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3.45 p.m.

Lord Macaulay of Bragar: My Lords, I should first like to pay tribute to the noble and learned Lord, Lord Fraser, who is universally regarded in Scotland as a man with a great sense of fairness and interest in making the Scottish legal system as fair and just as possible. That is recognised on this side of the House. We also commend the diligence with which the Scottish Office has attacked--if I may so put it--the various problems arising within the administration of the Scottish legal system and on the production of various papers, culminating with the latest one on the right to silence. Consideration of those papers may very well be rather rushed by the presentation of this Bill to your Lordships' House.

It is true that the views of various parties have been taken into account in formulating the Bill; but the presentation of the Bill has been something of a rocket to the legal community in Scotland and indeed to the

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people of Scotland. Time may have been taken to consider the representations in the formulation of the Bill, but there is deep concern about the amount of time that has been left for people to consider the passage of the Bill through your Lordships' House and another place. It has been suggested to me that perhaps the Committee stage of the Bill should take place some time in the middle of December. That is not a course which commends itself to me. I note that the Minister shakes his head and so I shall depart from that piece of carping and leave the matter there. We shall be delighted to consider the Bill in detail in the new year. The Government can rest assured that from this side of the House everything will be done to expedite the passage of the Bill, subject of course to the usual tradition of scrutiny and improvement. I shall come to the issues of the not proven verdict and criminal appeals at a later stage of my remarks.

In passing, the noble and learned Lord mentioned the question of fiscal fines. There is one matter about which perhaps the Minister, when he winds up, might advise the House. If a young person is found in possession of a small amount of cannabis during a police search and is given a fiscal fine, is that to be recorded as a first "offence"? If that person is then caught a second, third or fourth time, will a record be kept somewhere of something that is not a conviction? It is quite a serious problem. It can readily be seen what may happen. People will say, "It's all right. It's just a fiscal fine. I'll just keep on taking drugs"; and vice versa. The suppliers of drugs may encourage young people to indulge in drugs on the basis that, with any luck, they will get away with a fiscal fine.

We on this side of the House support any measures which can streamline the system of Scottish law without eroding the rights of the accused in particular. Regrettably, we see the Bill as a grave threat to the so-called right to silence. I shall come to that point later.

We welcome the introduction of any measure which assists in the smoother operation of the criminal law in Scotland provided that it maintains the essential balance between expediency and efficiency in the administration of the law; the rights of the individual in criminal proceedings; and in particular the long-standing rule that the Crown, which brings alleged offenders before the courts, must always be held to its obligation to prove any case, from breach of the peace to murder, beyond reasonable doubt. The basic concept of the presumption of innocence should not and must not be undermined, shifted sideways and sacrificed on the altar of administrative expediency. That is one view that some people may very well take of the proposals in the Bill.

My reading of the Bill in the time so far available has not yet convinced me that that balance is maintained by the Bill. I suspect that behind some measures in the Bill there is a deliberate and calculated erosion of the basic concepts of the legal system in Scotland, with a view to obtaining more and easier "convictions", to satisfy--as we have seen south of the Border--a bloodthirsty lobby of people who say, "Get them at any cost", devotees whose ideas of justice may be somewhat blinkered, if not perverted.

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For example, we have heard of police officers at their annual conferences saying, "Of course, criminals are hiding behind the right to silence and we cannot catch them". If that is the philosophy behind the Bill, so be it. But I can assure the House that that philosophy--which I am sure the Minister would not endorse--will be fought tooth and nail from this side of your Lordships' House. Strangely enough, some people in that category who, in their experience, would express that view, are the same people who, when they get into trouble--I have had personal experience of defending some of them--immediately jump behind the right to silence and say, "I am not saying anything. It is up to the Crown to prove the case".

To sacrifice basic principles of law, long regarded as being for the protection of the individual and the avoidance of injustice in criminal trials, for reasons of expediency and cost cutting, is dangerous. If that is what is behind the Bill, to any extent, then the Bill must be carefully and rigorously monitored and scrutinised. This Bill will receive that attention in your Lordships' House in accordance with the usual approach of your Lordships to consider and improve Bills.

