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Clause 34 agreed to.

Clause 35 [Post-charge questioning: Scotland]:

Lord Wallace of Tankerness moved Amendment No. 54A:

54A: Clause 35, page 24, line 5, leave out subsection (4)

The noble Lord said: We now move to the clause on post-charge questioning for Scotland. As the Minister indicated in the previous amendment, there are important differences, and the history of post-charge questioning differs between the two jurisdictions. In an earlier debate on the subject, we agreed that we must be cautious about it, but perhaps we should be even more cautious as we are drafting a—not exactly novel but—different procedure for the law of Scotland.

I start with the quote from the then Lord Justice General, Lord Normand, in the case of Stark and Smith v His Majesty’s Advocate in 1938 when he said:

“When an accused person has been committed, he comes under the protection of the court and it is the court’s duty to see that nothing is done by the police that will prejudice his trial”.

It is a well established principle, and I say that with some trepidation as I note that there are three distinguished former Lord Advocates in the Chamber and we had a distinguished former Solicitor-General. It is a tradition and well established principle of Scots law. I quote in aid the present Lord Advocate Elish Angiolini QC when she gave evidence to the Public Bill Committee in another place. To be fair, she expressed some scepticism with regard to the effect and benefit of this clause in Scotland.

In accepting the Minister’s point that no inference from silence can be drawn north of the border, the Lord Advocate said that,

That distinction is important.

Another important difference between the two jurisdictions, highlighted by the Lord Advocate, was that post-charge disclosure could be counter-productive. She said that there is a danger of questioning too much. It may be the same south of the border; certainly by post-charge questioning there will have been disclosure by the Crown. The Lord Advocate said that, if it is post-petition, there will have been post-charge disclosure of the statements that form the basis of the Crown case. If you approach the accused with questioning, he will be able at that stage more intricately to link his answers to what he knows to be the state of evidence. Therefore, he may well be able to give answers that exculpate him rather than incriminate him.

There are differences between the two jurisdictions, and the benefits of post-charge questioning in Scotland are perhaps more doubtful. It is very important that the structure of post-charge questioning must take into account the varying tradition and structure of Scottish law.

Amendment No. 54A would delete subsection (4), which states:

“A constable may question a person under subsection (2) or (3) at any time up to the commencement of the trial”.



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When we dealt with amendments about the position in England and Wales, we mentioned that allowing questioning right up to the door of the court is itself highly questionable. I know that that particular subsection does not appear in the provisions for England and Wales, or in those for Northern Ireland. It may be in other provisions or in the PACE codes, but we are entitled to know why that provision is present in the Scottish clause but does not appear in the clause that relates to England and Wales, Clause 34, or to Northern Ireland, Clause 36. The Minister's elucidation of that point would be very welcome.

I may have misheard the Minister, but perhaps he will confirm whether he said when we were debating an earlier amendment that there might even be the possibility of post-charge questioning between trial and retrial. The subsection may give a safeguard to the accused person, but we require some explanation.

Amendment No. 55 deletes the authorisation by the police superintendent for the first 24 hours of questioning. I shall not rehearse the arguments produced when we discussed the similar position in England and Wales, other than to say that, standing on what I said about where the person who is being committed is under the protection of the court, it is the court's duty to see that nothing is done by the police that will prejudice his trial. We are going one step too far by allowing a police superintendent, off his or her own bat—no doubt with cause in his or her eyes—to seek that authorisation when a person is already under the protection of the court. If the person is under the protection of the court, the proper person from whom that authority should be sought is the court.

The point has already been made that in Scotland that will be done by a sheriff, a professional judge. I do not think that the House was satisfied by the Minister's answer about why that was to be done in England and Wales by a lay magistrate. We have lay magistrates in Scotland. If the Minister has had an opportunity to get an explanation of why a professional judge is required in Scotland but not in England and Wales, it would be very interesting to hear from him when he replies.

