Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Rodger of Earlsferry: It is certainly not my desire to fill the statute book with a large number of unnecessary pieces of legislation; nor, indeed, would it be my desire to see matters dealt with by statute where they can, with due solemnity, be dealt with by means of a practice direction. But, as the noble and learned Lord knows, a problem arose earlier last year in connection with a case where, despite what was said in 1982 by the Lord Justice Clerk Lord Wheatley, bail was granted. Of course a practice note was then issued. However, the Government thought that it was desirable that the proper position—the position which actually applies in these cases, and with which therefore accused persons and their advisers have to comply—should be set out clearly on the face of the criminal statute which applies, and that in those circumstances it was desirable to introduce this provision. For that reason it seems to me that this clause cannot really be described as being, in the circumstances, unnecessary. It sets out, with what I should have thought was due solemnity, the particular provisions relating to an important matter; that is, the circumstances which have to be fulfilled before someone can appeal.

Lord McCluskey: May I ask the noble and learned Lord the Lord Advocate whether we are to understand from what he has said about this, and from what has been said about other such clauses, that the Ministers now in office and bringing forward this Bill are departing from what was recommended by the Renton Commission on the basis of the evidence placed before it and submissions made to it by the then Lord Justice General and the then Lord Justice Clerk, because they made it absolutely plain that it is wrong to enact in great detail to cover every possible situation? One simply makes unnecessary complications. Why is this necessary when one sees that the provision which is now put forward leaves to the Court a discretion but introduces the notion of discretion to be exercised in exceptional circumstances? That is just unnecessary complication and I do not see any point in it.

Lord Rodger of Earlsferry: I think the difference between the noble and learned Lord and myself rests on whether or not this is something which is necessary and desirable. I would say that it is desirable that the circumstances in which someone can appeal should be set out clearly on the face of the statute. Indeed the position as it is at present is slightly misleading because it does not appear on the statute, whereas the matter is clearly dealt with in the case of the summary position.

12 Jan 1995 : Column 322

However, the position in the solemn area is not clearly stated on the face of the statute. One has to recognise the fact that people could be misled. For that reason where other matters in relation to appeals are dealt with in the statute in a technical way it seems to us that the correct technical position should be set out on the face of the statute so that everyone—judges and everyone else—may be clear what the relevant provisions are. It is for that reason—not because we have departed from any other principle—that we think that this particular provision should be included in the Bill.

On Question, amendment agreed to.

On Question, Whether Clause 5, as amended, shall stand part of the Bill?

Lord McCluskey: Having spoken to this matter, I have nothing further to add except to say that the amendment which is being proposed under this clause is one which takes away a perfectly simple provision—a provision contained now in Section 238 of the 1975 Act which states:

    "The High Court may, if it seems fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal".

That is a classic example of stating the general principle and letting the court regulate its own practice. I just do not see the need for what is being done. I have not been persuaded by anything the noble and learned Lord has said, but I do not propose to oppose this Question.

Clause 5, as amended, agreed to.

The Earl of Mar and Kellie moved Amendment No. 14:

After Clause 5, insert the following new clause:

("Victim or complainer to be informed if accused is granted bail

. The prosecutor shall be obliged to inform the victim or complainer if the accused is granted bail in terms of section 1 of the Bail etc. (Scotland) Act 1980.").

The noble Earl said: I rise to move Amendment No. 14 and to speak to Amendments Nos. 81, 82, 129 and 131. I should say that the inspiration for these amendments comes from myself and also from discussions with Victim Support Scotland and indeed from my one time employment with SACRO. Amendment No. 14 has the purpose of ensuring that victims of offending behaviour are kept informed of the whereabouts of the offender when he is on bail. At the present time the victim is kept in the dark about the decision of the court, unless the victim attends the court or makes diligent inquiry, or worse, meets the accused in the street.

Considering the reluctant part normally played by the victim, I think it is reasonable that efforts should be made to keep the victim in the picture. This is especially so at the pre-trial stage when it is easy for overt or subtle pressure to be exerted upon victims, victims' families and especially victims' witnesses. I believe that this amendment would enhance the court service sufficient to outweigh the additional work involved.

