| Previous Section | Home Page |
Mr. McFall: I draw particular attention to amendments Nos. 167 and 168. Amendment No. 167 would ensure that an accused person who is subject to judicial examination should have access to a summary of information upon which the Crown is basing its case. At a judicial examination, the prosecutor can ask an accused person about an extra judicial admission only if the accused has received a copy of the written record of the confession.
Under the terms of the Bill, the prosecutor will be able to ask questions designed to elicit an admission. Amendment No. 167 would redress the balance between the prosecutor and the accused in judicial examination by ensuring that such questions can be asked only if the accused has also received a copy of the summary of evidence. If the prosecution has the right and the entitlement to ask questions in order to elicit an admission, surely the defence has the right to object to that. The defence should know the facts upon which the prosecution is relying and, with that in mind, we tabled amendment No. 167.
Under the terms of the Bill, the defence can say something only with the permission of the sheriff and the accused can be asked questions for the purpose of clarification only with the permission of the sheriff. Amendment No. 168 would eliminate the need to ask the sheriff's permission and add the accused's right to object. In that spirit, I commend the amendments to the House.
Lord James Douglas-Hamilton: I am afraid that I fail to see the need for amendments Nos. 166, 167 and 168, despite the explanations offered by the hon. Member for Dumbarton (Mr. McFall). The main amendments that the Bill will make to the judicial examination process are limited to trying to ensure that the prosecutor can ask the accused a simple question to which the accused can give
Column 256
a straightforward answer. That being the case, I do not see why we need to change any of the fundamental aspects of the process. It would be entirely premature to provide a summary of evidence at judicial examination stage. The judicial examination takes place at a very early stage of the process, soon after the accused has been arrested and charged. At that stage, the prosecution will often not be in a position to give a full summary of how it intends to proceed--the hon. and learned Member for Fife, North-East (Mr. Campbell) will know that from his experience as an advocate-depute. I do not believe that there would be any advantage in the accused having such a summary at that stage, and there could be no question of the Crown being limited to proceeding only on the basis of such evidence as may be available at the time of the judicial examination.I also cannot see the advantage of amendment No. 168, which would amend clause 10 by providing an enhanced role for the accused's solicitor in the process of the judicial examination. A clear duty is placed on the sheriff by the statute to ensure that the procedure is undertaken in a manner that is fair to the accused so that he or she understands fully what is being asked. To tinker with that system by introducing a more extensive role for the legal representative of accused persons in objecting to the questions put to the accused by the prosecutor would be to alter the nature of the process unnecessarily.
In the event that it is thought that anything said by the accused in the course of a judicial examination has been extracted by unfair or improper means--despite the fact that the procedure is under the control of the sheriff--it would be open to the defence, at either a first or preliminary diet, or indeed at the trial itself, to challenge the evidential value of the judicial examination. I believe that there are perfectly adequate safeguards for the accused, and, in those circumstances, I urge that the amendments be withdrawn. 6.15 pm
Mr. Menzies Campbell: I understand the practicalities of asking the prosecution to provide all the details of the evidence upon which it intends to rely. However, the amendment is not exclusive, in the sense that the prosecution would be debarred in some way from relying on other information at another stage. It occurs to me that there may be an imbalance, in that the accused is expected to state his defence but the prosecution is not obliged to state the terms of the prosecution, other than the bald narrative of the charge no doubt contained in the petition warrant.
Therefore, the Minister should consider the fact that at that stage the accused is obliged to come clean--to put it colloquially--but, apart from the terms of the charge, the prosecution is not asked to do likewise. Looking at the matter from the point of view of fairness--which is always the ultimate test in procedures of this kind--we should ask whether it might be possible to provide the accused with something along the lines suggested by the amendment. The Minister knocked the amendment aside rather baldly, but I think that it deserves further and more detailed consideration than he felt able to give it.
