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Lord Sewel: I have listened to what both noble and learned Lords have said, and particularly to what was said by the noble and learned Lord, Lord Hope. I take fully on board his point about the need to resolve the matter quickly, especially before the sentence has run out and is served. As has been said, this is a question of balance. One must weigh things in the balance in order to decide on which side one comes down. I should have thought that there was enough experience of how the matter of appeals against leniency has gone in the past to persist with the introduction of a sifting mechanism and therefore I seek the opinion of the Committee on this issue.
6.39 p.m.
On Question, Whether the said amendment (No. 128A) shall be agreed to?
Their Lordships divided: Contents, 60; Not-Contents, 89.
Addington, L.
Barnett, L.
Berkeley, L.
Blackstone, B.
Blease, L.
Brooks of Tremorfa, L.
Bruce of Donington, L.
Calverley, L.
Carlisle, E.
Carmichael of Kelvingrove, L.
Carter, L.
Cocks of Hartcliffe, L.
David, B.
Dormand of Easington, L.
Falkland, V.
Farrington of Ribbleton, B.
Gallacher, L.
Gladwin of Clee, L.
Gould of Potternewton, B.
Graham of Edmonton, L. [Teller.]
Grenfell, L.
Grey, E.
Harris of Greenwich, L.
Haskel, L.
Hilton of Eggardon, B.
Hughes, L.
Jay of Paddington, B.
Jenkins of Putney, L.
Lockwood, B.
Longford, E.
Macaulay of Bragar, L.
McCarthy, L.
McIntosh of Haringey, L.
Mackie of Benshie, L.
McNair, L.
McNally, L.
Mar and Kellie, E. [Teller.]
Merlyn-Rees, L.
Meston, L.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Morris of Castle Morris, L.
Nicol, B.
Peston, L.
Ramsay of Cartvale, B.
Rodgers of Quarry Bank, L.
Sefton of Garston, L.
Serota, B.
Sewel, L.
Shepherd, L.
Smith of Gilmorehill, B.
Stoddart of Swindon, L.
Strabolgi, L.
Taylor of Blackburn, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tordoff, L.
Turner of Camden, B.
Winchilsea and Nottingham, E.
Addison, V.
Ailsa, M.
Alexander of Tunis, E.
Anelay of St. Johns, B.
Ashbourne, L.
Attlee, E.
Balfour, E.
Beloff, L.
Belstead, L.
Blatch, B.
Brentford, V.
Brookes, L.
Byford, B.
Carnegy of Lour, B.
Carnock, L.
Charteris of Amisfield, L.
Chesham, L. [Teller.]
Clark of Kempston, L.
Clyde, L.
Courtown, E.
Cox, B.
Cranborne, V. [Lord Privy Seal.] Crickhowell, L.
Dean of Harptree, L.
Denbigh, E.
Dilhorne, V.
Dundee, E.
Eden of Winton, L.
Effingham, E.
Elliott of Morpeth, L.
Ferrers, E.
Gardner of Parkes, B.
Greenway, L.
Harlech, L.
Hayhoe, L.
Henley, L.
Hogg, B.
HolmPatrick, L.
Hooper, B.
Hope of Craighead, L.
Inglewood, L.
Kimball, L.
Lauderdale, E.
Lindsay, E.
Long, V.
Lucas, L.
Lucas of Chilworth, L.
Luke, L.
Lyell, L.
McConnell, L.
Mackay of Ardbrecknish, L.
Mackay of Drumadoon, L.
Macleod of Borve, B.
Marlesford, L.
Mersey, V.
Miller of Hendon, B.
Milverton, L.
Mottistone, L.
Mountevans, L.
Mowbray and Stourton, L.
Munster, E.
Napier and Ettrick, L.
Northesk, E.
O'Cathain, B.
Onslow, E.
Orr-Ewing, L.
Park of Monmouth, B.
Pearson of Rannoch, L.
Pender, L.
Platt of Writtle, B.
Plumb, L.
Prentice, L.
Rankeillour, L.
Rennell, L.
Renton, L.
Seccombe, B.
Sharples, B.
Shaw of Northstead, L.
