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4.26 p.m.

Baroness Carnegy of Lour: My Lords, I begin by congratulating the noble Earl, Lord Mar and Kellie, on his speech, which I believe was his first from his Front Bench. He is a comparative newcomer to this House and I am sure that we all admire the way in which he has deployed his professional expertise in his first speech from that position.

The Bill deals with issues that are right at the top of the agenda for the people of Scotland. As elsewhere in the United Kingdom, we Scots think a lot and care a lot about jobs, schooling, hospitals, community care and the economy; but I believe that it is a fair guess that higher even than those in priority comes concern at the present time for the safety of our homes, our children, our elderly relations, ourselves, our cars and our possessions generally. There is concern about the number of burglaries and violent crimes which we read and hear about daily and which we and our friends and acquaintances may, alas, have experienced personally. High on our agenda too is concern that far too many people suspected of crime seem not to be caught or seem, having been caught, to be allowed to escape. There is concern that too many people receive sentences that seem far too lenient.

I know very well from when I served on the Bench as an honorary sheriff in the 1970s and early 1980s the frustration which ordinary law-abiding people feel if a court imposes a sentence that looks inappropriately light, if they think that an accused person is too easily given the benefit of the doubt, or if a convicted person is able to keep his or her ill-gotten gains and in no way make restitution for the loss suffered by the victim. Those frustrations are, I believe, no less--and probably more--strongly felt nowadays than ever before. We all hear and see more and more via the media, and the current desire for the operation of our courts in Scotland to be strengthened is very great and cannot be ignored.

At the same time, it seems to me that we Scots are deeply conscious--at any rate, when we take time to

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reflect--that accused people must be dealt with fairly; that as regards serious crimes juries are the people who should decide guilt or innocence; and that sentencing should be clearly fair as well as firm.

I say to the noble Lord, Lord Macaulay--who at present is not in his place--that I do not believe that the electorate or its elected representatives in Scotland are bloodthirsty. I believe that people are only too well aware not just that the victims of crime might at some point be their own parent, grandparent or child but that one day the accused person might be a member of their own family: a son, a daughter or a grandchild.

For that reason, as well as the basic tolerance deep down in the Scots personality and culture, I believe that people appreciate the need for balance in the law; that if, for example, there is to be the strengthening of deterrence--the more effective catching and holding of suspects and arrangements that make it more difficult for the guilty to be found innocent--there must also be proper safeguards to ensure that unnecessary force is not used, that the innocent are not convicted and that miscarriages of justice can be rectified.

Likewise, when people are reminded that the taxpayer must pay most of the costs of the administration of justice--of ensuring that firmness and fairness, in fact, happen--they accept that those costs must be kept in control. They understand well the need to make the procedures work as smoothly as possible with as little waste of time as can be managed. Those who at some time have been called as witnesses or jurors probably know from experience how time is wasted and how there are repetitions, delays and adjournments. It is interesting to note that the Government's figures show that of the 350,000 witnesses who attend court in Scotland each year, no fewer than 280,000 give no evidence at all. They are told that it is all necessary in the cause of justice. However, many are a little mystified why such inefficiency must be part of the law.

The Bill addresses many of those anxieties. As my noble and learned friend told us, and as subsequent speakers have mentioned, the first five clauses deal with the law relating to bail. They limit the range of people who may be granted bail and make it possible to impose tighter conditions. They make it possible to impose more severe penalties for those who break the conditions or commit offences while on bail. They also make it possible for bail to be reviewed if new circumstances come to light which cast doubt on the original decision.

Part II contains proposals relating to confiscation. They enable the court to confiscate the proceeds of crime and they set out how the court will determine what the convicted person has in fact gained by his or her crime. Part II also makes it more difficult for people convicted to escape from forfeiting the property that they have used in crime. It allows the court to make suspended forfeiture orders and to search for and seize property which might in due course be the subject of such an order. All those measures meet the anxieties of the public.

Much of the Bill is devoted to measures that would speed up the workings of the court and would enable court officials, lawyers, judges and, indeed, police

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officers to use their time more effectively and cost-effectively as well as taking up less time for witnesses and jurors.

