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Lord Rodger of Earlsferry moved Amendment No. 32:

Page 11, leave out line 20 and insert ("evidence as to any such fact as is specified in the direction, notwithstanding that a witness

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or production concerned is not included in any list lodged by the parties and that the notice required by sections 81 and 82(2) of that Act has not been given.").

The noble and learned Lord said: My Lords, when the matter was last before your Lordships in Committee, I undertook to consider the drafting of Clause 14 to see whether some improvements might be made in the light of certain observations made by the noble and learned Lord, Lord McCluskey. We have given careful consideration to what was said in Committee, but we have concluded that the clause should remain broadly as originally drafted.

The proposal of the noble and learned Lord, Lord McCluskey, would have returned the position to that outlined in the report of the Scottish Law Commission. However, we have concluded that it is desirable to have the facility available to both parties. Nonetheless, during the course of our consideration, various issues arose. In particular, we thought it correct to bring forward the above amendment which is a clarification. In the circumstances, where a court directs that a fact that has hitherto been considered uncontroversial because of the provision has to be proved in the normal way, it should be open to the party requiring to bring the evidence for such proof to do so even though he has not been able to include a witness or a production in any list previously lodged by him or has not been able to give the requisite notice in terms of Sections 81 and 82(2) of the 1975 Act. I believe that it is a useful amendment which makes the position quite clear. Again, it will allow matters to be dealt with effectively at the trial. I beg to move.

Lord McCluskey: My Lords, I am disappointed that the Government have not felt able to go along the road suggested by the Scottish Law Commission which I have advocated and supported. However, there is some hope in what the noble and learned Lord the Lord Advocate said; namely, that we may be able to go forward from where we are at present in relation to agreeing evidence. One way in which the noble and learned Lord can secure a real advance is to take advantage of what he has done and what the Government are doing in this particular clause by providing what the noble and learned Lord called the "facility" to both parties and introducing a regime in the Crown Office and the fiscal service whereby prosecutors think very positively about the possibility of coming forward with minutes of agreement. Hitherto the possibility for a minute of agreement has existed. This takes the possibilities a little further.

I am sure that if the noble and learned Lord the Lord Advocate were to think positively about that it would ultimately be to the good of us all and would save a lot of time and expense. He could encourage a new culture among prosecutors which would mean that they would seek to obtain agreement on all matters that perhaps are not in dispute. I hope that the noble and learned Lord will give consideration to issuing an instruction to those for whom he is responsible in this regard. However, I would not oppose—indeed I would support—the amendment.

On Question, amendment agreed to.

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5 p.m.

Clause 15 [Evidence of biological material]:

Lord Macaulay of Bragar moved Amendment No. 33:

Page 11, line 27, leave out ("shall") and insert ("may").

The noble Lord said: My Lords, this amendment refers to the introduction of evidence as to the characteristics or composition of any biological material, notwithstanding that neither the material nor a sample is lodged as a production. It is a simple amendment which seeks to remove the word "shall" from page 11, line 27 of the Bill, and introduce the word "may". This amendment reflects the spirit of the previous amendment, which the noble and learned Lord the Lord Advocate moved, to give a degree of flexibility in the introduction of evidence. It may well be that there are good reasons why the sample is not available or lodged.

The inclusion of the word "may" would give the court a discretion—applying the touchstone of fairness—as regards why the sample or material is not lodged. As the clause presently stands, the court has no flexibility at all and presumably could not hear any argument in relation to the non-production of material or a sample from either the Crown or the defence point of view. It may save a lot of trouble—perhaps from an appeal point of view—if the court was given that flexibility to consider the matter in the light of any evidence or submissions presented to the court in relation to the particular matter under review in Clause 15. I beg to move.

Lord Rodger of Earlsferry: My Lords, the Government cannot accept this amendment. The position is that the clause is carefully focused in relation only to evidence as to characteristics and composition of any biological material. The position is that where it is only relating to characteristics and composition, these are matters about which evidence can properly be given in the absence of a sample and that evidence would not—for example, if it were relating to an analysis of the composition—be advanced by having simply present in court the sample itself.

