Crime and Punishment (Scotland) Bill

HL Deb 10 March 1997 vol 579 cc25-74

3.55 p.m.

The Lord Advocate (Lord Mackay of Drumadoon)

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 Mackay of Drumadoon.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 14 [Driving disqualifications]:

Lord Mackay of Drumadoon moved Amendment No. 110: Page 21, line 9 leave out ("determinate period") and insert ("period not exceeding twelve months").

The noble and learned Lord said: With the leave of the Committee, in moving Amendment No. 110 I shall speak also to Amendment No. 111.

These amendments seek to restrict to a maximum of 12 months the period of disqualification from driving which a court could impose for fine default under the new Section 248B of the Criminal Procedure (Scotland) Act 1995. It would allow the upper limit to be varied but only by order subject to affirmative resolutions. The amendments bring the Bill into line with the similar provision in the Crime (Sentences) Bill. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 111: Page 21, line 30, at end insert— ("(6) The Secretary of State may by order made by statutory instrument vary the period specified in subsection (2) above; but no such order shall be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.").

The noble and learned Lord said: I spoke to Amendment No. 111 when moving Amendment No. 110. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 14, as amended, shall stand part of the Bill?

Lord McCluskey

I oppose that Clause 14 should stand part of the Bill. This is the clause with which Members of the Committee will be familiar from the Crime (Sentences) Bill. It gives the court the power to disqualify in respect of any type of offence at all.

The first point I wish to make is that the Crime and Punishment (Scotland) Bill proceeds upon an assertion by the Government that the punishment should fit the crime. It is difficult to see what disqualification from driving has to do with the vast range of crimes for which it is to become a penalty under the provisions of this Bill.

A more general point applies to this clause, as to many others; that is, the absence of consultation beforehand. The Committee will have heard the noble Lord, Lord Thomas of Gresford, address the Committee on the Crime (Sentences) Bill and point out that a disqualification power of this kind made its first appearance at the tenth sitting of the committee on the Crime (Sentences) Bill in another place. In Scotland it made its first appearance on 8th October when the Secretary of State made an announcement. He wrote in his letter to the Lord Justice General of Scotland, on 8 October I announced that we intended to allow the courts to disqualify persons from driving for offences which are not related to motoring offences". That was an announcement of intention, not simply a proposal. On 6th November the Secretary of State wrote to the Lord Justice General saying, I am writing to seek views on a proposal I am minded to include, by way of Government amendment, in the Crime and Punishment (Scotland) Bill. The proposal is to extend the use of discretionary disqualification from driving to offences not directly related to driving". That was intimated to the Lord Justice General. He was asked on 6th November to respond as quickly as possible because proceedings in the Standing Committee in another place were to start five days later, on 11th November. That letter of 6th November also intimated that implementation would proceed initially by way of pilots in individual sheriff courts. This matter concerned us on a previous occasion. It is difficult to see how one can have pilots in relation to a penalty of this kind. However, no doubt the Minister will be able to explain the thinking behind that. I am not averse to pilots in appropriate circumstances.

In relation to the matter of consultation, I should like to know from the Minister why this idea came up in October/November 1996. Whose idea was it? Was it simply borrowed from England? The noble Lord, Lord Thomas of Gresford, informed the Committee—and I think Members of the Committee would know—that the Magistrates' Association in England had severe reservations about this and the Justices' Clerks' Society was entirely opposed to it. I wonder who, if anyone, supported it.

I have briefly made the points that I hoped the noble Lord, Lord Thomas, would be here to make, but he is not able to be in his place. This type of provision could pose a serious threat to the rehabilitation of offenders. Many offenders, if they are to obtain work—that is the best route to rehabilitation—will require to have their driving licence in order to obtain work. In addition, this provision poses a serious threat to other road users. Your Lordships, particularly those with experience of the law, will know that there are many uninsured drivers on the road. If a person is involved in a collision with or is knocked down by an uninsured driver he can have great difficulties in recovering appropriate compensation because the route via the Motor Insurers Bureau is by no means a satisfactory and easy one. There is a threat to other road users. Furthermore, a penalty of this kind is particularly hard in rural areas where people are much more heavily dependent upon motor cars.

Finally, one of the matters about which the public in Scotland are alleged to be concerned is inconsistency in sentencing in different courts—an arbitrariness in relation to such sentencing. If this power is given in the extraordinarily unqualified way in which it is given in this clause we are liable to see much more arbitrariness and much more inconsistency than we have now. For those reasons I would invite the noble and learned Lord the Lord Advocate to produce a better justification for this type of penalty than we have yet seen.

Lord Harris of Greenwich

Reference was made to the fact that my noble friend Lord Thomas of Gresford is not here. The reason is, as was the case with my noble friend Lord Meston, that he is involved in a case in the courts which unfortunately has been delayed. The case is in Birmingham. Otherwise, my noble friend would be on his feet now supporting the noble and learned Lord, Lord McCluskey.

Lord Monkswell

In rising to support the noble and learned Lord, Lord McCluskey, I wonder whether the Government have really taken on board the full implications of this idea. Until now the whole business of having a licence to drive a motor car has been to do with the process of driving a motor car. One pays a licence fee, one passes a test and one is permitted to drive a motor car. The licence is a piece of paper which says that the driver has the ability to drive a motor car. A driving licence can be revoked or withdrawn if the individual has demonstrated his or her unfitness to drive a motor vehicle.

The fact that one has committed a criminal offence in some area of activity completely unrelated to driving does not come into that category. What is proposed is a departure from the normal considerations that we have grown up with over the past 100 years of motor vehicle driving in this country.

Is this the beginning of a whole range of punishments that are unrelated? Will the Government next bring in the ability to prevent someone having a dog but not because he mistreats the animal, which is the way the courts look at the issue at the moment? A person may be prohibited from owning a dog or even a horse because he has a history of maltreating animals. Will we see a situation where, because someone commits a crime in a completely unrelated area of human activity, he will be prevented from owning a pet?

Have the Government thought through the implications of what they are doing? I have mentioned before in the Chamber that there are two categories of offender. The first category is those who are basically law-abiding people who, after a fit of nervous attack, commit a crime, something of which they are mortally ashamed and would never think of repeating. If such people are deprived of their driving licence they will probably not drive a motor vehicle. They are innately honest, decent people. The other category is people who one might describe as of a naturally criminal bent, who think nothing of transgressing the law. If you take away their driving licence it will mean absolutely nothing to them. All they will do is carry on driving their car, as the noble and learned Lord, Lord McCluskey, pointed out. They will be uninsured and therefore will be a hazard to other road users.

The Government should think this through, take on board the criticisms that have been made from a number of directions and withdraw this element of the Bill.

The Earl of Mar and Kellie

I am not convinced that this proposal will prove to have a wide use in Scotland. I am in favour of the search for an ever increasingly wide variety of community sentences, but, like other noble Lords, I have reservations about these proposals. My reservations are in two areas. The first is the wide range of effects a driving ban will have on different convicted persons. The casual and leisure only driver is lightly punished, unless of course he or she is the sole driver in the family and lives at the head of a glen, which leads to problems with the children attending school and the family being able to get the shopping, often at great distance. For the at-work driver, such a sentence is a sentence to lose one's job. That is a direct equivalent of imprisonment. So long as these wide variations are taken account of during consideration of sentence the measure may possibly be okay, but only if the considerations are gone into in some depth and the sentence is not used casually.

My other consideration has to be about finding offenders who are drivers who will obey the driving ban. Like other Members of the Committee, I recognise that there is a risk of a new class of uninsured driver emerging and a new class of victim. As the noble and learned Lord, Lord McCluskey, said, there will be people who are left to fight their way through the uninsured driver claim system, if something like that really exists.

If this clause is to be accepted, I need to hear from the noble and learned Lord the Lord Advocate that the matter will be piloted extensively in both extremely rural areas as well as urban areas. I feel reasonably confident that the scheme could work in an urban area, but I believe that it will be very difficult to operate in remote rural areas. There is the risk of it being counterproductive, as other Members of the Committee have mentioned, as regards the link between the ability to drive and to get a job. That is significant and needs to be safeguarded. I believe that that is widely understood.

Lord Macaulay of Bragar

I had not intended to enter the debate at this stage because I believe the wording of Clause 14 requires a lot of consideration. So far as I can see, what has not been looked at are the social consequences of the removal of a driving licence from a person who may very well have not been doing very much in the anti-social sense of the word. Once that happens, we have a ladder. What happens if a person has a driving licence and he is a long-distance lorry driver who happens to be doing a little bit of poaching? I am sure that Members of the Committee know that nobody poaches illegally in Scotland; but let us assume that someone does and uses a vehicle to get to the river at midnight and is nabbed by the police. That person may have three, four, five or six children who depend on his livelihood for their existence.

The reason that I did not speak on this clause earlier is because I wanted to look at it very carefully before Report stage. It seems to me that it will drive people into the public sector for support. As regards the wife and the children, with no husband to support them because his job has gone as a long-distance lorry driver, is it fair to deal with them in this manner? There are already plenty of provisions within the law for confiscating anything that is used in the commission of a crime. I do not understand why this clause has been brought into the Bill unless again it is the old, macho politics which we are dealing in in this Bill, which I hope will never see the light of day, but we have to keep talking about it.

With great respect to the noble Earl, Lord Mar and Kellie, I was a little perturbed to hear him suggesting that we should have another pilot scheme. There have been so many of them suggested in the past three weeks in this Chamber that they will be crashing into each other in the sky. Let us look at things realistically. Why do we need a pilot scheme? Either the law is right or the law is wrong. We should forget about pilot schemes. I will not go beyond that. I do not accept the idea as regards pilot schemes. Let us have a clear definition of the law and let the noble and learned Lord the Lord Advocate come before us and say what is the purpose of this particular provision in Clause 14(1) and what it is meant to achieve.

If, for example, a family is driven onto social benefits, are the Government going to support it and accept that the provisions of Clause 14(1) may very well have dramatic social implications? I do not say this in any sexist sense, but as we all know—and I am sure the noble and learned Lord the Lord Advocate knows—sometimes a wife, in looking after the children at home, does not know what her husband is up to, poaching or otherwise, and he is using the car doing this or that. Is the family to be penalised for the activities of the husband or do we try to keep some sort of civilised balance and perhaps penalise the husband, but not take the licence away unless it is necessary and has been used in the commission of a crime rather than follow the draconian measures contained in this particular part of the Bill?

4.15 p.m.

Lord Mackay of Drumadoon

I very much regret that the noble Lord, Lord Macaulay, is not able to give this proposal the support which his English colleague, the noble Lord, Lord McIntosh of Haringey, was prepared to give. He said that he had some reservations about it, but he recognised that the sentence proposed is on a trial basis and can be withdrawn at any time if it does not work and that he would be prepared to give it a fair wind, which I understand to be the approach taken by the noble Earl, Lord Mar and Kellie, as well.

Lord Macaulay of Bragar

Perhaps I may interrupt the noble and learned Lord. Can I remind him that we are dealing with the Crime and Punishment (Scotland) Bill? I am not particularly interested in what happens south of the Border. We are dealing with a particular piece of legislation which applies north of the Border and let us get on with it and stop messing about.

Lord Mackay of Drumadoon

I am sure that Members of the Committee will have heard what the noble Lord has just said and no doubt they will bear that in mind in the event that this matter is pressed to a Division. I should like to be quite clear about this. This provision is designed to provide another alternative to the sentencing court the first time that the matter comes before the court for sentence, which is the purpose of the new Section 248A, and when one is dealing with fine defaulters. That is a common problem which besets the sentencing court. As I have already observed on this Bill on more than one occasion, the Government are always being encouraged to do what they can to keep people out of prison whether as regards the original sentence or instead of a fine. That is why this proposal has been put forward and is to be piloted to see whether it works and achieves the objective which the Government believe it will have, and certain Members of the Committee are prepared to give it a chance to prove itself.

A number of complaints are made about the lack of consultation. As the noble and learned Lord, Lord McCluskey, has said, it is correct that the matter first appeared as a proposal in October and November of last year. Since then it has gained a measure of support. It might be of assistance to Members of the Committee if I read what the Lord Justice General said in a letter of 7th November 1996 addressed to my right honourable friend the Secretary of State. I believe that the noble and learned Lord, Lord McCluskey, advised the Committee last week that the noble and learned Lord, Lord Rodger, has a weekly meeting of judges at which matters of current interest are discussed. This proposal having been put to him by the Secretary of State, he replied in the following terms: I was able to discuss the matter briefly with a good number of the other judges at our meeting this morning. I would not oppose the proposal since it adds to the range of non-custodial options open to a sentencing judge or sheriff and the penalty of disqualification may indeed be one which could be effective especially among young people who greatly prize their freedom to drive". He went on to refer to the point which has been raised by more than one Member of the Committee: it could lead to an increase in the number of offences for driving while disqualified. That would add to the workload of the court. He pointed out that we might find that it gives an effective option only in sentencing the better-off; namely, those who have a licence and a car to drive. I trust therefore that noble Lords will accept that there is a measure of support from the noble and learned Lord, Lord Rodger, and the other judges who have been consulted. The proposal has the support of the Association of Chief Police Officers (Scotland) who have a fair knowledge of life in Scotland and of which penalties are effective in controlling those who offend against the law.

As I have said, the point about driving while disqualified is a valid concern which will require further consideration during the pilot schemes. However, as has been said, there is in existence the Motor Insurers Bureau, of which I have had a fair measure of experience over the years in acting for people who have been injured by an uninsured driver. The bureau was set up by the insurance companies to provide effective remedies where personal injury is suffered in such cases. Of course, such a risk always exists when periods of disqualification are imposed. Until now, I am not aware of anyone saying that there should not be such a penalty for driving while disqualified, driving without insurance, driving while under the influence of drink or for driving dangerously. It is a risk which is inherent in that penalty and which will clearly need to be examined as the pilot scheme proceeds.

