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Lord McCluskey: In the High Court the clerk of the court is not legally qualified; and even if he were, he would not be nearly as highly qualified, I hope, as the judge. The dangers of the clerk of the court intervening in that process were underlined by the noble Lord, Lord Hughes, some 20 years ago when he dealt with the abolition of burgh courts. He told the tale of the new magistrate who sat on the Bench. He turned to the clerk of the court in respect of an offence and asked him, "What shall I impose?" The clerk of the court told him to impose the maximum sentence and the magistrate turned to the accused and said, "I sentence you to death".

I agree with what the noble and learned Lord, Lord Fraser of Carmyllie, said. Members of the Committee will be familiar with the expression "an idea whose time has come". I have a feeling that this is an idea whose time has not yet come. Accordingly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 27 shall stand part of the Bill?

6.45 p.m.

Lord Macaulay of Bragar: Perhaps I may now return to the meat of Clause 27, which deals with the question of sentencing following a guilty plea or what may be called "the discounting of sentence". In my submission to the Committee, that is an extremely dangerous innovation into the law of Scotland. I understand that it is already used in England and, indeed, a recent report indicated that a judge had told an accused that he would take into account at which stage during the trial he had chosen to plead guilty, albeit that he was exercising his right to challenge the Crown case and sustain the presumption of innocence for as long as he could against the evidence.

If such an innovation is introduced into the law of Scotland, people may choose to plead guilty for the wrong reasons. Indeed, they may instruct their advisers to plead guilty while protesting their innocence because looking at the long term they may think, "I may be found guilty anyway. If I am found guilty I may receive a sentence of x years. If I take the short road now, at least I can save myself a couple of years".

That will raise difficulties in relation to representation because, as far as I am aware, no lawyer in his senses would take instructions from an accused person to

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tender a plea of guilty prior to the start of the trial on the understanding that of course the client maintained his innocence. In that situation all that can be done is to say, "I am sorry. I cannot accept your plea of guilty to anything which you say you did not do", even if that carries with it from the accused's point of view a degree of pragmatism and realism.

It may affect also the public interest in that prosecutors may be persuaded against the public interest to reduce serious complaints on indictment; for example, by deleting phrases such as "attempted murder" and taking a plea to assault to severe injury or reducing a serious sexual assault to indecent assault in the knowledge, through consultation with the accused's advisers, that if that is done a plea of guilty will be forthcoming and the prosecutor will not have to conduct a trial on the major issue. I am not saying that that will happen but I am saying that there is a danger that it may happen.

The Bill provides that the court "may" take into account the point at which a person pleads guilty but does not say that it "shall" do so. Therefore, to that extent it introduces a degree of uncertainty in the legislation and inconsistencies in the way in which the courts are run. For example, there may be a lazy judge—I am sure that no one has ever heard of a lazy judge but in this Committee I can say that I have heard of one and I know a few—who makes it known that, if an accused pleads guilty at an early stage, instead of going to prison he will be sentenced to perform community service or whatever and avoid incarceration. A diligent judge may acquire the opposite reputation and no guilty pleas will be tendered in his court.

In any event, what is proposed is against what, as I understand it, the Court of Criminal Appeal has said should not happen in Scotland. In the case of Strawhorn v. McLeod in 1987, the Lord Justice Clerk indicated that no inducements should be offered to an accused person to plead guilty. Indeed, I read in the newspaper today, in an attempt to have a sheriff's behaviour reviewed, reference is made to the very fact that one of the complaints is the offering of an inducement to a person to plead guilty.

That raises many professional problems. It is not doing justice and it does not achieve any degree of consistency. There cannot be a graded discount. It is not like a Christmas sale where there is 10 per cent. off, 20 per cent. off or 30 per cent. off and one chooses the best discount. In the absence of a scale of discounts, which cannot be given because each case depends on its own facts and circumstances, that is not an acceptable clause. In my submission, the Government should take it away and think again.

If it is designed, as it may very well be, to reduce the number of unnecessary trials and to save the time of witnesses, police officers and all the matters which we consider and hear about day in and day out, the motive behind the clause is quite acceptable. But the execution

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of that motive should certainly not be carried out in that way and I oppose the Motion that the clause shall stand part of the Bill.

Lord McCluskey: I should like to support the noble Lord in this regard. I shall deal with a technical point first and I hope to do so briefly. The clause states that,

    "a court may take into account—

    (a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty".

It very commonly happens that at an early stage an offender indicates his intention to plead guilty to something. But of course at that stage he has not even seen the charge. He has seen the petition which is served upon him within the first few days, but the terms of the charge may well differ from those in the petition. Therefore he does not in fact get an opportunity to respond to the charge itself until approximately four or five weeks before his trial. He may indicate his intention to plead guilty to something, but to what? That is not a matter which is made clear here.

But my real point is that this clause is entirely and absolutely unnecessary. Judges routinely take into account the matters which are specified here. No doubt is created in my mind by the 1987 case. That case in effect, as the noble Lord indicated, states that one cannot have any inducements or discounts. If I recall correctly, that sounds a bit like an advertisement for double glazing. One cannot have discounts and one cannot have formal inducements because that would introduce something which is entirely different. However, it is routine for me, and for other judges, to inquire when it was that the plea was first intimated. Then I am given the kind of response I have mentioned. It is routine for me to inquire why it was not then accepted. One sometimes receives quite a detailed story. I have a case before the Court of Appeal at the moment, the details of which I shall not go into. But in essence the plea was tendered rather late because, according to the accused person, his previous solicitors were not competently handling his case.

It is perfectly legitimate for the court to inquire into this. It is equally legitimate for an accused person to raise this matter and say, "I offered to plead on such and such a date" or, "I offered to plead on these terms, and that plea has finally been accepted, or a plea like it". Therefore the real point is that Clause 27 is entirely unnecessary. For the reasons which I specified in some detail when I dealt with an earlier amendment on the first day, it is quite wrong in principle for the legislature to put into statute provisions which are quite unnecessary. These provisions are quite unnecessary. I invite the Government to reconsider the need for them.

Baroness Carnegy of Lour: I would ask the noble and learned Lord whether it is absolutely obligatory at the moment for the lawyer to point out to the accused that there is this option and that it can make a difference. Would that not be more necessary if it were in the law? It seems to me that all this spinning out of cases is sometimes quite unnecessary. There are cases of a plea coming much too late or being changed much too late. I believe that all these circumstances which cost so much

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should be avoided if possible and I believe that could be done in the interests of justice. Would it not make a difference if that provision were in the statute?

Lord McCluskey: Certainly I would understand that the answer to the question is "no". It is not obligatory for an accused person's lawyer to advise him of his right to plead guilty. But on the other hand, I do not think that accused persons would need legal advice to the effect that they are entitled to plead guilty. I take the point made by the noble Baroness that of course if this statute were enacted in these terms the advice from the lawyer would be likely to be, "If you plead guilty early you are liable to get something off", but I think that would be the advice given now under the present circumstances. Any lawyer worth his salt acting on behalf of an accused person would appreciate that the earlier that person pleads, the more likely he or she is to receive leniency because that avoids expense, delay and the unnecessary bringing of witnesses to court, or indeed the precognoscing of witnesses by the procurator fiscal following upon the police investigation. I think that is so well known and so well understood among the legal profession and among the fraternity whom it serves in the criminal courts that it is unnecessary to put it in the Bill.

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