The Law Society of Scotland has been kind enough to write to me as it has to other noble Lords. It is happy about the majority of the Bill. It tells me that the Government have consulted the society and have taken many of its suggestions into the Bill. It does not agree, it tells me, with Clause 10, which deals with judicial examination, or with Clause 26. We shall be discussing the proposal relating to the so-called right to silence, which I understand is different from that in the legislation for England and Wales. The Law Society of Scotland is also concerned that resources may not be made available on the taxpayers' behalf to finance the new arrangements. It wonders whether the Government have costed carefully enough the balance between the likely savings and additional expenditure. Can my noble and learned friend comment on the statement in the Explanatory and Financial Memorandum to the Bill that the cumulative effect of the proposals should be broadly cost neutral?

The Bill proposes many changes which, while looking eminently sensible to the lay person, will clearly demand new ways of working and, I dare say, even some new skills for lawyers. Of course the House will need to look carefully and in detail at the workability of the measures, not least through lawyers' eyes. After all, the lawyers must get it all to work. I imagine that when we hear the speech of the noble and learned Lord, Lord McCluskey, we shall not be allowed to forget that. I believe that the noble and learned Lord won the Sword of Honour during his training as an Air Force officer. He has ever since been a doughty fighter and we look forward to hearing his speech.

I hope that during our detailed deliberations noble Lords will not become so concerned by the challenge that the Bill presents to lawyers that the needs and anxieties of the public will sometimes be put on the back burner. We must not allow that. This Bill is much needed and I commend it to the House.

4.38 p.m..

Lord McCluskey: My Lords, on Second Reading it is appropriate to discuss the principle of the Bill. However, Part I contains many disparate and unconnected reforms and it is difficult to find the principle. That is not a criticism of the Government; it is just the way it is. I am inclined to agree with the noble Earl's judgment that the Bill is tinkering with the system. I was most surprised to hear the noble and learned Lord the Minister describe it as resulting in the most substantial overhaul of the Scottish criminal justice system for 15 years.

There is a temptation to go straight to the detail because there is no one coherent principle. However, I shall resist doing so. First, I wish to comment on the process that has led to the production of the Bill. It culminated in the publication in June of the Government's White Paper, Firm and Fair. I was and I remain a serious critic of that process. The Government went about it in entirely the wrong way and that is one of the reasons why they obtained some bad results.

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The Government published about half a dozen papers during a period of less than 12 months. They allowed a brief period of consultation--two or three months at most--some of which occurred during the court holiday periods. The people who wrote the papers, who thought up the proposals that were included in them and who decided what was to be left out were civil servants working to the instructions of Ministers. In some cases I know that their knowledge and practical experience of criminal practice and procedure was very limited indeed. In the case of the Crown Office participants to that process, their experience was entirely one-sided. They had the perspective and prejudices of full-time career public prosecutors.

Let us contrast that with the process which led to the 1980s Bill. I see that the noble Lord, Lord Ewing, is in his place. In the 1970s, for a period as long as nine years, many distinguished experts sat and considered criminal justice reforms. In particular, the committee under Lord Thomson produced three reports. It had on it three High Court judges, a sheriff, public prosecutors, professors, doctors, policemen and lay people. Over that period, it produced a serious look at all the matters. It heard evidence from people listed in Appendix 1 to the report and that list extends to four whole pages of consultees. Some people gave oral as well as written evidence.

It then took a long time to produce its report which was based on all the perspectives of anyone inside, or even outside, the Scottish criminal justice system. Therefore, the legislation which followed was soundly based and commanded widespread support. I mention the noble Lord, Lord Ewing, because when we were members of the government, we sat together and went through the reports. We included in the Bill as many proposals as the legislation committee would permit.

When the government fell, the succeeding government took over that particular Bill, and in many ways, they improved it. They extended it and added the results of the new consultation processes which had come on-stream at that time. That reform commanded the respect of the whole of Scotland. This one is based on an entirely different process. Nobody knows where the ideas came from. Nobody knows why some of them are there and why others have not even been canvassed.

