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Lord McCluskey had given notice of his intention to move Amendment No. 54:

Page 19, line 16, at end insert:
("( ) a victim impact statement as defined in section 217B(2).").

The noble and learned Lord said: My Lords, I do not intend to move this amendment, although I intend to speak on these matters in relation to Amendment No. 56. That is done in agreement with the noble Earl, Lord Mar and Kellie.

[Amendment No. 54 not moved.]

Lord McCluskey moved Amendment No. 55:

Leave out Clause 27.

The noble and learned Lord said: My Lords, this amendment is intended to leave out Clause 27. That clause provides that in determining what sentence to pass on an offender:

I do not oppose the clause because it is a bad idea to take account of an early indication—or any indication—by an accused person that he intends to plead guilty. In my view that is a perfectly proper observation; it is one which the courts in England have endorsed.

In Scotland a case was decided in 1987 called Strawhorn v. McLeod in which the court disapproved of a formal practice whereby a sheriff gave people a third off if they pled guilty at an early stage. The Lord Justice Clerk said in the report of that case—[1987] Scottish Criminal Case Reports, 413—at page 415 that no inducement should be offered to an accused person to plead guilty early.

It may be that it is wording of that kind that the Government have in mind when they want to change the mood in relation to those matters. I was surprised at the time and remain surprised by what the Lord Justice Clerk said in that case, speaking on behalf of the court. It is a matter of everyday practice that when an accused person appears before a court and says, "I plead guilty. I offered this plea three months ago and the Crown have not had to bring witnesses; they have not had to precognosce, take statements from victims and so forth and a lot of trouble and expense has been avoided", then the court is entitled to say that it will have regard to that and it is a pointer towards leniency. It cannot be made more formal than that. That is done and I certainly do it every day.

It may be that the Government have in mind not to overrule the case of Strawhorn, but simply to change the approach of the court to it. Can the Minister tell me whether the Government are trying to change the law and, if so, what change the clause is intended to achieve? I believe the clause to be unnecessary. As the

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noble Lord, Lord Renton, pointed out in the Renton report, one should not legislate unnecessarily. There is enough material on the statute book without adding to it. I beg to move.

Lord Fraser of Carmyllie: My Lords, this clause was debated at some length in Committee. It enables the court, when considering what sentence to pass, to take into account the timing and circumstances in which an offender pled guilty. Its purpose is to make it clear to all that courts have such a power and, if possible, to encourage those considering a plea of guilty to tender it before the day set down for their trial.

The noble and learned Lord, Lord McCluskey, referred to the case of Strawhorn v. McLeod and I understand that in his view the clause is unnecessary because judges already exercise such power. However, the noble and learned Lord will recollect that during the course of the debate at Committee stage, the noble Lord, Lord Macaulay, appeared to understand the case of Strawhorn as prohibiting a reduction of sentence for guilty pleas.

With respect, I agree with the noble and learned Lord, Lord McCluskey. The effect of Strawhorn v. McLeod has been misconceived. I understand that the judgment focused on the prohibition of a declared practice of discounting. It did not prevent judges taking a guilty plea into account as long as they considered the circumstances of each case individually. However, the misconception which the noble Lord, Lord Macaulay, embraced seemed to me and to the Government to be widely shared—not in the High Court in Scotland but in the lower courts. It is for that reason we felt it necessary to bring forward Clause 26.

While the law on this issue may be fully understood by the noble and learned Lord, Lord McCluskey, I am concerned that it is not so understood in the lower courts and may not be understood by the accused person. While the noble and learned Lord may feel that it is unnecessary, perhaps I can say that the introduction of the clause was among the proposals that came from a number of his brother High Court judges in Scotland in response to the consultation on the issue. With that explanation I hope that he will withdraw his objection.

Lord Macaulay of Bragar: My Lords, for the record perhaps I may indicate that the Minister referred to introducing Clause 26. I believe that we are debating Clause 27.

Lord Fraser of Carmyllie: My Lords, I am grateful to the noble Lord. I was of course talking to Clause 27 and the proposal by the noble and learned Lord, Lord McCluskey.

Lord McCluskey: My Lords, in the light of the explanation offered by the Minister I am content to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

Lord McCluskey moved Amendment No. 56:

After Clause 27, insert the following new clause:

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("Victim Impact Statements

. After section 217A of the 1975 Act there shall be inserted the following section—
"Victim Impact Statements.

