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Baroness Cumberlege: My Lords, we will wait to see the results.

Baroness Castle of Blackburn: Can we also have an assurance that the Government will in future fund any pay increase to which they agree? They failed to do so with the last pay increase, thus increasing the pressure to reduce the quality of service by reducing the number of qualified staff and not filling vacancies. Is it not time we had another Halsbury Report such as the Labour Government introduced?

Baroness Cumberlege: My Lords, I find this intriguing. Reading the noble Baroness's memoirs, I recollect that there was a Cabinet meeting during which John Silkin sent her a note. It read:

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    All projects great and small,

    All things wise and wonderful

    The Chancellor cuts them all.

    He cuts the old age pension

    Although he cuts by stealth,

    And when he looks for savings,

    He cuts the National Health."

Lord Graham of Edmonton: There is no answer to that!

Criminal Justice (Scotland) Bill [H.L.]

3.8 p.m.

The Lord Advocate (Lord Rodger of Earlsferry): 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 Rodger of Earlsferry.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 26 [Comment by prosecutor on accused's failure to give evidence]:

Lord Macaulay of Bragar moved Amendment No. 78:

Page 18, line 35, at end insert:
("( ) At the end of section 142 of the 1975 Act insert: "Where the accused does not give evidence such action shall be of no evidential value and the presiding Judge shall instruct the Jury accordingly.".").

The noble Lord said: The amendment relates to the direction which a judge should give in criminal trials where the accused does not give evidence. The situation in relation to the significance of an accused person not going into the witness box to give evidence in a criminal trial, the right of a prosecutor to comment on that absence from the witness box, and indeed the right of a judge in a criminal trial to comment on such an action taken by the accused, is now in a complete and utter mess. There is little point in making tinkering adjustments to the law of Scotland until a review is held on how matters stand so that positive views can be expressed about what the situation should be.

I have said more than once that the right to silence is the right of every accused person in the United Kingdom. People talk of the failure to give evidence. As I understand it, there is no such thing in law. There is the exercise of one's legal right in law not to give evidence. It is so often referred to in the newspapers that it has almost become, as it were, a newspaper cult. A headline in one newspaper at the weekend read: "Accused refuses to give evidence", or "Accused opts to remain silent". So what, if the accused chooses to remain silent?

This amendment tries to encourage the Government to do just one thing; namely, to institute a review of these important matters. At the moment we are floundering about with judges giving one direction here, one direction there; the Court of Criminal Appeal saying, "Maybe the judge shouldn't have said that, but after all that does not constitute a miscarriage of justice".

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In the Government's own consultation paper, The Right to Silence, Judicial Examination and Evidence of Previous Convictions, which was circulated by letter from the Scottish Office on 15th September 1994, there is a rather alarming observation. Incidentally, the copy that I have bears no signature whatever. It could have come from the far side of the moon, except that there was a covering letter indicating that it came from somewhere a bit closer than that and probably from the Scottish Office. Paragraph 34—which I read in these terms—having summarised the law about what judges can and cannot say, states:

    "While the case law thus suggests that in Scotland there is at present no barrier to the court drawing proper inferences from the silence of the accused at trial, it is open to differing interpretations, and the courts may be inhibited, by the apparent restriction on the judge's power to comment to special circumstances, from drawing inferences in all appropriate cases. The reported appeal cases do not reveal in how many cases comment might have been appropriate but was not made because of the strictures in Scott. A statutory provision clarifying the position would remove any uncertainty and encourage the courts to take account of the accused's silence where it appeared appropriate, while in no way compromising the accused's right to remain silent".

That is perhaps a very strange summary of the law. I appreciate that it is only one paragraph out of a fairly lengthy consultation paper. But what is it really saying? To use a horrible phrase, the "hidden agenda" behind it effectively is: if the accused does not go into the witness box, let the judge comment upon it as he sees fit. Then, once the case gets to the Appeal Court, the Appeal Court says: "You should not have said that, but never mind, there is no miscarriage of justice".

The Faculty of Advocates, of which I am a member, states at page 9 of its reply:

    "It is therefore a subtle, but in the Faculty's view, important distinction which is to be drawn. Any inference which is permitted to be drawn under the present law is an inference from the other facts which have been established by the Crown; not an inference drawn from the silence of the accused, as is stated at paragraph 34",

to which I refer.