Lord James Douglas-Hamilton: With the leave of the House, I will answer the hon. and learned Member for Fife, North-East (Mr. Campbell). The questions asked of
Column 257
the accused will be very simple and straightforward. The amendment is difficult because it requests a summary of evidence at a time when the prosecution may not have all the evidence readily available. If it is a serious case, such as a murder case, additional information may become available later in the course of the investigation and we must remember that judicial examination takes place at a very early stage in the proceedings.For those reasons, it is not appropriate or wise to impose a cumbersome process upon the prosecution. We must balance the interests of justice with fairness to the accused, and I suggest to the hon. and learned Member that the effects of the amendments would not be in the best interests of justice.
Mr. Campbell: I shall intrude upon your discretion and respond briefly to the Minister's comments if I may, Mr. Deputy Speaker. The Minister does not understand that there is no exclusivity. The amendment does not say that, having stated its case, the Crown could never go beyond the terms of that case in the future.
I do not think that the Minister has directed his attention to the fact that a person is arrested and charged with an offence only because there is at least prima facie evidence from corroborated sources as to his or her guilt. To that extent, by the time that an individual appears at the judicial review, the prosecution must know the evidence on the basis of which it has been thought fit to charge that individual.
Lord James Douglas-Hamilton: I do not think that what the hon. and learned Gentleman says is in the interests of justice for the simple reason that, if the prosecution puts forward its case at a very early stage and it then emerges that there is a great deal more evidence that it was unaware of and the case involves other matters as well, the defence could argue in the trial that the prosecution did not put forward the case fully and properly at the time of the judicial examination. The prosecution may not have been in a position to do that. The hon. and learned Gentleman would be imposing upon the prosecution a cumbersome and onerous process which would not be in the best interests of justice.
Mr. McFall: I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn.
Clause 13
First and preliminary diets in solemn proceedings
Amendments made: No. 51, in page 9, line 6, leave out `76' and insert `67'.
No. 52, in page 9, line 32, leave out `discharge' and insert `postpone'.
No. 53, in page 10, line 17, leave out `discharge' and insert `postpone'.
No. 54, in page 10, line 25, leave out `discharge' and insert `postpone'.-- [Lord James Douglas-Hamilton.]
Column 258
Clause 14
Intermediate diet in summary proceedings
Lord James Douglas-Hamilton: I beg to move amendment No. 55, in page 10, leave out lines 29 and 30.
Mr. Deputy Speaker: With this, it will be convenient to discuss also Government amendments Nos. 56 and 58.
Lord James Douglas-Hamilton: Clause 14 provides, among other things, for intermediate diets to be mandatory in summary proceedings. The amendments ensure that the Secretary of State will have the power to introduce the new diets gradually, court by court and, if appropriate, to disapply the provisions in particular courts.
Gradual introduction will permit monitoring and evaluation of the diets to be carried out before they are introduced throughout Scotland. If it is deemed appropriate, certain courts may not be required to hold such diets if it is clear that they would be of no practical value.
Amendment agreed to.
Amendments made: No. 56, in page 10, leave out from beginning of line 42 to end of line 2 on page 11.
No. 57, in page 11, line 7, leave out `discharge' and insert `postpone'.
No. 58, in page 11, line 16, at end insert--
`(4) The foregoing provisions of this section shall have effect as respects any court prescribed by the Secretary of State by order, in relation to proceedings commenced after such date as may be so prescribed, with the following modifications--
(a) in subsection (1), for the word "may" there shall be substituted "shall, subject to subsection (1E) below,"; and (b) after subsection (1) there shall be inserted the following subsections--
"(1E) If, on a joint application by the prosecutor and the accused made at any time before the commencement of the intermediate diet, the court considers it inappropriate to have such a diet, the duty under subsection (1) above shall not apply and the court shall discharge any such diet already fixed.
(1F) The court may consider an application under subsection (1E) above without hearing the parties.".
(5) An order under subsection (4) above shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.-- [Lord James Douglas- Hamilton.]
Clause 17
Exceptions to the rule that hearsay evidence is inadmissible
Lord James Douglas-Hamilton: I beg to move amendment No. 59, in page 14, line 45, leave out "other".
Clause 17 is one of four clauses introduced in Committee to implement the recommendations contained in a report by the Scottish Law Commission, "Evidence--Hearsay Evidence in Criminal Proceedings", which was published on 23 February.
