HL Deb 05 July 1995 vol 565 cc1174-8

37 After Clause 38, insert the following clause:

Trial judge's report

' .—(1) Without prejudice to sections 236A and 453B(3) (b) of the 1975 Act, the High Court may, in relation to any appeal—

  1. (a) under section 228(1), 228A or 442(1) of the 1975 Act;
  2. (b) by way of bill of suspension or advocation; or
  3. (c) by way of petition to the nobile officium,
at any time before the appeal is finally determined, order the judge who presided at the trial, passed sentence or otherwise disposed of the case to provide to the Clerk of Justiciary a report in writing giving the judge's opinion on the case generally or in relation to any particular matter specified in the order.

(2) The Clerk of Justiciary shall send a copy of a report provided under subsection (1) above to the convicted person or his solicitor, the Crown Agent and, in relation to cases referred under section 263(1) of the 1975 Act, the Secretary of State.

(3) Subject to subsection (2) above, the report of the judge shall be available only to the High Court, the parties and, on such conditions as may be prescribed by Act of Adjournal, such other persons or classes of persons as may be so prescribed.

(4) Expressions used in this section and in the 1975 Act have the same meaning in this section as in that Act.'.

38 Clause 40, page 33, line 7, leave out 'and'.

39 Page 33, line 20, at end insert 'which would not have been competent but for that subsection; and

(c) after subsection (4) there shall be inserted the following subsections—

"(5) On granting authority under section 254(1) (c) of this Act to bring a new prosecution, the High Court shall, after giving the parties an opportunity of being heard, order the detention of the accused person in custody or admit him to bail.

(6) Subsections (2) (b) and (4) to (6) of section 101 of this Act (prevention of delay in trials) shall apply to an accused person who is detained under subsection (5) above as they apply to an accused person detained by virtue of being committed until liberated in due course of law.".'.

40 Page 33, line 24, leave out 'and'.

41 Page 33, line 36, at end insert 'which would not have been competent but for that subsection; and

(c) after subsection (4) there shall be inserted the following subsection—

"(5) On granting authority under section 452A(1) (d) of this Act to bring a new prosecution, the High Court may, after giving the parties an opportunity of being heard, order the detention of the accused person in custody; but an accused person may not be detained by virtue of this subsection for a period of more than 40 days.".'.

42 Clause 43, page 36, line 21, leave out 'made under subsection (8) below'.

43 Page 36, leave out lines 37 to 39.

44 Page 38, line 10, leave out 'made under subsection (8) below'.

45 Page 38, leave out lines 26 to 28.

46 Clause 45, page 41, line 10, at end insert 'and'.

47 Page 41, line 31, leave out from 'allow' to end of line 33.

48 Page 42, line 19, at end insert 'and'.

49 Page 42, line 40, leave out from 'allow' to end of line 42.

50 Clause 46, page 43, line 32, at end insert 'and'.

51 Page 43, line 43, leave out from 'allow' to end of line 45.

52 Page 44, line 31, at end insert 'and'.

53 Page 44, line 42, leave out from 'allow' to end of line 44.

54 Clause 49, page 46, line 15, leave out 'health' and insert 'condition'.

55 Clause 50, page 47, line 18, leave out '(8)' and insert '(9)'.

56 Clause 51, Leave out Clause 51 and insert the following clause:

Information for financial and other purposes

'.—(1) The Secretary of State shall in each year publish such information as he considers expedient for the purpose of—

  1. (a) enabling persons engaged in the administration of criminal justice to become aware of the financial implications of their decisions; or
  2. (b) facilitating the performance by such persons of their duty to avoid discriminating against any persons on the ground of race or sex or any other improper ground.

(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.'.

57 Clause 54, page 51, line 17, leave out from 'offence' to 'a' in line 19 and insert:

  1. '(a) to impose a sentence of imprisonment for a period exceeding 60 days;
  2. (b) to impose'.

58 Page 51, line 19, at end insert '; or (c) to ordain an accused person to find caution for any period exceeding six months or to an amount exceeding level 4 on the standard scale.".'.

