, it is absolutely right that we should have a proper regard for victims in our criminal justice system. As the noble and learned Lord pointed out, if we do not do so we take the grave risk that in future they will not be willing participants in the process of justice. I have no doubt that there has been a sea change in attitude and that must be fostered further. I hope that the Government have indicated how important that is by giving extended funding now to victim support services. In the past year we spent some £878,000 on victim support in Scotland, whereas just over a decade ago virtually nothing was spent.
I am sure that those who have been victims of crime in Scotland in the past would also have complained about such practical matters as the accommodation that was provided for them when their case came to court. They often had to share witness rooms with friends or relatives of the accused and often found themselves in a state of some horror and terror before they even entered court. I have no doubt whatsoever that we should give a proper emphasis to the position of victims and do all that we can to alleviate the difficulties that they encounter.
The noble and learned Lord, Lord McCluskey, was right to point out that as things stand at the moment there is a considerable volume of information about the impact on victims contained in reports which the police make to the procurator fiscal; and, in cases in which the procurator fiscal undertakes it at precognition, further information relating to that impact will be obtained. That information, so far as it is relevant to the proceedings, is generally communicated by the Crown to the courts. As the noble Lord, Lord Macaulay, said, it seems to be a growing experience that, if that information is not up to date, the court will regularly ask for it to be expanded upon or for fresh information to be provided.
I hope that with that background it will be possible to improve the position in Scotland. I noted with interest that the noble and learned Lord brought forward this matter so that there could be a general debate on the issue. He does not seek to persuade us on the detail of his full amendment at the present time. That is important because he has, in a sense, by indicating that he does not insist on all the detail, removed a number of the worries that I had about the amendment. It had concerned me that this could be an extremely costly exercise which would duplicate effort and waste resources. I am sure that he appreciates the circumstances in which such waste might occur.
I noted with interest, if I understood him correctly, that what he is now driving at is that' if such a victim impact statement is to be prepared, it should be prepared as closely as possible to the point of sentencing and—he will correct me if I am wrong—after the conviction has been secured. If it is prepared at an earlier stage, a number of difficult practical problems will occur.

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First, the information may be out of date. Let us consider an impact statement for which the charge is one of serious assault and rape. At the end of the day, the jury may come back with a verdict of serious assault only. Considerable detail may be contained in a victim impact statement prepared before the trial dealing with the issues relating to the rape charge on the indictment. That example seems to me to underline the great difficulties that we might encounter if we try to take this matter forward without careful thought. On a number of occasions in my experience it has come about that the victim does not much care for the account given by the prosecutor, which varies not because the matter is not being looked into with sufficient attention to detail but because he understands the legal framework in which the statement has to be made. If the rape charge is not secured by a conviction, he cannot bring forward such information. In those circumstances there can often be irritation and indeed anger on the part of the victim in the case.
I want to read very carefully what has been said in the course of this debate. But it seems to me that what is probably most important for victims as trials go forward is that they should be fully advised of what is going on. It is frustrating and causes anger to discover that a plea of guilty has been accepted and they have been told nothing of what is going on. I hope that the work that my noble and learned friend the Lord Advocate and his Crown office are undertaking, which should mean that the system is providing more information to the victim, will indeed prove to be a successful exercise.
What has come through are the comments of such individuals as Alison Paterson, who is known to many Members of the Committee as the director of Victim Support in Scotland. She was quoted in the Scotsman newspaper of 7th January as saying that she took the view that:
"there's absolutely no evidence to substantiate the view that victims wish a role in sentencing … This cannot address the problems which cause victims distress in the criminal justice process".
Her focus of interest would be the provision of information to victims rather than bringing them into the sentencing process. I understand very well why the noble and learned Lord is so reluctant to see the victim coming into court at a late stage to try to influence sentencing. The wish to have information about what is going on is the greater desire.
Given what the noble and learned Lord said about his recent experience and knowledge of the United States, perhaps I may refer to an article in the Criminal Law Review of 1993, in which Professor Andrew Ashworth of London University assessed the use of victim impact statements in various overseas jurisdictions. He concluded:
"The right to submit a victim impact statement may be high in profile but low in improving genuine respect for victims. We should hesitate and reconsider before going further in this direction".
I do not believe that we should refuse to examine this matter, but for the reasons that I have given, and a number of them were implicit in the Committee's remarks, I believe that we should be very careful before introducing into the system an arrangement which might
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prove extremely costly in resource terms and which, at the end of the day, might not be of as much value to the sentencer as we would wish.
I have no doubt that questions about the role of the victim, how the victims are to be supported and whether we should go along the line of victim impact statements will form a central part of our debates on the criminal justice system. I am grateful to the noble Earl for introducing this amendment and giving us the opportunity to consider this very important matter.
5.30 p.m.
The Earl of Mar and Kellie: The amendment called for new emphasis as regards concern for the victim. I have been very pleased by the discussion that we have had and very impressed by it. Personally, I see no role for the victim in sentencing. To go back to first principles, we have a court system to take away from the victim the need to seek personal revenge in any form.
With regard to victim impact statements, they could be called for when the social inquiry report is being prepared. At least a second statement could be requested. That would be particularly important when a probation order was being considered by the court. There is always a time lag between the commission of the offence and conviction. In a strange way that may be no bad thing. The time lag allows the offender to be shown the difficult stages that the victim went through in terms of recovery from the impact of the offence.
Finally, I hope that this provision could be considered not just for victims of assault but also for victims of house break-ins when the offender has committed the offence too many times. It would be helpful to obtain information from householders as to how they reacted in the ensuing months.
This has been a useful discussion. I beg leave to withdraw the amendment.
Lord McCluskey: Before the amendment is withdrawn, I should like to save time in coming back to these matters by dealing with the remaining matters in the associated amendments, Amendments Nos. 84 and 86.
Amendment, by leave, withdrawn.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 82:
Before Clause 27, insert the following new clause:
("Sentence to include compensation order
. After each of sections 217 and 430 of the 1975 Act there shall be inserted the following section as, respectively, section 217A and section 430A—
"Sentence to include compensation order.
.—(1) The court shall, in passing a sentence on an offender for any offence, consider the effect of the offence on the victim; and where the victims, or any of the victims, is a private individual and has suffered personal injury (including psychological injury) or financial loss or damage the court shall, subject to subsections (2) and (3) below, include in the sentence an order against the offender compensating the victim or victims against the injury, loss or damage.
(2) The court may decline to make a compensation order under subsection (1) above; and if so the court shall give its reasons for declining.

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(3) The court may not make a compensation order under subsection (1) above in respect of loss or damage against which the victim is insured or is capable of being insured.".").
The noble Earl said: I spoke to this amendment on Thursday last, though it was not discussed at that time. Suffice to say that the amendment would have the desirable effect of bringing a new priority to the sentencing process. The compensation order would become automatic unless there was good reason for one not being made; for example, where the offence was committed by rivals rather than against unknown and innocent victims.
Amendment No. 82 is grouped with Amendment No. 146. In a way it deals with victims and with money and for that reason I should like to speak to it at this time while the Committee has victims in mind. The purpose of Amendment No. 146 is to arrange a statutory basis for funding voluntary organisations which seek to support the victims of crime and to enable them to put the experience behind them. At present such organisations are eligible for grant aid from central and local government sources. But that is subject to the changing priorities and whims of political decision-makers. Such changes of political emphasis are not a bad thing. However, that is no way to fund a victim support service.
Discretionary funding is a sound way of funding projects to allow them to prove that they can make a significant contribution to society. I regret that I can see no end to the need for a victim support service. It should remain in the voluntary sector, for it will be staffed by a few full-timers and many volunteers. But the funding of the service should be put on a permanent basis. I believe that the method advocated in the amendment—taking a percentage of the proceeds of compensation—will be supported by the people of Scotland, who are fed up with the effects of offending behaviour on individuals and property both private and public. I beg to move.
5.45 p.m.
Lord McCluskey: As the Committee will recognise, the amendment proposes also to deal with a requirement upon the court to consider the effect of the offence upon the victim. On that technicality I shall endeavour to make the points that I should have made on the previous matter, had I been on my feet before the noble Earl withdrew the amendment.
I simply want to say that I am satisfied that the amendments being considered today in relation to the impact upon the victim provoked a worthwhile debate. I am particularly grateful to the noble Earl for introducing in his reply the word "revenge". That is something we must take elaborate steps to avoid. If I were to conclude that the introduction of victim impact statements were to make revenge a factor in the sentencing of persons convicted of crime, then I should certainly not support the amendment.
In relation to certain matters of detail, in my amendment, which we have not yet reached and to which I shall not speak separately, I proposed that there should be an intimation to the accused person of the
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victim impact statement. One reason for that is to allow the details to be challenged, and we would need procedure for that. Another reason is that it is extremely important that we bring home to accused persons, in the calmness of the dock or the cell to which they go after leaving the dock, what was the impact on the victim. Too many crimes are committed by people who dismiss them as having nothing to do with them; they do not care about the consequences. There is much to be said for the view that the victim impact statement should go directly to the accused person and he can have it on the wall of his cell for the period of time that he spends there.
I shall not reply to the matters of detail raised by the noble Earl. I used the words "if possible" because the victim may survive and be a vegetable and therefore be unable to co-operate in any sense required by the statement; he may be a person of low intelligence; he may have disappeared or refuse to co-operate. There are many reasons why I inserted the words, "if possible".
At this stage it is the principle that matters. I acknowledge, as in all these matters, that the devil lies in the detail. It may be that, when one examines all the details and all the matters discussed today and raised elsewhere, it is impossible to find solutions to some of the problems. However, I invite the Government to consider putting the matter to the Scottish Law Commission. Though I support the noble Lord, Lord Macaulay, who made a proposal for a study group, I should prefer that it be done by sending the matter to the Scottish Law Commission and I am sure that the Government will consider that proposal.
In relation to details such as the timing of the preparation of the report, that could be done before conviction and might need to be amended if the conviction did not reflect the charge. It is not easy to obtain access to published material on this matter in this country. I have access to a large volume of material from the United States. Members of the Committee may be interested to watch a television programme next month—"The Heart of the Matter"— on a Sunday evening, when some light may be shed upon this matter by those who accompanied me to the United States to look at the Californian system.
Lord Fraser of Carmyllie: The noble and learned Lord made a suggestion in relation to the Scottish Law Commission. I do not think he will expect me to make an immediate response; but I shall certainly bear in mind what was said both by him and by the noble Lord, Lord Macaulay, on this matter.
Since the implementation of the Criminal Justice Act 1988, courts on this side of the Border have been required to explain decisions not to make a compensation order in specific cases. That requirement seems to have had some success in concentrating judicial minds on the issue of compensation and in increasing the use of such orders. We must take due notice of that apparent success when deciding whether to impose a similar duty on Scottish courts. However, a number of other considerations need to be taken into

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account. For example, we need to consider whether such a provision would prove equally successful in Scotland in increasing usage.
In order to facilitate comprehensive consideration of the issues involved, the Scottish Office last year commissioned further research into the usage of compensation orders. That research, which is now being conducted by a team from Stirling University, involves statistical analysis and interviews with victims and offenders. Unfortunately, its results will not be available for some months. We take the view that it is reasonable to wait for that research and consider all the issues before introducing a provision of the type now proposed by the noble Earl. I am instinctively sympathetic to the notion that measures should be taken to increase the usage of compensation orders. I shall be grateful if the noble Earl will consider withdrawing his amendment. In return, I shall undertake to reconsider the position and see whether we can usefully take any steps in the current Bill. I stress that at this stage I cannot give any firm commitment; I merely give an assurance that we shall look at the issue sympathetically.
There is one feature of his proposal that I do not regard sympathetically; that is to say, that a distinction should be drawn between those covered by insurance and those who are not. If he reflects upon the matter for a moment he will envisage an awkward circumstance where a householder who is repeatedly broken into may find that the only compensation he can obtain is by turning to an insurance policy. As a result his insurance premium may be increased while the individual next door with no insurance whatever may find satisfaction in compensation orders.
I turn to Amendment No. 146. I appreciate that the noble Earl is assiduous in his efforts to secure maximum support for victim support, and I sympathise with his aim. However, I do not consider that the automatic diversion of any amount from the proceeds of compensation to Victim Support or any other bona fide organisation is appropriate. The noble Earl will appreciate that, although certain parts of the proceeds are distributed, what is left in the ordinary way goes to the Exchequer for redistribution, as appropriate, across the whole range of public support, including the funding of victim support organisations. That is appropriate. Bodies such as Victim Support need consistency so that they can operate and plan within known financial constraints. The rather uncertain quantity that would be implicit in the noble Earl's proposal would not be compatible with that objective. I certainly understand and share his view that Victim Support should be appropriately funded but I would respectfully suggest that this is not an appropriate way.
The Earl of Mar and Kellie: Once again we have had a rather good discussion. I realise that these were two of my rather more risky amendments and I am not surprised by what the noble and learned Lord has said, particularly about the appropriateness or otherwise of funding Victim Support in the way I am proposing. However, I come back to one of the two central themes which I have been trying to put forward—this mirrors what was said by the noble and learned Lord, Lord McCluskey—which is bringing home the impact of the
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offence to the accused. Quite often, at Longriggend remand centre, I would have a discussion along the lines of, "Why did you pick on Mrs. So-and-so and break into her house?" and I would be hit with the answer, "Who's that?" Clearly, up to that point, the offender had not been confronted with what he had done to a particular individual. It is important that we should make it possible for offenders to understand why their behaviour is so unacceptable. However, I note what the Minister said and I am prepared to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 83:
Before Clause 27, insert the following new clause:
("Racially motivated offence
In considering the seriousness of any offence which in the opinion of the court was committed with a racial motivation, the court shall treat the fact that it was committed with that motivation as an aggravating factor.").
The noble Lord said: This amendment is linked with Amendment No. 130 and the noble and learned Lord the Minister has kindly advised me that he will accept that amendment. These amendments are placed before the Committee because of the increasing incidence of racially motivated or apparently racially motivated crimes in Scotland. The number of such crimes reported to the Scottish police has increased from 299 in 1988 to 726 in 1993. Those are the offences which are reported. Many people who are subject to racial harassment do not go to the police because it just makes matters even worse.
The main amendment is Amendment No. 83, which requires the court to treat a racial element as an aggravating factor in the offence committed. It is brought before the Committee for the general reason that most of these cases are dealt with in the lower courts—either in the district court or the sheriff court—and there are really no proper statistics available. It is hoped that in the near future statistics will be available. The noble and learned Lord the Minister wrote to the Commission for Racial Equality on 4th December and also gave a news conference on the matter. He accepted that not enough statistics are available at the moment and indicated that the Crown Office and the police are monitoring matters to see whether a picture will emerge. However, that will take some time.
An attempt was made to introduce a specific crime of racial harassment in the context of this Bill but it was deemed not to be within the scope of the Bill. I wonder whether the Government, who I am sure will co-operate in every way to see that this vile behaviour is brought to an end if it possibly can be, will in the course of monitoring the information as it comes in bear in mind that there may be a need to introduce a special offence of racial harassment. It is difficult from breach of the peace statistics to tell whether an offence had a racial harassment element to it. However, if a person were charged with racial harassment or, alternatively, breach of the peace, the statistics would become clear in the court.
As with the other matters which have been raised in relation to the victim, it is important that the country should send a message to these racist hooligans that to behave in this offensive way towards their fellow citizens is not acceptable. I am sure that the Government and those on this side of the Committee will do everything in their power to make sure that they suffer for any sins that they commit. In that context, I beg to move.
Lord Fraser of Carmyllie: Amendment No. 83 is very similar to one which was tabled for England and Wales by my noble friend Lady Flather during the passage of the Criminal Justice and Public Order Bill last year. On that occasion, your Lordships were perhaps influenced by the arguments put forward by my noble friend Lord Ferrers on behalf of the Government and the proposal was overwhelmingly rejected. Those arguments are as equally applicable to Scotland as they are to England.
No one could disagree with the importance of ensuring that the sentence passed by the court should reflect the seriousness of the crime. That is an important principle with which we all agree, whether the crime is racially motivated or stems from other acute forms of intolerance. However, as my noble friend argued during the previous Session, courts already take into account any such factors when assessing the seriousness of the offence. In addition, my noble and learned friend the Lord Advocate has already instructed that in Scotland the prosecution should inform the court of any evidence of racial motivation in relation to any of the charges. Where the prosecution establishes that an offence was racially motivated, and where the court is satisfied that it increased the seriousness of the offence, the court is already able to take that into account. It will be appreciated that we would not want to single out any factor, but we believe that they should all be balanced and brought before the court. In another place last Session the then Home Office Minister, Mr. Peter Lloyd, made the point that if such an amendment were to be accepted it might send a signal that an assault motivated by the hatred of women, or hatred of homosexuals, or contempt for the frail and elderly, should, for example, be treated less seriously than an assault motivated by racism. It is clear that that would be quite unacceptable.
The noble Lord has already indicated that I am prepared to recommend to the Committee that the second amendment should be accepted. Section 95 of the Criminal Justice Act 1991 requires the Home Secretary annually to publish information which will enable persons engaged in the administration of criminal justice better to perform their duty to avoid discriminating on racial grounds. This amendment would impose a rather similar requirement on the Secretary of State. As the noble Lord indicated, that was put to me last year by the Commission for Racial Equality in a letter from its Scottish commissioner. At that time I explained in my reply that after careful consideration it appeared then that the introduction of such a provision would not be appropriate. What caused me to reach that conclusion then is that at the time only
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a limited amount of information was available in Scotland. That was partly because the proportion of the Scottish population from ethnic minorities is so much less than in England and partly because until recently it has not been possible to extract statistics for common law prosecutions with a racial element. In that context it seemed to me that the information that would be published would be of dubious value.
However, since then matters have improved. Scottish police forces are adopting a system of tagging reported crime with a racial element or allegation. In addition, the Crown Office is introducing a system of recording cases which picks up on the police tags. These steps have been taken because of the importance of addressing racial crime, and that is well understood. They will ensure that in the not too distant future it should be possible to achieve a more detailed analysis of the numbers, progress and outcome of cases with a racial element.
For these reasons I am now happy to recommend acceptance of the new clause. I have no doubt that this action will be welcomed by the Commission for Racial Equality and by members of the ethnic communities in Scotland. I am grateful to the noble Lord for introducing it.
6 p.m.
Lord Macaulay of Bragar: I am grateful for the reply given by the noble and learned Lord. In the circumstances, we shall watch with care what is happening in the monitoring system. I note with interest the undertaking to keep in touch with the Commission for Racial Equality. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 84 not moved.]
Lord McCluskey Lord McCluskey moved Amendment No. 85:
Page 19, line 2, at end insert:
("(d) any recommendation made by the jury in terms of section 217C of this Act").
The noble and learned Lord said: This amendment seeks to add a provision to that contained in the clause and requires the court to have regard to,
"any recommendation made by the jury in terms of"
the new section which is to be called Section 217C. That is printed as Amendment No. 87 in the Marshalled List.
This again is a matter to which I return after an interval of about nine years. I first made this suggestion in the Reith Lectures in 1986. It is very important to recognise —in a sense I am dealing at the moment with an objection to this proposal—that consistency in sentencing is important. I recognise at once that if one allows input by juries into sentencing—because the jury sits only once it is unique and it never meets again—one certainly risks an element of inconsistency being introduced into sentencing.
Before I turn to the particular proposal, perhaps I may say that in Scotland at the present time the judges are co-operating in a university-based study into consistency in sentencing. That is a very important piece of work to which much of the credit goes to the Lord

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Justice Clerk and the other judges who are co-operating. It is hoped that we shall be able much more readily to be consistent in our sentencing in future.
It may be argued that consistency is in a sense all important. I do not believe that that is necessarily so. I do not believe that consistency is enough. Consistency simply means that one judge will do what all the other judges do and there is an element of justice in that. But in a sense there is no public input into what it is that judges should do.
I put this forward for thought. One of my difficulties is that if one has a case where a man on the spur of the moment, as it were, indecently assaults and perhaps even rapes a girl of 14 or 15 years of age, that should call for a certain penalty. If a man spends two years planning a great and monstrous fraud and gets away with, £1 million, so that there is a tremendous element of deliberation, how does one compare those two things? What do the public believe should be the comparison between those two types of offence? There is a difficulty there in that we have not consulted the public.
I am not—although sometimes I have been misunderstood to be—a hanger, flogger, tattooer or a putter of people in chains. My character as such emerged from a misreading of what I wrote in a rather obscure but nonetheless very worthy magazine, some months ago. It was picked up by someone and condensed for the Press Association. Thus I was embarrassed to find myself being praised in the Sun newspaper. I am not a hanger or a flogger. My desire is not that the public should come in and increase the sentence.
Perhaps I may remind the Committee—perhaps "remind" is a very self-indulgent word—of what I said in 1986 and 1987. Relatively few cases go to trial before a jury, but there are enough to allow juries to give a clear indication what the public considers to be appropriate sentences of common crimes. At the present time judges whose contacts with the general public are extremely limited have no reliable way of knowing what the public thinks about sentencing levels. Leaders in newspapers or utterances by spokesmen for particular interest groups such as the Police Federation, cannot be regarded as authoritative guides to public opinion and attitudes. It is possible that juries might be more severe than judges, but it is by no means certain. Juries which have heard all the evidence are much more likely to make a considered and informed judgment than are citizens who are stopped in the street and asked to express off-the-cuff views to professional opinion gatherers.
I believe that to be so. My observation of juries in criminal trials is that they become extremely well instructed. That is partly because they are much closer to crime in many ways than we are. They are much more liable to be the victims of crime than are judges and they are much more liable to be related to, married to or friendly with, the perpetrators of crime than are most of Her Majesty's judges—I hope.
For those reasons it is not improper to consult them. It has often been said—it has become a kind of mantra—that sentencing must be left to judges. I should
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like to think that there was justification for that. Currently it may be that they are better than anybody else, but that does not mean to say that they are very good. We do not really know what the philosophy of sentencing by judges is. If I recall correctly, an attempt was made by members of the Institute of Judicial Administration at Birmingham University to inquire into the attitude of judges. They went to the then Lord Chief Justice, the noble and learned Lord, Lord Lane, who is a Member of this House. Marcel Berlins, in writing his profile of the Lord Chief Justice in The Times on 28th November 1985, stated that the Lord Chief Justice refused to allow judges to co-operate in an important and respectable academic study of sentencing policy. I believe that was a study at Birmingham. He is said to have,
"considered that taking part in the research would be time consuming, achieve nothing and could make the judges look foolish".
I understand that that was indeed so. Permission to make that inquiry was denied.
If the judges will not allow themselves to be examined, and if it is contempt of court to question juries, we have no means of finding out what the people who are close to the cases and who are informed about them, can be thinking.
I make no secret of the fact that I should like to go further than just use the jurors in a particular case. There is something to be said for the view that over time we should recruit people who have served on juries and who have delivered verdicts on the merits and who have participated in a sentencing exercise, in order to inform us about what are the options. We are not very well informed in this country as to what they are. I have looked at options which are employed in other countries, particularly in the United States, Canada and Australia. There are many more imaginative things being done than we are attempting. We should be looking at these with the assistance of those who are closer to crime than we are. One way to do it is to recruit ex-members of the jury for that purpose in some kind of study body. These are the ideas which lie behind the proposals which I make.
Amendment No. 87 is in conjunction with the amendment to which I am now speaking. It deals with the particular features of what is proposed although again, as in the case of victim impact statements, I am seeking merely to have the matter properly discussed in order that it might be considered over time. In what will be new Section 217C(2), I want that to apply to cases that have proceeded to trial and where the jury has returned a verdict of guilty. That is the type of case with which I am concerned.
Secondly, in the present draft I am limiting the provisions to those cases where the judge is thinking of imposing a sentence of more than three years: in Scotland that would mean cases heard in the High Court. I am requiring the judge to disclose to the jury the range of sentences that he has in mind. Some people may imagine that sentencing is an exact science and that all judges would arrive at the same conclusion about what a sentence should be. That is not my experience and it