The issue of rural areas is also a valid point to raise. The courts will have discretion over the period of disqualification that they can impose. That period has been limited under the amendments that I have just moved in relation to fine defaulters. Clearly, among the factors which a court will have to consider is where the offender lives, whether he is in employment—if he is, presumably he will be in a better position to pay a fine than someone who is unemployed and it may therefore be less likely that the penalty will be necessary in his case—and what arrangements require to be made to take children to school or older people to hospital. Those are all circumstances that will need to be laid before the sentencing court. One hopes that the courts will approach this in a sensible and all-encompassing manner. There is no reason to doubt that they will.

The noble and learned Lord, Lord McCluskey, questioned whether this might lead to increased arbitrariness in sentencing. No doubt it will take some time for the sentencing judges to work out the best way to deploy the new sentencing procedure but, with guidance from the Appeal Court, there is no reason to doubt that it will work.

I venture to suggest that a pilot scheme is a singularly good way to examine the proposal and to see whether it will work as opposed to having endless consultations and discussions. This is a new proposal. The Government acknowledge that it is innovative, but it has a measure of support and for that reason I hope that the Committee will find it possible to support Clause 14.

The noble Lord, Lord Monkswell, asked whether we had any proposals to ban the keeping of pets, especially dogs. I am happy to assure the Committee that we do not. The noble Lord also asked whether honest people would be more likely to abide by the disqualification than people with a natural criminal bent, as he described it. Clearly, first offenders who are punished in this way will in all probability abide by the disqualification, serve whatever short period of time is imposed and return to driving their car when their licence is returned to them. One suspects that some people in the other category may abide by the order while some may not. If they do not, as is frequently said in the courts, they will be defying not only the law of the land, but the order of the court and they are unlikely to attract leniency if they are brought back before the court.

The search must be on to find alternatives to imprisonment where appropriate. This has nothing to do with macho politics, as the noble Lord, Lord Macaulay, suggested. It is an attempt to develop a sentencing regime for reasons which we all support. In the light of the support which the proposals have received from the senior judiciary in Scotland, which has supported the views set out in the letter from the noble and learned Lord, Lord Rodger, and from the police, I hope that noble Lords will be content that the clause should stand part of the Bill.

Lord Macaulay of Bragar

Before the noble and learned Lord sits down, I may have misheard him, but one of my difficulties with these provisions is in trying to tie them in with the Road Traffic Act. Did the noble and learned Lord say that a special reason for not applying this particular sanction would be that people in country areas might have to run their children to school? As far as I am aware and I am, as always, subject to correction—indeed, I usually am corrected—does that mean that a special reason for not applying the provision would be that the person concerned was running a taxi service in a rural area of Scotland? What guidelines on how to apply the legislation will be given to sheriffs because, as I understand it, the fact that the offender has to run his child to school in the morning is not a special reason for not applying the provisions of the Road Traffic Act?

Lord Mackay of Drumadoon

No question of special reason arises in connection with this clause. Special reasons are relevant where the court would be required to impose a period of disqualification but for the existence of special reasons. The powers to be given in new Sections 248A and 248B are that the court "may" order disqualification. That is a discretion which the court will exercise in the light of all the circumstances, which would include the fact that the accused man lived with his wife and family at the end of a glen or in some remote village to which there was no transport, where the removal of the licence would have the effect which the noble Earl, Lord Mar and Kellie, mentioned. It would still be open to the court to disqualify in such situations, but clearly it would take account of the consequences when considering all the circumstances.

Lord Macaulay of Bragar

Are we not moving into Cloud-cuckoo-land now in connection with the road traffic legislation? Does this mean that someone who has to run his child from the end of a glen to a school, as the noble and learned Lord has put it, will be exempted from the provisions of this Act whereas a long-distance lorry driver who has to go from Inverness to Portsmouth, and perhaps even to the Continent, will be penalised? I really do not understand what the clause is all about. As I have said, that may very well be my fault and I look forward to any explanation that the noble and learned Lord may give.

What we are looking for is consistency in the application of disqualification. This clause seems to go sorely against that consistency. I shall read with interest what the noble and learned Lord has said. I have no doubt that the sheriffs in the north of Scotland will note what he has said about the reasons for disqualifying or not disqualifying someone because I recall a recent case in Aberdeen where that very reason was given, but the sheriff was heavily castigated for the decision that she took.

The Earl of Mar and Kellie

Having heard the arguments, I think that my initial point that the sentence will probably be rarely used in Scotland still holds. Serious consideration must be given to the situation of the unemployed because in their case it will be more difficult to decide exactly what effect such a sentence would have. I hope that social work reports will be asked for before such a sentence is imposed.

Finally, the noble and learned Lord mentioned that there will be pilot projects. I welcome that, but can he say where they will be?

Lord Mackay of Drumadoon

No decisions on that have yet been taken, but I suspect that the pilot schemes will cover areas of differing character. They will not all take place in the same type of area.

I am not sure that I can assist the noble Lord, Lord Macaulay, any further, on the structure of the clause, but I shall be happy to talk to him later on it rather than delay the Committee any further.

Lord Monkswell

The Committee and no doubt the people of Scotland will be pleased to learn that the Government have no intention of bringing in such draconian powers to prohibit the keeping of pets, but I wonder whether the Government can give assurances on another two matters. I refer first to television licences. I hope that the Government will be able to give the assurance that they are not planning to penalise people by disqualifying them from having a television. Secondly, I believe that a licence is required by a person who wants to get married. Can the Government give an assurance that they do not intend to deprive people of their spouses as a means of punishment?

4.30 p.m.

Lord Mackay of Drumadoon

I doubt whether either question requires an answer. However, the answer is: no and no.

Lord Macaulay of Bragar

Before the noble and learned Lord sits down—he has already done so—with respect to him, at this stage I am not interested in talking to him about this particular provision. It is the duty of the senior law officer of Scotland to bring before your Lordships' House legislation that can be considered by the whole House. With respect, I have no intention of talking to the noble Lord about it. If he seeks to justify the legislation your Lordships' House is the place in which to do it. I welcome the invitation but reject it.

Lord McCluskey

The problem with this kind of legislation, which sprang from nowhere on 8th October, is that there has been no in-depth consultation. In relation to the matter referred to by the noble and learned Lord the Lord Advocate, the Secretary of State wrote to the Lord Justice General on 6th November. On the following Thursday the Lord Justice General put that matter as one of a number of items on the agenda for the meeting of judges that began at 9.30 and finished at 9.55. In the space of 25 minutes those judges who were free to turn up and turned up were able to address their minds briefly to the question whether there should be a clause of this kind. On the basis of that, the noble and learned Lord the Lord Advocate believes that he has the support of the senior judiciary. I was at that meeting. He had neither my support nor the support of the Lord Justice General at that meeting. This is not a form of consultation that enables the Committee to say with confidence that the legislation has been thought through. It has not been thought through. However, in view of the attitude of other noble Lords in the Committee I do not propose to pursue this matter.

Clause 14, as amended, agreed to.

Clause 15 agreed to.

Clause 16 [Right of appeal]:

Lord Mackay of Drumadoon moved Amendment No. 112A: Page 23, line 24, at beginning insert ("subject to subsections (3A) to (3D) below,").

The noble and learned Lord said: In moving Amendment No. 112A I shall speak also to Amendments Nos. 114A to 114E. There was an intention to move an Amendment 114F as well, but I regret that it has not reached the Marshalled List. That amendment would have amended page 24, line 6, of the Bill. That amendment will be tabled at Report stage.

Amendment No. 112A and the others that I have mentioned clarify the Government's intentions regarding a change of witness evidence as the basis for founding an appeal under the "reasonable explanation" test introduced by Clause 16. This is an important matter. I hope that the Committee will allow me to set out the Government's thinking in a little detail.

The existing clause is designed to implement the recommendations of the Sutherland Committee which were accepted by the Government, in particular the introduction of the "reasonable explanation" test for new evidence introduced into Sections 106 and 175 of the 1995 Act. Your Lordships may recall that when the Sutherland Report was published the Government announced their rejection of the recommendations of the Sutherland Committee that a change of witness evidence should specifically be allowed as a ground of appeal. That recommendation was dealt with in paragraph 2.8 of the report. We did so because of our very real concerns—which we knew were shared by all parties and many involved in the criminal justice system—about the problem of intimidation of witnesses. That problem can manifest itself both before and after trial. At that time we felt that the precise terms of the Sutherland recommendation on this matter might, if accepted, increase unacceptably the risks that criminals convicted at trial would be tempted to intimidate victims or other witnesses to change the evidence that they had given at trial in an attempt to have convictions overturned.

In the intervening months we have kept this matter under review, particularly in the Crown Office, which has handled many trials and appeals over that period. Having given the matter further thought, we have concluded that it is possible to make specific statutory provisions, including adequate safeguards, to allow a change of witness story to found an appeal in a deserving case. We must be careful, however, to ensure that we do not create a situation in which someone can found an appeal simply by pressurising a witness to change his story. These amendments have been drafted with these policy aims in mind.

The amendments describe the limited circumstances in which a change of witness evidence can be the basis of an appeal. It requires that something more than just a change of story by the witness and a reasonable explanation coming from the witness alone will be sufficient. It thus reflects the principle set out in cases such as Mitchell and Brodie—both of which are referred to in the Sutherland Committee report—to the effect that a mere change of story by a witness will not be sufficient to support the contention that there has been a miscarriage of justice.

In an appeal in which it is contended on behalf of the appellant that the alleged miscarriage of justice arises because of the existence of evidence from a witness who gave evidence at the original trial—evidence that is different from or additional to the evidence which that witness gave at the trial, and for that reason was not heard at the trial—in such a situation the following safeguards will apply. The reasonable explanation as to why the trial court never heard the evidence that the appeal court is now being invited to take into account must be supported by evidence from an independent witness; that is, a witness separate from the witness who gave evidence at the trial. The evidence from that independent witness will also be required to be additional to any evidence given at the trial. The appeal court will be required to decide whether it accepts the evidence of the independent witness as credible and reliable. That will be a duty incumbent upon the appeal court judges.

We believe that these safeguards will contain to an acceptable extent the risk of witnesses being induced by threats or otherwise to give evidence that is designed to fit in with evidence already given in public at the original trial. We consider that these safeguards will seek to rule out undeserving cases while allowing genuine miscarriages of justice to be dealt with. I ask the Committee to support this and the following amendments.

Lord McCluskey

The noble and learned Lord will not be surprised to learn that I support these amendments. I have always supported flexibility in relation to this matter. I express only one regret, to which I should like the Government to give serious thought. When the noble Lord, Lord Renton, with the assistance of others, wrote a report on legislation some years ago he received evidence from the Lord Justice Clerk, Lord Wheatley, and the then Lord President, the noble and learned Lord, Lord Emslie, about the character of Scottish legislation. In essence their evidence was that instead of providing detailed statutory formulations of tests, exceptions, and exceptions to exceptions the proper course was simply to trust the judges and give them a general power to except if the justice of the case appeared to them to require it. I should have thought that a formulation of that character could have been devised to replace the rather complicated provision that this clause has now become. I hope that the noble and learned Lord will bear that in mind. If there is time for this Bill to pass into law there may still be time to make that kind of amendment.

Lord Macaulay of Bragar

Appeals have always been a very difficult area of the administration of justice. I appreciate that what is sought to be done by way of these amendments is to arrive at a formula that prevents a miscarriage of justice.

People often say that we do not have miscarriages of justice in Scotland. That is not quite true. As the noble and learned Lord the Lord Advocate will know, there is at least one solicitor in Glasgow who has two pardons on his wall. Of course, the cynical Scots say, "He cannot be all that bright a lawyer if he needs two pardons at the end of an appeals process", but that is another matter.

Perhaps I may declare an interest because I was involved in the Glasgow ice-cream war case, which is presently subject to appeal. I appeared for Mr. T. C. Campbell, so I shall not go into the details of the case. I no longer have any instructions on his behalf because, quite properly, he has gone to someone else.

The more we try to find a solution to miscarriages of justice the more convoluted the law becomes. While accepting that the amendments are well designed, with good social and legal reasons behind them, perhaps a decent review of the legal system in Scotland might enable us to put forward a better solution rather than piecemeal legislation.

There is one issue which disturbs me more than somewhat. It is for that reason that I mentioned the T. C. Campbell case. I refer to page 3 of the Marshalled List of amendments. Subsection (5BC) of Amendment No. 114E states that, 'independent evidence' means evidence which was not heard at the original proceedings; is from a source independent of the person referred to in subsection (5BB) above". I am not sure what that means because in the trial to which I referred a prime witness changed his story. He gave his story to the jury; it was rejected. He has now given his account to the authorities and the defendant concerned has been released on bail pending appeal.

There is no definition of "a source independent". What happens if no one heard anything of what went on? How does one define "a source independent" whose evidence was not heard at the original proceedings? I do not understand what the subsection means. On a constructive, rather than on any other, basis, I suggest that the draftsmen should re-examine the subsection to see whether it makes any sense in the practicalities of life in court.

The noble and learned Lord the Lord Advocate may believe that I am talking nonsense. I am not, because the matter is serious. If this provision is to be the core of an appeal it must be spelt out properly within the legislation. For example, would a person who is a relative of a witness be looked upon as "a source independent"? Would a work colleague be "a source independent" if during the tea break he heard someone saying, "I told a lot of rubbish at the High Court last week and I got Joe Bloggs done"? Would he be "a source independent" if he were then led as a potential witness before the Court of Appeal so that it could decide that the case should be reviewed?

As I pass out of the legal sphere, I am coming gradually to the view that matters are becoming far too complicated and that we should return to a simple system of law in which we can send a case back to a jury to decide what it is all about rather than leaving it to the judges. In saying that, I appreciate that I do not fall in line with the noble and learned Lord, Lord McCluskey. However, my view is that the system is becoming far too convoluted. We should have a simple rather than a difficult system of appeal. If one is going to have justice one must have a simple system of justice which appeals not only to the lawyers but to the people themselves.

4.45 p.m.