Skelmersdale, L.
Stewartby, L.
Strathclyde, L. [Teller.]
Taylor of Warwick, L.
Thomas of Gwydir, L.
Trumpington, B.
Vivian, L.
Weatherill, L.
Wise, L.
Wynford, L.
Young, B.
Resolved in the negative, and amendment disagreed to accordingly.
6.48 p.m.
Clause 24 [Evidence concerning certain orders]:
Lord Macaulay of Bragar moved Amendment No. 129:
The noble Lord said: I apologise to the Committee for not immediately having my notes to hand. I understood that my noble friend Lord Sewel would
The Earl of Mar and Kellie: Although this matter has not been spoken to, I suggest that this amendment is very much within the spirit of a probation order. I justify that comment on the grounds that before a probation order is made the potential probationer has the likely provisions of such an order fully explained to him during the writing of the social work report. The individual goes to court, the probation order is made and he is formally told the conditions of that order. At the third stage while the social worker is serving the order he will ensure that the person concerned fully understands the conditions that have been imposed by the court. On that basis I support the amendment, which seeks to do much the same in the event of an offender breaching one of the conditions of his probation order.
Lord Mackay of Drumadoon: My speaking note says that I am obliged to the noble Lord, Lord Sewel, for his explanation, but perhaps I should not dwell on that. Clearly, it is desirable for some notice to be made available to those who are to be brought before the court. I am sure that Members of the Committee do not require to be reminded that there are existing provisions in the Criminal Procedure (Scotland) Act 1995 which allow that to be done.
I am not convinced that the amendment would be an advantage, in particular when one looks at the detail of Amendment No. 130. It is not entirely clear what "supporting papers" might mean, nor what time limits are to be used to determine whether the supporting papers are sufficient notice or otherwise to the person who has been suspected of being in breach. Clearly, there would be problems in having such general terms on the face of the Bill.
In my submission, the current procedure is satisfactory. It gives adequate notice to the offender that he is in breach of probation. If when he comes before the court there is any dispute about the matter, it will have to be clarified then. The sheriff or the judge could not proceed to deal with the offender unless he was satisfied that there had been a breach. Clearly, that would require some information to be placed before him in open court in order to be satisfied that the offender accepted the acts alleged against him.
The amendments are believed to be unnecessary and, as regards Amendment No. 130, unworkable. I hope that with that explanation the noble Lord will not insist upon the amendment.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord the Lord Advocate for his explanation, which I am sure will be read with interest by those who are directly involved with these matters. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon moved Amendment No. 130A:
Page 30, line 42, leave out ("subsection") and insert ("subsections").
Before Clause 25, insert the following new clause--
(" . After section 255 of the 1995 Act there shall be inserted the following section--
Proof of age.
255A. Where the age of any person is specified in an indictment or a complaint, it shall, unless challenged--
(a) in the case of proceedings on indictment by giving notice of a preliminary objection under paragraph (b) of section 72(1) of this Act or under that paragraph as applied by section 71(2) of this Act; or
(b) in summary proceedings--
(i) by preliminary objection before the plea of the accused is recorded; or
(ii) by objection at such later time as the court may in special circumstances allow,
be held as admitted.".").
The noble and learned Lord said: the purpose of this provision is to avoid the need for the prosecutor to lead evidence of the unchallenged age of any person whose age is specified in an indictment or complaint in criminal proceedings.
I consulted the Lord Justice General for Scotland before I tabled the clause and I am happy to confirm that he is content that the proof of the age of any person whose age is specified in a complaint or indictment should be held to be admitted unless challenged.
The age of victims and complainers and of an accused person may require to be specified in a complaint or indictment. That arises in particular in relation to sexual crimes involving people under the age of 16. Proof of the age is normally achieved by the lodging of the birth certificate coupled with evidence from the witness, his mother, father or other relative. This evidence is very rarely challenged as to substance.
If there is any challenge to be made then, as I have indicated, the new clause enables this to be addressed and the prosecutor would have to read evidence to meet it. This means that the interests of the accused person and the interests of justice are served without the need to lead unnecessary evidence. I beg to move.
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