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The Earl of Mar and Kellie moved Amendment No. 27:

Page 36, line 44, at end insert--
("(iv) who would be unable to give evidence in open court.".").

The noble Earl said: My Lords, this amendment to Clause 28 is aimed at extending the range of people who can be accepted as being vulnerable. At Committee stage the noble and learned Lord the Lord Advocate said that the list in the Bill was being kept tight because objective criteria were needed for ease of operation. While I certainly understand his point, I am keen that the Bill should be made to address the whole problem. The tight criteria of the Bill will certainly be operable, but it will also lead to many witnesses suffering unnecessarily and, even worse, not giving evidence.

This failure to address the whole problem will not assist in the achievement of justice. I believe that the courts will want to experiment with my wider description of vulnerable people. I believe that many citizens are terrified of the judicial process and that

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serious efforts must be made to explore how far vulnerable people can be enabled to give evidence. I beg to move.

The Earl of Balfour: My Lords, before my noble and learned friend replies, what happens if somebody is unable to speak and wishes to give evidence in writing? Is that possible in court? I really do not know.

Lord Mackay of Drumadoon: My Lords, the short answer is that that is correct. Indeed, I have some personal recollection of that happening. Before it could occur, the judge would have to be satisfied that the witness could understand the questions that he or she would be asked and that he or she was unable to communicate his or her thoughts, except in writing, and before that could be established it may be necessary for the court to take evidence (whether orally or by way of a report from someone who knows the witness in everyday life and who is able to assure the court that the witness is fully qualified to follow the proceedings of the court). I have some recollection of seeing that done. Indeed, it happens frequently when there is some concern about a witness's address. The witness can be asked to write down his or her address, which is then shown to the judge and the lawyers but is not read out in open court. I am satisfied, therefore, that our existing court procedures fully meet the concerns of my noble friend.

The noble Earl's amendment would have the effect of providing for any category of person to give evidence on commission by means of live television link or behind screens. It could apply, for example, to someone who, for a variety of reasons, is unable to be present in court. Perhaps I may take some fairly extreme examples to illustrate the point. Someone could be physically absent from the jurisdiction on a pre-arranged business trip, because of a holiday or for a variety of other reasons. Clearly, it would be wrong to put on the face of the statute a provision which could be construed on that basis.

There are already provisions for dealing with vulnerable witnesses, and we have already covered those. There are already provisions for taking evidence on commission.

This amendment comes rather late in the day and has potentially undesirable consequences. Therefore, I invite the noble Earl to withdraw it. From what I said in Committee, I hope it is clear that the Government are aware of the problems of vulnerable witnesses. Some progress has been made and, in the light of experience during the next few years, it may be possible to take that further. However, I believe that we have gone far enough for the moment and that the right approach is to bring these provisions into force, to see how they work and, if there is cause for extending them, to look at the matter again.

Lord Harris of Greenwich: My Lords, before the noble and learned Lord sits down, I wonder whether I may ask him one question. Obviously, we shall not press the amendment, but what is the position of a woman who is alleged to have been raped? Can

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arrangements be made to have her screened off from the assailant? I ask this not having followed the details of the previous argument, but because I believe that it would be helpful if the noble and learned Lord could explain the matter.

Lord Mackay of Drumadoon: My Lords, not purely arising from the fact that she is the victim of a rape or alleged rape--"the complainer" as we would call her in Scotland or, if the lady is under 16, a child--such provisions would already apply. If the lady were to fall under the new provisions extending the definition of "vulnerable witnesses", such arrangements would apply if the appropriate application was made to the court. However, if we are dealing with a lady of mature years who does not fall within the category of "vulnerable witnesses" as defined in the Bill, there is no provision in Scotland at the moment which would allow that to happen.

Lord Harris of Greenwich: My Lord, before the noble and learned Lord sits down, I repeat that we shall not be pressing the matter but I would be grateful if the noble and learned Lord could look into this. He will be aware that many women--of mature years, I might add--find extremely alarming the idea of being confronted in court by a man who may have subjected them to a violent attack and humiliation. I should be grateful if the noble and learned Lord could consider the matter not in relation to the Bill, but as a general principle.

Lord Mackay of Drumadoon: My Lords, I am happy to give the assurance that the Crown in Scotland will keep that and other matters under close review.

The Earl of Mar and Kellie: My Lords, I accept that my amendment was much too wide. I accept also that the Bill makes some progress in the direction in which we should be moving. I suppose that I am giving notice to whomsoever will be responsible for the next Criminal Justice (Scotland) Bill that I shall be back with this type of amendment. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 [Continuity of sentencing]:

Lord Mackay of Drumadoon moved Amendment No. 28:

Leave out Clause 32.

The noble and learned Lord said: My Lords, Clause 32, which the amendment seeks to delete, is a new clause which was tabled in Committee by the noble and learned Lord, Lord McCluskey. It sought to introduce into the Bill a clause which for all practical purposes was identical to Clause 23 of the Crime (Sentences) Bill. It was inserted into the Bill against the wishes of the Government and against the advice of the noble and learned Lord, Lord Hope of Craighead. I understand that the Government are not the only people to have been reflecting on the contents of this Bill during the past few days. I understand that there is a wide measure of support for the view that it would be undesirable for this provision to form part of the

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law of Scotland. For that reason, and without going into any great detail, I trust that the amendment will be acceptable to your Lordships. I beg to move.

On Question, amendment agreed to.

Clause 33 [Application of provisions with respect to early release]:

Lord Mackay of Drumadoon moved Amendment No. 29:

Page 39, line 41, after ("1993 Act") insert (", and the amendments made to the 1995 Act by paragraph 17(3) of Schedule 1 to this Act").