Lord Monkswell

I too am a little anxious about the amendment. The crux of it appears to be that new evidence must be supported by some independent person or evidence. Perhaps I may ask the noble and learned Lord the Lord Advocate a hypothetical question. Let us suppose that at the original trial neither prosecution nor defence counsel ask a witness a relevant question in order to bring out the evidence. Let us further suppose that the defendant is convicted, the case goes to appeal and the defendant says to the court, "This is my explanation of what happened. Nobody asked me before what happened." That would effectively render not guilty the person who had been found guilty because it would put a completely different light on the case? Are the Government effectively saying in the amendment that unless there was some independent evidence the new evidence could not be heard by the Court of Appeal?

I wonder whether the phrase is likely to be so restricting as to perpetuate miscarriages of justice rather than the opposite, which is why it is tabled. I wonder whether the noble and learned Lord, Lord McCluskey, is right in saying that the judges should have some discretion as to whether evidence that they hear is satisfactory in itself without needing to be corroborated by some independent source.

Lord Mackay of Drumadoon

I am happy to take on board the invitation of the noble and learned Lord, Lord McCluskey, to re-read the Renton Report. I can say from bitter experience that the clause went through a number of drafts before reaching its final form. It did so because we were anxious to implement, so far as we could, the recommendation of the Sutherland Committee that in addition to bringing new evidence before the Appeal Court which was in the nature of a change of testimony—either a change from what was said previously or an addition to that—the reasons for change should be supported by some additional credible and reliable evidence. We have added to the modification a provision that it must be evidence that was not given at the original trial. It has not proved easy, but I believe that we have achieved a satisfactory solution to the problem. However, I shall be happy to look at the detail again to see whether any recasting will make the issue clearer.

A number of questions were raised about what the independent source will be. The short answer is that it is a source independent of the witness who is changing his testimony. It could be a relative or a colleague, but it is important to bear in mind that the independent evidence relates not to the changed testimony but to the reason why the new evidence, whether it be different or additional, was not given at the earlier trial. It would not be proper for me to make any comment about the case mentioned by the noble Lord, Lord Macaulay, because it is currently before the appeal court in Scotland. However, I hope that that answers the question which he posed.

As regards the noble Lord, Lord Monkswell, if the explanation is that the witness was not asked any relevant questions at the time, there would be no problem whatever in proving that because the transcript of the trial would bear it out. If that was a reasonable explanation, finding independent support for it would not be difficult. However, it would be for the appeal court to determine whether that was a reasonable explanation. If defence counsel had deliberately not asked questions because of other information, that matter might fall to be debated when the case came before the appeal court. Therefore, there should be no difficulty in the particular example mentioned by the noble Lord confirming whether or not the witness was questioned.

I am glad that the new amendments have received support. I shall reflect again with the draftsman as to whether the drafting can be improved. But I assure the Committee that a great deal of effort went into setting out the amendment in its present form. I am informed that contrary to what I said earlier, in some mysterious manner, Amendment No. 114F will find its way into the Bill, provided that the Committee is minded to support the other amendments.

Lord Hope of Craighead

Before the noble and learned Lord sits down, perhaps I may ask whether it is intended that the amendment should deal with the problem created by amnesia. That may have a bearing on the wording which has been selected. The noble and learned Lord may recall a case which came before the criminal appeal court not many years ago when the issue was whether somebody who claimed not to remember the circumstances of a crime was entitled to give his version again of the crime. That met with a rejection in the appeal court. It would be satisfactory if this amendment dealt with that problem so that the kind of independent explanation covered would be one where there was some evidence, perhaps medical evidence, to suggest that the offence involved was of a nature which would create the amnesia and that would explain why the witness could not give the explanation at the trial.

Lord Mackay of Drumadoon

I am tempted to say that I have forgotten what my instructions are on that point. The noble and learned Lord is correct, provided that there were independent evidence—and I presume medical evidence—which in some way persuaded the appeal court that it was a genuine case of amnesia. However, the important point is that it is for the appeal court to be satisfied as to the reasonable explanation. If it were medical evidence, that would not be a problem but, having listened to the evidence, the court must be satisfied that there is a reasonable explanation for the change of, or additional, evidence which is now proffered.

We believe that to be an important part of the amendment. It is not a question of leaving the matter to a jury on a retrial to work out whether or not the explanation is valid or to take the view that it sounds like a reasonable explanation and give it the benefit of the doubt. The court must be satisfied on the evidence before it that the independent evidence is credible and reliable and supports the explanation which is tendered. I should have thought that amnesia would be covered in any genuine case, rather than the type of case which we normally encounter in the criminal courts.

On Question, amendment agreed to.

Lord McCluskey moved Amendment No. 113: Page 23, line 29, leave out ("only").

The noble and learned Lord said: I can be very brief on this amendment. I seek to know what the word "only" is doing in line 29. It is a slightly technical point. I am not sure what is its function. I cannot think that it is necessary. I draw attention to it because Members of the Committee may recall that in 1964, the House of Lords Judicial Committee discovered that the word "only" meant something which it had not been thought to mean for the previous half a century. I should hate to think that we have to wait another half a century to find out what the word means in this context. I cannot think that it is necessary and I ask the noble and learned Lord the Lord Advocate to explain why it is there. I beg to move.

Lord Macaulay of Bragar

Amendment No. 114 amends Clause 16. The amendment seeks to provide a definition as to what constitutes a reasonable explanation of why evidence was not adduced at the original trial. I do not propose to go into the minutiae of the amendment, although information supplied to me suggests that the noble and learned Lord, Lord McCluskey, in his book on criminal appeals, may have made some reference to it in passing.

Lord Mackay of Drumadoon

I must confess that I do not recall the case in 1964 to which the noble and learned Lord refers. But the purpose of having the word "only" is to make it clear that a reasonable explanation is required in every case and that it is not just an instance of situations where an appeal would be allowed.

If the noble and learned Lord wishes to explain the case to me later, I shall be happy to talk to him about it. The recommendation of the Sutherland Report was quite clear; namely, that it was only where there was a reasonable explanation as to why evidence was not heard that such a route to a successful appeal based on a miscarriage of justice should be allowed. That is why the provision exists. There must be a reasonable explanation why the court did not hear the evidence referred to in subsection (3)(a).

Lord McCluskey

The noble and learned Lord the Lord Advocate betrays his youth if he does not remember Rookes v. Barnard in 1964. It caused a considerable sensation in relation to the interpretation of the Trade Disputes Act 1906. When the noble and learned Lord reconsiders the drafting, that matter will arise because the word "only" can have an extremely restrictive—and unintended—effect. It is that matter to which I wish to draw attention. I do not wish to pursue the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 114 not moved.]

Lord Mackay of Drumadoon moved Amendments Nos. 114A to 114E: Page 23, line 31, after ("above") insert ("or, as the case may be, (3C) below"). Page 23, line 35. at end insert— ("(3C) Without prejudice to subsection (3A) above, where evidence such as is mentioned in paragraph (a) of subsection (3) above is evidence— (a) which is—

1. (i) from a person; or
2. (ii) of a statement (within the meaning of section 259(1) of this Act) by a person.

(b) who gave evidence at the original proceedings; and (b) which is different from, or additional to, the evidence so given, it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence. (3D) For the purposes of subsection (3C) above, "independent evidence" means evidence which—

1. (a) was not heard at the original proceedings;
2. (b) is from a source independent of the person referred to in subsection (3C) above; and
3. (c) is accepted by the court as being credible and reliable.").

Page 23, line 41, after ("based") insert (", subject to subsections (5A) to (5BC) below,"). Page 24, line 1, after ("above") insert (" or, as the case may be, (5BC) below"). Page 24, line 5, at end insert— ("(5BB) Without prejudice to subsection (5A) above, where evidence such as is mentioned in paragraph (a) of subsection (5) above is evidence— (a) which is—

1. (i) from a person; or
2. (ii) of a statement (within the meaning of section 259(1) of this Act) by a person,

who gave evidence at the original proceedings; and (b) which is different from, or additional to, the evidence so given, it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence. (5BC) For the purposes of subsection (5BB) above, "independent evidence" means evidence which—

1. (a) was not heard at the original proceedings;
2. (b) is from a source independent of the person referred to in subsection (5BB) above; and
3. (c) is accepted by the court as being credible and reliable.").

On Question, amendments agreed to.

Clause 16, as amended, agreed to.

Lord McCluskey moved Amendment No. 115: After Clause 16, insert the following new clause— LEAVE TO APPEAL: EXCEPTIONS (" . In section 106 of the 1995 Act (right of appeal on solemn proceedings), after subsection (9) insert the following new subsection— (10) Notwithstanding any other provision in this Act, leave to appeal will not be required—

1. (a) in any case where the appeal is against a conviction or sentence or both to which section 205A or 205B of this Act applies;
2. (b) in any case in which the convicted person has been sentenced to imprisonment or detention for a period of five years or more;
3. (c) in any case in which the convicted person has been sentenced in the Sheriff Court to imprisonment or detention for a period of more than two years.".").

The noble and learned Lord said: Amendment No. 115 seeks to introduce a new clause relating to exceptions to the requirement to obtain leave to appeal. The present position is governed by Part VIII of the Criminal Procedure (Scotland) Act 1995, Sections 106 and 107. The Lord Advocate does not require leave to appeal but the convicted person requires leave to appeal, whether against conviction, sentence or both. That system has been in operation since September 1995, having been introduced by the Criminal Justice (Scotland) Act of that year. Under Section 106, leave is required for all appeals against conviction and/or sentence, including deferred sentence, absolute discharge, and so on. Section 107 provides for leave to be considered and either granted or refused by a single judge, with a right of appeal to two or three judges, depending on the character of the appeal. In terms of the Act, you cannot appeal against a life sentence imposed for murder under Section 205(1).

The proposed new clause intends to advance the proposition that leave to appeal should not be required in cases where, because of the new mandatory sentencing provisions of Sections 205A and 205B (which remove judicial discretion), the judge is required to impose a sentence of life in the question of Section 205A or a minimum of seven years in Section 205B of the 1995 Act, as it will be amended, unless there are "exceptional circumstances" justifying a lesser sentence.

I submit that because this is such an important and novel matter and also because the whole concept of "exceptional circumstances" is itself so fraught with difficulties—indeed, as we have seen during the course of our debates and as the present Lord Justice General acknowledged in a letter that I read out to Members of the Committee on a previous occasion—one really ought to have an automatic right of appeal against a sentence of life imprisonment.

I also have in mind the provisions of the European Convention on Human Rights. For a person to be sentenced to imprisonment for life and not to have an automatic right to a public hearing of his appeal, seems to me to be a very considerable departure from our system of open justice. That is the first part of the amendment: paragraph (a) relates to Sections 205A and 205B—that is, the automatic life sentence or the automatic minimum sentence of seven years.

Paragraph (b) of the amendment refers to, any case in which the convicted person has been sentenced to imprisonment or detention for a period of five years or more". To a substantial degree that overlaps with paragraph (a), but does not necessarily always do so. Judges of my seniority have been sitting and considering such matters since September 1995, usually on a weekly basis. Indeed, I have a large number of them to consider tomorrow.

I find the following very difficult; and, indeed, I have often discussed this matter with Lord Ross who was until recently Lord Justice-Clerk. We both experience great difficulty in refusing leave to appeal where a person has been given a substantial period of imprisonment. We find it difficult to say that a person who has been sent to prison for seven or eight years does not have arguable grounds for leave, however heinous the crime. I know that among some judges, though not universally, it almost became the practice to grant leave automatically where the sentence was of that order.

When I made my submissions to the Government in response to the Green Paper and the White Paper in 1996, I suggested that an appropriate cut-off point would be four years. Of course, that period was lifted from Section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. However, that Act is about to be repealed, if this Bill goes through, with the support of those who supported that enactment. When the Act is repealed, it may be appropriate to take not a four-year but a five-year period which would reflect the provision in the present Bill giving sheriffs power to impose a sentence of up to five years.

However, when one looks at paragraph (c) of the amendment, it will be seen that that refers to a further overlap; namely, any case in which the convicted person has been sentenced in the Sheriff Court to imprisonment or detention for a period of more than two years". Without going into detail, I should like to remind Members of the Committee that, on a previous occasion, I drew attention to the fact that until 1987 the sheriff had an effective power to send a person to prison for some 16 months—that being the period that the person would serve. Thereafter, the period became slightly longer before the 1993 Act brought it back down again. The present Bill gives the sheriff an effective power to send a person to prison to serve at least four years and two months. In this type of case where the sheriff is imposing a sentence which he could not possibly have imposed until quite recently, I suggest that the right to appeal ought to be automatic.

In my view, that would not dramatically increase the burden of work upon the court—if, indeed, it increased it at all—but it would certainly lighten the burden of work upon the judges who have to grant or refuse leave to appeal. In respect of those three matters, I beg to move.

5 p.m.

The Earl of Mar and Kellie

Where a person has been subjected to a mandatory sentence, which may not be completely appropriate in the light of all the facts, it seems to me, as a legal layman, that such a person should have the automatic right of appeal. Surely that is a necessary safeguard. After all, the two concepts—mandatory sentences and the automatic right of appeal—are, to a degree, made for each other.

Lord Hope of Craighead

Perhaps I may make a few points. I should like, first, to support what my noble and learned friend Lord McCluskey said about matters of practice. Like him, I had to administer the new provisions whereby leave to appeal had to be granted. I happen to take the view that long periods of imprisonment almost invariably justify leave to be given. Therefore, I do not believe that giving effect to the amendment will have a dramatic effect on the work of the Criminal Appeal Court. I say that because the cases covered will very likely be given leave in any event. However, it would at least avoid the risk of some cases falling through the net.

Secondly, although I have not discussed the proposal with my noble and learned friend, there is one omission which might be worth considering. I refer to the mandatory sentence of life imprisonment where a judge makes a recommendation. In Scotland, unlike in England, a recommendation made by the trial judge in a mandatory life case can be subject to appeal. The relevant provision in the 1995 Act escapes me but, if the amendment were to be accepted, it would be sensible to include a specific reference to the provision which allows an accused person to appeal against the recommendation.

