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Lord Macaulay of Bragar: Before the noble and learned Lord sits down, is the list now closed or shall we have some additions to it by Report? Those of us who have to look closely at the Bill would like to know.
The observations that have been made in the course of this debate make it clear that it is an act of folly to try to introduce crimes committed in England under a system which is statute based into a Scottish system which is based on the common law. We are not comparing like with like. That is why a substantial degree of unfairness may be introduced into the whole matter leading to a mandatory life sentence.
Lord McCluskey: Perhaps I may join in, because I have now discovered the meaning of Amendment No. 25 in the name of the noble and learned Lord, which, as has been pointed out, is similar in purpose to my Amendment No. 26.
Contrary to what the noble and learned Lord the Lord Advocate has just told the Committee, the word "complainer" is a well understood word in Scots law. For example, it appears three times in Section 270 of the Criminal Procedure (Scotland) Act 1995, which I have before me. It states:
- "This section applies where ... evidence is led by the defence ... impugning the character of ... the complainer".
- "This section applies where ... the nature or conduct of the defence is such as to tend to establish ... or to involve imputations on the character ... of the complainer".
- "In subsection (1) above, references to the complainer include references to a victim who is deceased".
Therefore, the word "complainer" is perfectly well understood in everyday Scots criminal practice as meaning a person who is a victim. In terms of the Act, which was passed by this House as a consolidation measure in 1995, it includes even a deceased victim. Therefore, the word "complainer" is perfectly well understood. It is for that reason that I tabled Amendment No. 26. The present wording of the provision is, I would submit, quite ludicrous. The qualifying offence appears on page 3 at line 15 where it states:
- "Sodomy or attempted sodomy where, in either case, one party does not consent".
I suggest that the words "one party" should be deleted and the word "complainer" substituted. Therefore, the Bill should refer to sodomy or attempted sodomy where the victim does not consent because it is the absence of consent by the complainer or victim which turns consensual homosexual intercourse into a serious sexual assault. It is the complainer's absence of consent which matters. You cannot charge the offender if he did not consent. That is too ludicrous to even think about. You cannot charge the person who commits the sodomy of another and say, "Well you did not consent". That is just absurd.
I may have missed something in all this if there are three or more parties to a sodomy. But that is not my understanding of the term as it is used in Scots law. Accordingly, the provision is meaningless as it stands and the proper course is to take out the words either on the basis suggested by my noble and learned friend Lord
Hope of Craighead, or, alternatively, to substitute the words "complainer". At the moment, it looks like some kind of silly joke.
Lord Hope of Craighead: In relation to Amendment No. 23, I am reassured by the observations of the noble and learned Lord that my experience is the same as his and that until recently the offence of incitement to murder has not appeared in Scottish indictments. But in view of its recent appearance, I recognise that there may be some point in its inclusion in this paragraph and I am content to withdraw that amendment.
As regards Amendment No. 25, I hope that in the light of my observations and in particular those of my noble and learned friend Lord McCluskey, the noble and learned Lord the Lord Advocate will give further thought to that matter. It seems confusing. I found it quite difficult to understand. My noble and learned friend mentioned the oddity which might arise if there were three parties involved in the enterprise, two of whom were trying to commit an offence against another. The essence of the matter is that something is done to somebody who is properly described as a complainer which I should have thought would qualify the sodomy or attempted sodomy for inclusion in this list. On the understanding that the matter will receive further consideration, I am content to withdraw that amendment.
Amendment No. 28 is intended to deal with the possibility that there had been an oversight in the Government's thinking in relation to what should be included on the list. I suggested the inclusion of the words, "the victim's permanent disfigurement". Of course, my noble and learned friend Lord McCluskey is right to say that, in many cases, it is not a serious offence. It is somewhat reassuring to find that the Government are prepared to recognise that some offences prosecuted in the High Court are not, after all, serious offences. As it appears that this is not an oversight and the matter has received consideration, I am content not to press the amendment.
As for Amendment No. 31, that is an amendment to which I should like the noble and learned Lord the Lord Advocate to give further consideration. It is a matter of finding the proper form of words to express the concept which is being described. The word "some" has its origin in the English Bill, but I do not see why we should be tied to that phraseology if we can find a better form of words for ourselves. It is really for the reasons that I outlined and which the noble Lord, Lord Sewel, mentioned that I suggest that it would be worth thinking about another way of expressing the concept.
