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Lord Macaulay of Bragar: I am grateful to the Minister for that answer. I have given one simple example of the sheriff who failed to sign an interlocutor and effectively blocked the administration of justice in the public interest. Is it not in the public interest that there should be a general discretion for the court to rectify that omission? Why should people get away with alleged crimes because someone has made an administrative error?

There is no greater protector of the interests of the individual than myself, as noble Lords will no doubt find during this debate. Indeed several Members of the House will make it perfectly clear that the interests of the accused must always be protected. But the interests of the public equally must always be protected. In striking a balance I cannot see any reason why a general flexibility should not be built into the criminal system. However, I heard what the Minister had to say; I shall read his remarks with care. Perhaps we can resume the debate at a later stage of the Bill's passage through the House.

Lord McCluskey: Before the noble Lord withdraws his amendment, the example that he has given is not an error by a party but an error by the court. He is saying that if the court makes an error which renders the proceedings fundamentally null the court will then consider whether or not it has been caused by, among other things, carelessness. That seems bizarre. The provision is modelled upon mistakes by parties in civil proceedings. That is where it comes from. It is not apt to cover the case that the noble Lord has mentioned.

Secondly, the obligation to sign the interlocutor in a particular way is almost certainly not based upon an Act but upon a common law provision. So while one has sympathy with the notion, it would be unfortunate if we enacted a provision which does not meet the problem and then rendered it possible for parties in other circumstances to be relieved of the consequences of their carelessness, thus making something of a shambles of the whole administration of criminal justice in Scotland.

Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for his intervention. As my former devil master he teaches me another lesson in the administration of justice. I do not suggest for one moment that the court should be able to rectify its own mistakes. I made clear in explaining the reasons for tabling the amendment that it was a general provision. If the court makes a mistake, it would be open to the procurator fiscal or the advocate depute on behalf of the Lord Advocate to apply to the appeal court for the proceedings to continue and to rectify the error created by the judge in question. I do not see that as an insurmountable object in relation to the general provisions of the amendment.

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Amendment, by leave, withdrawn.

Clause 1 [Bail conditions]:

The Earl of Mar and Kellie moved Amendment No. 2:


Page 2, line 7, after ("with") insert ("or intimidate").

The noble Earl said: Amendments Nos. 2 and 3 seek to extend the standard condition of bail which prohibits the person on bail from interfering with witnesses or obstructing the course of justice. I wish to add the words so that the condition will subsequently read that,


    "the accused does not interfere with or intimidate witnesses or victims or otherwise obstruct the course of justice whether in relation to himself or any other person".

It will not have escaped the notice of the Committee that the victims of offending behaviour are a larger group than the group of witnesses. Victims are potentially anyone connected to the receiving end of an offence. For example, aggressive action against a relative may cause a witness to alter, modify or reduce his evidence and co-operation with the investigation and subsequent prosecution. Personal experience of social work with offenders leads me to recommend that the addition to the wording of this standard condition of bail will clarify the condition.

Part of the process of working with offenders is to ensure that they understand what they agreed to when released on bail. Amid the dismal euphoria of release from custody, it is very important that any instructions given are understood. Failure will lead to a breach of bail conditions. I beg to move.

Lord McCluskey: I am not persuaded that this is a valuable amendment. First, the Bill as drafted refers to a condition that the accused,


    "does not interfere with witnesses or otherwise obstruct the course of justice".

Plainly, to intimidate a witness would be an interference within the meaning of that wording. Therefore, the words are an unnecessary elaboration.

My second and more fundamental point relates to Amendment No. 3. It refers to "victims". I trust that later today we shall discuss the matter of victims. But when you release a person on bail as an accused person, you cannot beg the question as to whether or not another person is the victim. That makes the assumption that you already have an accused and a victim whereas, to take an ordinary assault case, the person who is allegedly the victim may simply have been the loser of the battle. He may have started it. That is a very common case. The police come to the scene of a street fight. The losers are on the ground and the winners have absconded. It is assumed that the losers are the victims. In fact, they may well have started the fight and have simply been overpowered by the others. There is therefore a deep objection in principle to using the word "victim" at this stage in a process. For that reason I urge the Committee not to accept the amendments.

Lord Monkswell: I can understand the noble and learned Lord's qualification about the use of the word "victim". Obviously, until someone is proved guilty, there is no victim, in one view of the case. The mover

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pointed out that what was important was the perception of the accused. We need to be very careful when discussing statutes that we do not write them merely for the purposes of lawyers and professionals who can understand the convoluted verbiage quite often associated with our statutes. We have to ensure that the words that are used are understandable to (dare I say it?) the man on the Clapham omnibus, the ordinary man in the street, who may be required to adhere to requirements of statute. That is very important. I am not sure whether the wording of the amendment is right, but we need to bear in mind the purpose of it and recognise its importance.

Lord Macaulay of Bragar: The noble Lord, Lord Monkswell, makes a very valid point. The Bill as it presently stands in generic terms covers victims. But it is important that the public should know that the law protects victims. Victims are one of the great subjects of discussion, and, as the noble and learned Lord, Lord McCluskey, said, we shall come to that at a later stage. But it should be made clear to people in the streets of the cities of this country (I extend this particular provision to England and Wales as well—it is in the streets where it matters and not in this august Chamber or in the other place—that witnesses have to face intimidation day in and day out. They have to face the consequences of giving evidence. It would be useful at least—I do not say that it would improve the present situation any more, but I suggest that if it does not do any good it will not do any harm—to accept the noble Lord's amendments. It should be made clear that people can be charged with intimidating witnesses or victims or otherwise obstructing the course of justice.

We who have practised north of the Border all know the terrible pressures that people are put under in sociological terms not to give evidence. They cannot get protection from the police because the police cannot protect every witness in every case. That would be impossible. But at least, by accepting the amendment, it would send a message to those who might intimidate or interfere with witnesses or victims that the courts will deal with them in a pretty severe manner. If it does nothing else, it will at least send a message to the community that Parliament is doing something to protect the innocents in our community who are the victims of violence, of whom there are too many these days.

4 p.m.

Lord Fraser of Carmyllie: This amendment has behind it an entirely laudable intention; that is to say, that neither victims nor witnesses should in any circumstances be intimidated prior to the proceedings. But, as the noble and learned Lord, Lord McCluskey, indicated, my response to the noble Earl would be that the standard conditions as described in the Bill are already sufficiently wide in compass to cover the points raised. In particular, standard condition (c) clearly sets out that the accused who is granted bail must not interfere with witnesses or seek to obstruct the course of justice. Any attempt to threaten or intimidate either a witness or a victim, who in most cases will be a

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potential witness, would almost certainly involve breach of that condition and might also involve the commission of an offence.

Lord Macaulay of Bragar: I am sorry to interrupt the noble and learned Lord. He read from the Bill and said, "or seek to obstruct the course of justice". In fact, line 7 (on page 2 of the Bill) states:


    "or otherwise obstruct the course of justice".

There is a big difference between the two: "seeking to obstruct the course of justice" and "or otherwise obstructing the course of justice".


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