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Lord McCluskey: In my opinion, the speeches made in support of the Motion that Clause 10 should not stand part of the Bill are based upon a misunderstanding. First, the noble Lord, Lord Macaulay, referred to the right of silence. I wish to quote a passage from paragraph 4.16 of Scottish Law Commission Paper 130. It puts the point rather better than I could. It states:

There follows a quotation from the noble and learned Lord, Lord Mustill:

    "This expression arouses strong but unfocused feelings. In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute".

It is very important always, when talking about the right of silence, to distinguish between the right of an accused person to remain silent under examination by the police, his right to remain silent once he has been charged—a very significant stage in the criminal process in Scotland—and his right to remain silent when he is in court. Section 20A relates to stage two when he has passed from the hands of the police. By charging him the Lord Advocate or his depute has in effect put the person in the custody of the court. That person is then brought before the sheriff.

The purpose of Section 20A which was explained in the Thomson Committee and in debates on the 1980 Bill was effectively to allow the person to be brought before the sheriff, and therefore there was protection for him. He was to be given an opportunity to explain matters averred in the charge. That is putting it very shortly. In

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essence what happens is that at that stage a petition has been prepared which specifies that he, on a particular date, in a particular place, in a particular manner, did certain things to certain people. That is usual standard wording.

The procurator fiscal is therefore quite entitled to say to him: "Do you deny being in Sauchiehall Street? Do you deny being in the company of A and B, who are also mentioned in the petition? Do you deny being in possession of a knife?", or matters which are averred in the charge. It seems to me that there was a slight misdrafting of the provision initially. It should have contained the word "admission". The fiscal ought to be able to say: "Do you admit being in Sauchiehall Street on such and such an occasion? Do you admit that you were in the company of X, Y, and Z? Do you admit that?". If the accused would have answered to the first question, "I deny it", he can say, "I don't admit it". It is exactly the same situation. I see nothing to worry about here. There is no extension of the power of the fiscal. Apart from anything else, Section 20A contains in subsection (2) the provision that,

    "the prosecutor shall, in framing questions ... have regard to the following principles:

    (a) the questions should not be designed to challenge the truth of anything said by the accused".

So the purpose of the questioning is not designed to secure an admission. It is to ask the accused if he is making an admission. He has a choice of three answers. He can say, "I admit it", "I deny it", or "I decline to answer". Accordingly, it appears to me the amendment is essentially technical in character. It does not expand the powers of the procurator fiscal. It invades no part of the right of silence, of which I am a strong defender. I would support the provision as simply a technical provision designed to clarify matters in the existing legislation.

Lord Fraser of Carmyllie: I am extremely grateful to the noble and learned Lord, first, for his very clear and lucid explanation of the broad group of rights and immunities that are too readily put together under the single heading of a right to silence. I would similarly like to adopt the language that he used in describing this amendment as simply technical. However, because there has been considerable discussion of this matter, particularly in Scotland, it is clear that some commentators have misunderstood the scope of what is being proposed. It may be helpful if I explain a little of what lies behind our thinking.

What this clause will not do is transform a procedure into something radically different to what it is now. The problem, as the noble and learned Lord said, is that at present a procurator fiscal may ask at judicial examination questions directed towards eliciting any denial, explanation, justification or comment from the accused about the charge against him. While this does not explicitly exclude questions designed to establish whether the accused admits any of the accusations or facts averred, that is the way the law has been interpreted in practice.

The consequence of the restriction is simply that, rather than ask an accused person a straightforward question along the lines that the noble and learned Lord

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indicated as to whether he did something, was present at the scene of a crime, or was in possession of a particular weapon, the procurator fiscal must frame such questions in a negative form, for example, by asking the accused whether he denies exactly the same accusations or facts.

While that need not prevent a skilled prosecutor asking the questions he considers important, it does result in those questions being asked in a stilted and unnatural form which is likely to be more difficult for an accused person to understand, and even more difficult for a jury to understand when it considers the transcript of the examination at a subsequent trial. The change proposed in this clause is simply designed to make the proceedings more straightforward and intelligible. I emphasise that there is nothing sinister or extending in the provisions that we bring forward.

There are two things which this clause does not do, contrary to what has been suggested. First, it does not require the accused to break his silence if he wishes not to, or to incriminate himself. If the accused chooses not to answer questions he may do so, as very many accused persons do now. If he chooses to answer, his answers need not be any more incriminating than they would be under the current law. After all, he may refuse to admit, which may be less incriminating than a failure to deny.

Secondly, it will not enable procurators fiscal to engage in cross-examination or to attempt to drag confessions out of the accused. Subsection (2) of Section 20A prohibits the procurator fiscal from asking leading questions, reiterating questions the accused has refused to answer, or challenging the truth of what the accused has already said. Those restrictions will continue to apply to all questioning by the procurator fiscal as will the duty placed on the sheriff to ensure that all questions are fairly put to, and understood by, the accused.

On the last point, I believe it should be possible for the sheriff to discharge his duty rather more easily. It will be easier for the accused to understand what is going on.

I have taken a moment or two to explain this matter because there has been serious misunderstanding of what is proposed. I hope that as a result of this short debate on the clause it will now be understood exactly what limited amendment is proposed.

8.15 p.m.

Lord Macaulay of Bragar: I am grateful to the Minister for his explanation. In relation to judicial examination, part of the problem within legal circles in Scotland is the use of the word "eliciting" in relation to admission. That can be phrased whichever way you like subject to the provisions of the Act as it presently stands. But to the layman it must mean that the procurator fiscal will, to put it in colloquial terms, "have a go" at the accused within the limits of the Act to see whether he will confess to what he has been charged with. That is a very dangerous inroad into the fairness of the criminal justice system in Scotland. It merits further consideration by the Government, perhaps taking account of what the various groups involved in the administration of criminal justice in Scotland have to say about it.