It is self-evident that any system is capable of improvement and no system, of law or otherwise, is or ever will be perfect. Throughout the United Kingdom events should by now have alerted us all that a system of law should always be tailored to ensure that the risk of miscarriages of justice is minimised in so far as possible, bearing in mind that cases in court depend on the honesty or dishonesty of police and lay witnesses and the vigilance of the court to control proceedings and direct the jury on legal issues arising within a case. No system can eliminate dishonesty. We have seen examples. If a police officer or forensic scientist wants to tell lies, nobody can stop them. They may be detected in due course; but that is a fundamental weakness of the system. Miscarriages of justice will no doubt occur as long as witnesses, of whatever standing they may be, are prepared to lie under oath. It is for the courts to attempt to trap them and give them their due justice in courts.

Various issues were raised by the Minister, such as the perceived weakening of the so-called "right to silence"; the question of comments by prosecutors and judges on the absence of the accused from the witness box; sentencing guidelines; and the extension of the area of questioning open to a procurator fiscal in judicial examination. Those are examples of areas which will be closely examined in this House when your Lordships scrutinise the Bill, always with a view to maintaining the delicate balance between the rights of the individual and the interests of the state within a criminal justice system.

For example, in a country such as Scotland in which an accused is not obliged to say anything which may incriminate him, from beginning to end of the investigative and judicial procedure, why is his absence from the witness box often referred to as a "failure" on the part of the accused to give evidence? In what is he failing? Where the accused exercises his legal right not to say anything from the moment of his arrest, his absence from the witness box, far from being in any

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way a failure on his part, is a positive exercise of his constitutional legal right to remain silent. Unless and until there is a radical review of the criminal justice system, perhaps not only in Scotland, but also in England and Wales--it is sometimes suggested that the adversarial system of justice is not achieving justice in the public sense and that we should go over to the interrogative system such as they have on the Continent where the whole proceedings are under the control of the court--the right to silence is sacrosanct.

It is a legal nonsense to allow comment to be made by either the judge or the prosecutor, as a general rule, on the absence of the accused from the witness box, though I concede that there may be exceptional cases where that may be justified. For example, where my fingerprint is found on the till behind the bar of some hotel where there has been a break-in, and it is a hotel which I do not frequent, if there is no explanation as to why my fingerprint was there, then there may be a case in which comment may be made by the judge or the prosecutor. But those exceptions are few and far between and any intrusion into the right of silence must be scrutinised carefully.

If the prosecutor is to be allowed to comment on the so-called "failure to give evidence", how far is he or she to be permitted to go? Who is to control the forensic excesses of a prosecuting zealot--and there are plenty of them--whose idea of exercise of judgment is at the least questionable? Whose guidelines are they to follow? Who will lay down the guidelines to a prosecutor to say, "By the way, in a case of murder you can say this; in a case of rape you can say this; and in a case of theft you can say that"? Will guidelines be laid down for the prosecutor? Moreover, having been given that freedom, if a prosecutor goes completely over the top--I do not rule that out in a serious case and, incidentally, it could ruin the prosecution--how is the judge to negative those excesses? Each time the judge draws attention to the excesses of the prosecutor, by inference he draws attention to the fact that the accused did not give evidence. The whole thing therefore becomes an uncontrollable circus. I believe the Minister said in a radio programme last week that it is simply an extension of the existing right of the judge to comment on the absence of the accused from the witness box. I may be misquoting the noble and learned Lord. Sometimes I listen to the radio early in the morning rather than a repeat of the programme in the afternoon.