Thirdly, I hope and believe that paragraph (b) in the amendment covers the situation of the discretionary life prisoner; that is to say, the person who is sentenced to life imprisonment at the discretion of the trial judge. I should have thought that those cases would almost certainly be granted leave in any event. However, for the sake of completeness, it would be as well to be sure that the language covers them as well as those who are sentenced to fixed periods of imprisonment.

Lord McCluskey

In response to what my noble and learned friend has just said, I can only say, yes, I would be happy if the proposed new clause were extended to allow such matters to be covered. I have never pretended to be a draftsman, but I do my best to draw such points to the attention of the noble and learned Lord and his excellent staff. In a sense, it is a matter of administrative convenience; but it is also a matter of fundamental human rights in relation to such sentences.

Lord Mackay of Drumadoon

I shall deal first with the European Convention on Human Rights. I believe that the noble and learned Lord, Lord McCluskey, will recall that, when the provisions set out in Sections 106 and 107 of the Criminal Justice (Scotland) Act 1995 were debated in this Chamber, the issue of their compatibility with the European convention was also considered. Noble Lords were informed that a number of cases had been presented to the court in Strasbourg which specifically approved of sifting procedures of this nature. Therefore, there can be no doubt that the current law conforms with the convention as would the law, as amended, under the terms of the Bill.

The Government's initial reaction to the amendment was that it was somewhat early to be considering amendment of the relevant legislation in the Act, in view of the fact that the sifting procedure has been operating only since September of 1995. This is, of course, a two-stage procedure. If an appeal is unsuccessful at the first sift, there is an appeal sift, as it were, before it is ultimately rejected, if it is not to go before a sitting of the Appeal Court.

In the light of the fact that the procedure has been running only for 18 months or so, the view was there was not a case to alter it. There is, of course, some concern about having different procedures for different types of appeal. That tends to be the background against which mistakes occur. However, in view of the comments made by the noble and learned Lord, Lord McCluskey, on the basis of his experience, supported—as I understand it—by a contribution from the noble and learned Lord, Lord Hope, I am quite happy to reflect further upon this and discuss it with the court to see whether it would be possible to work out an amendment which was acceptable and which took account of any drafting points that have been raised this afternoon, or which may subsequently come to light. I cannot offer any guarantee on this matter but in the light of the comments made by those who have had practical experience of sifting, rather than being the beneficiaries of sifting, I am happy to think about the matter further.

Lord McCluskey

I welcome the warm tone of the noble and learned Lord in this matter. I am sorry to add a slightly sour comment; namely, I was interested to hear him say it was somewhat early to consider amendment of a system that was introduced in September 1995. In fact, the whole 1993 Act, which was introduced on 1st October 1993, was denounced by the Government two years and 12 days after it came into effect. Is that not also somewhat early?

5.15 p m.

Lord Mackay of Drumadoon

With the greatest of respect to the noble and learned Lord, Lord McCluskey, if he wishes to retain the warm tone which I displayed in responding to his previous amendment, it may not be wise to remind me of a point which he has put to the Committee on more than one occasion and to which I hope I have already replied adequately.

Lord McCluskey

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [Automatic sentences: jurisdiction and appeals]:

Lord McCluskey moved Amendment No. 116: Page 24, line 13, leave out subsections (2) and (3).

The noble and learned Lord said: This amendment relates to the provision in Clause 17(2) of the Bill. Clause 17(2) provides that the Lord Advocate will have an appeal against a decision, not to impose automatic sentence in certain cases

on the basis that, there were no exceptional circumstances justifying that decision".

The matter of exceptional circumstances is one which we have discussed and looked at from various perspectives. If the noble and learned Lord the Lord Advocate considers that he can say in relation to a particular case, "There are no exceptional circumstances here", it follows that he must at this stage have some idea as regards what exceptional circumstances are. Accordingly it would appear to be appropriate to invite him to tell us what kind of circumstances he would not regard as exceptional.

I find it difficult to see how the noble and learned Lord the Lord Advocate, who takes no part in the matter of sentencing at the stage of sentencing, is able, on some basis as yet undisclosed, to tell us what is meant by exceptional circumstances or, in this case, no exceptional circumstances. I simply ask for further clarification in relation to that. I suspect the answer will be, "I cannot begin to define what exceptional circumstances are but I am sure I shall recognise them if I see them". That is not a satisfactory basis—the elephantine basis—for legislation. I wonder whether the noble and learned Lord the Lord Advocate will defend that basis. I beg to move.

The Deputy Chairman of Committees (Baroness Nicol)

If this amendment is agreed to, I cannot call Amendment No. 117.

Lord Mackay of Drumadoon

In defending the use of the term "exceptional circumstances" before the Committee I have made it clear that the approach the Government favour is to leave this matter to the courts to interpret. When that approach falls to be implemented by the courts they will do so in deciding particular cases having had the benefit of a submission from the accused or the appellant's counsel on behalf of the Crown—of that there can be no doubt at all. Even if one is only having appeals against sentence, if a question of law arises it is perfectly open to the Crown to make submissions on that matter—a matter which I had occasion to clarify only last week with the Lord Justice General in connection with a totally separate case.

The evolution of what exceptional circumstances will encompass will take place in cases in which both the accused's legal advisers, his counsel or solicitor-advocate and the Crown will take part in debate. Contrary to what the noble and learned Lord says, the Crown has a limited role to play at this stage of sentencing. The Appeal Court in Scotland has already made it clear on a number of occasions recently that if in addressing the court on sentence the defence counsel seeks to present a statement of the facts contrary to that which the Crown accepts, it is the duty of the Crown to dispute that at the time and seek to have the dispute resolved, if necessary in the appropriate case by the leading of evidence. Therefore the Crown has a role as regards the facts. No doubt, if submissions on the law were being made, to which the Crown objected, the trial judge would be perfectly content to hear the Crown on that matter too. It cannot be to the advantage of the court to proceed on an erroneous submission as to the law, if that was what the defence was putting forward.

If the Crown has the right to appeal at the moment on the basis that sentences are unduly lenient, it seems to me entirely appropriate that as the case law on exceptional circumstances builds up, it also ought to have the opportunity to intervene in particular cases where the trial judge has ignored the decisions of the Appeal Court or the guidance of the Appeal Court as to how that phrase is to be applied when implementing the sentencing proposals set out in Clauses 1 and 2 of the Bill. I believe that on the first day of the Committee stage I gave the Committee the number of cases in which the Crown had exercised that power. It is not a large number. One suspects that this would not occur frequently. However, in my submission it is important that the provision should be there so that the Crown has the right to bring the appropriate cases before the Appeal Court in the same way that the defence will have the right to bring appropriate cases before the Appeal Court. The Appeal Court will not seek to construe exceptional circumstances in a vacuum; it will do that by examining individual cases. No doubt in the light of the case law that is built up, parties on both sides of criminal cases will know when it is appropriate to appeal.

Lord Macaulay of Bragar

Before the noble and learned Lord sits down, are we not in danger of indulging in legal semantics here as regards exceptional circumstances? The important people involved in cases appearing before the courts are the victims, the victims' families, the accused, and in some serious cases even the accused's family because everyone suffers as a result of violence. Will the noble and learned Lord equate "exceptional circumstances" with the reasonable man? The law in Britain has caused enough trouble over the definition of "reasonable". In Scotland we are stuck with the definition of what the man on the top of a Clapham omnibus would think reasonable. No one has ever mentioned a bus from Glasgow Corporation or Edinburgh District Council. Perhaps that underlines that we should shy away from such phraseology in statute and let the courts get on with the matter on a fairly simple basis.

Lord Mackay of Drumadoon

With respect to the noble Lord, that is precisely what we seek to do. We are placing the term "exceptional circumstances" on the face of the Bill. It is true that we do not often hear about buses or trams in Scotland. However, I venture to suggest that in England courts are probably sick of hearing about cases of snails in ginger beer bottles, and fishwives who take shock when they espy a tramway in Colinton Road in Edinburgh, and so on. As I think my noble and learned kinsman mentioned earlier, there has been some merit in two-way traffic on legal matters over the Border. I am content that the approach followed is sensible. I look forward to the courts construing the matter in the years ahead.

Baroness Carnegy of Lour

There seems room at this point for the voice of the ordinary woman. If there is query as to whether there should be a sentence of life imprisonment because there are exceptional circumstances, and it seems to the Lord Advocate that the exceptional circumstances do not exist, there is surely a right of appeal. That is precisely what the accused should expect. That seems reasonable. If the provision were not in the Bill, there would be an imbalance.

The Earl of Mar and Kellie

Neither a person on a bus leaving Clackmannan and going in any direction nor Members of the Committee can find the issue about exceptional circumstances easy. We have to balance two conflicting remarks. The noble and learned Lord the Lord Advocate told us that the courts will decide. The noble and learned Lords, Lord McCluskey and Lord Hope, told us that when the judges determine the meaning of these words, they ask what was in the mind of Parliament. I believe that the Committee is still stuck in a quagmire on this.

Lord McCluskey

The noble and learned Lord the Lord Advocate referred to the fact that to a limited extent the prosecutor has a role in sentencing. I remind him of the speech of my noble and learned friend Lord Clyde at Second Reading. I respectfully adopt his submission: that the old idea that the prosecutor was not concerned with sentencing was destroyed when the prosecution was given a right of appeal against unduly lenient sentences. That introduced an entirely new matter from simply informing the courts about the facts or assisting the courts to understand the facts. The noble and learned Lord, Lord Clyde, also said that if this clause stands it should be qualified by a reference to the propriety of the prosecution making a submission to the court on sentence.

Those observations have a bearing in relation to exceptional circumstances. It would be unfair to the sentencing judge if, the Crown having made no submission to him as to whether or not the circumstances were exceptional, and he having decided that they were, he were faced with an appeal by the Lord Advocate on the basis that the circumstances were not exceptional. I submit that we have not had sufficient answer on this point.

Lord Sewel

In a brief and simple way perhaps I may seek clarification or guidance on the clause. We have spent a great deal of time in Committee talking about exceptional circumstances. Throughout that time the noble and learned Lord the Lord Advocate has resolutely declined to give any definition of exceptional circumstances. Yet this clause gives the Lord Advocate the right to appeal on the grounds that there are no exceptional circumstances. My thought processes lead me to this conclusion: that the Lord Advocate is in a position to appeal on the ground that no exceptional circumstances exist when he does not know what the phrase "exceptional circumstances" means. That may be a fault in my thought processes but it seems a reasonable conclusion.

Lord Mackay of Drumadoon

Perhaps I may answer that perfectly understandable question in this way. When the clauses come into force the courts will interpret what "exceptional circumstances" amount to, declaring in a specific case that they do or do not exist. When such cases are decided by the Appeal Court the Lord Advocate of the day will have the benefit of the rulings of the Appeal Court as it sets out the law. He will be perfectly able to answer the question. If in a trial a judge declares that there are exceptional circumstances, and that decision is difficult or impossible to reconcile with what the Appeal Court decided the previous week, it would be open to the Lord Advocate to appeal if he thought it appropriate to do so. He is under no obligation to do so but it would be open for him to do so.

That is what occurs at present. When the Lord Advocate exercises this power, he has regard to what the Appeal Court has said in the past. Sometimes he forms a view which is not shared by the Appeal Court; sometimes it is. That is how I imagine that this power will be exercised in the fullness of time.

Lord Macaulay of Bragar

Before the noble and learned Lord sits down, is it not correct that each case depends on its own facts and circumstances? It seems a difficult exercise to apply the exceptional circumstances in one case to another case. There cannot be a league table of exceptional circumstances. I hope that I do not misinterpret what my noble friend Lord Sewel said. His point was that it is an impossible phrase to interpret.

Lord McCluskey

In essence, the reply of the noble and learned Lord the Lord Advocate is that the Lord Advocate does not know what "exceptional circumstances" are, and accordingly, logically, he cannot tell us what no exceptional circumstances are. Therefore he will wait until the Court of Criminal Appeal tells him what they are in a number of cases, and in the light of that he will exercise the power contained in this clause.

It seems extraordinary that the author of the Bill, the person who seeks to pilot it through the House, is unable to tell us the meaning of this phrase and yet is taking a power to exercise on the basis that there are or are not exceptional circumstances once the courts consider the matter in a series of cases. I find it an extraordinary way to legislate. I cannot believe that that is consistent with the notion always applied by judges in interpreting statute of asking what Parliament intended. Currently what Parliament intends is what the Minister intends. If the Minister cannot properly tell us, I do not know how the judges are supposed to interpret the statute. However, we have made the point before.

Lord Mackay of Drumadoon

Before the noble and learned Lord sits down, I believe it appropriate to correct the matter. I do not wish to go over matters that we debated some days ago.

It is not that the Minister has no idea what the phrase involves or is not capable of working out what it could involve. The approach that the Government believe is correct has been made consistently clear in the Bill, and in the English Bill. Until now I have not heard it suggested that any judge or Appeal Court would find it impossible to construe this term. That is the approach which the Government believe is correct.

The Government have made it clear that they can foresee the term covering the circumstances of the two offences and the circumstances of the offender; but they do not seek on the face of the Bill to define it or limit it in any way. I venture to suggest that that is not an entirely novel approach. I believe that the courts are perfectly capable of implementing it, and that, when they do so, both those who prosecute and those who defend the accused will be happy to abide by the courts' rulings.

Lord McCluskey

We shall plainly get no further on this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 p.m.

Lord Macaulay of Bragar moved Amendment No. 117: Page 24, line 19, at end insert ("and an appeal against that decision shall preclude any further appeal by the Lord Advocate on any other ground").

The noble Lord said: This is a fairly simple amendment to Clause 17, at line 19 on page 24 of the Bill. Its objective is to ensure that the Lord Advocate is not allowed to appeal on the grounds of a sentence being unduly lenient when no undue circumstances have been found. We feel that the matter should be dealt with very seriously in the light of what was said in relation to the previous amendment. I beg to move.

Lord Mackay of Drumadoon

As I understand the amendment, it is intended to prevent the Lord Advocate from appealing against the trial judge's decision not to impose an automatic sentence on the basis that he or she was satisfied that there were exceptional circumstances; and at the same time, in the event that an appeal was successful, to prevent the Lord Advocate from appealing against the length of the determinate sentence imposed. If that is the effect of the amendment, it would be contrary to the public interest.