The amendment arises from our further consideration of the clauses. It will permit any party to the proceedings in which a hearsay statement has been admitted to seek the leave of the court to lead additional evidence. Clause 17(9) currently restricts that right to any party other than the party leading the evidence of a hearsay statement.
I hope that the amendment will accordingly be welcomed by the House.
Amendment agreed to .
Column 259
Clause 21
Evidence of biological material
Lord James Douglas-Hamilton: I beg to move amendment No. 60, in page 16, line 46, after `material' insert
`deriving from human beings or animals'.
In fairness to the hon. Member for Linlithgow (Mr. Dalyell), I should say that the amendment is a concession to him, as I resisted everything else he proposed, particularly on Lockerbie. The hon. Gentleman wanted a better definition of "biological". We have responded to that, as he had a valid point. We have made it beyond doubt that references to biological material do not include material of botanical origin, such as drugs, but refer only to material deriving from human beings or animals. That is the clarification that the hon. Gentleman sought, and I commend the amendment to the House. Amendment agreed to .
Clause 32
Comment by prosecutor on accused's failure to give evidence
Mr. McFall: I beg to move amendment No. 169, in page 26, line 4, at end insert--
`(2) The prosecutor shall only be permitted to comment on the failure of the accused to give evidence in any proceedings against him if--
(a) the accused has intimated a special defence of alibi or incrimination; or
(b) the court has upon application being made agreed that it is appropriate in the circumstances of the case that the prosecutor should be entitled so to comment.'.
The amendment relates to clause 32. It concerns the right of the prosecutor to comment on the defence's failure to give evidence. As was mentioned in Committee, it is an important measure, which has drawn sharp criticism from the legal fraternity.
When I mention the legal fraternity, perhaps I should mention one of its members who advises all parties in the House, irrespective of stance-- Michael Clancy of the Law Society. We value Michael's assistance greatly over the months and years. Michael has been ill recently, but he is recovering, and today he was in the Box under the Gallery watching the deliberations. Both sides of the House are grateful to Michael for the assistance that he has provided. I know that the Minister, in particular, agrees with me, but it is nice to have recorded in Hansard the assistance that he gives all parties in the House, not least on the issue of the right of the prosecution.
The Law Society, among others, feels strongly about the issue. The amendment seeks to circumscribe the occasions when the prosecutor can comment on the defence's failure to give evidence. It has been suggested in the press in Scotland by eminent legal writers that the scales of justice are being tipped in favour of the prosecution rather than the defence by the introduction of the clause. The Opposition agree with that view, and ask the Government seriously to consider the issue so that the scales of justice are finely balanced again, and are neither in favour of the prosecutor or the defence.
Column 260
Without the amendment, the prosecutor will be able to comment on the accused's silence on a particular issue. That will give the prosecutor more power and leeway than the judge has at present. That cannot be in the interests of fairness and the law.We should consider what could happen in the case of an over-zealous prosecutor. The point was drawn to the attention of the Minister before, but he gave an inadequate answer. If there is an over-zealous prosecutor, the judge could comment on that, but by commenting on it, he would be bringing to the attention of the jury the fact that the prosecutor mentioned it in the first place, so the judge would be reinforcing it. It would be in the mind of the jury throughout the trial and when it decided the verdict. That is an important point that I would like to get across to the Minister in the amendment. There is a considerable amount of case law relating to the right of the court to comment on the accused person's silence at trial. Those cases clarify the circumstances when the judge may comment. The prosecutor should be subject to the same restrictions as the judge. The amendment would ensure simply that the prosecutor's right to comment is no wider than that of the judiciary.
In September, the Government published a consultation paper: "The right to silence, judicial examination and evidence of previous convictions".
It was a hastily produced document. One has it in mind that it was based on the position in England and Wales, and the Government sought to align the position in Scotland with that in England and Wales. I submit to the Minister that the legal system in Scotland is unique, that we do not need to copy England and Wales, and that the Government undertook a hasty measure when they produced their document last September.
Judges have been drawing attention to the accused's silence since 1918 in the case of Brown v. Macpherson, when Lord Justice General Strathclyde said:
"the judge may, and in my opinion should, in exceptional cases comment upon the fact . . . that an accused"
failed to give evidence or go into the witness box.