Another point—former Lords Advocate present may want to comment on this—is that criminal investigation in Scotland is ultimately under the direction of the Lord Advocate or the Procurator Fiscal, who is the Lord Advocate’s appointee. It is unusual, to say the least, for a police officer, albeit a very senior police officer, to authorise questioning when, by that stage, the responsibility for the direction of the investigation rests on the shoulders of the Lord Advocate. It gives rise to the suspicion that full account was not taken of the structure of criminal justice in Scotland when the clause was put together. At the very least we should have an explanation of why it was thought appropriate to cut the Lord Advocate out of the process set out in the clause. Our primary position is that it is not a matter for the police. From the very beginning, authorisation should be sought from the court. I beg to move.



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5 pm

Lord Lloyd of Berwick: I support Amendment No. 54A. I, like the noble Lord, was surprised to find the reference to questioning up to the commencement of the trial in this part of the Bill and not in relation to England. I put two large question marks against subsection (4) when I read it. It shows how extreme the proposals are that are now being put before the Committee, but it is enough to say that I entirely support the deletion of that subsection.

I also support Amendments Nos. 55 and 56, for all the reasons that have been mentioned. I do not support Amendments Nos. 57 and 59 so strongly because I still do not like the idea of a time limit on questioning. I would much prefer to leave that to the discretion of the judge in the Crown Court.

Lord Boyd of Duncansby: I have considerable sympathy with the amendments in the name of the noble Lord, Lord Wallace of Tankerness. In Scotland, the accused is under the protection of the court, as he has said, and interference in the rights of the accused may be manifest at the point of questioning. In particular, Amendment No. 55, which would remove the role of the constable and the superintendent, is appropriate, because it would place the whole duty to protect the accused on to the shoulders of the sheriff, where it should properly reside, and not on to those of the police officer.

The noble Lord is also right to point out the role of the Lord Advocate in Scotland and the fact that the criminal investigation of the offence is under her and the procurator fiscal acting on her commission. Have any discussions been held with the Lord Advocate on the way in which the clause will operate, and will any guidance or instructions be issued by the Lord Advocate to police officers on the operation of Clause 35(5)(a)? In other words, will it be incumbent on the superintendent to seek the authority of the Lord Advocate before authorising the officer conducting the questioning? I might be more comfortable if it is, although full protection should still be there, but I am very uneasy about the position in which this leaves the accused in Scotland.

Moreover, allowing the questioning of a person right up to the commencement of the trial is invidious. As the trial gets nearer, the pressure on the accused, and on those advising and representing him, becomes even more acute. If that preparation for the trial, both mentally and in terms of advising and consulting with legal advisers, is to be interrupted by questions from police officers about the matters that are going to trial, that is to be deplored.

I hope that the Minister will be able to give some reassurance on those points and will be able to take them away to look at the implications of the Government’s position on these important matters.

Lord Cameron of Lochbroom: I support what the noble and learned Lord, Lord Boyd of Duncansby, has already said in supporting these amendments. I come back to the point which I endeavoured to make in a previous intervention in relation to post-charge questioning in England. The rights of a person charged are the same in whichever of the three jurisdictions

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that arise here. One would therefore expect to look at each of the clauses dealing with the rights of the charged person and find that they have been dealt with, as far as procedure is concerned, in precisely the same way and are protected in precisely the same way.

I have already made the point that in the Scottish provisions there is reference to the judge. There is no such provision in England or Northern Ireland. In Scotland there is a right, apparently, to question up to the commencement of trial, but not in England and Northern Ireland. These three clauses seem to have been drafted under completely different circumstances without any regard for the underlying rights of the individual who is subject to post-charge questioning. No doubt, because of the different procedures in each of the three jurisdictions, these matters have to be dealt with separately, but the effect should be the same throughout. Therefore, I support entirely the thrust of these amendments so far as they affect Scotland, but on a much more general basis.

Baroness Carnegy of Lour: It is clearly a complicated matter for the Minister when we talk about the jurisdictions. I am not a lawyer and I find the discussion on the precise procedures difficult. But I am clear on what the noble and learned Lord, Lord Cameron of Lochbroom, has just said. The rights of people wherever they are are the same, wherever they are charged, and they should be respected in the Bill. Will the Minister consider these matters and consult his colleagues in Scotland, as well as in England, Wales and Northern Ireland, and perhaps write in some detail to those of us who have taken part in this matter? How do the Government justify the differences in the way in which people are treated, not in the procedures or on how the traditions in the different parts of the country are manifest, but on rights? How do the Government justify that those rights should be different in Scotland from those in England, Wales and Northern Ireland? Will the Minister agree to do that?

