Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Rodger of Earlsferry: That is on the basis that the noble and learned Lord's amendment has drawn attention to a matter which would require to be dealt with. As regards the wider thrust of the noble and learned Lord's remarks, we have considered carefully the question, especially in the light of the report of the Scottish Law Commission, whether the duty should be one which is exclusively on the prosecution.

We came to the view that in reality, whatever the exact technical matter as to whether there was a breach which the noble and learned Lord described as not a serious inroad into any right of silence, there was much to be said for a duty of this kind on the defence. The noble and learned Lord and also the noble Lord, Lord Macaulay of Bragar, asked what the sanction was. There is clearly no sanction of the kind which was envisaged as being raised in the course of a trial in that way.

I would not describe it as a sanction, but where it bites, as the Committee can see from Clause 12, there is introduced an additional Section 75A which deals with the first diet. Section 75A(1) (b) says,

It is a duty which can be focused at a hearing of this kind.

It seems to me that there is advantage from the defence point of view where they exercise the part which refers to them. Where they identify something which they wish to prove, if they think it is unlikely that the prosecution would dispute it, they should then be able to invoke the duty which is then put on the prosecution to take all reasonable steps to agree with them. Although I shall be the last person to say that the prosecution system in Scotland does not take all possible steps to act properly and to agree things where that is

12 Jan 1995 : Column 376

possible, something may be said for having a duty of this kind put plainly on the face of the statute so that it is known that that is what has to be done in that circumstance. Therefore, it seems to us that the provision here is balanced.

The noble and learned Lord, Lord McCluskey, while opposed to the general tenor of these provisions as far as the defence is concerned, would seek to widen them a little by changing them from matters which the prosecutor or the defence consider unlikely to be disputed although they may be disputed.

That is a matter for judgment because the whole provision, which applies generally to these matters, for seeking agreement requires a certain expenditure of time and effort. One has to judge whether or not it is likely that that time and effort used in seeking agreement is going to prove fruitful. There is nothing against a prosecutor or the defence seeking to get wider agreement if they can. Nonetheless, in so far as this matter is imposing a duty, it seems to us that it is appropriate that that duty should be imposed. The obligation to take these steps should be imposed, but only where it is thought unlikely that the matters will be disputed. If one goes wider than that, there is the risk that people will be put under a duty which they may then be tempted not to fulfil. They will be put under a duty which is unlikely to be fruitful as a result.

Overall, I say to the Committee that these are matters where we believe the balance has been correctly struck and that they will have a beneficial effect in leading to a situation where people are not brought to court unnecessarily in order to give evidence. Anyone who has been a law officer knows that one of the matters on which one receives letters is where people are brought to court and feel that that has been unnecessary. I do not believe that one can envisage that necessarily a great deal of evidence will be agreed, but there are people—for example, householders—who are brought along to speak to the fact that their house has been burgled.

The experience so far of the use of preliminary diets which have been taking place in their new form for the better part of a year, indicates that in a great many cases we are getting agreement on such matters and, likewise, where cars have been stolen, and so on. That is all to the good. These are matters which we believe are unlikely to be disputed. It is because of that experience that the test which we are putting forward is an acceptable one.

Lord McCluskey: I hope that the noble and learned Lord will not conclude that he has no more thinking to do on this matter. I share with him the objective which he has mentioned. For obvious reasons, one wants to reduce the unnecessary burden of bringing witnesses to court. The question is this: what is the best way to do it? My judgment is different from his. The judgment of the Scottish Law Commission was also different from his on this particular matter. It would be prudent to think about it again.

What concerns me is that when one looks at the wording as far as the prosecutor is concerned, he has a duty to do something if he considers the point is unlikely to be disputed. Therefore, in a sense, there could not be

12 Jan 1995 : Column 377

a sanction there because one would have to test his honesty if he says, "I consider that it is unlikely to be disputed". It may be that the imposition of the duty is to impose an extremely light burden on the prosecutor. That is not what the Scottish Law Commission or I envisaged in the amendments proposed to an earlier Bill in this House.