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may well be that in this limited way judges can obtain some assistance from members of the public as to what should be done.
Subsection (3) is perhaps of more importance. It states:
"Before explaining to the jury what he requires to explain to them under subsection (2) above the trial judge shall hear in open court and in the presence of the jury the submissions of the accused, or his lawyer, and shall cause the clerk of court to read out aloud any victim impact statement prepared under section 2I7B above".
I am seeking to bring sentencing out into the open, as it were, and to have both sides of the argument presented before the adjudicating body makes its decision.
The other provisions are matters of detail. The jury is not obliged to participate in the exercise if it chooses not to do so, and the jury must retire before it decides what recommendations, if any, to make.
I appreciate that these ideas have not hitherto met with any approval. They did not meet with approval when I first put them forward in 1986 when they were criticised by the noble and learned Lord, Lord Hailsham, and others. Nonetheless, we must consider such matters carefully. As is the case with victim impact statements, I believe that it is important that the criminal justice system retains the confidence of the general public. One way to ensure that might be to find ways of involving the general public, at least through jurors with experience, in helping to determine our approach to sentencing. It was in that spirit that I tabled the amendments. I beg to move.
Lord Macaulay of Bragar: The noble and learned Lord has put forward an interesting proposal. However, with respect, I think that it is an intrusion into our current criminal justice system which must be treated with great caution. I should like to deal with the amendment in the spirit in which it has been brought before the Committee, as was the case with the previous question of victim impact statements. The question of lay participation in sentencing policy within a court could be referred to a working party for consideration or even to the Scottish Law Commission, as was suggested by the noble and learned Lord in relation to victim impact statements.
Subsection (5) states:
"No jury shall be obliged to make any recommendation under this section against the will of the majority of the jury".
I take it that a majority of eight to seven is envisaged.
However, what is more important and what causes me some hesitation and prevents me from agreeing entirely with the noble and learned Lord is the fact that jury service as it stands is an imposition on the citizen. Many people are absolutely terrified at the prospect of serving on a jury. Of course, they cannot get out of that duty simply by saying that they are frightened because every citizen is told that he has to do his public duty within the legal process.
Let us consider the example of a juror who is not very happy at having to serve on a jury in the first place. If the judge thinks that he is going to give the defendant a sentence of three years or more, under the provisions the juror will be obliged to stay on in the court to
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determine the sentence recommendation, subject to subsection (5). Let us consider a case involving a serious assault where the judge thinks that he will be obliged to give a sentence of more than three years. Let us also suppose that the jury views the case with equal abomination and that it returns with a majority, saying to the judge, "We think that this man should get 10 years". That being so, a juror is open to possible retribution from the family and friends of the accused on two counts: first, for having been part of a jury which convicted the accused and, secondly, for being responsible for the sentence that was imposed on the accused. In my submission, that is not fair to the jurors.
Nothing in the amendment gives a reluctant juror the right to say, "No, I do not want to be part of this process. I am not staying here to consider what sentence the accused should be given". If Amendment No. 87 were to have any practical effect, provisions would have to be built into it to specify that jurors should have the right to opt out of the sentencing recommendation process if they so chose. Only if the whole jury, by a unanimous vote, agreed to assist the judge should the jurors participate in the process.
I am not sure that close contact with the law and criminals is a good recommendation for taking part in sentencing policy. I may have misunderstood what the noble and learned Lord said, however, and I shall read his words in the Official Report tomorrow.
I am of the view that until something better is demonstrated —and it will take time to demonstrate that, for example, lay input in sentencing policy is better than our current court-led sentencing—subject to the views of the Court of Appeal, judges should continue to administer justice as they have undertaken to do on oath, without fear or favour. That is what society expects of the courts and judges and that is what should happen until it can be demonstrated that there is something better, or that lay input can improve our sentencing policy. For those reasons, I do not feel that I can support the noble and learned Lord's amendments.
6.15 p.m.
Baroness Carnegy of Lour: I have been fascinated by the discussions about the involvement of victims and the jury. I have also been extremely impressed by the very clear exposition which the noble and learned Lord, Lord McCluskey, has given us. I should, however, like to ask the noble and learned Lord whether he really feels that being involved as a member of a jury in making a recommendation as to sentencing will necessarily help the public to feel that they are having a say in the system. It seems to me that if a jury recommends a certain sentence and the judge appears to have listened to the jurors, they will be awfully pleased and will think that the system is awfully good, but the victim will not be so pleased because he or she will feel that the jury has influenced the judge. That is not an easy thing to accept. Conversely, if the jury appears not to have influenced the judge and he does something very different from what the jury has suggested, I should have thought that the whole jury would be cross with

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him, although the victim might be pleased. I do not believe that that will help the public to have confidence in the system or in the judges.
I quite see that from the judge's point of view there is a great longing to know what the public are thinking about what judges do. When I was an honorary sheriff I remember being only too well aware of what the public thought of what I had done because I met them in the street afterwards when they often cursed one into heaps and said, "Why didn't you do something different by way of sentence?" Some even criticised the sort of case that one was handling. When I became a Peer I was asked, "Surely Peers handle more important cases than that?"
I believe that the public think about this a lot and that,' although the press may exaggerate, Members of Parliament, councillors and other people who have to listen to the public's opinion on all sorts of things know a bit about it. I believe that it might be counter-productive if this proposal were to become a regular procedure. People might begin to watch carefully to see what disagreements arose, which might cause upset and disrespect for the law.
Lord Elton: I am not sure whether Sassenachs who are not engaged in this matter should join in, but I was interested by what the noble and learned Lord said. I wonder whether he can explain a couple of points. First, what is the relationship between the judge and the advice of the jury? Will the judge be given guidance as to whether or not to accept it, or what weight to give to it? What happens when there is a perverse recommendation? Is he to say that it is perverse and that he is rejecting it because it is perverse? Will he have to give reasons why he has accepted or rejected the advice or why he has modified his position to come nearer to that of the jury? If judges do not normally accept the advice of juries, will not the process begin to diminish the authority of the judges in the eyes of the public?
Secondly, I see that this procedure is to be brought into action when the judge is minded to pass a sentence of three years or more. Presumably there is some process by which the jury becomes aware of the fact that the judge is so minded. I wonder whether we could be told at what stage in the proceedings that would be, and how it would be communicated.
The Earl of Balfour: Perhaps I may follow what my noble friend has just said. As a justice of the peace of a district court, I was always advised by counsel as to what sentence should be passed. To the best of my knowledge—I am on shaky ground here legally—all a jury has ever been asked to do in a court in Scotland has been to return a verdict of guilty, not guilty or not proven. I do not believe that the jury has ever been expected to consider what sentence should be passed.
In relation to Section 217C(3)—Amendment No. 87—if that is approved in principle, I wonder whether the clerk of the court, who is mentioned in that
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subsection, should perhaps advise the jury as to what it should do or give it guidance. I am not altogether happy with the proposal.
Lord Monkswell: I support the proposal made by the noble and learned Lord, Lord McCluskey. It is eminently sensible and I thank him for bringing it before the Committee. I bear in mind the reservations of my noble friend Lord Macaulay, but on reflection I wonder whether the safeguards for which he was obviously looking are not built into the amendment. He suggested that one of the problems might be annoyed victims or their families having a go at the jury because it has been seen to inflict the sentence.
By virtue of the fact that the jury can reach a majority decision on whether to make recommendations to the judge, that decision would obviously be in secret. So no one would know which way any member of the jury had argued. Therefore individual members of a jury should feel safe from any possible repercussions.
It is interesting to compare a jury trial with a trial in a magistrates' court. If we look at what has developed over history, we can see that in the Crown court there is a separation between the jury's decision on guilt or innocence and sentence. There is a separation between the judge and the jury, but in the magistrates' court, the judge and jury are effectively enshrined in the same person. It has recently been recognised that it is not useful to have magistrates who are set above and distinct from society. Successive Lord Chancellors have appealed continually for "ordinary people" to come forward to serve as magistrates. That is useful, because it is wrong for people not to be tried by their peers. That is something that has developed within magistrates' courts which we all welcome.
In a Crown court jury trial we still have a large degree of separation between judges and jurors. The crux of the problem with which the noble and learned Lord is attempting to deal is how judges, in their determination of sentence, can be informed of what is in the minds of ordinary people. The noble and learned Lord has arrived at a mechanism which would be useful. I note that in the amendment he does not take from the judge the responsibility for determining sentence. The jury's role would be purely advisory. It would make a recommendation to the judge who would then take the decision. It would be useful to have that mechanism in place.
Obviously a jury could not be asked to decide what the sentence should be. It is likely that there would be a lack of consistency over time between one judgment and the next, because different people would be involved. It is obviously necessary to leave the ultimate responsibility in the hands of the judge at this stage of the courts' development. With those reservations, I warmly welcome the noble and learned Lord's proposal. I suspect that it will not receive the Government's support or acceptance, but we owe him a debt of gratitude for bringing it before the Committee to enable us to debate this important subject.
The Earl of Harrowby: I hope that the Committee will forgive an Englishman for intruding in the debate. I believe that I am the second Englishman to have done

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so. The noble and learned Lord's proposal worries me. First, it seems to me that under the proposal, or part of it, emotion can enter into the sentencing decision, as it may with laymen, whereas it is not supposed to with judges. If the proposal centres on advice from a jury in a particular case, that advice is bound to be tainted by emotion and that cannot be right.
If, on the other hand—I believe the noble and learned Lord referred to this during his exposition—judges can take advice from juries on a panel in a later study conference, that is unobjectionable, and might be of value. One other aspect of the proposal which has not been mentioned is that at present to send someone to prison requires two parties: the jury to bring in a verdict, and the judge to pass sentence. Under the proposal we are converting the future of the man in the dock to the decision of a unified party. There is a conflict in our system of jurisprudence that has always countered that and forbidden it. I should be loath to see that two-party decision cancelled.
6.30 p.m.
Lord Fraser of Carmyllie: My noble friend Lady Carnegy was right in saying that there is a great yearning among judges to discover whether the priorities that they set in sentencing and the severity that they attach to some offences are shared by the public. They are suspicious that the views expressed by sensationalist leader writers may not properly reflect the views of the public as a whole. I understand their desire to meet as fully as possible the views of the society in which they live.
I share the view expressed on both sides of the Committee that the model which the noble and learned Lord brings forward—that is, introducing the jury into sentencing—is, to say the least, difficult. The jury has an important role in our legal proceedings but the issue of sentencing is very different. As has been indicated, I suspect that juries would not welcome such a role and would want the judge to give them the clearest possible indication of what they might recommend. If that is the case, there would be little point in asking them to take part; they would merely be looking for a clear steer from the judge as to what he thought appropriate beyond merely explaining the range of sentence that would be available to them.
During the debate on a previous amendment, the noble and learned Lord pointed out that, in these matters, the devil is in the detail and it seems to me that the devil is in this particular detail. In Scotland, the verdict of the jury can be returned by a majority, even of eight to seven. If in the High Court the jury were asked to return a verdict, one could conclude that the logical view of the seven who voted not guilty was that the convicted person ought to be admonished or given the minimum sentence. Presumably, those jurors would continue to hold to the view that the accused did not do what he was convicted of by the majority. I suppose that a large number of jurors would be sufficiently sophisticated to detach themselves from their view on
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guilt or innocence and offer a view of what the broad public might think. However, I suspect that that would be extremely difficult for them.
I agree with the noble and learned Lord that sometimes the sentencing philosophy is difficult to discern and that in many circumstances it is not as openly discussed as it might be. It would be interesting by one research route or another to attempt to discover exactly what those who have been in our courts think of sentencing. However, given the provisions of the Contempt of Court Act, that has its own difficulties.
We need to approach the matter with care and in some detail. It appears to me as regards the cases in respect of which judges are criticised in public for the sentences that they have imposed—they are seen as too lenient or too severe —that the detail of the reasoning behind the sentences is imperfect. Many factors that influence a judge are not brought before the public and therefore they are not allowed to reach a full understanding.
The noble and learned Lord introduced the debate in order to air his consistently held views. Clearly, a great deal of interest has been excited but I believe that thus far the noble and learned Lord has not secured a great deal of support. However, there is general agreement that it would be useful if the public's views of the sentencing approach of judges were better understood.
Lord McCluskey: Perhaps I may deal with one or two points before responding to the final summary of the noble and learned Lord, Lord Fraser of Carmyllie. The noble Baroness, Lady Carnegy, mentioned the possibility that the jury might influence the judge. That is not the danger of the system; it is the point of the system. Perhaps I misunderstood what was said.
Baroness Carnegy of Lour: That is what I saw as a problem. I said that if the victim believed that the jury had influenced the judge the wrong way there would be trouble with the victim's family. If the jury believed that the judge had not paid attention to it, it would be disillusioned with the system and would be cross with the judge. I was not suggesting that the jury must not influence the judge—surely, that is the object of the exercise.
Lord McCluskey: I regret that I misunderstood the noble Baroness. Perhaps I may deal with the points raised by the noble Baroness and by the noble Lord, Lord Elton. Once the judge decides to impose a sentence of three years or more, under my system the next responsibility falls upon the judge to say what it will be. It could be five, six, seven or even eight years. He specifies the range of sentencing that he has in mind. He then invites the jury to decide within that range. Subsection (2) of the proposed new clause prohibits the jury from going outwith that range, thus avoiding a perverse result. It states:
"it shall not be competent for the jury to make a recommendation of a period falling outside that range".
The judge will specify a range which is not, one hopes, perverse.
I do not speak for other judges but wish to set out my personal experience. I attend a trial and preside over it. I wait until the jury returns a verdict and am then given a

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copy of the accused's convictions. The advocate depute addresses me and I must then ponder the matter of sentence. Sometimes I do so at once, sometimes I sit on the bench for several minutes and reflect and occasionally I retire to consider the matter. I have even retired overnight.
Sentencing is not an exact science and I think about whether it is a four or five-year case. No computer can tell me that and I am feeling for some assistance within that limited range. I do not doubt that some other judges experience such difficulty. If they do not, my judgment is that they are not as good judges as they might be because the task is shrouded in difficulty.
It is not an astonishing and novel idea, in particular in Scotland, that lay people should play an important role in determining how cases are disposed of. Members of the Committee will recall passing the Social Work (Scotland) Act 1968, which came into force in 1971 and under which children's panels were constituted. Those panels consist of three lay people who determine the issues in relation to young offenders. It is true that there is a separation between determining guilt and determining sentence, as referred to by the noble Earl. The children's panel system recognises that the sheriff determines guilt and the panel determines sentence. Three lay people determine sentence, though not in the ordinary sense of sending people to prison but of probation, supervision and so forth. Therefore, the idea is not entirely novel.
I am also anxious that unless we do something we shall run the risk of matters being taken out of our hands. That happened in the United States and there has been the substantial movement to which I have already referred. That is a movement to remove altogether from judges their discretion in relation to sentence. I believe that that is very bad. But if the public do not have confidence in what the judges are doing, that may happen.
The noble Earl referred to the clerk of a magistrates' court. That is a very different situation. In that situation a magistrate is commonly a lay person and the clerk of the court should be a qualified assessor. Therefore, he advises on what is competent. Because he is supposed to know what the statute allows, and because he is experienced, the magistrates may look to him for a hint as to what the sentence should be. That is rather different. One could not contemplate a clerk of the court in the High Court or the sheriff court giving the judge advice as to what should be the sentence.
The noble Lord, Lord Monkswell, used an expression which I never use; he referred to "ordinary people". He was trying to convey something which I also sense. I should rather find a different route for discovering what the public thinks—those people who are living in places where we do not go—from that which we have at present because I fear that politicians, judges even and people who agitate on behalf of the public are heavily influenced by what they read in the newspapers and see
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on the television. That is highly selective and tendentious, and I do not necessarily share the agenda of those who write in the newspapers.
The Earl of Balfour: Perhaps I may interrupt the noble and learned Lord. With regard to the expression "clerk of the court", I hope the Committee will forgive my ignorance but I thought that such a person was a qualified lawyer. It may be that there has been a misunderstanding in that regard. But I felt that if a jury were to be involved in the decision that the sentence should be, for example, five years, I assumed that there would be a legally qualified person to advise the jury from his experiences and that he would at least give a guideline in that respect.
Lord McCluskey: In the High Court the clerk of the court is not legally qualified; and even if he were, he would not be nearly as highly qualified, I hope, as the judge. The dangers of the clerk of the court intervening in that process were underlined by the noble Lord, Lord Hughes, some 20 years ago when he dealt with the abolition of burgh courts. He told the tale of the new magistrate who sat on the Bench. He turned to the clerk of the court in respect of an offence and asked him, "What shall I impose?" The clerk of the court told him to impose the maximum sentence and the magistrate turned to the accused and said, "I sentence you to death".
I agree with what the noble and learned Lord, Lord Fraser of Carmyllie, said. Members of the Committee will be familiar with the expression "an idea whose time has come". I have a feeling that this is an idea whose time has not yet come. Accordingly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 27 shall stand part of the Bill?
6.45 p.m.
Lord Macaulay of Bragar: Perhaps I may now return to the meat of Clause 27, which deals with the question of sentencing following a guilty plea or what may be called "the discounting of sentence". In my submission to the Committee, that is an extremely dangerous innovation into the law of Scotland. I understand that it is already used in England and, indeed, a recent report indicated that a judge had told an accused that he would take into account at which stage during the trial he had chosen to plead guilty, albeit that he was exercising his right to challenge the Crown case and sustain the presumption of innocence for as long as he could against the evidence.
If such an innovation is introduced into the law of Scotland, people may choose to plead guilty for the wrong reasons. Indeed, they may instruct their advisers to plead guilty while protesting their innocence because looking at the long term they may think, "I may be found guilty anyway. If I am found guilty I may receive a sentence of x years. If I take the short road now, at least I can save myself a couple of years".
That will raise difficulties in relation to representation because, as far as I am aware, no lawyer in his senses would take instructions from an accused person to

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tender a plea of guilty prior to the start of the trial on the understanding that of course the client maintained his innocence. In that situation all that can be done is to say, "I am sorry. I cannot accept your plea of guilty to anything which you say you did not do", even if that carries with it from the accused's point of view a degree of pragmatism and realism.
It may affect also the public interest in that prosecutors may be persuaded against the public interest to reduce serious complaints on indictment; for example, by deleting phrases such as "attempted murder" and taking a plea to assault to severe injury or reducing a serious sexual assault to indecent assault in the knowledge, through consultation with the accused's advisers, that if that is done a plea of guilty will be forthcoming and the prosecutor will not have to conduct a trial on the major issue. I am not saying that that will happen but I am saying that there is a danger that it may happen.
The Bill provides that the court "may" take into account the point at which a person pleads guilty but does not say that it "shall" do so. Therefore, to that extent it introduces a degree of uncertainty in the legislation and inconsistencies in the way in which the courts are run. For example, there may be a lazy judge—I am sure that no one has ever heard of a lazy judge but in this Committee I can say that I have heard of one and I know a few— who makes it known that, if an accused pleads guilty at an early stage, instead of going to prison he will be sentenced to perform community service or whatever and avoid incarceration. A diligent judge may acquire the opposite reputation and no guilty pleas will be tendered in his court.
In any event, what is proposed is against what, as I understand it, the Court of Criminal Appeal has said should not happen in Scotland. In the case of Strawhorn v. McLeod in 1987, the Lord Justice Clerk indicated that no inducements should be offered to an accused person to plead guilty. Indeed, I read in the newspaper today, in an attempt to have a sheriff's behaviour reviewed, reference is made to the very fact that one of the complaints is the offering of an inducement to a person to plead guilty.
That raises many professional problems. It is not doing justice and it does not achieve any degree of consistency. There cannot be a graded discount. It is not like a Christmas sale where there is 10 per cent. off, 20 per cent. off or 30 per cent. off and one chooses the best discount. In the absence of a scale of discounts, which cannot be given because each case depends on its own facts and circumstances, that is not an acceptable clause. In my submission, the Government should take it away and think again.
If it is designed, as it may very well be, to reduce the number of unnecessary trials and to save the time of witnesses, police officers and all the matters which we consider and hear about day in and day out, the motive behind the clause is quite acceptable. But the execution
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of that motive should certainly not be carried out in that way and I oppose the Motion that the clause shall stand part of the Bill.
Lord McCluskey: I should like to support the noble Lord in this regard. I shall deal with a technical point first and I hope to do so briefly. The clause states that,
"a court may take into account—
(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty".
It very commonly happens that at an early stage an offender indicates his intention to plead guilty to something. But of course at that stage he has not even seen the charge. He has seen the petition which is served upon him within the first few days, but the terms of the charge may well differ from those in the petition. Therefore he does not in fact get an opportunity to respond to the charge itself until approximately four or five weeks before his trial. He may indicate his intention to plead guilty to something, but to what? That is not a matter which is made clear here.
But my real point is that this clause is entirely and absolutely unnecessary. Judges routinely take into account the matters which are specified here. No doubt is created in my mind by the 1987 case. That case in effect, as the noble Lord indicated, states that one cannot have any inducements or discounts. If I recall correctly, that sounds a bit like an advertisement for double glazing. One cannot have discounts and one cannot have formal inducements because that would introduce something which is entirely different. However, it is routine for me, and for other judges, to inquire when it was that the plea was first intimated. Then I am given the kind of response I have mentioned. It is routine for me to inquire why it was not then accepted. One sometimes receives quite a detailed story. I have a case before the Court of Appeal at the moment, the details of which I shall not go into. But in essence the plea was tendered rather late because, according to the accused person, his previous solicitors were not competently handling his case.
It is perfectly legitimate for the court to inquire into this. It is equally legitimate for an accused person to raise this matter and say, "I offered to plead on such and such a date" or, "I offered to plead on these terms, and that plea has finally been accepted, or a plea like it". Therefore the real point is that Clause 27 is entirely unnecessary. For the reasons which I specified in some detail when I dealt with an earlier amendment on the first day, it is quite wrong in principle for the legislature to put into statute provisions which are quite unnecessary. These provisions are quite unnecessary. I invite the Government to reconsider the need for them.
Baroness Carnegy of Lour: I would ask the noble and learned Lord whether it is absolutely obligatory at the moment for the lawyer to point out to the accused that there is this option and that it can make a difference. Would that not be more necessary if it were in the law? It seems to me that all this spinning out of cases is sometimes quite unnecessary. There are cases of a plea coming much too late or being changed much too late. I believe that all these circumstances which cost so much