There are other cases since that time have developed that case law such as Scott v. Hon. Member Advocate in 1946, Stewart and others v. Hon. Member Advocate in 1980 and McLean and Canning v. Hon. Member Advocate in 1993. So the judge can comment on cases. The law is clear that judicial comment can only be made when special defences of alibi or incrimination have been entered,, where it is clear that the accused knows certain facts unknown to anyone else or where inference of guilt can be drawn from the unanswered Crown case. If the judge is constrained by case law to comment on the failure of the accused to enter the witness box, why will not the prosecutor be similarly constrained? Why are the Government offering the prosecutor an excess not available to the judiciary? Such a constraint would help to balance the scales of justice.
The right to silence has existed more than 100 years, since the Criminal Procedure Act 1887--so why in 1995 are the Government overturning that right and tipping the balance in favour of the prosecution? The Government have no credible case, and it ill behoves them to proceed without adequate explanation. It is important to maintain public confidence in Scotland's criminal justice system,
Column 261
and the Government's proposal would be a small step to reducing it. It would not serve the interests of justice, and I ask the Government to reconsider.6.30 pm
Lord James Douglas-Hamilton: The hon. Gentleman was right to pay tribute to the Law Society, which has been diligent in making representations to all parties, and to Michael Clancy--for whose help to right hon. and hon. Members we are most grateful. We wish him a speedy recovery.
Clause 32 removes the prohibition on the prosecutor's right to comment on the failure of the accused to give evidence on his own behalf. We have promoted that change because we believe it right that the prosecutor should be able to draw to the jury's attention, with the proper degree of care and balance, what may be an important element of the case before them. The clause gives the prosecutor the right to comment in all such situations. That follows the recommendations of the Thomson committee.
We believe that the prosecutor can be relied on to use the discretion appropriately and sparingly. To emphasise that, my noble and learned Friend the Lord Advocate has undertaken to issue guidance to procurators fiscal on the use of the right to comment. The system provides perfectly adequate safeguards against the possibility of the prosecutor going too far in his comments. The prosecutor's right to comment will be no wider than that of the judge. If the prosecutor were to go too far--I emphasise our belief that that will be very much the exception--it will be open to the judge to draw that to the attention of the jury in his charge, and to direct them accordingly.
Mr. McFall: If the prosecutor is over-zealous, it will be the judge's place to correct him--but by doing so, the judge will have brought the situation to the jury's attention on two occasions. Rather than allow such flexibility for the prosecutor, is it not necessary to issue guidelines to which prosecutors could work? Without them, there will be no adequate safeguard.
Lord James Douglas-Hamilton: That is the purpose of the guidance that my noble and learned Friend will issue to prosecutors, which will be of substantial assistance.
In cases of defences of alibi and self-defence, the judge's ability to comment is not limited to the examples quoted by the hon. Gentleman of the kinds of situation in which comment might be made. In the final analysis, it will be open to the accused to seek leave to appeal against any ensuing conviction or sentence if it is thought that the prosecutor's comments might have led to a miscarriage of justice. Neither limiting the right to comment to situations where special defences have been intimated nor requiring the court to take a decision in advance of the prosecutor commenting on the failure to give evidence is a sensible way to proceed.
Even if there were some merit in that approach, I am unclear why it should be thought appropriate to list only the special defences of alibi and incrimination in this amendment, and exclude the other special defences, including that of self-defence. Seeking to introduce the
Column 262
unusual and imperfect procedures in the amendments would not add anything to the safeguards already available to the accused. I urge the hon. Gentleman to withdraw the amendment.Mr. Menzies Campbell: On Second Reading, I said that I did not share misgivings that a prosecutor might be entitled to comment on the absence of the giving of evidence by an accused person. From my own experience of prosecuting and defending, if that is not done expressly, there is often an opportunity for the prosecutor to comment at least by implication.
I was not as persuaded as the hon. Member for Dumbarton (Mr. McFall) of the need to be anxious about the Bill's proposal. However, that reflects a substantial and radical innovation that is contrary to previous procedure, which may have consequences for the freedom of the subject. In those circumstances, there is a duty to be certain that innovation will be properly restricted.
