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Lord Stodart of Leaston: Perhaps I may have the indulgence of the House for one moment. Understandably, such was the state of nerves under which I was speaking that I inadvertently misquoted my noble and learned friend. I turned over two pages of the

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Official Report by mistake and attributed to him the words of the noble Lord, Lord Macaulay. The words which I wish to refer to appear at col. 550 on 29th November, and they are these:

    "We consider it wholly appropriate that the prosecution, when addressing the jury should be able to comment on a matter on which the court may comment and which the jury may take into account in reaching its verdict".

If I had not put that right the Official Report would make total nonsense.

Lord Wigoder: No doubt perfectly correctly, the Minister said that prosecuting counsel in Scotland would only exercise this power in an appropriate case and that he would exercise restraint in doing so. I know nothing whatever about the practice in Scottish courts. I cannot rival the experience of my noble friend Lord Hutchinson in the English courts. He claims to have had 40 years' experience at the criminal Bar and I had only 37.

I wonder whether what has been said about prosecuting counsel is not to paint a somewhat idealistic picture. The reality at the English Bar is that there are solicitors who instruct prosecuting counsel. The reality is that many solicitors prefer aggressive prosecuting counsel who will take the decencies to their uttermost limits. It may be that people are totally different and have totally different standards in Scotland, I know not, but I suspect that if the same temptations apply in Scotland some prosecuting counsel will be more enthusiastic about deciding what is an appropriate case and what degree of restraint should be exercised than will other prosecuting counsel. It may well be that they will benefit professionally in due course from their enthusiasm.

Therefore, I venture to suggest that there is a danger that we shall be starting out on a somewhat slippery slope and that gradually restraint will be exercised with less and less vigour and the appropriate cases will turn out to be more and more frequent. Of course, I understand the point raised by the noble and learned Lord, Lord McCluskey, that the Court of Appeal may well decide to intervene if prosecuting counsel appears to the court to have exceeded the appropriate limits. The problem will arise for the Court of Appeal where counsel has exceeded the appropriate limits and where the judge has then put his foot down—as one would expect—and told the jury that it was quite wrong for prosecuting counsel to do what he did. It is doubtful whether the Court of Appeal would be quite so willing to intervene in such a case, yet the comments of prosecuting counsel may have affected the jury without anybody being able to tell. I therefore view with some doubt the wisdom of the proposal that in the Scottish courts that power should be given to prosecuting counsel.

I should like to add a point that I raised three times during our proceedings on the recent criminal justice legislation. My noble friend Lord Hutchinson has raised this point again today. I refer to the simple case that we have all encountered many times at the criminal Bar of a man who cannot go into the witness box and whose reason for not doing so cannot be told to the judge or the jury. He may not be able to go into the witness box because his alibi defence—his true defence—is "I was

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in bed with my best friend's wife" or "I know who committed this offence. It was my brother". We have all had such cases. During a trial nobody knows—nobody can know—why a defendant is not giving evidence. In such circumstances I venture to suggest that judges would be very wise—as I am sure they are in Scotland—to make sure that they comment on that only in exceptional cases. If the power to comment is given to prosecuting counsel, at times such comment is bound to be passed in cases where the making of such a comment is totally unfair to the defendant.

4 p.m.

Lord Rodger of Earlsferry: Turning to some of the points that have just been made by the noble Lord, Lord Wigoder, perhaps I may say that the position in Scotland is different in that in Scotland we would be dealing in the sheriff court or the district court with the procurator fiscal, who is a permanent member of the public prosecution system in Scotland, or in the higher courts with an advocate depute. All those people are subject to the instruction of the Lord Advocate.

Although I am not suggesting that the approach of prosecuting counsel is absolutely identical in all cases or that all procurators fiscal prosecute in exactly the same way—they are all individuals: they are all subject to instruction—I think it not unlikely that, if such a provision were to be passed, the Lord Advocate would instruct advocates depute and procurators fiscal as to the approach that they should adopt towards the operation of the provision. I have no doubt that such an approach would be along the lines that were indicated by the noble and learned Lord, Lord McCluskey, because to do otherwise would be to invite the jury to approach the case on a basis that would be wrong in law.