My second point is that in many cases—I am thinking of a great many cases where the matter is reported to the fiscal by the police—he does not have the slightest idea of what the accused will or will not dispute. The accused has made no reply to the police, the police have collected certain bits of evidence and have no idea either. As a result the duty does not arise.

My third point arises because of something in the clause that was mentioned in passing by the noble Lord, Lord Macaulay. It ties in particularly with Clause 12, which we have not yet reached, but which states:

    "the court shall ascertain whether the case is likely to proceed to trial on the date assigned ... and ... the state of preparation of the prosecutor and of the accused with respect to their cases".

If a defence solicitor who is falling under the duty imposed by the clause that we are now discussing then appears before the sheriff in terms of Clause 12 and declines to co-operate, is he going to be reported to the Law Society as in breach of some duty that he owes towards the court which has been imposed upon him by an Act of Parliament? I wonder whether that point has really been thought through and whether the advice of the Law Society of Scotland has been sought on those provisions and, if so, what it is. Perhaps we can return to this point on another occasion when the Lord Advocate has thought it through a little further.

Lord Rodger of Earlsferry: I commend Amendment No. 21 to the Committee.

On Question, amendment agreed to.

[Amendments Nos. 22 to 25 not moved.]

9 p.m.

Lord Rodger of Earlsferry moved Amendment No. 26:

Page 6, line 42, leave out ("agree them") and insert ("secure the other party's agreement to them; and the other party shall take all reasonable steps to reach such agreement.
(1A) Subsection (1) above shall not apply in relation to proceedings against an accused who is not legally represented.").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 27:

Page 7, line 4, at end insert:
("( ) It shall be the duty of the prosecutor to make available to the accused all material relating to the charge or charges against the accused in the possession of the prosecutor; and such material shall include all statements, reports and productions in the possession of the prosecutor whether he intends to found upon them in the prosecution of the accused or not.").

The noble Lord said: This is the second time that this amendment has appeared in the House. It was put before your Lordships in one of our previous debates on criminal proceedings in 1993. It is interesting to note

12 Jan 1995 : Column 378

that the Government are anxious to secure as much agreement as possible as early as possible between the accused and the prosecutor. It is not reasonable to ask accused persons to agree material unless they know what the evidence in the case is. The purpose of the amendment is to specify that,

    "It shall be the duty of the prosecutor to make available to the accused all material relating to the charge or charges against the accused in the possession of the prosecutor ... whether he intends to found upon them"

in the course of a prosecution. Everybody shakes their heads and says that that will result in the production of lorry-loads of material. To that I say, "So what?" If the state is launching a prosecution against an individual, that individual is just as entitled to the information upon which the charge may be based as the prosecutor. It is for the prosecutor to decide what use he wants to make of it. Equally, the defence should be allowed to see everything that has been recovered in the course of an inquiry so that it can look at the evidence that will be presented to the court to see whether the prosecutor has in his possession matters that are of value to the defence, but in which the prosecution is not interested. Unfortunately, in the past two years there have been cases in which the ground for appeal was that material in the possession of the Crown was not disclosed to the defence.

One of the main objectives behind the amendment is to ensure that such an appeal cannot be launched at a later stage in the proceedings—whether that be one year, 10 years or 20 years after the conviction. The defence should not be able to say to the Court of Appeal that the Crown had such material in its possession but did not tell the defence about it. Whether the Crown deliberately withheld the evidence is neither here not there; the real issue is that any evidence is evidence in the broad sense of the word and it matters not to whom it relates. Therefore, the prosecutor and the defence should have equal access to all evidence and an equal opportunity to use the material that is in the possession of the prosecutor for the purposes of the trial.

I believe that it was a Government Minister in the 1980s who said, "You cannot put a price on justice", and when the party in government changes, we shall have to look at that point. Those words may be true, but you cannot put a price on facts. If certain facts have to be determined in a case, they should be determined in the light of all the evidence that is available as a result of the state's investigation and should not be withheld from the defence for any reason whatsoever apart from where an immunity certificate is involved. However, I shall not go into that now because it is a delicate area and we have enough to contend with in this Bill without that. Accordingly, I beg to move.

Next Section Back to Table of Contents Lords Hansard Home Page