My anxiety about the Minister's response is illustrated by an expression coined by Mr. Melvin Belli, a famous United States attorney--or trial lawyer, to use the vernacular. He said, "If you let a skunk into the jury room, you should not be surprised if it creates a smell." That is a colourful way of saying that, if evidence or comments are produced before a jury, one can hardly be surprised if the jury takes account of them--no matter how strict the instructions given by the trial judge to disregard them.
Although the Minister may have a point in respect of certain technicalities, the principle behind the amendment is of ensuring that an innovation that may have consequences for the freedom of the subject should be regulated by Parliament rather than by the direction or instruction of the Lord Advocate, however well-motivated and conceived to be in the public interest. That is a sound and substantial principle, and I hope that the Minister will give it further consideration and not reject it on technical grounds. That fundamental issue ought to be properly considered.
Mr. McFall: I am grateful for the comments of the hon. and learned Member for Fife, North-East (Mr. Campbell), who mentioned an expression coined by an American lawyer. I used the same analogy in Committee, but credited it to Lionel Daiches, QC. Perhaps it has done the rounds. The point is that the Government's proposal gives the prosecutor another bite at the cherry.
We know about miscarriages of justice, the controversy surrounding Parliament's intentions, and the recent debate in Scottish courts. Parliament should make its voice clear in the Bill. In another place, Lord Hutchinson--an eminent lawyer--referred to the Home Secretary's implied abolition of the right to silence as an act of vandalism: "To make a comment of that kind is to ask the jury to give the silence some evidential value; that is, to add to the prosecution case. That is why both Royal Commissions in England pointed out that that was mischief . . . The whole basis of criminal law, both in Scotland and in England, is that no defendant should ever be put in that position."--[ Official Report, House of Lords , 12 January 1995; Vol. 560, c. 414.]
Column 263
Those eloquent words go to the heart of the issue and of the amendment. We believe that they should be enshrined in the Bill.Lord James Douglas-Hamilton: I shall respond briefly. I met Melvin Belli at a Canadian university. He said that he would speak only if he were provided with moose and pemmican. He was indeed a colourful figure.
I think that the hon. Member for Dumbarton (Mr. McFall) is somewhat over- concerned. At least one judge in another place has expressed support for the change that we propose. He agreed with the Government that it was a sensible move. It seemed anomalous that no comment by the prosecution was allowed when virtually every other party to the proceedings was not so inhibited. I believe that, when the judge was practising at the Bar, the hon. and learned Member for Fife, North-East (Mr. Campbell) sometimes appeared as his junior. We believe strongly that the recommendation of the Thomson committee, which has been the subject of consultation, should be enacted. I have no doubt that its implementation and operation will be reviewed in due course. The Lord Advocate's guidelines will spell out the sort of comment that may be made and the circumstances in which it would be appropriate.
Mr. Menzies Campbell: Will the guidelines be published?
Lord James Douglas-Hamilton: I shall make inquiries. It is better that the hon. and learned Gentleman should be given the correct answer within a few hours rather than an immediate response, which may or may not be correct.
Mr. McFall: I thank the Minister for that response. If he makes inquiries, will he write to us?
Lord James Douglas-Hamilton: Most certainly.
Question put , That the amendment be made:--
The House divided: Ayes 211, Noes 246.
Division No. 161] [6.40 pm
AYES
Column 263
Ainsworth, Robert (Cov'try NE)Alton, David
Anderson, Donald (Swansea E)
Anderson, Ms Janet (Ros'dale)
Armstrong, Hilary
Ashton, Joe
Austin-Walker, John
Barnes, Harry
Barron, Kevin
Battle, John
Bayley, Hugh
Beith, Rt Hon A J
Bell, Stuart
Benn, Rt Hon Tony
Bennett, Andrew F
Bermingham, Gerald
Berry, Roger
Blair, Rt Hon Tony
Blunkett, David
Boateng, Paul
Bradley, Keith
Bray, Dr Jeremy
Brown, Gordon (Dunfermline E)
Brown, N (N'c'tle upon Tyne E)
Bruce, Malcolm (Gordon)
Burden, Richard
| Next Section
| Home Page |