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Lord Rodger of Earlsferry moved Amendment No. 65:

Page 26, line 3, leave out ("and").

The noble and learned Lord said: My Lords, in moving this amendment I speak also to Amendment No. 66. This amendment is in response to the amendment tabled by the noble Lords, Lord Macaulay and Lord Carmichael, in Committee to require the judge's charge to the jury to be placed before the judge when

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considering whether to grant leave to appeal. I indicated at the time that I was happy to accept the spirit of that amendment.

The amendment now before your Lordships will ensure that when a transcript of the judge's summing up is obtained (and such a transcript is always obtained by the clerk of justiciary when an appeal is against conviction or conviction and sentence), the transcript will be included in the documents placed before the single judge or, in cases where the application for leave to appeal is pursued, placed before the High Court. I hope that this meets with you Lordships' approval.

However, noble Lords will notice that the form in which the amendment is at the moment refers to "the summing up". I believe that it is more usual in Scottish terminology to refer to "the judge's charge". We have used "summing up" here because of the statutory cross-reference to Section 275(1). With your Lordships' leave, I propose at Third Reading to bring forward minor amendments to allow that to be put in the normal Scottish form. I beg to move.

Lord McCluskey: My Lords, there is one matter here to which we should draw attention at this stage, although it touches on the whole clause. In theory, the transcript becomes available at a very early date. There are only six weeks allowed between note of application for leave to appeal and the lodging of the note of appeal, if I recall correctly. But in fact the transcript never appears within that time, or seldom does. What happens is that the clerk of justiciary exercises a kind of dispensation and interrupts the period of six weeks. That is provided for in the statute, although I have been unable to put my finger on the particular provision. The result is that if we are to wait several weeks for a transcript, as is likely, the application for leave to appeal is bound to be delayed also by that circumstance, and everything else is then delayed. Accordingly, that is just one indication of the fact that the application for leave to appeal will delay appeals in Scotland, whereas in recent years we have been highly successful in moving towards disposing of appeals without delay. This is a retrograde step.

Lord Macaulay of Bragar: My Lords, the noble and learned Lord the Lord Advocate has taken on board what was said in Committee and will no doubt bear in mind what the noble and learned Lord, Lord McCluskey, has just said about delay. I think that the provision of the transcript is an essential ingredient in the appeal procedure. If something is wrong in the production line, the sooner it is sorted out the better. I am sure that the Government will take note of what the noble and learned Lord said.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No. 66:

Page 26, line 5, at end insert ("; and
(d) where, by virtue of section 275(1) of this Act, a transcript of the summing up by the judge who presided at the trial is delivered to the Clerk of Justiciary, that transcript.").

On Question, amendment agreed to.

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Lord McCluskey moved Amendment No. 67:

Page 26, line 5, insert ("and
(d) the appellant's detailed response to the report referred to in the proceeding paragraph, with such references to authority and such submissions as the appellant wishes to place before the Judge of the High Court.").

The noble and learned Lord said: My Lords, as has been said, the clause deals with leave to appeal and provides that the documents which are specified are to be placed before the court. We have just added the judge's charge to that list. I am seeking to add to the documents the appellant's response to the judge's response to the appellant's note of appeal because, as I said earlier, what happens is that when the appellant puts in a note of appeal he discloses in that note the grounds of the appeal. He may say, "The judge misdirected the jury in this or that respect", or, "The judge allowed this evidence when he should not have done so and disallowed that evidence when he should have allowed it". The judge is sent a copy of that and produces the judge's report. That is referred to in what will be new subsection (2) (c).

A judge who is faced with criticisms of his charge—for misdirecting the jury, for excluding evidence that should have been admitted or for allowing evidence that should have been excluded—tends to react slightly defensively. If he is told that the sentence is too long, he begins to justify the length of the sentence that he has given. I am afraid that that is an inevitable part of the human condition. The judge who is to hear the application for leave to appeal receives a formal note containing the grounds of appeal, a defensive response to that from the judge, and nothing more. What I am advocating is that an appellant should be entitled to respond to the judge's report and to reply to any matters that have been raised by the judge in that report.

In that way, we will be taking a small step towards achieving what the European Court of Human Rights referred to as "equality of arms" in the cases which we discussed in Committee. A court which is called upon to take such a decision ought to have before it equal representations, as it were, by both parties. For this purpose, the judge's position becomes akin to that of a party, so the court ought to have the appellant's response to the judge's report. In those circumstances, I think it appropriate to include this provision in the Bill. I beg to move.

Lord Rodger of Earlsferry: My Lords, the noble and learned Lord is addressing a particular problem in relation to the reports of trial judges. Although I accept that there can be cases where such reports are less than totally objective, nonetheless I believe—I hope that the noble and learned Lord will acknowledge this—that in most cases judges put the matters forward in what they would regard as as neutral a way as possible. I am sure that where they do not, the judges considering these matters will readily detect that and treat them accordingly. As a generality, I do not think the problem is great but, where it does occur, I do not think that one should call into play the idea that the judge then becomes somebody who is, so to speak, embattled, with equality of arms coming into it. We have complications enough with that concept without applying it to judges.

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Matters would be further delayed if there were to be another stage at which comments could be made about the judge's report. I do not think that that is desirable. However, where leave was refused and where an application to appeal was made to the High Court, I envisage that it would be possible at that stage for an appellant to make any observations that he thought appropriate about the nature of the trial judge's report. That is the kind of matter that might be left to an Act of Adjournal. However, I am not convinced that at this stage it would be desirable to have the document to which the noble and learned Lord refers.

Lord McCluskey: My Lords, with respect, there is a lack of logic in that. If the Lord Advocate is right that between the stage of applying to the single judge and applying to the High Court, the appellant will have an opportunity to respond to the judge's report, that provision ought to appear in the Bill —and it does not. The documentation that goes to the appeal body in relation to matters of leave is exactly the same as that which goes before the judge below, with the addition of any written reason which the judge has produced. The Government should think further about this. If they want to give an appellant the opportunity to respond to something in the judge's report if he detects a lack of objectivity, that opportunity could be achieved by provisions in the legislation. I am not sure that we would regard that as a suitable matter for an Act of Adjournal when Parliament had had an opportunity to include it in these provisions but had neglected to do so.

I have mentioned equality of arms, and in that connection I have looked carefully at the case of Monnell and Morris v. The United Kingdom, which was reported in 1987/10/EHRR on page 205. That case is interesting and the Lord Advocate referred to it in Committee. It is interesting to note that it expressly finds that appeal proceedings are covered by Article 6 of the European Convention. In that case, however, in upholding the position of the UK Government, the court noted that the appeal body had before it a transcript of the trial and all the relevant material. It is abundantly plain in that case that the court in England had before it much more material when considering questions of leave and other associated questions than would be the case under the provisions of this clause. The Government would therefore be wise to reflect further on these matters. However, I do not propose to divide the House and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 68 not moved.]

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