If the Lord Advocate is to have an appeal against the failure or the decision to impose an automatic life sentence, as would be allowed under the Bill as presently drafted, there could be no valid reason why, in the event of such an appeal being successful, he could not also appeal against the length of the determinate sentence on the basis that it was unduly lenient.

Were he not able to do so, a situation could arise whereby a very low determinate sentence was imposed which the appeal court and the general public considered to be unduly lenient, and yet it would be one with which the appeal court could not interfere and could not increase. I cannot see any conceivable justification for that. The situation is not likely to occur in many cases, but could happen in some. I hope, therefore, that on further reflection the noble Lord will not pursue the amendment.

Lord Macaulay of Bragar

That just adds confusion upon confusion on the question of exceptional circumstances. We have been "round the houses" about 10 times in our debates on this matter. As I understand it, the Lord Advocate already has the power to appeal against an unduly lenient sentence. We are dealing with a particular issue here; namely, the definition of "exceptional circumstances". I do not accept the explanation given by the noble and learned Lord the Lord Advocate. I wish to seek the view of the Committee.

The Deputy Chairman of Committees (Baroness Turner of Camden)

The Question is, That Amendment No. 117 be agreed to. As many as are of that opinion will say "Content"; to the contrary "Not-Content". I think the "Not-Contents" have it.

Amendment negatived.

Clause 17 agreed to.

Clause 18 agreed to.

Clause 19 [Transfer of rights of appeal of deceased person]:

Lord Sewel had given notice of his intention to move Amendment No. 118: Page 26, line 37, insert ("; or (b) upon cause shown, at any time.").

Lord Mackay of Drumadoon

Perhaps I may indicate to the noble Lord that I have considerable sympathy with this amendment. I am happy to take it away with a clear commitment that we will come forward with an amendment which takes account of certain technical drafting concerns.

Lord Sewel

It is nice to hear that sweet reason rules yet again. On that basis I shall not move the amendment.

[Amendment No. 118 not moved.]

Clause 19 agreed to.

Clause 20 [Increased rights of appeal of prosecutor]:

Lord McCluskey moved Amendment No. 119: Page 28, line 6, leave out subsection (2).

The noble and learned Lord said: The current position is that the Lord Advocate can appeal against a sentence pronounced in a solemn case—that is, a case of indictment before a jury—under Section 42 of the 1993 Act. As the Committee will be aware, that provision has been in force for just over three years. A right of summary appeal by the Lord Advocate was not then sought. I am anxious to know why it is sought now.

There are certain disadvantages. First, the cost of considering all these cases will be very high indeed. I do not want to labour the point, but my strong impression is that the Crown Office and the fiscal service are under enormous pressure in terms of resources to meet the burden of responsibility placed upon them by the law and by the crime rates in Scotland. This provision will add a huge burden of work. All fiscals will have to start considering whether or not to report particular cases to the Crown Office as cases in which the new right of appeal might be exercised. It also raises a point to which I referred earlier and which was mentioned in the remarks of my noble and learned friend Lord Clyde at Second Reading. Once again, one has to consider that aspect of the matter. Furthermore, all such cases come without leave. Since leave is not required, they go automatically to the High Court, by which such cases must be considered.

The logic here is the same as was pointed out by the noble and learned Lord, Lord Clyde. If the Lord Advocate is to have a right of appeal to the High Court against every sentence and every disposal, then surely the Advocate Depute and the procurator fiscal in their respective courts ought to have the responsibility of informing the judge, sheriff or magistrate, as the case may be, that the Crown takes the view that the sentence imposed is unduly lenient or inappropriate. If the fiscal believes that, it ought to be intimated to the judge at the time. It would give the judge a chance to reconsider the matter in the light of any representation made to him.

I am not in favour of the notion of the prosecutor departing from this century-old tradition. However, it appears to be the inevitable consequence of taking a right of appeal of this kind. Having regard to the likely burden upon the service and the additional burden upon judges, including sheriffs, whose sentences will be appealed against, I ask the Government to produce some justification for this provision.

My final point is that, in a sense, if a judge is appealed against, he might feel that his amour propre has been somewhat wounded and might resent it. I do not think that High Court judges suffer very badly from that, although one might occasionally have a bad night or a bad weekend if one is appealed against and overturned. I make nothing of that. However, in the sheriff court, where the procurator fiscal appears day after day before the same sheriff, if he repeatedly takes appeals against that sheriff's sentencing it could destroy relationships within the court. That is an additional reason for not extending this power. I beg to move.

Lord Hope of Craighead

Perhaps I may add briefly to the points made by the noble and learned Lord, Lord McCluskey. First, I would mention the position of the court in such cases. As the noble and learned Lord will know, I have had to preside in a number of appeals at the instance of the Lord Advocate in solemn cases. They take up a great deal of time because they raise worrying questions, particularly for the person who has been brought back before the court, possibly to have his sentence increased, having already been sentenced. There is concern about the effect on the work of the Appeal Court.

My other point is that there is constant difficulty, it occurred to me, in bringing the cases before the court quickly enough to intercept the release of the respondent, as he would be, from prison. One of the earliest instances where a solemn case came before the Appeal Court was where the sentence had already been served. Even if the court regards the sentence as unduly lenient, it still has a discretion as to whether to impose a different sentence. Particularly in the lower order summary cases, the risk of sentences having already been served before the Appeal Court can hear them will have been increased. That makes me wonder whether the provision tries to achieve too much of a good thing. No doubt the noble and learned Lord will have consulted with the court as to whether the court can accommodate the problem. But it is a matter of some concern as to whether it is wise to bring the shorter sentences before the court in view of the risk that the hands of the court would be tied anyway by the fact that the sentence had already been served. There is also the possibility of great unfairness to the respondent if he were to be sent back into custody, having already served his sentence.

Lord Mackay of Drumadoon

There may be a misapprehension or misunderstanding on the part of noble and learned Lords who have spoken. The fact is that the right to appeal already exists. It came into force on 1st November last year when the Summary Proceedings (Scotland) Order 1996 brought into force the provisions of Section 175(4) of the Criminal Procedure (Scotland) Act 1995.

In the time from 1st November until today, there has only been one appeal marked. We calculate that some 50,000 summary cases have gone through the courts in that time. So the concern raised by noble and learned Lords about the volume has not been borne out by experience in, admittedly, the first few months of the power. When the legislation was brought into force, the court was consulted. I do not recall the detail of what passed between the Minister of State and the Lord Justice General, but the provision was not sprung on the courts by any means. The appropriate order was laid before Parliament and the power already exists.

Clause 20 seeks to restructure the provisions which deal with the Lord Advocate's right of appeal in summary matters.

A number of other points were raised, including the role of the Crown in sentencing, a point raised by the noble and learned Lord, Lord Clyde, on Second Reading. The procurators fiscal had to be given guidance in the light of decisions by the Appeal Court as to when they should draw errors of fact to the attention of the sentencing sheriff. I should have thought that it was in the public interest that they should do so, irrespective of whether they have it in mind to appeal against any sentence that might be imposed.

I doubt whether the idea would find support in many quarters that as soon as the sheriff or the High Court judge has expressed his decision as to what a sentence should be, the Crown should there and then have a right—let alone an obligation—to say to the sentencing judge: "We disagree with that sentence, we want you to review it here and now". Similarly, I doubt whether, if the defence had the right to stand up and invite the trial judge there and then to review the sentence, it would find support in such quarters.

I accept that the provision increases the role of the Crown at that stage, but it is not a provision that cannot be fulfilled. The experience of the past few months has brought nothing like the deluge of cases anticipated in the contributions made.

There is some suggestion that it might create the risk of souring relationships between the procurator fiscal and the sheriff, giving them a succession of bad nights. I doubt that that is likely to occur, but if it does it is just as likely to happen when a defence solicitor appeals a string of sentences or convictions because he disagrees with the sheriff's decisions. I hope that all those involved would behave responsibly in such situations and not harbour grievances from one case to another.

Inevitably, in the sheriff court mistakes are made by sheriffs, whether on conviction or sentence. That is why the Appeal Court exists. Equally, in the High Court appeal provisions are there to give parties the right of appeal to a higher court with power to review. Those systems tend to work well in practice, even if on occasion the judge appealed against does not understand the decision of the Appeal Court. However, one lives with it and moves on to the next case.

I repeat, there may be some misunderstanding on the part of the noble and learned Lord, Lord McCluskey, in bringing the matter forward. I can assure the Committee that the Crown has no intention of using the power on a daily basis, but if there are instances of cases which are clearly unduly lenient or if some error of law has been made in the process of sentencing, it seems right that the provision in Clause 20(2) should be on the statute book. On that basis, I hope that the noble and learned Lord will withdraw the amendment.

Lord McCluskey

In the light of the explanation that the noble and learned Lord the Lord Advocate has just given to the Committee, I am happy to withdraw the amendment. In doing so, I acknowledge that I missed the provision contained in Section 175(4). Plainly it cannot have been commented on in detail when the 1995 Bill went through the House. It was not noticed by me then and I am not conscious of any case having yet been before the court. In the light of the explanation, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

On Question, Whether Clause 20 shall stand part of the Bill?

The Earl of Mar and Kellie

The rubric to Clause 20 contains the words: Increased rights of appeal of prosecutor". We must wonder whether the words should be "excessive rights of appeal of prosecutor". My position on the inclusion of the clause is in response to fears that we are moving towards a situation where the prosecutor tries to bid for the sentence, as occurs in some overseas jurisdictions. I do not need to tell the Committee that that is alien to the Scottish criminal justice system. Although the clause does not allow such activity, it seems to be heading in that direction.

I should like to be assured that that is not the case. I hope that the prosecutor will always be restricted to appealing against leniency of sentence after its imposition and that that should be a limited right in itself. Listening to the debate on the last two or three amendments, I feel that there is a danger of too much power being transferred to the Lord Advocate in that respect. He needs sufficient power, but not excessive power.

Lord Mackay of Drumadoon

I hope that I can respond to the point shortly. I can assure the Committee that there is no wish by the Crown to bid for sentence, nor is there any wish by the Government to give the Crown the power to bid for sentence. That is not what the clause is about. It concerns exercising rights of appeal after sentence has been imposed, subject to the point that I mentioned earlier that if, for whatever reason, the defence places a factual basis for the plea in mitigation before the court with which the Crown does not agree it is incumbent on the Crown to draw the point to the court's attention before it passes to sentence and to have the matter resolved. Were the Crown not to do so, when the matter comes before the Appeal Court that court would require to decide it on the basis that the defence's narration of the facts is correct, even if the Crown disputes it. That cannot be in the interests of justice either. When the sentencing court passes sentence, the relevant facts must be a matter of agreement if it is not a question after trial and the trial judge has heard all the facts himself.

Clause 20 agreed to.

Clause 21 [Appeal by prosecutor against hospital orders etc.]:

Lord Macaulay of Bragar had given notice of his intention to move Amendment No. 120: Page 29, line 7, at end insert— ("() Where a court determines under section 6(4)(d) above not to remit a patient to prison, the prosecutor may appeal against this determination—

1. (a) if it appears to him that the determination was inappropriate; or
2. (b) on a point of law,

and an appeal under this section shall be treated in the same manner as an appeal against sentence under section 108 of this Act."").

The noble Lord said: As this side of the Committee indicated earlier in the debate, we are not out to wreck the Bill. We are anxious to make progress. In the circumstances, I shall defer this amendment, if necessary, to Report stage and do not propose to move it today.

[Amendment No. 120 not moved.]

Clause 21 agreed to.

Clause 22 [Appeals against orders under section 49 of the 1995 Act]:

Lord Sewel moved Amendment No. 121: Page 29, line 24, at end insert— ("() In any case where it is competent for a convicted person or a prosecutor to appeal against a decision under section 49 of the 1995 Act to remit a case to the Principal Reporter, the court shall consider whether a curator ad litem should be appointed to safeguard the interests of the child concerned and if so minded shall make such an appointment.").

The noble Lord said: This a very straightforward and simple amendment which I move on the basis that such a provision might be thought helpful at this stage. I beg to move.

Lord Mackay of Drumadoon

This amendment raises an interesting suggestion for safeguarding the welfare of children in the court system. We have considered it carefully. We are sympathetic to what lies behind the amendment but are not persuaded that it would be the correct way forward.

Throughout criminal proceedings, the interests of any child ought to be governed and covered by the child receiving appropriate legal advice and support from his legal representatives who, in the discharge of their professional responsibilities, will require to be in touch with the child's parents or guardians. I have not been aware of any concern up to now that such appointments would be necessary. Obviously, any lawyer instructed to defend a child finds it a particularly anxious matter and will take guidance and advice from any quarter on the issue of taking proper instructions from the accused person. But the idea of interposing some curator ad litem into the criminal courts is novel and certainly not a proposal that I have heard suggested by anyone who practises in this field.

Clearly, I am prepared to talk further about the matter and listen to any further suggestions. But as at present advised, we do not believe that it would be a sensible proposal, albeit we entirely sympathise with the view that lies behind it.

Lord Sewel

On the basis of what the noble and learned Lord the Lord Advocate said and some discussion with, it is to be hoped, some progress, I am happy at this stage to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Clause 23 agreed to.

Lord McCluskey moved Amendment No. 122: After Clause 23, insert the following new clause— FINALITY OF PROCEEDINGS AND SECRETARY OF STATE'S REFERENCE (" .—(1) Section 124 of the 1995 Act (finality of proceedings and Secretary of State's reference) shall be amended as follows. (2) In subsection (2) the words "Subject to subsection (3) below" shall cease to have effect. (3) Subsections (3), (4) and (5) shall cease to have effect.").

The noble and learned Lord said: This amendment is grouped with a number of other amendments—Amendments Nos. 123 up to and including Amendment No. 127, as the Committee will see from the Marshalled List. They are all designed to achieve the same end.