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should be avoided if possible and I believe that could be done in the interests of justice. Would it not make a difference if that provision were in the statute?
Lord McCluskey: Certainly I would understand that the answer to the question is "no". It is not obligatory for an accused person's lawyer to advise him of his right to plead guilty. But on the other hand, I do not think that accused persons would need legal advice to the effect that they are entitled to plead guilty. I take the point made by the noble Baroness that of course if this statute were enacted in these terms the advice from the lawyer would be likely to be, "If you plead guilty early you are liable to get something off", but I think that would be the advice given now under the present circumstances. Any lawyer worth his salt acting on behalf of an accused person would appreciate that the earlier that person pleads, the more likely he or she is to receive leniency because that avoids expense, delay and the unnecessary bringing of witnesses to court, or indeed the precognoscing of witnesses by the procurator fiscal following upon the police investigation. I think that is so well known and so well understood among the legal profession and among the fraternity whom it serves in the criminal courts that it is unnecessary to put it in the Bill.
Lord Fraser of Carmyllie: In our view the provision does not significantly alter the law of Scotland in relation to early guilty pleas. However, we believe it usefully clarifies the existing law. It certainly does not impose, as the noble Lord, Lord Macaulay, seemed to fear, a formal or rigid system of what is commonly known as sentence discounting.
Since the case to which he referred of Strawhorn v. McLeod in 1987 there has been some doubt about the propriety of taking into account the time and circumstances of an accused person's plea of guilty. In its judgment in that case the Appeal Court held that,
"a declared practice of discounting"
was objectionable. However, as the noble and learned Lord, Lord McCluskey, has said, it was, and remains, perfectly proper to reduce a sentence to take account of a guilty plea where that appears to be justified by the circumstances of the particular case.
It was widely perceived, however, that the effect of Strawhorn was to prohibit such a reduction in sentence. I understand, following the consultation paper that we issued —the review of criminal evidence and criminal procedure—that a proposal along the lines of what is now contained in Clause 27 was suggested by High Court judges in their response to that paper because it will make it clear that it is indeed permissible to take into account a guilty plea when considering sentence. This will remove any inhibitions felt by sentencers. I would say to the noble and learned Lord, Lord McCluskey, that I suspect it will remove inhibitions not among the senior judiciary but, I believe, among the inferior judiciary who have inhibitions following on that case. They will know that they can take into account the fact that a plea has come earlier rather than later.
While in many respects I wish it was not necessary to have this clause, I part company with the noble Lord in that I believe that in the circumstances it is necessary
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to place this measure on the face of the statute. However, at the same time I of course accept entirely what he says about what is appropriate and proper to do in Scotland at the present time.
Lord Macaulay of Bragar: I am grateful for the explanation which the Minister has given and for the contributions made by other Members of the Committee. It is the first time I have realised that the aim of the measure is to clarify the existing law. I still believe that once the measure is on the statute, this type of plea bargaining between the accused and the court will be, as far as the accused is concerned, a trip into the unknown. However, in the meantime I withdraw my opposition to the clause.
Clause 27 agreed to.
[Amendments Nos. 86 and 87 not moved.]
The Earl of Lindsay: I think this might be a convenient moment for the Committee to adjourn. I suggest that the Committee Stage begins again at eight o'clock.
[The Sitting was suspended from 6.58 to 8 p.m.]
Lord McCluskey Lord McCluskey moved Amendment No. 88:
After Clause 27, insert the following new clause:
("Victims right to attend sentencing proceedings
. After section 217A of the 1975 Act there shall be inserted the following section—
"Victim's right to attend sentencing proceedings.
217D. The victim of any crime, or the next of kin of the victim if the victim has died, shall have the right to attend all sentencing proceedings in solemn procedure under this Act and shall be given adequate notice by the Crown Office of all such sentencing proceedings concerning the person or persons who committed the crime or offence concerned.".").
The noble and learned Lord said: Amendment No. 88 is associated with matters that we have already discussed. I can therefore deal with it fairly briefly.
I mentioned at an earlier stage that from time to time the person who is truly the victim of a crime discovers from the newspapers or the radio what has happened to his case. He may even discover it in a less formal way. That can lead to frustration and discontent. Accordingly I propose—although I suggest that we begin gradually because I am a pragmatist in these matters—that the victim of any crime, or the next of kin of any victim who has died, should have the right to attend all sentencing proceedings in solemn procedure under the 1975 Act. I am concerned with the more serious cases—those which are liable to attract a sentence of imprisonment exceeding six months.
The other aspect of the matter is that the Crown Office would be required to give adequate notice of all such proceedings.
Once again I appreciate that difficult problems are involved in this matter, because it is quite common that sentencing follows immediately upon a plea of guilty or upon a verdict of guilty delivered in the court. Therefore one can only give tentative notice that sentencing might take place on a particular occasion. However, it appears that the matter may be met if the Crown were to intimate to the victim that the case starts on a particular date and is expected to finish on that or a subsequent date, and

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the victim has the right to attend. At the end of proceedings on that date, if sentencing has not been pronounced, the victim would be informed by the procurator fiscal of the date to which matters have been postponed.
That is the minimalist position as regards according to victims the dignity and respect of which I spoke earlier and which the noble Earl has supported.
The Earl of Balfour: Before the noble and learned Lord sits down perhaps he can say whether the victim has any right to attend the court at present.
Lord McCluskey: The answer is that the victim has no more right to attend the court than the noble Earl has as a member of the public. Any member of the public is entitled to attend the court. The victim may be cited to attend the court as a witness, but that is as far as it goes. The victim has no right to attend other than as a member of the public, but because the victim will know more about the proceedings than most people it is likely that he will be able to exercise that right in a way in which the noble Earl or I might not be able to exercise it. I beg to move.
Lord Macaulay of Bragar: In principle rather than detail, this is an interesting and welcome amendment which has been put before the Committee. Various matters arise. In a long murder trial, for example, the court can only guess when the case may end. Difficulties arise where, for example, there is a change of plea on perhaps the second day of a case which might be expected to run for two weeks. That is not an unusual feature of life in the courts.
This is a socially oriented amendment which would be welcomed by victim support organisations, which want the victim to be deeply involved at the early stages of a case if possible but not too deeply involved in the later stages when it comes to questions of revenge and so on, which we shall discuss later.
Therefore, I support the amendment in principle although not in detail.
The Earl of Mar and Kellie: Two of my amendments are grouped with the amendment of the noble and learned Lord, Lord McCluskey. Perhaps I may speak to them briefly.
Amendments Nos. 129 and 131 are both concerned with the treatment of victims. The background to the amendments is that I believe that we now offer considerable care to offenders but I feel that we could do slightly better for victims. Therefore, in Amendment No. 129 I seek to assert a new overarching principle of liaison and care for the victim by the court system.
I envisage that there would be increased contact with victims to ensure that they know what is happening and how it will be carried out at the court hearing. At trials there would be a victim and witness support service in the courthouse staffed by properly funded volunteers. That would reduce many of the anxieties felt by victims and witnesses.
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Regarding Amendment No. 131, there would be no loss and everything to gain if the court service were able to give more information to witnesses and victims about the case and the court process in which they are reluctantly involved.
Lord Fraser of Carmyllie: Following on the question which my noble friend Lord Balfour asked, it is the position that all members of the public are entitled to attend proceedings in open court. If one of those members of the public happens to be the victim he or she can, of course, be present.
Nevertheless, I believe that there is a problem. I do not know the noble and learned Lord's practice, but I am aware of cases in which the victim has been in the court building and for one reason or another a plea has emerged quickly and the plea of guilty has been taken and discussions over what sentence might be imposed are under way, but the victim has no idea of what is going on. I am conscious that in a number of cases that has caused great offence. In the past I have sought to encourage members of the judiciary—whether they be superior or inferior—that in such circumstances it is desirable to invite not only the victims but any of the witnesses who are present in witness rooms to come into the court to hear what is taking place. That seems to go some way to satisfying them.
As the noble and learned Lord anticipated, the second leg of his amendment placing a duty on the Crown Office to give adequate notice of all sentencing procedures has its difficulties. Those of us who have practised in the courts are well aware that it is difficult to predict when a plea of guilty may be tendered. In practice it is usually the case that sentence follows immediately.
However, I do not wish to sound negative, notwithstanding those difficulties. All police forces in Scotland now have clear policies on the provision of information to victims, and we need to determine exactly what information victims need and want. I hope that it will meet with the approval of the noble and learned Lord that we believe that the correct way to attempt to answer that question is to ask the victims themselves. That is what we are doing at the moment. We have commissioned research into the information needs of victims. I hope that the results of that research will be available soon. Both my noble and learned friend the Lord Advocate and I are agreed that we should be guided in our approach to the provision of information by the results of that research.
Although he is not at present in the Chamber, the noble Lord, Lord Windlesham, last Thursday asked about provision of support for victims in court in Scotland. We had a slightly uncertain ending to that exchange. It might be helpful if I place the position on record for him.
The national standards for social work service in the criminal justice system in Scotland set out in the court-based social work section that court social workers should provide information, advice and support to victims of crime. Those standards emphasise that victims appearing in court are often under severe stress. One task is to make appropriate referrals to victim

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support schemes. Court social workers should be aware of the problems those people face and provide immediate assistance wherever possible. Responsibility for first-line support to victims in the courts in Scotland is therefore vested in local authorities and is funded 100 per cent. by the Scottish Office. Victim Support (Scotland) will arrange for a victim who requests assistance to be accompanied to court and will provide support and assistance to those referred to it by the court social worker.
I hope that that will reassure the noble Lord that we respond quite as vigorously north of the Border as is done south of the Border to the needs of victims as they come into court.
Lord McCluskey: Perhaps I may deal briefly with the technical matters. The noble Lord, Lord Macaulay, states that it may be difficult to predict when a case is likely to end. If we refer to solemn procedure, and cases which are in court, generally speaking the prosecution knows some little time in advance when there will be a plea of guilty, and sometimes the court is informed, too. It is perfectly possible to invite the victim to telephone in and to receive a message on an answerphone. That is now done, for example, with prospective jurors who are invited to telephone a specific number and receive an answer. It is perfectly possible to produce such a system.
In those cases which go to trial, the problem is more easily solved. If a case goes to trial, one will have a speech by the prosecution, a speech or speeches for the defence and a charge by the judge. That process in most cases is likely to take a day or two. Accordingly, it cannot be difficult either to intimate the necessary information directly to the victim, or to do so by the means to which I have referred.
I am not entirely happy with Amendment No. 131 in the name of the noble Earl. If the prosecutor were obliged to inform the victim of the progress of the case and dates of the outcome of the case, one is talking about a massive increase in work for the prosecutor and a massive increase of paperwork. I do not believe that that is a step to be taken early on. As I suggested, we should proceed step by step.
I agree with the noble and learned Lord that the victim sometimes has no idea of the progress of the case. That is part of my point. In order to minimise the burden upon the prosecutor we should introduce into my amendment the phrase, "so far as is reasonably practical", or some such words.
The noble and learned Lord has drawn attention to the fact that the police have and exercise certain responsibilities in the matter. Local authorities have and exercise certain responsibilities in relation to victims. That is right and proper. The noble Earl drew attention on various occasions to the contribution by the voluntary sector. That is entirely laudable. However, my additional point is this. It is not enough for the criminal justice system to leave the issue to local authorities, the police and volunteers. The criminal justice system must accept its responsibility direct to the victim. I urge the Government to bear those considerations in mind in
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their thinking on this matter in relation to the Bill or any subsequent measure. With those observations, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.15 p.m.
On Question, Whether Clause 28 shall stand part of the Bill?
Lord McCluskey: Clause 28 is yet another of the group of clauses which I fear is entirely unnecessary. Clause 28 empowers the court to pronounce an opinion on the sentence or disposal order which is appropriate in any similar case. The court undoubtedly has that power now. It has no doubt about the matter, although I speak for myself and not on this or any other occasions for other judges. It uses that power. I could give the Committee instance after instance in which a court has exercised that power and commented on that type of case. Indeed, if the Committee will consider the report of the McKenzie case—I referred to it earlier—the court went to the unusual length of suggesting to me before I passed sentence what might be an appropriate sentence. That is a special case, but there are many cases in which, when commenting on an allegation that a sentence was excessive, the court has said, "Far from being excessive, we would always expect the judge to impose a sentence of at least this length or even greater in similar cases". The result is that it is unnecessary to have the clause in the Bill.
I shall repeat the arguments as briefly as I can. The paragraphs in the Renton report which deal with this issue —they are referred to at col. 303 in the Committee proceedings reported in Hansard of 12th January 1995–indicate that it is quite wrong to legislate unnecessarily. This is an example of unnecessary legislation.
In my opinion it is also quite wrong to make unnecessary inroads into the exercise of judicial discretion for reasons with which I dealt earlier. That is particularly true in relation to the day-to-day details of how judges should deliver their opinions. This is Parliament saying to the judiciary, "Please put this in your opinion". It is a hint. We do not need hints from Parliament as to what to put in our opinions. I feel a certain distaste for Parliament nudge-nudging and wink-winking in the direction of the judiciary in such matters. It is bad practice. It is unnecessary. It is slightly vulgar (if I may use that word in current context). It changes absolutely nothing and I should like to know why the Ministers propose the clause. I oppose the Question whether the clause shall stand part of the Bill.
Lord Macaulay of Bragar: I support the observations of the noble and learned Lord in opposing the Question that Clause 28 stand part of the Bill. I do not have the experience of the noble and learned Lord; but it seems to me that the side note seems to be entirely misleading. For whatever reason it refers to "sentencing guidelines". A guideline tells someone where to go and how to get there. The amendment would lead to casual indications being given to the lower courts from the higher courts as to what they should or should not do in specific cases. It is presumably meant to fetter the

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discretion of the lower courts and to say to the lower courts, "We have said that you must not go beyond what we have stated".
As referred to on a prior occasion, the courts in England have tried guidelines. One or two judges have had the courage in local situations to say, "If it were open to me to do what I consider appropriate in the public interest in this locality, I would give you X-number of years. But if I do so, I shall be overturned by the Court of Appeal and there is no point in my giving you the sentence that I consider appropriate". That has a double effect: a beneficial effect on the accused; and perhaps a detrimental effect on the victim who does not see the perpetrator of violence against him or her receiving what the court regards as an appropriate penalty.
If the judge ignores the opinion of the higher court—the provision is not a guideline; it is merely an indication—what effect would that have? There is no indication in this amendment to indicate what the guidelines are. Perhaps, like some other amendments to the Bill, this has come too soon. It might be appropriate if some research were done into the consistency of sentences. It is a theme which runs right through the Bill. If sentencing guidelines are to be set up, then let us have a structure—for example, a sentencing guidelines council involving lay people. We go back to the victim impact statement, the involvement of juries in sentencing. Here we come to another element and perhaps we may examine it and ask whether it is right that there should be a body which, from the top, says: "This is the way we think it should be done in cases which fit into the structure". But the thing about structures, like rules, is that there must be exceptions and I am loath to support any clause which fetters the discretion of the judge.
Perhaps the judge in the law court in the local community should have more flexibility than —saving the presence of the noble and learned Lord, Lord McCluskey—the higher courts. It is the lower courts that have to deal with the realities of local life and impose a sentence which sends a message to the local thugs, hooligans and thieves that the local court will not put up with their nonsense any more. Those courts are not interested in what the Court of Appeal in Edinburgh may think. I support the noble and learned Lord, Lord McCluskey.
Lord Fraser of Carmyllie: On a number of occasions in the course of this Committee stage, the noble and learned Lord, Lord McCluskey, has addressed the argument that it is only appropriate in legislation to look to a mischief and seek to remedy it. Without getting engaged in an elaborate debate with him, I would extend that somewhat and say that it is appropriate enough for Parliament from time to time not just to address directly a mischief, but, where it has a view that it would be helpful to give encouragement to a particular approach, Parliament should do so.
I entirely accept the noble and learned Lord's view that at present if the Court of Appeal in Scotland wishes to set out a series of guideline judgments on sentences,
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it could do that. However, I believe that it is right that on the face of the Bill we should do no more than suggest to the courts that such an approach is desirable. It is in no sense a direction to them. With respect, I do not agree that what is being proposed is in any sense an inroad into a proper judicial discretion.
I have little doubt that those judges in the High Court who regularly conduct or preside over trials will have little cause to rely on sentencing guidelines. But possibly more important and a perspective that has not yet been clearly identified is that those who operate in the inferior courts would welcome more widely than the Court of Appeal seems to appreciate just that guidance from the Appeal Court. When we went out to consultation on that, 21 district courts responded to the consultation paper on sentencing and appeals. Of the 21 who responded, 13 supported sentencing guidelines and eight did not.
Other respondents who supported guidelines include victims' groups, two of the three police associations, the Scottish Law Commission, the Faculty of Advocates and a significant number of legal academics. In that context, I am aware of the proper desire of the noble and learned Lord to ensure that the statute book is not unnecessarily encumbered with clauses that add little to the law. However, I feel quite strongly that the perspective that he ought to take in regard to the matter is not that of a superior judge in Scotland but rather that of an inferior judge in Scotland. All the indications are that they would welcome a more vigorous and developed policy on guidelines than is now the case.
The Earl of Balfour: Obviously the direction is mostly to the sheriff court or the district court. Could guidelines be put forward by the Secretary of State for Scotland in the form of statutory instruments rather than the primary legislation which is being established in the Bill? I feel that perhaps we are being a little dictatorial here.
Lord Fraser of Carmyllie: No, I am afraid that I cannot agree at all with that proposition. I wish to have no part in giving guidelines, nor does my right honourable friend the Secretary of State for Scotland wish to have any part in giving guidelines to the judiciary, at whatever level, on what sentences they should impose. It is for Parliament to set out the maxima and, within that, it is for the courts themselves to determine. I have no doubt that the matter must be left to the court.
However, I hope that the clause will encourage the High Court to take opportunities, as it feels appropriate, to set out guidelines in particular cases. It may not be of great significance to those who impose the most severe sentences in our courts, but I believe that, if that approach were to be taken, it would he warmly welcomed in the inferior courts.
Lord McCluskey: In leaving the matter, I should say that, of course, all judges—and that must include those who sit in the law courts—would welcome a solution to their problems. We must search for certainty. If the High Court were to set forth not so much guidelines as strong indicators of what should be done, that would rob the