I want to say--and it is right that I should do so--that the consultation process, short though it was, produced a considerable amount of protest from people in Scotland, including myself, the Law Commission and a good many others, about the weakness of the process, the shallowness of some of the proposals and the unwisdom of some of the ideas being published by the Government. I wish to pay this tribute to Ministers--and I do so with the greatest sincerity--for listening to that consultation process in a way which, I must say, surprised me. But they certainly listened and the result is that the Bill is not nearly as bad as most of us had feared. I hope that they will continue to listen and I am sure that they will do so because we are all concerned to improve and streamline the system.

However, it is necessary to draw attention to one or two consequences of that particular process. The whole emphasis of the Bill is on what the White Paper calls

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"our fight against crime". That is what the White Paper is concerned about. I am certainly as anxious as the Government to fight against crime. The White Paper states that their highest priority is to protect the public from crime and from criminals.

Of course the public has the right to expect that kind of utterance from the Government. But the highest priority of the Scottish criminal justice system is to ensure that justice is done in and by our criminal courts. We, the judges, are not allies of the police or public prosecutor. We are not members of the same team. We and the criminal courts exist to ensure that those whom the police and the public prosecutor seek to prosecute will be dealt with justly and fairly and as speedily and inexpensively as possible.

The result of the process that I have described, with the main input coming from the prosecution, the Lord Advocate and the Solicitor-General, is that the balance of the Bill is entirely wrong. I detect only one measure which goes in favour of an accused person in a criminal trial. The whole thrust is to tip the scale against accused persons. That can be seen in the proposals with regard to bail, the increase in penalties, the limitations upon appeals, the reductions in legal aid, where it is hoped there is to be a saving in legal aid, the encroachment on the so-called right of silence and so on.

There is the proposal to reduce the right of peremptory challenge, the right of the defence to say, "We object to this juror" without having to show cause. The history of the matter is that until 1980, there were five peremptory challenges. The Thomson Committee considered the matter and suggested that we should reduce the jury to 12 and allow two challenges. The logic of that was that if you retained 15, you kept three challenges. In 1980 the Government came forward with a proposal to make it one challenge. In this House I introduced an amendment to make it three. The noble and learned Lord the Lord Advocate at that time--I think he is now the Lord Chancellor--marched his troops through the Lobby and the result was that the proposal was defeated.

The matter went to the other place and when it came back with the support of the Government, they had what was called a balanced compromise between those who held different points of view. It would be unwise to disturb that compromise now. The compromise was to have three peremptory challenges. What has changed today? Why are we being invited to abandon that balanced compromise which flowed from Thomson and which met with the somewhat muted approval of those who took part in the discussions at that time.

But an even more serious consequence of the somewhat incestuous way in which the proposals were conceived is that the procedural remedies which are to be introduced in Clauses 10, 11, especially 12, and 13 do not address real problems. Some delay and inconvenience is inevitable in a criminal justice system. It cannot be remedied. But in so far as it is possible to remove faults and improve matters, it is quite clear that the principal causes of delay and inefficiency in our system of bringing people to trial are to be found inside the prosecution system, the system over which the noble and learned Lord the Lord Advocate presides.

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Again, I make it quite clear that that is not a criticism of him or those who act under him, including the fiscals and the Crown agents. I believe that they are heavily under-resourced. Many people support me in that belief. But the Bill does absolutely nothing at all to help them in that regard. As is pointed out in the financial part of the Explanatory Memorandum, the Bill is to be cost neutral. That is cloud-cuckoo-land. You cannot introduce extra bail duties for fiscals and advocates-depute, extra preparation for questioning at judicial examination, extra preparatory work for the fiscals to deal with the matters in Clauses 11, 12, 13 and 14, extra work at hearings in relation to insanity cases, extra responsibilities conferred in relation to confiscation under Part II and so on without increasing the resources available to the fiscal service. Those resources are already inadequate and I am afraid that the Bill is extremely weak in that regard.

There cannot be the slightest doubt that if you increase the number of penalties and the number of crimes but reduce access to bail, as this Bill does, the prison population is bound to rise. I believe that it costs about £20,000 per year to keep a person in prison. Perhaps the noble and learned Lord will correct me if that figure is wrong. Has that been taken into account? The only likely saving mentioned in the Explanatory Memorandum is on legal aid. That is very dangerous indeed.