Right from the beginning I acknowledge that there is a powerful technical objection to moving an amendment of this kind in this Chamber, because implementation of the amendment would appear to involve expenditure not authorised by another place. Accordingly that technical objection may be one which cannot possibly be overcome. On the other hand, of course, the Government would be free to take the course that I suggest should be taken as regards these amendments.

Following cases in England which are well known to the Committee—the Birmingham Six, the Guildford Four, the Cardiff Three, the Bridgwater case, possibly the Hanratty case, Rillington Place, the Craig and Bentley case; I have a list of about 26 such cases—the Government finally conceded that it was necessary to set up a body to be called the Criminal Cases Review Commission. That was conceded by the Government in relation to England and Wales. Accordingly, the Criminal Appeal Act 1995 came into force and it is from the provisions of that Act that I have borrowed—with some modifications—the provisions contained in the proposed new clauses which appear in Amendment No. 123 onwards. Amendment No. 122 simply removes the possibility of the Secretary of State making a reference.

These recommendations, albeit no doubt imperfectly, seek to implement the recommendations of the Sutherland Committee. Before I turn to those recommendations, let me say to the Committee that it is sometimes said that Scotland has escaped the Birmingham Six or Guildford Four type of case. In terms of publicity and drama, that is certainly true. However, I am not persuaded that Scotland is totally free of such cases. We in Scotland sometimes claim that we would not have decisions such as the Birmingham Six type of case because we have a law about corroboration. I have written and spoken to the effect that that is nonsense—I shall not weary the Committee with repeating it tonight—and that such cases could have occurred in Scotland. Perhaps I may mention two of the better known cases—the case of Meehan and the case of Preece—which resulted in convictions that were ultimately quashed many years after the event owing to the happy discovery of some new evidence which called the convictions into question.

Those are not the only cases, although we may perhaps be better able to deal with them. Another good example might be the case of Mitchell v. Her Majesty's Advocate, which was reported in 1989. That was a trial at which my noble and learned friend Lord Clyde presided and the noble and learned Lord, Lord Hope, dealt with as one of his first cases in the Criminal Appeal Court. The background to that case is set out in a number of reports in Scotland. I need not go into them in any detail. That was a case in which the trial judge expressed his concern about certain aspects. I myself sat in another trial involved in the same case and felt very strong disquiet about the case which resulted in Mitchell's conviction. Ultimately, it was dealt with, for reasons which are explained in the Opinion of the court, although behind those reasons there was, I feel, a sense of unease among Her Majesty's judges about what had happened in that case.

Although some of those cases have eventually resulted in successful appeals, others have proved less easy to resolve on the basis of the ordinary appeal rules of procedure and evidence. Those familiar with the judgment in the recent Beattie case will appreciate how technical the matter may become.

Against that general background and in the light of the recommendations by the Runciman Committee in England, the Secretary of State and Lord Advocate at that time decided to set up a committee under Sir Stewart Sutherland. It was a most distinguished committee. Apart from Professor Sutherland himself and Lord Ross, the Lord Justice Clerk, there was the Vice-Dean of the Faculty of Advocates, who is now on the Bench, Derek Emslie; sheriff Gordon himself, the leading authority on the written criminal law in Scotland; the Chief Constable of Strathclyde, Sir Leslie Sharp; and Andrew Normand, then the Regional Procurator Fiscal for Glasgow and Strathkelvin—now promoted to the office of Crown Agent.

That distinguished body was appointed in 1994. It set itself the task of reporting fully within a period of two years and in fact did so. The report was published in June 1996 by Her Majesty's Stationery Office. Some of its recommendations in relation to appeals have been adopted in this Bill and I do not propose to dwell upon them. But Chapter 5 of the report looked into the question against the background of cases like the Guildford Four and the Birmingham Six, and the decision in England to set up an independent body.

Option 5 of the options that the committee considered was the option of setting up an independent body with power to defer cases to the appeal court. It was, to remove the Secretary of State from the process altogether and to establish a new body, completely independent of the executive, with powers to consider alleged miscarriage of justice cases and to refer deserving cases to the Appeal Court for determination".

The report concludes, This is our preferred option and the one that we recommend … This is, of course, the model recommended by the Royal Commission on Criminal Justice, legislated for in the Criminal Appeal Act 1995".

That is the reason I put this matter forward. In relation to specific points of detail, the Committee will see on page 5 of the Marshalled List that, in the first of the new clauses, the body has a name. The number of members being not fewer than five comes from the Sutherland Committee Report, and subsection (4) says, The members of the Commission shall be appointed by Her Majesty on the recommendation of the Prime Minister, after consultation with the Lord Justice General".

The Lord Justice General should have an input into these matters. Other matters in relation to numbers and so forth are adaptations of the English model in the 1995 Act. The clause introduced by Amendment No. 125 echoes a provision in the English Act allowing the commission to require the appointment of an investigating officer. The clause introduced by Amendment No. 126 envisages the commission investigating matters if the High Court gives a direction under this Act, as it will be. I should indicate that the final matter introduced by Amendment No. 127 is a new clause giving the court certain powers.

I am conscious of the fact that when one looks at the Criminal Appeal Act 1995, provisions there are rather more complicated. As I have said on a number of occasions, it is not my intention to try to do the draftsman's job; I merely want to indicate what ought to be done and invite the Government to adopt the proposal. It is not my proposal, though I supported it. As can be seen from the report, I gave evidence both in writing and orally to that committee and it had the grace also to refer to my book, Criminal Appeals, in deciding the matter.

In relation to the matter of cost, the report reveals that the total cost may be of the order of £450,000 or, on an annual basis, £300,000. I remind the Committee that the cost of keeping a person in prison is around £30,000 a year—or close to that—and, accordingly, for the cost of keeping 15 people in prison for a year, we could set up that body. The cost therefore is quite modest and no doubt the Government will bear that in mind.

For reasons I have yet to understand, the Secretary of State—on the date that he announced the recommendations of the Sutherland Committee—announced that he was rejecting its principal recommendation; namely, this one. I do not understand why that is so. I do not accept the notion that Scotland is free from miscarriages of justice. I make the general point that the Secretary of State, in whatever jurisdiction, is much too political a person to be involved, by reason of his office, in this type of case.

One can think, south of the Border, of cases in which the public take an immense interest—for example, Myra Hindley and Jamie Bulger—and such cases arise on both sides of the Border. They should not be in the political arena at all and that is why I suggest the Government adopt the proposal recommended unanimously by the members of the Sutherland Committee. I beg to move.

6 p.m.

Lord Mackay of Drumadoon

When the Government received the report prepared by Sir Stewart Sutherland and his colleagues, they announced to the Scottish Grand Committee of another place how they reacted to it. They made clear that the proposal for setting up a review commission was the major proposal they were not prepared to accept. At that stage, as I indicated earlier, the Government rejected one of the proposals in relation to the appeals criteria and we dealt with a change of position on that matter earlier this afternoon.

One of the reasons the Government took the view they did was that the view the committee recorded in paragraph 5.27 of its report was that criticisms of the present procedure for dealing with petitions to the Secretary of State by prisoners who wished to have their cases referred back to the court were not universally endorsed by all who gave evidence to the Sutherland Committee. The committee recorded that, there was a strong body of opinion that there was no need for change to the current arrangements in Scotland". It set out a number of arguments which had been advanced in favour of the status quo, including the absence of high profile cases of the nature referred to by the noble and learned Lord, Lord McCluskey. It referred to the position in relation to co-operation, the role of the Lord Advocate, Crown Counsel and procurators fiscal in the public interest and the specific relationships between the procurator fiscal and the police as being significantly different in Scotland.

Another argument advanced in favour of the status quo is the reverse of one of the arguments mentioned by the noble and learned Lord; namely, that the involvement of Ministers in the process ensured full accountability through the parliamentary process. That clearly indicates that, while a number of people undoubtedly share the view expressed by the noble and learned Lord, Lord McCluskey, that a Secretary of State should have no role to play in such proceedings, a significant body of other people take the entirely opposite point of view.

The committee also recorded that, There was no hard evidence that the present system was failing, indeed there was evidence that it worked well on the whole. The system should not be changed and possibly weakened simply because of a limited problem of public perception". It went on to record arguments in favour of the status quo; that, The main source of dissatisfaction stemmed not from the machinery for considering alleged miscarriages of justice but from the restrictiveness nature of the appeals criteria". The Government's reading of the report was much the same as that set out by the committee; that is, that, the arguments for and against change seemed fairly evenly balanced". That is clear from paragraph 5.28 of the report. Therefore the Government took the view that the terms of the report did not demonstrate an overwhelming pressure or compelling case for fundamentally changing our machinery for dealing with that type of case at the present time. On the contrary, the Government took the view that the committee's main concerns were with the appeal criteria, and those have been dramatically altered by the provisions of the Bill, as we discussed earlier this afternoon.

The Government's view was shared, as I understand it, by the noble and learned Lord, Lord Hope of Craighead, when the Bill received its Second Reading in your Lordships' House. We take comfort from that that the way forward we suggest is the correct one. It is to amend the appeal criteria and see whether, in the light of that, there continues to be any concern at all about the system for handling appeals in Scotland. We believe that there will not be. We also believe very firmly that if there is, and if there are individual cases for which there is a case for referral back to the appeal court, that should be done by the Secretary of State, who has a separate division in the Scottish Office dealing with alleged miscarriages of justice, and that he should be politically accountable to Parliament if, for any reason, a case is not referred back.

Such cases in Scotland are not frequent but they occur from time to time. The noble Lord, Lord Macaulay, mentioned one of them this afternoon. There are, as I understand it, currently two before the appeal court waiting to be heard. In those circumstances, while accepting that there are arguments for a review body or commission of the nature covered by the amendments, the Government are not persuaded that the arguments are compelling and that we should change in the way the English have decided to change. With that explanation, which the noble and learned Lord will understand but possibly not entirely agree with, I hope he will accept that at this stage there is no case for pressing on with the amendments.

I should say in conclusion that I do not seek to oppose the amendments on the technical ground that he mentioned because if it were the will of the Committee or of your Lordships' House to change the law, the Government would not stand in the way. The cost was mentioned. It is clearly not a huge sum of money. I do not use the cost as a reason for objecting to a commission. The reasons are that we consider that amended, as the appeal criteria will be, that is the way forward at the moment.

Lord McCluskey

I hope that those Members of the Committee who are interested in the administration of justice will take the opportunity to read Chapter 5 of the Sutherland Committee's report. The Lord Advocate has quoted some of the arguments against the proposal but the arguments for the proposal are set out fully in the report. I would simply refer to two of them, although there are others.

One of them is in amplification of the point I have already made; namely, that it is constitutionally inappropriate for the Secretary of State, a member of the executive, to play any part in the process, and in particular to exercise what amounts to a quasi-judicial role in such a process. The argument is summarised as follows: In particular concerns were raised about the Ability of a Government Minister to maintain a detached position in the face of what can be high profile and semi-political campaigns in particular cases". That was one of the arguments. I do not understand why it should be that the judgment in England is that the Secretary of State should withdraw from the process and that an independent body should be set up but that the Secretary of State for Scotland should continue with the role. I have experience of the operation of this and can endorse one of the other points that was made. That was in the following terms: While there was little specific criticism of the current arrangements it was deemed inappropriate that those agencies which had secured the original conviction were also responsible for investigating alleged miscarriages of justice in relation to that conviction". The most striking case of all is the case of Meehan. I know it extremely well because I was part of the prosecution team. I was very unhappy about aspects of that case. I have not made my unhappiness secret. I gave evidence about it both to the Hunter Committee on the Meehan case and also, I think I am correct in saying, before Sutherland. The case was not one of which the Crown Office can be proud—the prosecution of Meehan and the attempts that were made to block the advancement of his case. In due course, Meehan was released, but long before he was released the Secretary of State was approached and decided to investigate the matter. What did he do? He came to the Crown Office and asked the Crown Agent to investigate the matter. The Crown Agent, who had been heavily involved in the original prosecution, passed the matter to the Deputy Crown Agent, who was also heavily involved in the original prosecution. The investigation went on for quite a long time. In other words, the Secretary of State had no independent investigative powers at all. Of course the Crown Agent had very little in the way of independent investigative powers. So what did he do? He called in the police. The essence of the case of Meehan was that the police had fiddled the evidence, so the police then investigated themselves. Fortunately, owing to circumstances which are well known to those who are familiar with the Meehan case, eventually, someone having died, his solicitor was able to come forward and say, "Before he died, this man put me in possession of information which plainly shows that Meehan was not guilty." Accordingly, two fresh policemen were brought in, quickly discovered that that was so, and Meehan was able to be released.

The whole history of the Meehan case is one that indicates with great clarity the imperfections of the existing system. I agree that the Bill improves the appeal criteria, but it does not solve the underlying problem which is mentioned as one of the arguments; namely, that it is inappropriate that those agencies, whether the Crown Office or the police, that had secured the original conviction are also responsible for investigating the alleged miscarriage of justice.

It is in that same context that the report noted the argument that the current consideration of cases by the department was not rigorous, transparent or thorough enough. Of course there are arguments both ways, and the committee fairly set them forth. But the committee, which was a most distinguished committee, with prosecutors, policemen, a judge—in fact two judges as it turns out now—and others involved, some of the most knowledgeable people in Scotland on the question of criminal justice, unanimously recommended that this should be done. It is accordingly extremely disappointing to discover that the Government are not prepared to accept it. I hope that in future the matter will be considered yet again. In the meantime, I beg leave to withdraw the amendment. I shall not move Amendments Nos. 123 to 127.

Amendment, by leave, withdrawn.

[Amendments Nos. 123 to 127 not moved.]

6.15 p.m.

Lord McCloskey moved Amendment No. 128: After Clause 23, insert the following new clause— PREVENTION OF DELAY IN TRIALS (" .—(1) Section 65 (prevention of delay in trials) of the 1995 Act shall be amended as follows. (2) In subsection (1), the words from "forthwith" to the end of the subsection shall cease to have effect.").