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It is very difficult to look at this clause and say that it is not sinister. It certainly carries a sinister implication. If it will not make much difference to the law as it stands, why are the Government bothering with it? I know that it has been explained by the Minister and no doubt it will be read in the quarters that are involved in the administration of criminal justice in Scotland. Speaking for myself, with respect I am not convinced by the justification put forward for this step in the administration of criminal justice in Scotland.

I shall read with interest—I shall no doubt be regaled about it by various people—what has been said in the Chamber tonight.

Clause 10 agreed to.

Lord McCluskey moved Amendment No. 19:

After Clause 10, insert the following new clause:

("Duty of prosecutor to investigate lines of defence

.—(1) In section 20A of the 1975 Act, after subsection (3), there shall be inserted—
"(3A) The accused, before being asked any question by the prosecutor, shall be told by the sheriff that, if he answers any question in such a way as to disclose a line of defence (as for example alibi, incrimination, or the consent of an alleged victim), being a line of defence which is capable of being investigated at that time, the prosecutor will then be under a legal duty to investigate that line of defence thoroughly and as soon as is reasonably practicable".
(2) After subsection (4) there shall be inserted—
"(4A) After any examination under this section has been completed it shall be the duty of the prosecutor, as soon as is reasonably practicable, personally or through his officers or officers of police, to investigate thoroughly any line of defence which is capable of being investigated at that time, provided it is a line of defence which has been disclosed by the accused in answer to any questions put to him by the prosecutor, and it shall be the duty of the prosecutor to disclose the full results of that investigation to the accused not later than the date of service of the indictment under section 70 of this Act.".").

The noble and learned Lord said: Section 20A which we have just been discussing was inserted by Section 6(2) of the Criminal Justice (Scotland) Act 1980. It allowed questioning by the procurator fiscal at judicial examination. It included certain provisos. I refer in particular to the proviso contained in Section 20A(1) (a):

    "Provided that the particular aims of the line of questions under this paragraph shall be to determine:

    (1) whether any account which the accused can give ostensibly discloses a category of defence (as for example alibi, incrimination or the consent of an alleged victim)".

It goes on to say:

    "and the nature and particulars of that offence".

So, if the procurator fiscal asks an accused person a question based upon the charge in the petition, which asserts that the accused was in Sauchiehall Street on a particular date at a particular time, and the accused replies, "I am perfectly willing to answer that question, I was not there", the procurator fiscal is then entitled to ask him, "Well, if you weren't there, would you be willing to tell us where you were?". He might also add, "Would you be willing to tell us who you were with?" and so on. In other words, he is entitled to ask the nature and particulars of a defence alibi. That seems to me to be entirely sensible and it has been accepted in practice since the Act came into force in 1981.

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However, if one now looks at the source of this particular provision—namely, the Thomson Committee report—one finds that it is dealt with on page 43 in paragraph 8.14. That paragraph is concerned with the objects of judicial examination. It says:

    "We consider that there are three objects ... a. to afford to an accused at the earliest possible stage in the judicial process an opportunity of stating his position as regards the charge against him".

So it was conceived by Thomson in favour of the accused person. I continue from that paragraph, reading in short:

    "There are matters, such as an embarrassing alibi, which an accused could disclose at this stage in the knowledge that, if investigation of the alibi satisfied the procurator fiscal of his innocence, he would be saved from any public disclosure of his private affairs".

I shall not read the rest of the paragraph; but the essence of the matter there and at paragraph 8.18, which is in similar vein, is to the effect that the accused who chooses to say, "I have an alibi" and gives the details of it can expect the procurator fiscal to investigate that alibi. If he gives a sound alibi, that is the time to do it, early on. The procurator fiscal has the resources to do it at that particular stage.

I have now looked at what happens in practice. I fear that in practice that ideal is not always followed. The noble and learned Lord the Lord Advocate will recall one case about which I wrote to him. For a number of reasons I shall not go into the details of that case. In essence, an accused person, having given the police at the time of his arrest a very limited account of his alibi, three days later at judicial examination gave a rather more detailed account. For administrative reasons, or by some kind of oversight, the second and much more detailed account was not investigated. In the event, he came to trial with a large number of alibi witnesses. I presided at the trial and so I can say that the jury, which took four minutes to acquit him, was thoroughly convinced of the soundness of the alibi that he advanced in respect of that particular charge.

I am concerned to bring the statute into line with the intentions which were expressed by Thomson and indeed by Ministers in this House in the debates on the 1980 Bill. I am sure that the noble and learned Lord the Lord Advocate, in the light of his experience in general and of the occasional case that may go wrong, will not find that a difficult matter to deal with in principle.

So far as concerns the details of it, I put forward two aspects: first, that the sheriff will tell the accused of the duty which the later subsection places upon the prosecutor; namely, a duty to examine the background of the alleged special defence of incrimination or alibi. It is an encouragement to the accused for the sheriff to say to him, "Look, they are going to ask you questions. You do not have to answer them. But if you have an alibi or some such defence, tell us. The procurator fiscal has a statutory duty to investigate it". That is an encouragement to people at an early stage to come out with their account of where they have been or any other account that they choose to put before the court. I accept the whole point that was made earlier; namely, that an accused person does not know in great detail with what he is charged or what the evidence is against him. But

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he knows if he was not there; and if he was there and saw the offence committed by somebody else or some such matter he can say, "Look, I don't have the resources to investigate this, but you do. This is the story; you investigate it." I beg to move.

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