Previous Section Back to Table of Contents Lords Hansard Home Page

Lord McCluskey: The fault may well be mine. I did not realise the connection. I wish to draw attention, however, to what is contained in this new subsection (1C), the terms of which are set out in the Marshalled List under reference to Amendment No. 113. The subsection states:

This is an attempt by the Minister to solve a problem. The problem, I believe, arises in this way. If a person appeals against conviction and his appeal is successful, the court may order a retrial. But the noble and learned Lord the Lord Advocate will recognise that before the person gets to the stage of appealing, it may be that he faced half a dozen charges and the Crown, for perfectly respectable reasons, decides not to proceed with the other five. It may decide that they were really paving charges, as it were, to give notice of evidence which was intended to be led and therefore they are dropped. Of course the jury, or judge, returns a verdict of acquittal, perhaps under our new procedure, or the jury may acquit if that is the way it is done. Accordingly when the retrial is ordered, these charges cannot be brought. It is therefore necessary, if one intends to lead the evidence which would have supported these charges, to give notice. But we end up with an entirely novel creature in our procedure—an indictment which charges certain matters as the charge, and an indictment which contains also, as a kind of addition, the statement; by the way, the Crown will need evidence in support of these other matters. I do not recognise that creature and I do not know how it would affect general arguments about competency and relevancy and other matters of that kind.

The new provision states:

    "The indictment in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence".

What I want to know is the following. If a person, having appeared in the court below has been acquitted, whether by the verdict of the jury after evidence, or by the verdict of the jury, or by intervention by the judge as is permitted under the 1993 Act, will it be competent to include in the indictment—in the new prosecution—matters which relate in effect to the person's involvement in those charges?

Lord Rodger of Earlsferry: The noble and learned Lord is drawing attention to an important matter on which we have focused in this amendment partly as a

16 Jan 1995 : Column 490

result of comments which we have received. We think it is right that where the Crown has been given the right to bring a fresh prosecution there should be a certain procedure. One can think of, for example, a murder as being the classic case. The noble and learned Lord will know the kind of case that I am thinking of where it is necessary to include another charge. Under the recent decision in Nelson the cases where that will be necessary may be reduced, but there may nonetheless be cases where, solely in order to prove the main charge, it may be desirable to have the opportunity to relead evidence which would technically relate to another charge. I accept, of course, that there may be circumstances where the court below has done that—perhaps it was done for evidential reasons—and where therefore there has been an acquittal on that matter.

We envisage that using this provision it will be possible to give notice not that we seek a conviction on that matter, but that we seek to lead evidence on that matter. The noble and learned Lord says that he does not recognise that. I accept that it is not a matter which has been dealt with in that way. But the noble and learned Lord will recognise that where, for example, it has been necessary for the proof of a charge to lead evidence of matters which would be criminal behaviour had they occurred in Scotland but which —I am thinking of a particular case—occurred in Belgium or Germany, in practice it has been possible to include in the indictment words to the effect "further it will be shown that" and then to narrate the evidence.

That is what we envisage doing. It will not be possible in that situation for the Crown to seek a conviction on the matter. To that extent the matter is decided by what happened in the court below. Nonetheless, it will give notice to the accused that in proof of the charge which we seek to prove on reindictment we shall seek to lead evidence of those matters.

Lord McCluskey: I understand the answer given by the noble and learned Lord the Lord Advocate and I have sympathy with what he intends to do. However, I urge him to think again. In particular, as he knows, it is common in a murder charge to find that the accused is charged with a breach of the peace and other minor assaults or possession of a weapon. To clear the ground for the jury, these matters may be dealt with or the jury may itself return verdicts. If the person has been acquitted of breach of the peace, possession of an offensive weapon or of the preliminary or subsequent charge, or of the assault upon the police or whatever it may be, then can it be right to include in the indictment a notice to the effect that the Crown will lead further evidence to show that he committed the breach of the peace, assaulted the police, possessed an offensive weapon or whatever it may be? The matter needs further thought.

I do not believe that the matter has been properly thought through in these provisions. With that advice I suggest that the noble and learned Lord the Lord Advocate should think about the matter further.

16 Jan 1995 : Column 491

On Question, amendment agreed to.