217B(1) In any case in which an offender (whether or not he has pled guilty) has been convicted of an offence of assault, whether or not causing death, or of robbery or of any offence mentioned in section 141A of this Act the prosecutor when moving for sentence shall, if possible, place before the Court a victim impact statement as defined in subsection (2) below and the court shall have regard to it in determining the sentence or other disposal.
(2) A victim impact statement shall be a statement in a form to be prescribed by Act of Adjournal prepared by a legally qualified member of the procurator fiscal service and signed or otherwise authenticated by the victim (as defined in subsection (4) hereof) and containing information as to—
(i) the personal details of the victim, including his relationship (if any) to the offender,
(ii) the physical, emotional and mental consequences to the victim of the offence,
(iii) the financial or other patrimonial consequences to the victim of the offence,
(iv) (in any case in which the offender has been convicted on a plea of guilty) the victim's account of the offence,
(v) the victim's recommendation, if any, to the court as to whether or not leniency should be exercised in passing sentence,
(vi) any other matter prescribed by Act of Adjournal.
(3) Nothing in this section shall compel a victim to assist in the preparation of or to sign or authenticate a victim impact statement against his will.
(4) A victim for the purposes of this section is a person who has been the victim of an offence as specified in subsection (1) thereof or, in the case of an offence which has resulted in the death of the person assaulted, robbed or otherwise offended against, the widow, widower, child or parent of that person.
(5) A copy of the victim impact statement shall be served by the prosecutor on the accused not less than seven clear days before the trial diet."").

The noble and learned Lord said: My Lords, in moving Amendment No. 56, I shall speak also to Amendment No. 57. At Committee stage I proposed an amendment in the same terms as Amendment No. 56. However, it did not find its way into the record of proceedings and as a result people who purchased the Official Report were unable to follow precisely what it was that was being debated. I felt it desirable that it should appear in the record.

Perhaps I may draw your Lordships' attention to the features of the victim impact statements to which I want to refer. First, I am concerned with cases where the criminal process identifies a crime and a victim. Proposed new Section 217B(1) refers to a case where a defendant has been convicted of an assault, of a robbery or of an offence mentioned in Section 141A of the Act. It is therefore limited to the case where there has been a conviction and where that conviction has been of a kind specified in Section 141A plus assaults; that is to say, generally speaking, serious assaults plus sexual offences.

Subsection (2) says that the victim impact statement,

    "shall be a statement in a form to be prescribed by Act of Adjournal".

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I wish to draw attention to the fact that it is a written statement. I am totally opposed—the more I reflect on it the more opposed I become, if that is not a nonsense—to the idea that the victim should be allowed to address the court. For reasons explained earlier, that is something which we cannot tolerate in our system; it introduces the element of revenge which has no proper place in a court. However, partly in order to assure victims that their concerns have been properly taken into account, I am advocating that a victim impact statement be prepared. It will be a written document prepared by the procurator fiscal who occupies a special position in Scotland. He is not regarded as either the district attorney or the persecutor; he is regarded as exercising the functions of a minister of justice in an important sphere of criminal prosecutions.

The procurator fiscal will prepare, with the victim's assistance (only if the victim wishes it and not otherwise), a statement referring to the victim's personal details—the physical, emotional and mental consequences; the financial or other patrimonial consequences to the victim and, quite importantly, in any case in which the offender has been convicted on a plea of guilty, the victim's account of the offence.

I make this proposal because all too often a person who has suffered a serious assault or has been the victim of a sexual crime or other kinds of crime, discovers afterwards that the prosecutor has accepted a plea and the defence has been allowed to put forward an account of the matter, without contradiction, which does not square with the victim's understanding of what has really happened. I have known cases where the victim has felt cheated because his or her account of the matter has not been placed before the court. If we disappoint people, whether they be victims of crime or witnesses—or treat them badly in similar kinds of ways—a good deal of the population may become disaffected. The criminal justice system will not work if we lose the respect of people in that way.

I also propose that the written statement may contain other matters if, in the light of experience, it is thought desirable for other matters to be added. That can be done by subordinate legislation—an Act of Adjournal—enacted by judges of the High Court.

Subsection (3) provides that nothing shall compel a victim to assist. That means that the victims of crime are free to co-operate or not as they please. Subsection (4) attempts to give a definition to the word "victim", which is important in this type of case. Subsection (5) envisages service of a copy of the impact statement upon the accused person to give him time to respond to it. I believe that justice requires that an opportunity be given to respond to that kind of matter. Having outlined what I proposed, I shall move the amendment.

So far as concerns Amendment No. 57, this reflects a point that has already been discussed in an earlier amendment moved in the name of the noble Earl. However, in my case, Amendment No. 57 deals with the situation that arises in sentencing proceedings; in other words, when there has been a conviction and it has been identified that there has been a victim. I propose that in jury trials and sentencing in solemn proceedings, which in Scotland are more important than

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the many non-jury criminal trials the victim, or the next of kin if the victim has died, shall have the right to attend all such proceedings. That will give rise to practical problems, but I believe that with goodwill they can be overcome. Although perhaps one need not discuss this matter as fully as on previous occasions, the Government are urged to take these matters on board. To assist them in that regard, I move Amendment No. 56.

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