Lord Mackay of Clashfern: It is probably right that the third of the former Lord Advocates should join those who have already spoken in support of these amendments. What is the position with regard to subsections (8) and (9) of Clause 34, which apply in England, but are omitted in relation to Scotland? That may be a very good thing, but it might affect to some extent the usefulness of post-charge questioning in Scotland if it is intended that the position should be different in that respect.

I appreciate that the noble Lord cannot be expected to be familiar with the detail of the Scottish procedure and therefore it is sufficient so far as I am concerned if he is able to communicate with us later on these matters.

Lord West of Spithead: I have already said to the noble and learned Lord, Lord Lloyd, that I will take away the issue about using judges or justices of the peace. What is clear is that the inconsistencies are not appropriate. I accept that although at times there are huge differences between Scottish and English law, in this case we should be looking for something similar. I

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will take away the issue to be looked at and decide whether we should come back in writing or consider it for the next stage, which might be better.

On Amendments Nos. 55, 56 and 58 concerning the police, I think that this applies in England, Wales and Scotland. Letting a police superintendent authorise the first 24-hour period of post-charge questioning, as I discussed on the amendments concerning England and Wales, is important. It is important that questioning should proceed quickly and with urgency once the charges have been laid. We do not need authorisation for other forms of post-charge questioning and we do not need to do it if we have other evidence or it is in connection with another offence. I would prefer to leave those provisions in the Bill and for the amendments to be withdrawn. We discussed this with the Lord Advocate, but I do not know the full details. My noble and learned friend Lord Boyd asked whether the superintendent would get approval from the Lord Advocate, and I shall come back to him on the next occasion. I also take to heart the points made by the noble and learned Lord, Lord Cameron, and the noble Baroness, Lady Carnegy. Some inconsistencies here need to be resolved.

Lord Boyd of Duncansby: The issue of the Lord Advocate occupies an important place in my mind. I would be very grateful if the noble Lord could check, first, what discussions have taken place with the Lord Advocate, and secondly—this is most important—whether she intends to issue instructions on how this is to operate. That would influence the way I looked at this provision when it came back.

Lord West of Spithead: I shall certainly do that.

Baroness Hanham: A couple of times, the Minister has mentioned delays in finding a judge to make a decision about post-charge questioning. I can see that it is quicker if the superintendent simply has to walk down the corridor into a police cell, but is there any experience of people having to seek the approval of a judge for other procedures within the court where the delay is so monumental that it would not allow for questioning in the first 24 hours?

Lord West of Spithead: All I can say is that this is not a question of monumental delays, but being able to get on with questioning straightaway if one has made a charge and has a real concern about evidence that might affect other people’s lives. That is the basis on which to get moving quickly.

Lord Lloyd of Berwick: That is what I find so difficult to understand. We are talking about post-charge questioning. Are we not assuming that the suspect has by this time become a defendant and will almost certainly be in custody? What is the point about delay?

Lord West of Spithead: As I understand it, if someone is charged on a Friday afternoon, I am not sure that one is always able to find a judge who is immediately available. That is how I have been briefed. If it can always be done, clearly this may not be a correct

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argument. I will ask my team to look at it, but I assume that this provision is based on the fact that the police have had trouble with this in the past. I cannot imagine that they have just made it up out of the air, so I will look into it. Generally, however, I do not think that our authorities do things on the basis of “Gosh, let’s make this difficult for people”. They are asking for this because they have had difficulties in the past.