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local judges of their duty to exercise a discretion based on the facts of the case and the circumstances of the locality. So it is important that they should not be provided with solutions which they can dial up on a computer.
At an earlier stage, I mentioned the SIS, the sentencing information system, which is currently being studied by the judges in the High Court. That could reach a stage at which it would be possible to dial and input the data relating to a particular type of case, a particular type of offence and a particular type of offender. Then one would end up with an average or a median solution to the problem. I think it would be a pity if we went down that road, either by that means or by this one. Then judges in the inferior courts—and I use the term technically—might feel that they no longer needed to exercise their own discretion.
However, having said that, I am sure that the Government will reflect on the wisdom of putting such matters into the statute. I would not accuse the noble and learned Lord, Lord Fraser of Carmyllie, of wanting to erect a kind of Fraser of Carmyllie monument in the law of Scotland in the shape of this Bill. There are many other monuments—some built on sand— which he has already enacted into law. I say no more about that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 agreed to.
Clause 29 [Supervised attendance orders]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 89:
Page 19, line 36, at end insert:
("() In subsection (3) (a), for the word "16" there shall be substituted "18".").
The noble and learned Lord said: In speaking to Amendment No. 89, I wish to speak also to Amendment No. 90. These are minor and technical amendments, their purpose being to clarify the position with respect to the use of supervised attendance orders as an alternative to imprisonment for fine default. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 90:
Page 19, line 41, leave out ("16") and insert ("18").
On Question, amendment agreed to.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 91:
Page 21, line 6, leave out ("shall") and insert ("may").
The noble Lord said: For the convenience of the Committee, I shall speak to Amendments Nos. 91, 92 and 93 together, as they form part of the same parcel. The objective behind them is to introduce a higher degree of judicial discretion as to whether fines should be imposed on a person at the age of 16 or 17.
The view has been expressed that the court should have a discretion regarding the penalty. At the moment, the court can only allow 28 days for any fine to be paid. At this time of financial stringency it is very difficult for young people of that age to find the money readily.
Twenty-eight days is not a long time to find the fine. Indeed in some cases there may be a compensation order attached to the fine. I hope that the Government will give these three amendments some consideration and perhaps come back at a later stage of the proceedings to indicate what are their final views.
8.30 p.m.
Lord Fraser of Carmyllie: From what the noble Lord has said I am rather concerned that he may have misunderstood what is our purpose behind these provisions. The policy underpinning the provisions is very simple. It is to avoid wherever possible imprisonment for an offender who is 16 or 17 years old where the court considered that the offence of which he was convicted did not merit a custodial sentence in the first place. As a matter of policy I assume that he would think that that was desirable.
The proposals in the Bill mean that, where an offender is 16 or 17, a supervised attendance order would be available in the first instance instead of a fine. Alternatively, the court could impose a fine to be paid within 28 days and, if the offender defaulted, an SAO would be imposed automatically. Imprisonment for fine default would therefore not be available for offenders of this age group even at first instance.
Experience shows that offenders in this age group more often than not have no income or other means to pay a fine. Consequently, they default and are then caught up in the laborious and often fruitless process of fine enforcement. Some are imprisoned—in 1993, 102 16 and 17 year-olds were sent to prison for fine default. In the vast majority of these cases the amount of unpaid fine was less than £200. I question whether there is any gain to be secured in imprisoning such youngsters.
Supervised attendance order schemes are a positive substitute for such a sanction but it has been recognised that the court must retain some discretion as respects the choice of disposal at first instance. That is why our proposals will enable the court to retain the sanction of a fine where it thinks that there is a reasonable chance that it will be paid.
I hope that I do not need to elaborate on my policy. If the noble Lord would like to consider what I have said, I am sure that this is at least one clause in the Bill which, knowing his background and his interest in such matters, he will indeed warmly welcome.
Lord Macaulay of Bragar: I am obliged to the noble and learned Lord for what was an explanation of a rather circuitous form of justice, if that is the correct word; namely, that once the young person gets on the circuit he may or may not fall off or end up at the final destination. I shall read with interest what the Minister said, and I am obliged to him for paying attention to the amendments in the way in which he has done. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 92 and 93 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 94:
Page 21, line 35, at end insert (", subject to paragraph 1 of Schedule 6 to the 1990 Act,").
The noble and learned Lord said: This clause will place courts under a duty to make a supervised attendance order in certain circumstances. Clearly we would not wish that duty to apply if no relevant scheme is in operation where the offender resides. This amendment will ensure that that is the case. I beg to move.
On Question, amendment agreed to.
Clause 29, as amended, agreed to.
Clauses 30 to 32 agreed to.
Clause 33 [Probation orders requiring treatment for mental condition]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 95:
Page 23, line 22, after ("or") insert ("clinical or").
The noble Lord said: For the convenience of the Committee, perhaps I may in speaking to this amendment refer also to Amendment No. 96. This is a fairly minor amendment which ensures that, say, a clinical psychologist can provide treatment for a person subject to a probation order who suffers from a mental condition. There is a view that is expressed that only properly qualified clinical psychologists should be able to provide treatment in terms of Sections 184 and 385 in the 1975 Act. That should not be the exclusive prerogative of practitioners registered with the British Psychological Society. I beg to move.
Lord Fraser of Carmyllie: Clause 33 was introduced to allow offenders suffering from a mental condition which, while not thought to require treatment through detention under a hospital order, might benefit from treatment by or under the direction of a chartered psychologist to receive such treatment as a condition of a probation order. I am sure that the noble Lord will agree that this is a positive step towards improving facilities for the treatment of mentally disordered offenders.
The amendment that is proposed by the noble Lord, while at first glance it seems to clarify who may provide the treatment, could in fact cause some confusion, the term "clinical psychologist" having no clear, generally accepted definition. The term "chartered psychologist" as defined in the clause, in effect covers registered clinical, educational and forensic psychologists. To include specifically "clinical psychologist" in the clause is unnecessary. On that basis, and given that short explanation, I hope that the noble Lord will feel that he can withdraw the amendment.
Lord Macaulay of Bragar: I am obliged to the noble and learned Lord for his explanation. I shall have to take advice on whether what he has said is factually correct. I am not fully qualified to say whether his definition of a clinical psychologist in the context in which he presented it is correct. I shall make due inquiries, as they say in certain quarters. If my inquiries show that the noble and learned Lord is not correct in what he said,
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then, as General MacArthur said, "We shall return". In the meantime, I shall depart and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 96 not moved.]
Clause 33 agreed to.
Clause 34 [Sentence for offence committed while subject to requirement to perform unpaid work]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 97:
Page 24, leave out lines 3 to 6.
The noble Lord said: This amendment has been grouped with Amendments Nos. 98 and 99. The effect of the amendment is to delete the requirement for offences committed while the accused is subject to a community service or other order to be separate or liable to indictment.
The Law Society of Scotland has expressed the view that the accused could be prejudiced if the fact of his earlier offence is known to the judge or jury. That may or may not be a proper view. The accused is always entitled to the presumption of innocence. It may be that the Government should give some consideration to deleting these provisions and providing the appropriate notice to the accused on a separate indictment or complaint. The matter referred to is not necessary for the proof of the commission of the offence libelled and is therefore irrelevant to the issue that is before the court. I beg to move.
Lord Fraser of Carmyllie: While it is, and has been for some time, our policy to encourage as much as we can the use of community service orders—and indeed I believe that it has been successful —what we must ensure is that where such community service orders are undertaken it is to be regarded with great seriousness if someone offends while at the place where work is being done as part of that community disposal. The proposals that we have in Clause 34 were published in Firm and Fair and at that time received no adverse comment. The concerns of the noble Lord over the possibility of prejudice against the offender caused by libelling the circumstances were indeed given careful consideration for just the reasons that he has outlined.
We believe that the clause as drafted provides the clearest and fairest way forward by best informing the court of the true nature of the offence and also informing the alleged offender of the full scope of the charge laid against him, hence giving him an opportunity to respond to it.
I should say that this clause arose out of a particular case where someone under a community service order, having gone to an old lady's house to undertake some redecorating, while there took the opportunity to leave the window open and then returned later that night to steal property from her. It is difficult to see how the full circumstances of that case would be explained to the court if it could not at one point or another be explained to it that the accused was in the property at the time lawfully discharging what was required of him in terms of a community service order.

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So, while I understand in principle what concerns the noble Lord, after much careful thought we have reached the conclusion that this is the best way to approach the matter.
Lord Macaulay of Bragar: I am obliged to the noble and learned Lord for that explanation, which to me certainly puts the matter in a different light. I appreciate that in the course of a trial technical difficulties might arise in the proof of a primary offence. The fact that the offence was created at a place where the order was being carried out would be an aggravating factor that the prosecutor might bring before the court in moving for sentence. I see the practical difficulties and certainly will consider what the noble and learned Lord said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 98 and 99 not moved.]
Clause 34 agreed to.
Clause 35 [Leave to appeal]:
Lord McCluskey Lord McCluskey moved Amendment No. 100:
Page 25, line 11, at end insert:
("() In section 228(2) of the 1975 Act (right of appeal) at the end there shall be inserted "but no appeal shall be entertained by the High Court on the ground of an alleged miscarriage of justice consisting of an alleged misdirection of the jury by the trial judge unless, before the jury has returned a verdict, there has been presented to the trial judge a Note of Exceptions to the Charge specifying the alleged misdirection, whether it be a misdirection by omission or by commission.").
The noble and learned Lord said: Again, I am conscious of the fact that the amendment might have been better phrased and better placed, as it were, but I have chosen to put it in this place because it is an amendment to Section 228 of the 1975 Act. It raises a point which I believe that the Minister or the noble and learned Lord the Lord Advocate who will reply might say should be dealt with by the Sutherland Committee. I am not sure about that. But if the noble and learned Lord were disposed to give me such a reply, I would be inclined to accept it.
Perhaps I may illustrate the matter in this way. In the late 1950s I appeared in a case which (again) was called McKenzie, although that time I was McKenzie's counsel. We appeared in the Glasgow High Court in what I might call the twilight days of Lord Carmont. Lord Carmont omitted to tell the jury that the burden of proof was on the Crown; or indeed that the burden of proof was a heavy one—namely, proof beyond reasonable doubt. For some reason— perhaps because he was asleep (I do not remember who he was)—the prosecutor did not draw his Lordship's attention to those significant omissions. We, who were acting for the defence were entitled to exercise our right—and we did so—to sit on our hands and say nothing. The result was that we had an unanswerable appeal when the matter went to the Criminal Appeal Court. In those days there was no retrial and so the conviction had to be quashed.
I regard it as intolerable that when those who represent the accused person know perfectly well that there has been a misdirection by the judge—because he has omitted to say something, or even because he has made an obvious mistake, as sometimes happens,
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particularly towards the end of the week or the end of the day—the defence should be able to sit on their hands and wait until the charge is finished, knowing that they then have a good ground of appeal. Even today, when there is the right to a retrial or the Crown may exercise that right, if allowed it by the court, it is not satisfactory because it is very expensive and causes much delay and uncertainty.
Accordingly, I seek to introduce into the criminal procedure a step which was well known in civil cases—and still is well known indeed but there are very few jury trials in civil cases nowadays. But in the 1950s and 1960s, if counsel recognised that the judge in his direction to the jury had made a statement of the law or indeed some statement of mixed fact of law which counsel thought was challengeable, then it was his duty to lodge with the judge a written note of exceptions. It was handwritten and quite informal but it raised the point. Only then could the point be taken on appeal.
I am not sure how far one would go in relation to criminal matters, but in the last few words of the amendment I have drawn attention particularly to the misdirection by omission. That is the hardest thing of all to pick up. I have known cases in which I have been involved as counsel—and I am very sore about a case in which I was involved as a judge—where at a later stage someone came along and noticed what no one at the trial had noticed because it was entirely unimportant; namely, an alleged omission by the trial judge.
One has to recognise, and I am sure that the noble and learned Lord the Lord Advocate will recognise it, having been there many times, that on appeal in the Criminal Appeal Court there are a number of very clever, able and highly talented lawyers who can sit down with a judge's charge and consider the case with lateral thinking. They come up with conclusions as to what is missing that no one else had thought of before. In other words, one becomes slightly divorced from the reality of the trial. Sometimes, those points may strike a chord with the appeal court, which itself is slightly divorced from the ordinary realities of the trial, as it has recognised itself many times in its judgments about the distinction between reading the charge, reading the evidence and taking part in the trial. So I do not slander the appeal court when I say that.
For all those reasons I urge the Committee to accept this amendment which would thus enable the trial judge at least to be asked to consider whether his directions are sound at the time and in the proper context; namely, in the context of the trial itself. I beg to move.
8.45 p.m.
Lord Macaulay of Bragar: I am rather concerned about the absolute terms of this amendment. At the end it states:
"no appeal shall be entertained by the High Court on the ground of an alleged miscarriage of justice … unless … there has been presented to the trial judge"—
presumably at the trial—
"a Note of Exceptions to the Charge".
It is easy enough—although it is never easy—in civil cases to present a note of exceptions; but the atmosphere in a civil jury trial is entirely different from the

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atmosphere in a criminal trial. People are being asked to make instant decisions and it is not easy, with the responsibilities involved in the criminal trial, to take what might be looked upon as a casual matter; namely, to prepare a note of exceptions before the jury retires. This amendment is in absolute terms. What happens when one of the clever counsel or clever lawyers to whom the noble and learned Lord referred gets hold of the charge and says, "This is an absolute nonsense"? I ask the noble and learned Lord whether the appeal is not to be heard because of, in broad terms, the negligence or omission by the original counsel; and if so, what sanction does the man in the middle withall—the accused—have against the original counsel.
In its present terms the amendment may raise a number of problems and many more problems than it seeks to solve.
Lord Rodger of Earlsferry: I do not feel able to accept this amendment. I do not go along with the description by the noble Lord, Lord Macaulay, of the position in a civil jury trial in relation to a note of exceptions being easy enough to devise. It was quite a heavy burden on any counsel involved in a civil jury trial to get that right.
At the end of the day, looking at the whole position, if one could detect that there had been a miscarriage of justice, would our system be improved if the matter could not be raised because somebody below had failed to spot the omission at the time? By the wording of the amendment—I do not tie the noble and learned Lord, Lord McCluskey, to it —it is a movable feast to say the least. One does not know how long it will take before the jury returns a verdict. To tie the right of appeal to the need to put in a note of exception within that time would be too hard.
If everyone were as acute and quick as the noble and learned Lord, Lord McCluskey, is now and undoubtedly would have been as a counsel, this provision might be all right. But one has to allow for people who are not necessarily quite so quick and who may on occasion overlook something. If it is overlooked, as the noble Lord, Lord Macaulay, said, by counsel or the agent appearing, it would be too hard to say that in the situation it could not be raised.
Nonetheless, having had on occasion the honour of defending a charge by the noble and learned Lord, Lord McCluskey, against what looks like a good deal of hindsight by counsel in the Court of Appeal, I have some sympathy with the point he makes. But on the whole, from time to time, though the Court of Appeal may allow itself to accept points which may not have been live points in the trial, it is conscious that what must be dealt with are the issues that arise at trial. If on occasion a matter gets through on appeal which was not a live issue and when, on looking back at it, one feels that the appeal court took a harsh line, that is probably a price worth paying rather than having what would, in practice, come to be thought of as being too draconian a rule which would be capable—though the noble and learned Lord does not intend it—of wreaking injustice if it were applied in that way.
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Therefore, while I acknowledge the problem which the noble and learned Lord seeks to address, I do not feel able to accept the amendment.
Lord McCluskey: I am forced to write to the Sutherland Committee to ask its members to consider the matter. Perhaps I may deal briefly with the points of substance that were raised. The noble Lord, Lord Macaulay, is concerned about the absoluteness of the rule. That can easily be dealt with by introducing what the Americans call the "gorilla" rule; in other words, the phrase is put in, "except with the leave of the court".
Lord Macaulay of Bragar: Will the noble and learned Lord spell "gorilla" for us?
Lord McCluskey: Not at this time of night.
Lord Macaulay of Bragar: Are we talking about the animal or the activity?
Lord McCluskey: We are talking about the animal. When one puts in an expression like "except with the leave of the court on cause shown", the Americans describe it as the "gorilla" rule. The gorilla rule is formulated in this way: when one asks where a 600lb. gorilla sleeps at night, the answer is, anywhere a 600lb. gorilla wants to sleep. That is the way the court in America seems to approach the matter in that it does what it wants.
I do not believe that we would treat the rule in precisely those terms. The Lord Advocate said, "If in the court below people failed to spot the point"; that is exactly my point. I can think of a specific case and it wounds me. I sometimes wake up in the middle of the night suffering from a recollection of it. Undoubtedly nobody spotted the point because there was nothing very much to spot. Eventually, with hindsight and with infra-red vision, somebody spotted the fault which had been missed at the time and the court was persuaded to regard it as a misdirection. However, I do not want to bring tears to your Lordships' eyes at this time of night.
On the point, technically, about how difficult it is to do this during the course of a trial, if those who represent the accused—or for that matter the Crown, because the Crown must be alert to what is said by the judge in the charge to the jury—find that there is a misdirection, they may have difficulty in deciding whether to take the point or to formulate it. But there is nothing to stop them coming forward to the court and saying, "Would your Lordship not accept a verdict from the jury until we have had an opportunity to lodge a note of exception?"
I shall reflect upon what has been said and put these matters in my submissions which I hope to make shortly to the Sutherland Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 101:
Page 25, line 33, leave out ("and").
The noble Lord said: Amendment No. 101 is grouped with Amendment No. 102. It seeks to amplify the documents which a judge should consider before

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deciding on leave to appeal and to provide for oral representation on the need for leave to appeal. The important document is probably the charge to the jury, which is not normally available. Nevertheless, the submission by the appellant or on his behalf is equally important to give the judge a rounded view of what is in issue. I beg to move.
Lord Rodger of Earlsferry: I am sympathetic to the intention behind these amendments. Amendment No. 101, which the noble Lord does not press and which concerns the note of appeal, I do not believe to be necessary. Where there is a note of appeal there should not be any need for a further submission.
One can debate Amendment No. 102, but I see no objection to putting on the face of the statute a need for the judge's charge to be included. However, the amendment is technically defective because, as the noble Lord will immediately accept, in a case where the appeal is only against sentence, there is no question of the judge's charge arising; or, indeed, where the judge's charge was not in issue. I am therefore happy to accept the spirit of Amendment No. 102 and come forward on Report with a suitable amendment.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for accepting that point. I accept his criticisms of the defect in drafting. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 102 not moved.]
The Deputy Chairman of Committees (Lord Skelmersdale): Before calling Amendment No. 103, I should inform the Committee that if the amendment is agreed to I cannot call Amendment No. 104.
Lord McCluskey Lord McCluskey moved Amendment No. 103:
Page 26, leave out lines 11 to 13 and insert:
("(6) Consideration whether or not to grant leave to appeal under subsection (1) or (5) above may take place in chambers without the parties being present, but the judge, in the case of subsection (1), or the High Court, in the case of subsection (5), will have the right to order a hearing with the parties present to enable the application for leave under section 228(1) or under subsection (1), (4) or (5) of this section to be the subject of submissions.").
The noble and learned Lord said: I wish to raise a serious matter in relation to Clause 35 which I believe to be in breach of the European Convention on Human Rights. However, I shall develop that point on the Motion that the clause stand part. Subject to that, if we are to introduce for the first time in Scotland a provision of this kind whereby a person may not appeal other than with leave from a judge or from the High Court itself, we should at least allow the court to entertain oral submissions if it chooses to do so.
The Committee will see that what is to be new Section 230A of the 1975 Act starts on line 14 on page 25 of the Bill,
"The decision whether to grant leave to appeal for the purposes of Section 228".
That is the standard section which provides that any person convicted on indictment may appeal in accordance with the provisions of this part of the Act to
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the High Court against conviction/sentence or conviction and sentence. The later provision deals with summary cases. The matter therefore goes first to a single judge who sees a number of documents which are specified in subsection (2); namely, the note of appeal, the certified copy of proceedings and the trial judge's report.
The court itself, when reading the documentation, may decide that it is appropriate to hear representations on specific points. For example, in answer to some point made in the note of appeal, the Crown may wish to receive submissions from the advocate depute, from Crown counsel, to see whether the point is one on which Crown counsel can offer some assistance in the form of authority or argument. Furthermore, the note of appeal does not have to set forth the argument. Again, I dealt with that in the book that I wrote. That is well understood in the profession: the note of appeal should set forth the grounds of appeal, not the argumentation in support of it. There is no quotation of authority for it, for example, in the note of appeal. The submissions of the party therefore are not put before the judge and the judge may want to know whether there is any real substance in the matter; whether he can be given any guidance on the matter. But also the court itself may see a point that was missed and it may be a point that appears at first glance to be one of fundamental nullity.
As the Committee will appreciate, if a point of fundamental nullity is noticed, for example by the court itself or for that matter by the Crown, and drawn to the attention of the court, the court must take notice of the point of fundamental nullity, whether or not it is contained in the note of appeal. It may be that some point in the note of appeal is not very well put and ought to be developed. There are many reasons why either the single judge who is considering the documentation or the appeal court which is considering the documentation might want to have some representations. Accordingly, I am saying that the court itself—either the single judge or the High Court—might wish to raise some matter and have further submissions on it from the parties. That is what my amendment is concerned with.
The new subsection (6) would simply say:
"Consideration whether or not to grant leave to appeal under subsection (1) or (5) above may take place in chambers without the parties being present, but the judge … or the High Court … will have the right to order a hearing with the parties present to enable the application for leave under section 228(1) or under subsection (1), (4) or (5) of this section to be the subject of submissions".
I cannot see what can be wrong with that in the context of a provision for leave to appeal. Although I do not think it would cure the fundamental defect in Clause 35, I beg to move.
9 p.m.
Lord Rodger of Earlsferry: The provisions of Clause 35 are intended to introduce a new procedure which will allow the High Court to filter out frivolous and unmeritorious appeals quickly and simply. The decision whether to grant leave to appeal will be made on the basis of all the papers which will be available to the appeal court at an appeal hearing without the need to convene a full hearing of the appeal court. The noble and learned Lord has referred to the documents and we

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have already indicated that we think they would be supplemented by the charge. There is no question of these new arrangements reducing the level of scrutiny of appeals in general since only appeals which are clearly without merit —those which are unarguable is the way it is expressed—would be refused leave to appeal. Any appeal which appeared to demonstrate arguable grounds would be granted leave and would proceed to an appeal hearing in open court.
These amendments, which require the consideration of whether to grant leave to appeal to be carried out in certain circumstances in open court, would transform what is intended to be a simple and entirely preliminary consideration of what is, we conceive, a narrow question into a full hearing which would duplicate in effect the role of the appeal hearing. We conceive that that would be undesirable. It might give rise to questions as to how much thought had to be given to whether something was or was not arguable whereas we consider that if a judge thinks that it may be arguable or is arguable he should grant it.
The noble and learned Lord raises an interesting point in connection with the question of fundamental nullity. I should like to reflect further on that. But as a provisional matter it is noticed that he may give his reasons in writing. I should have thought that a judge who had perceived a fundamental nullity would have it in mind to put that matter into the document which he prepared. If he did so I would envisage that that matter would then be raised by the applicant if he then took it on to appeal under the later provisions in subsection (4). But subject to looking at that, I believe that there is everything to be said for stressing that the only question here is whether it is arguable, and that matter can be decided, as it is at the present time in England, on the paperwork. It can then be reconsidered by two or three judges on appeal in terms of the later provisions of the clause.
I took the point which the noble and learned Lord made at Second Reading that there is a danger that a single judge might not always be as vigilant as he might. The fact that he has to express his reasons in writing and the fact that he has the prospect of the matter being considered on appeal should ensure that it is, as far as one can predict, properly dealt with. I would suggest that the provisions which we have, subject to the point which the noble and learned Lord has raised, are proper in the circumstances.
Lord McCluskey: I do not think that the debate so far has properly come to terms with the fact that we are introducing here something which is absolutely novel in the criminal procedure in Scotland. It has never been done before. The Scottish criminal procedure is highly unusual, if not unique, in the respect that there is a one-stop appeal. Whether one is convicted in the district court, in the sheriff court, in the sheriff and jury court or in the High Court, one instantly appeals straight to the High Court of Justiciary. There is no appeal from the High Court of Justiciary. The High Court, sitting as three judges, may decide for assorted reasons to refer the case to a Bench of five, seven, nine, 11 or even 13
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judges, but there is no further right of appeal. Accordingly, what we are talking about here is the accused's right of appeal.
I am glad that the Lord Advocate reminded your Lordships of what was said at Second Reading. For those who were not present I referred then very briefly—I do not have the document with me now—to a document produced in England by Justice. The document referred to a case in which the papers were accidentally sent twice and arrived with the same judge. On one occasion, on perusal, he granted leave to appeal; on another occasion, on further perusal, not realising that he had already decided the matter, he refused leave to appeal.
There is nothing desperately unusual about that kind of thing. It sometimes depends on what side of the bed one got out of in the morning how well disposed one is towards a particular matter. Jurists call it "digestive jurisprudence" for obvious reasons. There is a good deal of danger in having a single judge decide this matter. It appears to me that it would not necessarily be a great addition to the expense if the single judge had the right to satisfy himself by inviting submissions. It is not a requirement. It is just a right for him to invoke the assistance of parties, which could be done in chambers. I urge Her Majesty's Ministers to think about this matter before the Bill is finally decided. However, for the moment, although I shall come back to matters of deep principle on the clause itself, with the permission of the Committee I withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment Nos. 104 to 106 not moved.]
On Question, Whether Clause 35 shall stand part of the Bill?
Lord McCluskey: In considering the appropriateness of enacting Clause 35, I ask the Committee to come to terms with its details. I have already mentioned them so I can do it fairly briefly. The clause envisages that the process of applying for leave to appeal begins with the single judge. When one looks at this clause along with Clause 53, in a sense one sees that in fact the first step is that the accused person has legal aid. I believe that I am right in saying that under the provisions of the Legal Aid (Scotland) Act 1986 the legal aid which was granted for the purposes of the trial will continue up to and including that stage. There is no question of denying legal aid at that stage.
However, the matter then comes before the single judge in chambers without an appearance by the parties. The single judge receives documents and nothing but documents. The documents are those which are listed in subsection (2). As I have already mentioned, the note of appeal simply sets forth the grounds of appeal. It happens from time to time that, very helpfully, parties choose to put rather more detailed submissions, as it were, with reference to authority and statute in the note of appeal. There is no compulsion on them to do that at the present time. The note of appeal may simply state the grounds of appeal. That is all that is required by the practice note which governs this matter.