We have seen that the committee of the Faculty of Advocates took a slightly different view from the one that was expressed in the Government's White Paper. This amendment, in simple terms, seeks at this present juncture in the development—or indeed the non-development—of the law relating to the right to silence the right to comment on the absence of the accused from the witness box and the right of the judges and prosecutors to comment, the latter being inserted by statute in this present Act, to give a breathing space whereby Parliament can say to the judges: "Until we get this sorted out, here is what the law is to be from now on. You must tell the jury that where the accused does not give evidence, that fact is of no positive"—perhaps evidential—"value and you must ignore it when you seek corroboration of the Crown case".

In putting that forward as an absolute, which at the moment I do, I appreciate that for every rule there must be an exception. There may be exceptions, for example, in fingerprint cases, which have been mentioned before, and perhaps in respect of the DNA process, if that is to be accepted and its validity tested in the Scottish courts as being 100 per cent. proof as it was introduced. There

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may be exceptional cases, but the general rule should be that a judge should instruct the jury in terms of Amendment No. 78, and I therefore so move.

Lord Stodart of Leaston: It is the most dangerous water for a layman, particularly a Scottish peasant, to enter when legal matters are being discussed; and well I appreciate that fact. But I am bound to say that when I read my noble and learned friends' remarks I was slightly confused—but then I often think that legal language tends to be a little confusing. My noble and learned friend stated:

    "to restate the law on silence at trial in Scotland is not necessary but we propose ... to remove the statutory prohibition on the prosecutor from commenting on an accused's silence at the trial".—[Official Report, 29/11/94; col. 550.]

To a layman, this sounds slightly like a non sequitur. I asked myself this: If you are going to change the law on silence in a way that has aroused, as I am very well aware, considerable controversy, why do you not want to restate the law? I should have thought it was quite essential that you should do so.

However, on a first reading of the press headlines in Scotland—which said, broadly speaking, "Right of silence being done away with"—I am bound to say that I took that to mean that an accused person would be forced to go into the witness box and that it was his right of silence that was being removed. If it had happened as I understood it, that would have totally reversed the situation as it stood up to 100 years ago, certainly in England and Wales, whereby the accused was not allowed to give evidence on oath. But of course it does not mean that at all. The right to silence has been the right of an accused to be spared any comment by his prosecutor if he, the accused, decides not to give evidence himself.

It is now proposed that prosecuting counsel should be allowed the same right as the judge, who has always been allowed to point out to the jury the fact that the accused has not gone into the witness box.

This proposal drove me to a book which I strongly recommend to the Committee for really good bedtime reading; namely, the account of the trial—the last murder trial with any charisma attached to it—of Dr. Bodkin Adams. According to the account of that trial, defence counsel made a sudden announcement that he did not propose to call the accused. The Attorney-General half rose as if propelled upward by an amalgam of astonishment and dismay that not a word of his carefully prepared cross-examination and his closing speech would be heard. Then came—this, to me, is the important part—Lord Devlin's directions to the jury. He said that the jury must draw no conclusion from the accused not going into the witness box. He said:

    "He has not failed to give evidence. He has exercised his right to be silent and demand that the Crown proves its case".

At Second Reading my noble and learned friend again took a different line. He said (Hansard col. 550) that it was a legal nonsense to allow comment to be made by either the judge or the prosecutor as a general rule on the absence of the accused from the witness box, though there must be exceptional cases where that may be justified. As I understand the matter, he said virtually, "If the judge can comment, why should not the

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prosecutor do so?" I believe that that view was upheld by the noble and learned Lord, Lord McCluskey, with the only reservation that judges always use restraint.

I ask my noble and learned friend to tell the Committee the basic objective of this amendment to the present law. Is it to produce better justice or to make a conviction more likely? After all, prosecuting counsel is there to do his best to win his case. As I understand it, a prosecution is generally not undertaken unless there is a fair chance of it being successful. Therefore, is it the purpose of this amendment that another string is being given to the Crown or does the noble Lord claim that it will make for better justice?

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