5.15 pm

Lord Mayhew of Twysden: Will the Minister reflect on the justification he gave for retaining the right of a police officer to carry out post-charge questioning in the first 24 hours? He said that it was not in the interests of the prosecution or the police to allow that to happen in oppressive circumstances because the court, ultimately, would have an opportunity to identify that and to disallow the evidence that it produced. Will he reflect on that because it is by no means certain that a court would be able accurately to identify whether or not the circumstances of the questioning were oppressive? As the noble and learned Lord, Lord Lloyd of Berwick, said, it is readily foreseeable that oppression will occur in those circumstances when a police officer is doing it. It would be much better to avoid the risk of something as readily foreseeable in our procedure as a whole. That is a rather powerful answer to the justification put forward by the Minister. Will he reflect on it in the general context of our discussions today?

Lord West of Spithead: I shall certainly reflect on what the noble and learned Lord has said.

Lord Wallace of Tankerness: I am grateful for the general support which the amendments have attracted from noble Lords, noble and learned Lords and the noble Baroness, Lady Carnegy, who have highlighted important points. I welcome what the Minister said about the importance of securing consistency across the jurisdictions in dealing with this matter. However, I make the point already made by the present Lord Advocate that because of the different circumstances and different laws in Scotland—not least with regard to not being able to draw an inference from silence—there inevitably will be a difference in the value to the prosecuting authorities of post-charge questioning.

I say to the noble and learned Lord, Lord Boyd of Duncansby, that Amendment No. 61 seeks guidance from the Lord Advocate to the police on this and I look forward to the noble and learned Lord’s support for the amendment. He makes an important point and I am not persuaded that the Minister’s response with regard to the role of the police vis-Ã -vis the Lord Advocate was satisfactory. We have not yet had an assurance that the role of the Lord Advocate in the Scottish criminal justice structure is properly reflected in the clause.

The Minister indicated in his response that he will write or deal with these matters at the next stage. It would be helpful if he wrote to us so that when we come to the next stage we will have a better understanding

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of the issues and perhaps not have to go over new ground when it is getting late in the day to do something about it.

Picking up on a point made on an earlier amendment by my noble friend Lady Miller—this is not a criticism of the Minister—perhaps the assistance on the Front Bench of the Advocate General, the noble and learned Lord, Lord Davidson, would have been useful given that we are talking about important issues with regard to the criminal law of Scotland. Perhaps that suggestion will be taken on board for the further stages.

It has been a useful debate in highlighting important issues. The Minister indicated that he would inquire whether it might be possible in Scotland’s case for sheriffs to deal with this from the first stage rather than a police superintendent or police officer of higher rank. I am sure that the Sheriffs’ Association would willingly engage with the Government and I have no reason to believe, given the geographic spread of sheriffs across Scotland, that it would be difficult to find a sheriff on a Friday afternoon.

It is clear from the comments made that this is an important point for Members of the Committee. However, I do not wish to press the matter at the moment and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 55 and 56 not moved.]

Lord Wallace of Tankerness moved Amendment No. 57:

57: Clause 35, page 24, line 13, leave out “five” and insert “three”

The noble Lord said: This is a brief amendment to raise the question of why the extension to five days is in the Bill. This amendment makes the period three days. I confess that a period of three days is as arbitrary as one of five days, but when something impinges upon the position of someone who has been charged with an offence and is awaiting trial, right up to the door of the court, we should hold the Government to account about why they want the longer period. This is a probing amendment to find out why this period was chosen as opposed to a shorter one. I beg to move.

Lord West of Spithead: The noble Lord is right about the precision of picking three days or five days. Normally the sheriff would grant another 24 hours. We felt that if a case were really complex—and we have had a number of debates about how complex some of these terrorist cases can be—more days would be required. That is why we arrived at five days, which we think is about right. The period would normally be extended in 24-hour blocks. Five days is only an estimate by the professionals of the time that would be required in a very complex case. On that basis, I ask the noble Lord to withdraw the amendment.

Lord Wallace of Tankerness: I am grateful to the Minister for that reply. The amendment was tabled to try to find the rationale behind the period. I do not wish to push this further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 58 and 59 not moved.]



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Lord Wallace of Tankerness moved Amendment No. 60:

60: Clause 35, page 24, line 22, at end insert “, and

(c) that the person has access to legal advice throughout the questioning.”


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