I see that the noble and learned Lord the Lord Advocate is in his place. He will remember very well the case of Grainger because he acted for the unsuccessful party before the European Court of Human Rights. We got into trouble there because we had not allowed legal aid to a person in relation to an appeal and the Government had to pay compensation of, I think, £1,000.

I turn from what the Bill does contain to some matters that it does not contain. It does not contain certain potentially useful reforms. Mention has been made already --and I want to emphasise it--of dealing with the real miscarriage of justice cases which the present system cannot handle. We may not have had the same publicity in relation to those cases in Scotland but make no mistake about it, we have had such cases and, indeed, I believe that some may still exist.

What is significant is that within the past 10 days, the Government have set up a committee. Why have they waited until then? The Runciman Committee was appointed in the spring of 1991 and the problem was evident then. It reported in June 1993 and the answers were offered then and there has been a great deal of commentary in relation to them since that time. I should certainly like to know why it has taken until now for such a proposal to be put forward. It is a matter of urgency. If a person is languishing in prison suffering from a miscarriage of justice, nothing could be more urgent to him. We must not proceed about it in such a leisurely way as that which has been proposed.

I shall pass over a number of other matters that I should have liked to deal with because they may be suitably dealt with in Committee. However, there is one case that I should like to mention. I am sure that the

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noble and learned Lord the Lord Advocate will have a good deal of sympathy with this point. I have in mind the recent case of Eric John Rowan. He faced criminal charges in Scotland and was released on bail. Eventually, he failed to turn up for trial. One of the conditions of bail was that his passport should be confiscated. Shortly afterwards, he was arrested at Manchester Airport apparently trying to leave the country without a passport. He has since been detained on remand in England. The Scottish courts cannot bring him to trial because statutory provisions do not permit the release of a person held on remand in England to be tried in Scotland. The result is a nonsense.

We in Scotland are very proud of the fact that we have strict time limits on the prosecution of charges. Of course, such time limits affect Mr. Rowan. The Lord Justice General, writing the opinion of the court, said:


    "In view of the difficulties which have arisen with the English prison authorities since the introduction of the 12 month time limit in Scotland by the 1980 Act, we believe that the time has come for the whole matter to be reconsidered by Parliament, with a view to the introduction of legislation to permit the transfer of prisoners on remand in such circumstances. In our opinion this is a reform which is now urgently needed".

t is urgently needed and I should like to see it in the Bill. If we are faced with the problem that the English are not prepared to allow the UK legislation to be altered--and I believe that that may be a difficulty--then I believe another possible solution is to insert in the Bill a provision to enable the courts to extend the time limits on that specific ground. At least we will be able to do so without difficulty. The noble and learned Lord the Lord Advocate will no doubt be considering that particular matter.

I do not want to go into the bail provisions in any great detail. However, I doubt very much whether some of them are really necessary. For example, in Clause 3 your Lordships will find that certain persons who have been convicted of such crimes as murder, attempted murder, rape and so on, will not be allowed bail if they come before the courts. But who on earth would grant them bail? I sit as a bail judge once a week and I hear, perhaps, 30 or 40 cases each day that I sit. I should like to ask the noble and learned Lord the Lord Advocate whether there are any cases known to him within the past, let us say, three or five years when a person charged with murder, attempted murder, rape or attempted rape, and having a previous conviction for such a crime, has been released on bail? I should be astonished to discover that that has happened.

Clause 5 says that one cannot proceed with an appeal unless one has lodged the grounds of appeal. That is the practice of the courts at present. Indeed, it is the subject of a practice note which I have in my hand. I see that the noble and learned Lord is shaking his head. Nevertheless, it was issued by the Lord Justice General in March 1994. It is the practice and I, as a bail judge, observe it. In fact, the practice was first specified by Lord Wheatley, then Lord Justice-Clerk, in the case of Smith some years ago. I have the practice note with me in case there is any doubt about the matter.

Clauses 8 and 14 deal with a matter which is very close to my heart and, indeed, to that of the Minister. The noble and learned Lord will remember that I came

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forward in 1990 with proposals to require the prosecutor to serve on the accused person, along with the indictment, a list of separate facts which the accused person could then be invited to admit or deny. The Scottish Law Commission picked up the idea and wrote a very useful report on the matter of which the Minister and the noble and learned Lord the Lord Advocate will be aware. Indeed, in the 1990 debate, the Minister is noted as saying:


    "The Scottish Law Commission is currently considering the responses to its consultation on Discussion Paper No. 77 on [these] matters".--[Official Report, 17/5/90; col. 429.]