If the approach was so over the top two possibilities would arise. If it were very bad, the judge would seek to correct it and such circumstances might give rise, as the noble and learned Lord said, to the possibility of the appeal court saying that because of the approach of the prosecutor the whole situation was so flawed that the conviction should be quashed. Therefore, the prosecutor would act in such a way at his peril. I should have thought that in a very extreme case it might be possible—I do not like to suggest this —for the judge to desert the case on the basis that he was satisfied that a fair trial could not then take place. Such a sanction would always be available.

Although one cannot rule out the possibility of inappropriate comment, I must advise the Committee that I think that that would be relatively rare and could be dealt with appropriately within the existing machinery of our legal system.

Lord Macaulay of Bragar: This has been a long but interesting and informative debate. In general, however, it has completely ignored Amendment No. 78 and has gone off at a tangent, dealing with issues which might have been raised more relevantly in a clause-stand-part debate. Therefore, with the leave of the Committee, and since these matters have been raised, perhaps it will be more appropriate for me to say now what I had been

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going to say at that stage and to answer the points that have been raised. Perhaps that will save the Committee some time.

The Father of the Scottish Bar, Mr. Lionel Daiches, QC, who is now 86, often uses his favourite phrase when evidence has been presented to a jury which the jury is then told to ignore. He says, "It is like throwing a skunk into the jury room and telling them to ignore the smell". So much for over-the-top comments by prosecutors and, even worse, for a judge's attempt to rectify that, because the latter in its turn will only draw attention to the fact that the accused has not exercised his right to go into the witness box should he so wish.

I always understood that a complaint at the instance of the procurator fiscal in Scotland or a petitioner indictment at the instance of the procurator fiscal or the Lord Advocate set out the following: here is a charge which the state is preferring against you and we are going to prove it. I did not understand—I have never understood—that the serving of a complaint or a petition on an individual puts him on his mettle to provide what the noble and learned Lord the Lord Advocate referred to as a "competing account". We are not dealing in competing accounts; we are dealing with proof of the indictment which the Crown has set out to prove against the accused—nothing more; nothing less.

With the greatest respect to the noble and learned Lord, Lord McCluskey, and, indeed, to the Lord Advocate, I find it astonishing that defence counsel may take it upon himself to say to a jury, "Ladies and gentlemen of the jury, you may have wondered why Mr. Bloggs did not go into the witness box. I tell you that he has a constitutional and legal right not to go into the witness box because the onus is always on the Crown to prove the facts of the complaint or indictment". From what the noble and learned Lord, Lord McCluskey, and the Lord Advocate said, it appears that the judge may then intervene and set up an evidential tit-for-tat between the accused and the prosecutor. That is very dangerous territory. If defence counsel mentions the fact and the noble and learned Lord then says, "Well, defence counsel mentioned it so I am going to talk about the accused's absence from the witness box", we are entering very dangerous territory.

Some reasons have been given for why people do not go into the witness box. I well recall a case I had in the High Court in Glasgow when the man was a shivering, gibbering wreck. He could hardly tell me his name. Doctors said that it would be the same the following day and the day after so long as he was facing the indictment. He was physically and intellectually incapable of giving evidence, far less was he able to stand up to cross-examination. But counsel cannot tell the jury that. Counsel cannot say to a jury, "I have just left my client in the cells downstairs. He is a nervous and gibbering wreck, and for that reason he has not given evidence". Counsel are not allowed to give evidence before a jury. They are there to deal with the evidence which has been presented.