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Subsection (2) (b) of the new section refers to the certified copy or the record of the proceedings at the trial. That is a very formal document which simply records the names of the witnesses, the times when the court sits, who appears and matters of that kind. There is nothing of substance there.
The third significant matter is paragraph (c):
"where the judge who presided at the trial furnishes a report under section 236A of this Act, that report".
I have written and read many such reports. The judge is faced with the note of appeal which is essentially critical of the judge. It may criticise his charge, his ruling as regards the admissibility of evidence; it may criticise his observations to the jury during the course of the trial and it may criticise his directions to the jury at the end of the trial. It may also criticise the sentence imposed or any related matter.
So when a judge is sometimes faced with a barrage of criticism of what he has done or omitted to do, of course the temptation is to be defensive. I have seen many of these reports which are defensive in character. The judge will say, "I made a perfectly proper decision and looked at this authority or that". He becomes a kind of advocate for the accuracy of that which he has said and the authenticity of all the things he has done.
In a sense he becomes one who pleads his own case: at best he is going to be entirely neutral. At that stage nobody, in the course of a document, pleads the appellant's case before the judge who is sitting in chambers or before the appeal court which is sitting in chambers.
I reminded the Committee and particularly the noble and learned Lord the Lord Advocate, of what I said at Second Reading about the Granger case which went to the European Court of Human Rights. It is now reported in 12 European Human Rights Reports 1990 at page 469. What that case established, among other things, was, first, that appeal proceedings are covered by Article 6 of the European Convention. I do not believe that I need go into any detail in that matter because I do not believe that that would be disputed, least of all by the noble and learned Lord the Lord Advocate.
Perhaps I may read to the Committee very briefly what Article 6 says. I take the parts which are quoted on page 479 of the report,
"In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal".
That is reading the matter short. As I have said, in determination of a criminal charge that includes the appeal proceedings. I now come to the important part:
"Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require".
So the essence of the matter, leaving aside the legal aid dimension, which is the heart of the Granger case, is that everyone charged with a criminal offence, including the appeal proceedings, has the following minimum rights,
"to defend himself in person or through legal assistance of his own choosing"
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or provided by legal aid.
Clause 35 says that when it comes to the appeal the accused has no right to appear before the judge or before the High Court. Indeed, the noble and learned Lord the Lord Advocate has just explained that that is not necessary, simply because the case may be unarguable. The question of unarguability was dealt with in the Granger case when, although the High Court of Judiciary had pronounced the Granger appeal unarguable and unstatable, nonetheless the Court of Human Rights held that he should have had representation for the purposes of hearing, that appeal.
I await the Lord Advocate's answer with interest, but without having had the benefit of hearing any contrary argument—one always likes to hear the contrary argument for reasons that I have sought to explain—I cannot see how this clause can stand part of the Bill in the face of Article 6 of the European Convention on Human Rights.
I conclude with why I also object to Clause 53 and why I shall oppose the Question that that clause stand part of the Bill. Clause 53 appears on page 45 of the Bill and deals with legal aid in criminal appeals. In effect, it says that a person cannot get legal aid for an appeal unless the judge or the High Court has given leave. We are exactly in Granger territory now because in that case Granger was not granted legal aid and that was held to be a contravention of the European Convention because of the complexity of the case that he had to argue. In this case, combining Clauses 35 and 53, the accused person who seeks to appeal will not be entitled to representation by his lawyer and will have no right to appear in person. That is a plain contravention of the article. It is for those reasons that I invite Ministers to withdraw Clause 35 and why I do not think that the Committee should grant the clause its approval at this stage.
9.15 p.m.
Lord Rodger of Earlsferry: The noble and learned Lord, Lord McCluskey, made a number of comments in connection with Clause 35 and referred back to what he said on the amendments in relation to the form of the note of appeal. He pointed out that, under the present form, the judge would get a note of appeal which would not necessarily contain any reference to authorities. The noble and learned Lord said—and I can see the force of it—that having a note of any relevant authorities could often be of assistance to a judge, especially when considering the matter by himself.
The Government are always anxious not to interfere unduly in the workings of the High Court of justiciary. We have been criticised on occasion in Committee debates for seeking to do so. We have taken note of the fact that under Section 233(2) of the Criminal Procedure (Scotland) Act 1975 the form of the note of appeal is something that can be determined by Act of Adjournal. Therefore, I suggest to the noble and learned Lord that if the judges think that it might be of assistance—I can see that they may well do so —it would be open to the High Court to specify a form of the note of appeal which would include reference to authorities.

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Looking at the matter more widely (because the noble and learned Lord looked at it more widely) I believe that the noble and learned Lord was saying that the provisions were objectionable under the European Convention on Human Rights. The noble and learned Lord rightly drew a connection between Clauses 35 and 53. He said, "If you don't get through the test in Clause 35, you don't get legal aid". I might put it the other way round and say, "If you do get through the test in Clause 35,"—the matter is arguable—"when you appear in future in the appeal court, you will have legal aid and you will therefore have representation".
I defer to the noble and learned Lord's experience in almost every sphere except in terms of trips to Strasbourg because in my time I have had probably more than my fair share of trips to Strasbourg in connection with the proceedings of the criminal appeal court in Scotland.
What the Strasbourg judges, whom it is a pleasure to visit, I may say, object to principally is that in Scotland we have a system which allows people to appear in the Appeal Court. They appear in the Appeal Court and they have sitting opposite them representatives of the Crown. In the Granger case, it was my noble and learned friend the Minister of State who was then Solicitor General, and on other occasions it may be advocates depute, and so on. What is then said to be wrong is that there is an infringement of the principle of equality of arms, because the judges say that where there is a hearing in front of the court, it is wrong that one side—the Crown—should be represented while the other side—the accused—is not. One can see the force of that in some respects.
We have argued all sorts of things—for example, the fact that the Crown does not necessarily speak, and so on—but we have been rejected. Nonetheless, if one has regard to other aspects of the jurisprudence of the courts—we have from time to time sought to invoke them—one finds that the position in relation to leave to appeal is different. That matter has been explored in connection with the position in England and Wales. That occurred in particular in the case of Monnell and Morris. In that case, the court in Strasbourg held that it was consistent with the convention for one to have a system of leave to appeal, such as is envisaged here, where written representations were put in by the appellant, but where there were no representations from the Crown. Therefore there was no infringement of the equality of arms. In other words, the court did not accept —with the greatest possible respect—the construction put upon Article 6, which the noble and learned Lord, Lord McCluskey, has advanced.
In considering the clause, we had regard, and had to have regard, to the jurisprudence of the court in Strasbourg, because there would be no point in putting it forward if it would inevitably fall. We believe, for the reasons that I have indicated, that the clause is consistent with that, and it produces a system which will allow the court to weed out frivolous appeals, and thereby—I put considerable weight on this—allow those appeals which are not frivolous, but serious, and raise points which have to be decided, to be brought on and disposed of
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more quickly. Therefore, with the greatest respect to the noble and learned Lord, his criticisms of the clause are not justified, and it should stand part of the Bill.
Lord McCluskey: I am reluctant to leave the matter in that way because I am not satisfied that the answer that the noble and learned Lord the Lord Advocate has given is a convincing one. Section 233(2) of the 1975 Act deals only with grounds of appeal. I do not read that—I may be wrong—as empowering the court, by Act of Adjournal, to require an accused person to state his arguments in the note of appeal. I doubt very much whether the court would regard that requirement as intra vires.
The second point concerns the Granger case. I recognise that the noble and learned Lord the Lord Advocate was Solicitor General at the time the case was heard in Strasbourg, although I believe that the noble and learned Lord, Lord Fraser, was the Solicitor General at the time the matter was argued some years previously in the High Court in Edinburgh. I recognise that in the Granger case the grounds of appeal were very well detailed. So much so, that the court in Edinburgh, despite the fact that Granger was not represented before it, chose to hear Granger in full. Granger read out a speech which had been written by his solicitor and which dealt with all the grounds of appeal. In the view of the Lord Justice Clerk, who was presiding, he did so very convincingly.
Perhaps I may refer to the judgment of the European Court of Human Rights. Paragraph 21 of its report states:
"The High Court of Justiciary unanimously refused the appeal on all grounds. In his written judgment the Lord Justice Clerk, who presided, gave full consideration to each of the grounds, but was satisfied that none of them had substance and that there had been no miscarriage of justice".
That virtually says that these points are unarguable; it is virtually the same test. Therefore, the Lord Justice Clerk and his colleague would have said that the matter was unarguable.
The Government, in the person of the noble and learned Lord the Lord Advocate, as he now is, argued that the appeal by Granger did not require a grant of legal aid, which the Government describe as being, "wholly without substance" and having "no reasonable prospects of success". I refer to page 480, paragraph 45, of the report. Therefore, from time to time both the government counsel and the judges refer to the matter as being one without substance. Accordingly, it seems likely that that is a case in which the court would have upheld that the appeal was unarguable. It would have done so without representation by or for Granger and that would be in conflict with the article.
Secondly, the noble and learned Lord the Lord Advocate specifically referred to there being no equality of arms. The point was that, on the one side, the court saw the Solicitor General for Scotland, with his Crown Office assistant, argue the case and, on the other side, a man standing up and reading a speech that had been prepared for him by his solicitor. It considered that there was no equality of arms there. I recognise that principle but urge the noble and learned Lord the Lord Advocate to bear in mind what I said earlier—that the judges'

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report is not, or is commonly not, an impartial assessment of the situation. It ought to be and in my book I invite those who write such reports to try to make them impartial. However, I know that when one sits down with all the criticisms of one's charge and one's behaviour, it is difficult to sit back and be impartial about the matter. One tends to reply as an advocate on one's own behalf. It is one's last kick at the ball before one reads in the papers that the appeal court has overturned the decision on the ground that one is some kind of clown and has misdirected the jury.
I have expressed the matter in terms that are perhaps unduly lighthearted at this time of night. However, I mean the point and I hope that the Government will think carefully about the matter. In the meantime, I withdraw my opposition to the clause.
Clause 35 agreed to.
Clause 36 agreed to.
Clause 37 [Extension of certain time limits with respect to appeals]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 107:
Page 29, line 22, at end insert:
("() In Section 451(2) of that Act after the word "reasonable" there shall be inserted "and shall pending the report liberate the appellant forthwith".").
The noble Lord said: This amendment has been grouped with Amendment No. 108. Their purpose is to ensure that a person in custody pending an appeal by stated case should be liberated pending an appeal in the event that the time limits for stating the case are extended. From time to time we have heard the complaint that by the time stated cases are received the convicted person has served the sentence in the matter under review. In the interests of the convicted person, therefore, this amendment is not unreasonable. What is happening is completely outwith his control. I beg to move.
Lord Rodger of Earlsferry: The noble Lord's amendment would result in the strange effect of appellants being liberated automatically where an extension was granted. They would be liberated not even on bail or subject to appropriate conditions.
Provision is made for an extension. Where that arises, it could be that it could reach the stage where the person concerned had served the vast majority of his sentence before his appeal could be considered. However, where such an extension is made that could in itself be a ground upon which an appellant could make a further application for bail under the terms of the existing legislation. Therefore, we see no reason for such a provision. It is already covered by the legislation.
9.30 p.m.
Lord Macaulay of Bragar: The noble and learned Lord says that these provisions are superfluous in the present state of law and that the convicted person has ample scope within the present law to be liberated. With respect, I do not accept that in its entirety. I accept the criticisms which he makes of the fact that there is no mention in the amendment of bail or conditions
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imposed. However, he may wish to think again about the matter with a view to providing that a person may be liberated on bail under such conditions as the court may wish to impose pending receipt of the stated case. However, I have noted what the noble and learned Lord said and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 108 not moved.]
Clause 37 agreed to.
Clause 38 [New prosecution for same or similar offence]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 109:
Page 29, line 30, leave out ("In each of sections 255 and 452B") and insert ("(1) In section 255").
The noble and learned Lord said: Clause 38 ensures that in a fresh prosecution following appeal an accused may not be charged with an offence more serious than that of which he was originally convicted. Subsection (2), which is envisaged in the amendment, deals with the position in summary cases. To ensure that this restriction does not hinder the Crown in leading all relevant evidence, the clause gives both parties power to lead any evidence which it was competent to lead in the original proceedings.
These amendments are intended to assist the accused and the court by requiring the prosecutor to indicate on the fresh indictment or complaint any matters about which he intends to lead evidence by virtue of that power. That may and usually will be done by including the relevant charge.
Of course, under the decision of the Appeal Court in Nelson, that gives much of the cover. But there may be occasions when that may not be appropriate—for example, where there is an unappealed minor conviction on the previous indictment which relates to matters which it would be relevant to lead in evidence. In that situation, it could not be made the subject of a charge because there has already been a conviction, but, according to and modifying existing practice, it would be possible to give notice on the face of the indictment to the accused that it is intended to lead evidence of a certain kind which would be relevant to the proof of the main charge. We see that as being of assistance to the defence. I beg to move.
On Question, amendment agreed to.
[Amendment No. 110 not moved.]
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 111:
Page 29, line 40, after ("shall") insert (", subject to subsection (1C) below,").
The noble and learned Lord said: I beg to move.
Lord McCluskey: There is a point which I wish to raise in relation to subsection (1C) but perhaps I should wait until Amendment No. 113 is called. Although this is a paving amendment, I believe that it is appropriate for the noble and learned Lord the Lord Advocate to explain his position in relation to Amendment No. 113. Otherwise, if the Committee were to refuse to allow

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Amendment No. 113, we should be in a rather bizarre position because we should have agreed to Amendment No. 111, which inserts the reference to subsection (1C).
Lord Rodger of Earlsferry: I believe that in speaking to Amendment No. 109 I have also spoken—perhaps I should have done so explicitly—to Amendments Nos. 111 and 113. In connection with the position on evidence, I explained about giving notice of evidence relating to the main charge. That was what I was speaking to in relation to Amendment No. 113. I apologise to the Committee for not making that clear.
Lord McCluskey: The fault may well be mine. I did not realise the connection. I wish to draw attention, however, to what is contained in this new subsection (1C), the terms of which are set out in the Marshalled List under reference to Amendment No. 113. The subsection states:
"The indictment in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (1B) above".
This is an attempt by the Minister to solve a problem. The problem, I believe, arises in this way. If a person appeals against conviction and his appeal is successful, the court may order a retrial. But the noble and learned Lord the Lord Advocate will recognise that before the person gets to the stage of appealing, it may be that he faced half a dozen charges and the Crown, for perfectly respectable reasons, decides not to proceed with the other five. It may decide that they were really paving charges, as it were, to give notice of evidence which was intended to be led and therefore they are dropped. Of course the jury, or judge, returns a verdict of acquittal, perhaps under our new procedure, or the jury may acquit if that is the way it is done. Accordingly when the retrial is ordered, these charges cannot be brought. It is therefore necessary, if one intends to lead the evidence which would have supported these charges, to give notice. But we end up with an entirely novel creature in our procedure—an indictment which charges certain matters as the charge, and an indictment which contains also, as a kind of addition, the statement; by the way, the Crown will need evidence in support of these other matters. I do not recognise that creature and I do not know how it would affect general arguments about competency and relevancy and other matters of that kind.
The new provision states:
"The indictment in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence".
What I want to know is the following. If a person, having appeared in the court below has been acquitted, whether by the verdict of the jury after evidence, or by the verdict of the jury, or by intervention by the judge as is permitted under the 1993 Act, will it be competent to include in the indictment—in the new prosecution—matters which relate in effect to the person's involvement in those charges?
Lord Rodger of Earlsferry: The noble and learned Lord is drawing attention to an important matter on which we have focused in this amendment partly as a
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result of comments which we have received. We think it is right that where the Crown has been given the right to bring a fresh prosecution there should be a certain procedure. One can think of, for example, a murder as being the classic case. The noble and learned Lord will know the kind of case that I am thinking of where it is necessary to include another charge. Under the recent decision in Nelson the cases where that will be necessary may be reduced, but there may nonetheless be cases where, solely in order to prove the main charge, it may be desirable to have the opportunity to relead evidence which would technically relate to another charge. I accept, of course, that there may be circumstances where the court below has done that—perhaps it was done for evidential reasons—and where therefore there has been an acquittal on that matter.
We envisage that using this provision it will be possible to give notice not that we seek a conviction on that matter, but that we seek to lead evidence on that matter. The noble and learned Lord says that he does not recognise that. I accept that it is not a matter which has been dealt with in that way. But the noble and learned Lord will recognise that where, for example, it has been necessary for the proof of a charge to lead evidence of matters which would be criminal behaviour had they occurred in Scotland but which —I am thinking of a particular case—occurred in Belgium or Germany, in practice it has been possible to include in the indictment words to the effect "further it will be shown that" and then to narrate the evidence.
That is what we envisage doing. It will not be possible in that situation for the Crown to seek a conviction on the matter. To that extent the matter is decided by what happened in the court below. Nonetheless, it will give notice to the accused that in proof of the charge which we seek to prove on reindictment we shall seek to lead evidence of those matters.
Lord McCluskey: I understand the answer given by the noble and learned Lord the Lord Advocate and I have sympathy with what he intends to do. However, I urge him to think again. In particular, as he knows, it is common in a murder charge to find that the accused is charged with a breach of the peace and other minor assaults or possession of a weapon. To clear the ground for the jury, these matters may be dealt with or the jury may itself return verdicts. If the person has been acquitted of breach of the peace, possession of an offensive weapon or of the preliminary or subsequent charge, or of the assault upon the police or whatever it may be, then can it be right to include in the indictment a notice to the effect that the Crown will lead further evidence to show that he committed the breach of the peace, assaulted the police, possessed an offensive weapon or whatever it may be? The matter needs further thought.
I do not believe that the matter has been properly thought through in these provisions. With that advice I suggest that the noble and learned Lord the Lord Advocate should think about the matter further.
On Question, amendment agreed to.
Lord McCluskey Lord McCluskey moved Amendment No. 112:
Page 29, line 42 after ("proceedings") insert ("and, for the removal of doubt, it shall be competent for the accused to lead evidence of statements made extrajudicially by any person who was accused along with him in the earlier proceedings, regardless of the result of those earlier proceedings for that person.").
The noble and learned Lord said: Amendment No. 112 is concerned with the particular matter which perhaps lawyers alone will understand, but I shall do my best to explain it as briefly as possible.
In a case which was heard a year or two ago in the Appeal Court there had been two accused persons—McLay and Harkins. Both were charged with murder. Each of them said "It was not I who did it. It was the other person". They lodged defences of incrimination. At the conclusion of all the evidence and the speeches the trial judge directed the jury that it was not a case in which it could be held that the two had acted together in concert. Accordingly, while there was evidence on which the jury could convict McLay and acquit Harkins, or evidence on which it could convict Harkins and acquit McLay, there was no evidence on which it could convict both. It was one or the other, or neither. McLay was convicted and Harkins was acquitted, it so happens on a not proven verdict, which was somewhat illogical in that case.
Shortly thereafter it was discovered by and on behalf of McLay, the convicted man, that both before and after the trial Harkins had said to a number of other people that it was not McLay who committed the murder but himself. In other words, it was discovered that Harkins had confessed to the crime before, after, and possibly during the course of the trial. Accordingly, McLay appealed and argued that that was additional evidence which ought to be put before the court to show that a miscarriage of justice had taken place. The court held that it was indeed additional evidence, but that it was not admissible evidence. It was not admissible evidence because it was hearsay evidence. It was a statement made by a living person—to wit one who was available to give evidence, although it so happened that Harkins had made it clear to McLay's representatives that he would not give evidence at any second trial. Accordingly, the evidence was regarded as hearsay, the court decided that it was inadmissible and the defence was not allowed to lead it.
The curious factor was this. It was acknowledged by the judges in the case, notably the Lord Justice Clerk and myself—I wrote a dissenting opinion—that any evidence which showed that Harkins committed the crime was plainly evidence that McLay did not because it was a one or other situation, as I explained earlier.
In delivering the leading opinion, the Lord Justice Clerk stated in terms at page 411D of the 1994 Scottish Criminal Case Reports:
"I accept that at the first trial evidence of confessions made by Harkins would have been admissible, but this would have been because he was an accused and statements by an accused person may be proved. No doubt such evidence might have incidentally benefited the appellant; as the trial judge pointed out in his report, this was a case where the deceased must have been stabbed by a single assailant, either Harkins or the appellant. Harkins and the appellant each sought to incriminate the other and, accordingly, any
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evidence tending to inculpate one would tend to exculpate the other. In these circumstances I accept that if evidence had been led at the first trial of confessions made by Harkins, such evidence would have assisted the appellant".
However, despite that view the court declined to allow evidence to be heard as additional evidence which, being that very evidence, would have been admissible at the first trial but could not be admissible at the second trial and therefore could not be regarded as admissible evidence.
I regard that as an extraordinary anomaly in our law. The Lord Justice Clerk was satisfied with the law as it was; indeed I believe that the other judges were. In that context, although the Lord Justice Clerk was not suggesting that the law should be altered by legislation, he said that if it had to be altered, it should be by legislation. I propose that that should be done. Although the words in my amendment "for the removal of doubt" may not be entirely appropriate, the essence is clear, that,
"it shall be competent for the accused to lead evidence of statements made extrajudicially by any person who was accused along with him in the earlier proceedings, regardless of the result of those earlier proceedings for that person".
Accepting that the amendment may be technically defective, nonetheless I hope that the Government will consider it. I beg to move.
9.45 p.m.
Lord Macaulay of Bragar: Perhaps I may briefly support the amendment of the noble and learned Lord. I share his misgivings about the present state of the law. We have been told time and again about allegations of miscarriage of justice. I should have thought that the amendment is at least one step towards the prevention of miscarriages of justice. I commend the amendment to the Committee.
I shall not go into it in detail at this stage except to say this. I understand that the Law Commission will shortly be reporting on the question of hearsay. I hope that this case is considered closely in that report. I am not privy to it. I look forward to seeing the report in due course. In the meantime, I add my support to the submission of the noble and learned Lord.
Lord Rodger of Earlsferry: I hope that the Committee and the noble and learned Lord, Lord McCluskey, will not think me discourteous if I reply briefly. It is not because I do not recognise the difficulty of the specific case to which the noble and learned Lord refers. He will acknowledge that having considered the matter carefully, his colleagues came to a different view: that no exception on the common law should be allowed although they recognise that there might be a case for legislation.
As the noble Lord, Lord Macaulay, said, we are expecting—I would say imminently—a report from the Scottish Law Commission which deals with matters of hearsay. I happen to know that the case of McLay is among the issues which the commission has considered. I do not know its views on the matter. Therefore I cannot anticipate them.

