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Lord Macaulay of Bragar: Before the noble and learned Lord sits down, I may have misheard him, but one of my difficulties with these provisions is in trying to tie them in with the Road Traffic Act. Did the noble and learned Lord say that a special reason for not applying this particular sanction would be that people in country areas might have to run their children to school? As far as I am aware and I am, as always, subject to correction--indeed, I usually am corrected--does that mean that a special reason for not applying the provision would be that the person concerned was running a taxi service in a rural area of Scotland? What guidelines on how to apply the legislation will be given to sheriffs because, as I understand it, the fact that the offender has to run his child to school in the morning is not a special reason for not applying the provisions of the Road Traffic Act?
Lord Mackay of Drumadoon: No question of special reason arises in connection with this clause. Special reasons are relevant where the court would be required to impose a period of disqualification but for the existence of special reasons. The powers to be given in new Sections 248A and 248B are that the court "may"
order disqualification. That is a discretion which the court will exercise in the light of all the circumstances, which would include the fact that the accused man lived with his wife and family at the end of a glen or in some remote village to which there was no transport, where the removal of the licence would have the effect which the noble Earl, Lord Mar and Kellie, mentioned. It would still be open to the court to disqualify in such situations, but clearly it would take account of the consequences when considering all the circumstances.
Lord Macaulay of Bragar: Are we not moving into Cloud-cuckoo-land now in connection with the road traffic legislation? Does this mean that someone who has to run his child from the end of a glen to a school, as the noble and learned Lord has put it, will be exempted from the provisions of this Act whereas a long-distance lorry driver who has to go from Inverness to Portsmouth, and perhaps even to the Continent, will be penalised? I really do not understand what the clause is all about. As I have said, that may very well be my fault and I look forward to any explanation that the noble and learned Lord may give.
What we are looking for is consistency in the application of disqualification. This clause seems to go sorely against that consistency. I shall read with interest what the noble and learned Lord has said. I have no doubt that the sheriffs in the north of Scotland will note what he has said about the reasons for disqualifying or not disqualifying someone because I recall a recent case in Aberdeen where that very reason was given, but the sheriff was heavily castigated for the decision that she took.
The Earl of Mar and Kellie: Having heard the arguments, I think that my initial point that the sentence will probably be rarely used in Scotland still holds. Serious consideration must be given to the situation of the unemployed because in their case it will be more difficult to decide exactly what effect such a sentence would have. I hope that social work reports will be asked for before such a sentence is imposed.
Finally, the noble and learned Lord mentioned that there will be pilot projects. I welcome that, but can he say where they will be?
Lord Mackay of Drumadoon: No decisions on that have yet been taken, but I suspect that the pilot schemes will cover areas of differing character. They will not all take place in the same type of area.
I am not sure that I can assist the noble Lord, Lord Macaulay, any further, on the structure of the clause, but I shall be happy to talk to him later on it rather than delay the Committee any further.
Lord Monkswell: The Committee and no doubt the people of Scotland will be pleased to learn that the Government have no intention of bringing in such draconian powers to prohibit the keeping of pets, but I wonder whether the Government can give assurances on another two matters. I refer first to television licences. I hope that the Government will be able to give the assurance that they are not planning to penalise
people by disqualifying them from having a television. Secondly, I believe that a licence is required by a person who wants to get married. Can the Government give an assurance that they do not intend to deprive people of their spouses as a means of punishment?4.30 p.m.
Lord Mackay of Drumadoon: I doubt whether either question requires an answer. However, the answer is: no and no.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down--he has already done so--with respect to him, at this stage I am not interested in talking to him about this particular provision. It is the duty of the senior law officer of Scotland to bring before your Lordships' House legislation that can be considered by the whole House. With respect, I have no intention of talking to the noble Lord about it. If he seeks to justify the legislation your Lordships' House is the place in which to do it. I welcome the invitation but reject it.
