| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Thomas of Gresford: I understand that if a person fails when questioned by a police officer to say that he was not there it is difficult for him to raise an alibi in his defence. That is a situation which happens every day. The caution that is used in England, Wales and no doubt Scotland reflects that. But this is not failing to mention a fact that is material to his defence, such as, "I was not there"; it is failing to mention a fact that is material "to the offence". What is a "fact which is material to the offence" which he fails to mention? It is not a matter of saying, "I was not there", which subsequently becomes a defence.
Lord Hardie: I directed my remarks to the amendment. The noble Lord has taken the discussion further away from the amendment. The offence would be membership of the specified organisation. I suppose that a police officer may well ask the direct question: "Are you a member of this organisation?". It may well be that under the present law a person would not be obliged to answer that question. He would simply say: "I am not obliged to answer that question", or merely say nothing. If he adopts that position under this provision the jury are entitled to draw an adverse inference.
Lord Thomas of Gresford: Is it sufficient therefore for him to say, "You prove it", in answer to the question, "Are you a member of this organisation?". Is that sufficient for no adverse inference to be drawn under this clause?
Lord Hardie: I believe that an adverse inference could be drawn. I think he would be required to say no.
Lord Thomas of Gresford: If he says no, that is sufficient, but if he says, "You prove it", then an adverse inference can be drawn. Is that what the noble and learned Lord is saying?
Lord Hardie: An adverse inference could be drawn from him saying, "You prove it".
Lord Mackay of Drumadoon: Dealing with the matter just debated by the noble and learned Lord the
Lord Advocate and the noble Lord, Lord Thomas, I had understood, particularly since becoming a Member of this House, that any procedures undertaken, whether by police constables or prosecutors in investigating an offence, in questioning an accused and preparing a case for trial were designed not only to establish his guilt but also to explore the issue of his possible innocence. I have a distinct recollection of being reminded of that fact time and again when I sat opposite the noble Lord, Lord Williams of Mostyn, with not a little assistance from the noble Lord, Lord Thomas. I have to say that I listened to the interchange with a measure of amusement.I should have thought that, even having been provided with legal advice, if an accused, whether before a charge which will be covered by the new subsection (4) or after a charge (or at the point of being charged) which will be covered by new subsection (5) said, "I am not a member of the specified organisation", but failed to mention that he had attended a funeral of an established member of the specified organisation wearing some form of paraphernalia of the nature described earlier by the noble Lord, Lord Williams of Mostyn, failure to mention that fact could undoubtedly fall within the description of a fact material to the offence. If a person attends a funeral of members of the organisation wearing paraphernalia and does not volunteer that fact, it could well give rise to an adverse inference being drawn. As the noble and learned Lord the Lord Advocate correctly said, that goes beyond mere comment in discrediting the defence, giving rise to an inference which has legal consequences--which are slightly different in England and Scotland--of a new significance.
I accept what the noble and learned Lord the Lord Advocate said; namely, that the judicial examination procedure had a somewhat different purpose from that set out in the questioning that can be allowed under subsections (4) and (5) and the inference that can be drawn under subsection (6). It may well be that if the procedure for drawing inferences were to apply to judicial examinations a somewhat more extensive amendment might be necessary.
Time will tell whether the Act requires to be used in Scotland. When we have the first or second annual report, if we discover that it does, then there may be some justification for amending the 1989 Act or possibly the 1995 Act to take account of what experience has taught us. Having explored the matter further, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon moved Amendment No. 7:
The noble and learned Lord said: This again returns to a matter which I dealt with at Second Reading; namely, the caution. In response, the noble Lord, Lord Dubs, indicated, as I recollect, that a new caution would be both useful and necessary. I am at one with him on that. However, he went on to indicate that it would be decided administratively. I seek to explore that matter under Amendment No. 7 which would provide that subsection (6) would not apply,
I deal first with the situation in Scotland where we do not have the benefit of the Police and Criminal Evidence Act 1984 in which Section 66 gives the Secretary of State the power to issue codes of conduct dealing with the situation. One possibility is that it might be for the Lord Advocate to give guidance in the form of directions to chief constables which they would no doubt pass on to police officers as to the caution which would be appropriate. It would apply when the officer had it in mind to rely on the provisions of subsections (4), (5) and (6) of the new Section 2A. It would be helpful if a statement to that effect could be made.
