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Lord McCluskey: I do not think that the debate so far has properly come to terms with the fact that we are introducing here something which is absolutely novel in the criminal procedure in Scotland. It has never been done before. The Scottish criminal procedure is highly unusual, if not unique, in the respect that there is a one-stop appeal. Whether one is convicted in the district court, in the sheriff court, in the sheriff and jury court or in the High Court, one instantly appeals straight to the High Court of Justiciary. There is no appeal from the High Court of Justiciary. The High Court, sitting as three judges, may decide for assorted reasons to refer the case to a Bench of five, seven, nine, 11 or even 13

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judges, but there is no further right of appeal. Accordingly, what we are talking about here is the accused's right of appeal.

I am glad that the Lord Advocate reminded your Lordships of what was said at Second Reading. For those who were not present I referred then very briefly—I do not have the document with me now—to a document produced in England by Justice. The document referred to a case in which the papers were accidentally sent twice and arrived with the same judge. On one occasion, on perusal, he granted leave to appeal; on another occasion, on further perusal, not realising that he had already decided the matter, he refused leave to appeal.

There is nothing desperately unusual about that kind of thing. It sometimes depends on what side of the bed one got out of in the morning how well disposed one is towards a particular matter. Jurists call it "digestive jurisprudence" for obvious reasons. There is a good deal of danger in having a single judge decide this matter. It appears to me that it would not necessarily be a great addition to the expense if the single judge had the right to satisfy himself by inviting submissions. It is not a requirement. It is just a right for him to invoke the assistance of parties, which could be done in chambers. I urge Her Majesty's Ministers to think about this matter before the Bill is finally decided. However, for the moment, although I shall come back to matters of deep principle on the clause itself, with the permission of the Committee I withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment Nos. 104 to 106 not moved.]

On Question, Whether Clause 35 shall stand part of the Bill?

Lord McCluskey: In considering the appropriateness of enacting Clause 35, I ask the Committee to come to terms with its details. I have already mentioned them so I can do it fairly briefly. The clause envisages that the process of applying for leave to appeal begins with the single judge. When one looks at this clause along with Clause 53, in a sense one sees that in fact the first step is that the accused person has legal aid. I believe that I am right in saying that under the provisions of the Legal Aid (Scotland) Act 1986 the legal aid which was granted for the purposes of the trial will continue up to and including that stage. There is no question of denying legal aid at that stage.

However, the matter then comes before the single judge in chambers without an appearance by the parties. The single judge receives documents and nothing but documents. The documents are those which are listed in subsection (2). As I have already mentioned, the note of appeal simply sets forth the grounds of appeal. It happens from time to time that, very helpfully, parties choose to put rather more detailed submissions, as it were, with reference to authority and statute in the note of appeal. There is no compulsion on them to do that at the present time. The note of appeal may simply state the grounds of appeal. That is all that is required by the practice note which governs this matter.

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Subsection (2) (b) of the new section refers to the certified copy or the record of the proceedings at the trial. That is a very formal document which simply records the names of the witnesses, the times when the court sits, who appears and matters of that kind. There is nothing of substance there.

The third significant matter is paragraph (c):

    "where the judge who presided at the trial furnishes a report under section 236A of this Act, that report".

I have written and read many such reports. The judge is faced with the note of appeal which is essentially critical of the judge. It may criticise his charge, his ruling as regards the admissibility of evidence; it may criticise his observations to the jury during the course of the trial and it may criticise his directions to the jury at the end of the trial. It may also criticise the sentence imposed or any related matter.

So when a judge is sometimes faced with a barrage of criticism of what he has done or omitted to do, of course the temptation is to be defensive. I have seen many of these reports which are defensive in character. The judge will say, "I made a perfectly proper decision and looked at this authority or that". He becomes a kind of advocate for the accuracy of that which he has said and the authenticity of all the things he has done.

In a sense he becomes one who pleads his own case: at best he is going to be entirely neutral. At that stage nobody, in the course of a document, pleads the appellant's case before the judge who is sitting in chambers or before the appeal court which is sitting in chambers.

I reminded the Committee and particularly the noble and learned Lord the Lord Advocate, of what I said at Second Reading about the Granger case which went to the European Court of Human Rights. It is now reported in 12 European Human Rights Reports 1990 at page 469. What that case established, among other things, was, first, that appeal proceedings are covered by Article 6 of the European Convention. I do not believe that I need go into any detail in that matter because I do not believe that that would be disputed, least of all by the noble and learned Lord the Lord Advocate.

Perhaps I may read to the Committee very briefly what Article 6 says. I take the parts which are quoted on page 479 of the report,

    "In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal".

That is reading the matter short. As I have said, in determination of a criminal charge that includes the appeal proceedings. I now come to the important part:

    "Everyone charged with a criminal offence has the following minimum rights:

    (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require".

So the essence of the matter, leaving aside the legal aid dimension, which is the heart of the Granger case, is that everyone charged with a criminal offence, including the appeal proceedings, has the following minimum rights,

    "to defend himself in person or through legal assistance of his own choosing"

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or provided by legal aid.

