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Lord Rodger of Earlsferry: In speaking to the amendment, the noble and learned Lord really referred to some of the things that he had already said this evening. In the vast majority of cases, I accept, in practical terms, that the prosecution will have the interest in operating a system of agreement. As the noble and learned Lord said, they will have the burden of proof and therefore they will be seeking to establish matters.

Clause 14 provides the machinery for uncontroversial evidence in the Bill. Of course, as we have already seen, the duty, such as it is, lies in Clause 11: but Clause 14 is the one that gives the power. We say that it is useful for the power in Clause 14 to be available to the defence where they wish to use it. If, for example, they have some matter in relation to the identification of a car or something like that which they think the prosecution would not dispute and which it would be useful to get agreed, we believe that it is desirable that the machinery should be available to them as well as the prosecutor. For that reason, we think that such a provision is indeed desirable.

So far as concerns the detail of the clause, I can say on behalf of the Government that we are happy to look through the noble and learned Lord's proposed new clause to ascertain whether we can learn from the language that he has used, as opposed to seeing whether any improvements can be made to the provision.

In the light of the approach that we have taken to the matter of whether the defence should be able to use the machinery—namely, that we believe that such machinery should be available to them—we cannot accept a version which limits that availability to matters for the prosecution as the amendment suggests.

Lord McCluskey: I do not propose to press the matter at this stage. However, the noble and learned Lord the Lord Advocate mentioned making the machinery available. There is no problem about the Government's approach to the matter as regards having the machinery available to the defence. The defence are always able to approach the Crown and say, "Look, we are willing to agree this, and we are willing to agree that". The question is: who has the initiative? The machinery is designed to impose an equal burden or opportunity on both sides, although they do not have

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equal resources. I hope that the noble and learned Lord will look very carefully at the matter to see whether he has made a great error in imposing in this group of clauses an equality of burden on the two sides. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11, as amended, agreed to.

Clause 12 [First and preliminary diets in solemn proceedings]:

Lord McCluskey moved Amendment No. 31:

Page 7, line 27, after ("shall") insert ("seek to").

The noble and learned Lord said: I now turn to a group of amendments starting with Amendment No. 31 and continuing through to Amendment No. 38. The amendments which are tabled in my name deal with a number of related matters. Amendments Nos. 31 and 37 both attempt to insert the words "seek to" into Clause 12. If one turns to line 27 of page 7 of the Bill, it will be seen that the purpose of the amendments is to avoid imposing on the court the duty to do something which it may be impossible for it to do. As presently worded, the provision reads, "the court shall ascertain".

I have already drawn attention to the fact that the accused cannot be compelled to take part in that business. There is no sanction and I hope that I shall not be told that it is unethical to decline to co-operate. Accordingly, a duty is imposed upon the court to ascertain. The logic of my amendment is that the provision would simply say that the court, "shall seek to ascertain". That is the sensible way to put it. It reflects the reality of the situation.

Amendment No. 36 is a related amendment. Its wording spells out all that one needs to know; namely, that,

    "the accused shall not be obliged to answer any such question and if he does not answer that shall not be commented upon by the judge or the prosecutor at any later stage of the proceedings".

That is to negative the possibility of an informal sanction; in other words, people alleging at some later stage of the proceedings that someone could have answered but did not do so.

These are all pinpricks into the right of silence at this stage in the proceedings. Those are the matters to which I wish to draw attention. For the moment, I shall content myself with moving Amendment No. 31. I beg to move.

Lord Fraser of Carmyllie: This clause, as I think the noble and learned Lord appreciates, is an important part of our package of reforms of pre-trial procedure. It places a clear responsibility on the court, at a first or preliminary diet, to make a judgment about the likelihood of a case going to trial.

These amendments, one for first diets and the other for preliminary diets, would, as we see it, weaken this responsibility by requiring the court only to "seek to" ascertain whether the trial is likely to proceed on time. This would allow the court merely to make an attempt to determine if the case is likely to proceed on time but not in the end reach any conclusion. In that event, the important new duties placed on the court by the new subsections (8) and (9) and (1C) and (1D) of Sections 75A and 337A of the 1975 Act by Clauses 12 and 13

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respectively would be rendered nugatory. The purpose of Clauses 12 and 13 is to ensure that cases are fully prepared before the trial diet. I think it is clear enough that the purpose behind that is to reduce as much as possible the number of occasions when the parties and all the witnesses turn up for a trial which does not take place. I do not imagine there is anyone who does not think that is a wholly desirable objective; it is a matter of whether we are going about this in quite the right way.

While I understand the noble and learned Lord's concern that in some circumstances it may be a difficult task for him to ascertain whether a case is likely to proceed, it is nevertheless important, if there is to be any success in our pre-trial procedures, that the court should reach some judgment about that probability. If a court fails to do that, we will find ourselves muddling forward in the way that has proved so unsatisfactory in the past. In short, we believe that what the noble and learned Lord proposes waters this matter down a little too much. However, I understand his anxiety about the extent of the existing duty. I shall have a look at this matter again so long as he does not understand by that that I am indicating I shall necessarily return with an amendment on it. However, I have heard his argument.

The noble and learned Lord also mentioned Amendments Nos. 36 and 38. Although they are grouped separately I do not know whether he wishes me to deal with them now or later.

Lord McCluskey: I shall deal with the point that has been made. It may be that the noble and learned Lord the Lord Advocate will consider including some such phrase as "so far as reasonably practicable" so that the court is not laid upon an absolute duty to ascertain something which it may not be able to ascertain. That is one suggestion which the noble and learned Lord need not respond to tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey had given notice of his intention to move Amendment No. 32:

Page 7, leave out lines 32 to 34.

The noble and learned Lord said: This is a consequential amendment and I shall not move it. However, I should draw attention to the fact that the whole character of Section 75A is such that the judge is made very much interventionist. I hope that has been carefully thought through. It is a matter in a sense beyond my ken because I am not involved in summary cases and we have not had this system, or anything like it, so far in the High Court. I shall not move the amendment.

[Amendment No. 32 not moved.]

9.30 p.m.

Lord Fraser of Carmyllie moved Amendments Nos. 33 and 34:

Page 8, line 1, leave out ("67") and insert ("76").
Page 8, line 2, after ("Act;") insert:

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("( ) that there are documents the truth of the contents of which ought in his view to be admitted, or that there is any other matter which in his view ought to be agreed;").

The noble and learned Lord said: In moving Amendments Nos. 33 and 34 I shall speak also to Amendment No. 39. The Committee will be pleased to know that these are technical in nature, correcting minor errors in the Bill. I beg to move.

On Question, amendments agreed to.

Lord Macaulay of Bragar moved Amendment No. 35:

Page 8, line 6, after ("accused") insert ("or where he is represented, his solicitor").

The noble Lord said: This is a minor amendment. It has been put forward by the Law Society of Scotland, not because of any self-interest in relation to the income of solicitors but as a safeguard for the accused in the light of the matters which an accused person may have to agree with the prosecutor. It seems proper that if the accused is represented then he should have an opportunity to discuss matters with his solicitor before he reaches any agreement with the prosecutor. There are technical and legal matters contained in this particular clause of the Bill, and it is in the interests of justice to the accused that, if he has a solicitor, he should have access to his solicitor to discuss these matters. I beg to move.

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