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Lord Harris of Greenwich: I agree with the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Macaulay of Bragar. I find it difficult to understand the purpose of the amendment. When the noble and learned Lord, Lord McCluskey, began his speech the example that immediately occurred to me was the one he cited; namely, the views of the Renton Committee. The noble Lord, Lord Renton, unhappily, is not in his place and if he were here I am sure that he would say exactly what we have said during this debate on the amendment.

Perhaps the Minister will agree to look at the matter again between now and Report stage. There is no issue of substance involved, but it is totally pointless to add these words to the Bill. As the noble and learned Lord, Lord McCluskey, said, these are exactly the issues which a judge will take into account when deciding matters of this sort. It is cluttering up the statute book for no clear purpose. I shall be grateful, therefore, if the Minister will at least say that he will look at the matter again between now and Report stage to decide whether or not the amendment is necessary.

4.15 p.m.

Lord Hughes: I see a similarity between what was said on Amendments Nos. 2 and 3 by the Minister and what was said by the noble and learned Lord, Lord McCluskey. The Government argued against Amendments Nos. 2 and 3 on the basis that, while the proposal may be desirable it was not necessary. What was already present covered the point.

The noble and learned Lord, Lord McCluskey, said that he, as a judge, is already able to do the things which the amendment purports to be making possible for the first time. If the noble and learned Lord is correct, that he can quite properly do these things, then the argument can be put forward that the amendment is not necessary to make it possible for the noble and learned Lord to do what he is already doing.

Lord Fraser of Carmyllie: I am a little surprised that this matter creates some controversy. The clause gives the courts a new power to deal with those who offend while on bail. I understand the noble and learned Lord, Lord McCluskey, to say that he considers it desirable that he, as a judge, should be entitled to take into account a wide range of factors.

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Our concern was that the way the new provision is drafted at present restricts him in the number of factors that he can take into account. We therefore considered it desirable to take away that restriction and allow judges to take account of the full range of factors. That was the reason the amendment was tabled.

I am happy to look at the matter again if it is considered to be unnecessary and accordingly I shall not press it. I believe that the amendment is necessary but I am prepared to withdraw it at this stage and return to it at a later stage.

Lord McCluskey: Before the noble and learned Lord withdraws the amendment perhaps he will note that my complaint is not so much about the amendment, though it introduces unnecessary elaboration. My real complaint concerns the proposed subsection (2A). I should have tabled an amendment to illustrate that but was too busy to think of all the necessary details. Perhaps the Minister will bear in mind that my real complaint is that we do not need it.

Lord Fraser of Carmyllie: I understand what the noble and learned Lord says. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 6:

Page 2, leave out lines 28 to 31.

The noble and learned Lord said: Amendment No. 6 is tabled in order to draw attention to a specific set of circumstances. The Committee will see on page 2, lines 28 to 31, that the provision provides that,

    "The court shall not ... have regard to the fact that the subsequent offence was committed while the accused was on bail unless that fact is libelled in the indictment".

Clause 2 therefore amends Section 3 of the Bail etc. (Scotland) Act 1980. That section creates certain offences; namely, breach of bail conditions in one shape or form—failure to appear, or something of that kind. Clause 3(4) of the 1980 Act allows a person who is charged with a serious offence on indictment to be charged on the same indictment with a breach of bail. In many cases the bail was granted not in connection with the serious offence which he is now facing on indictment but in connection with a different offence.

The inevitable result, therefore, of charging the breach of bail in the same indictment as the serious charge is to disclose to the jury hearing the case of the serious charge that the accused is facing, or has faced, another and different charge or charges. That is contrary to the principle that when a person faces trial the jury should not be given any information showing or tending to show that he has faced, or is to face, any other criminal charge.

There are one or two minor exceptions to that general principle. For example, a person may be charged under certain circumstances with loitering, being a known thief. That necessarily discloses that he is a known thief and therefore has previous convictions. He might be described as a reputed thief. But these exceptions are few. The normal practice is evidenced in road traffic cases. If a person is charged with dangerous driving, or drunk driving, and he is also charged with driving while

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disqualified, the charge of driving while disqualified is put on a separate indictment or complaint. That is so that the question as to whether he was driving dangerously or driving while under the influence of drink is looked at dispassionately, without the man having been given a bad name in the sense that it is disclosed to the court that he has previous disqualifications. Accordingly, the two charges are kept entirely separate and the previous disqualification is not disclosed.

My purpose is to draw attention to the fact that these provisions, which have certainly been in force since 1980 and are only being modified in this provision, are offensive to the general principle that one should not disclose previous convictions when one charges a person with an offence. This is a very important point. I have learnt that California has now moved, under Proposition 115, to what is called truth in evidence whereby the previous convictions of an accused person are disclosed before guilt is determined. We do not want to get into that situation, which is a desperately bad one. This provision seems to be a tiny step in that direction, although if it goes no further, it would perhaps be acceptable. The Government should reconsider the whole position in relation to disclosing previous offences when charging people with an offence along with a bail offence.

Lord Macaulay of Bragar: Before the Minister answers, I am rather puzzled by the subsection. I can see the point of it, but what does the phrase "having committed an offence while on bail" mean? Does it mean that he has been found guilty of an offence? It is a simple question which begs an answer.

Lord Fraser of Carmyllie: I listened carefully to what the noble and learned Lord said, and I understand his more general concern about what is contained within the new provision. The effect of Amendment No. 6 would be to remove the provision in the new subsection (2B) which requires the court, in sentencing for the subsequent offence, to have regard to the fact that the offence was committed while on bail only where the fact that the defendant was on bail at the time of the offence had been libelled on the indictment or, as the case may be, specified in the complaint. In effect, and on its own, this would prevent the accused from being given notice that new subsection (2A) might apply. Subsection (2A) provides that where a breach of bail has occurred by the commission of an offence the accused will not be guilty of an offence under the Bail etc. (Scotland) Act 1980. In these circumstances it will not be open to the prosecution to libel on the indictment or specify on the charge that an offence of breaching a condition of bail has occurred. Subsection (2B) provides that bail should be libelled or specified in the complaint and provides the accused with an opportunity under Section 67 or Section 312 of the Criminal Procedure (Scotland) Act to challenge the fact. Failure to do so would mean that the fact was admitted.

While I said I understood the noble and learned Lord's general intention, Amendments Nos. 6 and 9 do not seem to achieve what he intends. The effect of the second amendment is that where the principal offence

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was proceeding on indictment and an offence of breaching a bail condition applied, the prosecution would have to proceed with an indictment separate from the principal one. Under the provisions of the Bill this would apply in those cases where a breach of bail conditions occurred through the accused not turning up as requested, interfering with witnesses, and so on, or not making himself available for the purposes of inquiries. The provisions proposed by the amendment would not apply to the offence committed while on bail. Nor is any provision made for proceedings which are held under summary procedure.

While I shall want to consider carefully what the noble and learned Lord had to say—I shall certainly do so before the next stage—I invite him at this stage to withdraw the amendment.

Lord McCluskey: I shall certainly do that. I accept that these amendments and many others are technically defective. I am not a draftsman. I was trying to draw attention to the general principle. Perhaps I should have linked this aspect expressly with the amendment to which the Minister referred. Amendment No. 9 says:

    "It shall not be competent to include in any indictment a charge under this section, but such charge may be included in a separate indictment".

So long as the principle is clear—the Minister has plainly understood the point that I was seeking to make and has undertaken to consider it—I beg leave to withdraw the amendment and I shall not move Amendment No. 9 in due course.

Amendment, by leave, withdrawn.

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