Perhaps I can draw your Lordships' attention to the case of Sutherland v. H.M. Advocate, SCCR 1994, page 90. That is a typical example of the dangers as regards what is happening. It is a case in the Court of Appeal. The opinion states that the judge,


    "told the jury that he was perfectly entitled to take that course"
--that is, not to give evidence--


    "and that it would be an entirely wrong approach for them to conclude that the appellant must have had something to hide, must therefore be guilty and should be convicted. He said that they must draw no adverse inference from the mere fact that he had elected not to give evidence. In the passage to which the ground of appeal relates he then said this ...: 'Having said that, however'"--

ote the word "however"--

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    "'if there is some evidence in the case which is crying out for an explanation and there is no explanation from the accused when he is the one person who could give an innocent explanation, then you may find it easier to draw a guilty inference from the fact or from that piece of evidence which you are considering'".

he appeal court said,


    "As to whether he [the judge] exercised the necessary care and restraint when giving this direction, we note that it was contained in a single sentence and that it was preceded by directions in the clearest terms that the jury were not entitled to draw any adverse inference from the mere fact that the appellant had elected not to give evidence. We do not think that what the trial judge said in his passage went beyond what was appropriate and permissible. We reject this ground of appeal".

That is sociological, if not legal nonsense. How can a judge say on the one hand, "Do not draw any adverse conclusion from the failure of the accused to give evidence", and on the other hand say, "but you will note that this is a piece of evidence which may require an explanation and he has not given evidence"? Why do we not get back to basics? In former days all a judge said was that the jury was not entitled to draw any adverse inference from the failure of the accused to give evidence? Why cannot we leave it at that and let the jury get on with it?

I should like to know--perhaps the noble and learned Lord the Minister or the noble and learned Lord the Lord Advocate can tell me--what evidential value the direction from the judge is to be given by the jury. In a recent case on television in Scotland the accused failed to give evidence. We did not hear what the judge said about the impact of that. But are we going to get corroboration not even by false denial but by absence from the witness box?

It is all very well for the noble and learned Lord the Lord Advocate to shake his head, and I understand why he does that. It is all very well for people versed in the law to say, "Well, of course, that is not the way things are". But if a prosecutor says, "Aha, Mr. Smith has not given evidence", and the judge says, "You will note this piece of evidence is here demanding an explanation and Mr. Smith has not given evidence. You will draw such conclusions as you think fit", what is a lay jury supposed to do except conclude that it is getting a nudge, nudge, wink, wink from the judge and say, "By the way, guilty may very well be the appropriate verdict"; not deliberately on the part of the judge, by no means? But as long as these freedoms exist from the Bench and, even more dangerously, from the floor of the court in the hands of prosecutors, we are in danger of eroding our system of law very considerably.

This matter, along with the question of judicial examination, must be considered. The noble and learned Lord the Minister raised the question of judicial examination with a view--if I have his words correctly--to eliciting a confession of some kind from the accused. Perhaps your Lordships are not familiar with the judicial examination. It is a process by which an accused person is taken before the court at a very early stage in the proceedings, before he even knows what the case against him is. He will have a copy of the complaint, or a indictment or a petition, but he is then "forced" to explain to the court what the case is all

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about, what his defences are, and so on. As it stands, the judicial examination is dangerous enough because it gives the prosecution one bite of the cherry before even the defence has had time to prepare anything. But if we are to go one step further and allow the prosecutor a real snap at the accused in order to get him to confess to something, that is quite a preposterous proposition. We shall be running two trials.

I go back to my basic point. If we do not like the adversarial system, if it is all wrong, let us get rid of it, and let us set up a commission to decide whether the whole legal system in England, Scotland and Wales is a proper legal system for modern times. However, what we are doing in this Bill is to mess about with procedure, with the accused and with the rights of the individual.

Judicial examination is just as important as any other element in the Bill. It is incumbent on the Government to take a second look at these matters--the right to silence and judicial examination--and sit back, get interested parties to come in and have a proper consolidated period of consultation and consideration. The right to silence consultation period ended on 31st October of this year. This Bill was printed on 16th November. There was a considerable response to the right to silence consultation paper. The rapidity of the production of the Bill raises very serious questions: either that the Government considered the representations and did not think them worth much, or they had already made up their mind, the consultation period was nothing more or less than a sham, and the Bill was ready on the stocks to be launched, giving it a fortnight after the close of the consultation period. I can assure your Lordships that within the legal profession there is great concern about the steps the Government are taking in the matters of the right of silence, judicial examination and so on.