Lord McCluskey: The problem with this kind of legislation, which sprang from nowhere on 8th October, is that there has been no in-depth consultation. In relation to the matter referred to by the noble and learned Lord the Lord Advocate, the Secretary of State wrote to the Lord Justice General on 6th November. On the following Thursday the Lord Justice General put that matter as one of a number of items on the agenda for the meeting of judges that began at 9.30 and finished at 9.55. In the space of 25 minutes those judges who were free to turn up and turned up were able to address their minds briefly to the question whether there should be a clause of this kind. On the basis of that, the noble and learned Lord the Lord Advocate believes that he has the support of the senior judiciary. I was at that meeting. He had neither my support nor the support of the Lord Justice General at that meeting. This is not a form of consultation that enables the Committee to say with confidence that the legislation has been thought through. It has not been thought through. However, in view of the attitude of other noble Lords in the Committee I do not propose to pursue this matter.
Clause 14, as amended, agreed to.
Lord Mackay of Drumadoon moved Amendment No. 112A:
The noble and learned Lord said: In moving Amendment No. 112A I shall speak also to Amendments Nos. 114A to 114E. There was an intention to move an Amendment 114F as well, but I regret that it has not reached the Marshalled List. That amendment would have amended page 24, line 6, of the Bill. That amendment will be tabled at Report stage.
Amendment No. 112A and the others that I have mentioned clarify the Government's intentions regarding a change of witness evidence as the basis for founding an appeal under the "reasonable explanation"
The existing clause is designed to implement the recommendations of the Sutherland Committee which were accepted by the Government, in particular the introduction of the "reasonable explanation" test for new evidence introduced into Sections 106 and 175 of the 1995 Act. Your Lordships may recall that when the Sutherland Report was published the Government announced their rejection of the recommendations of the Sutherland Committee that a change of witness evidence should specifically be allowed as a ground of appeal. That recommendation was dealt with in paragraph 2.8 of the report. We did so because of our very real concerns--which we knew were shared by all parties and many involved in the criminal justice system--about the problem of intimidation of witnesses. That problem can manifest itself both before and after trial. At that time we felt that the precise terms of the Sutherland recommendation on this matter might, if accepted, increase unacceptably the risks that criminals convicted at trial would be tempted to intimidate victims or other witnesses to change the evidence that they had given at trial in an attempt to have convictions overturned.
In the intervening months we have kept this matter under review, particularly in the Crown Office, which has handled many trials and appeals over that period. Having given the matter further thought, we have concluded that it is possible to make specific statutory provisions, including adequate safeguards, to allow a change of witness story to found an appeal in a deserving case. We must be careful, however, to ensure that we do not create a situation in which someone can found an appeal simply by pressurising a witness to change his story. These amendments have been drafted with these policy aims in mind.
The amendments describe the limited circumstances in which a change of witness evidence can be the basis of an appeal. It requires that something more than just a change of story by the witness and a reasonable explanation coming from the witness alone will be sufficient. It thus reflects the principle set out in cases such as Mitchell and Brodie--both of which are referred to in the Sutherland Committee report--to the effect that a mere change of story by a witness will not be sufficient to support the contention that there has been a miscarriage of justice.
In an appeal in which it is contended on behalf of the appellant that the alleged miscarriage of justice arises because of the existence of evidence from a witness who gave evidence at the original trial--evidence that is different from or additional to the evidence which that witness gave at the trial, and for that reason was not heard at the trial--in such a situation the following safeguards will apply. The reasonable explanation as to why the trial court never heard the evidence that the appeal court is now being invited to take into account must be supported by evidence from an independent witness; that is, a witness separate from the witness who gave evidence at the trial. The evidence from that
We believe that these safeguards will contain to an acceptable extent the risk of witnesses being induced by threats or otherwise to give evidence that is designed to fit in with evidence already given in public at the original trial. We consider that these safeguards will seek to rule out undeserving cases while allowing genuine miscarriages of justice to be dealt with. I ask the Committee to support this and the following amendments.
Page 23, line 24, at beginning insert ("subject to subsections (3A) to (3D) below,").
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