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Lord Mackay of Drumadoon: I am tempted to say that I have forgotten what my instructions are on that point. The noble and learned Lord is correct, provided that there were independent evidence--and I presume medical evidence--which in some way persuaded the appeal court that it was a genuine case of amnesia. However, the important point is that it is for the appeal court to be satisfied as to the reasonable explanation. If it were medical evidence, that would not be a problem but, having listened to the evidence, the court must be satisfied that there is a reasonable explanation for the change of, or additional, evidence which is now proffered.
We believe that to be an important part of the amendment. It is not a question of leaving the matter to a jury on a retrial to work out whether or not the explanation is valid or to take the view that it sounds like a reasonable explanation and give it the benefit of the doubt. The court must be satisfied on the evidence before it that the independent evidence is credible and reliable and supports the explanation which is tendered. I should have thought that amnesia would be covered in any genuine case, rather than the type of case which we normally encounter in the criminal courts.
On Question, amendment agreed to.
Lord McCluskey moved Amendment No. 113:
The noble and learned Lord said: I can be very brief on this amendment. I seek to know what the word "only" is doing in line 29. It is a slightly technical point. I am not sure what is its function. I cannot think that it is necessary. I draw attention to it because Members of the Committee may recall that in 1964, the House of Lords Judicial Committee discovered that the word "only" meant something which it had not been thought to mean for the previous half a century. I should hate to think that we have to wait another half a century to find out what the word
Lord Macaulay of Bragar: Amendment No. 114 amends Clause 16. The amendment seeks to provide a definition as to what constitutes a reasonable explanation of why evidence was not adduced at the original trial. I do not propose to go into the minutiae of the amendment, although information supplied to me suggests that the noble and learned Lord, Lord McCluskey, in his book on criminal appeals, may have made some reference to it in passing.
Lord Mackay of Drumadoon: I must confess that I do not recall the case in 1964 to which the noble and learned Lord refers. But the purpose of having the word "only" is to make it clear that a reasonable explanation is required in every case and that it is not just an instance of situations where an appeal would be allowed.
If the noble and learned Lord wishes to explain the case to me later, I shall be happy to talk to him about it. The recommendation of the Sutherland Report was quite clear; namely, that it was only where there was a reasonable explanation as to why evidence was not heard that such a route to a successful appeal based on a miscarriage of justice should be allowed. That is why the provision exists. There must be a reasonable explanation why the court did not hear the evidence referred to in subsection (3)(a).
Lord McCluskey: The noble and learned Lord the Lord Advocate betrays his youth if he does not remember Rookes v. Barnard in 1964. It caused a considerable sensation in relation to the interpretation of the Trade Disputes Act 1906. When the noble and learned Lord reconsiders the drafting, that matter will arise because the word "only" can have an extremely restrictive--and unintended--effect. It is that matter to which I wish to draw attention. I do not wish to pursue the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 114 not moved.]
Lord Mackay of Drumadoon moved Amendments Nos. 114A to 114E:
On Question, amendments agreed to.
Clause 16, as amended, agreed to.
Lord McCluskey moved Amendment No. 115:
Page 23, line 29, leave out ("only").
Page 23, line 31, after ("above") insert ("or, as the case may be, (3C) below").
Page 23, line 35, at end insert--
("(3C) Without prejudice to subsection (3A) above, where evidence such as is mentioned in paragraph (a) of subsection (3) above is evidence--
(a) which is--
(i) from a person; or
(ii) of a statement (within the meaning of section 259(1) of this Act) by a person,
who gave evidence at the original proceedings; and
(b) which is different from, or additional to, the evidence so given,
it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.
(3D) For the purposes of subsection (3C) above, "independent evidence" means evidence which--
(a) was not heard at the original proceedings;
(b) is from a source independent of the person referred to in subsection (3C) above; and
(c) is accepted by the court as being credible and reliable.").
Page 23, line 41, after ("based") insert (", subject to subsections (5A) to (5BC) below,").
Page 24, line 1, after ("above") insert (" or, as the case may be, (5BC) below").
Page 24, line 5, at end insert--
("(5BB) Without prejudice to subsection (5A) above, where evidence such as is mentioned in paragraph (a) of subsection (5) above is evidence--
(a) which is--
(i) from a person; or
(ii) of a statement (within the meaning of section 259(1) of this Act) by a person,
who gave evidence at the original proceedings; and
(b) which is different from, or additional to, the evidence so given,
it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.