Lord McCluskey moved Amendment No. 112:

Page 29, line 42 after ("proceedings") insert ("and, for the removal of doubt, it shall be competent for the accused to lead evidence of statements made extrajudicially by any person who was accused along with him in the earlier proceedings, regardless of the result of those earlier proceedings for that person.").

The noble and learned Lord said: Amendment No. 112 is concerned with the particular matter which perhaps lawyers alone will understand, but I shall do my best to explain it as briefly as possible.

In a case which was heard a year or two ago in the Appeal Court there had been two accused persons—McLay and Harkins. Both were charged with murder. Each of them said "It was not I who did it. It was the other person". They lodged defences of incrimination. At the conclusion of all the evidence and the speeches the trial judge directed the jury that it was not a case in which it could be held that the two had acted together in concert. Accordingly, while there was evidence on which the jury could convict McLay and acquit Harkins, or evidence on which it could convict Harkins and acquit McLay, there was no evidence on which it could convict both. It was one or the other, or neither. McLay was convicted and Harkins was acquitted, it so happens on a not proven verdict, which was somewhat illogical in that case.

Shortly thereafter it was discovered by and on behalf of McLay, the convicted man, that both before and after the trial Harkins had said to a number of other people that it was not McLay who committed the murder but himself. In other words, it was discovered that Harkins had confessed to the crime before, after, and possibly during the course of the trial. Accordingly, McLay appealed and argued that that was additional evidence which ought to be put before the court to show that a miscarriage of justice had taken place. The court held that it was indeed additional evidence, but that it was not admissible evidence. It was not admissible evidence because it was hearsay evidence. It was a statement made by a living person—to wit one who was available to give evidence, although it so happened that Harkins had made it clear to McLay's representatives that he would not give evidence at any second trial. Accordingly, the evidence was regarded as hearsay, the court decided that it was inadmissible and the defence was not allowed to lead it.

The curious factor was this. It was acknowledged by the judges in the case, notably the Lord Justice Clerk and myself—I wrote a dissenting opinion—that any evidence which showed that Harkins committed the crime was plainly evidence that McLay did not because it was a one or other situation, as I explained earlier.

In delivering the leading opinion, the Lord Justice Clerk stated in terms at page 411D of the 1994 Scottish Criminal Case Reports:

    "I accept that at the first trial evidence of confessions made by Harkins would have been admissible, but this would have been because he was an accused and statements by an accused person may be proved. No doubt such evidence might have incidentally benefited the appellant; as the trial judge pointed out in his report, this was a case where the deceased must have been stabbed by a single assailant, either Harkins or the appellant. Harkins and the appellant each sought to incriminate the other and, accordingly, any

16 Jan 1995 : Column 492

    evidence tending to inculpate one would tend to exculpate the other. In these circumstances I accept that if evidence had been led at the first trial of confessions made by Harkins, such evidence would have assisted the appellant".

However, despite that view the court declined to allow evidence to be heard as additional evidence which, being that very evidence, would have been admissible at the first trial but could not be admissible at the second trial and therefore could not be regarded as admissible evidence.

I regard that as an extraordinary anomaly in our law. The Lord Justice Clerk was satisfied with the law as it was; indeed I believe that the other judges were. In that context, although the Lord Justice Clerk was not suggesting that the law should be altered by legislation, he said that if it had to be altered, it should be by legislation. I propose that that should be done. Although the words in my amendment "for the removal of doubt" may not be entirely appropriate, the essence is clear, that,

    "it shall be competent for the accused to lead evidence of statements made extrajudicially by any person who was accused along with him in the earlier proceedings, regardless of the result of those earlier proceedings for that person".

Accepting that the amendment may be technically defective, nonetheless I hope that the Government will consider it. I beg to move.

9.45 p.m.

Lord Macaulay of Bragar: Perhaps I may briefly support the amendment of the noble and learned Lord. I share his misgivings about the present state of the law. We have been told time and again about allegations of miscarriage of justice. I should have thought that the amendment is at least one step towards the prevention of miscarriages of justice. I commend the amendment to the Committee.

I shall not go into it in detail at this stage except to say this. I understand that the Law Commission will shortly be reporting on the question of hearsay. I hope that this case is considered closely in that report. I am not privy to it. I look forward to seeing the report in due course. In the meantime, I add my support to the submission of the noble and learned Lord.

Next Section Back to Table of Contents Lords Hansard Home Page