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Select Committees

The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the Lord Inglewood be appointed to the Select Committees on Broadcasting and Procedure of the House and to the Board of Parliamentary Broadcasting Unit Limited (PARBUL) in place of the Earl of Arran; and that the Earl of Lindsay be discharged from the Select Committee on Sustainable Development.—(The Chairman of Committees.)

On Question, Motion agreed to.

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Criminal Justice (Scotland) Bill [H.L.]

3.40 p.m.

The Minister of State, Scottish Office (Lord Fraser of Carmyllie): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Fraser of Carmyllie.)

On Question, Motion agreed to.

House in Committee accordingly.


Lord Macaulay of Bragar moved Amendment No. 1:

Before Clause 1, insert the following new clause:

("Relief for non-compliance with Acts of Parliament relating to the administration of criminal justice

.—(1) The Court may, in its discretion, if it considers it to be expedient and in the interests of justice, relieve any party from the consequences of any failure to comply with the provisions of any Act relating to the administration of justice in criminal cases, provided the Court is satisfied that such failure was due to mistake, oversight or other like cause, and not being a wilful, negligent or careless omission on the part of the party seeking relief from the Court.
(2) Any relief under subsection (1) above shall be granted or refused at the discretion of the Court having heard submissions on behalf of those concerned in the proceedings, and, where granted, the Court may make such orders and impose such conditions as appear just and proper and in the interests of justice to enable the proceedings to continue.").

The noble Lord said: This is not the first time that the amendment has been put before your Lordships' House. The last time it was greeted not with disdain but with some degree of diffidence. I make no apology for proposing it again because since the Bill was last before the House there have been incidents in Scotland where, in the public eye, justice does not appear to have been done as a result of purely administrative oversights on the part of the prosecution.

The amendment in my name applies to both the prosecution and the defence. It is designed to give a degree of flexibility to the criminal law which at present exists in the civil law. I appreciate as much an anyone that in the criminal system one must protect the rights of the individual, but at the same time this Parliament has a duty to recognise public anxiety about technicalities allowing people to get away with crimes. For obvious reasons I do not care to name them, but there have been one or two cases where there has been a failure to serve a notice of penalties in the court and the court has then said, "We cannot do anything about it because there has been an administrative oversight". I can think of one major criminal case involving a £500,000 alleged fraud on the public purse in the west of Scotland where a sheriff omitted to sign the interlocutor to continue the case from one day to another. Counsel came in, quite properly, in his client's interests, when the case was called the second time, and said that the whole proceedings were incompetent because the sheriff had failed to sign the interlocutor. The case was dismissed.

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Whether or not the person who was charged was guilty of defrauding the public authorities of £500,000 is neither here nor there. What is important is that, looking at that example, the public must say to themselves, "What kind of system do we have when pure technicalities like that can allow a person not even to stand trial?" That is why the amendment was put down.

For those Members of the Committee who are interested, I have worded the amendment carefully to deal with two situations. One is that the court is satisfied that any failure to comply with any Act of Parliament relating to criminal proceedings was due to,

    "mistake, oversight or other like cause"—

in other words, that is just the way that it happened—

    "and not being a wilful, negligent or careless omission".

That leaves it open to the presiding judge to say to the Crown or the defence: "Well, that was negligent and careless and you will have to bear the consequences of it by losing the prosecution". Alternatively, if it is a matter of lodging a special defence in a criminal trial that is not allowed by the court, then the person involved could take action against the solicitor.

I have worded the amendment carefully and left the whole matter to the discretion of the court. Subsection (2) states:

    "Any relief under subsection (1) ... shall be granted or refused at the discretion of the Court having heard submissions on behalf of those concerned in the proceedings".

The amendment then gives the court discretion to make such orders as it sees fit and proper in the interests of justice,

    "to enable the proceedings to continue".

By "proceedings", I mean not only trials but, for example, proceedings in the Court of Appeal. This is purely anecdotal, but I was told recently of a person appearing in the Appeal Court who appealed against a conviction for murder. The matter is now being continued, but when the defendant appeared his solicitor was not there. I do not know whether there was legal aid, but the court continued the case. The man was expecting his solicitor to be there, and he was forced to go on with the case which was later adjourned in order to obtain notes in evidence from certain witnesses. If that had not happened, the man charged with murder—and whether or not he was guilty is neither here nor there—would have appealed against his conviction and at being forced to go on in the absence of legal representation. Incidentally, what happened was probably in contravention of the European Convention.

Those examples spring to mind. I tabled the amendment in the hope that the Government would take another look at it. I seem to remember that a former Lord Advocate, the noble and learned Lord, Lord Cameron of Lochbroom, indicated that perhaps there were situations where such a matter might be applicable within the criminal law, to keep the balance between the rights of the individual and the public interest. In those circumstances, I beg to move.

Lord Renton: Before the noble Lord sits down, perhaps he would clarify one matter. Subsection (1) of the amendment refers to:

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    "failure to comply with the provisions of any Act relating to the administration of justice in criminal cases".

Does the noble Lord intend to refer there to the administration of justice on both sides of the Border, or not? Quite frankly, if this were intended to refer to the administration of justice in England and Wales, we would have to consider it in the light of the law of England and Wales.

Lord Macaulay of Bragar: I am grateful to the noble Lord for his intervention. However, the Committee will notice that the title of the Bill is the Criminal Justice (Scotland) Bill. It only applies to England in three sections, mainly under Clause 89. The amendment was only meant to cover the administration of justice in Scotland. Of course, if the administration of justice south of the Border should find it convenient to adopt the civilised practices of Scotland, then so much the better.

Lord Fraser of Carmyllie: In bringing forward the amendment, the noble Lord has raised an issue of considerable significance. In effect, he is raising the question of how innocent oversights or simple mistakes should be resolved in the context of criminal proceedings. His proposal is to give a general power to grant relief by the court in every case, no matter what that failure might be.

In some respects, having been a prosecutor, I see the attraction of that, but I am concerned at the effect that the amendment might have on the general conduct of business in our courts. It is a significant feature of our system that considerable importance is placed on the observance of the detailed procedures set out both in subordinate legislation and in statute. Indeed, the consideration of matters which might lead to the conviction and imprisonment of an individual are accorded such importance that a great many detailed provisions have been deemed to merit enactment in primary rather than secondary legislation.

I would therefore be unhappy with an amendment which proposed in effect that the court should have general powers to waive observance of those procedures, albeit in circumstances where the court is satisfied that there was no wilful, negligent or careless omission on the part of the applicant. I would consider it preferable to maintain the discipline of the existing statutory procedures affecting, as they do in so many cases, the liberty of the individual. They have been set down for a purpose. It is important that all those who are involved in the criminal justice process pay particular attention to regular observance of them and ensure the attention to detail which, I am sure the noble Lord would agree, is a hallmark of the criminal justice system in Scotland.

If there are particular requirements by way of time limits or whatever that are considered to merit special dispensation, I would certainly be willing to consider making special limited provision. But in the absence of specific instances I would not like to see a general power introduced as the noble Lord suggested. However, if he has particular circumstances where he

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believes it might be desirable to allow such a dispensation I suggest that he might return to the matter at a later stage.

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