(5BC) For the purposes of subsection (5BB) above, "independent evidence" means evidence which--
(a) was not heard at the original proceedings;
(b) is from a source independent of the person referred to in subsection (5BB) above; and
(c) is accepted by the court as being credible and reliable.").
After Clause 16, insert the following new clause--
(" . In section 106 of the 1995 Act (right of appeal on solemn proceedings), after subsection (9) insert the following new subsection--
"(10) Notwithstanding any other provision in this Act, leave to appeal will not be required--
(a) in any case where the appeal is against a conviction or sentence or both to which section 205A or 205B of this Act applies;
(b) in any case in which the convicted person has been sentenced to imprisonment or detention for a period of five years or more;
(c) in any case in which the convicted person has been sentenced in the Sheriff Court to imprisonment or detention for a period of more than two years.".").
The noble and learned Lord said: Amendment No. 115 seeks to introduce a new clause relating to exceptions to the requirement to obtain leave to appeal. The present position is governed by Part VIII of the Criminal Procedure (Scotland) Act 1995, Sections 106 and 107. The Lord Advocate does not require leave to appeal but the convicted person requires leave to appeal, whether against conviction, sentence or both. That system has been in operation since September 1995, having been introduced by the Criminal Justice (Scotland) Act of that year. Under Section 106, leave is
The proposed new clause intends to advance the proposition that leave to appeal should not be required in cases where, because of the new mandatory sentencing provisions of Sections 205A and 205B (which remove judicial discretion), the judge is required to impose a sentence of life in the question of Section 205A or a minimum of seven years in Section 205B of the 1995 Act, as it will be amended, unless there are "exceptional circumstances" justifying a lesser sentence.
I submit that because this is such an important and novel matter and also because the whole concept of "exceptional circumstances" is itself so fraught with difficulties--indeed, as we have seen during the course of our debates and as the present Lord Justice General acknowledged in a letter that I read out to Members of the Committee on a previous occasion--one really ought to have an automatic right of appeal against a sentence of life imprisonment.
I also have in mind the provisions of the European Convention on Human Rights. For a person to be sentenced to imprisonment for life and not to have an automatic right to a public hearing of his appeal, seems to me to be a very considerable departure from our system of open justice. That is the first part of the amendment: paragraph (a) relates to Sections 205A and 205B--that is, the automatic life sentence or the automatic minimum sentence of seven years.
Paragraph (b) of the amendment refers to,
I find the following very difficult; and, indeed, I have often discussed this matter with Lord Ross who was until recently Lord Justice-Clerk. We both experience great difficulty in refusing leave to appeal where a person has been given a substantial period of imprisonment. We find it difficult to say that a person who has been sent to prison for seven or eight years does not have arguable grounds for leave, however heinous the crime. I know that among some judges, though not universally, it almost became the practice to grant leave automatically where the sentence was of that order.
When I made my submissions to the Government in response to the Green Paper and the White Paper in 1996, I suggested that an appropriate cut-off point would be four years. Of course, that period was lifted from Section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. However, that Act is
However, when one looks at paragraph (c) of the amendment, it will be seen that that refers to a further overlap; namely,
Without going into detail, I should like to remind Members of the Committee that, on a previous occasion, I drew attention to the fact that until 1987 the sheriff had an effective power to send a person to prison for some 16 months--that being the period that the person would serve. Thereafter, the period became slightly longer before the 1993 Act brought it back down again. The present Bill gives the sheriff an effective power to send a person to prison to serve at least four years and two months. In this type of case where the sheriff is imposing a sentence which he could not possibly have imposed until quite recently, I suggest that the right to appeal ought to be automatic.
In my view, that would not dramatically increase the burden of work upon the court--if, indeed, it increased it at all--but it would certainly lighten the burden of work upon the judges who have to grant or refuse leave to appeal. In respect of those three matters, I beg to move.
"any case in which the convicted person has been sentenced to imprisonment or detention for a period of five years or more".
To a substantial degree that overlaps with paragraph (a), but does not necessarily always do so. Judges of my seniority have been sitting and considering such matters since September 1995, usually on a weekly basis. Indeed, I have a large number of them to consider tomorrow.
"any case in which the convicted person has been sentenced in the Sheriff Court to imprisonment or detention for a period of more than two years".
5 p.m.
The Earl of Mar and Kellie: Where a person has been subjected to a mandatory sentence, which may not be completely appropriate in the light of all the facts, it seems to me, as a legal layman, that such a person should have the automatic right of appeal. Surely that is a necessary safeguard. After all, the two concepts--mandatory sentences and the automatic right of appeal--are, to a degree, made for each other.
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