The parts of the Bill which encourage expediency in the administration of justice without eroding, or potentially eroding, the rights of accused persons are welcome and will be supported, and are supported, by noble Lords on this side of the House. As I have already said, the passage of those parts of the Bill on to the statute book will not be impeded by unnecessary objections. We shall try to contribute constructively to the phraseology of the Bill. Various areas of the Bill, as the noble and learned Lord has already indicated, are better suited to be dealt with at the Committee and Report stages. It would be insolent of me to take up your Lordships' time in discussing those areas in detail.

I wish to raise two other issues. The first concerns sentencing guidelines. On this side of the House--the noble and learned Lord referred to the document produced by the Labour Party--we are in favour of consideration at least of a sentencing commission. The essence of guidelines is that they should be consistent. With the varying constitution of the Appeal Court in Scotland, where one does not get the same three judges listening to appeals, it is not necessarily the case that one will get a degree of consistency. We have to consider that point.

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What I would not like to happen--and I have raised this point in your Lordships' House before--is to see sentencing guidelines become a straitjacket for a local judge. In a recent case in England a judge wanted to give some young fellow a considerable period in prison. He said, "I would like to give you x number of years but the sentencing guidelines say that I can only give you y". He had to pass a sentence which was not commensurate with the feeling of the local area and the nature of the offence because someone in the Appeal Court, looking at a bundle of papers, had said what was the appropriate sentence in that type of case. That should not be allowed to happen. It must not be a straitjacket for local judges.

We have our own problems in Scotland--speeders on the A.9, the Inverness road, probably one of the most deadly roads in Britain, if not in Europe. People come from the south, driving at 100 to 120 miles an hour. Perhaps in the south of England that might be regarded as just a yuppy exercise on a Friday evening. In Scotland it is regarded as a highly dangerous exercise on a very dangerous road. The guidelines that might be appropriate in the south of Scotland--in Dumfriesshire--might not be appropriate in Inverness-shire. I should like to think that the Government might consider setting up a commission of lay and legal representation to give a broad consensus as to the gravity of particular offences at a particular time and the way they should be dealt with.

The area of mental disorder in criminal procedure is a minefield of difficulty. It is a bewildering area. I ploughed my way through it and I commend the Minister and those who worked on it for the work they have done. We will do everything to assist in the passage of that part of the Bill, as we will do on the question of people profiteering from crime.

On the question of the abolition of the not proven verdict, all I can say is that we shall be back. The not proven verdict is regarded by many people--I declare an interest in that I have been against it for ever--as a nonsensical verdict. It is a fudge. Three verdicts in a criminal court. The rest of the world gets along with two. We in Scotland, for historical reasons, have to have three. All I can say at this stage is, let us get rid of it, but let us get rid of it after an informed debate in your Lordships' House.

The question of defence access to Crown papers in criminal cases, which was focused on yesterday south of the Border, will have to be considered during the passage of the Bill.

Finally, on the question of miscarriages of justice, unlike in other respects, Scotland is well behind the field. England and Wales, we think, will have a new body in office probably within a year. What has happened in Scotland in response to various observations made about the difficulty of miscarriages of justice is that a committee has been set up. Perhaps I may quote Lord Ross, the Lord Justice Clerk of Scotland, speaking at the 10th Commonwealth Law

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Conference--I cannot remember where it was but it is the words that matter--in March 1993. In dealing with miscarriages of justice, he said:


    "It thus seems that such a new body if brought into being would have an important part to play in remedying miscarriages of justice in the criminal justice system. Indeed unless such a new body is created, there will be some cases where one cannot be confident that means exist within the criminal justice system as presently constituted for remedying miscarriages of justice which may have occurred".

That was a cry from one of the principal judges in Scotland to say, "Do something about miscarriages of justice". I recognise that the Government have done something about the situation because they have set up a committee which will not report until July 1996, or earlier, on the promise of the chair of the committee. I am somewhat concerned about the composition of the committee because I do not see on it any representation from practising lawyers apart from Professor Ross Harper who, for this year and the next two years, I believe, will be the president of the International Bar Association. I am not sure how much he practises criminal law. There is no representation from the Bar Association of Scotland or indeed from the Faculty of Advocates, as far as I can see.


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