I turn now to Amendment No. 36. I am reassured by what the noble and learned Lord said about prosecution practice. However, I should like to think that from now on one of the factors which a Lord Advocate will take into account when deciding whether to prosecute for that particular offence, in the case of an offender under the age of 16, is its effect for the future. That applies not only to the sentence which might be imposed for that particular offence but also to the consequences if it were to be prosecuted in the High Court in the future should there be a further offence.
Finally, in regard to Amendment No. 39, it is an unfortunate situation that people who commit the offence of lewd conduct, to express it shortly, in Scotland will already, so to speak, have lost one life if they venture south of the Border and find themselves committing an offence on the English list. It is that kind of distortion that led me to suggest that this should be included in the Scottish list. I do not see why we should be affected by the fact that English legislation is defective in failing to set proper minimum penalties.
On the other hand, I understand that the matter has received careful consideration and I am grateful for that fact. I also understand that the whole problem of such offences in England is to be considered and it may be better to leave the matter over to allow that consideration to take place. I have no doubt that one factor that will be brought into account, if the Crime (Sentences) Bill is enacted, is whether the kind of offence to which we are referring this evening should be included in that list. If amendments to the English legislation are needed in order to achieve that aim, no doubt that will be done and no doubt the opportunity would then be taken to reflect that fact in Scottish legislation. For the various reasons that I have outlined, I am content not to press any of my amendments. With the leave of the Committee, I shall withdraw them in due course.
Lord Mackay of Drumadoon: Before the noble and learned Lord sits down, perhaps I may correct a possible misapprehension on his part as to what I said earlier about assault to permanent disfigurement. I may be wrong, but I am unaware of it ever being the practice of the Crown to prosecute individuals charged with assault to permanent disfigurement in the High Court. If I gave that impression in my earlier remarks, I would not wish that to be understood by Members of the Committee. As the noble and learned Lord is well aware, the normal practice is for that aggravation to be added to assault to severe injury. That is the reason why the Government have adopted their position in relation to the matter. However, I can certainly repeat the undertaking that I gave earlier to look at the matter further. Indeed, I need say no more in that respect.
I am reminded that I may not have dealt explicitly with Amendment No. 27, although I believe that I referred to it in passing when dealing with one of the amendments tabled by the noble and learned Lord, Lord Hope. I am grateful for that reminder. The effect of this amendment would be to restrict the category of aggravated assaults which are qualifying offences to those which are aggravated through not only causing severe injury to the victim but also causing the victim's permanent disfigurement. This amendment would seek to require both elements to be established before an offence would qualify.
The Government believe that this would be an unnecessary and undesirable restriction because of the fact that severe injury may not always be accompanied by permanent disfigurement. I give an example which must occur from time to time in cases prosecuted in the High Court where a victim is the subject of a beating or a kicking with hands and feet. It is not uncommon for
him to sustain serious internal injury without there being any permanent disfigurement whatsoever. That is why the amendment is deemed to be undesirable.With regard to the question posed by the noble Lord, Lord Macaulay, as to whether the list was closed, I must say no for the reason that we have yet to deal with some of the amendments tabled by the noble and learned Lord, Lord McCluskey. The list cannot be said to be closed because it depends on what the Committee makes of those amendments. Equally if, on further reflection of what has been said this evening, the Government seek to amend or alter some of the qualifying offences, the list could not be said to be closed in that respect either. If Members of the Committee opposite wish to propose an addition at Report stage that can be looked at too. As present advised, the Government have no proposals to bring forward amendments to the list subject to the comments that I have already made in dealing with those amendments which have been spoken to so far.
9.30 p.m.
Lord McCluskey: With respect, the noble and learned Lord the Lord Advocate misses one of the points. The indictment may contain a charge of assault with the double aggravation of severe injury and permanent disfigurement. It is open to the jury to delete both aggravations or either or neither. A jury is directed that the question of whether an injury is severe is not a question of medical seriousness but is a jury question. It may well be that a jury would return a verdict of assault to permanent disfigurement even though it was not the practice of the noble and learned Lord the Lord Advocate to charge such an assault. I accept that that would not be his practice.
The difficulty is to understand why assault to severe injury should be a scheduled offence but assault to permanent disfigurement should not be. That is the difficulty that is raised by the amendment of my noble and learned friend Lord Hope of Craighead. Why should assault to severe injury be regarded as warranting the loss of one of the two "lives"--I rather like that metaphor--when assault to permanent disfigurement does not? What is the thinking that distinguishes between these two?
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