Clause 35 says that when it comes to the appeal the accused has no right to appear before the judge or before the High Court. Indeed, the noble and learned Lord the Lord Advocate has just explained that that is not necessary, simply because the case may be unarguable. The question of unarguability was dealt with in the Granger case when, although the High Court of Judiciary had pronounced the Granger appeal unarguable and unstatable, nonetheless the Court of Human Rights held that he should have had representation for the purposes of hearing that appeal.

I await the Lord Advocate's answer with interest, but without having had the benefit of hearing any contrary argument—one always likes to hear the contrary argument for reasons that I have sought to explain—I cannot see how this clause can stand part of the Bill in the face of Article 6 of the European Convention on Human Rights.

I conclude with why I also object to Clause 53 and why I shall oppose the Question that that clause stand part of the Bill. Clause 53 appears on page 45 of the Bill and deals with legal aid in criminal appeals. In effect, it says that a person cannot get legal aid for an appeal unless the judge or the High Court has given leave. We are exactly in Granger territory now because in that case Granger was not granted legal aid and that was held to be a contravention of the European Convention because of the complexity of the case that he had to argue. In this case, combining Clauses 35 and 53, the accused person who seeks to appeal will not be entitled to representation by his lawyer and will have no right to appear in person. That is a plain contravention of the article. It is for those reasons that I invite Ministers to withdraw Clause 35 and why I do not think that the Committee should grant the clause its approval at this stage.

9.15 p.m.

Lord Rodger of Earlsferry: The noble and learned Lord, Lord McCluskey, made a number of comments in connection with Clause 35 and referred back to what he said on the amendments in relation to the form of the note of appeal. He pointed out that, under the present form, the judge would get a note of appeal which would not necessarily contain any reference to authorities. The noble and learned Lord said—and I can see the force of it—that having a note of any relevant authorities could often be of assistance to a judge, especially when considering the matter by himself.

The Government are always anxious not to interfere unduly in the workings of the High Court of justiciary. We have been criticised on occasion in Committee debates for seeking to do so. We have taken note of the fact that under Section 233(2) of the Criminal Procedure (Scotland) Act 1975 the form of the note of appeal is something that can be determined by Act of Adjournal. Therefore, I suggest to the noble and learned Lord that if the judges think that it might be of assistance—I can see that they may well do so —it would be open to the High Court to specify a form of the note of appeal which would include reference to authorities.

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Looking at the matter more widely (because the noble and learned Lord looked at it more widely) I believe that the noble and learned Lord was saying that the provisions were objectionable under the European Convention on Human Rights. The noble and learned Lord rightly drew a connection between Clauses 35 and 53. He said, "If you don't get through the test in Clause 35, you don't get legal aid". I might put it the other way round and say, "If you do get through the test in Clause 35,"—the matter is arguable—"when you appear in future in the appeal court, you will have legal aid and you will therefore have representation".

I defer to the noble and learned Lord's experience in almost every sphere except in terms of trips to Strasbourg because in my time I have had probably more than my fair share of trips to Strasbourg in connection with the proceedings of the criminal appeal court in Scotland.

What the Strasbourg judges, whom it is a pleasure to visit, I may say, object to principally is that in Scotland we have a system which allows people to appear in the Appeal Court. They appear in the Appeal Court and they have sitting opposite them representatives of the Crown. In the Granger case, it was my noble and learned friend the Minister of State who was then Solicitor General, and on other occasions it may be advocates depute, and so on. What is then said to be wrong is that there is an infringement of the principle of equality of arms, because the judges say that where there is a hearing in front of the court, it is wrong that one side—the Crown—should be represented while the other side—the accused—is not. One can see the force of that in some respects.

We have argued all sorts of things—for example, the fact that the Crown does not necessarily speak, and so on—but we have been rejected. Nonetheless, if one has regard to other aspects of the jurisprudence of the courts—we have from time to time sought to invoke them—one finds that the position in relation to leave to appeal is different. That matter has been explored in connection with the position in England and Wales. That occurred in particular in the case of Monnell and Morris. In that case, the court in Strasbourg held that it was consistent with the convention for one to have a system of leave to appeal, such as is envisaged here, where written representations were put in by the appellant, but where there were no representations from the Crown. Therefore there was no infringement of the equality of arms. In other words, the court did not accept —with the greatest possible respect—the construction put upon Article 6, which the noble and learned Lord, Lord McCluskey, has advanced.

In considering the clause, we had regard, and had to have regard, to the jurisprudence of the court in Strasbourg, because there would be no point in putting it forward if it would inevitably fall. We believe, for the reasons that I have indicated, that the clause is consistent with that, and it produces a system which will allow the court to weed out frivolous appeals, and thereby—I put considerable weight on this—allow those appeals which are not frivolous, but serious, and raise points which have to be decided, to be brought on and disposed of

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more quickly. Therefore, with the greatest respect to the noble and learned Lord, his criticisms of the clause are not justified, and it should stand part of the Bill.

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