59 After Clause 56, insert the following clause:

Abolition of private summary prosecutions

' . After section 310 of the 1975 Act there shall be inserted the following section—

"Abolition of private summary prosecutions.

310A. Except where any enactment otherwise expressly provides, all prosecutions under this Part of this Act shall be brought at the instance of the procurator fiscal.".'.

60 Clause 58, page 52, line 31, leave out 'as follows' and insert 'in accordance with subsections (2) to (5) below'.

61 Page 53, line 37, at end insert:

'(6) In section 30(3) of that Act (application of section 25 of that Act to legal aid in contempt proceedings)—

  1. (a) before the words "Section 25" there shall be inserted "Subsections (2) (a) and (c), (2A) to (4) and (6) of';
  2. (b) for the words "it applies" there shall be substituted "they apply";
  3. (c) after the word "sentence" there shall be inserted ", other disposal";
  4. (d) after the word "application" there shall be inserted the following paragraph—
    • "(za) in subsection (2A) of that section, the reference to the High Court shall include a reference to the Court of Session;"; and
    • (e) in paragraph (b), for the word "(5)" there shall be substituted "(6)".'.

62 Clause 63, page 55, line 35, leave out 'in respect of which it is made' and insert:

  1. '(i) from the commission of the offence; or
  2. (ii) where section 64(3A) of this Act applies, from the commission of the offence and any other offence to which this Chapter applies'.

63 Clause 64, page 56, line 5, at beginning insert 'Subject to subsection (3A) below,'.

64 Page 56, line 6, leave out 'of the benefit' and insert 'referred to in section 63(5) (a) (i) of this Act'.

65 Page 56, line 18, leave out from 'period' to end of line 21 and insert:

'(3A) Where—

  1. (a) the application for the confiscation order has been made in respect of two or more offences; or
  2. (b) during the relevant period the accused has been convicted of at least one other offence to which this Chapter applies, being an offence committed after the coming into force of this Chapter,
the court may, in determining the amount referred to in section 63(5) (a) (ii) of this Act, make the assumptions set out in subsection (3B) below, except in so far as the accused proves either of those assumptions, on the balance of probabilities, to be incorrect.

(3B) Those assumptions are—

  1. (a) that any property or economic advantage which has been obtained by the accused during the relevant period has been obtained in connection with the commission of an offence to which this Chapter applies; and
  2. (b) that any expenditure by him during the relevant period was met out of property or other economic advantage obtained in connection with the commission of such an offence.

(3C) In subsections (3A) and (3B) above, "the relevant period" means the period of six years ending with the date on which proceedings were instituted against the accused for the offence in respect of which the application for the confiscation order has been made.'.

66 Clause 66, page 57, line 20, after 'if insert '—(a)'.

67 Page 57, line 24, at end insert '; or (b) where subsection (3A) of section 64 of this Act applies, it was made by the accused within the relevant period within the meaning of subsection (3C) of that section.'.

68 Clause 67, page 58, leave out lines 45 and 46.

69 Page 59, leave out lines 6 and 7.

70 Clause 68, page 59, line 28, leave out 'from the commission of the offence' and insert 'for the purposes of section 63(5) (a) of this Act'.

71 Clause 69, page 60, line 34, leave out from 'him;' to end of line 36.

72 Clause 70, page 61, line 35, leave out 'obtained in connection with the commission of the offence' and insert 'for the purposes of section 63(5) (a) of this Act'.

73 Page 61, line 46, leave out 'in connection with the commission of the offence'.

74 Page 62, line 28, after '64(2)' insert 'and (3B)'.

75 Clause 72, page 63, line 32, leave out 'Section 67' and insert 'Sections 63(3) and 67(1), (2) and (4)'.

76 Page 63, line 45, after '64(2)' insert 'and (3B)'.

77 Clause 73, page 65, line 7, at end insert: '() Where a court, by virtue of subsection (1) above, orders the sum due under a confiscation order to be recovered by civil diligence under section 411 of the 1975 Act, any arrestment executed by a prosecutor under subsection (2) of section 96 of this Act shall be deemed to have been executed by the court as if that subsection authorised such execution.'.