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However, perhaps I may say to the noble and learned Lord, Lord McCluskey, that in all the circumstances it would be appropriate for us to consider the matter in the light of the report by the Law Commission which undoubtedly will have been able to take this case into account in the wider context of a review of various problems regarding hearsay.
Lord McCluskey: I am perfectly content with that answer by the noble and learned Lord. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 113:
Page 29, line 42, at end insert:
("(1C) The indictment in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (1B) above.".
(2) In section 452B of the 1975 Act (corresponding provision in relation to summary proceedings)—

(a) at the beginning of subsection (1) there shall be inserted "Subject to subsection (1A) below,"; and

(b) after subsection (1) there shall be inserted the following subsections—

"(1A) In a new prosecution under this section the accused shall not be charged with an offence more serious than that of which he was convicted in the earlier proceedings.
(1B) In proceedings in a new prosecution under this section it shall, subject to subsection (1C) below, be competent for either party to lead any evidence which it was competent for him to lead in the earlier proceedings.
(1C) The complaint in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (1B) above.".").
On Question, amendment agreed to.
Clause 38, as amended, agreed to.
Clauses 39 and 40 agreed to.
Clause 41 [Examination of facts]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 114:
Page 32, line 22, at end insert:
("() Where it appears to the court that it is not practicable or appropriate for the accused to attend an examination of facts the court may, if no objection is taken by or on behalf of the accused, order that the examination of facts shall proceed in his absence.").
The noble and learned Lord said: In speaking to Amendment No. 114, perhaps I may also speak to Amendments Nos. 118, 125A, 127A, 127B and 127C.
The two amendments to Clause 41 extend to the holding of the examination of facts, the principle enshrined in Section 174 of the 1975 Act that court proceedings may be taken in the absence of the accused, if the court considers that it may be impracticable or inappropriate to attend court, and where there is no objection to such a course of action.
The four amendments to Clauses 43 and 44 provide that an appellant may, if he wishes, attend appeal hearings provided for in these two clauses, unless the High Court determines that his presence is not
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practicable or appropriate. This formula will allow the High Court so to determine either on distress or harm to health along the lines of Section 174 of the 1975 Act or on grounds that the appeal is only on a point of law, that is, along the lines of Section 240 of the Act. It seems right in the circumstances to provide for both. I beg to move.
On Question, amendment agreed to.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 115:
Page 32, line 27, leave out ("as nearly as possible").
The noble Lord said: This is a short amendment omitting the words "as nearly as possible" at page 32, line 27. The objective behind the amendment is to ensure, so far as possible, that the ordinary rules of evidence and procedure which would apply in a criminal trial apply to the examination of facts and that some degree of rigidity is imposed on the leading of the evidence.
It is of course appreciated that the proceedings may cause great evidential difficulties; but in my submission to the Committee it would not do any harm to make that flexible change, if we may call it that, in Clause 41. On that basis, I beg to move.
Lord Fraser of Carmyllie: I have some sympathy with the thinking that lies behind the noble Lord's amendment. It is our intention also to ensure that the rigorous standards relating to evidential and procedural matters at a trial should equally apply at an examination of facts. To take a couple of examples, that means that witnesses would have to be sworn and could be held in contempt of court.
However, we do not propose dilution of those standards and the safeguards which they represent by the use of the words "as nearly as possible". It simply reflects the fact that an examination of fact cannot exactly replicate a trial. For example, there will not be a jury present and there will be no verdict at the end.
I should say to the noble Lord that there is also precedent for the use of the words. If he were to look at Section 4(7) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, again it is appropriate that procedures should mirror trial procedures and standards as nearly as possible, while recognising the fact that they cannot be an exact replica.
I am not aware that the courts have had difficulty in interpreting such words in a way that ensures that the interests of justice are served. I hope that with the parallel and that explanation the noble Lord will feel confident that we are after the same objective and can withdraw his amendment.
Lord Macaulay of Bragar: It is clear that we are all after the same objective in these unfortunate cases. I am obliged to the noble and learned Lord for his reference to Section 4(7) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. As they used to say in show business, I have not brought my music with me so I cannot refer to it now, but I shall in due course take note of what the noble and learned Lord said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 116:
Page 33, line 6, at end insert:
("() The court may, on the motion of the prosecutor and after hearing the accused, order that the examination of facts shall proceed in relation to a particular charge, or particular charges, in the indictment in priority to other such charges.").
The noble and learned Lord said: In speaking to Amendment No. 116, perhaps I may also speak to Amendment No. 119. Clause 41 already provides that courts may desert individual charges pro loco et tempore at an examination of facts. Let me explain why. For an accused facing multiple charges there may be a main charge or a group of main charges and a number of lesser ones. If the court considers that the accused did the act charged as the main offence, that would be sufficient to entitle the court to impose an appropriate disposal. In practical terms—i.e. for purposes of disposal—it might be unnecessary to proceed further to consider all the lesser charges, although the Crown might wish only to desert those remaining charges pro loco et tempore rather than outright, in order to allow of the possibility of re-indictment of those charges should the accused recover his sanity. The clause already provides for such desertion of charges on a motion from the prosecutor and after hearing the accused or his representative. The accused may of course not wish to leave all the remaining charges unaddressed and may express that view to the court. On the other hand, the accused may agree that further prolonging the examination of facts is indeed unnecessary.
The provisions already in the Bill to desert individual charges pro loco et tempore are of little practical benefit, however, unless the court also has a power to address charges individually or in groups, as it sees fit. This is what Amendments Nos. 116 and 119 provide in respect of examinations of facts in both solemn and summary proceedings. In both cases the decision so to proceed would be on the same basis as desertion of individual charges; that is to say, on a motion of the prosecutor and after hearing the accused.
I commend these amendments to the Committee.
Lord Harris of Greenwich: Perhaps I may make just one comment. There appear to be a remarkable number of government amendments to this Bill at Committee stage. Certainly, all of us would be warmly in favour of ensuring that we do not make mistakes in legislation. But there really is little excuse for the number of government amendments to this Bill. We are not discussing the Report stage of the Bill; we are in Committee. I really do hope that in future—and I hope that the Government's business managers will take note of this—we do not waste an enormous amount of time in this Chamber discussing government amendments which should have been foreseen by the departments concerned before the Bill was published.
Lord Fraser of Carmyllie: A number of these amendments may not have come out of responses to representations of views expressed in this Chamber, but in the process of bringing together this Bill we have consulted widely throughout Scotland. A considerable
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proportion of the amendments follow on from the continuing consultation that we have had with senior members of the judiciary in Scotland. It is for that reason that we introduced them.
There is, I accept, another fairly large group of amendments. But, as I believe the noble Lord, Lord Macaulay, certainly understands, we wish to approach our changes here by consolidating from law procedure in Scotland once this Bill has completed its stages. A large number are pre-consolidation amendments. I certainly understand that, while it may be somewhat tedious for the Committee, this approach is welcomed by those who have the responsibility of putting the law into practice in Scotland.
Lord Harris of Greenwich: I understand the point about consolidation, and I do not want to go over the ground yet again. The only point that I would make is this. There is a great case to be made for formulating legislation after the consultation period. To have a running series of amendments as the noble and learned Lord suggests does not seem to me to be a sensible way of approaching the legislative process.
As the noble and learned Lord is aware, there have been constant complaints about the length of the sittings of this House. The only way in which we can begin to correct that is for government departments not to start putting down shoals of amendments to a Bill which should have been properly drafted in the first place.
Lord Macaulay of Bragar: Perhaps I may briefly intervene. I did not raise the point because I did not wish to set up any acrimony between this side of the Chamber and the Government because we have a particular objective in this area. However, I happened to stay down south this weekend. When I phoned home this morning I discovered that there is a letter from the Scottish Office lying there which contains all the government amendments. So this morning, at 11 or 12 o'clock, was the first opportunity that I have had to consider the additional government amendments.
It is completely unfair to the Committee that a mass of amendments should be added on because, apart from anything else we were allocated only two Committee days for the Bill, it being anticipated that today would sufficiently see off what was left at the end of the first day. Suddenly we are faced with the present long list of amendments, which may or may not, depending on the view of the Committee, involve a very late sitting tonight.
I appreciate what the noble and learned Lord the Minister said, but these amendments come rather late in the day and I take some convincing that the observations made by the noble Lord, Lord Harris, do not have some merit at this stage in the proceedings. The Bill must have been envisaged over a goodly period during the past year or year and a half. But we are stuck with them now. How far we proceed with the Bill tonight, remains to be seen.
10 p.m.
The Earl of Balfour: I want to add a short comment at this point. In this discussion I was immediately reminded of an occasion on which I had the privilege of

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meeting the parliamentary draftsman in connection with a housing Bill brought forward when my noble friend Lord Sanderson was Minister of State for Scotland. At that meeting I was fascinated to learn from the parliamentary draftsman that in a consolidation Bill he was not permitted to change a single word of the existing legislation.
If these amendments are in any way designed to simplify the law, even if they have been added at this stage, I am sure that it will be of benefit to all those who must understand the legislation when the Bill becomes an Act. That needs to be borne in mind. I certainly had a lesson on the occasion of that meeting.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 117:
Page 33, line 35, leave out ("on indictment") and insert ("in a complaint").
The noble and learned Lord said: In view of the previous discussion, perhaps I may say that this is a minor amendment to the new section to be inserted into that part of the 1975 Act which deals with summary procedures. The reference should be to criminal charges "in a complaint" rather than "on indictment". I am sure that the distinction is clear to the noble Lord, Lord Macaulay. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 118:
Page 34, line 2, at end insert:
("() Where it appears to the court that it is not practicable or appropriate for the accused to attend an examination of facts the court may, if no objection is taken by or on behalf of the accused, order that the examination of facts shall proceed in his absence.").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 119:
Page 34, line 31, at end insert:
("() The court may, on the motion of the prosecutor and after hearing the accused, order that the examination of facts shall proceed in relation to a particular charge, or particular charges, in the complaint in priority to other such charges.").
The noble and learned Lord said: In speaking to Amendment No. 116, I spoke also to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 41, as amended, agreed to.
Clause 42 [Disposal of case where accused found to be insane.]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 120:
Page 35, line 16, leave out from ("in") to ("specify") in line 18 and insert ("such hospital as the court may").
The noble and learned Lord said: In speaking to this amendment I shall speak also to Amendment No. 121.
Under present solemn procedures, where a person is found insane in bar of trial, the wording in Section 174, to which I previously referred, is that the person:
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"shall be detained in a State hospital or such other hospital as for special reasons the court may specify".
The wording probably reflects the days when in respect only of those facing the most serious charges did proceedings reach that stage. I am not sure whether the wording that I quoted quite amounts to presumption in favour of detention in a state hospital, but it contrasts, for example, with the wording of Section 175 of the Act which governs the making of hospital orders in respect of convicted persons. There, the court may order detention in:
"such hospital as may be specified in the order".
The preconditions for specifying the state hospital are clearly spelt out; that is, where the court is satisfied on the basis of medical evidence that an offender on account of his dangerous, violent and criminal propensities requires treatment under conditions of special security and cannot suitably be cared for in a hospital other than a state hospital. We are of the view that a more flexible formula would be appropriate. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 121:
Page 36, line 11, leave out from ("in") to ("specify") in line 13 and insert ("such hospital as the court may").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 122:
Page 36, line 28, leave out ("(3) to (6)") and insert ("(6) to (9)").
The noble and learned Lord said: This is a minor drafting amendment. I beg to move.
On Question, amendment agreed to.
Clause 42, as amended, agreed to.
Schedule 1 [Supervision and Treatment Orders: Schedule to be inserted in the 1975 Act]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 123:
Page 84, line 32, after ("officer") insert ("regarding his supervision").
The noble and learned Lord said: This is again a minor drafting amendment. I beg to move.
On Question, amendment agreed to.
Schedule 1, as amended, agreed to.
Clause 43 [Appeal by accused in case involving insanity]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 124:
Page 37, line 7, leave out ("seven") and insert ("21").
The noble Lord said: Amendment No. 124 is grouped with Amendments Nos. 125 to 127. They are basically the same amendment in different parts of the Bill and the aim behind them is to extend the time limits to be employed in appeals by accused persons involving the question of insanity.
The idea behind the amendment is not to impose too rigid a timetable. I know that the Minister at an earlier stage referred to the importance of running a tight ship in the administration of criminal justice. Bearing in

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mind the unanimity which I hope we all have in this area of the criminal justice system, perhaps the Government will consider that seven days is too tight a schedule in the circumstances with which solicitors and others may be faced when taking proper instructions from accused persons in these conditions. I beg to move.
Lord Fraser of Carmyllie: This is the first time that there will be a right of appeal against a finding of fitness or unfitness to plead. In relation to one part of the amendment I should be extremely reluctant to extend the period for appeal against a finding of fitness or unfitness to plead. As the noble Lord will appreciate, that matter will hinge principally on expert medical evidence, and the finding, one way or the other, is the court's assessment of the accused's fitness or unfitness to stand trial now rather than at some point in the future. To extend that beyond seven days would be undesirable.
Having said that, I accept that we may not have given enough detailed consideration to the appropriate appeal procedures in relation to findings and disposals of examination of facts. The previous arguments to the one I have just addressed do not apply, and a longer period than seven days may be required to consider, lodge intimation of and prepare such appeals.
I am not wholly persuaded that the figure of 21 days is the right one and it is not clear to me why that period should be chosen. But I am happy to undertake to reconsider the appeal periods in this second category of cases and to bring forward further proposals for consideration at a later stage. With that undertaking, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Macaulay of Bragar: I am obliged to the noble and learned Lord for his co-operation in this matter. I accept that 21 days may be too long an extension and look forward to the result of his deliberations. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 125 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 125A:
Page 37, line 23, at end insert:
("() An appellant in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate.").
The noble and learned Lord said: This amendment is consequential. I spoke to it when dealing with Amendment No. 114. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 126 and 127 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 127A:
Page 38, line 14, at end insert:
("() An appellant in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate.").
The noble and learned Lord said: I spoke to this amendment earlier. I beg to move.
On Question, amendment agreed to.
Clause 43, as amended, agreed to.
Clause 44 [Appeal by prosecutor in case involving insanity]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 127B:
Page 39, line 8, at end insert:
("() A respondent in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate.").
The noble and learned Lord said: In speaking to Amendment No. 114, I spoke also to Amendments Nos. 127B and 127C which are essentially consequential. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 127C:
Page 39, line 46, at end insert:
("() A respondent in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate.").
On Question, amendment agreed to.
Clause 44, as amended, agreed to.
Clauses 45 and 46 agreed to.
Clause 47 [Committal to hospital for inquiry into mental condition]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 128:
Page 41, line 27, at end insert ("if he is legally represented").
The noble Lord said: This amendment seeks to ensure that where an order for continuation of commitment is made it should be made in the person's absence only if he is legally represented. Continued commitment is a matter of importance to the individual and to ensure that it is done properly and with proper information before the court making the extension legal representation is not only essential but fair to those covered by this clause of the Bill. I beg to move.
Lord Fraser of Carmyllie: I agree with the noble Lord that continued committal to hospital is a matter of considerable significance and not something to be contemplated lightly. But there are inevitably cases where it is necessary; for example, where the inquiry into the person's mental condition is not yet complete. We agreed with the suggestion from the senior judiciary that it might be appropriate to provide for a hearing to be held, without need for the person's attendance, simply to continue the period of committal provided that neither the person in question nor anyone on his behalf objected to that. Indeed, the reasoning was to prevent unnecessary travel, stress or distress to someone who may be ill.
The purpose of this amendment appears to be to preclude such hearings in absentia for those who are not legally represented. But if someone has just exercised his right to defend himself in person rather than through legal assistance he should be allowed himself to make the choice as to whether to attend the continuation of the committal hearing. We have included safeguards in our proposals. The court may permit continued

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committal to hospital only on the evidence of a medical practitioner and if a suitable hospital is available for his continued detention. With that explanation, I hope the noble Lord will feel that he can withdraw his amendment.
Lord Macaulay of Bragar: I am obliged to the Minister for that explanation. I had not quite fully appreciated the context with which we are dealing. I trust that what he has agreed with the judiciary does not contravene anything the noble and learned Lord, Lord McCluskey, said in relation to the European Convention, but that is perhaps a matter for another day. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 47 agreed to.
[Amendment No. 129 not moved.]
10.15 p.m.
Lord Macaulay of Bragar: I do not propose to move Amendment No. 130.
The Earl of Balfour: I believe that my noble and learned friend Lord Fraser said that he was going to accept Amendment No. 130.
Lord Macaulay of Bragar: That is perfectly correct. It was dealt with an earlier stage when we were dealing with Amendment No. 85. It has already been debated.
Lord Fraser of Carmyllie: If the noble Lord moves it, I shall certainly accept it.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 130:
Before Clause 48, insert the following new clause:
("Information on race discrimination
.—(1) The Secretary of State shall in each year publish such information as he considers expedient for the purpose of facilitating the performance by persons engaged in the administration of criminal justice of their duty to avoid discriminating against any persons on the grounds of race.
(2) Publication under subsection (1) above shall be effected in such manner as the Secretary of State considers appropriate for the purpose of bringing the information to the attention of the persons concerned.").
On Question, amendment agreed to.
[Amendment No. 131 not moved.]
Clause 48 [Prints, samples etc. in criminal investigations]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 132:
Page 42, line 38, at end insert:
("(3C) The duty under subsection (3) above shall not apply where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held by or on behalf of any police force in relation to the person.").
The noble and learned Lord said: Section 28(3) of the 1993 Act provides that prints and impressions taken in the course of investigation must be destroyed if the person concerned is not proceeded against or convicted. This amendment would enable the police to retain prints and so on from a person whose prints are already held
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on record because he has been convicted of a previous crime. The purpose of this amendment is to ensure that the best and most complete records of convicted persons are kept. If the prints taken of an already convicted person in the course of a new investigation are of better quality than those already held on record, they can be substituted for the inferior set. Amendment No. 134 is a drafting amendment. I beg to move.
On Question, amendment agreed to.
The Deputy Chairman of Committees (Lord Tordoff): I have to tell the Committee that in calling Amendment No. 133, if it is agreed to I shall be unable to call Amendment No. 134.
[Amendment No. 133 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 134:
Page 43, line 46, after ("sample") insert (", print or impression").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 48, as amended, agreed to.
Clause 49 agreed to.
Clause 50 [Jurisdiction of district court in relation to statutory offences]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 135:
Page 44, line 30, after ("court") insert (", as respects any statutory offence,").
The noble and learned Lord said: This is a minor drafting amendment. I beg to move.
On Question, amendment agreed to.
On Question, Whether Clause 50 shall stand part of the Bill?
Lord Macaulay of Bragar: I have given an indication that I would oppose the Question that Clause 50 stand part of the Bill. I ask these questions for information purposes. It is rather a stark clause. I wonder whether one or other of the Ministers can explain to the Committee what the end result of the particular clause will be. For example, statutory offences are of importance to the individuals involved. Does this clause envisage the gradual shifting down of important matters to a lower level within the court structure?
I should also like to know what the impact will be on the legal aid scheme once this matter is through. Will legal aid be available to all persons affected by this provision? What does the Minister believe that the ultimate costs of that will be to the legal aid scheme? I appreciate that these matters are being raised at short notice and that I have not given notice of them, but I think that it may be of interest to practitioners in the courts at least to have a general picture of the objective behind the clause.
Lord Rodger of Earlsferry: It might be helpful if I explain the thinking behind the clause. It is related to Clause 51, which follows it. As noble Lords who have studied the matter will be aware, the power of the procurator fiscal to make a conditional offer of a fixed penalty is defined in Section 56 of the Criminal Justice

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(Scotland) Act 1987 by reference to offences which may be tried in the district courts. It is in order to provide an increased range of offences in relation to which the procurator fiscal may, in appropriate circumstances, grant or make an offer of a fixed penalty that the matter has been put in this way. As I have said, the provisions are defined by reference to the district courts.
The clause provides that, except so far as any enactment otherwise provides, a district court shall be competent to try any statutory offence which is triable summarily, subject to the proviso that the sentencing power of the district courts is not increased. The fact remains that the Crown will be able in appropriate cases to put such a case to the district courts under any statute, but will do so only where the Crown considers that it would be appropriate for that offence to receive only such a sentence as can be imposed by the district courts.
More significantly—or in a wider context—the provisions will allow the procurator fiscal (again where all the circumstances make it appropriate) to make an offer of a fixed penalty in minor cases involving a wider range of statutory offences. It is for that reason that the clause has been introduced. I am not aware that it will have any effect on the legal aid position. It is certainly not driven by any such consideration. There is no intention to drive cases down into the district courts. I have sought to explain the thinking behind the clause to the Committee and that it will still be appropriate to decide by reference to the gravity of any offence which is the most appropriate forum in which to try it.
Lord Macaulay of Bragar: I am obliged to the Lord Advocate for that explanation. Like a number of people, I am becoming concerned about the extension of fiscal fines and whether that involves a diminution of the quality of justice. I wonder whether people are not being driven into a court where they will be offered a fiscal fine where, no doubt, solicitors will not be involved in the consideration of such cases. That seems to involve not only a diminution in the quality of justice, but also in the advice that might be proffered to people who are charged with offences that are serious to them. Such people are then faced with the temptation either of paying £50 in the form of a fixed penalty with no conviction or of taking advice when a lawyer might say, "You have a good defence". I am a little concerned about that and we shall watch developments with interest. In the meantime, I withdraw my Motion.
Clause 50, as amended, agreed to.
Clause 51 [Conditional offer of fixed penalty by procurator fiscal]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 136:
Page 44, line 41, after second (""the"") insert ("in the second place where it occurs").
The noble and learned Lord said: In speaking to Amendment No. 136, I should like to speak also to Amendment No. 137, which provides that procurators fiscal may make a conditional offer of a fiscal fine to cover more than one offence. It often happens that a report by the police contains evidence of the commission of more than one minor offence arising out of the same incident. The amendment would avoid the
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need to make several conditional offers requiring the accused to pay several separate small fines by instalment at the same time. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 137:
Page 44, line 42, at end insert:
("() After subsection (3) there shall be inserted the following subsection—
"(3A) A conditional offer may be made in respect of more than one relevant offence and shall, in such a case, state the amount of the appropriate fixed penalty for all the offences in respect of which it is made.".").
On Question, amendment agreed to.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 138:
Page 45, line 14, at end insert:
("(7B) There shall be no fixed penalty without conviction for those penalised as a result of violence or threats of violence against women and/or their children.").
The noble Lord said: The amendment is of some significance. As I mentioned in relation to an earlier amendment, there is some concern at the dilution of the legal system and that an easy financial way out of a proper justice system is being looked for. The amendment relates purely to charges of violence or threats of violence against women and/or their children. It refers to what is broadly recognised as being domestic violence. Such behaviour, as we all know, carries with it on many occasions considerable physical, psychological and social distress, with consequences for wives, partners and children.
The amendment is put down to serve notice so that the husband or partner who inflicts violence, or threatens violence, on people, especially within the domestic situation, is not just taken down to an office or receives a letter from the fiscal—I understand that is how it is done—saying, "We propose to offer you a fiscal fine of £50, and goodbye". It is important from the public's point of view that people who assault mothers and children or partners and their children should have brought home to them that society regards it as a serious offence. A fiscal fine, certainly from experience in divorce work, will be laughed at by some of the people who inflict violence on their partners and cause distress to the children. We know that violence to the partner has a knock-on effect on the children. Equally, violence to the children has a knock-on effect on the partner, and violence to both in a family fracas has drastic effects on both sets of people.
What is proposed in the amendment is that persons who indulge in such violence should have a message sent to them by the community that it will not put up with such behaviour; there will be no easy way out; and the person concerned will be forced to come to the court and, if the evidence is sufficient, be prosecuted; or, if the partner or wife decides not to pursue the matter, that will not be news to those involved in the courts.
The amendment is saying that there must be a limit to fiscal fines. This is one area in which the Government might consider saying, "No, you are not going to have a fiscal fine. Come and tell us how it happened. You