The noble and learned Lord the Lord Advocate said that the law in Scotland has stood since 1918. I suggest with respect that it has stood still, and developments since then have merely demonstrated the mess into

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which we are getting. The noble Lord, Lord Hutchinson, referred to the fact that the same standard should be applied to the judge as to the prosecutor, and that in appropriate cases they may refer to the absence of the accused from the witness box with restraint. Who will lay down to the prosecutor what constitutes restraint? Is the Crown Office going to send out a circular saying, "You must exercise restraint. Restraint means this—"? It is an impossible exercise, because every case depends upon its own merits and its own atmosphere. Sometimes there is animosity between the prosecutor and the defence counsel or between the prosecutor and the accused. That is why things take off at a tangent. What the judge said in 1918 was:

    "the judge may, and in my opinion should, in exceptional cases comment upon the fact and bring it distinctly under the notice of the jury, who are, of course, always entitled to consider the fact that an accused - who, it may be, is the only man in possession of the full knowledge of the facts—refrains from going into the witness-box for the purpose of clearing his feet and establishing his own innocence".

That has been followed through in other cases. It was said in a case in 1993:

    "if there is something which is crying out for an explanation, and he [the accused] gives no explanation, then it may be easier for you to draw an inference of guilt from the facts which have set out the idea that he might in fact be guilty of this".

I do not know what juries make of that type of direction. The jury exists only on the presumption that it does what it is told. In a more recent case, as yet unreported, the same procedure was followed through. The judge said:

    "There has been no innocent explanation advanced by the accused, but that is not adding anything to the Crown case".

That is the point of the amendment: there is no evidential value. The word "evidential" was included in the amendment deliberately. I did not say that it was not of any value to the Crown case—of course it may be—but it is of no evidential value. In the case of Deacons the judge said:

    "It merely means that when you are considering a particular piece of evidence which looks at first blush as though it might be incriminating of the accused, and you are considering whether or not to draw the inference that it is an incriminating piece of evidence, if you think that it is something which calls for an explanation and there has been no explanation by the accused then, as I say, you might find it easier to draw the inference that it is an incriminating piece of evidence, but that is entirely a matter for you".

The last phrase, "that is entirely a matter for you" is the escape hatch which judges use when giving directions to the court. Time and time again there will be judges' charges which include that phrase perhaps 10 or 15 times in a long case. The Appeal Court will say, "of course the judge told the jury that it was a matter for them", the judge having given a direction in those terms. I wonder what it all amounts to. That is why I ask the Government not to introduce this clause and to think again.

I raise the next point because it is an important one. I assure the noble and learned Lord the Lord Advocate that I am certain that it will be taken up. If a prosecutor goes over the top during an important trial, there will come a point where if the judge does not think injustice may be done to the accused, the defence will perceive injustice being done and will ask for leave to lead evidence to explain why the accused did not go into the

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witness box. That, if it happens, and if it is accepted by the court, will lead to delays in trials, further expense, and injustice. It may lead to a retrial.

At present the prosecutor is allowed to say to the jury, "Well of course the Crown evidence is uncontradicted". That means that the accused has not said anything different. It is then for the jury to decide, on the evidence presented, whether it is satisfied that the Crown have proved the case, which is where the thing all begins and why I put down the amendment in the terms that I did.

If the noble and learned Lord, Lord McCluskey, thinks that the amendment is obnoxious to judges, I am not sure that I apologise, because the judges are the first people to criticise Parliament for not telling them what to do. It might be helpful if occasionally judges were instructed what they should and should not do in appropriate cases. There are other clauses in the Bill where the judge is instructed to give in writing his reasons for taking a certain course.

What I am worried about, having heard the debate—it concerns me greatly—is that the provision has opened the door. If this is the attitude being adopted by prosecutors and judges, we are entering an evidential free-for-all which will be contrary to the interests of justice in Scotland. It will be a sad day for the law in Scotland when this clause passes into the law, as it undoubtably will, bearing in mind the Government's position. Having heard all that has been said today, I shall sit back in a calmer moment, think about things, and decide what to do on Report. There is great feeling about this matter. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 agreed to.

4.15 p.m.

Lord Macaulay of Bragar moved Amendment No. 79:

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