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Lord McCluskey: The noble and learned Lord will not be surprised to learn that I support these amendments. I have always supported flexibility in relation to this matter. I express only one regret, to which I should like the Government to give serious thought. When the noble Lord, Lord Renton, with the assistance of others, wrote a report on legislation some years ago he received evidence from the Lord Justice Clerk, Lord Wheatley, and the then Lord President, the noble and learned Lord, Lord Emslie, about the character of Scottish legislation. In essence their evidence was that instead of providing detailed statutory formulations of tests, exceptions, and exceptions to exceptions the proper course was simply to trust the judges and give them a general power to except if the justice of the case appeared to them to require it. I should have thought that a formulation of that character could have been devised to replace the rather complicated provision that this clause has now become. I hope that the noble and learned Lord will bear that in mind. If there is time for this Bill to pass into law there may still be time to make that kind of amendment.

Lord Macaulay of Bragar: Appeals have always been a very difficult area of the administration of justice. I appreciate that what is sought to be done by way of these amendments is to arrive at a formula that prevents a miscarriage of justice.

People often say that we do not have miscarriages of justice in Scotland. That is not quite true. As the noble and learned Lord the Lord Advocate will know, there is at least one solicitor in Glasgow who has two pardons on his wall. Of course, the cynical Scots say, "He cannot be all that bright a lawyer if he needs two pardons at the end of an appeals process", but that is another matter.

Perhaps I may declare an interest because I was involved in the Glasgow ice-cream war case, which is presently subject to appeal. I appeared for Mr. T. C. Campbell, so I shall not go into the details of the case. I no longer have any instructions on his behalf because, quite properly, he has gone to someone else.

The more we try to find a solution to miscarriages of justice the more convoluted the law becomes. While accepting that the amendments are well designed, with good social and legal reasons behind them, perhaps a

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decent review of the legal system in Scotland might enable us to put forward a better solution rather than piecemeal legislation.

There is one issue which disturbs me more than somewhat. It is for that reason that I mentioned the T. C. Campbell case. I refer to page 3 of the Marshalled List of amendments. Subsection (5BC) of Amendment No. 114E states that,

"'independent evidence' means evidence which was not heard at the original proceedings; is from a source independent of the person referred to in subsection (5BB) above".

I am not sure what that means because in the trial to which I referred a prime witness changed his story. He gave his story to the jury; it was rejected. He has now given his account to the authorities and the defendant concerned has been released on bail pending appeal.

There is no definition of "a source independent". What happens if no one heard anything of what went on? How does one define "a source independent" whose evidence was not heard at the original proceedings? I do not understand what the subsection means. On a constructive, rather than on any other, basis, I suggest that the draftsmen should re-examine the subsection to see whether it makes any sense in the practicalities of life in court.

The noble and learned Lord the Lord Advocate may believe that I am talking nonsense. I am not, because the matter is serious. If this provision is to be the core of an appeal it must be spelt out properly within the legislation. For example, would a person who is a relative of a witness be looked upon as "a source independent"? Would a work colleague be "a source independent" if during the tea break he heard someone saying, "I told a lot of rubbish at the High Court last week and I got Joe Bloggs done"? Would he be "a source independent" if he were then led as a potential witness before the Court of Appeal so that it could decide that the case should be reviewed?

As I pass out of the legal sphere, I am coming gradually to the view that matters are becoming far too complicated and that we should return to a simple system of law in which we can send a case back to a jury to decide what it is all about rather than leaving it to the judges. In saying that, I appreciate that I do not fall in line with the noble and learned Lord, Lord McCluskey. However, my view is that the system is becoming far too convoluted. We should have a simple rather than a difficult system of appeal. If one is going to have justice one must have a simple system of justice which appeals not only to the lawyers but to the people themselves.

4.45 p.m.

Lord Monkswell: I too am a little anxious about the amendment. The crux of it appears to be that new evidence must be supported by some independent person or evidence. Perhaps I may ask the noble and learned Lord the Lord Advocate a hypothetical question. Let us suppose that at the original trial neither prosecution nor defence counsel ask a witness a relevant question in order to bring out the evidence. Let us further suppose that the defendant is convicted, the case goes to appeal and the defendant says to the court, "This is my explanation of what happened. Nobody asked me before what

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happened." That would effectively render not guilty the person who had been found guilty because it would put a completely different light on the case? Are the Government effectively saying in the amendment that unless there was some independent evidence the new evidence could not be heard by the Court of Appeal?

I wonder whether the phrase is likely to be so restricting as to perpetuate miscarriages of justice rather than the opposite, which is why it is tabled. I wonder whether the noble and learned Lord, Lord McCluskey, is right in saying that the judges should have some discretion as to whether evidence that they hear is satisfactory in itself without needing to be corroborated by some independent source.

Lord Mackay of Drumadoon: I am happy to take on board the invitation of the noble and learned Lord, Lord McCluskey, to re-read the Renton Report. I can say from bitter experience that the clause went through a number of drafts before reaching its final form. It did so because we were anxious to implement, so far as we could, the recommendation of the Sutherland Committee that in addition to bringing new evidence before the Appeal Court which was in the nature of a change of testimony--either a change from what was said previously or an addition to that--the reasons for change should be supported by some additional credible and reliable evidence. We have added to the modification a provision that it must be evidence that was not given at the original trial. It has not proved easy, but I believe that we have achieved a satisfactory solution to the problem. However, I shall be happy to look at the detail again to see whether any recasting will make the issue clearer.

A number of questions were raised about what the independent source will be. The short answer is that it is a source independent of the witness who is changing his testimony. It could be a relative or a colleague, but it is important to bear in mind that the independent evidence relates not to the changed testimony but to the reason why the new evidence, whether it be different or additional, was not given at the earlier trial. It would not be proper for me to make any comment about the case mentioned by the noble Lord, Lord Macaulay, because it is currently before the appeal court in Scotland. However, I hope that that answers the question which he posed.

As regards the noble Lord, Lord Monkswell, if the explanation is that the witness was not asked any relevant questions at the time, there would be no problem whatever in proving that because the transcript of the trial would bear it out. If that was a reasonable explanation, finding independent support for it would not be difficult. However, it would be for the appeal court to determine whether that was a reasonable explanation. If defence counsel had deliberately not asked questions because of other information, that matter might fall to be debated when the case came before the appeal court. Therefore, there should be no difficulty in the particular example mentioned by the noble Lord confirming whether or not the witness was questioned.

I am glad that the new amendments have received support. I shall reflect again with the draftsman as to whether the drafting can be improved. But I assure the Committee that a great deal of effort went into setting out

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the amendment in its present form. I am informed that contrary to what I said earlier, in some mysterious manner, Amendment No. 114F will find its way into the Bill, provided that the Committee is minded to support the other amendments.

Lord Hope of Craighead: Before the noble and learned Lord sits down, perhaps I may ask whether it is intended that the amendment should deal with the problem created by amnesia. That may have a bearing on the wording which has been selected. The noble and learned Lord may recall a case which came before the criminal appeal court not many years ago when the issue was whether somebody who claimed not to remember the circumstances of a crime was entitled to give his version again of the crime. That met with a rejection in the appeal court. It would be satisfactory if this amendment dealt with that problem so that the kind of independent explanation covered would be one where there was some evidence, perhaps medical evidence, to suggest that the offence involved was of a nature which would create the amnesia and that would explain why the witness could not give the explanation at the trial.

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