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can hear the evidence from your wife, child or other person. If convicted, the court will deal with you in the normal way." I beg to move.
Lord Rodger of Earlsferry: I cannot accept the amendment. I understand what the noble Lord is saying, but as he knows, in any case, including cases of the kind mentioned in the amendment, it is always open to a procurator fiscal, in the exercise of his discretion, to take no proceedings or to issue a warning letter. That applies to cases of alleged violence towards women.
All the amendment would do would be to make it impossible for a procurator fiscal to make an offer of a fiscal fine, but a fiscal fine would be a more stringent penalty, or approach, than that of taking no proceedings or of issuing a warning letter, neither of which is struck out by the amendment. We do not believe that it is appropriate to put a straitjacket on the procurator fiscal's discretion. The procurator fiscal is used to approaching all these delicate matters and to considering in all cases what is the most appropriate approach. For example, it might be that the violence offered to a woman was offered by another woman, or that the threat of violence was to be seen as a foolish threat which was not intended to be carried through. It might also be that the whole thing appeared to be a trivial or relatively petty matter.
There is a range of circumstances and we do not believe that one can prescribe for this kind of approach in this particular case. We believe that it is important that the procurators fiscal should always consider the circumstances in any case. When they do so a whole range of disposals—from taking no proceedings through to prosecuting in the matter—may be appropriate. We consider that it is proper for them to have that range open, including a fiscal fine in appropriate cases.
10.30 p.m.
Lord Macaulay of Bragar: I note what the noble and learned Lord says. The amendment may not be happily phrased, in common with a number of amendments before the Committee. The great compulsitor on an offending partner—if we narrowed it down to an offending partner or husband, or a wife who assaults her husband—is publicity. No man likes to be known in the local community as someone who thumps his wife or abuses his children, physically or otherwise. Taking the matter out of the public domain causes some degree of concern. Of course, the procurator has various options open to him and can send the case to mediation. If there is any hope of saving a marriage or improving a situation, that is important.
We shall see how matters progress once the fixed penalties are in operation. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 51 agreed to.
Clause 52 agreed to.
Clause 53 [Legal aid in criminal appeals]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 139:
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Page 45, line 35, after ("(1)") insert ("—(a)").
The noble and learned Lord said: In moving the amendment, I shall speak also to Amendments Nos. 140 and 141. Their purpose and effect is to make it clear that appeals in cases involving insanity are excluded from the provisions of Section 25 of the Legal Aid (Scotland) Act 1986. Criminal legal aid in appeals involving insanity will therefore be automatic, as provided by Clause 52 of the Bill. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 140 and 141:
Page 45, line 36, at end insert ("; and
(b) at the end there shall be inserted the words "other than an appeal in relation to which section 22(1) (dc) of this Act applies.").
Page 46, line 1, leave out ("subject to section 22(1) (dc) of this Act,").
On Question, amendments agreed to.
On Question, Whether Clause 53, as amended, shall stand part of the Bill?
Lord Monkswell: The noble and learned Lord, Lord McCluskey, signified his intent to oppose the Question that the clause shall stand part of the Bill. Unfortunately, he is unable to be present at the moment and has asked me to convey his apologies to the Committee for his absence. He has also asked me to advise the Committee that, on the basis that the subject was spoken to in the debate on Clause 35, he no longer wished to oppose the Question.
Clause 53, as amended, agreed to.
Clause 54 [Supervision and care of persons diverted from prosecution or subject to supervision requirement etc.]:
[Amendment No. 142 not moved.]
Clause 54 agreed to.
Clause 55 agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 143:
After Clause 55, insert the following new clause—
("Liability of bankrupt to pay fines and compensation orders.1985 c. 66
. In section 55(2) of the Bankruptcy (Scotland) Act 1985 (effect of discharge of bankrupt on certain liabilities), after paragraph (a) there shall be inserted the following paragraphs—
"(aa) any liability to pay a fine imposed in a district court;
(ab) any liability under a compensation order within the meaning of section 58 of the Criminal Justice (Scotland) Act 1980;".").
The noble and learned Lord said: The Bankruptcy (Scotland) Act 1985 provides for the discharge of certain liabilities at the expiry of a period of three years. However, specific exemption is made in respect of fines and other moneys due to the Crown.
We consider that the same principle ought to apply to any fine imposed in the district court and to any compensation order which may be made by any court under Section 58 of the Criminal Justice (Scotland) Act 1987. In particular, I believe that it is important to provide that, where a compensation order is made in respect of a victim, every opportunity should be taken

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to ensure the payment of such an order. It would of course remain a matter for the court to determine whether enforcement or non-payment of any fine or compensation order should be pursued and the court would no doubt wish to take into account the effect and timing of the bankruptcy proceedings. I beg to move.
On Question, amendment agreed to.
Clause 56 agreed to.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 144:
After Clause 56, insert the following new clause:
("Disclosure of office statistics
. It shall be the duty of the Crown Office to make public, on an annual basis, statistics which properly disclose its performance during the past year. In particular, the statistics shall apply to—
(a) the annual spending of each of the offices of the Procurators Fiscal and a classification of amounts into that spent on staffing, on administration and on other expenses which shall be further defined;
(b) the average number of cases prosecuted in each office of the Procurators Fiscal along with the number of prosecutors in each office;
(c) the average preparation time given to prosecutors for crimes and offences on a categorised basis;
(d) the number of times cases fail to proceed because the Procurators Fiscal Service has failed to cite:
—the accused
—the witnesses; and
(e) the number of times the prosecutor has requested a postponement of the case, giving the figures for each jurisdiction and the reasons for the request.").
The noble Lord said: As the Committee will see from the side note, the purpose of the amendment is to oblige the Crown Office to make public certain statistics on an annual basis so that the performance of the Procurators Fiscal Service in particular can be gauged on proper and accurate information.
Various requirements are set out in subsections (a) to (e). Despite its wording, the amendment is not intended to be critical of the Procurators Fiscal Service, which performs a very valuable function within the community in Scotland. Its purpose is to get into the public domain more information so that the service is not seen to be operating in a form of secrecy.
An annual report is published by the Crown Office. That is a very nice brochure with pictures, and so on, which is very interesting but it does not provide the information on which one can gauge the cost-effectiveness of the Procurators Fiscal Service.
As I understand it, and I have seen it in operation, the Procurators Fiscal Office is under-staffed and under-funded. I have spoken to advocates depute who perform in the High Court in Scotland. Sometimes they even deal with murder trials. The tradition and, indeed, the requirement of some judges was that an advocate depute should not appear in the High Court unless he was instructed by a member of the Procurators Fiscal Service. Now in the High Court the advocate depute is lucky if he sees a procurator fiscal in the course of a trial. The advocate depute is left to sink or swim in the court. Sometimes he is assisted by an unqualified precognition clerk to whom he must turn for advice. That is a very unsatisfactory situation.
It is extremely alarming if that reflects what is happening in the fiscal service under the system of administration of justice in Scotland because it is important that skilled people should be operating in the court context. It is not good for the system to have an overworked staff working under continuous pressure. If any Member of the Committee happens to walk into a busy sheriff court in Glasgow, he may well see a young fiscal walking along with a pile of papers. I do not know how long the fiscals now have to read their papers, but at one time it was not unknown to be handed the papers at quarter-past nine and to be expected to be in command of all the papers and deal with solicitors at a moment's notice by 10 o'clock; otherwise one ran the risk of incurring the wrath of an irascible sheriff, who no doubt had had a comfortable night and had read no papers, apart from the Herald or the Scotsman on the way to court.
It is unfair that young people in the fiscal service should be subjected to such pressure. Indeed, the indications are that good quality lawyers are not prepared to stay in the fiscal service and are moving back into private practice because they are not prepared to tolerate the unfair burden which society imposes upon them in relation to the administration of justice and the protection of us all.
This amendment, as I say, is tabled on a broad basis to put a duty on the Crown Office to give the public more information about what is happening in the system so that the public can look at their service. After all, the public are paying for the service. It is not as if the noble and learned Lords the Lord Advocate and the Minister of State were paying for it out of their own pockets. The taxpayer pays for the service and the taxpayer is entitled to full information and full disclosure of the cost-effectiveness or non-cost-effectiveness of the service. It is for that purpose—and it is no criticism whatever of anyone—that the amendment is tabled. If the criminal justice system in the prosecuting sense is being overwhelmed and overtaken by events to the extent that justice is being adversely affected, that is serious, but no one can judge that unless he has material with which to examine what is happening. I beg to move.
Lord Rodger of Earlsferry: As the noble Lord, Lord Macaulay, has acknowledged, the Crown Office publishes an annual report and that is part of the Government's initiative under the justice charter. Although it is an attractively produced brochure it also contains a great deal of statistical information. I am keen that it should do so, partly in order that MPs and others who are interested in this matter should be provided with information. My experience is that despite the fact that we provide the information in an attractive form, quite a few of them do not seem to read and digest it because I am often asked questions the answers to which are there.
Much was said by the noble Lord about expenditure on the procurator fiscal service. In real terms in the past 10 years or so there has been an increase of about £24 million on expenditure on the procurator fiscal service. Of course I accept that the position is not exactly as it always has been in that service. It is the case that

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nowadays advocates depute often have the assistance of precognition officers. I would not accept, as seemed to be suggested by the noble Lord, that these are not skilled people. They are not lawyers but they are certainly people who are skilled in what they have to do and they are often in a good position, because of their knowledge of the case, to assist the advocates depute with the prosecution.
In my position I have occasion quite often to attend people's retirement celebrations. I can tell the noble Lord that those who retire now and who must have been in office as procurators fiscal in the time when the party which he supports was in power, often recount tales of going into court with only a short time to prepare their cases. I think that has often been the hallmark of the service over many years. In part that is the nature of these matters because, as the noble Lord knows, cases come up quickly, especially custody matters and other such cases.
That having been said, we are, of course, always concerned to provide information. We do that when we are called upon to do so. We are constantly striving to improve the quality of our statistics. We are greatly assisted in doing so now by increased computerisation. We use them not only so that the public, when they request that information, may see it, but also—this is also important—so that those who are running the procurator fiscal service may spot, for example, where there are particular pressures or where some office is performing differently from another office and whether one should therefore inquire why that may be so. If I may use the jargon, they are useful management tools. We shall continue to gather statistics where appropriate and provide such information as we are gathering when requested to do so.
Lord Macaulay of Bragar: I am obliged to the Minister for that reply. I was not for one moment suggesting that precognition officers are not skilled in the work that they do; namely, precognoscing witnesses. I was discussing whether the team representing the Crown is properly skilled in the law. For example, in a four-man murder case there may be four Queen's Counsel and four junior counsel being opposed by one advocate depute who has no one with whom he can consult on questions of law. Precognition officers are not skilled in matters of law. That is the point that I am trying to make.
If people who are skilled in the law are not available for major trials in Scotland that is an indication that there is something wrong with the system. I do not say that that is the Government's fault. I merely ask whether that is happening. If it is happening, how will it be stopped? The noble and learned Lord the Lord Advocate can be assured that he will receive every support from this side of the Chamber in attempting to reach a resolution of the situation.
We are concerned because burden after burden is being placed on the procurator fiscal service. In this Bill there is a duty to agree uncontroversial evidence. Who will do that? —the procurator fiscal service. That is placing another burden on the service. Who will be
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responsible for fiscal fines? The procurators fiscal will be responsible. As the law develops, additional burdens are placed on the service.
I note the assurance of the noble and learned Lord the Lord Advocate that if people want information, broadly speaking they can obtain it or find it in publications. However, I may return to the issue at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.45 p.m.
Clause 57 [General provision]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 145:
Page 48, line 25, leave out ("including an absolute discharge").
The noble Lord said: The reason for proposing in Amendment No. 145 the deletion of the words "including an absolute discharge" is that an absolute discharge is not normally regarded as being a conviction. The reason for giving an absolute discharge is that a person will still have a clean record.
It may be that a person who has been given an absolute discharge has benefited to some extent from the activity with which he was charged. However, it seems a waste of time to take further action against a person who has been given an absolute discharge by a court which has heard all the evidence in the case and submissions from each side of the Bar. The wording seems an unnecessary addition to the clause. Therefore, I propose the deletion of that particular phrase. I beg to move.
Lord Rodger of Earlsferry: The position is that one of the disposals which is available in solemn proceedings or summary proceedings is the absolute discharge. I accept that it may be unusual in those circumstances for these particular provisions to be applicable or for it to be wished to apply them. Nevertheless, there may be cases where it would be appropriate for the machinery to be operated. Therefore, in order for those cases to be dealt with where appropriate it seems right that an absolute discharge should be included.
In order to allow for those cases, even if they are relatively few, we believe that the words should be included. Therefore, I cannot accept the amendment.
In adopting the wording we are following the recommendation of the Scottish Law Commission.
Lord Macaulay of Bragar: I appreciate that, but the point was made for another reason. I have heard what the noble and learned Lord had to say and I shall consider it. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 57 agreed to.
[Amendment No. 146 not moved.]
Clause 58 agreed to.
Clause 59 [Realisable property]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 146A:
Page 49, line 42, at end insert (", less any amount due by him at that time in respect of any compensation order under section 58 of the Criminal Justice (Scotland) Act 1980 made before the confiscation order.").
The noble and learned Lord said: In moving Amendment No. 146A I shall speak also to Amendments Nos. 153D and 193.
In its report, the Scottish Law Commission considered that there should be no "obligations having priority" when the court came to consider the amount that might be realised at the time a confiscation order is made. We accept the broad approach of the Scottish Law Commission in this regard. However, where a compensation order has previously been made to a victim and remains unpaid we consider that that order should retain the status of an obligation having priority.
We believe that the interests of victims who have been granted previous compensation orders should be recognised in that way. I beg to move.
On Question, amendment agreed to.
Clause 59, as amended, agreed to.
Clauses 60 and 61 agreed to.
Clause 62 [Statements relevant to making confiscation orders]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 146B:
Page 53, leave out lines 3 to 8 and insert ("the court shall consider the matters being challenged at a hearing.
(7) Where the judge presiding at a hearing held under subsection
(6) above is not the trial judge he may, on the application of either party, if he considers that it would be in the interests of justice to do so, adjourn the hearing to a date when the trial judge is available.").
The noble and learned Lord said: Clauses 62(6) and (7) make provision for the hearing of an application challenging a statement under Clause 62(1) about the accused's benefit from the commission of the offence.
Clause 62 proceeds on the basis that the trial judge will be available. If a hearing cannot be arranged "within a reasonable time" the hearing may proceed before another judge.
We consider it preferable to alter that provision slightly so as to allow for matters to proceed before another judge unless either party applies, in the interests of justice, for the hearing to be adjourned to take place before the trial judge.
I believe that the amendment achieves a clearer procedure and would allow hearings to proceed as soon as possible while nonetheless providing the necessary safeguard. I beg to move.
On Question, amendment agreed to.
Clause 62, as amended, agreed to.
Clauses 63 to 65 agreed to.
Clause 66 [Confiscation orders where proceeds of crime discovered at later date]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 147:
Page 56, line 17, leave out ("6") and insert ("5").
The noble Lord said: The amendment is grouped with Amendment No. 149. Read together they give a degree of uniformity to confiscation and applications for a confiscation order and the period for which a person can claim compensation for wrongful confiscation.
I am not sure from where the period of six years comes. I suspect that it comes from the English law of prescription whereas the normal Scottish prescription period of five years applies to contract and delictual rights. That can be found in the Prescription and Limitation (Scotland) Act 1973. To give uniformity to the Bill, and equality for each side (if I may so put it), I beg to move this amendment.
Lord Rodger of Earlsferry: While I accept that in its report the Scottish Law Commission referred to the quinquennial period, nonetheless the Scottish Law Commission recognised that other factors have a more direct bearing on the recommendation for six years. In particular, there is the fact that the Finance Act 1985 has a requirement that value added tax records, which may be important in discovering additional proceeds, should be preserved for six years. Perhaps I may point out that there are other areas, for example in relation to back tax under the income tax legislation, for which six years is the statutory period. There is no real, direct connection with the period of prescription. It was not in regard to the limitation period in England that that period was chosen.
In addition, in view of the close relationship between Scottish and English drug trafficking legislation, and the confiscation regime generally, for which the period of six years applies, I think that it would be appropriate that the six-year time limit should be applied. For that reason, I do not accept the amendment.
Lord Macaulay of Bragar: I am obliged for that explanation. When I hear in respect of confiscation orders that six years later the VAT returns of the people involved in those activities will be of any significance, it shows a substantial amount of charity and faith in human nature on the part of the noble and learned Lord the Lord Advocate. However, I understand the reasons for it. I do not accept them, but I shall not make an issue of it at this point. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 147A:
Page 56, line 38, leave out ("11(2)") and insert ("58(2)").
The noble and learned Lord said: This is a technical drafting amendment. I beg to move.
On Question, amendment agreed to.
Clause 66, as amended, agreed to.
Clauses 67 to 69 agreed to.
Clause 70 [Compensation]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 148:
Page 59, leave out lines 37 to 41 and insert:

