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Lord Macaulay of Bragar: I am grateful to the Minister for that reply and I look forward to receiving his letter with the full details. I shall not pursue the question of which area the exercise was carried out in because I do not think that that would be productive. But no doubt some statistics will be provided to those interested in that aspect of the law. One of the problems which we all recognise is that, whether in sound or in vision, there will always be the complaint that the suspect was primed to do what he did on tape, either visually or otherwise. But that is a matter for juries to determine or judges sitting alone. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 [Agreement of evidence]:

8.45 p.m.

The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before calling Amendment No. 21, it may be for the convenience of the Committee to know that, if this amendment is agreed to, I cannot call Amendments Nos. 22 to 25.

Lord Rodger of Earlsferry moved Amendment No. 21:

Page 6, line 36, leave out from ("(1)") to ("and") in line 39 and insert ("subject to subsection (1A) below, the prosecutor and the accused shall each identify any facts which are facts—
(a) which he would, apart from this section, be seeking to prove;
(b) which he considers unlikely to be disputed by the other party; and
(c) in proof of which he does not wish to lead oral evidence,").

The noble and learned Lord said: There are four government amendments to the clause, Amendments Nos. 21, 26, 28 and 29. The creation of the new duty envisaged in terms of Clause 11 for agreement on evidence is not intended to have the effect of preventing

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important oral evidence—for example, that of the victim—from being heard. Amendments Nos. 21 and 28 are designed to make that matter explicit.

Amendments Nos. 26 and 29 make it clear that each party is under a duty to take reasonable steps to agree the facts that one party identified. I beg to move.

Lord McCluskey: In the light of the information that, if Amendment No. 21 is agreed to, we cannot consider certain other amendments, I shall address the Committee on Amendments Nos. 22, 23, 24 and 25. These are fairly small amendments but, looking at the Bill itself, the Committee will appreciate that the new Section 84A of the 1975 Act lays upon the prosecutor and the accused a duty each to,

    "identify any facts which he would otherwise be seeking to prove which he considers are unlikely to be disputed by the other party".

There are three features of that provision which I should like to pick up on. First, the duty imposed should be imposed upon the prosecutor but not upon an accused person. It is a possible infringement of the right of silence to impose upon an accused person a solemn duty to identify facts which he is seeking to prove and which he considers are unlikely to be disputed. It is not a serious inroad but nonetheless a real one.

I also note that, although that duty is created in these peremptory terms, no sanction is imposed for breach of it. Perhaps the Lord Advocate can tell me in terms what sanction will be imposed on an accused person who is called upon to identify a fact which he seeks to prove and which he thinks is unlikely to be disputed. I do not follow that. It may be that I have not properly read Section 84 of the 1975 Act. My Amendment No. 22 seeks to remove the obligation on an accused person to seek to identify such facts. I shall refer to that later on when I move the new clause which I suggest should take the place of this provision.

The background to this is the Scottish Law Commission report to which I have already referred. I draw attention in particular to paragraph 4.27 of that document. Again, it is unnecessary to go into the latter in great detail, but the Scottish Law Commission considered the very point as to whether the duty should be imposed upon an accused person. Paragraph 4.27 states:

    "We considered whether it should be possible for the defence to operate the new procedure"—

the new procedure being identification of facts for challenge or not—

    "and decided that it should not for two reasons. First, there are advantages which we have mentioned in placing the initiative on the prosecution. Secondly, in a case where the defence wished to propose that certain facts or documents should not be disputed at the trial, there should be no difficulty in discussing with the prosecutor the framing of a minute of admission".

That passage recognises the reality that if the defence want to agree something, they will take the initiative and come forward and say, "Look, we do not want to stop these witnesses going on holiday. Here are six of them who all say this. Would you agree to that?" The Crown

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would investigate and, unless there were some strong reason, would agree. The passage goes on to recommend in paragraph 4.28:

    "We therefore recommend that responsibility for initiating the procedure described in the following recommendation should lie with the prosecutor".

The general thrust of this is that the prosecutor should take the initiative.

In paragraphs 4.17, 4.20 and 4.21 the same document deals with the possible infringement of the right of silence. I mention that because the Law Commission sees it in the context of the European Convention on Human Rights. From reading paragraph 4.21, it is clear that careful thought and extensive consultation would be required before any reforms of this kind could be recommended for Scotland. In effect, what the Scottish Law Commission is considering there is the role of the judge as a kind of intervener in a sense—stepping in and saying, "Tell me, what are you agreeing here?". In substance, this clause makes the judge an intervener. I have no objection to that in principle, but the clause lays upon the accused the duty to identify the facts with the word "shall".

The other point is a small one, but it is one which I would like the Government to consider. When the prosecutor, or if the Bill remains in its present form, the prosecutor or the accused, comes forward, he is to identify any facts,

    "which he would otherwise be seeking to prove which he considers are unlikely to be disputed".

Very often the prosecutor will know and the defence will know what is going to be disputed. There is a good deal of merit in the prosecutor in particular having in his mind what we in Scottish legal practice would call a note of line of evidence. He would say, "What do I have to prove in this case?" He has to prove point A, locus; point B, time; point C, action; point D, result; and so on. Some of those will be disputed and some may not be. Therefore, he should not be confined to putting into the draft document on the statement of facts those which he thinks are unlikely to be disputed. He should be free and, indeed, encouraged to put forward others as well. Therefore, Amendment No. 24—and there is another amendment elsewhere—is to that effect.

Amendment No. 25 seeks to delete the word "the" and substitute the word "any". The point is that there may be more than two parties—a prosecutor and an accused person. There may be more than one accused. The appropriate wording would therefore be "any" rather than "the". That is a point of detail and there is no need to do any more than to consider that in future.

Accordingly, in substance, all I want to happen here is that the prosecutor shall consider what he has to prove. He states these matters in an articulate fashion with discreet statements of fact. He puts them to the defence and they are free to agree them or not. That is so simple that it would tend to work in practice. For those reasons, if I get that far, I shall move the amendments on that basis.

Lord Macaulay of Bragar: I shall not detain the Committee for any length of time. This clause appears to be a statement of intent rather than having any real

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teeth or bite to it. It is to take all reasonable steps to agree uncontroversial evidence. As the noble and learned Lord has just said, what happens when an accused does not? If he is legally represented and he tells his lawyer that he is not prepared to agree to anything, what will be made of that in the course of the trial? For example, if in the course of the trial he says, "Yes, that is true" is the prosecutor able to say to him, "Why did you not agree that when you were asked by the prosecutor between the service of the indictment and the swearing of the jury?" That is the usual line of cross-examination. I merely ask that seeking information and not as a matter of criticism.

Lord Rodger of Earlsferry: I start by saying that the noble and learned Lord, Lord McCluskey, moved Amendment No. 25. I am happy to accept that in principle and we shall need to look at the drafting of it. He has identified a point which is correct in connection with the situation where there is more than one accused.

Lord McCluskey: The noble and learned Lord will appreciate that I have not moved Amendment No. 25 and I shall be unable to do so if he persists with Amendment No. 21. As long as the noble and learned Lord understands the point, as he plainly does, that is good enough for me.

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