The commission produced a report and brought forward an excellent clause. The essential character of that clause was the same as the one that I advanced in 1990; namely, that the prosecution should, first of all, specify the matters that ought to be agreed or that might be made the subject of an agreement. The Bill distorts the whole thing entirely and lays the obligation upon both the prosecution and the defence. So, what price the right of silence if there is a statutory obligation to agree certain things? I do not really understand that at all.

Clauses 12 and 13 are said to tackle the question mentioned by the noble Baroness of people coming to court and finding that the case is not to be heard. It means going back to the system which was abolished following consideration by the Thomson Committee. We used to have two diets which were abolished in 1980 by a Bill introduced by the predecessors of those who now sit on the Front Bench. But here we are, for no particular reason, going back to that situation some 14 years later. I do not understand it.

In Committee I shall say that Clause 18 is a wholly misconceived clause. It enables the prosecution to put the previous convictions of accused persons before the jury, although the accused persons have not given evidence. I regard that as a terrible departure from the principle that ought to apply.

I can offer a little comfort to the Minister, as regards Clause 26--a clause much disliked by others. I actually support the provision. It relates to the comment by the prosecutor upon the failure of the accused to go into the witness box. Perhaps I may suggest to your Lordships the reason for my support. It is deeply patronising for judges and people like ourselves to imagine that, unless someone says to the jury, "Did you notice that he did not go into the witness box?", they will not have noticed. If a judge points out to them that an accused did not give evidence, one does not see members of the jury striking their heads and saying, "Jings, we didn't actually notice". It is deeply patronising to say that that cannot be commented upon. If the judge can comment upon it, as he can--though he should do so with restraint; and those restraints are fairly well known--I do not see any reason in the world why the prosecutor should not say, "Well, ladies and gentlemen, you have heard the evidence. His fingerprints were found all over the safe. His footprints were found on the carpet and his DNA sample matched that found on the broken window, but he did not offer an explanation". Members of the jury do not need to be told that. But, if the prosecutor wants to say it, let him go ahead and do so. I do not regard that as a serious invasion of some precious constitutional

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right. I believe that a good deal of nonsense has been talked about it by, among others, the noble Lord, Lord Macaulay of Bragar.

I am most doubtful about the proposal that judges should sit alone in order to consider criminal appeals. I have with me a document written by Justice. It was pointed out that there is such a system in England where a single judge scrutinises papers and decides, on the basis of the written papers, whether or not there will be an appeal. The document says that the single judge acts as the main filter for appellants--some research was carried out in that respect--and continues to say that there is a lack of any consistent practice in the way that applications appear to be considered. In one case as regards which Justice has the papers, a solicitor had in error sent two sets of appeal papers in the same case. Two single judge decisions followed: one granted leave to appeal and the other one refused it. Both decisions had been made at different times by the same judge. The first decision was favourable and a custodial sentence was reduced on appeal.

When one sits down at the end of a busy day and is handed a great heap of papers which one has to read before one has one's evening meal or whatever, one is bound to look through them fairly cursorily. Yet, if we refuse leave to appeal and the matter goes to the Appeal Court and leave is also refused there, legal aid is not granted. Therefore, the judges are being brought in to act as doorkeepers against further depredations of the legal aid fund.

There are many other matters which I should like to discuss, but I see that my time is nearly up. I repeat, I hope that the Government will do what they certainly did at the consultation stage; namely, listen and respond. I am anxious to help. I hope it is not immodest if I say that I have more experience of practice at all levels in the criminal courts in Scotland as a prosecutor, as a defence counsel, in the burgh court, in the district court, in the sheriff court and in the Appeal Court in all capacities than anyone else in this noble House. I share the Government's objectives in relation to speed, simplicity and comprehensibility in the criminal process. I hope the Government will study carefully the many amendments that I propose to put down and that they will be seen as genuine attempts to improve the Bill. That is what I propose to do and I look forward to the next stage.


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