The noble and learned Lord said: This amendment can be dealt with very briefly. In 1996 a court of five judges, which is the High Court of justiciary sitting in its full capacity, considered whether or not certain decisions taken earlier by courts of three judges were correct and finally decided to overrule those decisions. The five judge case was called Gardner v. Lees. Putting the matter shortly, the Bench of five judges unanimously declared that accused persons had a right, which I myself described as being of a constitutional character, not to be prosecuted if, having been charged on petition with a certain type of offence, the prosecution was not brought to a conclusion within 12 months.

We in Scotland are very proud of the fact that we have certain time limits on prosecutions. The most famous one is the 110-day rule. One cannot be detained in prison awaiting trial for more than 110 days. One must be brought to trial within that period. There are possible exceptions but they are very rarely encountered in practice. We took a great step forward in 1980 when we introduced the 12-month rule. A person charged with a serious offence on petition had to be brought to trial within 12 months of the charge. That person would usually be at liberty. The case of Gardner v. Lees decided, broadly speaking, that if he was not brought to trial within that period of 12 months he could not be brought to trial before a summary court.

That was the position taken by the court in January or February 1996. On 25th April 1996 the Minister responsible wrote to the Lord Justice General saying that he proposed to have the law amended in order to reverse the decision in the case of Gardner v. Lees. It was to be done not by means of Scottish legislation, but put into a new clause in the English Criminal Procedure and Investigations Bill. It was called at the time the paper was sent to the Minister the Criminal Procedure and "Investments" Bill.

The then Lord Justice General wrote in response, I appreciate why you may feel it appropriate to introduce this change in the legislation. On the other hand I think that some people may regard this as a more substantial and more contentious point on which wider consultation would have been appropriate. For this reason I would prefer not to be thought to be offering any support for it, at least for the time being". So there was no support offered by the then Lord Justice General and no other judge was informed or consulted about the matter.

I can inform the Committee that we did not know the legislation was proposed; we did not know that it had been enacted and I discovered it only from an article in a learned journal and brought it to the attention of Scottish judges at the weekly meeting. They thus discovered that effectively behind their backs the legislature had altered the constitutional right, as I called it, that had been recognised in Gardner v. Lees. That is not a proper way to legislate in relation to criminal justice in Scotland. I shall avoid using epithets that might give offence, but it was not a proper way to legislate. I suggest that the proper course is to repeal that legislation in the way that I now propose. If the Government wish to bring it forward on some other occasion, let us do it and then look at the constitutional and other implications. I beg to move.

Lord Mackay of Drumadoon

The noble and learned Lord's amendment seeks to reverse the law from what came into effect after the Criminal Procedure and Investigations Act became the law of the land. As he correctly indicates, the issue concerns the 12 months' period within which a trial must commence in solemn proceedings. As Members of the Committee know and as we have discussed on a number of occasions, in Scotland accused persons can be tried on a summary complaint before a sheriff who decides questions of guilt or innocence or before a district court that does likewise. Alternatively, a person can be tried before a jury either in the sheriff court or in the High Court.

If the accused sets out on a procedure which will take him to jury trial and is placed in petition, the law of the land is that the trial must commence within 12 months unless the period is extended. But on occasions accused persons set out on the petition route and have the cases reduced to summary trial which takes place in the sheriff's summary court. Prior to the case of Gardner v. Lees it had been understood for many years in Scotland that such summary trial need not begin before the expiry of the 12 months' limit in the same way as a man is put before the court on summary complaint and his trial need not begin within a 12 months' period.

But the Gardner v. Lees case decided in January 1996 reversed that understanding and held that if either the trial before a jury or the summary trial before a sheriff did not begin within the 12 months' period then no further proceedings were possible unless that period had been extended. That was a significant change to the law as it had been understood by the Crown, the defence and the court for many years. As a result, certain prosecutions fell by the wayside.

It lies within the power of the Crown to arrange for the trial before a jury to begin within 12 months by indicting the accused for trial at a sitting either of the High Court or the sheriff and jury court within the 12 months' period. However, if the charge is reduced to summary complaint the accused is called to plead guilty or not guilty. If he pleads not guilty a diet of trial is set some days or weeks hence. If for any reason the trial cannot proceed on that day the case is adjourned to another date and so on and so forth. It is quite possible that trials cannot get going within the 12 months' period.

The view is also taken that if it is not possible to reduce cases from solemn to summary trial, as we describe it in the Crown Office, and place the matter before the sheriffs summary court in the knowledge that the trial cannot begin after the 12 months' period, that might in some way act as a disincentive to the Crown to reduce the prosecution to the summary level in appropriate cases. Therefore, the Government took the view that an amendment was appropriate.

There was nothing underhand about the way the matter was put before Parliament. The Minister of State wrote to the then Lord Justice General, as the noble and learned Lord, Lord McCluskey, has indicated, and got the reply in the terms mentioned. He also wrote to the Opposition spokesman in another place on Scottish criminal matters, the honourable Member for Dunbarton, John McFall. He wrote to all other Members serving on the relevant standing committee on the Criminal Procedure and Investigations Bill.

The fact of the matter was that there was no opposition to this amendment. The Bill incorporated the change and as a result the law in Scotland was restored to what it was understood to be for many years prior to the case of Gardner v. Lees. The noble and learned Lord's new clause would seek to reverse the position and take us back to the decision in Gardner v. Lees. I hope the Committee will be satisfied that the Government have dealt with this matter in a responsible manner and that it will also be satisfied that there is good reason why the law should remain as it is. On that understanding and with that explanation, I hope that the noble and learned Lord will not press his amendment.

Lord McCluskey

I do not propose to pursue this matter any further. I do not dispute the right of the Government to come forward with legislation of this kind, but it is the method of doing it that I deplore. The Government knew by April of this year that they intended to introduce in the autumn the Bill now before the House; namely, the Crime and Punishment (Scotland) Bill. There was no reason whatever why that provision should not have been put into the present Bill. It was put into the English Bill, which escaped the notice of almost everyone. No consultation whatever preceded the Crown's decision to change that right. If notice was given to certain people it was not given, for example, in this House where the matter was just moved without any explanation. I regret very much that the Government chose to legislate in that way, whatever the merits of the particular cause. However, in the circumstances and at this hour I do not propose to say more about it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 p.m.

Lord Sewel moved Amendment No. 128A: After Clause 23, insert the following new clause— APPEALS BY THE LORD ADVOCATE: SIFTING (" . After section 108A of the 1995 Act, there shall be inserted the following section— "Appeals by the Lord Advocate: sifting. .—(1) The decision whether to grant leave to appeal for the purposes of section 108 and 108A of this Act shall be made by a Judge of the High Court who shall—

1. (a) if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and
2. (b) in any other case, refuse leave to appeal and give reasons in writing for the refusal.

(2) The documents referred to in subsection (1) above are— (a) the note of appeal lodged under section 110(1)(b) of this Act which shall—

1. (i) identify the proceedings;
2. (ii) contain a full statement of all grounds of appeals; and
3. (iii) be in the form prescribed in an Act of Adjournal;

(b) where the judge who presided at the trial furnishes a report under section 113 of this Act, that report; and (c) where, by virtue of section 94(1) of this Act, a transcript of the charge to the jury of the judge who presided at the trial is delivered to the Clerk of Justiciary, that transcript. (3) Where leave to appeal is refused under subsection (1) above the Lord Advocate may, within 14 days of intimation under subsection (6) below, apply to the High Court for leave to appeal. (4) In deciding an application under subsection (3) above the High Court shall

1. (a) if, after considering the documents mentioned in subsection (2) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and
2. (b) in any other case, refuse leave to appeal and give reasons in writing for the refusal.

(5) Consideration whether to grant leave to appeal under subsection (1) or (4) above shall take place in chambers without the parties being present. (6) Comments in writing made under subsection (1)(a) or (4)(a) above may, without prejudice to the generality of those provisions, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted. (7) Where the arguable grounds of appeal are specified by virtue of subsection (6) above it shall not, except by leave of the High Court on cause shown, be competent for the Lord Advocate to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified. (8) Any application by the Lord Advocate for the leave of the High Court under subsection (7) above—

1. (a) shall he made not less than seven days before the date fixed for the hearing of the appeal; and
2. (b) shall not less than seven days before that date, be intimated by the Lord Advocate to the accused and his solicitor.

(9) The Clerk of Justiciary shall forthwith intimate—

1. (a) a decision under subsection (1) or (4) above; and
2. (b) in the case of a refusal of leave to appeal, the reasons for the decision,

to the Lord Advocate, the Crown Agent, the accused or his solicitor.".").

The noble Lord said: This may appear to be a rather long and wordy amendment, but I hope that I can be brief in speaking to it. Its effect is simple and straightforward. It seeks to introduce a sifting process into appeals by the Lord Advocate. As the Committee will be aware, under the provisions of Section 107 of the Criminal Procedure (Scotland) Act 1995, an appeal by a convicted person is subject to a sifting process by a High Court judge. Simply on the argument of balance, this amendment seeks to introduce an analogous procedure for appeals by the Crown. Essentially, the decision on whether to grant leave to appeal for the purposes of this Act would be made by a judge of the High Court. The process is detailed in the amendment. Where the judge decides to refuse leave to appeal, the Lord Advocate would have a further right of appeal within 14 days to the High Court.

One of the concerns behind the amendment is that—and I have to say this—appeals by the Lord Advocate on the ground of undue leniency have recently been criticised by the courts. In the case of Her Majesty's Advocate v. Ross 1996, Lord Justice Clerk Ross stated: It is to be hoped that the court is never again asked by the Lord Advocate to consider a note of appeal … which is so inaccurate and misleading". In the case of Her Majesty's Advocate v. McKay 1996, the Lord Justice General, now the noble and learned Lord, Lord Hope, stated: The court is entitled to demand from the Lord Advocate and his advisers a high standard of care and accuracy … in the handling of these appeals … in the present case we are bound to say that that high standard … has not been achieved".

In all those circumstances, I think that there is a strong prima facie case that the judgment of the Lord Advocate in seeking to appeal should be subject to the same sort of sifting process as applies to the prosecution. There are legitimate grounds for concern in the recent history of appeals made by the Lord Advocate, but I think that the case can also be made on the grounds quite simply that what is good for the defence ought to be good for the Lord Advocate also. I beg to move.

Lord Hope of Craighead

I do not want to go over old ground with which the noble and learned Lord will be familiar, but I was careful in the case of McKay to say that I was not suggesting that the Lord Advocate should be subjected to the sifting process. I think I recall saying that one of the reasons for taking that view was the confidence which the court reposed in the decisions by the Lord Advocate over whether or not to appeal.

The criticism was more on matters of procedure than on whether it was right that the Lord Advocate's decisions should be subject to the sifting process.

As always, it is a question of balance. One point which the Committee may wish to take into account is that the sifting process occupies a certain amount of time. One has only to read through the proposed clause to see that various steps have to be carried out. It slows the process down. In particular, in cases where the Lord Advocate is seeking to have reviewed as unduly lenient a sentence which has been passed on an accused person, there is considerable urgency in bringing the matter before the court without undue delay, as I mentioned earlier, before the sentence has been served.

Therefore, I caution the Committee against accepting this amendment on the ground that it might slow things down to an unsatisfactory extent. I have no doubt that the Crown Office will have taken on board the criticisms which in the early days of the procedure were levelled at the Crown. For my part, I would rather leave the matter on the basis explained in McKay—that these decisions are not lightly taken by the Lord Advocate, that confidence can be left where it resides and that the matter should be brought before the court as quickly as possible in those cases where the Lord Advocate thinks that a view of the court is required.

Lord Mackay of Drumadoon

I am grateful to the noble and learned Lord, Lord Hope, for that contribution. I do not think that it would be productive for me to go into the two cases to which reference has been made, particularly the case of McKay, which was an appeal abandoned by the Lord Advocate some four months after it had been marked when the report of the trial judge came to hand. The Crown did not insist on the appeal and did not make any submissions on that occasion. It would be unfortunate to go into the detail of what was said then.

As the noble and learned Lord, Lord Hope, made clear, these matters are considered by Law Officers and, in particular, by the Lord Advocate. The procedure that is followed is that a report is obtained from the Advocate Depute who conducted the trial or presented the facts on behalf of the Crown if it is a plea of guilty, or from the procurator fiscal in a sheriff court case. They are considered within the Crown Office by, among others, the appropriate Advocate Depute and the Law Officers. They are not marked lightly. I gave the Committee the figures the other night of how many such cases there had been since the power came into effect. The total was 31, which has now increased to 32 in the light of the appeal which has now been marked.

One is not seeking to compare like with like. In the appeals marked by the Lord Advocate, it requires to appear to the Lord Advocate that the sentence is unduly lenient, as is set out in Section 108, or that some point of law arises. That will be the position of the Lord Advocate in the light of the report that he has been given by the trial depute. It is something which could not conceivably be before the sifting judge. It would be entirely inappropriate for the Lord Advocate to lay before the sifting judge an opinion as to the merits of an appeal in the same way that the opinions of defence counsel come before the second stage of the sift. In the sift, the court has to be concerned with arguable grounds of appeal on an entirely different test from that which the Lord Advocate has to satisfy.

There may have been some difficulties in the early stages and it may be that some of the criticisms about the paperwork were merited. However, as I said earlier—I know that the noble and learned Lord, Lord Hope, will bear this out—these matters are discussed regularly between the Lord Advocate of the day and the Lord Justice General of the day. I do not think that it would be productive to discuss the detail on the Floor of this Committee. With that assurance that these matters are treated seriously and that we are not seeking to compare like with like, I hope that the noble Lord will withdraw his amendment.

Lord Sewel

I have listened to what both noble and learned Lords have said, and particularly to what was said by the noble and learned Lord, Lord Hope. I take fully on board his point about the need to resolve the matter quickly, especially before the sentence has run out and is served. As has been said, this is a question of balance. One must weigh things in the balance in order to decide on which side one comes down. I should have thought that there was enough experience of how the matter of appeals against leniency has gone in the past to persist with the introduction of a sifting mechanism and therefore I seek the opinion of the Committee on this issue.

6.39 p.m.

On Question, Whether the said amendment (No. 128A) shall be agreed to?

Their Lordships divided: Contents, 60; Not-Contents, 89.