12 Jan 1995 : Column 323

Amendment No. 129 is designed to establish an additional and most worthwhile task for the court service. At present victims' households and victims' witnesses are being treated less well by the courts than is possible. Let me go back to first principles. There has been some form of criminal justice system in Scotland for as long as there have been inhabitants. In differing ways parties in dispute turned to a third party to arbitrate. A system evolved which enabled the victim to be able to report the offence to a public body which then relieved the victim of any need to seek personal revenge. Now we have a sophisticated and professional court service which aims to establish what the accused did or did not do and to deal with that offender in what is hoped to be the most useful and beneficial manner. The marginalisation of the victim manifests itself in a lack of information and lack of contact by the court service. What is needed is a system of liaison with the victim so that there is no doubt about what is happening next, whether the case will go to court, and, if so, when and what will happen.

When the victim is a witness there is a need for a good sympathetic briefing about what will happen and how it will happen. During and after the trial there should be an in-courthouse witness support scheme. I believe it would be worthwhile to put a victim liaison scheme into operation using both the professional staff and properly funded volunteers. Such a scheme would be voluntary in its uptake by victims but should be offered to all.

The purpose of Amendment No. 131 is to place a duty on the procurator fiscal's office to inform the complainer or victim of the progress of the case against the accused. For the victim, the offence committed against him or her, whether it is an assault upon the person or a family member or whether it be a violation of his home or personal space, is likely to have been sufficiently traumatic in itself. Then comes the post-incident investigation and the court process where the emphasis will be placed on securing the conviction of the accused. Attendance at court is one of the last ambitions of most people in Scotland. There is a general lack of knowledge of how the courts work. For victim witnesses in particular this strange process can be a very unnerving experience during which they must relive the incident. While there are few ways around the emotional difficulties of that, there is every reason to expect that such witnesses will be cared for by the court system.

With regard to Amendment No. 81, I believe it would be helpful if the court in general and the offender in particular were made aware of the effect of the offending behaviour on victims. The Committee will be aware that being a victim takes many different forms. While it is fairly obvious what the effects of personal assault can be, it is less clear what the results may be from, say, deception, violation of the home or theft of possessions. It is likely that the result will be an increased sense of insecurity, a reluctance to trust others, the victim wondering who did it and generally staying in the house rather than going out for leisure purposes. That latter point may well extend to all the other homes in the street.

12 Jan 1995 : Column 324

When it comes to offences which do not have personal victims, the effects are morale-sapping for the community. Seeing someone profit from illegal or immoral activity can drive down personal standards. Seeing public or corporate property being destroyed by vandalism leads to the comment "What's the point?" and creates an atmosphere of hopelessness for many people.

The provision of a statement about the effect of the offence would be an enhancement in at least two ways. First, the balance of concern for the victim would be addressed; and, secondly, the statement would constitute a useful start to the social work process as part of any order that the court may impose on the accused.

Finally, in relation to Amendment No. 82, I believe that it would be most beneficial if the making of a compensation order were to become the normal or mandatory practice for offences against the person and against personal property. The basis for that change would be the recognition that there are very few victims who are unaffected by the offence committed against them. The main thrust of this new sentencing priority would be to compensate the victim for the distress, hurt feeling, demoralisation and restriction which the offence has caused rather than to compensate for insurable loss.

There are certain circumstances where such a compensation order would be inappropriate. Here I have in mind a punch-up between established rivals. I am concentrating on the innocent victim rather than the loser among protagonists.

The overall effect of the amendment would be to institutionalise the balance of care for victims and to focus the offender's attention on why his or her offending behaviour is unacceptable and its consequences. I beg to move.

5.30 p.m.

Lord Carmichael of Kelvingrove: I step in where angels fear to tread to say that when I saw the amendments, particularly Amendment No. 14, I thought that this was the least that we could do for someone who was in such a position. I was thinking particularly of a woman who was alone with children in the house. I thought that it might be possible to obtain a court order to restrain the accused from approaching the house or the area.

The noble Earl, Lord Mar and Kellie, has elaborated on the proposal. However, it seems to me that a minimum could be done to give the victim an indication of where the accused was, whether he had been given bail and what restraints had been placed on him during the bail period. It must be obvious that, for example, a woman on her own with children must be terrified that a person who had assaulted her might be free to roam about without her knowing what had happened at the court.

12 Jan 1995 : Column 325

I believe that, at least as a commonsense approach, the Government should consider the amendment or perhaps come up with a simpler series of amendments to meet most of the points made by the noble Earl.

Next Section Back to Table of Contents Lords Hansard Home Page