As regards England and Wales, once again I tread in waters with which I am not familiar. However, I should have thought that Section 66 of PACE would be a solution. No doubt there is a similar provision for Northern Ireland. I think it would be undesirable to leave it as a matter of uncertainty from where guidance on the caution is to come.
I hope that the Minister who is to reply can make it clear, reaffirming what the noble Lord, Lord Dubs, said, that a new caution is necessary, indicating where its terms will come from. That would be subject to the fact that ultimately in any case it will be for the court to decide whether, having regard to the caution given, fairness to the accused permits the reply to the caution of silence in response to any questions asked or the opportunity of making a statement which was not taken--fairness allows that evidence to be admitted. I beg to move.
Lord Williams of Mostyn: I am grateful to the noble and learned Lord for what is essentially a probing amendment, requesting a restatement or maybe an amplification of what has already been said at Second Reading in the context of England and Wales and Northern Ireland.
There are two aspects here. By virtue of subsection (5)(b), the accused already has the right to consult a solicitor. Doubtless his solicitor would explain the legal position to him. However, I agree with what the noble and learned Lord said. I can tell the Committee that there will be administrative guidance to ensure that the person detained is aware of the implications of failing
He is also right about the differences in the jurisdictions north of the border. I have the authority of the noble and learned Lord the Lord Advocate to say that he intends to consult in particular the legal profession and would be minded then to follow the course indicated--namely, to issue directions about what should obtain in circumstances which are likely to be fairly uncommon.
Lord Mackay of Drumadoon: I am grateful for that very helpful answer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Holme of Cheltenham moved Amendment No. 9:
The noble Lord said: I am not sure if I am alone in being slightly foxed by the sequence of the groupings. In speaking to Amendment No. 9, I support also Amendments Nos. 17 and 18 in the name of my noble friend Lord Russell.
Amendment No. 9, which is in the second grouping on the sheet that we have been given, is a probing amendment. Its purpose is simple: it is to establish whether any third leg of corroboration is required over and above what the noble Lord, Lord Lloyd of Berwick, called the two zeros making one--the two zeros being the inferences plus the statement.
I want to be absolutely clear about this because, as recently as Second Reading, the noble Lord, Lord Dubs, was talking about further corroboration. In quite a lot of the press publicity surrounding the publication of this Bill the word "corroboration" appeared. I want to be 100 per cent. clear whether any further evidence is required over and above the inferences and the statement of the senior police officer in order for a case to be found to be answered or for a conviction to be made. I beg to move.
Page 2, line 14, at end insert--
("( ) Subsection (6) below does not apply unless the accused has been cautioned that if he fails to mention a fact that is material to the offence and which he could reasonably be expected to mention, a court or jury may be able to draw from such failure inferences of the nature referred to in subsection (6) below.").
"unless the accused has been cautioned that if he fails to mention a fact that is material to the offence and which he could reasonably be expected to mention, a court or jury may be able to draw from such failure inferences of the nature referred to in subsection (6)".
As I indicated at Second Reading, it seems to me that a new caution is essential. It is important that those who are to work with the Bill when it becomes law have the clearest indication from the Government as to where the new caution will come from.
10.15 p.m.
Page 2, line 24, at end insert ("and
(c) the accused shall not be committed for trial in England and Wales, or be found to have a case to answer or to be convicted, solely on the basis of the inferences and the statement of a senior police officer to which subsection (3) above applies.").
Next Section
Back to Table of Contents
Lords Hansard Home Page