78 Clause 74, page 65, line 33, leave out 'applicable to an award of damages in' and insert 'payable under a decree of.

79 Clause 75, page 65, line 36, leave out from 'of to end of line 38 and insert 'and paragraphs 1, 4 and 12 of Schedule 2 to this Act in relation to confiscation orders and on an administrator by that Schedule.'.

80 Clause 76, page 66, line 36, leave out '85' and insert '84, 85, 87'.

81 After Clause 76, insert the following clause:

Order to make material available

'.—(1) The procurator fiscal may, for the purpose of an investigation into whether a person has benefited from the commission of an offence to which this Chapter applies and as to the amount of that benefit, apply to the sheriff for an order under subsection (2) below in relation to particular material or material of a particular description.

(2) If on such an application the sheriff is satisfied that the conditions in subsection (4) below are fulfilled, he may make an order that the person who appears to him to be in possession of the material to which the application relates shall—

  1. (a) produce it to a constable for him to take away; or
  2. (b) give a constable access to it,
within such period as the order may specify.

This subsection is subject to section (Disclosure of information held by government departments) (11) of this Act.

(3) The period to be specified in an order under subsection (2) above shall be seven days unless it appears to the sheriff that a longer or shorter period would be appropriate in the particular circumstances of the application.

(4) The conditions referred to in subsection (2) above are—

  1. (a) that there are reasonable grounds for suspecting that a specified person has benefited from the commission of an offence to which this Chapter applies;
  2. (b) that there are reasonable grounds for suspecting that the material to which the application relates—
    1. (i) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made; and
    2. (ii) does not consist of or include items subject to legal privilege; and
  3. (c) that there are reasonable grounds for believing that it is in the public interest, having regard—
    1. (i) to the benefit likely to accrue to the investigation if the material is obtained; and
    2. (ii) to the circumstances under which the person in possession of the material holds it, that the material should be produced or that access to it should be given.

(5) Where the sheriff makes an order under subsection (2) (b) above in relation to material on any premises he may, on the application of the procurator fiscal, order any person who appears to him to be entitled to grant entry to the premises to allow a constable to enter the premises to obtain access to the material.

(6) An application under subsection (1) or (5) above may be made ex parte in chambers.

(7) Provision may be made by rules of court as to—

  1. (a) the discharge and variation of orders under this section, and
  2. (b) proceedings relating to such orders.

(8) Where the material to which an application under this section relates consists of information contained in a computer—

  1. (a) an order under subsection (2) (a) above shall have effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible; and
  2. (b) an order under subsection (2) (b) above shall have effect as an order to give access to the material in a form in which it is visible and legible.

(9) An order under subsection (2) above—

  1. (a) shall not confer any right to production of, or access to, items subject to legal privilege;
    2. 1178
  2. (b) shall have effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise; and
  3. (c) may be made in relation to material in the possession of an authorised government department;
and in this subsection "authorised government department" means a government department which is an authorised department for the purposes of the Crown Proceedings Act 1947.

(10) In this section—

  1. (a) "items subject to legal privilege" and "premises" have the same meanings as in section 40 of the Criminal Justice (Scotland) Act 1987; and
  2. (b) references to a person benefiting from the commission of an offence to which this Chapter applies, in relation to conduct which is not such an offence but which would have been if it had occurred in Scotland, shall be construed in accordance with section 71 of this Act as if that conduct had so occurred.'.

Lord Fraser of Carmyllie

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 37 to 81 en bloc. In view of the very helpful observations which have been made, I shall move Amendments Nos. 37 to 81 en bloc.

Moved, that the House do agree with the Commons in their Amendments Nos. 37 to 81 en bloc.—(Lord Fraser of Carmyllie.)

On Question, Motion agreed to.