The reason this has been brought to notice is because nowadays in particular people are sensitive to the health hazards which can arise from having, for example, certain blood samples in court. For that reason, it has been thought correct to address this matter. The matter has to be done on the basis of a general rule and not on the basis of a mere discretion because it has to be clear what the position is so that the prosecution knows whether the samples have to be there. If one had the kind of rule which the noble Lord envisages, that would introduce uncertainty, and it is to get rid of the uncertainty which has arisen because of certain decisions of judges in cases as to admissibility of evidence that this matter is being put on the statute book. Therefore I cannot accept the amendment.

Lord Macaulay of Bragar: My Lords, I am obliged to the noble and learned Lord the Lord Advocate for that explanation. I am not too happy with it but no doubt the matter will be monitored throughout court

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proceedings and we shall see whether any serious debates take place in the course of criminal proceedings as regards the application of this particular section which, as I see it, may have certain evidential dangers. However, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 [Routine evidence]:

The Deputy Speaker: My Lords, I inform the House that if Amendment No. 34 is agreed to, I cannot call Amendment No. 35. I now call Amendment No. 34.

[Amendment No. 34 not moved.]

Lord Rodger of Earlsferry moved Amendment No. 35:

Page 13, line 4, leave out ("which") and insert:
("(7C) No order shall be made under subsection (1A) above unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
(7D) A statutory instrument containing an order under subsection (2A) (b) (ii) above").

The noble and learned Lord said: My Lords, this amendment is brought forward as a consequence of an undertaking which was given to apply the affirmative resolution procedure to an order amending Schedule 1 to the Criminal Justice (Scotland) Act 1980. In moving the amendment, I should perhaps make it clear to the House that I intend to bring forward at a later stage an amendment which will provide additional items for Schedule 1 to the 1980 Act where it is considered that routine evidence provisions are appropriate. That is in order that, as far as possible, the matter should be tidied up in primary legislation before any question of using this power arises. I beg to move.

On Question, amendment agreed to.

Clause 18 [Evidence of criminal record and character of accused]:

Lord Rodger of Earlsferry had given notice of his intention to move Amendment No. 36:

Page 13, line 29, leave out from beginning to ("Act") and insert:
(".—( ) In section 141 of the 1975 Act (accused competent witness for defence in solemn proceedings)—
(a) in subsection (1), in paragraph (f) (ii) of the proviso—
(i) after the word "character" where it first occurs there shall be inserted "or impugning the character of any victim who is deceased"; and
(ii) after the word "prosecution" in the second place where it occurs there shall be inserted "or of any such victim"; and
(b) after that subsection there shall be inserted the following subsections—
"(1A) In a case to which sub-paragraph (ii) of paragraph (f) of the proviso to subsection (1) above applies, the prosecutor shall be entitled to ask the accused a question of a kind specified in that paragraph only if the court, on the application of the prosecutor, permits him to do so.
(1B) An application under subsection (1A) above shall be made in the course of the trial but in the absence of the jury, the victim, any person cited as a witness and the public.".
( ) After section 141 of that").

The noble and learned Lord said: My Lords, government Amendments Nos. 36, 37, 40, 41, 42, 43, 46 and 47 deal with a number of issues arising from Clause 18. The intention behind Clause 18 was I think

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apparent at the time of the discussion in Committee. A number of issues have arisen during the consideration of this clause both in the light of what was said in Committee and in the light of further work which has been done on it. I must say to your Lordships—it is with regret that I say this—that I am not satisfied that the amendments as they appear on the Marshalled List today would fully address all the points. In particular, I am not satisfied that they deal properly with the inter-relationship of Section 160 of the Act and Section 141, and what would be Section 141ZA. For that reason, it would not be my intention to move these amendments today.

In saying that I should also say that, partly in the light of the observations made by the noble and learned Lord, Lord McCluskey, as to the use of the word "victim", I think that the splattering of the term "victim" in Amendments Nos. 40, 41, 46 and 47 in the place of "complainer" would not be entirely helpful. Rather than move the amendments today and then have to re-amend them, I believe it is better that I should not move them. I do not propose to move the amendments. I apologise to the House that that is so but I hope at least that the amendments as they appear on the Marshalled List will give a general indication of the thinking of the Government on the matter. I shall not move Amendment No. 36.

[Amendment No. 36 not moved.]

[Amendment No. 37 not moved.]

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