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("(a) a constable of a police force within the meaning of the Police (Scotland) Act 1967, by the police authority or joint police board for the police area for which that force is maintained;").
The noble and learned Lord said: In speaking to Amendment No. 148, I wish also to speak to Amendment No. 150. They are technical amendments to Clause 70 to reflect the fact that, following local government re-organisation, where joint police committees previously existed they will now be called joint police boards. I beg to move.
On Question, amendment agreed to.
[Amendment No. 149 not moved.]
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 150:
Page 60, line 12, at end insert:
("() Until the date on which paragraph 71 of Schedule 13 to the Local Government etc. (Scotland) Act 1994 comes into force, the reference in subsection (5) (a) above to a joint police board shall be construed as a reference to a joint police committee.").
On Question, amendment agreed to.
Clause 70, as amended, agreed to.
Clause 71 [Suspended forfeiture order]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 150A:
Page 60, line 33, at end insert ("or, as the case may be, the finding that he committed the offence with which he was charged").
The noble and learned Lord said: Again, this amendment is technical. It simply reflects the fact that a forfeiture order may be made in summary proceedings where an absolute discharge order is made. The general background to this was considered in relation to Amendment No. 145. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 150B:
Page 61, line 44, at end insert ("or forfeited to another person under that section").
The noble and learned Lord said: In moving Amendment No. 150B, I wish to speak also to Amendments Nos. 150D to 150M. The principle underlying these amendments is to retain the court's existing flexibility to dispose of forfeited property as it may direct. The provisions of the Bill, which are based on the Scottish Law Commission's report and recommendations, provide only for property to be vested in the Crown. While this will be the normal procedure, we consider that the existing flexibility to allow the court to direct that property may be vested in another person should be retained. We are thinking, for example, of a case where it was vested in the police authorities as a reward for what they had done in a particular case. The amendments also make certain consequential amendments. I beg to move.
On Question, amendment agreed to.
11 p.m.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No.150C:
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Page 61, line 47, at end insert (", whether or not constituted by a stipendiary magistrate").
The noble and learned Lord said: We believe that by their nature the forfeiture provisions proposed in this clause are not particularly well suited to the general business of the district court, although we are considering what may be appropriate for this court and may return to the point at a later stage. Meanwhile, this is a minor amendment which makes clear that the provisions in this clause should not extend to the district court, whether constituted by a justice of the peace or a stipendiary magistrate. I beg to move.
On Question, amendment agreed to.
Clause 71, as amended, agreed to.
Clause 72 agreed to.
Clause 73 [Forfeiture of property subject to suspended forfeiture order]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendments Nos. 150D to 150H:
Page 62, line 26, after ("Crown") insert (", or such other person as the court may direct,").
Page 63, line 3, leave out ("Crown") and insert ("prosecutor").
Page 63, line 9, leave out ("Crown") and insert ("prosecutor").
Page 63, line 12, after ("forfeited") insert ("to the Crown").
Page 63, line 15, after ("Crown") insert (", or another person, under this section").
The noble and learned Lord said: I have already spoken to these amendments. I beg to move them en bloc.
On Question, amendments agreed to.
Clause 73, as amended, agreed to.
Clause 74 [Recall or variation of suspended forfeiture order]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 150J:
Page 64, line 27, after ("Crown") insert ("or another person").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 74, as amended, agreed to.
Clause 75 [Property wrongly forfeited: return or compensation]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendments 150K to 150M:
Page 64, line 37, after ("Crown") insert ("or another person").
Page 64, line 43, after ("Crown") insert ("or, as the case may be, the other person").
Page 65, line 3, leave out ("by the prosecutor").
The noble and learned Lord said: I beg to move these amendments en bloc, having spoken to them already.
On Question, amendments agreed to.
Clause 75, as amended, agreed to.
Clause 76 agreed to.
Clause 77 [Restraint orders]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 150N:
Page 67, line 17, leave out subsection (5).
The noble and learned Lord said: In speaking to Amendment No. 150N, I should like also to speak to Amendments Nos. 151A, 151B and 153E. These amendments are intended to remove the requirement on the prosecutor to enter on the appropriate property register any restraint order.
In their form restraint orders are directed principally against the person rather than the property. In consequence, descriptions of property in the restraint order will often be not at all detailed. The description may amount to no more than a postal address. In such circumstances it is difficult to see what could properly go onto the land or Sasines Register.
In practice, where a restraint order is made, the Crown will seek an inhibition in respect of the accused. That inhibition will be recorded on the Register of Inhibitions and could therefore be examined by any prospective purchaser of property. In these circumstances there seems no need for any registration of the restraint order itself on the land register or the Sasines Register. As I say, it would be inappropriate. I accordingly beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 151:
Page 67, line 27, leave out ("Part of this Act") and insert ("Chapter").
The noble and learned Lord said: This is a drafting amendment. I beg to move.
On Question, amendment agreed to.
Clause 77, as amended, agreed to.
Clause 78 [Restraint orders in relation to realisable property]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 151A:
Page 68, line 21, leave out subsection (6).
The noble and learned Lord said: I spoke to this amendment when I spoke to Amendment No. 150N. I beg to move.
On Question, amendment agreed to.
Clause 78, as amended, agreed to.
Clause 79 [Restraint orders in relation to forfeitable property]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 151B:
Page 69, line 23, leave out subsection (5).
The noble and learned Lord said: Again, I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 79, as amended, agreed to.
Clauses 80 to 82 agreed to.
Schedule 2 agreed to.
Clause 83 agreed to.
Clause 84 [Provisions supplementary to section 83]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 152:
Page 73, line 2, leave out ("or likely to be brought").
The noble Lord said: This amendment is grouped with Amendment No. 153. The purpose of the amendments is to take out the words as indicated. The point behind the amendments is that the use of the words,
"or likely to be brought",
or,
"or were likely to be brought",
are too vague and might lead to unnecessary work being done in Scotland in relation to proceedings anticipated in the High Court but not already brought. The deletion of those words from the section would leave it quite firm that it is only where an action has been brought that the order can be sought in Scotland.
It has the appearance, with the use of those words, of the equivalent of a fishing diligence in a civil case being applied to the criminal law. In my submission there should at least be active proceedings before any proceedings are taken under this section. I beg to move.
Lord Rodger of Earlsferry: The effect of the amendment would be to take away from the Court of Session powers to order the inspection of documents in relation to anticipated English proceedings, these powers being similar to the powers which the Court of Session already enjoys in respect of its own domestic proceedings.
It seems unsatisfactory to take away this particular aspect. In an appropriate case it can be a useful remedy. The Court of Session in fact already enjoys a similar power under existing law in respect of proceedings in England and Wales under the Criminal Justice Act 1988, in particular by virtue of Section 91 of that Act. The effect of Clause 84 is largely to re-enact that provision for this particular legislation.
In those circumstances, I ask the noble Lord to withdraw his amendment.
Lord Macaulay of Bragar: I have listened to what the noble and learned Lord the Lord Advocate had to say. I do not intend to press the amendment at this stage of the proceedings. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 153 not moved.]
Clause 84 agreed to.
Clauses 85 to 91 agreed to.
Schedule 3 agreed to.
Clause 92 [Disposal of family home under Chapter I or II]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 153A:
Page 77, line 43, leave out ("was") and insert ("has been").
The noble and learned Lord said: In moving this amendment I shall speak also to Amendments Nos. 153B and 153C. These are technical amendments and simply seek to ensure that the relevant interest in the family home which is protected by Clause 92 can include one which exists at the time of the proposed disposal of that family home. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendments Nos. 153B and 153C:
Page 78, line 16, after first ("person") insert ("has or").
Page 78, line 17, leave out ("was") and insert ("is").
The noble and learned Lord said: I have already spoken to Amendments Nos. 153B and 153C. I beg leave to move them together.
On Question, amendments agreed to.
Clause 92, as amended, agreed to.
Schedule 4 [Amendments to the Criminal Justice (Scotland) Act 1987 Relating to Part II]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendments. Nos. 153D and 153E:
Page 101, leave out lines 39 and 40 and insert:
("(ii) for the words from "except that" to the end there shall be substituted ", less any amount due by him at that time in respect of any compensation order under section 58 of the Criminal Justice (Scotland) Act 1980 made before the confiscation order.";").
Page 107, leave out lines 24 to 29.
The noble and learned Lord said: I have already spoken to Amendments Nos. 153D and 153E; and, with the leave of the Committee, I shall move them en bloc. I beg to move.
On Question, amendments agreed to.
Schedule 4, as amended, agreed to.
Schedule 5 [Minor and Consequential Amendments]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 153F:
Page 116, line 31, at end insert:
(" .In section 6(3) (jurisdiction and procedure in respect of certain indictable offences committed abroad)—

(a) after the word "section" there shall be inserted "—(a)"; and

(b) for the words "as if" there shall be substituted—"; or

(b) in such sheriff court district as the Lord Advocate may determine,
as if".
. Section 20(2) (record where accused does not emit declaration) shall cease to have effect.").
The noble and learned Lord said: This amendment makes minor changes to the Criminal Procedure (Scotland) Act 1975, prompted by our ongoing review of criminal procedure, legislation and anticipation of consolidation. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 153G:
Page 116, line 38, at end insert:
(" . For section 42 (procedure on resignation, death or removal of Lord Advocate) there shall be substituted the following section—
"Resignation, death or removal of Lord Advocate.
42.—(1) All indictments which have been raised by a Lord Advocate shall remain effective notwithstanding his subsequently having died or demitted office and may be taken up and proceeded with by his successor.
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(2) During any period when the office of Lord Advocate is vacant it shall be lawful to indict accused persons in the name of the Solicitor General then in office.
(3) The advocates depute shall not demit office when a Lord Advocate dies or demits office but shall continue in office until their successors receive commissions.
(4) The advocates depute and procurators fiscal shall have power, notwithstanding any vacancy in the office of Lord Advocate, to take up and proceed with any indictment which—

(a) by virtue of subsection (1) above, remains effective; or

(b) by virtue of subsection (2) above, is in the name of the Solicitor General.

(5) For the purposes of this Act, where, but for this subsection, resignation by one Law Officer would result in the offices of both being vacant, he or, where both tender resignations on the same day, the person resigning from the office of Lord Advocate shall be deemed to continue in office until the warrant of appointment of the person succeeding to the office of Lord Advocate is granted.
(6) The Lord Advocate shall enter upon the duties of his office immediately upon the grant of his warrant of appointment; and he shall as soon as is practicable thereafter take the oaths of office before any Secretary of State or any Lord Commissioner of Justiciary.".").
The noble and learned Lord said: Amendment No. 153G may require a little more explanation and Members of the Committee will readily understand my comparative lack of enthusiasm for a provision which contemplates circumstances in connection with the resignation, death or removal from office of the Lord Advocate. Nevertheless, the amendment is necessary. It deals with the problems which can arise in connection with criminal proceedings between the time when a Lord Advocate is appointed and the receipt by the Crown Office of the warrant of appointment signed by the Sovereign. It was established by the case of Halliday in 1891 that a new Lord Advocate cannot function as such until the Royal Warrant appointing him reaches the Crown Office.
Section 3 of the 1887 legislation deals with the situation which can arise on the resignation of a Lord Advocate and provides that the Lord Advocate shall continue in office until his successor receives his appointment. However, that Act does not deal with the distasteful prospect of the death or removal from office of the Lord Advocate. Nor does it explain precisely when a Lord Advocate may be said to have resigned.
The position here is regulated by Section 42 of the Criminal Procedure (Scotland) Act 1975, which also applies to a resignation. This section provides that all indictments raised by a Lord Advocate shall remain effective, notwithstanding his subsequently having died or demitted office and may be taken up and proceeded with by his successor. This deals adequately with indictments which have already been raised. The problem, however, is with new indictments. The strict time limits which apply in Scotland make it necessary to ensure that there cannot be a period of time, even if that period is as short as one day, in which a new indictment cannot be raised.
The 1975 Act partly deals with that problem by allowing persons to be indicted in the name of the Solicitor General when the office of Lord Advocate is vacant. That is certainly a useful provision but one which provides a solution only where there is a Solicitor General. It does not address the situation when both law

519
officers resign at the same time or where, for whatever reason, there is no Solicitor General when the Lord Advocate demits office.
There also remains the difficulty which the Crown Office and procurators fiscal face in knowing precisely when to stop indicting in the name of the "old" Lord Advocate or Solicitor General and start using the name of the new Lord Advocate.
The solution proposed by Amendment No. 153G is to create a new Section 42 of the 1975 Act, incorporating in part the provisions of the existing section and of Section 3 of the 1887 Act, but providing also, in subsection (5), that where the resignation of one law officer would result in the offices of both being vacant, he or, where both tender resignations on the same day, the person who resigns from the office of Lord Advocate shall be deemed to continue in office until the warrant of appointment of the person succeeding to the office of the Lord Advocate is granted. Subsection (6) provides that the Lord Advocate shall enter upon the duties of his office immediately upon the grant of his warrant of appointment.
I commend the amendments to the Committee while expressing the hope and expectation that these arrangements will not be required for some time yet. I beg to move.
11.15 p.m.
Lord Macaulay of Bragar: These are eminently sensible proposals for the smooth running of the system of criminal law in Scotland. From this side of the Committee perhaps I may say that we do look forward to the demise of the present Lord Advocate but purely in the political sense. Otherwise, we wish him well in his post.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 153H:
Page 116, line 38, at end insert:
(". In section 54 ("money" to include coin, bank notes and post office orders), for the words from "all" to the end there shall be substituted "cheques, banknotes, postal orders, money orders and foreign currency".").
The noble and learned Lord said: The amendment to Section 54 of the 1975 Act will substitute for its present definition of "money" the more modern definition recommended by the Scottish Law Commission in its report on Confiscation and Forfeiture, which is being implemented in Part II of the Bill. This is an opportunity not only to modernise but to provide greater consistency in advance of the planned consolidation. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 154:
Page 116, line 38, at end insert:
(". In section 26 (bail before committal)—

(a) in subsection (2), for the words from "immediately" to "or" there shall be substituted ", on any occasion on which he is brought before the sheriff prior to his committal until liberated in due course of law, to apply"; and

520

(b) in subsection (3), the words "or justice" shall cease to have effect.").

The noble and learned Lord said: In moving Amendment No. 154 perhaps I may speak also to Amendment No. 183. The case of Campbell Petitioner, which was determined by the appeal court in 1989, revealed a gap in our law. At present, Section 26 of the 1975 Act enables a sheriff to grant bail immediately after an accused has been brought before the court for examination. Section 28 of the 1975 Act deals with the admission to bail of an accused who has already been committed until liberated in due course of law. The case of Campbell involved an accused who had not been committed until liberated in due course of law but who had long since been committed for further examination and had subsequently been arrested for failure to appear for trial. The High Court held that Section 28 did not apply to the accused as she had not been committed for trial and it was too late for Section 26 to apply to her and that her position was one which did not fall within any of the relevant statutory provisions. Accordingly, the sheriff had no power to grant bail to the accused. This amendment to Section 26 makes it competent for a sheriff to consider an application for bail on any occasion on which an accused is brought before the court prior to full committal. Amendment No. 183 is a technical consequential amendment. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 154A:
Page 117, line 10, at end insert:
(". In section 78(1) (lodging of record copy of indictment and list of witnesses), for the words from "record" to the end there shall be substituted "the prosecutor shall on or before the date of service of the indictment lodge the record copy of the indictment with the clerk of court before which the trial is to take place, together with a copy of the list of witnesses and a copy of the list of productions.".").
The noble and learned Lord said: This is one of a number of pre-consolidation amendments. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 155:
Page 117, line 11, leave out from ("witnesses),") to end of line 12 and insert ("after the word "accused" there shall be inserted ", where the case is to be tried in the sheriff court, at or before the first diet and, where the case is to be tried in the High Court,".").
The noble and learned Lord said: This amendment changes paragraph 7 of Schedule 5 to the Bill. That paragraph amends Section 80 of the 1975 Act by altering the time limits for objecting to witnesses to take account of the new mandatory first diet in the sheriff court. However, there will be no first diet in High Court cases and so in such cases the time limit should continue to be related to the trial diet. This amendment will ensure that that is the case. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 156 and 157 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 158:
Page 117, line 43, at end insert:

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(" . In section 127 (procedure where trial does not take place), after subsection (1) there shall be inserted the following subsection—
"(1ZA) Without prejudice to subsection (1) above, where a trial diet has been deserted pro loco et tempore and the court has appointed a further trial diet to be held on a subsequent date at the same sitting the accused shall require to appear and answer the indictment at that further diet.".").
The noble and learned Lord said: At present, where a trial for whatever reason has to be deserted pro loco et tempore a minimum period of nine days must elapse before the new trial may be commenced. This amendment would allow for the trial to proceed during the same sitting where the court could arrange for the trial to be held on a subsequent date during that same sitting.
Such an arrangement would minimise the inconvenience to those witnesses and others who had been called to the sitting for the trial diet. The provision would allow for the trial to proceed on the basis of the indictment as originally issued. Since witnesses are in any event called to the sitting, the disruption to them is likely to be minimised. The amendment would allow the trial to proceed within the timescale originally envisaged. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 159 to 162 not moved.]
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 163:
Page 118, line 17, leave out paragraph 16.
The noble Lord said: This amendment is grouped with Amendment No. 169. It is designed to delete the new clause proposed by the Bill in relation to the order in which evidence is given for the defence. The view is taken that the accused should not be forced to give evidence first as there may be occasions when he wants to comment on evidence which has been led on his behalf. It would be illogical to force him into the witness box as the first witness before that evidence has been heard. Otherwise we are then faced with the situation of accused persons having to ask for leave to be recalled to deal with evidence led by their own witnesses. That does not seem to be fair justice and may lead to further expense, delay and appeal in the course of criminal trials.
The amendment made to the Act in Schedule 5, paragraph 16 and the corresponding one dealt with in Amendment No. 169 appear to be unnecessary and not necessarily in the best interests of justice. I beg to move.
Lord Fraser of Carmyllie: Paragraphs 16 and 41 of Schedule 5 are the result of a recommendation from the well known Standing Committee on Criminal Procedure (the MacLean Committee). The problem that paragraphs 16 and 41 seek to address is that Sections 142 and 347 of the 1975 Act make it possible for the accused to remain in the dock, listen to the evidence given in his defence and, if he is so minded, alter his evidence in the light of what he has heard. That would obviously be undesirable.
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Paragraphs 16 and 41 substitute a new section for the existing sections to the effect that, except on cause shown, where the accused is to give evidence he should be called as the first witness for the defence.
It may be argued that there will be occasions where it would be unreasonable to insist that the accused must give his evidence first before any other defence witnesses are called; for example where the accused's opinion or comment upon other defence witnesses' evidence is required. It is for that reason that the new Sections 142 and 347 provide for the court to permit, on cause shown, someone other than the accused to be called as the first witness for the defence. That particular exception would seem to cover any of the difficulties which the noble Lord envisages. On that basis I hope that he will feel that he can withdraw his amendment.
Lord Macaulay of Bragar: I see the logic behind what the noble and learned Lord has said. If the accused changes his evidence or his position, having perhaps lodged a special defence and having heard the witnesses not come up to scratch, that would be a matter for the jury to consider should he give evidence. To take the matter to its logical conclusion, if this section is deleted the accused could choose, at the end of having led all his evidence, not to give evidence at all. That would be a matter for him and it would be in keeping with the presumption of innocence and his right to remain silent. I note what the noble and learned Lord has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 164 and 165 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 166:
Page 119, line 22, at end insert:
(" . In section 191(4) (effect of probation and absolute discharge) the words "placed on probation or" and "probation order or" shall cease to have effect.").
The noble and learned Lord said: This is a minor and entirely technical amendment. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 167:
Page 120, line 15, at end insert:
(" . In section 268 (reckoning of time spent on bail pending appeal), in subsection (4)—

(a) after the word "safety" in the first place where it occurs there shall be inserted "or, as respects a child sentenced to be detained under section 206 of this Act, the place directed by the Secretary of State"; and

(b) after the word "safety" in the second place where it occurs there shall be inserted "or, as respects such a child, place directed by the Secretary of State".").

The noble and learned Lord said: Amendment No. 167 seeks to ensure that the position of children sentenced to be detained in criminal procedure is the same as that of prisoners and young offenders, in the event that they are granted interim liberation pending an appeal. The children referred to are those sentenced under Section 206 of the 1975 Act.
The amendment seeks to ensure that the position of child detainees is the same as that which applies to prisoners and young offenders. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 168 to 170 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 171:
Page 121, line 42, leave out sub-paragraph (c).
The noble and learned Lord said: This corrects a small drafting slip. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No.172:
Page 123, line 32, leave out from ("(2)") to ("to") in line 34 and insert ("Subsection (3) of section 375ZC of this Act shall apply to an order made under subsection (1) (b) (i) above as it applies").
The noble and learned Lord said: This minor amendment corrects an even smaller mistake. I beg to move.
On Question, amendment agreed to.
[Amendment No. 173 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 174:
Page 125, line 12, after ("trials)") insert ("—(a)").
The noble and learned Lord said: In moving Amendment No. 174, perhaps I may speak also to Amendments Nos. 175 and 190. This amendment will require the court, when considering whether to grant an application that a child's evidence should be taken by non-conventional means, such as by closed circuit television, from behind a screen or on commission, to take into account the views of the child himself or herself. That seems a sensible measure. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 175:
Page 125, line 13, at end insert ("; and
(b) in subsection (2)—
(i) the word "and" immediately following paragraph (a) shall cease to have effect; and
(ii) after paragraph (b) there shall be inserted "; and
(c) the views of the child.".").
On Question, amendment agreed to.
[Amendments Nos. 176 and 177 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 178:
Page 125, line 32, leave out from beginning to ("(breach") in line 33 and insert:
("70.—(1) The Prisoners and Criminal Proceedings (Scotland) Act 1993 shall be amended as follows.
(2) In section 18(1),").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 179:
Page 125, line 35, at end insert:
("() In section 28(3) (destruction of prints and impressions), the words "or 384(1) (probation)" shall cease to have effect.").
The noble and learned Lord said: I spoke to this amendment in speaking to Amendment No. 166. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 180:
Page 125, line 35, at end insert:
("() In section 33 (evidence of children on commission)—

(a) in subsection (1), the words from the beginning to "and" where it first occurs shall cease to have effect; and

(b) after subsection (3) there shall be inserted the following subsection—

"(4) Subsections (2) to (4), (5A) and (6) of section 32 of the 1980 Act (evidence by letter of request or on commission) shall apply to an application under subsection (1) above and evidence taken by a commissioner appointed under that subsection as those subsections apply to an application under subsection (1) of that section and evidence taken by a commissioner appointed on such an application.".").
The noble and learned Lord said: Again, this is a technical amendment. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 181:
Page 125, line 35, at end insert:
("() In section 34 (concealment by screen of accused from child giving evidence), after the word "been" there shall be inserted "or is likely to be".").
The noble and learned Lord said: This amendment will enable the court to consider an application for the use of a screen to shield a child witness when giving evidence in court at an earlier stage than is possible under the existing statutory provisions. I beg to move.
On Question, amendment agreed to.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 182:
Page 125, line 35, at end insert:
("() In section 28(1) (Prints, samples etc. in criminal investigations) after the word "questioning)" there shall be inserted "or has been liberated on bail in terms of section 1(2) (b) (ii) of the Bail etc. (Scotland) Act 1980.".").
The noble Lord said: This amendment, is probably helpful to the Government. In fact, it seeks to bring people who have been granted bail within the provisions of Section 28 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in relation to the taking of samples. I beg to move.
Lord Fraser of Carmyllie: I appreciate that, even at this very late hour, the noble Lord is seeking, as always, to be helpful to the Government in proposing improvements to the Bill. However, I am concerned that the effect of what the noble Lord proposes may be to extend widely the powers of Section 28. At present Section 28 applies only to those who are detained or who are in custody. The amendment would extend those powers to an accused who has been liberated, and, in any event, in practice I do not believe that the additional reference is needed. I hope with that briefest of explanations the noble Lord will appreciate that despite his attempt to be helpful, it is unnecessary.
Lord Macaulay of Bragar: Since my last gasp attempt to be helpful has been rejected, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 5, as amended, agreed to.
11.30 p.m.
Schedule 6 [Repeals]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 182A:
Page 130, line 37, column 3, at beginning insert:
("Section 20(2).").
The noble and learned Lord said: I spoke to the amendment with Amendment No. 153F. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 183:
Page 130, line 37, column 3, at beginning insert:
("In section 26(3), the words "or justice".").
The noble and learned Lord said: I spoke to the amendment with Amendment No. 154. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 184 and 185 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 186:
Page 131, line 23, column 3, at end insert:
("In section 191(4), the words "placed on probation or" and "probation order or".").
The noble and learned Lord said: I spoke to the amendment with Amendment No. 166. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 187:
Page 131, leave out lines 49 and 50 and insert:
("In section 337A(1) the word "and" immediately following paragraph (a).").
The noble and learned Lord said: I spoke to the amendment in speaking to Amendment No. 41. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 188 and 189 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 190:
Page 132, line 49, column 3, at beginning insert:
("In section 56(2), the word "and" immediately following paragraph (a).").
The noble and learned Lord said: I spoke to the amendment in speaking to Amendment No. 174. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 191:
Page 133, line 2, column 3, at beginning insert:
("In section 28(3), the words "or 384(1) (probation)".").
The noble and learned Lord said: I have already spoken to the amendment when speaking to Amendment No. 166. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 192;
Page 133, line 2, column 3, at beginning insert:
("In section 33(1), the words from the beginning to "and" where it first occurs.").
The noble and learned Lord said: In speaking to Amendment No. 180 I spoke also to Amendment No. 192. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 192A:
Page 133, line 14, column 3, leave out from ("5,") to ("in") in line 16.
The noble and learned Lord said: I spoke to the amendment in connection with Amendment No. 146A. I beg to move.
On Question, amendment agreed to.
Schedule 6, as amended, agreed to.
Clause 99 agreed to.
House resumed: Bill reported with amendments.
House adjourned at twenty-five minutes before midnight.