Division No. 1
CONTENTS
Addington, L.	Grey, E.
Barnett, L.	Harris of Greenwich, L.
Berkeley, L.	Haskel, L
Blackstone, B.	Hilton of Eggardon, B.
Blease, L.	Hughes, L.
Brooks of Tremorfa, L.	Jay of Paddington. B.
Bruce of Donington, L.	Jenkins of Putney, L.
Calverley, L.	Lockwood, B.
Carlisle, E.	Longford, E.
Carmichael of Kelvingrove, L.	Macaulay of Bragar, L.
Carter, L.	McCarthy, L.
Cocks of Hartcliffe, L.	McIntosh of Haringey, L.
David, B.	Mackie of Benshie, L.
Dormand of Easington, L.	McNair, L.
Falkland, V.	McNally, L.
Farrington of Ribbleton, B.	Mar and Kellie, E. [Teller.]
Gallacher, L.	Merlyn-Rees, L.
Gladwin of Clee,L.	Meston, L.
Gould of Potternewton, B.	Milner of Leeds, L.
Graham of Edmonton, L. [Teller.)	Molloy, L.
Grenfell, L.	Monkswell, L.

Morris of Castle Morris, L.	Smith of Gilmorehill, B.
Nicol, B.	Stoddart of Swindon, L.
Peston, L.	Strabolgi, L.
Ramsay of Cartvale, B.	Taylor of Blackburn, L.
Rodgers of Quarry Bank, L	Thomas of Gresford, L.
Sefton of Garston, L.	Thomas of Walliswood, B.
Serota, B.	Tordoff, L.
Sewel, L.	Turner of Camden, B.
Shepherd, L.	Winchilsea and Nottingham, E.

NOT-CONTENTS
Addison, V.	Long, V.
Ailsa, M.	Lucas, L.
Alexander of Tunis, E.	Lucas of Chilworth, L.
Anelay of St. Johns, B.	Luke, L.
Ashbourne, L.	Lyell, L.
Attlee, E	McConnell, L.
Balfour, E.	Mackay of Ardbrecknish, L.
Beloff, L.	Mackay of Drumadoon, L.
Belstead, L.	Macleod of Borve, B.
Blatch, B.	Marlesford, L.
Brentford, V.	Mersey, V.
Brookes, L.	Miller of Hendon, B.
Byford, B.	Milverton, L.
Carnegy of Lour, B.	Mottistone, L.
Carnock,L.	Mountevans, L.
Charteris of Amisfield, L.	Mowbray and Stourton, L.
Chesham,L. [Teller.]	Munster,E.
Clark of Kempston, L.	Napier and Ettrick, L.
Clyde, L.	Northesk,E.
Courtown,E.	O'Cathain,B.
Cox,B.	Onslow, E.
Cranborne, V. [Lord Privy Seal]	Orr-Ewing, L.
Crickhowell, L.	Park of Monmouth,B.
Crickhowell, L.	Peason of Rannoch, L.
Dean of Harptree,L.	Pender, L.
Denbigh, E.	Platt of Writtle,B.
Dilhorne,V.	Plumb,L.
Dundee, E.	Prentice, L.
Eden of Winton,L.	Rankeillour, L.
Effingham,E.	Rennell,L.
Elliott of Morpeth,L.	Renton,L.
Ferrers,E.	Seccombe,B.
Gardner of Parkes, B.	Sharples, B.
Greenway,L.	Shaw of Northstead, L.
Harlech, L.	Skelmersdale, L.
Hayhoe, L.	Stewartby, L.
Henley, L.	Strathclyde, L. [Teller.]
Hogg, B.	Taylor of Warwick, L.
HolmPatrick, L.	Thomas of Gwydir, L.
Hooper, B.	Trumpington, B.
Hope of Craighead, L.	Vivian, L.
Inglewood, L.	Weatherill, L.
Kimball, L.	Wise, L.
Lauderdale, E.	Wynford, L.
Lindsay, E.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.48 p.m.

Clause 24 [Evidence concerning certain orders]:

Lord Macaulay of Bragar moved Amendment No. 129: Page 30, line 42, leave out ("subsection") and insert ("subsections"). The noble Lord said: I apologise to the Committee for not immediately having my notes to hand. I understood that my noble friend Lord Sewel would move this amendment. I formally move Amendment No. 129 and wait for the Government's response. I beg to move.

The Earl of Mar and Kellie

Although this matter has not been spoken to, I suggest that this amendment is very much within the spirit of a probation order. I justify that comment on the grounds that before a probation order is made the potential probationer has the likely provisions of such an order fully explained to him during the writing of the social work report. The individual goes to court, the probation order is made and he is formally told the conditions of that order. At the third stage while the social worker is serving the order he will ensure that the person concerned fully understands the conditions that have been imposed by the court. On that basis I support the amendment, which seeks to do much the same in the event of an offender breaching one of the conditions of his probation order.

Lord Mackay of Drumadoon

My speaking note says that I am obliged to the noble Lord, Lord Sewel, for his explanation, but perhaps I should not dwell on that. Clearly, it is desirable for some notice to be made available to those who are to be brought before the court. I am sure that Members of the Committee do not require to be reminded that there are existing provisions in the Criminal Procedure (Scotland) Act 1995 which allow that to be done.

I am not convinced that the amendment would be an advantage, in particular when one looks at the detail of Amendment No. 130. It is not entirely clear what "supporting papers" might mean, nor what time limits are to be used to determine whether the supporting papers are sufficient notice or otherwise to the person who has been suspected of being in breach. Clearly, there would be problems in having such general terms on the face of the Bill.

In my submission, the current procedure is satisfactory. It gives adequate notice to the offender that he is in breach of probation. If when he comes before the court there is any dispute about the matter, it will have to be clarified then. The sheriff or the judge could not proceed to deal with the offender unless he was satisfied that there had been a breach. Clearly, that would require some information to be placed before him in open court in order to be satisfied that the offender accepted the acts alleged against him.

The amendments are believed to be unnecessary and, as regards Amendment No. 130, unworkable. I hope that with that explanation the noble Lord will not insist upon the amendment.

Lord Macaulay of Bragar

I am grateful to the noble and learned Lord the Lord Advocate for his explanation, which I am sure will be read with interest by those who are directly involved with these matters. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 agreed to.

Lord Mackay of Drumadoon moved Amendment No. 130A: Before Clause 25, insert the following new clause— (" . After section 255 of the 1995 Act there shall be inserted the following section— "Proof of age Proof of age. 255A. Where the age of any person is specified in an indictment or a complaint, it shall, unless challenged— (a) in the case of proceedings on indictment by giving notice of a preliminary objection under paragraph (b) of section 72(1) of this Act or under that paragraph as applied by section 71(2) of this Act; or (b) in summary proceedings—

1. (i) by preliminary objection before the plea of the accused is recorded; or
2. (ii) by objection at such later time as the court may in special circumstances allow,

be held as admitted.".").

The noble and learned Lord said: the purpose of this provision is to avoid the need for the prosecutor to lead evidence of the unchallenged age of any person whose age is specified in an indictment or complaint in criminal proceedings.

I consulted the Lord Justice General for Scotland before I tabled the clause and I am happy to confirm that he is content that the proof of the age of any person whose age is specified in a complaint or indictment should be held to be admitted unless challenged.

The age of victims and complainers and of an accused person may require to be specified in a complaint or indictment. That arises in particular in relation to sexual crimes involving people under the age of 16. Proof of the age is normally achieved by the lodging of the birth certificate coupled with evidence from the witness, his mother, father or other relative. This evidence is very rarely challenged as to substance.

If there is any challenge to be made then, as I have indicated, the new clause enables this to be addressed and the prosecutor would have to read evidence to meet it. This means that the interests of the accused person and the interests of justice are served without the need to lead unnecessary evidence. I beg to move.

Lord McCluskey

I welcome the clause. It is an example of the kind of enactment which could be used more freely in order to shorten trials. The noble and learned Lord the Lord Advocate and perhaps others will be aware that in this regard I have made a number of submissions, on one occasion with the support of the Scottish Law Commission, and we have discussed them on earlier occasions. However, it appears to me that many more facts are capable of being isolated and dealt with in this way so that we proceed to a trial which is about the real issue and not about matters which are not truly in dispute. I welcome this modest step in the right direction.

On Question, amendment agreed to.

Clause 25 [Evidence from certain official documents]:

[Amendments Nos. 130B to 132A not moved.]

Clause 25 agreed to.

Clause 26 [Evidence of vulnerable persons: special provisions]:

Lord Mackay of Drumadoon moved Amendment No. 132B: Page 34, leave out lines 8 to 11 and insert— ("(b) any person of or over the age of 16 years—

1. (i) who is subject to an order made in consequence of a finding of a court in any part of the United Kingdom that he is suffering from mental disorder within the meaning of section 1(2) of the Mental Health (Scotland) Act 1984, section 1(2) of the Mental Health Act 1983, or Article 3(1) of the Mental Health (Northern Ireland) Order 1986 (application of enactment); or
2. (ii) who is subject to a transfer direction under section 71(1) of the 1984 Act, section 47 of the 1983 Act, or Article 53 of the 1986 Order (transfer directions); or
3. (iii) who otherwise appears to the court to suffer from significant impairment of intelligence and social functioning.").

The noble and learned Lord said: The amendment falls to be taken with Amendments Nos. 133 and 134 and raises the important issue of vulnerable witnesses. It was my understanding that we would deal with the amendment after the dinner hour. I am not complaining and I am happy to continue, but the amendment will take some time. I hope that all Members of the Committee are aware of that. I am primarily concerned to move Amendment No. 132B standing in my name on the Marshalled List, but for the convenience of the Committee I intend to speak also to Amendments Nos. 133 and 134.

The latter two amendments, while somewhat similar in intention, are in origin and effect rather different. I hope that the Committee will bear with me while I endeavour to assist it in considering this important series of amendments to a clause which attracted considerable debate in another place.

In November 1996, "Frontline Scotland", a television programme produced by and shown on BBC Scotland, highlighted the issue of vulnerable witnesses. Following upon the showing of that television programme, I initiated a consultation exercise designed to seek views about the existing special procedures for taking the evidence of child witnesses to see whether they should be extended to witnesses suffering from various forms of mental impairment.

I did so in the knowledge that expectations would thereby be raised that the Government might be prepared to consider extension to all witnesses who could be shown to be or claim to be suffering from a mental illness. The clause and amendments tabled in my name represent the Government's response after giving very full consideration to all the issues.

I take the view that to go further, as do the amendments tabled by the noble Lord, Lord Macaulay, and the noble and learned Lord, Lord McCluskey, would amount to too great an intrusion into the procedures of our criminal trials in Scotland and to a step which should not be taken at this stage. The basic principle underlying our criminal procedure is, as Members of the Committee will appreciate, that a witness in a criminal trial should give evidence in person in the courtroom, unless that witness's evidence is a matter of agreement.

The reasons are obvious, but perhaps I should restate them. Evidence given by a witness who is personally present in the courtroom visible to everyone, including the accused, is the best method by which that evidence can contribute to an inquiry into the facts. It is the best way in which that evidence can be tested as to its fullness, authenticity and credibility. It is one of the fundamental ways in which our system of justice seeks to ensure that justice is done by ensuring that witnesses who give evidence in a criminal trial, whether they be called for the Crown or for the defence, should be subject to examination-in-chief by the party who calls them, to subsequent cross-examination, if that is wished, and to any re-examination, if that is wished in the event of cross-examination taking place. We believe that any departure from that is justifiable only when it is absolutely clear that it is in the interests of justice to permit it and there are valid reasons for promoting it.

Another principle underlying our system in Scotland is the need for relative speed in dealing with cases, and mention of that was made earlier this evening. I comment on that in the context of these amendments because the effects of the amendments which other Members of the Committee have tabled will be to require the criminal court, before it commences a trial of the accused person, to embark upon an investigation of the mental health of a potential witness.

There may be an argument that that exercise would not necessarily be beneficial to the witness concerned. But it also raises the question of whether witnesses not subject to any form of mental health order should become the subject of almost informal proceedings under the Mental Health Acts in which a view is being taken by a court as to the status of the mental health of the witness and as to whether he might fit within one of the orders when he is in no sense party to the proceedings which are taking place.

Therefore, there are procedural complications in a situation where the witness concerned might not necessarily welcome or co-operate with what is going on. There may also be other complications. We believe that a balance must be struck and the balance is in favour of the approach set out in the amendment in my name, which effectively limits the extension of the vulnerable witness provisions to those as regards which there have been mental health orders of one sort or another.

I believe that the amendments which other Members of the Committee have tabled will extend the category of witness who is able to use the procedures currently available for child witnesses to such an extent that it will leave the system open to widespread increase in its use. As the honourable Member for Greenock and Port Glasgow pointed out on Report in another place, it also leaves the system open to potential abuse. We should not take such risks.

I have explained the position which will apply to the amendment in my name which refers to the provisions of various mental health statutes and as I say, I believe that it strikes an acceptable balance.

I appreciate that there may be some disappointment on the part of other Members of the Committee and those who have asked them to promote alternative amendments. But I hope that the Committee will be persuaded that my amendment goes far enough. On that basis, I beg to move.

7 p.m.

Lord McCluskey

I wonder whether the noble and learned Lord the Lord Advocate will assist me in one regard. Unfortunately, I have omitted to bring Section 1(2) of the Mental Health (Scotland) Act 1984 with me. No doubt the noble and learned Lord has a copy to hand. It reflects the English and Northern Ireland legislation.

My recollection is that that deals with fairly serious mental illness of a kind which includes or is very close to insanity. Does the kind of illness which falls within the meaning of Section 1(2) of the 1984 Act include depressive illnesses which would not result in any form of certification, or nervous illness of that character?

Lord Mackay of Drumadoon

I do not have that section readily to hand. I shall look at it during the dinner hour. My recollection is that it does not.

On Question, amendment agreed to.

The Earl of Courtown

I beg to move that the House be resumed. In moving this Motion, I suggest that the Committee stage begin again not before five minutes past eight o'clock.

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

House resumed.