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Lord McCluskey moved Amendments Nos. 38 and 39:

Page 13, line 38, leave out from ("prosecutor") to end of line 39.
Page 14, line 7, leave out from ("prosecutor") to end of line 9.

The noble and learned Lord said: My Lords, these amendments raise the same point as Amendments Nos. 44 and 45. Your Lordships will recall that on the first day of the Committee on 12th January at col. 391 of the Official Report, Volume 560, No. 22, this matter was dealt with. I give the reference because I think it is important that those who look at this matter in another place can read the arguments in full. I do not propose to repeat them at this stage in the Bill.

This clause as presently drafted, and indeed the amendments which the noble and learned Lord the Lord Advocate will not move, take us in the same direction. They are a giant step away from a well established principle. The principle was this: that where an accused person chose to attack the character of a witness, or for that matter the character of a prosecutor, he then put his own character in issue, provided he gave evidence. If he was saying that the witnesses were against him and should not be believed because they had bad characters, then if the accused gave evidence it was only right and proper that his character, too, should be brought to the attention of the jury so it could make an equal judgment about the parties.

The new provisions put the character of an accused person in issue even if he does not give evidence. That is the whole essence of the matter, as your Lordships will see from what is currently appearing in line 31 of new Section 141ZA; namely, where the accused does

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not give evidence on his own behalf but evidence is led, then his character can be attacked. In my view, that is unprecedented in our law. The noble and learned Lord the Lord Advocate put forward what I do not think is a respectable argument—the argument based upon Section 160(2) which deals with a totally different situation. An amendment was promised on the previous occasion. We shall have to wait with baited breath to see what it contains.

We are moving, without due and careful consideration, away from a situation which has been part of our law from the beginning. I have asked to see the justification for it. I should like to know who came up with the idea and who was consulted about it. In my view, we should not alter a very old rule of law which favours justice without thinking the matter through and consulting properly about it.

As some of your Lordships will be aware, because I mentioned the fact in Committee, I have been looking at the penal and criminal justice systems in North America, particularly in California. They are moving towards a situation in which the whole character of an accused person is laid before the court before the jury is asked whether he committed a particular act on a particular day. It would be deplorable if we were to go down that road. However, this is a giant and substantial step in that direction. I hope that the Government will consider carefully whether they want to go ahead with this proposal. In order that the matter may be discussed, I beg to move.

Lord Rodger of Earlsferry: My Lords, as was said when the matter was discussed in Committee, the Government see the proposal in the clause as one which should achieve substantial justice. As the noble and learned Lord said, at present the position is that when somebody brings the character of the prosecutor or the witnesses or his own character into issue then if he gives evidence he may be asked questions about his previous convictions and so on.

In addition, with the greatest respect to the noble and learned Lord, Lord McCluskey, it is clear that, by reference to Section 160(2) in relation to the general bar on leading evidence of previous convictions, it is possible to do so where an accused person has given evidence suggesting that he is of good character. The Government seek to generalise that provision and to allow that to take place in addition where the accused has attacked the character of the prosecutor and his witnesses.

The reason, which I submit is a sound one, is that if the defence has been conducted in such a way as to suggest that the witnesses for the prosecution are of bad character it is surely only right that a rounded picture should be presented to the jury and that they should be made aware also of any relevant characteristics of the accused and that he himself is not necessarily of good character. If that is not the case then the jury are presented with a false picture.

However, of course the Government accept that it is necessary, in order that such a rule should not be capable of wreaking injustice, that the whole matter

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should be subject to a provision that the permission to lead such evidence should be given by the court. That is what is envisaged.

I believe that that safeguard, which is one that I have indicated that we wish to put also on the face of the statute in Section 141 of the existing legislation, will ensure that the proposal will not have the negative effects suggested by the noble and learned Lord, Lord McCluskey, but will allow juries, in an appropriate case, to see the full picture.

Of course I share the distaste of the noble and learned Lord, Lord McCluskey, for any general suggestion that juries would regularly hear about the accused's previous convictions, and so on. That would not assist. That is not proposed here. Only where he has put such matters at issue would that be done, with the permission of the court, by way of leading evidence. I believe that that balance is correct. I ask the noble and learned Lord to withdraw his amendment.

5.15 p.m.

Lord McCluskey: My Lords, I shall certainly withdraw the amendment because I do not propose to divide the House from these Benches on such a matter. However, I wish to remind your Lordships of the essence of the point.

First, when the defence representative attacks the character of a Crown witness, he does so not because he wants to show that the Crown witness is a bad character, but because he wants to show that the Crown witness is not credible. It is essentially his credibility that he is attacking. He does that by means of attacking the character of the witness. Accordingly, if he has done that, when the accused enters the witness box to give evidence his own character is relevant as shedding light upon his credibility. But the character of the accused person is not an issue in the case other than in those special circumstances.

Another case which arises under the new section is the case of an attack upon the character of a deceased person. There is a very famous case in Scotland of Daniel Patrick Boyle. He was a young man who was accused of murdering a much older man. In the event it appears that a fight started involving the older man and some companions armed with lethal weapons and a number, including Boyle's friend, also armed with lethal weapons. At some stage one of Boyle's friends went down and was attacked by the others with lethal weapons. Boyle rushed in himself, armed with a knife, to rescue his friend. In that context, the character of the man he stabbed and who died was of great importance. The man who was killed was William Murray Bennett, a well known Glasgow villain. He had been a Glasgow villain for a quarter of a century. Anyone seeing him brandishing a knife, an iron bar or a billiard cue—which I believe he had on that occasion —would know that he meant business. Therefore, it was perfectly relevant to bring out the fact that that man had a fearsome reputation and record for criminal activity. That should not have exposed the record of Boyle to examination by the jury because it was not a relevant consideration, whereas the record of the deceased was relevant.

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There are special cases. I do not favour a change in the law which would result in the character of the accused becoming an issue in a trial except in the special circumstance to which we have become accustomed. Therefore, I hope that the Government will think again. In the meantime, I beg leave to withdraw the amendments.

Amendments, by leave, withdrawn.

[Amendments Nos. 40 to 48 not moved.]

Clause 22 [Evidence in relation to sexual offences]:

Lord Rodger of Earlsferry moved Amendment No. 49:

Page 16, line 41, leave out from beginning to second ("of") and insert (".—(1) In section 141A(2)").

The noble and learned Lord said: My Lords, in moving Amendment No. 49 I shall speak also to Amendment No. 51.

The noble Lord, Lord Macaulay of Bragar, will recall that I accepted that the amendment which he put down to the clause at the Committee stage had merit. I am therefore pleased to bring forward an amendment which will introduce a revised form of wording to extend the protection afforded by Sections 141A and 364A of the Criminal Procedure (Scotland) Act 1975 against questioning on the previous sexual history or character of a witness in a sexual offence trial to those offences covered by Sections 2B and 2C of the Sexual Offences (Scotland) Act 1976.

I have taken the opportunity of reviewing whether there are other sexual offences which might usefully be added to the list covered by the provisions. We have concluded that offences under Section 7 of the Sexual Offences (Scotland) Act should also be included. That section refers to acts of gross indecency between males. I beg to move.

Lord Macaulay of Bragar: My Lords, I wish to put on record my thanks to the noble and learned Lord the Lord Advocate for taking on board the matters which were raised at Committee stage.

On Question, amendment agreed to.

[Amendment No. 50 not moved.]

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