The noble and learned Lord said: My Lords, this is purely a technical drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 34 [Early release]:

The Earl of Mar and Kellie moved Amendment No. 30:

Page 41, line 9, at end insert ("and "prescribed minimum standard" means that the prisoner has not been charged with a disciplinary offence or been placed on report").

The noble Earl said: My Lords, my Amendments Nos. 31 and 44 have been grouped with this amendment. They take us back to prison and focus again on the subject of the assessment criteria for good behaviour. In Committee, it was established that the criterion specified in my earlier amendments, which stated that the "prescribed minimum standard" was achieved by not having an offence against the Prison (Scotland) Rules proved, was too low. I have now raised that criterion. This time, being charged and placed on report becomes the criterion. The noble and learned Lord the Lord Advocate told us in Committee that the minimum prescribed standard was effectively floating above my objective standard of a proven offence against the prison rules.

I am still trying to find objective criteria that can be set down in the Bill and understood by the prisoners and prison officers who have to live with the rules. I believe that we can do it. I believe that we can introduce a specification into the Bill which describes what we really mean.

Perhaps I may move on to Amendment No. 31, which tries to establish who can sort out the assessments of good behaviour. If the scheme is to work, prison officers and prisoners will need to have confidence in it. In Committee, several amendments were proposed which called for outside agencies to carry out the assessment procedures. All those amendments were rejected. We were told that the task was to be carried out by the Scottish Prison Service. This amendment therefore clarifies the point and states that the function should be carried out by senior members of the prison staff. They are the people who are expected to carry out executive functions on a day-to-day basis within a prison. It is perfectly normal for staff at governor grade to convene meetings and to achieve decisions based on the reports of prison officers. I do not understand why the Bill is so imprecise and I do not believe that that is necessary.

Finally, I turn to my Amendment No. 44, which seeks to ensure that the Secretary of State does not implement the early release scheme until the Scottish Prison

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Service is capable of withstanding the substantial change involved. With the differing provision in regard to the desirability of sentence reduction, sentences in Scotland will become longer. The increased prison population will be a major burden to shoulder without the imposition of a new liberation scheme that will be a hard sell to prisoners. I look for reassurance on this matter. I beg to move.

5.30 p.m.

Lord Mackay of Drumadoon: My Lords, Amendment No. 30 seeks to define the prescribed minimum standard for the purposes of the early release provisions as meaning that the prisoner has not been charged with a disciplinary offence or placed on report. The result, which I am sure the noble Earl does not intend, would be that the mere suspicion of misconduct would mean that a prisoner had not reached the prescribed standard, even if he were subsequently acquitted of the charge. Even if this technical problem were dealt with and the minimum standard were to be defined as an absence of proved misconduct reports, we do not believe that the amendment would be desirable.

The earning of early release should be about more than simply not breaching prison discipline. Prisoners should be required to demonstrate positive good behaviour and that they are making constructive use of their time in prison in order to address their offending behaviour. As appropriate, that might mean participating in a programme on drug addiction or anger management, as well as working productively in the prison workshops. We therefore intend to set out in the prison rules a wider definition of the prescribed minimum standard. That will provide a real incentive to prisoners to make a positive effort to co-operate with the prison regime and tackle their problems.

Amendment No. 31 seeks to define the prescribed person in relation to assessments for early release as a person of governor grade. The Government have no problem with the spirit of this amendment, in that they envisage that these assessments will be made by a board chaired by a senior manager. The problem is a technical one, in that since April 1995 some of the senior managers in prisons are no longer described as governor grades but have the job description "managers". I hope that the noble Earl will withdraw his amendment if I assure him that the prison rules, which are required to be in place before these provisions have effect, shall provide for assessments to be made by a governor or a senior manager after an assessment board has met to consider the case.

I turn to Amendment No. 44 which I believe is also grouped with manuscript Amendment No. 43B that may or may not be moved. The Government have always been open about the likelihood that substantial numbers of additional prison places will be needed as a consequence of their proposals on honesty in sentencing. That was a matter discussed in some detail at the Committee stage of the Bill. The financial memorandum states that these may amount to as many as 2,200 five years after implementation, depending on how the courts sentence under the provisions set out in the Bill and the effect on the behaviour of offenders.

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The Government have consistently said--your Lordships were reminded of it yesterday by the noble Lord, Lord McIntosh--that they do not intend to bring these provisions into effect until additional places are available. Clearly, that is unlikely to be before the end of the century. The Scottish Prison Service is already planning ahead to accommodate whatever the future may hold. The service will clearly be closely involved with all the decisions regarding the implementation of these provisions. Its involvement is an administrative matter with which we believe it would be inappropriate to deal on the face of the Bill as proposed by Amendment No. 44.

For similar reasons we also consider that it would be inappropriate to make the provision proposed by Amendment No. 43B. The relationship between the design capacity of the prisons and the prison population over the past three months is one factor to be considered before commencing the provisions, but it is not the only one. The number of new places that are about to come on stream will be even more important. The Government shall set themselves a tougher test than is proposed by this amendment as far as concerns the early release provisions.

For the benefit of noble Lords who do not have a list of the manuscript amendments, manuscript Amendment No. 43B proposes that the following words be inserted:

    "No statutory instrument made under [Section 65] shall be made bringing into force [certain specified sections] ... unless--

    (a) the Secretary of State is satisfied that the average daily prison population in Her Majesty's Prisons in Scotland has not exceeded the current design capacity of those prisons by more than 10 per cent. at any time during a continuous period of three months, and

    (b) Her Majesty's Government has published the appropriate statistics as to the average daily prison population and the current design capacity and placed them in the library of [another place]".

The terms of that amendment illustrate our concerns. For that reason, we find all of these amendments unacceptable. I hope that they will not be pressed.

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